Public Access

Kate Ashbrook, general secretary of the Open Spaces Society, says: "It is a great achievement of the Prices and local people to have claimed this path for the map and now to get it opened up. It's an important route to the coast, and soon will be enjoyed by everyone. We are pleased that Cornwall Council's enforcement officer has taken such resolute action in defence of the public interest." (28th January 2010 Media Release OSS)

However, even though this right of way has been legally established, it still has guards posted on the route 24 hours a day. The gates are still on site and whilst these gates are open during the day, they are partially closed each evening. This is despite the fact that the law states that the right of way extends to the full width of the road and at all times of the day, not simply during a time convenient to the landowner. Obstruction of a right of way is illegal.

The guards in the evening radio the progress of each user between guard posts, the gates are then opened to facilitate passage. This is not user as of right, as recently confirmed by a High Court judgement.

Landmark ruling
In February, High Court judge Mr Justice Cranston ruled that the gates erected across Barcroft Lane by Brian Herrick, owner of the £3.8 million Barcroft Hall at South Petherton in Somerset, were unlawful (Herrick v Kidner and Somerset County Council (2010) EWHC 269 (Admin)). He also stated: "There is no reason to confine interferences to physical interference. An object can get in the way of the right of passage or other amenity rights because of its psychological impact."

The closure of the gates and the 24-hour guarding is quite clearly not only a physical barrier but also a psychological one, plus a loss of amenity. This has been decided by this case to be illegal.

We also applied (in December 2009) for the remaining section of the path to the Mean High Water mark to be added to the map. This application was finally approved in January 2013, but now is subject to a Public Inquiry after an appeal by CEG. That inquiry is to be held in June 2014.

SOUTH WEST COASTAL PATH

The long established South West Coastal Path (SWCP) no 36 is also obstructed by the developer's guard cabin, which is used 24 hours a day. Around the cabin is a fenced area which further increases its footprint. The line of the SWCP as per the 1929 map referred to by the Council as the definitive line is further obstructed by parked vehicles. The new wooden finger post adjacent to Beach Road directs users around the edge of the car park behind a wooden fence. This is not only misleading but also incorrect. The rerouted SWCP is not the official path. No application has been made to amend the modification map.

At the time of the moving of the line of the SWCP, strong representations were made, verbally and in writing, to the various sections of the Council involved. Photographic evidence of the works taking place was also submitted. These were made by Gloria Price and also by the then County Councillor Richard Stewart. Copies of this evidence are held on file by Gloria Price. These exhortations were by and large ignored. A request to attend a site meeting as a member of the Open Space Society was also ignored.

There has been protracted correspondence with several Council officers over a long period of time. Finally an investigation by the Enforcement Officer for Cornwall Council confirmed (September 2010) that the line of the SWCP complies with the 1929 OS map.

The SWCP goes from the top of the Kissing Gate towards the golf course. It breaks through the fourth gap in the line of fencing near the red dog bin. It then continues in a line towards the left side or north west side of the guards' cabin. In my opinion, the guards' cabin and footprint fencing obstruct the SWCP. This is a completely different line to that sign-posted and fenced, which passes to the right or east side of the cabin. Vehicles in connection with the developer are also parked on this line.

It begs the question, would a user, faced with what is actually found on the ground, walk towards the guard post or inside the fencing as per the signage? Kate Ashbrook of the Open Spaces Society has now (8th November 2010) called on Cornwall Council to act to get this section of the SWCP re-opened on its official line - pointing out that the Council has a legal duty to ensure this path is open to its full width and in good order. The OSS reiterates that the path has been made narrow and offputting by the fencing and portacabin. (More on the OSS website).

Why does this matter?

Failure to protect rights of way, as defined, leave them open to loss by default. A permissive line can be removed at the owner's whim. In this case there is not even an indication to the user that this line is permissive. Therefore we are in danger of losing an important section of the SWCP without anyone being aware.

Further, the line now fenced and signed, has been pushed closer to the cliff edge. Recent events at Duporth show how dangerous a pathway next to a cliff edge is and how difficult it is to reinstate it once lost. Ensuring that the line of the SWCP crosses the car park, however inconvenient for the landowner, is essential for its long term future.

The recent High Court judgement regarding gates and gate posts (see above) gives full authority to protect rights of way.

The case was supported by the Open Spaces Society, of which I am a member. Full details of the case can be found on www.oss.org.uk.

In that case, Mr Justice Cranston concluded: "In my judgement the public is entitled to use and to enjoy everything which is in law part of a footpath... the Barcroft Hall gateway prevented public passage and the enjoyment of amenity rights over footpath Y24/10".

Kate Ashbrook, general secretary of the Open Spaces Society said: "This is a landmark ruling. It shows that the whole width of the public highway must be available for public use. No longer can landowners and occupiers get away with filching parts of the highway ... the highway authority has a legal duty to protect the public's rights over the whole highway."

This judgement should now be applied to the rights of way as aforementioned. The placing of guard cabins, guards, fencing and vehicles across a public right of way is clearly a breach of the law. The law gives full authority, should it ever have been needed, to the local authority to protect all rights of way and I call on them to fully protect the rights of way at Carlyon Bay, which have been established in law.

Gloria Price is a member of the Open Spaces Society and would like to acknowledge them and her mentor Mrs Ann Wilks of OSS and thank them for all their support.

(Gloria Price, 8th October 2010)