Say Neigh to Gates

Say "Neigh" to Byway Gates

Sylvie Ballard

On 16 May DEFRA released a consultation proposing 'improvements' to certain aspects of rights of way law.

Hidden within the document is a proposed change to the 1980 Highways Act gating procedures which would allow landowners to gate byways and restricted byways! See:

DEFRA Public Consultation Document

See paragraph 5.11:

“It should be possible for an owner to apply to a highway authority for authority to erect new gates on restricted byways and byways open to all traffic in line with existing provisions for their erection on footpaths and bridleways”. (Proposal 32).
The lack of provision for byways to be gated is often a reason for claims being disputed by landowners, particularly where the right of way is at odds with the current land use patterns and this causes difficulty with livestock control.
Currently, section 147 of the Highways Act 1980 empowers local authorities to approve the installation of gates on any footpath or bridleway, provided the right of way can be used without undue inconvenience to the public. Similar provision could be made for byways, but the concept of ‘undue inconvenience to the public’ may need to be redefined for this context.

Carriage Gate

Spider says "Neigh" to gates on Byways

If this proposed change in the law goes through, byways and restricted byways all over the country will be at risk of being gated, with grazing animals introduced in locations that have never previously been gated or grazed. Horse riders and carriage drivers are at risk of losing many of their familiar routes as, even though the right to use the right of way remains, riders and drivers may not wish to pass through linear enclosures where sheep, cattle, pigs or horses may be present.

At present a landowner may apply for a gate on a footpath or bridleway under Section 147 of the Highway Act 1980 in the land is being used for agriculture. Currently, there is no provision in the Highways Act to install a new gate on a restricted byway or byway - for obvious reasons. The 'traffic' (particularly vehicular – whether horse drawn or motorised) on byways or restricted byways would be unduly inconvenienced by such gates. Imagine the outcry if gates were erected on the road outside your home! Horse riders and cyclists also would be unduly inconvenienced, not only by the gates, but from the intimidation by the grazing animals.

Unobstructed access to the highway (including byways, restricted byways, bridleways and footpaths) is enshrined in law. That is why it is necessary for landowners to apply to erect gates under the Highways Act 1980, and any resulting structures must be 'without undue inconvenience to the public'. But who decides what constitutes ‘undue inconvenience’?

Only a small percentage of rights of way are available to equestrians compared to the routes available to walkers, making the preservation of our unobstructed access to byways and restricted byways so critical.

It is vitally important that horse riders, carriage drivers and cyclists respond to the DEFRA consultation, objecting to this proposed change in the law. The decision makers and land managers who will be supporting this proposal will not be aware of the undue inconvenience gates cause to equestrians and cyclists unless we all provide them with our experiences!

Please circulate this information to all your bridleway group, equestrian and cycling friends and urge them to respond. Also lobby your local Parish and District Councils in areas where the gating of rights of way is a current problem. Closing date for response was 6 August 2012, but You can still lobby your MP.

The Fenland Bridleways response:

The Fenland Bridleways Association is a group of horse riders and carriage drivers located in the Cambridgeshire Fens, who actively support safe access to local bridleways and byways for our members as well as for the public by:

Undertaking maintenance tasks on rights of way;
Holding riding safety and social riding events;
Making formal applications to claim popular customary routes used by our members;
Being involved in the User Group Forum for the National Trust’s Wicken Fen Vision project.

In response to the Public Consultation members of the Association are particularly concerned about the proposal in paragraph 5.11 (Proposal 32) to allow ‘an owner’ to apply for authority to erect gates on restricted byways and byways in line with the existing provisions for their erection on bridleways and footpaths contained in Section 147 of the Highway Act 1980.

There is an extensive network of byways, known as droves, in our area, and these provide an excellent opportunity for access between local communities away from busy roads, giving everyone the opportunity to explore their local environment in safety and tranquillity. None of these byways are gated or grazed.

In 2006, as part of the National Trust’s Wicken Vision project, an attempt was made to gate and install cattle grids on Byway 14 in Reach, Cambridgeshire, to introduce grazing animals including stallions. The action caused an outcry, and the successful opposition to the gating of the drove was supported from all aspects of the local community.

In another location, on a permissive bridleway, our members have experienced the kind of obstruction caused by multiple gates provided by the National Trust as the model of the kind of equestrian access gates that they would like to introduce on rights of way across our area. With the security of livestock taking priority over public access and safety, these gates are difficult to use from horseback, involve conflict and intimidation by livestock particularly the stallions, and the route where they are located is now avoided by many of our members. We would not like to see the introduction of such gates and associated livestock replicated on our bridleways and byways.

