Opposing diversions of old routes to historic buildings.

This article is from Signpost, Autumn 2013

A family purchases an historic building in a rural location. The building was used as a mill but is now occupied as a residence. There is a public footpath passing through the garden close to the property. The new owner applies to the local authority to divert the path to increase the privacy and security of his family. The diversion will have a firm surface and is of similar gradient to the existing path. The extra distance to be walked in using the diversion is negligible in the context of a rural walk. Despite opposition from some local residents and footpath groups the local authority make the diversion order.

The objectors put forward a number of arguments to justify their case. Firstly they argue that the applicants for the diversion knew of the existence of the footpath when they bought the property, so it is not legitimate for them to expect it to be diverted. Secondly, they claim that if the diversion is allowed this would set a precedent and encourage other owners to apply for diversions of paths near to such properties. Thirdly it was claimed that the existing path was an historic route, where one is walking in the footsteps of many previous generations. One objector claimed, ”Delight stems from our awareness that we are following paths walked by our ancestors for hundreds of years.”

Are these relevant matters which can be taken account of in deciding whether the order should be confirmed? This scenario was the factual background to a high court case brought by the Ramblers’ Association last year to challenge the decision of the planning inspector who had confirmed the diversion order after holding a public inquiry.

The court refused to give any weight to the fact that the applicant for the diversion had purchased the property knowing of the existence of the footpath. There is no law barring a person making an application where they have purchased the property with knowledge. Indeed that would normally be the position that appertains.

However the other two arguments of the objectors were accepted as matters which could be legitimately argued to oppose a diversion order. The judge recognised that there may be circumstances in which a case is so identical to another that it would raise issues of consistency in the application of policy for different conclusions to be reached and that an accumulation of such decisions could be seen as harmful. However there was no evidence suggesting that this could be applied in this case. The historical integrity of the route was also a pertinent factor in considering whether a diversion was expedient but there was insufficient evidence that the definitive path at issue was an unchanged historic route, indeed a twentieth century OS map showed a different route to that on the definitive map.

Thus whilst the case was lost by the objectors the court confirmed that with appropriate evidence a diversion may be opposed because it would create a undesirable precedent affecting other cases and that the original route is of historical significance. This case will thus help the Society in trying to preserve old tracks and places to which they lead, which can produce that “undefinable uplift of spirit”, referred to by another of the objectors in this case.

Terry Norris

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