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Colin B Bennett

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"Eugene Suggett" <EugeneS@london.ramblers.org.uk>"'Colin Bennett''' <colinbbennett@palmeira.org.uk>14 October 200512:33RE: Strasbourg

Dear Colin

I am glad to learn that yesterday's e-mail assists. Please feelfree toquote from it in any way which seems appropriate (I shouldhave made thatclear yesterday). I do not think it matters much whether youuse the word

'-r. 'highway' or 'footpath' provided it is clear from what you writethat thelegislation applies in either case.

I do not think that any organisation has published anythingabout the case;alii know of is the report in the (I think it is called) BrightonArgus.

With good wishes

'-" Eugene

Eugene SuggettSenior Policy Officer (Rights of Way)The Ramblers' Association - The charity working for walkersLose calories in your lunch hour - 20 mins is all it takes. Findout moreat: www.useyourpaths.info/benefits.htmlThe Ramblers' Association (RA) is a registered charity(number 1093577) anda company limited by guarantee registered in England andWales (number

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4458492). Reg:stered office: 2nd Floor, Camelford House87-90 AlbertEmbankment London SE1 7TW, telephone 020 7339 85C:fax 020 7339 8501.

Original Message-----From: Colin Bennett [mailto:colinbbennett@palmeira.org.uk]Sent: 14 October 2005 12:20To: Eugene SuggettCc: Kate AshbrookSubject: Re: Strasbourg

'-I' Dear Eugene

You have come up trumps. This is a brilliant summary. Ihaven't digested ityet but will do over the weekend as I prepare my Letter ofIntroduction toStrasbourg. Have I your consent to use anything in your e-mail in my Letter.

One small point: St James' Place is a Highway like any otherHighway in the

'-' City. I wonder if I should use your word 'Footpath' for it.

I am copying this to Kate and will copy you in my reply to here-mail. Canyou confirm that the RA has not published anything aboutthe St James' Place

case. Do you know if anyone has?

Are you aware of a website called Planning Aid?

Best wishesColin

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My telephone number is : +44 (0) 1273 325311Skype ID : colinhoveMy main email address iscol inbben nett@palmeira. org .ukBTW: my blog is bennettsworld.blogspot.comPlease use black font if you can (when replying)!

Original Message -----From: "Eugene Suggett"< EugeneS@london. ra m biers. org. uk>To: "'Colin Bennett'" <colinbbennett@palmeira.org.uk>,Cc: "Kate Ashbrook" <osshq@aol.com>Sent: Thursday, October 13,2005 12:07 PMSubject: RE: Strasbourg

> Dear Colin>

> I hope that the contents of this e-mail will provide thenecessary basis> on> which to lodge your appeal to Strasbourg. The legal advice

'-' we obtained> earlier this year was oral advice given at a meeting of theRA's Legal> Panel> at which the Brighton and Hove order was discussed. Wedid not get formal> written advice at the time and so I hope that this summaryof the Legal> Panel's meeting will assist:>

> The Ramblers Association's Legal Panel met on 20 May2005 to discuss

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> various> matters. They included the confirmation of an order madeunder section 257> of the Town and Country Planning Act 1990 to stop up thefootpath known as> St James' Place, Brighton. The order had attracted anobjection by Mr> Colin> Bennett; because of the objection, the order-makingauthority--Brighton> and> Hove Council--had been obliged to submit the order fordetermination by"> the> Secretary of State, who appointed Inspector HeidiCruickshank to hold a> hearing.> Section 257 empowers a council to make an order to stopup a> footpath or bridleway where it appears to them that thestopping up is> necessary to enable development to be carried out inaccordance with

'-' > planningpermission.In practicethis usuallymeansthatplanning> permission> has been granted for some solid obstruction like adwelling-house--ie, a> bona fide development--which would unlawfully obstruct aright of way if> the> right of way were not first extinguished.> In the present case the 'development' for which the councilhad> given its planning permission was nothing other than acast-iron locked

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> gate> to be placed over the path. It was the gate itself, with norelated> buildings or any other thing. So the planning permissionwas something of>a> fictional device for closing the path when the standard testfor closing a> path--the one set out in section 118 of the Highways Act1980--could not> be> met by the council.> The Ramblers' Association sees this as a misuse of

,.., highway law--and> the term 'highway' includes footpaths and bridleways forthese> purposes--which Parliament can never have intended.Parliament fiercely> guards the public's right to use the highway. It has made itan offence to> obstruct free passage along the highway. It is an offence toput a gate,> however easily opened, across a highway, except incertain circumstances.> Parliament has also made it an offence in mostcircumstances to damage the> highway, to make unauthorised markings on it, to depositany thing on it,> to> pitch a booth on it or place a rope across it. All thisillustrates the> importance attached by Parliament and the courts to theparamountcy of the> protection of the public's right against any competingprivate interests.> And so does the fact that, under the Highways Act 1980,

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Parliament> allows no stopping-up of the highway save for by an ordermade under> section> 118; and section 118 contains no less severe a test thanthat the way 'is> not needed for public use'. Only if a council can show thata way is not> needed for public use can it stop up a footpath orbridleway.> Given that background, it would be surprising if Parliament> simultaneously intended that a highway could be stoppedup through the

'Y > simpleexpedientof callinga gate 'development',andgranting planning> permission for it to exist. But that is what happened here.In effect the> council asked themselves the question, 'can we prove thatthe way is not> needed for public use?' and concluded that they could not,because in fact> it was needed for public use, as was demonstrated by MrBennett's initial

~ > objection.So they engineeredthe closureby callinga gate'development' .> This flies in the face of the protection Parliament gives tothe highway> and> its users. It also shows that they shut a path knowing it tobe needed for> public use.> Regrettably, objecting to the making of the order, and so.causing an> inquiry or hearing by the Secretary of State, does notprovide adequate> redress to somebody in Mr Bennett's position, since the

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Secretary of State> is not concerned with the rightfulness of the council'sdecision to grant> planning permission or to make the order. The Inspector isconcerned only> with the question, 'is the stopping up of the path necessaryin order to> enable the development to be carried out?'. She concludedthat it was. She> could hardly have reached any other conclusion, since thescenario had> been> contrived precisely to make the stopping up 'necessary'.

