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Thread: River Calder Paddling - Access Court Case

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    This link takes you direct to the Canoe England page.

    http://www.canoe-england-yorkshire.o...-in-brighouse/
    "Rules are for the obedience of fools and the guidance of wise men"
    Grp Cpt Sir Douglas Bader CBE,DSO,DFC,FRAeS.

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    I have spoken to Canoe England/ British Canoeing about this. They no longer need objections to the principle of closing this highway/access point but they need as much evidence as possible from those who have paddled this section of the river and in particular from those that have used this get in/out. If you fall into either category please contact

    Chris Hawkesworth
    Planning and Facilities Manager
    Mobile: 07802 352815
    Email: chris.hawkesworth@canoe-england.org.uk

    The next court date is 20th March but evidence and submissions need to be submitted in the next week or so.
    Keith

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    I understand that this case was heard at Bradford Crown Court last Friday 20th March. I wonder if anyone is aware of an outcome and whether the river access issues and PRN arguement had any impact?
    Mike

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    Greg posted something on Facebook:

    "Settling down for what promises to be a great evening following a great day at Bradford Crown Court, where an extremely impressive Judge ruled in our favour over public access to the river in Brighouse"

    Which sounds good to me!
    Covering as many malmiles as possible before being distracted by the pub!

    Paddle Points - where to paddle

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    Quote Originally Posted by Mal Grey View Post
    Which sounds good to me!
    And to me! It seems that British Canoeing were awarded the judgement and all their costs and that the access to the river must remain open. I'll leave it to others who were involved first hand to comment further.
    Keith

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    First, a tribute: His Hon Judge Durham Hall, QC is a truly impressive Judge. Within the first few minutes of the first meeting he'd made clear his intention to deal quickly and efficiently with what he anticipated being a routine case. He showed appreciation of the historical details and well argued case provided by British Canoeing's Barrister, William Josling, and a clear appreciation of the local area and immediate context.

    Fortunately, a second and even more impressive Barrister was alongside William Josling. This was Christiaan Zwart: a character the Judge initially appeared unwilling to humour, but whose arguments on our first visit were so compelling as to throw off the entire timetable, leading eventually to the Judge deciding the appeal could not possibly be heard in one sitting.

    I'd like to wait until I've got some of the paperwork through (and ideally the transcript) before saying a huge amount more, but the appeal came to a head on Friday, and to cut a long story short, the appeal was indeed successful. In truth, Christian Zwart's arguments were found so compelling the rest of the arguments barely came into play, leading the Judge to use the term "the Brainy One"

    I'll produce more info in due course, but for now I'd rather focus on the wider picture... as sadly, as the Judge noted, this might well end up being at best a pyrrhic victory. Sure, we got a fair bit accepted in a Crown Court, and this can only be good... but the whole matter now goes forward through a Public Enquiry as ordered by the Secretary of State for Transport. For context, look up "Section 247" orders.

    Short version: between now and some time in May West Yorkshire Needs You!

    Bottom line - we could do with ANYONE just going to Brighouse and to attempt to gain access to the river via "Old Ford" - opposite the railway station at 53.699231, -1.778495. This is essential to establishing ongoing "need" for the access point... without which, it might well be lost.

    Note: if anyone attempting access at that point is unable to proceed, that's also useful: we just need to know why not, and what you did about the situation.

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    Thanks for posting Greg and Gina, sounds like a very positive outcome. Will you be posting or linking to the full judgement transcript when you get it? I'd be very interested to read it. Also, presumably British Canoeing will be represented at the forthcoming PI, hopefully they'll be instructing the same legal team if they were so successful last Friday. Thanks again, a real pleasure to read some positive access news for a change.
    Mike

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    looking forward to reading the transcript...
    Doug Dew
    "The best is yet to come" My Father


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    Quote Originally Posted by GregandGinaS View Post
    Short version: between now and some time in May West Yorkshire Needs You!

    Bottom line - we could do with ANYONE just going to Brighouse and to attempt to gain access to the river via "Old Ford" - opposite the railway station at 53.699231, -1.778495. This is essential to establishing ongoing "need" for the access point... without which, it might well be lost.

    Note: if anyone attempting access at that point is unable to proceed, that's also useful: we just need to know why not, and what you did about the situation.
    It may help to find the site if you are using SatNav the post code is HD6 1LQ this is for Royd House, the track runs down the left side of Royd House as viewed from the road. It looks to be gated on street view.

    Street view link: https://www.google.co.uk/maps/@53.69...tG4Kt4H1Og!2e0
    "Rules are for the obedience of fools and the guidance of wise men"
    Grp Cpt Sir Douglas Bader CBE,DSO,DFC,FRAeS.

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    Time for an update - as the S-247 Public Inquiry into the stopping up of this highway has been abandoned and the supermarket appears to have walked away from the project.

