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FAQs
Frequently Asked Questions (42 of them: you can't say this isn't thorough). |
Q1:
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Is the footpath in question obstructed and unusable by the public?
No, it has always been freely accessible to the public. The main gates have been locked open for 2 years, and at all times there has also been a pedestrian gate and an alternative permissive path. |
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Q2:
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Is the footpath wide enough for pedestrians to pass?
Yes, the width is 4.2 metres. |
Q3:
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Is Planning Permission for the gates and pillars required?
No, the local planning authority deemed the structure as permitted development, no enforcement action has been taken and the structure has been in place for more than 4 years.
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Q4:
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Is the footpath on private land?
Yes. |
Q5:
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Is the footpath on the Definitive Map?
No, surveyors agreed that the line of the footpath on the Definitive Map does not pass through the gates but stops short of them. |
Q6:
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Is the footpath described in the Definitive Statement
There is a reference that the footpath continues to join the County Highway. |
Q7:
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Is the width of the footpath recorded anywhere?
A: No. |
Q8:
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Is it a footpath that has been used for many years?
No, the Parish in 1949 recorded Barcroft Lane as 'overgrown and impassable' and the area in question was never claimed as a footpath. |
Q9:
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Do the landowners resist its usage by the public?
No. The landowner has always encouraged walkers please refer to www.barcrofthall.co.uk . Walking Groups and individual ramblers have commented that the weekly maintenance and presentation of the footpaths of Barcroft Hall are some of the best in Somerset. |
Q10:
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Are there other examples of gates to farm entrances with footpaths passing through?
Yes , there are many examples.
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Q11:
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Are there examples of gates being across a footpath and allowed to be locked open by the Rights of Way Department?
Yes, the Rights of Way Department recently gave permission for a gate to be retained locked open as 'ornamental' although it was over a footpath with no need for stock control. This example is within 300 yards of the Barcroft Hall gates. |
Q12:
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Is there a statutory procedure for dealing with footpath obstructions?
Yes, DEFRA produced a system allowing members of the public to report what they consider to be obstructions under Section 130 of the Highways Act. |
Q13:
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Has the Section 130 DEFRA process been followed for the alleged obstruction at Barcroft Hall gates?
Yes, in 2006 a member of the public submitted a Section 130 'Form 1' to Somerset County Council (SCC). 'Form 2' was issued to the landowners notifying them to remove the main gates. 'Form 3' was issued to the complainant from SCC notifying that they had instructed the landowner
to remove the alleged obstruction. SCC subsequently issued a formal notice on the landowners. |
Q14:
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What was the outcome of the DEFRA process?
The landowners did not agree that they were obstructing the footpath and therefore SCC applied to Yeovil Magistrates Court for an order to remove the obstruction. |
Q15:
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Were SCC successful?
No, the magistrates considered that the gates and structures did not constitute beyond reasonable doubt that they formed an obstruction and ordered that handles were installed on the main gates to allow members of the public to open them. The owners were found technically to have willfully obstructed the footpath by virtue of an electric system but given an absolute discharge and commended on their high quality footpaths. |
Q16:
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Did SCC appeal the decision?
No, upon legal advice they did not. Subsequently they notified South Petherton Parish Council that they had discharged their duties. |
Q17:
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Did the owners comply with the Magistrates order?
Yes, the order was complied with immediately, however SCC officers reported that it had not been.
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Q18:
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What subsequently happened?
There was a meeting called by the Rights of Way (ROW) Officers of SCC to be held on September 14th. 2006 at a restaurant in Taunton, inviting District and County Councilors, the Planning Enforcement Officer and others. It was resolved at that meeting that minutes should not be taken and recorded. |
Q19:
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Why has this issue continued?
After the Magistrates Order, Mr. Kidner (currently the Parish Paths Liaison Officer for SCC) was dissatisfied that SCC were unsuccessful. On the same day as SCC held the meeting in Taunton Mr. Kidner served a notice on SCC applying for a Magistrates Court Order to remove the same obstruction. Mr. Kidner had been previously de-coopted from the local Parish Council for harassment of landowners. Mr. Kidner requires a footpath almost 9 metres wide. |
Q20:
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Does Mr. Kidner represent the Parish Council in this matter?
No the Parish Council is neutral in this matter. |
Q21:
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Is there local support for the landowner?
Yes there is much support demonstrated by a petition and press. |
Q22:
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Is the process now started by Mr. Kidner and SCC correct?
DEFRA say that if after a 'Form 1' has been served a decision on a obstruction subsequently ends up being considered by a Magistrates Court, then the purpose of the legislation is not that the same legislation should subsequently be used to resolve the same issue, this would clearly serve no purpose as the Court will have already made a ruling on the obstruction. SCC should have defended their position to discharge their duties.
