Intrusive Footpaths – Correcting a Growing Imbalance
The Countryside and Rights of Way Act 2000
In 2000, the Government enacted the Countryside and Rights of Way Act 2000, or CRoW for short. One objective of CRoW was to open up huge swathes of British countryside to the roamer, allowing the general public to enjoy parts of the country that had simply been off-limits beforehand. This part of the law is often tagged with the phrase 'right to roam'. Although the 'right to roam' legislation has done a great service for many a hiker since its inception, it was also agreed that CRoW had to protect local communities. A list of the types of locations where 'right to roam' is not in effect was written into law and can be found under Schedule 1, Part I of the Act. Two of the key exceptions for family homes are:-
SCHEDULE 1 Excepted land for purposes of Part I (Part I refers to all law regarding 'right to roam')
Land within 20 metres of a dwelling.
Land used as a park or garden.
It is these exceptions that are of interest to us. For all rights of way put in place after 2000, none can run within 20 metres of a dwelling and not pass through a garden. This is a good thing because to place a right of way any closer to a home would risk compromising homeowners' privacy and security. We believe this should be a condition for all footpaths, crucially those that were created before 2000. This is what our campaign is all about: one small change to the law would remove this inconsistency in the CROW 2000 Act. Currently, this insufficiency in British law has allowed countless footpaths to run too close to many family homes and in the worst cases, directly through them. The Government already acknowledges that rights of way shouldn't come any closer than 20 metres to a dwelling, now it's simply a matter of acting on this acknowledgement.
Following CROW 2000 the footpath network took on a new use, that of recreation. Access to the countryside is generally supported but in creating this new use for the footpath network no consideration was given to the impact on family homes. New provisions granted in the CROW have offered no considerations to relocating or closing existing footpaths that run through family homes, a situation impacting on many families who live in rural areas. All footpaths prior to 2000 are not subject to the Schedule 1 exceptions above and for consistency should be. There should be no distinction between homeowner’s privacy and security depending on when a right of way was established. The principle of restricting access to private gardens is acknowledged in the CROW Act, why is there discrimination to footpaths outside Part 1 of the Act. This accepted principle should apply to all footpaths, i.e. no access to family homes and gardens.
Wildlife and Countryside Act 1981
Part III of this Act relates to public rights of way and contains reference to the duty to keep a definitive map which records all rights of way. No recognition is given to the modern use of the land over which a footpath passes, in many cases a family home. There is also no recognition of the impact such a path may have on local communities. The law currently encourages people to be inconsiderate because it is ‘their right’ that under the law they can enter the family home, thus nurturing an inconsiderate and divided society. The CROW Act 2000 recognised this and under the ‘freedom to roam’ part of that act restricted footpath access around family homes. Unfortunately this part of CROW was not extended to apply to all footpaths. Such a simple change would resolve the enormous problem confronting many family homes.
Natural England
The Natural England Board Paper NEB PU09 10 Discovering Lost Ways dated 13 February 2008 contained proposals that included Natural England facilitating a fundamental review of access legislation and process. This provides the opportunity for legislation change to correct anomalies outlined earlier and respect the privacy and security of people who have their home in the countryside
A Natural England Stakeholder working group published a report ‘Stepping Forward’ in 2010. The proposals contained in the report aim to improve the current inflexible rights of way system, moving paths away from family homes is part of that. In the report it mentions the need to achieve a better fit with the modern use of land, in particular ‘...flexibility to mitigate any significant conflict there might be with the modern land use’ and leads to their proposal 6.
Country Land and Business Association (CLA)
One of the Natural England working group members was the CLA who have published their own policy paper ‘The Right Way Forward’ that expands on the Natural England report. The CLA policy report states ‘Defra should issue specific guidance to highway authorities setting out the presumption in favour of diverting paths away from farmyards, commercial areas, gardens and other areas where privacy, safety or security is an issue’.
DEFRA
Respect for home owners covered in the DEFRA Rights of Way Circular (1/09) ‘Guidance for Local Authorities’ needs to be enforced. The paragraph 5.5 clearly states that ‘…provisions creating, diverting and extinguishing public rights of way in the 1980 Highways Act have been framed to protect both the public’s rights and the interests of owners and occupiers…’. This is not working, the interests of ‘owners and occupiers’ are ignored. The paragraph 5.27 also says a diversion order can be made in the interests of the owner, lessee or occupier or of the public’ and that ‘A diversion… may therefore be made as long as expedient… in the interests of at least one of the parties’. This all supports removal of footpaths from running through family homes. Enforcing the DEFRA circular 1.09 through changes to CROW would resolve all the inequalities experienced by families who live in the countryside and who are impacted by the footpath network and its change of use.
