DEVON ON THE MOVE:  TOWARDS A PUBLIC
RIGHTS-OF-WAY IMPROVEMENT PLAN

DEVON COUNTY COUNCIL, NOVEMBER 2004

RESPONSE FROM THE OPEN SPACES SOCIETY
 FEBRUARY 2005


  Introduction
 

 
1. The Open Spaces Society, formally the Commons, Open Spaces and Footpaths Preservation Society, was founded in 1865 and is Britain’s oldest national conservation body. We campaign for the creation and protection of public rights of way, common land, town and village greens and open spaces. We are unique in representing all legitimate categories of user on all categories of public highway.

 

 

 2.

 We welcome the comprehensive nature of this consultation document, much of which we support.  However we have severe reservations about some of it, and especially the sections on path maintenance and changes.  Devon’s public rights-of-way network is one of its most valuable assets, for its history and interest.  The plan proposes shifting these paths around allegedly ‘to meet the current and future needs of the residents and visitors’, which would destroy the character of this vital arteries.

 

 

 3.

 It is most regrettable that Devon County Council has failed to consult our central office during the preparation of its rights-of-way improvement plan (ROWIP), in view of our long expertise and wide-ranging interest in rights-of-way matters, in Devon and throughout England and Wales. As far as we are aware, we have only received one questionnaire from the council, sent to our East Devon representative. It was by chance that we were aware that the county council was seeking views on the current document.

 

 
4. Indeed, the council has failed generally to consult those most concerned, namely the user groups. It has a rights-of-way liaison group but our representative on that group confirms that it has not been consulted about the ROWIP, which would seem an arrogant attitude for the council to adopt. Yet the council will depend on the support of user groups and others to implement its proposals.

 

 
5. Statements are made in the document which are taken from a citizens’ consultation carried out in 2004, ‘Devon Voice’. That exercise asked tendentious questions of the consultees, without an explanation of the context, and the responses are therefore misleading. When we learnt of this exercise, we asked the council to confirm that it would not be using the results of the consultation to promote for instance, diversion of paths from across fields to field edges, or onto routes out of farmyards or private gardens. Deplorably, statements from this consultation have been included in the ROWIP document and have clearly been used in support of some of the proposals. We submit that these statements reflect badly on the county council’s integrity and must be deleted from the next version.

 

 
1.

Executive summary (page 1)
   
  Key findings
   
  Third blob:  We are unclear what is meant by a ‘vulnerable road user’, but the safety of such users would be much assisted merely by maintaining highway verges which, as part of the highway, is a duty on the county council in any case.

Fourth blob: We are concerned that this implies concentrating resources on popular paths and neglecting others. We do not accept that any path should be neglected. The most likely reasons for lack of use are the lack of maintenance or antisocial activity by landowners (obstruction, ploughing, aggressive dogs etc).

Fifth blob: What is ‘appropriate customer focus’? A statutory duty is what it says—action which the highway authority has a legal duty to take. We object to this apparent attempt to evade its statutory duties, and the use of jargon.
   
  The challenge….
 
We strongly object to this paragraph which smacks of rationalisation, while trying to make it sound acceptable. This is all about diversions away from houses on the grounds of privacy and security—which we shall continue resolutely to oppose. The words ‘There are opportunities to move access to the countryside forward in a proactive and positive manner’ suggest that this will be a priority, but changes to the network are a mere power and should have low priority compared with the statutory duties of getting the network in good order and the definitive map up to date.
   
2. Background (page 2)
   
  Second blob:  To achieve ‘the psychological comfort and confidence of the public to use a route’ merely requires the council to carry out its statutory duty, ie to signpost and waymark, ensure the route is free of obstructions, ploughing and disturbance of the surface, crops, aggressive landowners and their dogs, and that there are easily negotiable gates and stiles where these are necessary at all.  We do not need a rights-of-way improvement plan to achieve that since the council should be doing it as a matter of duty.

