Bushey and District Footpaths Association

BADFA is a Registered Charity committed to caring for public rights of way
Centred in Bushey, Hertfordshire, but taking a wide view. Incorporating Watford Fieldpath Association (Founded 1898)
Specifying structures in orders
by Chris Beney October 2009
This skeleton article is not for the casual reader in its present form. It relates to a decision by Sue Arnott a planning inspector in rights of way. Decision date: 13 May 2009. Order Ref: FPS/H1345/4/18.

An Inspector's View

Note at July 2012. The Defra guidance on the affect of the Equality Act 2010 changes things greatly even thought it is non-statutory. It can be seen, together with a Pittecroft Trust short guide to it, on Note at March 2011. These sentiments, made only a few years ago, would probably not be expressed today. Specifying BS5709 is commonplace and contrary to what is stated by the inspector below it doesn't preclude changes so long as they remain in line with the overall standard.

The whole decision is at: this link

but the relevant paragraphs are reproduced below

This is a skeleton article in that at present it simply identifies a few issues.

The first issue is from para 30, below, copied here:

30. In response [the council] does not consider it necessary or appropriate to include detailed specifications within the Order schedule. It argues that circumstances change over time and whilst any limitation would always be restricted to the generic term in the Order (such as gate, kissing gate or stile) it may be that the precise width or type of structure could change for legitimate reasons.

That demonstrates a complete misunderstanding of BS5709 by the council. BS proscribes no particular design or size or shape of structure other than a series of functional parameters of universal application such as the maximum height of any step or the force needed to open a gate.

Decision by Sue Arnott FIPROW. Decision date: 13 May 2009

Order Ref: FPS/H1345/4/18

Other Matters 27. In his objection Mr Kind addresses one aspect of the order which is not directly related to the specific tests to be addressed under Section 119 of the 1980 Act although it is indirectly related to all of them. He argues emphatically that the limitations specified in Part 3 of the Schedule to the Order (a gate at point F and stiles at E and F) should be expressly referred to as being compliant with the relevant British Standard [BS 5709:2006 “Gaps, gates and stiles – Specification”].

28. Mr Kind correctly points out that under the Disability Discrimination Act 1995 as amended by the Disability Discrimination Act 2005 (the DDA) it is unlawful for DCC as the highway authority (and the Secretary of State as the decisionmaker on orders such as this, including his appointed Inspectors) to discriminate against a disabled person in carrying out its functions. He also highlights the Wildlife and Countryside Act 1981 which requires that the definitive statement should properly record the nature of any limitations.

29. Mr Kind submits several papers which argue quite forcibly that, in relation to public path orders, the combined effect of the legislation is that the “expediency” and “public interest” tests must be construed in accordance with the DDA so that both the order-making authority and the Secretary of State must seek “to ‘get the best possible deal’ for persons with statutory disabilities, whilst the opportunity exists” and that any limitations which are absolutely necessary (given the accepted policy of “least restrictive option”) must be fully and accurately recorded in the Order.

30. In response DCC does not consider it necessary or appropriate to include detailed specifications within the Order schedule. It argues that circumstances change over time and whilst any limitation would always be restricted to the generic term in the Order (such as gate, kissing gate or stile) it may be that the precise width or type of structure could change for legitimate reasons.

31. It notes that the Order is drafted in such a way that the existing route would not be extinguished unless and until the authority certifies that the proposed new footpath (including any stiles and gates) are in a fit condition for use by the public. Thus the highway authority is in a position to ensure that any limitations are judged to be of an appropriate standard, bearing in mind its responsibilities under the DDA. In addition the applicants will have been required to sign an agreement allowing DCC (if it considers it necessary) to carry out the required works and to recharge the cost to them. DCC contends that the public interest is adequately protected and its obligations under the DDA fulfilled without reference to BS 5709 specifications in the Order schedule.

32. In considering this issue I am mindful of the guidance recently published in Circular 1/09 at paragraph 6.8 which states: “The requirements of the (DDA) will be particularly relevant in specifying limitations or authorised structures. In authorising a structure, section 147 of the 1980 Act requires the authority to have regard to the needs of persons with mobility problems. Whilst there are no mandatory standards laid down for structures which, if met, will satisfy the requirements of the Disability Discrimination Acts, the British Standards Institute has developed a comprehensive standard, the current version of which has been published as BS 5709:2006 .… Authorities may develop their own comprehensive standards for the purpose of meeting the requirements of the Acts.”

33. Mr Kind also refers to draft guidance on structures on rights of way which is not (yet) published by defra and I view this in that context. Although its general principles are now widely accepted, on the specific issue of describing a limitation in a public path order the guidance considers it good practice (but not compulsory) to define the detail for reasons of “transparency and scrutiny”.

34. I interpret the available guidance as reinforcing the requirement for all concerned throughout the public path order process to have in mind the reasonable needs of people through the full range of abilities and disabilities when making decisions concerned with the provision of public access (as required by the DDA) and so as not to discriminate against those with disabilities. That seems to me unassailable. However the detailed specification of a limitation (which the draft guidance notes cannot be revised once included in a confirmed order other than by re-dedication) is not stated to be compulsory although there may valid reasons why it is recommended.

35. In my view there is a significant difference between the authorisation of new structures under the provisions of Section 147 of the 1980 Act and those installed as part of a diversion under Section 119. Section 147 deals in isolation with new barriers which are clearly additional to any that already exist in a particular part of the network and it is perhaps fair that a defined minimum standard should apply so as to minimise the inevitable extra inconvenience experienced by the public.

36. However in the case of a diversion, Section 119 requires a comparison to be made between the existing and the proposed routes. Section 119(6) insists the new path must not substantially less convenient to the public than the one it would replace and that the effect on public enjoyment of the whole path is taken into account. These tests should be applied rigorously with the public interest including people of all abilities such that those with disabilities are not disadvantaged in any way. I do not disagree with the sentiment of Mr Kind’s argument that decision-makers should always look for the best outcome for disabled people, but I cannot read into the terms of Section 119 that diversion proposals must achieve substantial improvements for disabled path users (unless the Order were itself made in the public interest), even taking into account the provisions of Section 49A of the DDA that refer to treating disabled people more favourably. To force that approach would risk placing an unjustifiable burden on the landowner beyond the terms of Section 119 of the 1980 Act, however much it should be encouraged. 37. The expediency test within Section 119 requires the balancing of a number of relevant factors, including the rights of the landowner, those of the public and not least the statutory duty not to discriminate against people with disabilities. All these factors need to be considered in the context of the facts of the case and the location and nature of the path itself.

38. In the context of the proposal to divert Footpath 9 (Mickleton Parish) I am satisfied that the public interest will not be compromised by identification of the limitations in the Order schedule simply as stiles and a gate since I consider DCC is best placed to judge the suitability of these structures in the locations proposed and to withhold certification of the new route until that standard is achieved to its satisfaction.

39. I do not propose to modify the Order to make reference to BS 5709:2006.

I would be pleased to get comment on this paper or by phone or post.
Chris Beney 12 Woodlands Road Bushey, Herts, WD23 2LR
Phone: 01923 211113 E mail: chrisbeney@
Working... Please wait