Ramblers win landmark legal case
mobbsey at gn.apc.org
Thu Feb 18 15:10:43 GMT 2010
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Ramblers win landmark legal case
PlanningResource, 18th February 2010
Ramblers have secured a landmark legal victory over a landowner after a judge
told him he must remove an iron gateway to his Somerset estate.
In a ruling which greatly boosts walkers' rights, Mr Justice Cranston said
Brian Herrick must remove the gateway to his £3.5 million Barcroft Hall
estate, in South Petherton, near Yeovil, Somerset, as it blocks a public
The farmer and managing director of an IT firm has fought a six-year legal
battle to save his 8ft high double gates but now faces a legal costs bill of
at least £300,000.
The gateway, originally electronically controlled from the house and complete
with three brick and stone pillars, was put up across the footpath in 2004,
but swiftly attracted the ire of local walkers who complained to Somerset
Herrick said the gates were vital to stop their sheep straying, but the
council prosecuted him for an offence under the 1980 Highways Act. In June
2006, he was convicted by magistrates, given an absolute discharge and ordered
to disable the gates' electronic mechanism.
However, local rambler Peter Kidner, was not satisfied and demanded the gates
Herrick, and his wife, Denise, first offered to keep the gates unlocked, and
then permanently open, but Mr Kidner said that was not enough as the pillars
too were on the footpath.
After a lengthy legal battle, a Crown Court judge eventually ordered that the
gates themselves, and the middle pillar, had to go, although the outermost
pillars were allowed to stay in place.
However, High Court judge, Mr Justice Cranston, today ruled that did not go
far enough and said that Herrick should have been ordered to remove all of his
Although the "general consensus" amongst local ramblers was that the pillars
did not restrict access to the footpath, the judge said their presence still
gave walkers "a strong indication" that they were entering private property
and might deter some of them.
"An object can get in the way of the right of passage or other amenity rights
because of its psychological impact", the judge said.
Rejecting Herrick's plea that the pillars did not amount to a "significant
interference" with the footpath, the judge added: "The public is entitled to
enjoy everything which is in law part of the footpath. The public are not to
be confined to a particular part, or parts, of a footpath.
"That the public could pass through the Barcroft Hall gateway, and that only
half of the eight-metre width of the footpath at that point was obstructed by
the gateway, is beside the point.
"The Barcroft Hall gateway prevented public passage and the enjoyment of
amenity rights over the footpath".
Herrick argued that, by letter in March 2007, the county council had given him
"lawful authority" to retain the gates so long as they were kept unlocked, and
preferably permanently open.
However, the judge said any such authority had "in effect been withdrawn" by
letters sent to them by the council's chief executive, Alan Jones, in May the
Mr Justice Cranston said the Crown Court simply had no power to allow him to
retain any part of the gateway which encroached onto the footpath.
Emphasising the "psychological impact" of the gate pillars on ramblers, the
judge said: "To permit that to occur would be contrary to a highway
authority's duty...to assert and protect the rights of the public to use and
enjoy the right of way over the footpath."
Herrick argued the deterrent effect of the gate pillars on ramblers would be
nullified by a "finger post" erected by the council to point walkers the way
across his land.
But the judge said: "In allowing the retention of the outermost pillars and
part of the fly wall, the Crown Court took into account an irrelevant
consideration. Its order for removal of part only of the Barcroft Hall
gateway is not sustainable".
Emphasising that any structure which blocks even part of a footpath
"significantly interferes with the exercise of public rights of way", the judge
said councils who failed to enforce their removal would be breaching their
duties under the 1980 Act.
And Mr Justice Cranston concluded that the Crown Court should have "ordered
removal of the totality of the structure obstructing the full extent of the
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