 Paragraph 5:  There is a reference to the development of circular routes.  This must be without prejudice to the existing network.
   
5. How did we do it? (page 6)

Para 1:  Devon local access forum.  Although 75 per cent of public rights of way in Devon are footpaths, there is only one representative of walking interests on the access forum, and walkers are therefore grossly under-represented, despite walking being the most popular countryside activity.
   
  10 TED Tourism and Economic Development (page 34)

We welcome the reference to the economic benefit of the South West Coast Path to the regional economy, but we wonder therefore why Devon County Council is diverting an eroded section of the path (Exmouth footpath 1) behind the holiday chalets instead of having the chalets moved back.  This appears to be hypocrisy.
   
  12 M Maintenance (page 40)

We strongly oppose the plan to introduce ‘categorisation of the rights of way’, and especially the naff names proposed for the categories.  It is not clear whether every path will be included in a category, but the implication is that some routes will be given priority at the expense of others.  This is unacceptable: all the routes are public highways (as are the many more not yet on the definitive map) and they must all be maintained and cared for.
   
  M1 (page 42)

We object to the statement ‘We will continue to investigate possibilities for maintenance of the unsurfaced county road (UCR) network under the following priority…’.  The council has a statutory duty to maintain all highways, there is no discretion.  This proposal is misleading and contrary to the council’s legal duty, and must be deleted.
   
  M4 (page 43)

The policy ‘Encourage removal of gates and stiles where possible, thus reducing the maintenance burden on the landowner and easing public access.’ should be amended to make it clear that gates and stiles which are part of the history, culture or landscape, should not be removed.

We object to the statement ‘We will prioritise replacement or provision of new bridges on the basis of public demand, considering whether there is a nearby alternative route available’.  This statement is contrary to the council’s legal duty to keep all highways in good repair and therefore to replace or provide bridges where necessary, not merely on the basis of demand (which cannot be judged anyway, if a path is unusable).  It should be deleted.

We object to the statement ‘We may consider the diversion or extinguishment of routes subject to loss or erosion’.  This is far too bald a statement and must be amended.  Practically every riverside path in Devon is under threat of erosion, and these are important paths, especially since they are extensively used by the elderly and the less able.  They must be vigorously protected. 

Dartmouth footpath 10 at Castle Cove has been closed by a traffic regulation order because the council considers it to be dangerous, but an alternative means of reaching Castle Cove must be provided.  This proposed policy would allow the council to close the route without providing an alternative.
   
  M5 (page 43)

We support the statement ‘The county council will undertake the use of enforcement where necessary to assert and protect the rights of the public’.  We should like to see more prosecutions of farmers and landowners who ignore the law on public paths, as an example to others.
   
  13 SW Signing and waymarking (page 44)

SW1 (page 45)

We object to the statement ‘Investigate possibility of improved signing programme on unsurfaced county roads (UCRs) under the following priority….’.  The county council has a legal duty to signpost all public highways where they leave a metalled road, and to waymark other routes as necessary.  Therefore it should be signing all UCRs and should not be presenting this as part of the discretionary improvement plan.  The statement should be deleted.
   
  14 ICI Information and communication (page 49)

We submit that all obstructed paths and their grid references should be shown on Devon County Council’s website and parish notice-boards.  This will enable the public to see the extent to which their rights are unavailable to them, or have been stolen from them.
   
  15 LM Limited mobility (page 54)

It was agreed many years ago under the Best Value scheme that every parish should have at least one path free of stiles for the less able, but nothing has been done about it.  Perhaps something will now be done.
   
  17 W Walking (page 60)

W2 (page 60)

We disagree that ‘development for walking in urban areas for utility use is generally outside the scope of this document…’.  This statement should be deleted.  Public paths in urban areas are immensely important to the public, as traffic-free short cuts.  Too often they are badly maintained or threatened with development.  The county council has a duty to ensure they are in proper condition.

