Public Path Orders
The public rights of way network, 120,000 miles of minor public highways is a resource unique to England and Wales. Whilst its roots are firmly bedded in history, in our crowded and rapidly developing island it must change to reflect changes in society. Those changes are brought about by Public Path Orders (diversions), which are legal orders made under various statutory provisions that allow the movement of these minor highways to enable landowners to fully utilise their holdings, undertake development or increase their privacy and security.
Public Path Orders are discretionary elements of a Highway Authority’s duties and sadly today, with the pressure of resources, many authorities find it difficult to meet the demands for diversions. Although Public Path Orders are complex and long processes fortunately there are only a handful of activities that legally only the Highway Authority can perform. This allows a consultant to act on behalf of an applicant and, working with the Highway Authority successfully and speedily conclude Public Path Orders. Mike has considerable experience in this area of work, acting for applicants and undertaking site surveys, both pre order and statutory consultations, drafting plans, Orders, Definitive Map Statements, statutory advertising and overseeing physical works to Schedule 2 completion for the Highway Authority.
Mike has considerable experience running professional training courses for public rights of way practitioners in a variety of subjects. Enforcement, Definitive Map processes, preparing for prosecution, surveying and navigation as well as more general courses
The material from Mike’s enforcement courses are used by the Institute of Public Rights of Way and Access Management best practice guide and the preparing for prosecution course has been endorsed by the Law Society and accredited for continued professional development for legal practitioners. Mike holds a Mountain Leadership Certificate and is an experienced outdoors instructor providing outstanding landscape interpretation, map reading and navigation training which, despite the variety of electronic aids at our disposal is still the basic underpinning for successful field work and surveying.
Definitive Map Processes
Unlike the road network which, with its black top and street furniture is very obviously publicly owned; public rights of way are shared with the owners of the land over which they run and are often completely invisible, only identified by a line on the Definitive Map, (the legal record of the location and status of public rights of way). It is this shared element at the heart of public rights of way that can create a conflict of interests. A conflict between the rights of the individual landowner naturally wishing to maximise the use and enjoyment of his land and the rights of the public to walk, ride or drive vehicles over that land.
That conflict comes into sharp focus whenever the public claim additional rights of way or higher rights over an existing way. The Definitive Map, the legal record, is only a minimum record and is without prejudice to the existence of additional rights. If claimed, a Highway Authority is bound by law to investigate and if it finds, on the balance of probabilities, that the rights subsist, then make an Order to add those rights to the Definitive Map.
With his academic historical geography background and long experience as a public rights of way practitioner Mike is uniquely placed to objectively advise clients on cases, seek and interpret additional evidence and, represent clients at public inquiries and hearings.
Evidence for additional rights is of two types, historical documentary evidence and user evidence. The summation of the former should indicate on the balance of probabilities that a highway of a particular kind subsists irrespective of whether it is still used or physically exists in the landscape. User evidence, put simply, needs to demonstrate that the public have used a particular way without secrecy, permission or violence for a minimum period of 20 years. Provisions in the Highways Act allow landowners to protect themselves from accumulated user evidence giving rise to new rights. This process comprises a declaration and plan which is submitted periodically to the Highway Authority. The declaration acknowledges existing rights of way and legally confirms a lack of intention on behalf of the landowner to dedicate any additional public rights.
Mike can undertake the surveying and provision of plans together with the drafting and submission of decelerations on behalf of landowners.