Right of way access

Ted

On Dec 5, 6:20 pm, Roger <ro...@nospam.zetnet.co.uk> wrote:
> The message <1184512c-998f-479c-aae1-11d06933f...@e1g2000hsh.googlegroups.com>
> from Ted <tedfer...@hotmail.com> contains these words:
>
> > > > As I said this is a quagmire, the definitive map may contain the
> > > > 'latest' data, but it could been last updated several years ago. The
> > > > data it contains is not necessarily correct, but if you are following
> > > > the a route from that you do have a good defence.
>
> snip
>
>
>
> > > The Definitive Map and Statement can only be amended by a legal order.
> > > The only exception to this is when a landowner actually dedicates a
> > > route across their land. Any order proposing a change to a right of way
> > > shown on the map or adding routes to the map will be advertised so that
> > > everyone has an opportunity to participate and comment on the proposal.
>
> > > The relevant date of the Definitive Map for Shropshire is 1st
> > > September 1965.
>
> > > Shropshire County Council has a duty under the provisions of the
> > > Wildlife and Countryside Act 1981 to continuously review the Definitive
> > > Map, to find out more about the review process and to access the
> > > Council's policy follow the Definitive Map Review link on this page.
>
> > > If you need to see the legal record of Public Rights of Way we recommend
> > > that you inspect a working copy of the Definitive Map that has been
> > > amended to take account of legal changes to the network since 1964. This
> > > can be inspected during normal working hours at the Countryside Access
> > > Team Office. Please telephone 01743 255056 before making a visit, to
> > > ensure that the map is not already in use by others. Visitors must go to
> > > Main Reception, Shirehall, Abbey Foregate, Shrewsbury."
> > There is the get out clause:-
> > 'it should be, noted that Public Rights of Way may exist that are not
> > shown on the map'
>
> Not really, a least in the context of your remark above saying the data
> is out of date. The CC has a statutory duty to keep the map up to date.
>
> > Plus there are cases where they have got it wrong and the status of
> > the road/track is wrong, hence the continuous refinement.
>
> It is not open to the CC to change the map other than as a result of a
> 'legal order'. I was surprised by the implication that there is still a
> constant flood of newly discovered PROWs finding their way onto the
> definitive map. IIRC the peak of registration by interested parties was
> in the late 1960s shortly after the 1965 date referred to above when the
> map was first prepared.
>
> > I am sure you are aware of the old legal term, 'once a highway, always
> > a highway' there have been cases where a house/building has been build
> > years ago on an old road. The definitive map will probably not show
> > that road, if it did the house probably would not be there.
>
> It is not a phrase that would stand a longevity test. Maps are littered
> with houses sited on Roman roads. As a general rule it is right though.
> Public rights cannot be extinguished by lack of use unlike private
> rights. The likelihood of anyone proving that a long established house
> has been built on an unrecorded PROW is however extremely low.
>
> --
> Roger Chapman
> Nearest Marilyn still to be visited - Great Orme.
> 89 miles as the crow flies,
> considerably more as the walker drives.

Just because the CC has a 'statutory duty' does not mean they will
actually do anything.

I belive 'Highway' is a legal term, as has been mentioned in another
thread houses are built on Highways, illegally, and they get away with
it, because of how the inquiry works. Not all inquiries do actually
bother to follow the law as laid down.

As I said this area is a real minefiled

Roger

The message
<c249ae31-0f86-41fc-b20e-c15869f26238@o42g2000hsc.googlegroups.com>
from Ted <tedferenc@hotmail.com> contains these words:

> Just because the CC has a 'statutory duty' does not mean they will
> actually do anything.

Ted have you got any actual evidence to show that Local Authorities
don't make every effort to keep their Definitive Maps up to date?

> I belive 'Highway' is a legal term, as has been mentioned in another
> thread houses are built on Highways, illegally, and they get away with
> it, because of how the inquiry works. Not all inquiries do actually
> bother to follow the law as laid down.

Highway seems to change its meaning depending on context. In some
circumstances it can mean every class of thoroughfare right down to
footpaths and in others it excludes footpaths and even the pavements
bordering motor roads.

As to inquiries not following the law again have you any evidence? FWIW
AIUI diverting footpaths round houses built on the line of a PROW
wouldn't necessarily go to a public enquiry if no objections are
received.

