Memorandum by the Countryside Rights Association
(PI 53)
The Countryside Rights Association was formed
in 1997 by landowners, homeowners and tenants who were particularly
dissatisfied with the legislation, and implementation thereof,
governing the acquisition and recording of public rights of way.
They in particular felt that the existing landowners' and farmers'
organizations were not listening to the various plights and problems,
and that they were carrying out policies that no longer reflected
their wishes and interests.
The Association is not anti-rights of way. Its
main concern is the protection of owners' rights in a free and
democratic society that respects the rights of individuals, whether
they are minority groups or not. In the sphere of rights of way
it believes that once these rights are respected all conflict
will be automatically removed. Today rights of way have become
an onerous imposition rather than an act of generosity by the
owner of land. The method of acquiring rights has become a masked
and condoned way of stealing private property. The Association
does not wish to deny public enjoyment of the countryside as long
as a true and realistic balance is obtained between contrasting
interests. Above all the necessity for fair play is advocated
by it.
We take this opportunity to offer the CRA's
comments on the working of the Planning Inspectorate.
RE: INSPECTORS'
DECISIONS
More and more Inspectors' decisions are challenged
in the courts. Unfortunately the courts are unable, because of
the limited scope of their jurisdiction, to review the facts and
the merits upon which those decisions were taken. This seems to
be in itself a grave defect, which infringes Article 6(1) of the
Convention on Human Rights.
INDEPENDENCE OF
INSPECTORS
As a matter of fact the CRA's criticism goes
somewhat further in that the method itself of using a Government's
paid agency, whose terms of reference are to carry out the government's
policies, can not be said to be independent in deciding civil
rights on conflicting evidence. The Bryan case in the Court
of Human Rights, although a planning matter case, illustrates
the problems. If anything the concerns are deeper here where what
is at issue is the determination of civil rights vis a vis public
rights in perpetuity, rather than land use regulations which are
transient by their own nature. This quote from the Planning Inspectorate's
web site: "The Planning Inspectorate applies the policies
of the Secretary of State and the Assembly in dealing with appeals
and other casework, including resolving disputes between individuals
and public authorities". Further quote: "Through the
work of the Agency the policies of the Secretaries of State are
taken forward. Disputes between individuals and public authorities
are resolved against the background of these policies". The
Bryan case has established that an inquiry is not a court
or tribunal within the meaning of Article 6(1) of the Convention
on Human Rights even in the context of planning matters.
UNFAIRNESS OF
THE ADJUDICATION
SYSTEM
The CRA shares the ROWRC's concern also about
the question of fairness to an applicant for a modification order,
whether it is a member of the public or an owner of land, and
also to the persons affected by modification orders whether confirmed
or not. The decision letters are very often arbitrary as to the
selection of facts. As long as they do not show a palpable error
of law in the record (the decision letter itself) they are unassailable
in a court of law. Because of their lack of the relevant qualifications
in law, Inspectors' decisions lack clarity and consistency. Further
Inspectors are not at the present time bound to give reasons for
their decisions, and even less for their preferred findings of
fact. This has the deleterious effect of considerably limiting
the scope of the court review of these decisions. The CRA has
always considered that the system in use is wrong, as it falls
foul of the Convention On Human Rights. Since 1983, the coming
into operation of the WCA1981, decisions concerning civil rights
have been taken by administrative bodies with no particular expertise
in the determination of rights. This state of affairs was brought
about by the abolition of the provisional stage of the preparation
of the definitive map and statement reviews (National Parks and
Countryside Act 1949) with the coming in operation of the Countryside
Act 1968. No one realised then, with the exception of the Ramblers,
that a basic human right, the right to have one's civil rights
determined by a court of law, had been wiped out at a stroke.
ETRAC should be reminded that up to the passing of the CA1968
there was the possibility for a landowner to have the rights claimed
determined by the quarter sessions. Of course, because the landowner
rarely came to know of claims, as he was never notified of them,
this opportunity was grossly missed out.
SELECTION OF
INSPECTORS
Inspectors chosen to determine these civil and
public rights have no law qualification whatsoever, especially
in the field of rights of way. They often are retired civil engineers
or surveyors. They are asked to select facts without knowledge
as to what is relevant for the application of the law to them.
