HEDGES ADJACENT TO A HIGHWAY OR PUBLIC RIGHT OF WAY

Postby mr sheen » Wed Aug 25, 2010 9:04 pm

There is a difference between what the public have the 'right' to do and what is also 'allowed' - the right is to pass and repass (with prams, wheelchairs etc is assumed) but are 'allowed' whilst exercising the right to pass and repass to stop to look at the view, rest, take a photograph etc thus preventing the landowner from moving them on.
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Postby Caddie » Wed Aug 25, 2010 11:24 pm

We have two public footpaths going through our rural land - one very close to our house and to all intents and purposes through our garden and the other less so but one which people tend to stop and look at our house and its environs while we are eating outside. At times we feel like some sort of living exhibit.

Most of the footpath users are pleasant and responsible people with whom we happily exchange pleasantries. They respect our requests to keep their dogs on a lead. The ones who go through shouting and screaming with dogs and children running riot, dropping litter, stealing wild and cultivated flowers / plants / wheels off our trailer / heating oil and tresspassing away from the path are a pain and have no regard at all for the special peace and tranquility of the area. As for the cyclists...well...... many of them think they have a God given right to go wherever they like just because it's physically possible....never mind that cyclists have been the cause of two accidents involving toddlers being knocked down because they pedal along far too fast and people cannot hear them coming.

The subject of public footpaths can be a thorny issue for landowners - not because we don't wish the public to use them (although I cannot deny that that has some appeal:wink: ) but because of the way in which the LA's see their wholesale promotion as a cheap way to meet the health agenda of the government. Until comparatively recently, many rural public footpaths were just a walking route from A to B for the locals. Almost overnight they have become the equivalent of tourist attractions and are advertised as such to people who know diddley squat about rural life. There is no preparatory thought given to how these extra people need to be looked after - they complain about lack of car parking, dog waste bags, and loos, the mud, that the tracks are not paved, that there are nettles at the side of the path. ........ The paths are regularly used as running and cycle tracks - which raises the question about who is liable if a runner breaks an ankle on uneven farm track or if a cyclist comes off their bike and cracks open their skull or if the latter knocks down the former. Don't get me wrong - I am not talking about the Rambler's Association here - most of whose members are very responsible and considerate (if a little visually curious about our house!) and with whom I am working to to get the cyclists stopped for safety reasons.

Mr Ives - this man has a perfect right to screen off the view from the public footpath with a hedge in the interests of privacy - the custodians of land through which the paths go are not there to provide entertainment for the passers by like animals in a zoo...my view is that he should not have to go to the expense of doing this. You have access to miles and miles of footpaths with views, so please stop fussing in such a petty way about what, in the scheme of things, can only be a tiny stretch.
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Postby Sudynim » Thu Aug 26, 2010 1:27 am

mr sheen wrote:There is a difference between what the public have the 'right' to do and what is also 'allowed' - the right is to pass and repass (with prams, wheelchairs etc is assumed) but are 'allowed' whilst exercising the right to pass and repass to stop to look at the view, rest, take a photograph etc thus preventing the landowner from moving them on.


If you're saying that a walker on a footpath does not have a "right" to stop and take a photograph then I think you're quite wrong.
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Postby mr sheen » Thu Aug 26, 2010 8:57 am

The walker using the path to pass along can stop and take a photograph as I said he is allowed to do that, but when you get down to the technicalities of the legal basis of PF's the origins of them is important to see how they developed to distinguish between what are 'rights' and what has become considered acceptable as a natural part of passing and repassing in this day and age.
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Postby JOHN IVES » Thu Aug 26, 2010 9:35 am