Landowners can and do get away with what seems on the face of it major
injustice but they usually do so by taking advantage of the legal clout
their money can buy rather than just ignoring the law.

--
Roger Chapman
Nearest Marilyn still to be visited - Great Orme.
89 miles as the crow flies,
considerably more as the walker drives.

Roger

The message <9i7el39pgib5gbhe067au727m9pki4osnr@4ax.com>
from AJH <news@sylva.icuklive.co.uk> contains these words:

> >Public rights cannot be extinguished by lack of use unlike private
> >rights

> The highways act 1984?? does allow for the highways authority to do
> this, on the grounds of lack of use. I actually lost a public enquiry
> on this because the 3 landowners concerned attended the enquiry and I
> was the only objector present, the 100 person petition claiming that
> the lack of use was only because the landowners had allowed the hedges
> to block the passage wasn't considered relevant because the
> petitioners were not at the enquiry.

I didn't know that that was the case but there is a clear distinction
between using evidence of lack of use to support the removal of said
right and the de facto extinguishment of a private right that hasn't
been exercised in a generation (or whatever time it takes).

Do you have any further details as my access drive is also a footpath
that turns at rightangles when it reaches my house and then heads
directly downhill. I suspect that some years it is not used at all and
in 20 or 30 it will be completely impassable as the mature trees that
grow in it expand in girth and meet the walls either side. No one but
the most bloody minded access hound would want to actually use it in
preference to the nearby road. Even I take the road rather than the path
and my choice necessarily includes the 60 yards that anyone else could
avoid by keeping to the road.

--
Roger Chapman
Nearest Marilyn still to be visited - Great Orme.
89 miles as the crow flies,
considerably more as the walker drives.

Rob G

On 6 Dec, 12:31, Roger <ro...@nospam.zetnet.co.uk> wrote:
> The message <9i7el39pgib5gbhe067au727m9pki4o...@4ax.com>
> from AJH <n...@sylva.icuklive.co.uk> contains these words:
>
> > >Public rights cannot be extinguished by lack of use unlike private
> > >rights
> > The highways act 1984?? does allow for the highways authority to do
> > this, on the grounds of lack of use. I actually lost a public enquiry
> > on this because the 3 landowners concerned attended the enquiry and I
> > was the only objector present, the 100 person petition claiming that
> > the lack of use was only because the landowners had allowed the hedges
> > to block the passage wasn't considered relevant because the
> > petitioners were not at the enquiry.
>
> I didn't know that that was the case but there is a clear distinction
> between using evidence of lack of use to support the removal of said
> right and the de facto extinguishment of a private right that hasn't
> been exercised in a generation (or whatever time it takes).
>
> Do you have any further details as my access drive is also a footpath
> that turns at rightangles when it reaches my house and then heads
> directly downhill. I suspect that some years it is not used at all and
> in 20 or 30 it will be completely impassable as the mature trees that
> grow in it expand in girth and meet the walls either side. No one but
> the most bloody minded access hound would want to actually use it in
> preference to the nearby road. Even I take the road rather than the path
> and my choice necessarily includes the 60 yards that anyone else could
> avoid by keeping to the road.
>
> --
> Roger Chapman
> Nearest Marilyn still to be visited - Great Orme.
> 89 miles as the crow flies,
> considerably more as the walker drives.

Surely, Roger, you are answering your own question in that there is a
totally viable alternative - in fact a preferable alternative - to
this path. Albeit, you didn't provide the alternative but the very
fact that there is one and this path would seem to at the moment to
inflict itself upon your curtilage/appertainances would suggest that
you can close off this path. It may well be that you have to do it
through the authorities but from an outsider's view you have adequate
reason.

Rob

Rob Devereux

"Roger" <roger@nospam.zetnet.co.uk> wrote in message
news:31303030313134344756F88F97@nospam.zetnet.co.uk...
> The message <fj6oqf$uj$1@frank-exchange-of-views.oucs.ox.ac.uk>
> from "Rob Devereux" <rob.devereux@linacre.ox.ac.uk> contains these words:
>
>> I am not sure that you even need to check the PROWs because they would
>> have
>> been evident on the land registry search if they existed, and if there is
>> nothing there, I would presume that there isnt one. As regards a private
>> right of way, it falls back on the 20 year rule, bearing in mind that
>> continuous possession of property fro 12 years also gives squatters
>> rights
>> over it but i am not sure rights of way are classed as occupation.
>
> Rob I don't think the Land Registry carries PROW information. AFAIK it
> is only concerned with registering private rights. The Local Authority
> has that information on their Definitive Map. They also maintain
> register(s) of commons and village greens.

