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BADFA's Year 2010 News  
For reports of our recent walks see 2010 Walks and 2009 Walks   
For news from other years use News Index

# Kidner Case update

# Golf courses court case update
 

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Kidner Case on obstructions
3 March 2010

Note, part of this report appeared last year.

Peter Kidner of the Open Spaces Society has won an important battle in the cause of removing unlawful obstructions from paths. Chris Beney attended the recent high court hearing as an observer and to support Peter Kidner. At the end of the case it was by no means clear which way it would go.
 

The 1980 Highways Act s56 enabled the public to require the highway authority to act if a path was 'out of repair'. BADFA has used this twice and the mere application got action from Hertfordshire's rights of way officers. But there was an unfortunate law case which decided by a majority decision, that 'out of repair' only referred to undergrowth, erosion and other natural things and not to deliberate obstructions like barbed wire across the path.

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. For that reason BADFA never tried to use this new legislation.

Last year. or was it 2008, a higher court ruled what BADFA believed was correct all along, that 'significantly interferes' should be looked at legally, not loosely.

Fortunately, as it turned out, the landowner appealed and since it seems there is virtually no chance of further appeal, the result not only stands in this case but has laid down the rules at a very high level for all other cases under that (s56) section of the act.

The case can be read at http://tinyurl.com/kidnerhighcourt and some broad details are available at the OSS site at http://www.oss.org.uk/landmark-judgment-on-highway-obstruction/
http://www.oss.org.uk/landmark-judgment-on-highway-obstruction/

Badfa has already indicated to County two paths where we would very likely use S56 now. We hope that will be sufficient to get some action but if not we will have to use the procedure.

Some people inevitably say why fuss when there is plenty of room to walk. BADFA members will probably quickly understand both the need for good path widths and the where-does-it-stop concept.


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Golf course court case
 3rd March 2010

Last year we posted the news in the box below, where a village green claim was lost  because the locals using it used to politely give way to golfers. In another great legal judgement that has been reversed by a higher court.

"Giving the leading judgment, Lord Walker said: ‘I have great difficulty in seeing how a reasonable owner would have concluded that the residents were not asserting a right to take recreation on the disputed land, simply because they normally showed civility towards members of the golf club who were out playing golf.  It is not as if the residents took to their heels and vacated the land whenever they saw a golfer.  They simply acted…with courtesy and common sense"

Press summary at: http://www.supremecourt.gov.uk/docs/UKSC_2009_0167_ps.pdf

BADFA is grateful to the Open Spaces Society for drawing a Court of Appeal case to our attention.

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 the land '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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