Dear Caddie
After reading your posting I felt for a brief moment "well how do I answer that", then I of course realised that the problems you detail are not caused by the presence of a PROW but by society itself, as we know it as a whole. You should try living in a city.
I admit I am a campaigner who seeks to improve the network generally but there is only so much one person can do when dealing with authority. However in the case of path orders we have a legal right to object and then you realise how widely the the legal tests/principles of HA 1980 s119 are ignored. Typically farms are being bought for purely residential purposes and the first thing that happens is that they try and boot any PROWs off their land. I am glad to say that Councillors are now becoming better informed and are starting to question what has gone on previously ie what I call diversion on demand. Yes I agree the issue of the hedge is in the big scheme of things peanuts but it represents another principle to argue. Sometimes stands have to be made (just Google Barcroft Hall) where costs got up to a million. I am not anti landowner just pro public.
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Postby Clifford Pope » Thu Aug 26, 2010 10:19 am

Caddie's post seems to me to be a very reasonable assessment of the situation, with a careful balance of the rights of both the user and landowner.

We are in a similar position, but the ROW happens to be a small country lane maintained by the council - ie a road.
It is indeed enclosed in a green tunnel. In fact that is one of the beauties of our situation - one approaches down a winding shaded tunnel and then suddenly emerges into an open space in front of the house on one side of the road and an old outbuilding on the other.
We have an obligation to cut the sides of the hedges and to maintain the overhanging height clearance, and were indeed once served with a notice by the council because the roof of the tunnel was becoming restricted - it has I believe to be a minimum of 16 feet.

I don't mind people stopping briefly to take a photograph, as some do, but draw the line at those who think they can park in our garden, or as one man and his young daughter were doing, stripping both sides of the lane of primroses for some reason.
The classic, and quite amusing episode, was when we had a succession of cars on a Sunday treasure hunt, people wandering about looking for non-existant clues as if in a public park.
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Postby JOHN IVES » Thu Aug 26, 2010 10:28 am

Dear Clifford
I agree re Caddie and I only wish most landowners were as reasonable as he is. However, occasionally when disputes occur you have to resort to the law or at least argue your case with whatever argument you have. In this case the landowner has a perfect legal right to plant his high hedge. What I am saying is that the public has an absolute right to say no if that is the case then we dont have to accept you diversion application, then Councillors decide. In this context it must be remembered when it comes to PROWs landowners have no rights (unless agreed) only responsibilities.
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Postby JOHN IVES » Sat Sep 04, 2010 5:17 pm

Mr Sheen
Interetsing quote re rights and "allowables" from Herrick v Kidner

In Herrick v Kidner and Somerset CC (2010), Cranston J said (obiter) that the authorities establish ‘a number of principles with regard to an obstruction of the highway: first, members of the public are in general entitled to unrestricted access to the whole and each part of a highway; secondly, their right to such access is principally to pass and repass but it is also to enjoy other amenity rights; thirdly, those other amenity rights must be reasonable and usual and will depend on the particular circumstances; fourthly, any encroachment upon the highway which prevents members of the public from the enjoyment of these access and amenity rights is an unlawful obstruction; fifthly, the law ignores de minimis, or fractional obstructions; and sixthly, a highway authority cannot deprive itself of the power to act against an unlawful obstruction by refraining from exercising its statutory powers against it, or by purporting to give it consent.’ (Para 33.)
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Postby missellie » Thu Oct 07, 2010 8:31 pm

Hi Clifford Pope

I notice you refer to hedges requiring an overhang clearance of a minimum of 16'.

I see that this is in regard to a public right of way but does the same rule apply to a private RoW?

Many thanks
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Re: HEDGES ADJACENT TO A HIGHWAY OR PUBLIC RIGHT OF WAY

Postby pilman » Wed Dec 22, 2010 3:56 pm

A "road" can be used by high vehicles so 16 feet may well be reasonable, so if there is a private right of way for all vehicles what height will be required if the removal van needs to access the dominant tenement.
I would guess that a removal van is probably the tallest vehicle that will have such a need, unless a fire appliance with a ladder already extended is ever contemplated.

A private right of way on foot would not require such a height to be kept clear.
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