Types of work undertaken.

Most work involving minor highways and public rights of way comes under one of three categories: orders; obstructions; and maintenance (repair).

Orders involve orders made by councils (sometimes by courts or the Secretary of State) to (variously): record the existence of a right of way, delete or stop-up a right of way, create a right of way, or divert a right of way. Orders made by councils under the provisions of the Wildlife and Countryside Act 1981, the Highways Act 1980, and the Town and Country Planning Act 1990, are commonplace. Many hundreds are made every year, but many dozens of those are badly drafted, so badly that they either have to be (variously) modified by the Secretary of State (in Wales, WAG), rejected by the Secretary of State, or remade by the council responsible. This is inevitably expensive and causes delays. Even where an order is properly made it is still often necessary to argue its merits against opposition, either at a public inquiry, or by written representations. The system is designed to have checks, balances and safeguards, and the price of this protection is potential delay, particularly when the case for the order has not been thoroughly researched and properly presented. If you want an order to succeed, then it pays to get it right first time. If you want an order to fail, then you need to be able to spot its deficiencies.

Obstructions are once again an increasing problem on Britain’s minor highways and public rights of way. Over the past ten years Alan Kind has done a great deal to explore and develop the understanding of law and practice relating to obstructions. Enforcement against obstructions, or counter-arguments against enforcement, can end up in court where legal professionals are usually necessary, but many cases can be resolved short of the courts by a thorough understanding of the issue.

Maintenance (repair) of minor highways is now an even-more difficult issue, as highway authority budgets are squeezed further. What is the ‘baseline’ for adequate repair on a bridleway? On a cart road? This is important in many ways, and not least as a material consideration in damage and personal injury claims. Building on the pioneering work of Colin Seymour (see the Byways and Bridleways Trust website for a library of Colin’s papers) Alan Kind has explored and developed the understanding of maintenance issues considerably over the past dozen years.

Other areas of law and practice covered:

Research for orders. A good proportion of orders to add public rights of way to the definitive map and statement (the official record) is based on ‘documentary evidence’: maps and documents which provide evidence of the ‘ancient’ status of a particular route. This research involves locating the documents, interpreting what they show, and then building an evidential case to prove the right of way being claimed exists ‘on the balance of probabilities.’ Equally, research can sometimes show that a right of way currently recorded was recorded in error, and does not, in truth, exist.

Stopping-up of highways in the magistrates’ court. Vehicular highways, and occasionally footpaths and bridleways, are stopped-up or diverted by an order made by local magistrates, on the application of the highway authority. This is widely viewed as an anachronistic process, but it is still in use and requires a different knowledge and skill set from stopping-up and diversion orders that fall to be determined by the Secretary of State.

Traffic regulation orders. Again, the understanding of the complexities and subtleties of the traffic order process has developed markedly over the past five years. It is not as easy to make a challenge-proof TRO as might be imagined.

The complexities and pitfalls of the order-making process, and the determination process (decision-making) are reported at far greater length and depth in
Byway and Bridleway (over the past fifteen years) than anywhere else. This image link is to one issue from the 2011 volume of Byway and Bridleway (edited, and in considerable part written, by Alan Kind), which demonstrates very well most of the issues involved. The BBT website has a vast array of similar reference material.

B&B 2011 cover

Planning for sport in the countryside

Since the late 1980s, Alan Kind has been involved with town and country planning issues concerning site-based sport and recreation, and in particular with ‘trail parks’ and illegal motorcycling. The track record of these sites shows that some succeed, but others fail, sometimes expensively. Why? Experience has the answer. Alan has been instrumental in getting planning permission and lawful development certificates for motor sport sites, and in successfully (and sometimes unsuccessfully) tackling noise nuisance issues. There is some excellent material in this area on the LARA website (
link). These are two examples of project reports.

Red Rose Report The Way Ahead 1991