Good chare

‘Chare’ seems to be a road name unique to the northeast of England, occurring on old (some known medieval) narrow and often steep roads and alleys. This one at Heddon-On-The-Wall, west of Newcastle on the old Hexham Road, is now a bridleway forming part of the long-distance path along the Roman Wall.

Chare

Halfwitted?

Road signs and markings are supposed to be easy to understand and interpret. A lot of clever people have put a lot of time and effort into making them so, not least Messrs Anderson and Warboys. What might they have thought about this confection on Sir Bobby Robson Way, Newcastle upon Tyne?

Halfwittery

Olde Graveller is not one for complaining, as his pals (?) will testify, but … And our taxes pay these people?

Wickets fall

The Northumberland County Council Parish of Seaton Valley (Public Bridleway No. 192) Creation Order 2074.

Decision date 1 October 2015.
Pins Ref’n: FPS/P2935/6/4.
Inspector Sue Arnott.

This was a creation order to make a ew bridleway near Seghill in Northumberland. Northumberland County Council specified a ‘wicket gate’ on the bridleway, as a limitation. Alan Kind objected thus: :The order is expressed to specify a ‘wicket gate’ as a limitation. Neither the Highways Act 1980, nor the British Standard on rights of way gates, acknowledges, specifies, or envisages, a ‘wicket gate’. 
“The best ordinary definition I can find is: ‘a small door or gate, especially one beside or in a larger one.’ I cannot see how a ‘small door or gate’ is an adequate substitute for what 99.9% of order-making authorities would specify simply as a ‘bridle gate’ in such an order, in similar circumstances, but do please give me your reason for so specifying here.”
This same terminology had been used by NCC in another order at much the same time, and the case officer, Tony Derbyshire, told Alan Kind, “On reflection it would be more consistent to use the same terminology in the order as we use in the specification, and I will aim to do this in future orders.” Fair enough, ADK withdrew that objection on that promise.
This time around NCC took a rather different line, “The inclusion of the word ‘wicket gate’ in the order was included [sic] because this best describes the existing limitation on the footpath, which will remain if the route is upgraded to a bridleway. Interestingly the objector’s definition of a wicket gate included in his objection – ‘a small door or gate, especially one beside or in a larger one’ describes very well the existing arrangement, which is included as a limitation.” Rather destroys one’s trust in anything Northumberland County Council might promise? Anyway, Mrs Arnott cuts through with a pragmatic approach:

[30] “I see two separate issues here: firstly whether the type of limitation should be referred to as a wicket gate, a bridle gate or simply a gate, and secondly whether the width of the limitation proposed at point B is appropriate for the new bridleway that is being created.
[31] “I agree with the objector that using terminology which does not appear in NCC’s specifications (or the British Standard) is not only confusing but also meaningless. NCC’s specifications refer to pedestrian gates and bridleway or bridle gates, not wicket gates.
[32] “Yet whatever it is called, the point is that what is proposed on the Order route is a gate on a new bridleway. irrespective of its past use by horse riders and cyclists subject to the limitation of the present gate, this Order is made under Section 26 of the 1980 Act to create a new right of way for those users.”
[33] “Insofar as the Order Schedule is concerned, all that is required is that it records a gate that complies with a recognised standard, I therefore intend to modify the Order to remove the word ‘wicket’ so that the rights of the public using Bridleway 192 will be limited by ‘One gate, to comply with Northumberland County Council Gaps, gates and stiles – Specification (January 2009), situated at grid reference N228637507’. It will be for NCC to ensure that the gate at point B complies with its published standards. “

The Powys County Council (Creation of Public Footpath LS1914(A) and Bridleways LS1938(A), LS1940(A) and LS1941(A) in the Community of Glasbury) Public Path Creation Order 2013.
Decision date 23 December 2014.
PINS Ref’n: T6850/W/14/515923.
Inspector Sue Arnott.

This order created the rights of way subject to limitations of gates, described as being ‘to current British Standard.’ Alan Kind objected on the ground that this is ambiguous when incorporated into the definitive statement, and the wording should define the limitation at the date of creation: the specification for the gates is not ambulatory as the British Standard evolves. Again, Mrs Arnott gets back to basics:
[19] “Whilst it is widely recognised that reference to defined standards for limitations such as gates is good practice, the English guidance may not be expressly applicable in Wales but the general principles hold good. PCC clearly recognised this when it made Order A since it included a reference to the British Standard. I have no doubt it was appropriate to do so, despite there being no specific guidance encouraging this practice in Wales.”
[20] “However I accept the argument made by Mr Kind that it is important to be clear about the extent of the limitation(s) at the date of creation of the new rights of ways since this enshrines the right(s) of the landowner to restrict the public thereafter. That cannot alter, positively or negatively, at any later date should the British Standard for gates change in future. I therefore consider it prudent to clarify the description in the Order schedule so as to be more specific and to expressly identify the particular British Standard applicable to the five gates in this case. I therefore propose to modify the Order to include reference to BS 5709:2006 since this is the “current British Standard” PCC intended should apply.”