   
  W3 (page 61)

The statement ‘We will only authorise stiles on diverted routes in exceptional circumstances’ should be amended.  The aim should be to eliminate stiles completely (except for those which are of historical or cultural significance or interest).
   
  21 OR Off-roading (page 72)

OR4 (page 74)

We agree that avoiding urbanisation is essential, but regret that this is not the practice on many lanes in Devon, where expensive work has led to destruction of the ancient character of the lanes, and in some cases urbanisation.
   
  22 L Legal (page 75)

LM Modification orders (page 75)

LM1 (page 77)

The statement ‘Ensure that the parish-by-parish definitive map review has been completed by the cut-off date of 1 January 2026’ is far too lax.  Devon County Council must complete all its applications for modification orders by 1 January 2026 and must devote sufficient resources to doing this—it is, after all, another of the council’s statutory duties.  This statement must be amended.

We disagree with the tone of the statement ‘Where there is no urgency…’.  With only 21 years remaining until the definitive map is closed to claims based on historical evidence, there is urgency for the whole process, and all claims should be treated as urgent.

We do not understand the statement ‘Negotiation with the landowner will be the first option.’  Either the route is or is not a highway: there is nothing to negotiate about.

LM3 (page 78)

The statement ‘Opposed orders to be submitted to the Secretary of State within 6 months of the end of the objection period’ is, again, far too lax. It should be amended to read ‘within one month’.

LM4 (page 78)

We object to the statement ‘In some circumstances we will consider using public path orders to move such routes to a better location, reducing the overall maintenance burden.’  It is vital to get the definitive map up to date and accurate.  It is wrong to treat newly-claimed paths any differently from paths already on the definitive map as far as diversion and extinguishment orders are concerned.  It is certainly wrong to use public path orders to avoid a maintenance burden, which it is the county council’s duty to bear.  Once added to the map, the routes should be opened up and maintained just like any other highway.  If it then proves necessary to make a diversion order, the path should be treated just as any other highway.  This statement should be deleted.

LP Public path orders (page 79)

This is the section which gives us the most problems, and where we deplore the failure to consult us earlier.  The result is that statements are made here with which we strongly disagree.  We are strongly sceptical of the use of the ‘Citizens Panel’, which is undemocratic and likely to have little knowledge of rights-of-way issues.  Its members were not aware of the context of the questions they were being asked.  The result is therefore misleading, as set out in our paragraph 5 above.
   
  Diversions

It is stated that ‘It was found that people are generally happier if there is an increase in the length of route, rather than a decrease’.  This statement appears to come from the misleading Devon Voice consultation.  In true opinion-poll style it phrased the question so as to encourage respondents to give the desired answer.

In fact, the statement is a gross simplification.  Horse-riders sometimes do not mind if a diversion is longer because (a) there are far fewer routes available to horse riders than to walkers and they want to get off the roads and (b) it is the horse not the rider that has to negotiate the extra distance.  However, walkers generally prefer a direct route and that is often why they object to a diversion in the first place.  We submit that the misleading statement should be deleted.

We also consider that the statement ‘We do also hear from users that they find passing through active farmyards difficult or uncomfortable’ should be deleted.  If you had consulted more fully you would also have heard from those who disagree, as we do.  The Open Spaces Society has no problem about passing through an active farmyard.  In any case, each case must be considered on its merits and it does not need a blanket policy.

‘It appears that people are generally happier not to walk through farmyards and gardens…’.  Again, this statement should be deleted as untrue since it was obtained from the same biased and misleading survey referred to above.  Which ‘people’ are these?  For instance, our members are generally happy walking through farmyards and gardens if that is where the public right of way runs.

We also object to the statement ‘There is a high acceptance of using field-edge routes rather than cross-field…’.  This could lead to a deluge of field-edge diversions, with the taxpayers being lumbered with huge maintenance costs of moving the path to the field edge where the county council, ie the taxpayer, has to pay the cost of maintenance.  There should be a policy against such diversions, not just for the tweely-named ‘Bumblebee routes’.  The statement should be deleted and replaced by a policy against such diversions.
   
