Category Archives: News

Louise Braham: An Appreciation

Louise Braham, who has recently passed away, was a founder and trustee of the Byways and Bridleways Trust, first editor of Byway and Bridleway, and founder of the Rights of Way Law Review. A barrister by profession, a farmer by choice, and an equestrian by passion, Louise and the other founders started their rights of way work in the 1970s, when the legislation was crude, councils ill-equipped and poorly trained, and a great many ancient highways unrecorded or neglected.

The Trusts ‘unique selling point’ was its focus on the routes themselves, and not on the interests of the users ‑ and particularly not of any class of user. This stance brought disapprobation from some of the countryside intelligentsia, but Louise stuck to her guns: identify and properly record the routes themselves, and then manage their use appropriately and fairly.

In the late 1970s there was darkness. The original definitive map process, brought about by the National Parks and Access to the Countryside Act 1949, had done a remarkable job in recording scores of thousands of miles of rights of way, but that Act and its 1968 successor could not deliver on adding the thousands more that had been missed; we needed something better. It came in the form of Part 3 of the Wildlife and Countryside Act 1981, and Louise and others spent a huge amount of time helping to draft the rights of way provisions in the Bill. The result was a piece of legislation that has stood the test of time. Yes, it needs some updating (which the Deregulation Act, if it ever gets commenced, will provide in part), but overall, if a knowledgeable practitioner and a parliamentary draughtsman sat down with a blank piece of paper, they’d be pressed to come up with a better process.

The 1981 Act apart, Louise’s greatest legacy lies in information and training. The Byways and Bridleways Trust training courses, which later evolved into those hosted by the Rights of Way Law Review, did more than anything else to improve the knowledge and performance of everyone in the system: the voluntary sector, local and national government, the Planning Inspectorate; even the Department of the Environment.

Louise edited Byway and Bridleway until 1997, and then concentrated on the Rights of Way Law Review until that became a casualty of the economic downturn in 2013 ‑ symptomatic of the malaise that now bites this work ever-harder.

All issues of Byway and Bridleway are on the Byways and Bridleways Trust website. If you weren’t there, read the early ones to appreciate how very different it was then ‑ what a low base we all started from. Just last week a judge (and a good judge, too) heard a rights of way case. He said, ‘I confess I had never heard of the Wildlife and Countryside Act 1981.’ Most people haven’t, but a great many enjoy its fruits.

Wider Still and Wider

The case of Ford v. Harrow addresses the dedication of a public right of way along an existing ‘lane’. What if an existing public path is made into a ‘private road’? How wide then is the public path. Notes & Materials on the Width of Public Rights of Way has been updated with a short section on this. Click the link to view or download.

It’s All About The Width

Notes & Materials on the Width of Public Rights of Way has been lightly updated and is available on this link.

At the time of writing (23 April 2016) there is still a considerable amount of discussion in the Stakeholder Working Group regarding what will happen after 2025 to rights of way with no recorded width, and rights of way with an under-recorded width. A small sample of definitive statements indicates that there are a lot of rights of way with recorded widths so narrow as to render the path unpleasant or unusable if ‘that is all you have’. Perhaps curiously, given that the Wildlife and Countryside Act 1981 was intended to cure the deficiency in the 1949 Act as highlighted in Suffolk v. Mason 1979, the wording of the 1981 Act seems to have created a similar ‘cap for the time being’ as regards widths. It’ll all come out in the wash … won’t it?

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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.

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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.

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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.

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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.