Virtue is its own reward?

A bridleway at Norton Malreward, Bath and North East Somerset, is saved from closure.
Norton Malreward is a small village about 6 miles south of the centre of Bristol, and just west of the A57. A riding route (part unclassified road, part BOAT, part bridleway) runs out of the village via a farm complex (now houses) and runs for three-quarters of a mile as a good track over open down-like country, to join the B3130 near Belluton.
The route was originally put on the definitive map as two contiguous RUPPs, and the southernmost of these was reclassified as BOAT without objection. An order was made in 1989 by the then highway authority to reclassify the longer RUPP as a bridleway, and local trail riders objected. A public inquiry followed and the Inspector proposed to modify the order to record a BOAT (on a mix of user and documentary evidence). This modification attracted objections and there was a further public inquiry in 1997, with a different Inspector. This Inspector held that the motorcyclists’ user evidence was not valid, relying on the later discredited authority of Robinson v. Adair, and the order was confirmed as bridleway for this part.
Mr Tim Stevens challenged this decision in the Administrative Court, where the Judge upheld the Inspector’s view of the law (wrongly, as it transpired later). So, for a bit over 15 years, all seemed settled, but in the background one of the landowners at the north end, advised by Mrs Marlene Masters, had put in an application to delete the section of bridleway through the Manor Farm curtilage altogether, leaving a three-quarter-mile long dead end. This application sat on the shelf, undetermined, for some years until a s.130A notice served with regard to an alleged obstruction at Manor Farm in August 2011 caused BANES to revisit the deletion application.

NMAx

Above: The obstructed and misaligned section of bridleway at Manor Farm. Clearly, horses do use this route.

The BANES rights of way officers quite rightly advised the councillors against making the deletion order, but they were overruled and an order was made. The BHS and others objected. Then followed a period of administrative confusion, with BANES deciding the order was technically defective, and making a replacement order, although the first order still had to go to the Secretary of State. Then there was to be a public inquiry at which BANES next decided to adopt a neutral position, with Magna Law representing the applicant, but this was cancelled last-minute to be replaced by the written representations procedure, although there was an accompanied site visit in May 2014 during a torrential rainstorm.

NMBx

Above: The bridleway looking back northwards towards Manor Farm and Norton Malreward (on a sunny day).
Over eight months later the Inspector, Mr Mike Lowe, issued his decision letter in which, to summarise, he finds little good evidence to prove that a mistake was made when the bridleway/RUPP was originally added to the definitive map. The order is not confirmed, and the bridleway remains obstructed — although riders squeeze by — at Manor Farm. You can find the decision letter on the PINS website under Bath and North East Somerset, reference FPS/F0114/7/14, dated 15 January 2015.

NMCx

Above: These patently unlawful misleading signs were in place for the site visit in May 2014. BANES officers promised to have them removed.
In January 2015 a further s.130A notice was served on the council to expedite the clearance of the obstructing wall and other features (whilst officers might be relied upon here, the same could not be said of members) and the statutory counter-notice said that the occupier would be required to remove a 3-metre section of hedge and wall, vegetation, and rope. Nothing was heard back from BANES, and a letter of enquiry in September 2015 drew the response that the obstructions were removed in March, and that the path remains open and unobstructed (officers are monitoring it, as you might expect). Job well done by BANES officers, and top marks for the tenacity of first the TRF, and latterly the BHS, over 26 years. Yes, TWENTY SIX YEARS.

Lot of bottle

Sigg’s aluminium and stainless steel drink bottles had a degree of quality about them in a world of cheap and sweaty plastic, which is the Devil’s own job to keep clean. Olde Graveller has for many years used a treasured ‘retro’ stainless flask with an over-centre stopper-lock just like those on Corona pop bottles delivered to his Granny’s house by a horse-dray in the 1950s.

Sigg Bottle

As all things must pass, so did the sealing washer. Buy a replacement at a Sigg stockist? Not so simple: this bottle type has been discontinued, and a demerit to Sigg for not keeping spares available to keep perfectly good bottles out of the recycling bin.

Anyway, an email to Sigg followed, and the people at the UK end of the operation went to the trouble of finding a couple of sealing washers and sending them to Graveller Towers, gratis. Thanks gents, and unless Mrs Graveller sits on it, the bottle should see out Grav’s declining years.

On yer bike?