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Q23:
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Have SCC attempted to physically assert their statutory power?
Yes. On two occasions they have arrived on site with contractors, police etc. to demolish the structure but have gone away without doing anything. |
Q24:
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Have SCC granted lawful authority for the gates?
Yes. The court found that they did. |
Q25:
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What has happened subsequently?
There have been two court cases the result of which has been an order for SCC to remove the central pillar (1 square metre approx) and gates and one light and to put up a waymark sign. |
Q26:
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Could these court cases and their inherent cost to taxpayers been avoided?
Yes, the complainant Mr. Kidner agreed in 2008 during the appeal that the land owners suggestion to continue to keep the gates permanent locked open was a 'sensible solution' and acceptable to him. This was based on his assessed risk of legal costs. |
Q27:
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Why did SCC therefore continue?
SCC realised that without Mr. Kidner's involvement they were unable to legally progress with the matter on their own as they had not appealed the original Magistrates Order, that opportunity had passed. Therefore in order that the case continued they agreed to indemnify the person who was prosecuting them, Mr. Kidner, from any costs awarded against him.
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Q28:
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What is the nature of this indemnity of Mr. Kidner?
Mr. Kidner proposed that, should SCC disagree to settling the matter on the basis of allowing locked open gates and prolong the action he would need confirmation that if the landowners costs are to be paid by the respondents (Mr. Kidner/SCC) they, SCC, would not resist an application that SCC should pay these costs on it's own in totality. |
Q29:
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What does this indemnity mean?
In other words to sustain a legal case that SCC could not pursue alone taxpayers money would be used to indemnify the person who instituted proceedings against them. |
Q30:
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Is Mr. Kidner being indemnified at the High Court and subsequent future appeals?
We don't know for how long. Despite requests from ourselves, walking groups and other members of the public, SCC officers refuse to comment on this and be transparent with Council Tax expenditure.
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Q31:
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Is this indemnity normal practice?
The Audit Commission are currently investigating the situation subsequent to a complaint made by a member of the public.
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Q32:
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What are the future costs risks to the parties?
The cost risks heavily outweigh the practical benefit. The losing party could be ordered to pay all costs in the cause. |
Q33:
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What are the levels of legal costs so far?
The costs have been increased substantially as there are three parties involved. The indemnity arrangements and the fact that Mr. Kidner has used a renowned QC on a 75% extra success fee basis has not helped to contain expenditure. The current total legal expenditure is around £500,000. |
Q34:
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Have the landowners tried to resolve the issue?
Yes. The landowners have repeatedly asked for meetings with SCC officers to resolve matters but have been consistently refused. In addition meetings with arbitrators have been refused. |
Q35:
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Have SCC Officers offered a solution?
Yes. SCC Officers met a prospective purchaser (and their legal agents) of the property when it was for sale and confirmed in writing a solution which included a 'stopping up' order. |
Q36:
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Have SCC funded any footpath creation or maintenance at Barcroft Hall?
No. See our Balance Sheet. |
Q37
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Have SCC Officers received other Section 130 Notices for the same alleged obstruction?
Yes. SCC Officers claim they are in possession of 25 other Section 130 Form 1 notices, but this figure varies. To date no Section 130 Form 2 notices have been served on the landowner under the correct procedure. This invalidates the obstruction notice by virtue of timescale. |
Q38:
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Will SCC Officers inform the landowners of any other requirements they have?
No. SCC Officers instructed a full survey of the landowners land holding at a cost to the taxpayer of £7500 but refused to tell the landowner the results or instruct them of any other requirements despite saying otherwise. |
Q39:
A: |
Are there other examples of blocked footpaths in the area?
Yes. A report was issued to SCC Rights of Way Officers in May 2005 notating over 200 examples of footpath issues and over 40 complete obstructions. No reply was issued until November 2007 and many of these obstructions still exist. |
Q40:
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Is there a procedure for SCC to alter the width of a footpath?
Yes. SCC can create a 'stopping up' order. |
Q41:
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Are there examples of SCC receiving the DEFRA section 130 forms for other obstructions?
Yes, but they have been ignored. |
Q42:
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What are the ramifications of this legal action?
The impact will be threefold.
- The DEFRA system can be circumvented and ridiculed. It will mean that if a landowner is taken to a Magistrates Court by a Council for an alleged obstruction under the Section 130 process the Magistrates Court Order can be disrespectfully ignored.
- It will place all Councils in an untenable position in that they will be subjected to high legal costs defending any application made by any extremist who insists that all footpaths must be cleared in totality to a width determined by that complainant. A 'scorched earth policy'
- Relationships between the Councils and Landowners would deteriorate accordingly when it is known that SCC supported a rambler to prosecute them.
See also Consequences (Bristol Gates etc) |
