Dear All

I am having an extremely frustrating time dealing with a Rights of Way issue (9 months so far). In summary I am dealing with an uncooperative council who have applied a "presumed legitimate" status to all unauthorised barriers in their area and wont consider any formal application for their removal. I am writing to you as a perceived opinion former and "ROW user group".

My Council have indeed invited me to take out section 63 proceedings if I want any stile removed. Unfortunately they are well aware of the frailty of that process and that any section 63 challenge to remove an unlawful stile is unlikely to be successful. This is because of the additional burden of proof required in HA 1980 S130B (4) (c) i.e. that any obstruction must be shown to "significantly interfere with the exercise of public rights over that way". My legal advice is that it would be difficult to prove that an unauthorised stile caused significant interference when there are literally thousands of similar legal stiles which cause the same interference.

I am currently pursuing the presumed legitimate issue through the LGO and the Councils Monitoring Officer. As regards the effectiveness of section 63 I am coming up against a brick wall with DEFRA who are clearly applying the sod it factor i.e. we made the decision to issue section 63 as it is, and nothing will persuade us to change it. In a nutshell DEFRA expected up to 6000 section 63s to be issued in the first year but only 391 were issued and only 5 reached the Magistrates Court. Their clear interpretation of these figures is that Councils are reacting to FORM1s being issued and the low Magistrates Court figure clearly demonstrates that the policy is working as intended. This may well be the case but it is not a lot of help me when dealing with my situation i.e. there is a loophole.

Having written to DEFRA and complained about the significantly interferes bit part of their reply reads when talking about the 391/5 figures

"The anecdotal evidence indicates that local highway authorities are responding to section 63 notices by removing obstructions and therefore section 63 cases are not ending up in the Magistrates Court. I have not been approached by an Rights of way user groups regarding the problems you raise, indeed there has been praise for the success of the policy." At the moment we are still busy implementing the remainder of the provisions of Part 2 of the Act but the rights of way provisions in the Act and their relative success will be formally reviewed in due course and I will consider what further legislation or guidance is required.

While I have already produced ample evidence to DEFRA about the opinion of some Groups I do not want to waste any opportunity to accept any challenge DEFRA offers. Now it may well be that currently nothing will persuade them to change their policy or issue special instructions but I want to make damn sure that when the "formal review" they have promised actually happens that they will have received adequate feedback upon which to consider a change.

What I am therefore asking your organisation to do is send a letter as per the attached specimen and copy it to me. Please amend as you see fit. Should you wish to send the correspondence by E mail the addresses are jim.knight@defra.gsi.gov.uk johnives@blueyonder.co.uk

or by Mail Mr Lewis Mortimer Assistant to Jim Knight DEFRA Minister Nobel House 17 Smith Square LONDON SW1P 3JR

John Ives 55 Glebe Road Long Ashton BRISTOL BS41 9LJ

In the meantime if any of you have access to legal advice could comment on whether the ability of a council to presume any unauthorised stile as legitimate is illegal (given the provisions of the HA 1980) then I would be obliged. I understand that there is no provision for it in the Highways Act but does that make it illegal or just "ultra vires"

If any of you would like to discuss please ring on 01275-543198 or E mail me John R. A. Ives

SUGGESTED DRAFT

Dear Sirs I have become aware of some correspondence between your offices and Mr John Ives 55 Glebe Road Long Ashton BRISTOL BS41 9LJ under your reference RA 1663.

In his correspondence Mr Ives eludes to the fact that the provisions of HA 1980 S130B (4) (c) i.e. .that any obstruction must be shown to "significantly interferes with the exercise of public rights over that way" makes any Section 63 challenge through the Magistrates Court unlikely to succeed as it is unclear what "significantly interferes" actually means.

In the case of an unauthorised stile it would be the clear advice of this organisation not to proceed because it would be difficult to prove that an unauthorised stile causes significant interference when there are literally thousands of legal stiles which cause the same interference. This loophole means that should a council decide to contest the validity of any barrier in particular then there would be no legal remedy for a member of the public and this cannot be the intention of the legislation.

In our considered opinion this could be one of the reasons why there has been such a low take up on Section 63 cases, although on the positive side we are aware that many Highways Authorities openly embrace the intentions of the new provisions. Sadly this appears not to be the case with Mr Ives Council.

We would welcome some clarity as to what the burden of proof is to establish what to "significantly interferes" e.g. is it something greater than de minimis.

Regards