Wednesday, 12 April 2017


Looking towards Keysoe
As the highway authority, Bedford Borough Council has various legal powers which enable it to carry out its statutory public rights of way duties including: “To assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority, including any roadside waste which forms part of it.” (Highways Act 1980, Section 130(1). The same various powers can be used at the Council's discretion for other, non-statutory rights of way purposes – things that it can do but doesn’t have to, like diverting paths for instance.
Our Council says it does not have sufficient resources to do everything it is required to, so complaints regarding its failure to fulfil its duties are not always followed up and resolved.
My argument is that if the Council doesn’t have enough resources then it must first carry out all its statutory duties before spending time and money (if any remain) to do the things it can but doesn’t have to. Simple right?
But our council officers (for it is they, not our elected members who decide) choose to do otherwise.
Last year, Bedford Borough Council made twelve public path orders to change the public rights of way network in the parishes of Thurleigh and Ravensden because the landowner wants the paths, some of which he has obstructed, laid out differently. However, the orders were flawed so they will have to be abandoned and the Council has said that they will make new orders. Let me call these: Jobs-to-Do - Nos. 1 & 2.
The Council also made public path orders in the interests of the landowner at the parishes of Stonely (Cambs), Pertenhall & Little Staughton. The orders were flawed as well so will have to be abandoned and the Council has said they too will be re-made: Jobs-to-Do – Nos. 3 & 4. Consultations have been carried out for separate public path orders at Bletsoe; Colmworth; Staploe; Wilden; Willington; Wilstead; and Wyboston: Jobs-to-Do - Nos. 5 to 11.
There is a small backlog of applications for Definitive Map Modification Orders (DMMOs). DMMO applications can be made by any member of the public where they consider there is evidence that a path should be added to or deleted from the Definitive Map and Statement. The Council is supposed to deal with applications within 12 months of receipt but hasn’t. And an opposed DMMO made in 2006 awaits action. More Jobs-to-Do. And more besides. I think you get the picture.
It would seem sensible to me, necessary even, to get to get rid of or get to work on the list of jobs outstanding. But no - our Council chooses instead to add another three jobs to its list. Last month consultees were “notified” that an order will be made to divert a footpath in the interests of a landowner at Wilden, another order will be made to divert a footpath in the interests of a landowner at Dean & Shelton (both to field edges where they will be fenced in), and an order will be made to extinguish a harmless bridleway at Oakley, at a cost to the public purse.
It seems wrong to me that Bedford Borough Council chooses to use its powers to change the public rights of way network as a result of applications from landowners (a discretionary function and at some cost to the public purse) rather than focussing on its statutory duties? And it doesn’t make sense to me that having decided to make path orders that the process is then put on hold whilst they propose making more.
The only reason for making a public path diversion order is that it would be in the interests of the public, or of the owner (or lessee or occupier) of the land crossed by the path, or both. Bedford Borough Council should sort out its priorities to attend to its statutory duties, and in the meantime impose a moratorium on the processing of applications for public path orders made in the interests of landowners.


  1. Are the land owners not public beings also, or do they have to be "members" to be classed as worthy recipients of council attention under the dictates of your personal interests? How about deal with the list in order of application date?

  2. I consider “the public” to mean the people as a whole. Clearly that includes landowners. And in my opinion by far the most of landowners are upright, respectable and generous people. However, when a landowner applies for a path order in his or her interests, or if they are advised by the highway authority to make or amend the application to only be “in the interests of the landowner” rather than “in the interests of the public” or both (as I know highway authorities do), then it is done so as an individual – in his or her interests. I don’t have a problem with applications made in the interests of the public. You won’t see many of those, if any, in Bedford Borough though.

    However, I think you miss my point, which is that my Council is being selective in which legal duties it carries out.

    When setting my own budget, the priority is to pay for everything that I must pay for before allocating funds (if any remain) for the other things that I might want; there is a legal requirement that I pay council tax, have car insurance etc. It would be wrong to forgo those payments in order to purchase an expensive present for someone for example. My view is that the Council should use its funds to carry out its legal duties before using its resources (if any remain) for something it doesn’t have to use them for – such as using its discretionary powers for the benefit of landowners.

