Here are the relevant issues, why we believe these paths are rights of way, and what can be done to clearly define this for everyone. Should you want more detailed information, the resources menu has some great information we've found online.
WHAT THEY ARE - AND WHAT THEY ARE NOT
WHERE DO FOOTPATHS COME FROM
WHAT WE'VE DONE IN A FEW SHORT WEEKS
PLEASE CONTACT US TO GET INVOLVED
Rights of Way
There are three recorded public rights of way in the area - these are paths shown on the Bucks definitive map, and may be seen on the map screenshot - the interactive version is found on the resources tab on this site.:
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PEN/36/1 The path that runs through the sheep field and past Underwood house
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PEN/40/1 The path that runs past the stables and directly into the Strawberry Plot wood
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PEN/43/1 This has been blocked for over a quarter of a century, but remains a public right of way
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As the name suggests, these pathways are indisputably rights of way, and are recorded on the definitive map. They may not be obstructed by the landowner, they may not be diverted or rerouted, and it is a criminal offence to do so. A landowner may not put gates, stiles or any other furniture there without permission from the highways authority. You are free to walk or run along those pathways, have a picnic, walk the dog, stop for a rest, or to take photographs.
A permissive path is one where the landowner has specifically given permission for people to use that particular route. A permissive path is not a right of way, and permission may be withdrawn and the path closed at any time. The new fenced pathway through the Strawberry Plot wood is a permissive path; it could be closed on a whim. The old winding path through the centre of the wood is a presumptive right of way, as it has been in use for a very long time indeed.
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A presumptive right of way is one where the path has been in use for over twenty years, it's use has not been challenged, and has been continuous and 'as of right'. A presumptive right of way will not appear on the definitive map - it is merely presumed to exist because people are using it continuously and with the knowledge and acquiescence of the landowner. A new landowner may then challenge the right to pass along that route. The burden of proof at this point lies with the landowner to show that the route is not a right of way, which is the current situation in Penn.
Why a Right?
Rights of way can come into existence by several means. There are only two that are relevant in this situation, and they are expanded upon below:
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Right of way through long use under statute law - the Highways Act (1980)
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If a path has been used for over twenty years, continuously, unchallenged and as of right, then it becomes presumptively a right of way. The presumption is that the landowner intended to dedicate a right of way and the landowner has the burden of proof to show that this is not the case. The stipulation 'as of right' comes from Roman law and means that that those of us using the paths must have done so:
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Without force - there were no fences cut, locks broken or walls scaled to gain access
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Without secrecy - the landowner must reasonably have known that the path was in use
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Without permission - the path must not be explicitly permissive, registered and signposted as such.
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If the landowner can show that they were continuously ejecting walkers or joggers, or that the path was regularly closed off and unavailable for use, or that they had given permission for people to use the path, or that they could not have known that the path was in use, then they will be able to defeat the claim. Some such sporadic attempts have been made to turn the clock back and deny the existence of rights of way in Penn. The paths themselves have been in use for longer than we have been able to fully determine. They have been used by generations of the community since time immemorial - literally for longer than anyone can remember. Why does this matter?
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In the twelfth and thirteenth centuries English royal lawyers developed new doctrine to prevent the Barons undermining the highways' status and to assert their connection directly to the king. The new doctrine drew from Roman law and allowed the government to clear obstructions, dismantle illegal tolls, and compel landholders to perform maintenance. These rules enshrined the doctrine that once a route had become a highway it was always and forever a highway.. By the end of the reign of Edward I (1272–1307), this was established as an enduring legal principle which has remained for over 700 years. The landowner cannot turn the clock back if a right of way exists - and this is why the Strawberry Plot woodland walk is not a permissive path. It was presumptively a right of way decades before the pathway was granted as permissive in 2006.
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Right of way under common law
If for any reason, the strict conditions laid out by the Highways Act are unable to be met, there is still an enduring body of common law developed over centuries that may be used to show that rights of way exist. Fundamentally, high volumes of footfall over shorter periods of time may be taken to determine whether rights of way have come into existence over shorter periods of time than twenty years. In one case, this was held to have occurred in as little as three years through heavy use by a community.
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Although we have great confidence in the paths' status under the Highways Act, it is equally clear that over the course of a year, many hundreds, and in all probability, thousands of people will walk, jog or run along the pathways. There is little doubt that a claim under common law would be successful, as long as the community as a whole provides their statements of where they have walked, for how long, and how often.
Campaign to Date
As a structured and formal effort to save these footpaths as rights of way, to recognise them and record them on the definitive map for generations to come, we have approached this in a very deliberate and professional manner. The steps taken thus far can be summarised as follows:
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Determine initially whether there is anything that may be done to preserve the pathways
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Find out if there was appetite amongst the community to speak up and take action
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Thoroughly research the law to the best of our ability to determine the likelihood of success
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Investigate the status of each and every route used by the community to find out what defence (if any) might exist or be presented by the landowner
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Gather the evidence of the duration, frequency and geography of users use of the pathways
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Outline the case as we currently understand it, complete with detailed evaluations of the evidence as understood, and comprehensive descriptions and photographic records of the routes themselves.
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Collate and present the evidence to Bucks County Council in the form of a Section 31 claim under the Highways Act (1980)
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Notify the landowners as required either by registered post or, where land ownership was in any doubt, by serving the property itself with form 2 notification and an associated map
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Certifying to the relevant authority under the Wildlife and Countryside Act (1981) that the appropriate steps had been taken, complete with photographic and other documentary evidence to that effect.
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A few metrics - thus far
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200 of us have either completed forms or pledged to do so
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300 completed forms received and filed at Bucks Council
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1.6 miles of footpaths identified
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6 individual routes identified
How to Help
This is simple: Whether you use the footpaths or not, please get in touch with us if you'd like to help. As part of the process it's only possible to complete user statements if you actually do go walking or running along these pathways. There are many other ways that you can help even if you don't actually romp around there on a regular basis.
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If you are, or were in the past a regular user of the paths:
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Please get in touch, and download and complete the User Statement and associated map from the resources section of this site. We'll need the completed forms in hard copy, and we can arrange to either pick these up or for you to deliver or post them. Please don't send them to the council directly.
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You only need to use one of the pathways to have a positive impact on the overall campaign
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You should use at least one of the paths once a year - that's all - although more is better!​
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It doesn't matter for how long you've been using the paths; one year or fifty-one years
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It doesn't matter if you have moved away or otherwise stopped walking there
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The forms can be a little daunting, if you need help, just reach out and we'll be delighted to assist
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You should fill in a form and associated map for each path that you use - and please do footfall is important, and this is how we can show the volume of footfall.
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We are really keen to hear from people who have grown up in the area, whether or not they are still here, so please help spread the message as far and wide as you can.
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If you don't actually use the paths but still want to help:
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Please do get in touch as we are keen to hear from all the local communities around and about the area and there's lots you can do to assist us.
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Please get in touch if you want to keep these footpaths and subscribe to the site for updates