Another problem with gated rights of way is the maintenance of the actual gates and their catches. Even if it is possible to get them installed correctly (not that the National Trust have managed to get even one complete set correctly installed as yet) they then require a schedule of checking and maintenance. This puts a burden on landowners who may be keen to pay for installation but subsequently find the time and money needed to keep them in a condition that does not effectively cause an obstruction more than they are prepared to give. Even the National Trust who state that they are dedicated to creating access and are part funded by grants of tax-payers’ money find it hard to keep their gates in useable condition. These problems mean that we feel it is best to resist gating any right of way unless it really is essential.

‘The lack of provision for byways to be gated is often a reason for claims being disputed by landowners, particularly where the right of way is at odds with the current land use patterns and this causes difficulty with livestock control.’ Consultation document Page 11

Our members have also had experience of claiming rights of way by making formal applications for Definitive Map Modification Orders. Orders made in good faith and supported by honest user evidence given by local residents are often challenged at public inquiry by legal advocates representing local landowners. Our Association does not have the financial strength to champion our member’s rights against this level of professional defence.

Where a claimed route is located near a conservation project area, problems also arise where the department within the highway authority dealing with the claim find that there is a conflict with a differing department within the same authority that is supporting the conservation project. This is also true of other funding bodies that on one hand encourage access to the countryside, and on the other hand support the very conservation projects that are causing the loss of so many customary routes for horse riders and carriage drivers.

Our members would like to request that DEFRA considers an amendment to rights of way law that would encourage equestrians to apply to the highway authority to upgrade footpaths to bridleway status where strong access objectives exist, where the route on the ground is suitable and the upgrading of status provides an additional and needed link to the local bridleway network.

‘Local authorities currently have powers to make public path orders “in the interests of the owner, lessee or occupier...or of the public”. But these powers are discretionary and it may be difficult for landowners to persuade authorities to act, even where strong land management reasons exist. Authorities may refuse to consider requests, or decline to make orders that they suspect might be controversial.’
Consultation document Page 19 paragraph 23

This would meet the objectives of your consultation to strengthen the access network away from busy roads and encourage the public to ‘enjoy the beauty and tranquillity of large parts of the countryside to which they would not otherwise have access’ far better than the proposed amendment to allow landowners to further reduce the available, unrestricted network by the introduction of gates and livestock on byways and restricted byways.

Highways law exists to protect and enhance the right of the public to free, unrestricted access to the highway by whatever means they have the right to travel. Changes to the law should not be made for the benefit of landowners seeking permission to alter the alignment of or add restrictions to any right of way.

As suggested in the scoping for the consultation, the Fenland Bridleways Association, as an interested group, would like to become further involved by inviting members of the Reform Projects Team to an informal meeting to experience first-hand the problems posed to riders and carriage drivers that are generated by the introduction of gating systems on existing rights of way, and by other changes to the network that are driven by the needs of landowners.

J. Covill Chairman, Fenland Bridleways Association

An individual response:

Regarding the consultation on the so called 'improvements' to the Highways Act, I would like to voice my strong objection to the notion that Public Byways and Restricted Byways could be gated for the convenience of the landowner. This will greatly hinder and impede the public from going about their lawful business of using the highway.

I particularly object to the notion that the concept of 'undue inconvenience to the public' could be redefined. This is clearly designed to inconvenience the public, so is not in the public interest and hence should not be allowed.

It is almost laughable to suggest that landowners will be keen to accept the creation of byways across their land with this provision. It also seems perfectly feasible to retain any existing gates under existing legislation if a new byway were to be created.

Please do not allow the propsed change (Proposal 32) to paragraph 5.11 of the Highways Act.

Another individual response:

Dear Sirs,

I am writing in response to your public consultation 'Improvements to the policy and legal framework for public rights of way'. I am particularly concerned about the proposal to amend Section 147 of the Highways Act 1980 to allow landowners to erect gates on byways and restricted byways.

I am an older rider, now with mobility problems, and I am unable to mount and dismount from my horse without the use of a specialised mounting block. Once mounted, I ride for miles on the local network of bridleways, byways and minor roads, where there are currently no obstructions. My quality of life is greatly enhanced by my ability to ride so extensively.

