Every year, hundreds of applications are made to divert footpaths all over England and Wales, and the Ramblers keeps a watchful eye on all of them. But only a few are challenged on the grounds of protecting a route’s historical character. Julian Rollins investigates why, and looks at the need to recognise the value of Britain’s footpath heritage in law
When the battle of footpath MR392 reached its public inquiry, it turned out to be quite a test for Ramblers volunteers. You could almost say a David and Goliath confrontation.
The David in this case was – appropriately enough – Dave Wetton, Tonbridge & Malling Ramblers’ footpath secretary. He was set against a Goliath in the shape of Kent County Council and an estate owned by a Saudi prince. The 2011 inquiry was, Dave says, his toughest challenge to date. It pitted the barristers representing the Fairlawne Estate and the council against local people and the Ramblers – the latter in the shape of Dave and fellow Ramblers volunteer William Fowler.
“I had been to one or two inquiries before, but this was the big one,” says Dave. “It took some time to get used to the procedures, but you have to give it your best shot.”
The issue being wrestled over was the proposed diversion of a footpath – MR392 – in the village of Shipbourne, near Tonbridge. The estate wanted the path re-routed to guard against a perceived crime risk, protect its livestock from dogs and ensure privacy. Dave and his fellow objectors, however, argued that the proposed diversion would be far less satisfying and enjoyable to walk than the current route, which had been used by people for centuries.
Happily, Dave got the better of Goliath in this modern-day instance, too, and the inspector rejected the council and the estate’s diversion order on the grounds that the proposed and existing routes are “as different as chalk and cheese”. He said the current path passes through a “high-quality landscape”, while the alternative “lacks the subtlety” of the old route.
The heritage value of the path was always at the heart of the case for the local objectors, for whom the walk was a real favourite. It takes you from a kissing gate at St Giles’ Church, through meadows and past an old oast house and copses to nearby Ightham Mote – a medieval manor house. The landowner’s alternative set out to divert walkers away from two of the estate’s picturesque houses and went around the edges of farm fields, changing the whole quality and experience of the original walk.
But a path’s heritage value isn’t an explicit legal reason to deny a diversion order. Under the Highways Act 1980, a footpath diversion may only be approved if the new route is as convenient as the one it replaces, and has to start and finish at the same points, or close by. However, it must also take into account ‘public enjoyment of the footpath as a whole’, which was the deal-breaker for the landowner at Shipbourne, and the basis of Dave’s objection.
So how did Dave convince the inspector of something so intangible as the ‘public enjoyment’ of the different routes? Simple. In preparing for the hearing, Dave invited a group of Ramblers to walk both routes and say which they preferred. The existing route was the clear winner and Dave’s walker ‘jury’ proved decisive in the inspector’s verdict.
Streamlining path changes
So, at Shipbourne the process delivered for walkers and the interests of the public overall, but is the system ‘fit for purpose’? The organisation that represents landowners, the Country Land & Business Association, is certain that it isn’t. In 2012 it published a policy paper that set out its ‘common-sense approach’ to countryside access. This includes a presumption that a path can be diverted if it crosses a farmyard, commercial areas, gardens or anywhere else where ‘privacy or security’ is an issue. In the paper’s introduction, the association’s president, Harry Cotterell, says the rights of way setup is governed by a failing system that is “long-winded, expensive and completely incomprehensible”.
More recently, the Department for Environment, Food and Rural Affairs (Defra) announced a public consultation that looked at potential areas for reforming rights of way law and ‘streamlining’ procedures for making changes to the footpath network. It included the suggestion that it should be made easier for landowners to progress path diversions or closures, and that planning applications should include any contingent footpath diversion orders as part of the planning process.
The Ramblers’ position on Defra’s proposed changes is mixed. There’s a guarded welcome for moves to clear backlogs of applications to add paths to definitive maps before the 2026 cut-off date, but all paths on that map will still be open to challenge and change. While there is some scope for fine-tuning the procedures involved in dealing with diversions, that doesn’t extend to tinkering with the checks and balances put in place by the 1980 Highways Act.