    1. It is not necessarily the case that a diversion order made in the interests of a landowner is not also in the interests of the public - it may well be. However, if an Order is made in the interests of the landowner AND in the interests of the public, if it is opposed it will be necessary for the order-making authority to show that it is both in the interests of the landowner AND the public (which is more work). Therefore, advising applicant landowners to apply on the grounds that the proposed diversion is only in their interests doesn't seem to me to be a particularly heinous thing for this (or any other) Council to be doing. Parliament provides that diversion Orders may be made (and confirmed) in the interest of the landowner - and that may be only one individual; but a diversion that is not substantially as convenient to the public, or is inexpedient in all the circumstances should not be made, and if it is made and objected to probably will not get confirmed. But I think your other contributor makes a fair point - how about the Council adopts the policy that it will usually consider applications for Orders of any kind in order of receipt - with the exception that applications for Orders under the Town and County Planning Act get dealt with immediately? And the Borough Council has just advertised for a new rights of way officer, so things might be about to improve...

  3. Well it seems to me that it would not be particularly admirable (if that is the opposite of heinous) either, for a local authority to advise an applicant in that way. I don’t think that a local authority should act as an agent for the applicant, advising the best way to get an order confirmed and making it more difficult for someone to object (which it is if it is in the interests of the landowner, rather than both). Although it’s not a key word in the legislation or guidance, I think that there should be a clear “benefit” for the public when making a diversion order in the interests of the landowner. The subjective nature of "substantially as convenient, etc" makes it a difficult test to object to.

    Yes, our Borough Council has allocated funds for a second full-time Definitive Map Officer and the post has been advertised. However, I am concerned that his or her time will be wasted dealing with public path order applications when it seems to me that there are other priorities as I have tried to set out and explain, and which included for instance, one target contained in Bedford Borough's Rights of Way Improvement Plan 2012-17(ROWIP): to open up 15km of obstructed paths over a four-year period by use of public path orders. That period ended March 2016 with not one metre having been opened yet time was spent dealing with public path order applications which was not a ROWIP aim.

    Therefore, my view remains the same. Refuse all public path order path order applications (for diversions in the interests of the landowner) and focus on statutory duties.

    It would only be a short term measure now anyway. When the Government gets its act (no pun intended) together and the Deregulation Act regulations are published, Highways Act applications will no longer be a discretionary function. And our Council already has a policy for prioritising current applications, which is far more complicated than “in order of receipt”, but which, typically, it ignores.

  4. Since landowners are (as you acknowledge) members of the public why are they not entitled to receive advice from local authority officers (that their council tax pays for, as much as yours does), in the same way that other members of the public receive advice about other services the Council offers?

    At present the burden of proving to an Inspector that an Order is in the interests of both the applicant landowner AND the public would fall on the Council - why should the Council do that if it doesn't have to.

    The legislation is what it is; it does not say that a diversion has to be in any way beneficial to the public. Parliament could have chosen to make diversions contingent upon them always being in the interests of the public, but perhaps recognising the difficulty of that, chose not to do so. Diversions are a particularly difficult area since the tests are almost entirely subjective - for every walker who opposes the loss of a direct line path across a field with its views, there may well be another walker who is happier to walk next to the hedge and see the wildlife.

    It was, perhaps, the refusal of certain local authorities (e.g. Oxfordshire County Council) to make any diversion orders under the Highways Act 1980 that prompted the introduction of the 'right to apply'; which measure will when (if?) it comes into effect will doubtless further skew the priorities of Councils away from considering DMMO applications. The same legislation will also mean that DMMO applicants wishing to appeal against non-determination withing the 12 month period will have to take their case to the Magistrates' Court, rather than (as now) appeal to the Secretary of State. That may well be much more onerous, since it will involve paying court fees and being at risk of the Authority's costs if the appellant loses. Overall, perhaps it would have been better for there to have been a little more give and taken in places like Oxfordshire and then perhaps the new legislation would not have been considered necessary?

  5. Q. “Since landowners are (as you acknowledge) members of the public why are they not entitled to receive advice from local authority officers (that their council tax pays for, as much as yours does), in the same way that other members of the public receive advice about other services the Council offers?”

    One reason is that it is the highway authority’s duty to protect public rights of way. Advising how to make a more convincing case for diverting yet at the same time protecting seems a conflict of interests to me.

    However, as you say – the legislation is what it is. I don’t really have such strong views about the law as it stands and have no power to change it in any case.

