Ramblers win landmark legal case

[Paul Mobbs]

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http://www.planningresource.co.uk/bulletins/Planning-Resource-Daily-
Bulletin/News/984859/Ramblers-win-landmark-legal-case/

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 
footpath.
 
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 
County Council.
 
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 
be removed.
 
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 
gateway.
 
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 
same year.
 
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 
footpath".


- -- 
"We are not for names, nor men, nor titles of Government,
nor are we for this party nor against the other but we are
for justice and mercy and truth and peace and true freedom,
that these may be exalted in our nation, and that goodness,
righteousness, meekness, temperance, peace and unity with
God, and with one another, that these things may abound."
(Edward Burroughs, 1659 - from 'Quaker Faith and Practice')

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Paul Mobbs, Mobbs' Environmental Investigations
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