Hi Roger

I am not sure about that because it is a while since I worked in the area
but from memory, they would show them if they had been on the registered
deeds and whether they are kept uptodate, I couldnt argue. In every
conveyance I've been involved with though, there is also a Local Council
search as well, which I would imagine should show rights of way.

> As to adverse possession (squatters rights) merely passing over a
> property is no basis. Squatters rights requires occupation with intent
> to deprive the owner of his property. The law has recently changed and
> there is different treatment depending on whether or not the property is
> registered (claims after 10 years for registered land followed by 2
> years for the owner to evict the squatter should he wish to do so).
> AFAICT there is also case law which suggests that you can't squat on a
> PROW but I have lost the reference to the case and in any case when I
> had it couldn't get any actual information on the ruling. (Anyone able
> to shed any light on this aspect?)

I cant say I know the area well but do remember it came up as an issue when
I was studying law and at that point it wasnt definitive.

Rob

Roger

The message <fj9b6k$sq$1@frank-exchange-of-views.oucs.ox.ac.uk>
from "Rob Devereux" <rob.devereux@linacre.ox.ac.uk> contains these words:

> > Rob I don't think the Land Registry carries PROW information. AFAIK it
> > is only concerned with registering private rights. The Local Authority
> > has that information on their Definitive Map. They also maintain
> > register(s) of commons and village greens.

> Hi Roger

> I am not sure about that because it is a while since I worked in the area
> but from memory, they would show them if they had been on the registered
> deeds and whether they are kept uptodate, I couldnt argue. In every
> conveyance I've been involved with though, there is also a Local Council
> search as well, which I would imagine should show rights of way.

I have obtained several abstracts since Land Registry on line made it so
cheap and easy but only one has a footpath over it and the PROW is not
mentioned in the register while its rights to go onto a neighbouring
farm are. One swallow doesn't make a summer but is could be a pointer to
a general rule.

> > As to adverse possession (squatters rights) merely passing over a
> > property is no basis. Squatters rights requires occupation with intent
> > to deprive the owner of his property. The law has recently changed and
> > there is different treatment depending on whether or not the property is
> > registered (claims after 10 years for registered land followed by 2
> > years for the owner to evict the squatter should he wish to do so).
> > AFAICT there is also case law which suggests that you can't squat on a
> > PROW but I have lost the reference to the case and in any case when I
> > had it couldn't get any actual information on the ruling. (Anyone able
> > to shed any light on this aspect?)

> I cant say I know the area well but do remember it came up as an issue when
> I was studying law and at that point it wasnt definitive.

The case in question is:

London Borough of Bromley v Morritt (1999) 78 P & CR D37 but I still
can't find a summary of the actual judgement.

As I cannot find a case summary I don't know if it draws a distinction
between footpaths and more major thoroughfares. Doesn't help that there
is an active Judge named Morritt whose name has so far swamped my House
of Lords searches. The closest I got was a reference to Morritt
petitioning the Lords for leave to appeal but I didn't even find the
outcome of that.

--
Roger Chapman
Nearest Marilyn still to be visited - Great Orme.
89 miles as the crow flies,
considerably more as the walker drives.

andrew heggie

On Thu, 06 Dec 2007 12:31:30 +0000, Roger wrote:

>
> I didn't know that that was the case but there is a clear distinction
> between using evidence of lack of use to support the removal of said
> right and the de facto extinguishment of a private right that hasn't
> been exercised in a generation (or whatever time it takes).

Yes, the highway authority have to decide to have the path stopped up or
diverted, they advertise this and it's up to members of the public to
object, CPRE, Ramblers assoc and OSS are always sounded out first.

>
> Do you have any further details as my access drive is also a footpath
> that turns at rightangles when it reaches my house and then heads
> directly downhill. I suspect that some years it is not used at all and
> in 20 or 30 it will be completely impassable as the mature trees that
> grow in it expand in girth and meet the walls either side.

It sounds like you will have to have the path diverted, if you apply I
suspect you will have to pay costs, if the highways authority do it as
part of their "improvement" plan it may cost nothing.

AJH