As part of a local conservation grazing project, a local riding route has had double sets of bridleway gates installed with self-closing hinges that close the gates with considerable force. Despite lengthy negotiations with the landowner, I find these gates are impossible to use when mounted, and dismounting to negotiate the gates and then remounting again is not an option for me. So I have lost the use of this route.

Now the landowner is seeking to install similar gates on bridleways and byways throughout my local area. When a Section 147 application for gates is made on a bridleway there is currently no requirement for the landowner of the County Council to consult users of the route. My understanding of the law is that as a member of the public I have the 'right to unobstructed access to the highway', while a landowner must seek 'permission' to erect a gate. The landowner making an application to install gates and the County Council who authorise the structures will not be unduly inconvenienced by the erection of gates on a bridleway, but the horse riders that frequently use the route will definitely be unduly inconvenienced. Once gates are erected there is no mechanism to withdraw the consent. So once gates have been erected, however much the riders may complain about the obstruction to their free passage, the gates will remain.

There is also the issue of introducing livestock onto routes that have not previously been grazed. Riding a horse through enclosures with loose grazing livestock always poses a health and safety risk. I would certainly not use any route where I had to open gates, ride through an area containing grazing cattle possibly with bulls, or horses possibly with stallions, and then have to negotiate more gates to escape from the enclosure. There would be too much risk to the safety of both myself and my horse.

If the current proposal to gate byways and restricted byways became possible under the Highways Act, horse riders and carriage drivers would lose the safe and free access that they currently have to use byways and restricted byways. Surely this is contrary to the intentions of your consultation to enhance the enjoyment of the open countryside by the public?

My experience of the local conservation project that is funded through various national government schemes, which is also supported by the local County Council, is that this consulation proposal to allow the gating of byways and restricted byways is entirely in the interest of the landowners and the grant funding bodies. The right of public free access to these routes is becoming secondary to the private needs of landowners.

'I therefore strongly object to the proposal contained inparagraph 5.11 of the consultation document'.

Under no circumstances should it be possible for an owner to apply to a highway authority for authority to erect new gates on restricted byways and byways open to all traffic, similar to existing provisions for the erection of gates on footpaths and bridleways. Where current land use patterns require livestock control, gates can be erected on the landowner's property boundary on adjacent sides of a byway or restricted byway, and used as required by the landowner to supervise livestock crossing the right of way without permanent and undue inconvenience to the public.

The definition of 'undue inconvenience' is very straight forward. The public has the right to free and unobstructed access on a highway that is a byway or restricted byway. Horseriders and carriage drivers in particular will always be unduly inconvenienced by new gates erected on highways as they would have to open, negotiate their way through with the horse and possibly a carriage, and then close the gates every time they wanted to pass - just as you would be unduly inconvenienced if new gates were erected on the road near your home that you had to negotiate every time you or your neighbours wanted to use the highway.

My family have been livestock farmers for generations with land either side of the local droves that are recorded as byways, and we would never have considered attempting to erect gates across the droves because of the risk of livestock escaping throu the unlocked gates as well as the liability for risk to the public. The safest place for livestock near a public right of way is safely enclosed on private property behind a locked gate.

Please will you acknowledge receipt of this letter?

Yours faithfully,

R Joy Fuller

Finally:

Dear Sirs

PUBLIC CONSULTATON: IMPROVEMENTS TO THE POLICY AND LEGAL FRAMEWORK FOR PUBLIC RIGHTS OF WAY MAY 2012
In response to the Public Consultation, I would like the following information to be considered in relation to:
STREAMLINING THE PROCEDURES FOR RECORDING PUBLIC RIGHTS OF WAY
PARAGRAPH 5.11

From your estimated nationwide total of public rights of way available to walkers (188700km)*, horse riders only have 22% (42100km) of the national network available to them, while carriage drivers have a mere 5% (9700km) of the national network available to them. Walkers also benefit from the availability of Open Access land.

The presence of a gate, or gates, on any highway is always an obstruction to horse riders and carriage drivers as the rider or driver needs to manage not only the opening and closing of the gates, but also manage their horse, or horses, and vehicles. Where a gate becomes badly maintained, perhaps with dropped hinges, faulty latches, or no mechanism for opening the gate while mounted, the gate becomes an unreasonable obstruction. When gates are fitted with self-closing hinges and spring loaded bolts, they are not only an unreasonable obstruction but also a health and safety hazard for all passing equestrians. There is plenty of national evidence of horrific accidents caused to horses and their owners from these types of gate fittings.