  Extinguishment

We oppose the statement ‘It appears that there is some agreement that…if the public were not making use of a route over a long period then it could be extinguished.’  This too appears to come from the misleading survey, which failed to make it clear that often the reason a route is not used is because it is illegally obstructed, overgrown or unwelcoming.  It is vital that all routes are open to their full statutory widths and made welcoming to the public.  This misleading statement should be deleted.

While we note the paragraph about routes alongside rivers and cliffs, it is not what happens in practice, with the county council continuing to promote diversions to riverbanks (eg Axminster footpath 42, to be determined by public inquiry).
   
  Creation

We oppose the statement ‘It was felt to be reasonable to alter existing routes in exchange for new routes being created elsewhere.’  Again this comes from the discredited survey.  We submit that the ROWIP should not be an opportunity to do deals.  Creations must be genuine creations and not given in exchange for an extinguishment elsewhere or for an unsatisfactory diversion.  The statement should be deleted.

We also oppose the sweeping statement ‘There was disagreement with the creation of new routes against the landowner’s wishes.’  We do not disagree with such a creation.  If the proposed route complies with the criteria in section 26 of the Highways Act 1980 the county council should make a creation order and let the matter be determined by a public inquiry.  The statement should be deleted.
   
  LP1 Diversion of existing rights of way (page 81)

We strongly oppose the intention to ‘give high priority to a package of public path orders…’ in all three statements under this heading.  Path orders should not be made in packages but individually. Packages are confusing for everyone and it is often not clear in whose interests they are being made.  The improvements sought should be achieved by creations not trade-offs.  We therefore submit that the wording should be amended to: ‘We will give high priority to public path creation orders which give/support…’.

We also oppose the statement ‘We will consider diversion of cross-field routes to field-edge in support of improved farming practice…’.  Field edge routes are often less direct and, as stated above, their maintenance falls on the public purse, as is recognised later in the statement.  The statement should be amended to: ‘We will only consider the diversion of cross-field routes to field edges in exceptional circumstances and where there is an overwhelming public benefit to the proposal (which does not include any consideration of cultivation on the cross-field route since the law requires it to be reinstated).’

The statement ‘Where we find there to be public advantage we will consider sharing or defraying applicant costs.’ should be amended to ‘significant public advantage’.
   
  LP2  Extinguishment of existing rights of way (page 82)

We oppose the statement ‘We will give consideration to extinguishment of a route if the public does not use it for an extended period.’  There is usually a reason why it has not been used, eg it has been made unwelcoming or has been illegally obstructed.  The statement requires the route to be open throughout the monitoring period, but if the route has not been used for a long time and is then reopened it could take some time for people to become aware of it.  This paragraph should be deleted.
   
  LP3 Creation of new routes (page 82)

As stated above, we disagree with the statement ‘We recognise that people feel uncomfortable about the creation of new routes against the wishes of a landowner…’.  We do not have this discomfort and if the route complies with the criteria in section 26 of the Highways Act 1980 the county council should make a creation order and let the matter be determined by a public inquiry.  The statement should be deleted.
   
  22 LC Cul-de-sacs (NB correct grammar is culs-de-sac) (page 83)

The report should recognise the value of culs-de-sac as providing access to interesting places, even if there is no through route.  We would oppose the extinguishment of culs-de-sac, and would call for creations to link them into the network.
   
  23 AL Access Land (page 87)

AL3 (page 87)

This is incorrect and should be amended: dedication is under section 16 of the CROW Act, not section 15.
   
  24 PA Permissive access (page 90)

While permissive access is better than no access it is grossly inferior to definitive access, since there is no requirement to publicise or maintain it, and it can be withdrawn at any time.  We question what place it has in a rights of way improvement plan, which is about rights.  The county council should acknowledge the shortcomings of permissive access.
   
