Landowner loses landmark footpath appeal in Somerset
tony at cultureshop.org.uk
Thu Feb 18 23:01:07 GMT 2010
Landowner loses landmark footpath appeal
Thursday, February 18, 2010, 10:00
A MILLIONAIRE landowner and his wife have lost a High Court appeal to save an imposing gateway with a double set of gates across a public footpath on their estate.
Yesterday's ruling, which has made new planning law, marks the end of a long and costly legal battle fought by Brian and Denise Herrick, who built the gateway at 90-acre Barcroft Hall near South Petherton in Somerset.
For years, the Herricks have been involved with a dispute with ramblers who say the structure is a barrier to a public right of way.
The Herricks have argued that they have never stopped anyone from using the path.
The gateway was constructed in 2004 with three substantial pillars constructed of brick and stone supporting iron gates and flanked by brick fly walls. The point at which the double gates cross the path is at least eight metres wide, and at least two of the gateway pillars and part of the fly wall are on the path itself.
The legal battle, which has gone on to pile up legal costs now estimated to be in six figures, began in May 2005 when Somerset County Council, the local highway authority, required the removal of the "unauthorised" gateway.
In March 2007, former Royal Navy Rear Admiral Peter Kidner complained to South Somerset Magistrates Court over the council's failure to get the 8ft gates taken down.
He argued they prevented walkers using the public path.
A district judge ordered that all parts of the gateway within six metres (just under 20ft) of the point where the double gates met must be removed.
The Herricks appealed, and there was a re-hearing of the case at Taunton Crown Court in December 2008.
Judge Michael Longman, sitting with two lay justices, said the council had given permission for the gates to be retained "if they were kept unlocked".
But the terms of the permission were not met because of problems with the lock mechanism which meant the gates were not kept unlocked.
Judge Longman said the gates "created a grand entrance" but added that their "effect was certainly to obstruct those wishing to walk along the footpath", and that they must go.
The Herricks argued they should only be ordered to ensure that the gates were locked permanently in the open position.
But yesterday Mr Justice Cranston, sitting at the High Court in London, agreed with the Crown Court judge that the gateway amounted to an unlawful obstruction that significantly interfered with a public right of way.
The judge said the Crown Court "was entitled to and should have made an order requiring the council to secure its removal", he said.
That order should have extended "to the totality of the structure obstructing the full extent of the footpath".
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