    We (a few of us associated with the case) believe anyone now wishing to develop this site will have to either take into account that there is a highway which may lead to the river or will have to start with a fresh S-247 application for stopping up the highway in the public interest. This could still happen, but any Inquiry would have to heed the evidence presented in Bradford Crown Court on 20th March, 2015.... where Judge Durham Hall made many helpful observations.

    The Bradford Crown Court evidence noted a "very real and intolerable failure to assert the rights of the public to use this highway" on the part of the Local Authority which had "sought a simple and indeed simplistic solution to a problem in whose creation they had played a part"

    In noting the "duty of the highway authority is to assert and protect rights of the public to use and enjoyment of the highway" the Judge highlighted the way the authority lost sight of the very existence of the highway... allowing it to degenerate into a "state of disrepair" and to become "overgrown with vegetation"... then failed to address the wilful obstruction of the highway by spiked, metal gates - which should never have been tolerated as a means of addressing a situation in which the adjacent buildings were in a "derelict and dangerous" condition.

    Crucially, on discovering this situation, the Authority hadn't sought to re-assert public rights to the use and enjoyment of the highway - including "acting in pursuance of strict statutory obligation to remove [the gate]" and "if there was a risk to health" having "required the private landownder to make the area safe"

    This leads up to a judgement:
    • "the need and use or lack of it thereafter is not therefore precisely measurable because of the Council's own actions or actions in which they are [...] complicit";
    • "as a consequence of that obstruction and the lack of action by the Council to remove it, and to assert the rights of the public over this very ancient right of way, insofar as it is used by the authority to provide a semblance of an argument for saying that it is now unnecessary, is intolerable - well meaning but fatal - and makes it impossible for us to exercise our discretion and impossible for us to find (for we do not find) that this highway is unnecessary";
    • "the respondent's position was fundamentally fatally flawed";

    Along the way we get some useful phrases used by the Judge. E.g. we were told that the ford "for time immemorial has crossed the Calder and has seen, no doubt, if not palaeolithic, certainly neolithic, probably Iron Age, certainly Roman and certainly armies led by King Aetherlric on their customary tour to bash the Welsh in the early, very early, Middle Ages" - and we have in writing that "the extent of the highway is very much in dispute"

    Other key quotes from the approved Judgement:
    • "once a highway always a highway";
    • "mere disuse does not deprive the public of rights they once enjoyed";
    • "no length of time or disuse will preclude the public from re-asserting their rights";
    • "longstanding encroachment will not extinguish a public right";

    All of which highlights the importance of reviewing ancient ways to the water's edge before the CRoW 2000 cut off in 2026
    Last edited by GregandGinaS; 26th-August-2015 at 12:26 PM.

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    Quote Originally Posted by GregandGinaS View Post
    Other key quotes from the approved Judgement:
    • "once a highway always a highway";
    • "mere disuse does not deprive the public of rights they once enjoyed";
    • "no length of time or disuse will preclude the public from re-asserting their rights";
    • "longstanding encroachment will not extinguish a public right";

    All of which highlights the importance of reviewing ancient ways to the water's edge before the CRoW 2000 cut off in 2026
    Great update Greg. I wonder if these quotes would be applied to the waterways too in a court?
    Bootstrap
    There's no such thing as inclement weather - you're just incorrectly dressed

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    Quote Originally Posted by Bootstrap Bob View Post
    Great update Greg. I wonder if these quotes would be applied to the waterways too in a court?
    They have been applied by courts to the public right of navigation (see Roland V The Environment Agency) and are therefore equally applicable to waterways.

    A very timely reminder from Bradford Crown Court that local government (and national government) have a duty to protect all public rights.
    Keith

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    River Calder Paddling - Access Court Case
    Well done all concerned - this is really important stuff!

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    Well done all those involved in this case, the hours of your time given up to bring this to a successful end must be considerable, Thank you.

    Hopefully this will set a precedent and help to open up more access points, all the old river crossings will have evolved as this one did starting with a ford, many are still there with a bridge at the side. This case should make opening more of them up as access points possible, we only need to look at how many place names have "ford" in their title to realise how important these sites were, "Oxford" being one of the best known. This is an important victory.
    "Rules are for the obedience of fools and the guidance of wise men"
    Grp Cpt Sir Douglas Bader CBE,DSO,DFC,FRAeS.

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    Hi all

    An update on the case - and a copy of the full judgement - is now available via our website - http://www.britishcanoeing.org.uk/ne...ened-brighouse

    We'd like to reiterate our thanks again to everyone who helped in the case, by documenting canoeing activity in the area and lodging objections to the closure orders etc. Special thanks to the Yorkshire Regional Development Team, Doug Caffyn, John Bates, Greg Spencer and Tim Wheeler for all their invaluable input into the case.

    Thanks

    Chris Page, W&E Manager, Central Region, chris.page@britishcanoeing.org.uk

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    That really is a good result.