    My local authority should abide by the legislation, such as it is, and carry out its public rights of way duties rather than choose to use its discretionary powers, which is the subject of my blog post.

    As the Open Spaces Society puts it:
    In the areas where we have local correspondents we oppose applications for changes to rights of way which are not overall to the public benefit.
    We lobby the highway authorities (county and unitary councils) to put more money into maintaining public ways. We urge them to give priority to their statutory duty of getting them all in good order and the official map of rights of way up to date.
    We consider that the discretionary power of moving paths should have low priority and we advocate that councils refuse to consider a path change unless there is a clear public benefit. Otherwise they are using their slim resources on a mere power, to the advantage of owners and occupiers rather than the public, instead of on the duty which benefits everyone.

  6. I think you've misunderstood my point. The Council could (perhaps) say to the landowner, "You can only have a diversion if you can prove that the proposal is both in your interests AND in the interest of the public." Suppose the landowner comes back with a proposal that he thinks is in his interests and is in the interest of the public. Suppose the Council agrees with him and makes the Order. Suppose you accept that the Order IS in the interests of the landowner, but you consider that it is not in the public interest and you object to it. After all we both agree that this is all rather subjective and it is quite difficult to decide what is or is not in the public interest. Having made the Order on both grounds, the Council then faces having to defend it on both grounds. This is harder than having to defend the clearer case of whether or not the diversion is in the landowners interest. The Council has made its own job harder (and for harder read more resource intensive and more expensive) since it could, and Parliament allowed specifically for this, have made the Order simply in the interests of the landowner. So where does the public lose in the council's officers advising landowners to simply submit proposals on the ground that they are in the interests of the landowner - they don't.

    Your grouse with the Council is not that it is making Orders that are in the landowner's interest, but that it is making Highways Act Orders at all.

    It would be manifestly unreasonable for the Council to say it would never exercise its discretion to make a Highways Act order; but I would agree that the Council could decide to give priority to DMMOs and to maintenance and enforcement work. However, since the Council can't charge for those functions, but can charge for making public path orders (though not at the moment for defending an opposed order), you can perhaps see why a council might choose to carry out an activity that it can charge for.

    Do you know whether officers are funded in part from income from public path order receipts (as they are in Cheshire East for example)? If the Council stops making any Highways Act orders at all then it will lose those receipts and may have to make staff redundant (which will be a one off cost to the public purse) - at which point there will be no possibility of those members of staff doing anything, even the things you would like them to do.

    Spending money on public rights of way only benefits those who use public rights of way - so whilst this is a statutory duty it competes with other statutory duties. If the Council-tax payers of Bedford were asked whether they wanted the Council to spend more money on rights of way or to resume weekly black bin collections, or to fill the potholes and renew the white lines on the roads what do you think the answer would be? Personally I rather doubt it would be more money for public rights of way, don't you?

    So instead of aiming for something the Council clearly isn't going to do (i.e. make no more Highways Act Orders), how about taking on board the suggestion of the anonymous correspondent to your blog and negotiating for a compromise - some Highways Act Orders AND some progress with DMMOs and enforcement. Might a little give and take get you further forward? You seem to have been blogging since 2013 and I assume that you consider that you've not made any progress with the Council so far, perhaps a change of tack is called for?

  7. Ahhh – just when I thought we’d finished. And now I’m last minute packing for a week oop North.

    I could say that I’ll give your further comments careful consideration before responding upon my return but I really don’t want to think those thoughts as I amble around the North York Moors and along the coast. In any case, it strikes me that this conversation isn’t really going anywhere. We both have different views and it is not my purpose to try to change yours - unless you are connected in some way locally.

    It is my view that Bedford Borough Council is not doing as good a job as it should in its capacity as the highway authority and as the surveying authority. “Should” in law. Therefore, I comment and complain, as do others, and claim some success.

    Some years ago, the now defunct Bedfordshire County Council imposed a moratorium on the processing of public path order applications in order to focus on what it called public rights of way anomalies and a backlog, and some local authorities do not process applications at all so it’s not a novel idea when I advocate a temporary moratorium to allow time to carry out other work which benefits everyone.

  8. If the pending DMMO applications that you want to the Council to deal with are yours, then you might want to appeal against non-determination - since I notice that of the last 19 decisions issued, directions to determine have been given in 18 cases. That might have more effect than blogging - which I am sure that the Council ignores.