DEFRA Consultation on Improvements to the Policy and Legal Framework for Public Rights of Way: A response from CLA

DEFRA Consultation on Improvements to the Policy and Legal Framework for Public Rights of Way: A response from CLA

QUOTE “If nothing else, it is entirely wrong that landowners are forced to expend vast sums of money defending their property against claims of rights of way.

A CLA member, whose defence of a right of way claim cost £500,000 after a15 year battle writes: “We have had to sell most of the family farm, which we have owned since 1948 to pay the huge legal fees, whilst members of the public have their claims upheld whilst costing them nothing, with the support of County Council using public money.” The member urges: “Please will you do your best to bring forward the cut off date and therefore bring an earlier end to this serious sorry saga of bogus claims?”

A landowner faced initially with a claim for a BOAT through his farm is now, several years down the line, facing a claim for a restricted byway.

It is clear from the documentary evidence that the route has never been laid out or even used; the “loss” to users if this route is not instated is entirely negligible.

Another landowner, now with a public footpath through his garden following a twenty year battle over a claimed right of way urges that this “unfair and one-sided legislation” is rectified and, more particularly, that the cut-off is brought forward to prevent further injustices such as the one he has experienced.

Yet users continue to pursue the claim and have opposed every attempt (despite the support for the farmer of both parish and county councils) to provide an alternative route which takes account of the farmer’s use of his land for livestock. Aside from the financial costs, the emotional cost and the significant stress is immeasurable.

We are aware of landowners suffering significant ill-health as a result of continual and persistent claims where claimants remain resistant to reason.

A Devon householder facing such a claim through his garden (which he was ultimately successful in resisting) stated: “For a period of five years the quality of my life and future was uncertain. The claim was my first experience of the rights of way system. I experienced a confrontational system exploited by a claimant intent on pursuing the
objective of getting as many footpaths established as rights of way as possible, irrespective of the cost to the landowner or to the county council (i.e the ratepayers) or its recreational value, potential users or the consequences. The claimant displayed a total disregard for the burdens he imposed on me – namely the anxiety, stress, defence costs, security implications, loss of value and saleability of my property”.

Claimants make much of the alleged loss of access if the definitive map is closed. But this is a sham: routes in use could be spared (subject to safeguards which we discussed at Q. 3). There can be no loss if the route is not already available.

We note later (see Q ii) the very significant costs that landowners have to bear in defending claims.

While landowners may feel that such costs are justified if they are successful (BBT figures indicate that around one third of claims are successfully objected to at appeal) it is nevertheless true that whether successful or not, those who claim such ways bear none of these costs, which fall on the public purse.

Claims which are bogus or overstated represent an unreasonable and unfair attempt to abuse the system and are an imposition on landowners and occupiers (and indeed, authorities). It is only right that measures should be in place to prevent this.

When we issued our Policy Report “The Right Way Forward” we received considerable support for our proposals, sometimes from surprising sources. Individuals and bodies (including local authorities) contacted us to express their concerns about the present system and the way in which it could be improved.

Authorities noted that, far from there being an impediment to people being able to claim a right of way, they found themselves continually receiving claims – a picture they understand to be true nationally.

This results in the authority having to robustly examine each and every claim, an administrative burden they consider “massively disproportionate” to the end result. The mechanisms for recording ancient ways are considered “anachronistic” and so removed from modern reality as to be “unintelligible” to most people. No account can be taken of the benefit that may result from recording the way or of the effect on privacy or security or the economics of a business.

They believed that the process was “overwhelmingly weighted in favour of the claimant” resulting in the resurrection of long-dead routes with no allowance for the impact on modern day uses or needs.

These correspondents also urged a significantly earlier cut-off date, some that it should be immediate”

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