The Ramblers’ senior policy officer Eugene Suggett would like to see a system that gives at least some thought to the heritage value of the rights of way network. As things stand, some inspectors make antiquity a factor in the public enjoyment test, he says, but most do not. “They forget that a path may have been there for two or three hundred years – that it is an inscription on the landscape made by humans going about their business over several generations,” he says. The result is that the arguments at inquiry tend to focus on the more prosaic, such as convenience, points of termination and gradients.
At Shipbourne, antiquity was not a factor in the inspector’s assessment. However, in November 2011 the Ramblers won the day over plans to divert a public path in the heart of Nottingham, and this time its heritage value was a major factor. Redevelopment at the city’s Midland Railway Station had led to the council seeking to divert the route, which crossed a footbridge built in the first half of the 19th century. The inspector’s report said that the path offers a chance to get away from busy roads “with the added amenity value of an historic environment”.
But the Nottingham decision is an exception: in most cases a path’s history does not feature when a diversion decision is made. When it does, it’s argued as part and parcel of ‘public enjoyment’. For example, in August 2011, a diversion was given the go-ahead on the outskirts of Dorking, Surrey. Despite local objectors arguing that the brook-side route was ancient, the inspector wasn’t swayed. In his report he notes concerns about the loss of an historic walking route. But though he accepts that the change “should not be entertained lightly”, he points out that when a similar and equivalent route is on offer, legislation allows for a diversion to go ahead.
Protecting our path heritage
The Ramblers inspects every single diversion proposal in England and Wales to ensure the best outcome for users, amounting to almost 600 in 2012 alone. Central office maps every order and then sends it to an army of local volunteers, who walk the path and decide if the order is OK. Where there are disputes that go to public inquiry, the heritage card seldom proves a winner, partly because objectors rarely play it. Eugene says that it doesn’t often occur to opponents to make the case for a path in those terms, and he would like to see specific legislation introduced to protect the historic route of footpaths (where appropriate) in the same way that ancient monuments are safeguarded.
“Even paths that are thousands of years old can be diverted without a thought being given to their heritage,” he says. “So many other features in the landscape are protected by statute or by a body of some sort. The National Trust looks after old mansions, English Heritage, Cadw and Heritage Scotland protect things like tumuli and hill forts, and there are preservation orders even for old trees.”
That concern is echoed by geographer Marion Shoard, author of This Land is Our Land. For her, the heritage aspect of the path network is central to the walking experience. “Part of the joy of walking footpaths is that you can step into the past. Economic and social life in the countryside depended on landowners making sure that they put up with access, whether they liked it or not,” she says. “You can walk on a path and wonder, why did it go to where it went?”
Changes to the network are inevitable. But each one, Shoard argues, erodes the heritage value of the whole – which the 1980 Act does little or nothing to recognise. “The system adds no weight to whether or not a footpath is old, even though its age adds a great deal to the experience of walking it.”
Eugene Suggett sees little chance that the heritage factor will be recognised by any ‘streamlined’ system, but he does hope that a recent High Court judgment involving the Ramblers may oblige inspectors to take it into account. The case looked at the use of the word ‘expedient’ in the diversion criteria: a wider understanding of what expedient means could include antiquity, he says.
In Wales, Gwyn Lewis is keeping an eye on how the rethink around rights of way in England shapes up. He’s the Ramblers’ area footpath secretary for Glamorgan, a patch that stretches from Cardiff in the east to the beautiful coastline of the Gower in the west. As path changes are now a devolved power, the Welsh Government would have to make its own decision about the diversion system if England goes for something new. But Gwyn, who also chairs Ramblers Cymru, suspects that the Welsh Assembly would fall in line with what happens over the border.
He challenges the assertion that there are major problems with the existing system. There’s a perception, he says, that the Ramblers opposes all changes to the footpath network, but that is not the case. “We’re there to protect the network, but we’re also there to improve it,” he says. “If a proposed route is an improvement, then so be it.”
Gwyn accepts that the system as it stands can be bureaucratic and unwieldy, but it can deliver for walkers – as it did with MR392. And he’s adamant that the Ramblers should be suspicious of any attempt to dismantle it in the name of ‘modernisation’.
“We have fought hard to get where we are,” he says. “The fundamentals that we fought to achieve are not something that we should relinquish lightly.”
Top image: Mike Gunnill