1 Almost ten years ago Brian and Denise Herrick bought their dream home after a life in industry with a view to enjoy the good life. They worked hard and renovated the property, refurbished the farmland and created a beautiful footpath network to be enjoyed by all, including the disabled who now had access with the removal of stiles and other obstacles. Wildlife areas were created which the RSPCA now use as a waterfowl release protection site for swans and ducks which have been in distress. Brian became a parish councilor and chaired the local village plan, they made plenty of friends and harmony reigned.
2 Then Rear Admiral Peter Kidner retired and came home. Mr Kidner took personal exception to the Herricks and embarked on what is described locally as a personal vendetta together with a discrediting campaign that would change everything.
3 He demanded an 8 metre wide footpath, the same width as two lanes of a motorway, at their farm entrance where they had erected gates. He detested the gates saying they despoiled the countryside and he disliked the owners. He wrote an excessive number of malevolent letters to the local highway authority and the local MP.
4 He then started the correct process for reporting a footpath obstruction as defined by DEFRA. The council capitulated and took Mr.Herrick to the magistrate’s court as required by DEFRA.
5 The magistrates praised Mr.Herrick on his excellent footpaths but found him guilty of a technical obstruction, asked him to put handles on the gates and gave an absolute discharge. The council wrote to Mr.Herrick saying he could keep the gates ‘preferably open’. The Herrick’s complied and the gates are permanently locked open allowing free and unfettered passage for all walkers. See Yeovil Magistrates Court Register.
6 But Mr Kidner was not satisfied. It is believed that Mr Kidner and the council then agreed a way forward to try yet again to take down the gates. Mr Kidner sued the Council for not doing their duty and they did not to defend their position.
7 The court did order the council to take down the gates and the structure three metres either side of the centre line of the gates. This would mean removing two pillars and cutting one gate down the middle.
8 Mr. & Mrs.Herrick appealed to the Crown Court but the council still did not defend their position against Mr Kidner.
9 Mr Kidner then procured cover for his own fees by contract with Zermansky & Co. (lawyers organised by the Open Spaces Society with whom Kidner is local representative) on a ‘no win no fee basis’ on a success fee of 75% above the basic fees should he be successful. The Ramblers Association then gave Kidner £5500. (Mr Herrick is also a member), and the Open Spaces Society gave another £10,000.
10 Ten months before the appeal Mr Kidner got cold feet. He was not willing to progress because of his exposure to Herrick's costs should he lose. The Council then agreed to secretly indemnify him for all costs should he lose to sustain the action.
11. Mr Kidner won the action (remember the SCC were now indemnifying the chap who had previously sued them: is this how lawyers normally operate?) – which must be some sort of record) . The council were now ordered to demolish the centre pillar only, take the gates down and put up a waymark sign.
12 Both the council and the Herricks have appealed to the High Court. The council are appealing for a more severe punishment to take down all the pillars and not to put up the waymark despite previously agreeing otherwise. (A footpath sign was belatedly erected late August 2009).
13 The Herrick's are appealing on the basis that there is no significant obstruction on the useable width of the footpath based on the Appeal Judgment which stated ‘ We found there to be a general consensus that the actual useable width of the footpath was not reduced by the erection of the pillars, which were sufficiently wide apart to accommodate the previous useable width of the footpath at that point’
14 Total costs so far are in the region of £500,000.
15 Latest developments. A two day hearing took place at the High Court,
London January 26-27th, where in essence the argument revolved over two
words "significant interference." Mr.Kidner and Somerset County Council had to prove that a rambler
walking along Barcroft Lane was obstructed by not being able to use the
full legal width of the path. Like many other examples in the country,
there are streams and gateposts that are never walked upon because of the impracticality of doing
so (in this case you'd walk into the stream!) The judgment was handed down on 17th February (see here for the full transcript). You will see that the judge found that they were "psychologically intimidating" and that the structure "significantly interferes with the exercise of public rights of way".
|