Section 147 of the Highways Act 1980 currently allows landowners to apply for gates on footpaths and bridleways. These are authorised by the surveying authority responsible for public rights of way in a given area. The surveying authority is under no obligation to consult local users of the route to be gated, and there is no required mechanism to advertise the proposed erection of gates. Often the first time horse riders are aware of the new gates is when they find their way obstructed by the new structures. Also, as the erection of gates usually involves the introduction of grazing animals, the presence of loose livestock within the gated area also becomes an obstruction as few riders are willing to ride their horses through enclosures where stock is present. Once a gate has been authorised, there is no mechanism to repeal the authorisation.

The Health and Safety Executive Agriculture Information Sheet No 17EW recommends
‘Wherever possible keep cattle in fields that do not have public access, especially when cattle are calving or have calves at foot.’

This recommendation is particularly important where the public access includes use by equestrians. Cattle by nature will gather and defend themselves with the presence of an unfamiliar animal such as a horse in their territory - while horses are fight or flight animals. When cattle gather up and begin to approach an unfamiliar horse in their field, the horse will quite simply turn tail and run, putting itself and the rider at risk.

The situation is worse if the grazing animals are horses. Loose grazing horses are more agile than cattle and will investigate unfamiliar ridden horses in their territory with much enthusiastic squealing and rearing. If a stallion is present, he may try to recruit a mare, or challenge and fight a gelding. This behaviour is natural to all horses, and even the calmest domestic ridden horse will revert to fight or flight behaviour in a situation of stress. Again, both the horse and the rider are put at risk. When grazing cattle or horses are present in a field crossed by a bridleway, the majority of horse riders will not use the route, thus reducing the local availability of an off road route and forcing the horse rider onto the vehicular highway, contrary to your ambition described below.

At present very few byways and restricted byways are gated. Where gates are lawfully present, these routes are usually in areas where open grazing is customary, such as on commons and open moorland. These gates are included in the Definitive Statement for the route.

Most byways and restricted byways are ancient transport routes, and are usually delineated by banks, stone walls, ditches, hedgerows or trees, depending on the character of the location. Very few historic byways and restricted byways are gated or have customary grazing as this would conflict as their use as a highway, even if that use is in decline.

Any cases where a historic route has been gated for the control of livestock before a formal application to claim a byway or restricted byway is made, those gates should be added as a limitation in the Definitive Map Modification Order as made by the surveying authority as long as the erection of those gates does not constitute the date of challenge.

Defra say in the consultation document:
"Our ambition is to strengthen the connections between people and nature. We want more people to enjoy the benefits of nature by giving them freedom to connect with it. Everyone should have fair access to a good-quality natural environment. Clear, well-maintained paths and byways are important to give people access to the natural environment and can be enjoyed by cyclists, walkers, horse riders and carriage drivers. The access network enables people to get away from roads used mainly by motor vehicles and enjoy the beauty and tranquillity of large parts of the countryside to which they would not otherwise have access."
Consultation document page 8

Any introduction of gating of byways and restricted byways to support modern management, will conflict with the right of the public to freely pass along the highway, and would cause obstruction particularly to horse riders and carriage drivers, reducing their already limited access to safe, off road access even further. The right of free passage along the highway by the public must always take precedence over convenience for land owners.

So in response to Question 6: Are there any particular issues associated with these proposals which have not been captured and which we should consider? Please take note:

This proposal to allow gating of byways and restricted byways will introduce undue inconvenience to carriage drivers who only have access to 5% of the rights of way network.

As there is no consultation requirement, there will be no opportunity for horse riders and carriage drivers to raise objections to the introduction of gates on byways and byways.

There is no mechanism to repeal authorisation if the free passage along a byway or byway is found to be unduly inconvenienced.

The order making authority should include any customary gates where present on a claimed byway and restricted byway.

There will be serious health and safety implications where gates and loose grazing livestock are introduced on enclosed routes used by horse riders and carriage drivers.

The right of free passage along the highway by the public must always take precedence over convenience for land owners. As a carriage driver with mobility issues, this proposed change to Section 147 of the Highways Act 1980 will result in many local byways and restricted byways being unusable by myself and many of my carriage driving acquaintances, contrary to the intentions expressed in the consultation document. Those taking the decision to change the law are unlikely to be affected by the consequences of the proposed change.

Yours faithfully

S M Ballard