Bryen Wood
27 March 2009
by Chris Beney

Bryen Wood has died.
In 1991 or thereabouts, there was a growing feeling that the paths in and around Bushey needed some tender loving community care. And also needed some clear and informed policy and actions.
Bryen offered me a few minutes at the end of a Bushey Museum Friends meeting in Church House to outline a way forward and to inquire if there was support for setting up some sort of active group. The response was surprisingly strong and BADFA was born.

There was a meeting in the (old) Council Chamber and one at my house and the organisation was set up. We registered quickly as a charity.

Bryen, despite his extremely heavy workload in other areas, attended a substantial proportion of our committee meetings until quite recently. Late last year he indicated that he would not feel able to continue after this year's (2009) AGM.

Whilst he did not get greatly involved in our detailed work, he always had a useful viewpoint to put on questions of our wider and policy issues.

In a closely allied area, Bryen was active in stopping the extension of the golf course over the whole of Attenborough's Fields and he was on the Friends of Attenborough's Fields committee for some years.

BADFA is grateful, as am I personally, for the support that Bryen gave us. We will miss him a lot, as of course will a great multitude of other people.
 

The Institute of Public Rights of Way Officers' responded to Defra's draft guidance on dealing with gaps gates and stiles and the needs of the disabled.

They said:
The working practice of rights of way service delivery is 'based on authority officers working with landholders to provide a usable rights of way network for all – the working relationships with these landholders, of which certain user group reps are suspicious, is fundamental to this work and would not be helped by having to refer to lengthy guidance or standards.'

BADFA is not 'suspicious', we are disappointed and a bit cross. Rights of way service delivery is not based on working with any particular group. It is based on giving the public full access to the whole rights of way network by whatever means. Sometimes that will involve working with landholders, sometime with user groups, sometimes with others. Except in limited cases, landholders have no special role, they simply share with all of us the role of not blocking or messing with public paths. When they, or we, block paths they and we should be dealt with even-handedly as lawbreakers.

Badfa remonstrated some years ago when new Hertfordshire access officers were being taken around 'their' landowners and were not willing to even contemplate being taken around their path user groups. We are unclear how much of this still goes on, certainly we are not contacted as routine by new officers.

Our chairman, Chris Beney, is on the Defra working party (which triggered the IPROW response statement) through his Open Spaces Society and British Standards work.

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Kidner Case on obstructions
8 March 2009

Peter Kidner of the Open Spaces Society has won an important battle in the cause of removing unlawful obstructions from paths.
 

The law was changed in 2000 to allow the public to call their highway authorities to account if they don't clear obstructions from paths. The obstructions may range from dumping to putting up unauthorised gates or fences.

We had all thought it got better when that Section 130A was added to the Highways Act 2000 (the words are in the CROW Act 2000 section 63), but it soon turned out that whilst it was a useful tool for turning gross and blatant obstructions into just passable ones, it was useless to remove lesser obstructions. It turned on the meaning of these words that the magistrates need to be satisfied of "that the obstruction significantly interferes with the exercise of public rights of way over that way". We had thought that would mean what it meant in well known law cases under other parts of highway law, that is that unless the obstruction was trivial, then it was an offence and must be removed. The magistrates ignored that and took the 'common sense' view of the meaning and if people could get through say a narrow gap then they refused to enforce against an illegal fence across the rest of the path.

Now a higher court has ruled what BADFA believed was correct all along, that 'significantly interferes' should be looked at legally, not loosely. We are very grateful to Peter Kidner to have taken this case on.

It was shameful of Somerset council not to act. It seems likely that the case will go to appeal to the high court, BADFA very much hopes that either Somerset will fund that or that sufficient funds will be raised to support the lower court decision properly.

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Golf course court case
21st January 2009

BADFA is grateful to the Open Spaces Society for drawing a Court of Appeal case to our attention. See their website at:
http://www.oss.org.uk/news/Local news 2009.htm  21st January item.

The case has relevance to BADFA. We have had difficulties with most of our local golf courses, some more than others.

The case was in the context of formally registering a Village Green (on land which had until a few years ago included a Golf Course) but the principle of how users of public rights behave in exercising those rights if they are not yet recorded officially is the same for registering Footpaths.

To establish a right of way by long usage we need to show that for some time, usually 20 years, members of the public have used the path 'as of right'. That means not secretly or by force but in the sort of way they would use it if it was beyond doubt a public path.

The court case addressed the question of whether the public had used it 'as of right'. The Council claimed that, in using the land for recreation, the public deferred to the golfers. Walkers would stop and wait while the golfers were playing a shot.

We quote from the OSS report:

‘In the leading judgment, Lord Justice Dyson ruled that, in order for the land to qualify as a green, the use by the public must be sufficient to bring home to the reasonable owner that the local inhabitants have been asserting a right to use the land. If the people adjust their behaviour, they give the impression to the owner that they are not claiming a right to do what they are doing.

‘Lord Dyson concluded that, because the public gave way to the golfers, the inhabitants had not sufficiently asserted that right. However, he did say that the matter was one of “fact and degree” and that if there had been give and take on both sides, the outcome might have been different.’

It is a sad day when politeness can lose a public amenity. BADFA people have had various brushes with golfers and managers. Our chairman has had a golfball driven at him (in that case he was on an official path and the golfer missed). At Moor Park our chairman was shouted at on another path. We mostly do give way on golf courses as it seems usually polite to do so, though we have expressed the view that golfers should be encouraged to give way to us.

In future, except where the status of the path is beyond doubt (e.g. on the Definitive Map) we should consciously not give way.

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