The law is usually applied to the Inspector's findings of fact
by someone in the Department of the Environment some time AFTER
the Inquiry. This is in itself a grave failing in the system,
and does not ensure that decisions are taken on the relevant facts
and the relevant law. You cannot have an adjudicator who does
not know what facts are relevant to the application of law. The
law itself relating to rights of way is very difficult to apply,
and declared to be so even by the courts. This dichotomy in arriving
at conclusions as the result of one person deciding on the facts
and of another deciding on the law, has created the most bizarre
and irrational of decisions. Not all of these decisions can be
quashed by the courts, for the reason that if the error does not
appear on the face of the record (the Inspector's letter), however
wrong the Inspector's findings of fact might be, the courts have
no power to extend their review to the facts and the merits. So
it can be seen that it all depends on how impeccably the decision
letter has been put together. As long as the decision letter does
not show any palpable error of law, the Inspector's decision,
taken on behalf of the Secretary of State for the Environment,
cannot be quashed.
IRREGULAR PROCEDURE
Grave concerns are put forward by CRA's members
with regard to the fact that inquiries do not have court procedure
and rules. The haphazard way in which evidence is given without
oath, and accepted at face value, does not stand up to standards
in a court of law. The landowner is greatly disadvantaged also
by the fact that if he is legally represented at an Inquiry, he
is made to spend unaffordable sums of money. Although it is true
that he can represent himself, assuming that he is capable of
it, the chances of success are very considerably diminished in
this event, especially when the county council is represented
by their lawyers, and often also by leading counsel paid by public
money. The claimant does not spend a penny in all this. Even in
the very rare cases where the landowner wins, he cannot recover
the costs that he has been made to spend, unless he can prove
that the council has acted perversely. This of course is never
found as it is up to the Secretary of State to decide on the matter
of recovery of costs. The county councils only follow the policies
dictated by the Department of the Environment, and it would be
extraordinary if they were made to pay penalties for following
the department's policies.
INCONSISTENCY AND
LACK OF
CLARITY OF
DECISIONS
The CRA complains that Inspectors' decisions
are on the whole inconsistent, as they vary considerably between
cases as to the treatment of very similar facts. The interpretations
of historic evidence between case and case are often diametrically
opposite, and result in the most disparate decisions. The raising
of a presumption of dedication whether under the common law or
the statute is a highly specialised branch of the law. The natural
reaction of someone who is not versed in this field is to treat
the matter summarily and simplistically, thus reaching conclusions
that would not stand in a court of law.
THE INADEQUACY
OF THE
STATUTORY CHALLENGE
OF INSPECTORS'
DECISIONS
The only challenge that is allowed is to a confirmed
order. There is no mechanism in law, once the Applicant has put
in an application for a modification order, by which a person
affected can ask for a court declaration as to his property rights.
See the provisions of WCA1981 Schedule 15 paragraph 12 as interpreted
in Huntington.
The High Court challenge under the above-mentioned
provisions is inadequate in that it is confined to procedural
errors on the part of the County Council and the Secretary of
State or to points of law exclusively. It is not a challenge on
the merits of the case, and above all it is not an appeal on the
merits. Its scope is not to ascertain whether a public right of
way exists or not.
Although it is true that an Inspector's logicality
as it appears from the decision letter can be challenged, many
times it does not show on what evidence the Inspectors reached
certain conclusions of fact. These conclusions of fact cannot
be disturbed as long as there is a modicum of evidence.
NO LEGAL
REQUIREMENT FOR
AN INSPECTOR
OR THE
SECRETARY OF
STATE TO
GIVE REASONS
FOR DECISIONS
This lapse of basic human right has been criticised
by many bodies, and it would appear the concept of fairness does
sit withe for this denial of fairness to the person affected by
a decision.
COMPATIBILITY WITH
CONVENTION ON
HUMAN RIGHTS
A differentiation should be made between planning
matters and the adjudication as to civil rights in right of way
cases. Even a planning case brought to the European Court of Human
Rights, the Bryan case, has been decided in the sense that
the Inquiry is not a court of law within the meaning of Article
6(1). This is even more so in the context of the determination
of property rights where no policies should have any weight to
resolve the issues. The question of the dependence of the Inspector
from the Secretary of State is a matter of grave concern. According
to Statute WCA 1981, the Inspector's decision is the Secretary
of State's decision. See also the outcome of the recent case of
McGonnell v United Kingdom (8 February 2000) where any
connection with the decision-making by the executive taints the
independence required.
The CRA advocates the establishment of a court
or other tribunal within the meaning of Article 6(1), completely
independent from the executive to resolve disputes among individuals
in rights of way cases, and therefore in the determination of
citizens' civil rights. This is essential as no such court or
tribunal is in existence to adjudicate private property rights
since the passing of the Countryside Act 1968 when the right of
an owner to seek a declaration as to his property rights was withdrawn.
May 2000
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