  25 AG Agriculture (page 92)

AG5 cross compliance (page 94)

We support the county council’s intention to work with Defra and its agents to ensure appropriate use of the cross-compliance measures in the county.  We trust that agricultural payments will be withdrawn from farmers and landowners who abuse any right of way on their land.
   
  27 PL Planning (page 101)

PL1 (page 102)

The county and local planning authorities should consult all the user groups, including the Open Spaces Society on planning applications which affect public rights of way, to enable problems to be sorted out before planning permission is granted.
   
 

PL2 (page 102)

‘Where a landowner or developer builds over a right of way we will expect them to meet the necessary legal costs to ensure that the definitive line is made available or diverted onto a satisfactory alternative route’ is far too relaxed.   If the landowner or developer has built over the right of way, he has illegally obstructed it and it must be reopened on its definitive route forthwith, not diverted.  The county council must, if necessary, take urgent legal action to ensure this happens.
   
 

28 Miscellaneous (page 105)

MISC2 Public transport (page 105)

We would oppose the diversion of routes to form off-road links to public transport, and we propose the words ‘or diversion’ be deleted from the statement.
   
 

MISC 3 Police liaison (page 106)

We do not understand the meaning of ‘We will make use of data supplied in relation to reported crime and accident statistics to help target problem areas.’  The council must recognise that the existence of a public right of way is a defence against crime, since bona fide members of the public using the path are likely to deter malefactors.
   
 

29 Dartmoor National Park (page 107)

Para 4.6 (page 114)

DNP3: The DNPA should only consider diversions which are clearly to the public benefit.

DNP4: The use of the term ‘anomalies’ is unclear.
   
 

30 Exmoor National Park (page 119)

2.2 Permissive access (page 120)

With the title ‘rights-of-way improvement plan’, that is what it should be—not a ‘permissive path improvement plan’.  While permissive paths have something to do with access, they have nothing to do with public rights of way.
   
 

2.5 National and regional routes (page 121)

Action 1 is a duty that the highway authority (perhaps delegated to the national park authority) should have to do anyway, not as part of an improvement plan.
   
 

4.3 Existing management plan strategy/objectives (page 122)

P13/5:  The Exmoor National Park appears to have an idiosyncratic signing system.  Anecdotal evidence suggests that the use of colour marking is at the whim of the local ranger.  It certainly does need to conform with the Countryside Agency’s recommendations.  We are concerned that the network of local walks and rides should have priority for waymarking and promotion—all routes within the national park should be properly waymarked.

P13/6: ‘Where an alternative route is needed, a formal diversion will be sought’.  This does not make sense.  It should be amended to read ‘a formal creation will be sought’.  We would oppose any diversions merely to avoid illegal obstructions.

Best Value Performance Review of Recreation Management – Action Plan

Policy 1.6.3 We submit that the work undertaken to arrive at best value should be done by suitable persons and should conform to the methodology produced by the County Surveyors’ Society and Countryside Agency.
   
 

6 Structure of Plan Chapter (page 125)

The document should explain how the action will be undertaken.

6.1 Expected outcomes

We are concerned about the proposal to extend access to the network by upgrading existing rights of way where appropriate.  This is not as simple as it is presented, because it may well jeopardise other users.  It is far better to create new routes to extend access.
   
 

7.5 Motorised users (page 128)

It is inappropriate to describe motorised use as ‘disruptive recreational activity’ when motorists have the right to use these ways.  The national park authority has a duty to take into account the interests of legitimate motorists.  This tendentious phrase should be deleted.
   
 

8. Other issues

 8.1 Maintenance (page 130)

Action 1, Best Value: as stated above, these surveys must be undertaken by suitable persons using suitable methodology.

 8.2 Signage and waymarking (page 131)

There is a desperate need for a standard type of sign where a right of way leaves a metalled road, as this will be easily understood by all.  The clear signs used in other parts of Devon are not used in the national park.  They should be.