Norfolk County Council (Billingford) Modification Order 2012.
Order Ref: FPS/X2600/7/106M.
Final decision: 7 January 2015.
Inspector Mark Yates.
“[11] A proportion of the people who have used the claimed route on horseback have also done so on foot and pedal cycle. Six people used the route on foot and cycle. There is an issue with determining the amount of cycling use from the other types of user and it generally covered a relatively recent period of time. Overall, from an analysis of the relevant UEFs and the evidence of those people who spoke at the inquiry, I was not satisfied that the use by cyclists is sufficient to establish the dedication of a vehicular highway

“[27]. Although cyclists have a right to use a bridleway, I do not consider that evidence of use by cyclists can serve as a replacement for the lack of sufficient evidence of use by horse riders.”
In the decision of the Court of Appeal in Whitworth v. Secretary of State for Environment, Food and Rural Affairs [2010] EWCA Civ 1468. Carnwath LJ said (at paragraph 42): “In my view, the same conclusion would follow even if there had been no finding of pre-existing bridleway rights, so that the claim had rested solely on use after 1973. One would then be considering the inference to be drawn from the actual use between 1973 and 1993. It is true that regular use by both horse-riders and cyclists over that period would be consistent with an assumed dedication as a restricted byway at the beginning of the period (had that concept then existed). But it is no less consistent with an assumed dedication as a bridleway, of which cyclists have been able to take advantage under the 1968 Act. Since section 30 involves a statutory interference with private property rights, it is appropriate in my view, other things being equal, to infer the form of dedication by the owner which is least burdensome to him.”
In Consistency Guidelines – 8th revision July 2013 Section 5 page 12, “Section 31, HA80, as amended by section 68 of NERC06, provides that use of a way by non-mechanically propelled vehicles (such as a pedal cycle) can give rise to a restricted byway. In Whitworth it was suggested that subsequent use by cyclists of an accepted, but unrecorded, bridleway, where use of the bridleway would have been permitted by virtue of section 30 of the CA68, could not give rise to anything other than a bridleway. Whilst Carnwath LJ accepted that regular use by horse riders and cyclists might be consistent with dedication as a restricted byway, it was also consistent with dedication as a bridleway. In such an instance of statutory interference with private property rights, he determined, it was reasonable to infer the dedication least burdensome to the owner.”
Mr Yates dismisses the cyclists’ user because (he finds) there was “lack of sufficient evidence of use by horse riders.” Well, had there been ‘sufficient’ horse user, then there would have been … sufficient; and Lord Carnwath in Whitworth was plainly considering the aggregation of cycle and horse user evidence as valid evidence of deemed dedication of a bridleway.

The Full 20 Years?

Norfolk County Council (Billingford) Modification Order 2012.
Order Ref: FPS/X2600/7/106.
Interim decision: 6 February 2014 (not amended in the final decision of 7 January 2015).
Inspector Mark Yates.
Many years ago, when PINS was still an approachable organisation, looking to engage with its ‘customers’, and trying to improve its performance and engagement, the then Chief Inspector, the estimable Brian Dodd, on hearing that yet another inspector, in yet another case, had misapplied the double-negative s.54 test, told me, ‘I tell them to write out the statutory provision exactly as it appears in the Act … if they do that it is harder to go wrong …’ Well, plainly that is a lesson that did not get through to all.
In his paragraph [6] Mr Yates sets out the statutory requirements for deemed dedication (my emphasis): “The relevant statutory provision, in relation to the dedication of a public right of way, is found in Section 31 of the Highways Act 1980 (“the 1980 Act”). This requires consideration of whether there has been use of a way by the public, as of right and without interruption, for a period of twenty years prior to its status being brought into question.” Nearly right, but no biscuit.
S.31 of the Highways Act 1980 actually says: “Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway …” Can you spot the difference?

In this case the date of ‘bringing into question’ was found to be “2010”, and the necessary period of 20 years of user to be “between 1990 and 2010.” ‘Between’ in this usage seems to mean, ‘in the period separating two points in time.’ So ‘between 1990 and 2010’ means the period between 31 December 1990, and 31 December 2009, and that amounts not to 20 years passage of time, but to 19 years, while s.31(1) of the Highways Act 1980 requires a “a full period of 20 years.”

Since the Act demands a ‘full period of 20 years’, finding that the date of bringing into question was one of the 365 days during 2010 (but not knowing which day) must surely demand a period of user reaching back 20 years from (the start of) 1 January 2010, which is to (the start of) 1 January 1990. If the date of bringing into question was later in 2010 than 1 January, but not known, then there is a full period of 20 years accounted for in this approach, but a notional 1 January 1990 is not satisfied by “between 1990 and 2010.” “Between 1989 and 2010” would bracket a full period of 20 years.

What does PINS say in Consistency Guidelines? In [5.3] “Under s31 HA80 dedication of a route as a public highway is presumed after public use, as of right and without interruption, for 20 years, unless there is sufficient evidence that there was no intention during that period to dedicate it. The 20 year period runs retrospectively from the date of bringing into question.” Again, the statutory requirement is not properly set out here. Needs fixing?