.." So it may be> that> the Secretary of State's decision is not at fault, given the> deliberately-engineered facts in relation to the law as theInspector had> to> apply it. What is at fault is the council's use of section 257in this way> in the first place. As highway authority their duty is toassert and

~ > protect> the public right to use the highway, not to stop it up whentheir own> consideration led them to the conclusion that it wasneeded for public> use.> All of this was discussed at the meeting of the RA LegalPanel on 20> May 2005. It was agreed that the Inspector could havereached no other> conclusion, given that the order had been stitched-up toengineer the> path's

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> closure; so ac: on now in the High Court would beinappropriate and would> not succeed in overturning the Secretary of State'sdecision. On the> advice> of the Association's Honorary Solicitor, the time to havebrought a legal> challenge would have been when the planning permissionwas first granted,> or> possibly when the order was first made, or when thedecision was taken to> submit the order to the Secretary of State. The Inspector

'Y herself implied> as> much: at paragraph 15 of her decision-letter, she says: 'Ido not consider> there to be any evidence that this is anything other than anorder> following> planning permission applied for in the usual way and Ihave received no> information that any legal challenge has been made to theplanning

'Wf > permission itself.> So it would appear that judicial review of the council's own> decision would have been the way to counter thismisapplication of section> 257.> The trouble with that is that such proceedings areextremely costly> and, said the Honorary Solicitor, it would not be advisablefor an> ordinary> individual of possibly slender means to embark on them.The cost of

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> engagin~> counse"s ~ gli andwould usually run to severalthousandsof pounds ard> ever: vJhereone 'wins' one does not recoup all of the feespaid a:ld other> expenditure; and, of course, there is the danger of notpersuading the> court> of the merits of one's case after all, since not all loopholesIn> legislation can be closed by action in the courts: in somecases, fresh> legislation is necessary to close a loophole such as this,

~ said the RA's> solicitor.>>

> Colin--we hope that the above summary of the LegalPanel's meeting will> assist with your application to take the matter toStrasbourg and of> course> we wish you well in doing so.>

~ > With best wishes>

> Eugene>

> Eugene Suggett> Senior Policy Officer (Rights of Way)> The Ramblers' Association - The charity working forwalkers> Lose calories in your lunch hour - 20 mins is all it takes.Find out more> at: www.useyourpaths.info/benefits.html> The Ramblers' Association (RA) is a registered charity

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(number 1093577)> and> a company limited by guarantee registered in England andWales (number> 4458492). Registered office: 2nd Floor, Camelford House,87-90 Albert> Embankment, London SE1 7TW, telephone 020 73398500, fax 020 7339 8501 .>>>>>

~ > Original Message-----> From: Colin Bennett[mailto: col inbben nett@palmeira.org. uk]> Sent: 12 October 2005 19:41> To: Eugene Suggett> Cc: kate Ashbrook> Subject: Strasbourg>

> Dear Eugene>

> Good to talk to you last week. This is just a gentle reminder~that I have> not heard from you and time is critical. My Letter ofIntroduction must> arrive at the European Court by 22 October 2005.>

> To recap - I am attempting as a private citizen to contendthat the> decision>> made by Heidi Cruikshank was a breach of my humanrights due to> deficiencies

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> in Eng S'" 8'IV. The main weaknessin my case is that itcould be said that

>1>> have not 'exhausted all domestic remedies'. I will deal withthis by> maintaining that it not feasible for me to invoke the lawfurther as I am> not poor enough to obtain legal aid but certainly not richenough to risk

~ > the substantialsums in litigation.>> The UN has attempted to deal with this in the case of UKactions with> environmental impact under the Aarhus Convention which Ihave printed out> but not yet absorbed.>> There is at least one if not two EU Directives that bring theUN> Convention

~ > directly into UK law. I still have to absorb these Directives.>

> What I am seeking from the Ramblers is a simplestatement from the lawyer> who advised the RA that it was not practicable for anyonewith slender> means>

> to challange Heidi Cruikshank's decision in the Courts.> My understanding is that the lawyers view was that MrsCruikshank's> decision>

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> was C8-e:: as the law currently stands. It is the Town &Country D a nlng> Act :t5e :: 'Nhichit could be said breaches my human rightsby a:.cvling a> PubIic Body, namely B&H Council to extinguish an ancientright without> redress, because of costs by the ordinary Citizen.>> It would be very helpful if your lawyer could get somethingto me ASAP> even> if s/he is not completely au fait with human right legislation.

VI We have> six> weeks after lodging the Letter to make a proper case.>> I am copying this to Kate and I left a message for her thismorning. What>1> need to say to her is pretty well what I have just said here.>> Best wishes> Colin

, >~

,.

> My telephone number is : +44 (0) 1273 325311> Skype ID : colinhove> My main email address is> colinbbennett@palmeira.org.uk> BTW: my blog is bennettsworld.blogspot.com> Please use black font if you can (when replying)!>>>>

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