    There is one point from this article that worries me however and is in some way reminiscent of when I used to drive legal PRoW.
    Under a clause in the Countryside and Rights of Way Act all historic routes that have not been used since 1949 will no longer be able to be registered as public rights of way after a cut-off date in 2026. This could mean many waterside routes like the Old Ford that are not currently registered will be lost to paddlers.
    The same thing happened with B.O.A.T.s and R.U.P.P.s. As the deadline for submissions of historical usage for vehicles approached many recreational off road drivers made their submissions as requested. There were so many submissions that the investigating body couldn't cope and (as I remember it) decided to ignore any submissions that hadn't been processed at the cut-off date whether they were valid or not. The end result was that most of the PRoW that were drivable and had historical proof as such were then given the status of "Unclassified By-way" and you could not legally drive them any more.

    I know the cut off date for historic route registration is a decade away but the sooner this starts the better so there is no excuse for the authorities to close them.
    Bootstrap
    There's no such thing as inclement weather - you're just incorrectly dressed

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    Quote Originally Posted by Bootstrap Bob View Post
    The same thing happened with B.O.A.T.s and R.U.P.P.s. As the deadline for submissions of historical usage for vehicles approached many recreational off road drivers made their submissions as requested. There were so many submissions that the investigating body couldn't cope and (as I remember it) decided to ignore any submissions that hadn't been processed at the cut-off date whether they were valid or not. The end result was that most of the PRoW that were drivable and had historical proof as such were then given the status of "Unclassified By-way" and you could not legally drive them any more.
    Thanks. Yes, you are right. Outside of being a paddler, I'm also a keen hiker, and have an interest in many areas of the access debate. Councils have a mandatory turnaround time for route to be processed - but there is already some concern that the number of applications coming in is far in excess of what councils can process - needing close coordination of what is being submitted. With the budget cuts being experienced (Derbyshire County Council is consulting on reductions to both staffing and turnaround times on Rights of Way issues) this isn't likely to get better - so all the more reason to make a good start on this.

    We will be meeting internally to look to develop a project to engage people in registering historic rights of way. But we would very much welcome any ideas for how we could coordinate this across the paddling community too. So please do let us know. We'll be putting more information out about this issue very soon.

    Best wishes

    Chris Page, W&E Manager (Central), chris.page@britishcanoeing.org.uk

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    Quote Originally Posted by BC Waterways&Environment View Post
    We will be meeting internally to look to develop a project to engage people in registering historic rights of way. But we would very much welcome any ideas for how we could coordinate this across the paddling community too. So please do let us know. We'll be putting more information out about this issue very soon.

    Chris Page, W&E Manager (Central), chris.page@britishcanoeing.org.uk
    I am currently helping the Ramblers in their "Big Path Watch" project, they have invited anyone with an interest to get involved even if they are not members. I think the format would work just as well on the rivers, you adopt up to 10 1km OS grids squares and survey all paths in that area, then move on to another 10 if you wish. I am sure the format could be adapted to the rivers, but off course it would depend on the Rambles agreeing. It works with a phone app, you take photos of the site, report problems then upload it with the GPS location from your phone. It may be worth investigating.

    http://www.ramblers.org.uk/bigpathwatch
    "Rules are for the obedience of fools and the guidance of wise men"
    Grp Cpt Sir Douglas Bader CBE,DSO,DFC,FRAeS.

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    Quote Originally Posted by cloudman View Post
    I am currently helping the Ramblers in their "Big Path Watch" project, they have invited anyone with an interest to get involved even if they are not members. I think the format would work just as well on the rivers, you adopt up to 10 1km OS grids squares and survey all paths in that area, then move on to another 10 if you wish. I am sure the format could be adapted to the rivers, but off course it would depend on the Rambles agreeing. It works with a phone app, you take photos of the site, report problems then upload it with the GPS location from your phone. It may be worth investigating.

    http://www.ramblers.org.uk/bigpathwatch
    Thanks - I'm keen to work with any other organisations to maximise the benefits of the work all will be doing. Our project will be looking specifically at the kinds of routes that interact with water - old fords, riverside footpaths, etc.

    The important thing for the 2026 deadline is those routes which have not been used since 1949. Even if unregistered, any route which has been in regular use (20 years usually the minimum) since then will still be recordable even after the cut off date.

    As an example, there is an old ford near us in Nottingham that currently doesn't seem to appear on rights of way maps - http://www.newarkadvertiser.co.uk/ar...-ford-to-ferry. On OS maps (SK 72668 48865) it's possible to see where rights of way either side of the river link to where the ford once was - but nothing on the ford itself, especially leading right up to the water. These kinds of routes we need to get tracked and get registered. But it's obviously hard sometimes to learn about a route which hasn't been used for so long! The unknown unknowns, so to speak.

    Best wishes

    Chris

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