Up-dated 27 July 09

The BBT has for over two years now spearheaded the push to get 'structures' properly specified in orders. We welcome the latest draft of defra's 'Guidance', but not the ongoing delay in getting this important issue sorted out. This file is a recent round of correspondence between BBT, defra and the Planning Inspectorate. Any authority considering making an order might wish to take notice of the issues discussed? If anyone thinks that defra or BBT is wrong, do please tell us where and why.

Inclosure:

Help needed urgently for court case: does anyone have, or know about an inclosure award, that required awarded roads to be repaired ratione tenurae? If yes, please contact Colin Seymour at jaycee3391@live.co.uk or via BBT. Many thanks.

‘Diversion by means of creation orders’: why Circular 1/09 is wrong.

It is now quite common – and increasingly so – for highway authorities to seek to effect what are de facto diversions of routes by means of concurrent creation orders under s.26 of the Highways Act 1980 (sometimes creation agreements, s.25) and extinguishment orders (s.118).
This practice is certainly valid in two circumstances, firstly where there is a need to divert the terminus of an existing path, which terminus is not on another highway; and secondly, where the process brings a right that did not exist before – e.g. a bridleway in place of a footpath. There may be other valid circumstances.
Current government guidance, in Circular 1/09, and in Advice Note 9, sets out issues to be considered and requirements to be satisfied in the confirmation of ‘concurrent orders’. In respect of concurrent orders that seek to give effect to the diversion of an existing route, case law suggests that this guidance is wrong, and that such concurrent orders cannot properly be used. This paper sets out why.

The whole question of 'easy open gates', British Standard 5709, and the Disability Discrimination Act has replaced 'path widths' as the 'current contentious topic', with the Byways and Bridleways Trust being criticised by some highway authorities for sticking out for good gates, properly recorded. B&B's editor, Alan Kind, has drafted a further paper on BS 5709, the DDA, and their impact upon diversion and creation orders. It can be found in our Law and Practice section - click the easy-open gate.