Structures in orders, words and standards
benefits and pitfalls
by Chris Beney
(update, significant rearrangement, 12/13 March 2008)
www.badfa.org.uk/gates&stiles/structuresinorders.htm

This page was originally triggered off by an enquiry made to me about the effect of specifying BS5709 in path orders.

There are two key questions:
1. Should structures be recorded as limitations in orders? and
2. If and when structures are included in orders, how should they be specified?

And there is an auxiliary question: If making use of BS5709 (the British Standard [BS] for Gaps Gates and Stiles) should the form '...to BS5709.' or the form '...to BS5709:2006.' be used? This issue is largely independent of 1 and 2 above and is dealt with at the end of this paper.

Some of what follows may seem like complicated answers to simple questions. But the nature of BS5709, which since 2001 has required the ‘least restrictive option’ for compliant structures, does need to be understood in order for the benefits of specifying it to be realised.
 

1.  Should structures be recorded as limitations in orders?

General.

I do not intend to go deeply into the oughts or ought nots behind putting structures into orders, questions like the public's ability to object to orders but not to S147 permissions. Decisions on structures in orders may ultimately depend on what flexibility can be put lawfully into orders, that is whether a convergence of the currently rather differently constrained processes, orders and permissions, can be made. This may require statutory guidance or legislation or both. For example a new statute could require the least restrictive option to be achieved by making limitations in orders variable, or if variability was believed to be lawful under present law, then new regulations could suggest appropriate words. And S147 permissions might have a limited public consultation stage.

It may be that in future structures in orders should be confined to things like wears, essential steps and railings (and of course variable limitations like the right to pile wood on some part of the path). S147 could then be extended as a single regime with the public in the loop to deal with all the other structural limitations. But that would be for the future.

Authorisation within an order.

a: without reference to any British Standard. Whenever a structure goes into an order without fully specifying it then it is inevitably thereby to some extent rendered inflexible. For example “a kissing gate at point X” may seem clear, but what if the landholder subsequently wanted a pedestrian or field gate? Would that be lawful? It depends… And would a really small kissing-gate still be lawful however difficult it was to use? Further it isn’t entirely clear from those words “a kissing gate at point X” that the erection of such a gate is a voluntary matter entirely at the discretion of the landholder, do the words create some obligation to have such a gate, perhaps for public safety? Probably not, but who knows.

B: with a BS requirement. By reference in the right terms to BS5709 e.g. “the right of the landholder to erect and maintain a structure at point X conforming with BS5709”, just that and nothing more (as will be explained below) the above inflexibility is nearly eliminated. A subsequent landholder's change from say kissing gate to pedestrian or field gate as mentioned above would be lawful if it complied with the least restrictive option rule of BS5709 and the other physical and operational rules of that standard. If circumstances made a pedestrian gate the least restrictive option for a substantial period of time then it would be obligatory to change to such a gate. In the field such change is often surprisingly easy, simple removal of guard rails in metal or wood kissing gates can often achieve it, and unhinging of a gate can even allow seasonal changes in the authorised structure. And the words ‘the right of…’ (above) should make it clear that there is no obligation to have such a structure.

There are certain authorisations which cannot lawfully be made except within an order, for example where a diversion or creation is desired by all parties and the landholder will only agree if a structure is allowed at a particular place, say at a private garden where neither side of the structure is agricultural but a dog proof gate cannot readily be avoided. Here the option of saying 'do them all by regulatory permission' is not at present available and the order mechanism just has to be used.

Authorisation outside of an order.

In contrast where a structure is authorised outside of any order, authorisation being by Highways Act 80 S147 or perhaps by S66 or by some other power, then that authorisation can easily be made flexible and conditional. That flexibility can allow an appropriate change of structure in case the landholder were to request it, and it can ensure that the limitation on the public’s use of the path that is caused by the structure is removed if and when it is no longer needed by the landholder. That is to say the written authority for the structure can easily be made alterable and rescindable, and in line with the HA80 S130 duty probably always should be so made (see Note in box below).

In these outside-of-order authorisations BS5709 does not have to be made a requirement but it offers a very neat short cut with its inbuilt least restrictive option requirement and simple field measurable compliance tests, plus of course its allowing of a wide diversity of actual structural designs, materials and methods. Past experience has shown that it is necessary to say here that the illustrations in the BS are not designs to be slavishly followed in shape, size, material or anything; they are simply examples from a range of possible structures. So long as any structures are least restrictive, kept free of barbed wire and meet the other BS functional and field measurable requirements then any such design will comply. By specifying BS5709, authorities are very rarely preventing local-character structures. And they are making things easier for many of their staff compared with the difficulties of specifying reviewing and policing their home-grown and often set-in-time design specifications.



Summary regarding in or out of orders.

In summary and in line with the above and current situation a highway authority might reasonably be expected, also in line with HA80 S130 duties and so on, to have a rule that structures will normally only be included in path orders when such structures could not be authorised by other means subsequent to the order being confirmed. Hertfordshire for example has such a rule.
It needs emphasising that if it were shown (or legislated for) that fully conditional structures could be authorised in orders, then that reasonable expectation might no longer apply.

