Correspondence between FLDRA and the Council regarding footpath Stopping-up Order

URGENT INFORMATION – FOOTPATH 207:  Andy Barker of FLDRA writes

Following the issue of letters to many objectors to the proposal for a Stopping-Up Order for the footpath, I wrote to Rob Leak, Enfield Council Chief Executive for urgent clarification of the issue.

Below you will see copies of my correspondence and answers I have received:

20th January 2011
FOR IMMEDIATE ACTION PLEASE

Dear Rob Leak

Green Lanes,N13 – Public Footpath 207 - Stopping up Order

I am writing on behalf of members of our Association (FLDRA), members of Improving our Place (IOP) and, indeed, other concerned residents to complain about the Councils approach to this Order and following numerous adverse comments received from members and residents.

The overriding position, both from Borough Officers as well as a communication seemingly put into the local community on their behalf, has been to generate an atmosphere where people have been left feeling intimidated, confused, and even scared in utilising their rightful voice to object. Indeed, some have already been worried enough to withdraw their initial objections.

Para 3 of the TCPA 1990, schedule 14: Procedure for Footpaths and Bridleways Orders, requires the Secretary of State to afford an opportunity to be heard to any person who, though not a party to the proceedings had made a representation in the context of the proposed order. It is difficult to believe that Enfield Council is trying to circumvent the legislative process by using what has been perceived as a threat of legal costs.

Para 5 of the DOE Circular 2/93 (Public Rights of Way, Annex D) states:  "...nor should it be assumed that because planning permission has been granted an order will invariable by made or confirmed.  Planning authorities are asked therefore to ensure that applicants whose proposals may affect public rights of way are made aware of the position at the time planning permission is granted."

Communication passed to one resident not only indicates that this proviso was not followed but that a directly contradictory position was indicated to the developer.

If a public body tells you that it is going to act in a certain way, the courts interpret this as a promise, and may regard it as an abuse of power (and therefore unlawful), for the body to subsequently change its mind or break its promise to you.

In commencing a public consultation on this proposed order the Council are duty bound to follow its promise to residents to afford a fair representation without fear of favour. Evidence is that both appear to have been abused in this instance.

There is intense local anger relating to the proposed loss of current footpath functionality and safety. That our Council appear to be taking steps and actions to circumvent or erode the legal process afforded to tax payers to state their points is certainly undemocratic and of course potentially illegal.

We find the whole matter disturbing in the general as well as the specific for in this increasing age of localism the voice of communities and neighbourhood activism is generally being encouraged. Such steps we have witnessed and which have been brought to our attention are retrograde to such aims.

As we are now within a matter of days to allow people to make a decision – letters issued so far advise written confirmation of withdrawal must be received by 4th February 2011, I am making this URGENT request to you that the process behind this Order and in particular its formal and informal communication be reviewed, and that full and proper clarification of the situation is made and given.

For the purposes of democracy and open government, people need to know where they stand.

An urgent reply would be appreciated.

Yours sincerely,

By e-mail

Andy Barker - Chairman Fox Lane & District Residents’ Association
On behalf of FLDRA/IOP/Local Residents

CC. by e-mail:

David Burrowes MP
Doug Taylor – Leader Enfield Council
Ian Davis – Enfield Council
Winchmore Hill Councillors – Elaine Hayward, Ertan Hurer, Martin Prescott
Chris Bond – Cabinet Member – Environment Street Scene & Parks
Anoushka Silva – Traffic & Transportation Enfield

Response from Gary Barnes – Assistant Director Highways & Transportation, on behalf of Rob Leak:

31st January 2011

Dear Mr Barker

Footpath 207 – Stopping Up Order

Thank you for your letter of 20th January regarding the above matter, which the Chief Executive has asked me to respond to.

I have now reviewed the file and, in particular, looked carefully at the information sent to residents as I understand that you feel that this was somehow intended to intimidate residents and put them off objecting.

The stopping up procedure is relatively complex and not one that most residents would  generally  be  familiar  with.  The information sent to objectors was intended to be helpful and ensure that they focussed only on issues relating to the loss of the strip of footpath. Other issues concerning the principle of the development cannot be taken in account in determining whether to confirm the stopping up order.

We have received a large number of objections as a result of the public notice and some of these are clearly raising relevant issues whilst others are not. In my view, we were right to warn residents that there could be a risk of costs being awarded against them if we end up at a public inquiry (which seems likely) and time has to be spent at the inquiry dealing with objections that are not relevant. However, I do accept that the note was fairly blunt and we could perhaps have improved upon the wording.

You are right in saying that the grant of planning permission does not mean that the making of a stopping up order is guaranteed and, as far as I can tell, this has always been made clear to the developer. However, I would be interested to see any contradictory evidence you may have.

The procedure for making stopping up orders is prescribed in the relevant legislation. The first step is to advertise the intention to make the order and provide at least 28 days for representations to be made. This is not a further opportunity to object to the development which, like it or not, has been considered acceptable by the Planning Inspectorate. That said, I can assure you that all of the representations will be considered and it is looking  likely  that  we will have to refer the matter to the Secretary of State for him to decide whether  to  hold  a pubic inquiry to hear the objections.

I am satisfied that we have correctly followed all of the relevant procedures and that we have certainly not taken any action that either “circumvents of erodes the legal process”.

I hope this clarifies the situation.

Yours sincerely

Gary Barnes
Assistant Director Highways and Transportation

Letter to Gary Barnes from me (31st January 2011), with response from him, to my questions, noted in red (response received 1st February 2011)

Gary,

Thank you for that.

I did not realise that you had been asked to respond to my initial letter or I would have copied you in to the following e-mail I sent to Rob Leak as below. Perhaps you could advise as requested.

Andy
 
Further to your second e-mail to the CEX(Chief Executive) please see my responses to your requests for clarification, please note these are only my views in terms of the relevance of an objection or not.
 
URGENT PLEASE

Dear Rob,

I was hoping for a response by now to my original letter of 20th January, in order that I could advise members, and they could make their own decisions in good time for the supposed 'cut-off date' of 4th February.

In view of that fast approaching date, and with reference to the term "irrelevant objections" in the letter issued to residents, perhaps you could urgently answer the following:

* is concern for the safety of pedestrian users of the footpath an 'irrelevant objection'?

The safety of pedestrian users would of course be a relevant objection. However, in this case the proposed width of the footpath should the SUO be approved would be 1.8m, which is the minimum recommended width allowing two wheel chairs or two push chairs to pass.

* is concern over the loss of a part of an ancient public footpath an 'irrelevant objection'?

The length of time a route has been in existence does not appear to be a 'relevant' factor as it does not affect the merits or otherwise of proceeding with the SUO.  More important is the extinguishing of an ability to use a footpath.  I would suggest the proposed stopping up order of a proportion of the footpath in this particular case has not extinguished the ability of users to continue to use the route, the path is still available from A - B.

* is concern over the message that this may give to other developers an 'irrelevant objection'?

In my view each case will be considered by both the local authority and if necessary the Secretary of State on its own merits and therefore I would consider this an irrelevant objection.

We are now at a stage where really objectors need to make their own minds up whether to continue with their objections or to withdraw them. This is a difficult decision to make as we  still cannot be certain whether an objection is “irrelevant” or not. Gary Barnes’s response is based upon his own views.

I have a meeting with Councillor Chris Bond on 9th February, and this will be one of the issues we will be discussing. However, this is post the 4th February cut-off date.

I will obviously advise members of any further issues after that meeting.

Andy Barker
Chairman