County Councils
Public path diversion orders: section 119 (1) of the Highway Act 1980 provides that a diversion order can be made in the interests of the owner…or occupier….’ A diversion order may be made as long as it is expedient to divert all or part of a way in the interests of at least one of the parties. (DEFRA Rights of Way Circular 1/09 – Guidance for Local Authorities – paragraph 5.27 and paragraph 5.32).
There are rights to compensation (DEFRA Rights of Way Circular 1/09 – Guidance for Local Authorities – paragraph 5.33) and in the EU Human Rights Act. There is a cost to run a footpath through a home, this should be paid or it be removed.
Overall View and Opinion
There is general support and opinion that the footpath network should be changed to remove all footpaths from passing through family homes. Experience is that County Councils and the Highway Authority will not respect this view unless required to do so through the CROW 2000 Act.
General Comments
It is accepted that England’s extensive network of public rights of way is a unique and valuable resource, a part of our heritage. However, they are evolving away from their historical purpose to a more recreational role. To argue that a home owner knew about the path when the home was purchased is not a valid argument. Many home owners would have been aware of a path with its historical role, and in a lot of cases the path was not used because the historical role had diminished or even disappeared in current society. With the changing role of a footpath the home owner’s position is quite different. As an example of the change that make a footpath through homes unacceptable, I have experienced a running club wanting to organise a Good Friday marathon through my home. In 2000 (?) the Government gave walkers access to thousands of acres of land. At the time consideration was given to those properties that bordered what would become accessible land with the ‘right to roam’. Restrictions were placed on the distance that a path needed to be from houses. No thought was or continues to be given to those who have footpaths running through their homes.
In a recent article in the Times (Saturday 21st April 2012) Roy Hattersley wrote: ‘Forgive them their trespass. It opened the moors for all’. In this article it is fascinating to see how the views have changed towards access to the countryside in the last 60 years as reflected by the apology gracefully given by the Eleventh Duke of Devonshire. It is time for walkers to be as magnanimous as the Eleventh Duke of Devonshire and have the courage and maturity to recognise the need for change so that the same principles applying to ‘Right to Roam’ areas also be applied to all footpaths and that they are removed where they run through family homes.
There are many homes that are affected with this intrusion. There is currently no way of changing this. Many people are concerned that by applying for footpath closure they will be doing no more than advertising their family home and the path that crosses it. Whereas an existing path may be a metre (more precisely one yard) wide if it is formally closed the local council now requires the replacement path to be 3.0 metres wide! This in many cases prevents the relocation of a path.
Those who have footpaths running through their homes have their privacy and security infringed and it is time the law was changed to give all equal rights to privacy and security.
The CROW does not permit personal considerations. When footpaths trail through homes, drives and gardens how can we claim, in a modern society, that the law is fair? How can we comprehensively support Human Rights?
Footpath law is outdated, it is time for change. The Countryside Act does not permit personal considerations. Where a footpath goes through a home (drive, garden) how is this fair in today’s society and how does this fit with Human Rights?
It is time that the law was addressed in order to give all people equal rights to privacy and security. Those people with a footpath running through their family home have no rights (to security or privacy) whereas those walking through your home have rights (to infringe on security and privacy through access).
The national network of footpaths is increasingly used for leisure activity. No consideration is given to the impact this has on residents where the footpath crosses the family home. The footpath network is a useful asset but the few parts that cause distress should be removed.
Campaign Support
Through the campaign ‘Intrusive Footpaths’ many people have come forward to speak out about the anomaly that exists in our footpath network in which anyone has the right to enter a family home. This is surely immoral and ethically wrong. The campaign web-site gives many examples of the intrusion and distress this gives. The price of access to the countryside should not be paid by those who have family homes in rural areas. The MP of some of those affected is being contacted to express concern and get this flaw in the CROW 2000 Act corrected. These are the MP’s who have or are being contacted:
Richard Benyon MP Member of Parliament for Newbury, Parliamentary Under-Secretary for Natural Environment, Water and Rural Affairs
David Davies MP, Member of Parliament for Monmouth
Nadine Dorries MP, Member of Parliament for Mid-Bedfordshire
John Glen MP, Member of Parliament for Salisbury
David Heath MP, Member of Parliament for Somerton and Frome, Minister of State for Agriculture and Food
Martin Horwood MP, Member of Parliament for Cheltenham
Oliver Letwin MP, Member of Parliament for West Dorset , Minister of State, Cabinet Office (Minister for Government Policy advice)
Jesse Norman MP, Member of Parliament for Hereford and South Herefordshire
Owen Paterson MP, Member of Parliament for North Shropshire, Secretary of State, Department of Environment, Food & Rural Affairs
The Rt Hon Sir Peter Tapsell MP, Member of Parliament for Louth and Horncastle, Father of the House of Commons
Bill Wiggin MP, Member of Parliament for North Herefordshire
Nadhim Zahawi MP, Member of Parliament for Stratford-on-Avon
Intrusive Footpaths Web-site: www.intrusivefootpaths.org.uk