[ In order for the public to understand the effect of a proposed statutory order the writer considers that where an order, say a diversion order, is being made, and authorisation (under S147 or other powers external to the order) of a structure is expected shortly subsequent to the order being confirmed, then that fact could reasonably be expected to be added as a non statutory note on the notice of making the order.]

In view of all the above it is suggested that at the present time orders which include structures as limitations (whether citing BS5709 or not) should in fact be the exception rather than the norm unless somehow the desired level of flexibility can be unequivocally built in.

2. When structures are included in orders, how should they be specified?

Conformity with BS5709 should be aimed for whenever relevant structures actually need to be incorporated in path orders, this can assist landholders by more certainty, path users by better access, and highway authorities by simpler (and less costly) specification and simpler (and also less costly) enforcement.  But it is important that the nature of BS5709, which since 2001 has required the ‘least restrictive option’ to apply on an ongoing basis, is understood in order for the benefits of specifying it to be realised. There is an information sheet at www.pittecrofttrust.org.uk (also mentioned above) and this is commended to help that understanding.

Let us now take the case where the limitation does indeed need to go into the order, and BS5709 is to be cited. The words suggested at 1.B above were "The right of the landholder to erect a structure at point X conforming with BS5709" The words “The right of the landholder to erect” although slightly pedantic is suggested as best following the nature of most limitations in orders, something that may limit path use, but does not have to. The words “conforming with BS5709” i.e. the latest version, are suggested rather than “conforming with BS5709:2006” i.e. the 2006 version. This distinction is discussed below, but either form could be used so long as the implications are understood and accepted. So we are left with two apparently simple words “a structure” which rather surprisingly require a paragraph or two to themselves.

"a structure"               
Commonly the more specific words ‘a stile’ or ‘a kissing gate’ are used, rather than 'a structure'. But they bring much ambiguity as we shall see, only slightly tempered by Highways Act 80 S146 which requires them to at least be safe, and without unreasonable interference with the public's use of the path. At first glance adding to ‘a stile’ or ‘a kissing gate’ the words ‘conforming with BS5709’ might seem to be a magic bullet, with advantages to all. Indeed if done, then probably few would feel the need to question it and it would indeed be a step forward from much current practice.

But there are two difficulties to that, one specific to stiles. The stile difficulty is that BS5709 in relation to stiles is directed to the improvement of existing lawful stiles and their use as new structures requires exceptional circumstances (BS5709 3.1.3. & 4.6.1). It may be that a landholder is willing, but only if a stile is allowed, to agree a diversion or creation agreement that is overall in the public interest despite that stile. That might be considered exceptional circumstances if S147 could not be lawfully used. It may be of interest that the then Countryside Commission representative argued, in the discussions leading to the 2001 BS5709 edition, for it not to include stiles at all. But setting aside stiles and focussing instead on ‘kissing gate’ what harm would ‘a kissing gate to BS5709’ do? Well inherent in BS5709 is the ongoing requirement of the least restrictive option in relation to the need. So defining the structure as a kissing gate prevents compliance with BS5709 when or if it ceases to be the least restrictive option. So what would the words "The right of the landholder to erect a kissing gate at point X conforming with BS5709" mean if they were actually to be used? Probably something like ‘A kissing gate at point X to BS5709 requirements but not subject to the least restrictive structure rule’. Though it is obviously undesirable, there is nothing wrong with excluding parts of the standard if that exclusion is made plain. So those amended words would do in those cases and only those cases where the type of structure requires to be, or may be, permanent as well as being unable to be authorised outside of the order.

But the least restrictive option is an important consideration, that concept is deeply embedded in the BS (written with landholder groups' involvement) it reflects government policy, helps deliver the Highways Authorities’ duty under HA80 s130, may help avoid DDA difficulties and is supported by the main user groups. So the words "The right of the landholder to erect a structure at point X conforming with BS5709" would seem to be much closer to optimum for use in orders.

There is just one half way house that might help smooth paths as it were, that is where there is no especial intention always to have a particular structure but the initial form of structure is known and is in line with the least restrictive rule. In that case the words ‘initially a kissing gate’ might be added, giving all concerned information on what to expect as well as notice that the structure might change. So then we would have "The right of the landholder to erect a structure at point X conforming with BS5709, initially a kissing gate”. This is at the time of writing my preferred form, it tells the public what to expect to find at point X if the order is confirmed. It clarifies to the landholders what is initially authorised, but puts them on notice that it is not necessarily for ever, though they may well believe that in practice they won't be asked to change it. It doesn't confuse the general public by leaving out any reference to the type of structure.

It should be noted that these words go, or should go, automatically onto the definitive statement. A requirement to put S147 permissions onto the statement or as a second best onto the local authority's web site would fulfil much the same purpose for limitations authorised by that means and help harmonise the two processes.

If any reader of this paper feels anything needs clarification or correction or addition the author would be pleased to hear about it, email to:   chris@badfa.org.uk
 

http://www.badfa.org.uk/gates&stiles/structuresinorders.htm