FUNDAMENTAL DEFECT IN PROCEEDINGS MAKES IT A NULLITY

[dls]

No matter how many times you say it, you still appear not to have convinced anybody here of your assertions.

Your descriptions of what you wanted and what was found always appear convincing until the trouble is taken to look at the decisions and maps - at which point your case just disappears. Sorry.
Perhaps someone else here, who is persuaded of Cat's case can explain it in a way that she appears unable to.

[Cat]

You understand it very well dls. I laid a complaint under Section 56 Highways Act 1980 seeking an order: that an alleged highway (a path from Glebe Yard to Kimber Road) is out of repair and that the Council, as highway authority, should put it into suitable repair. The way was found (contrary to the Council's contentions) to be a footpath maintainable at public expense, that is obstructed by a hedge rooted in its surface, but failed to make an order for repair as there was also another exit available from that parcel of land over adjacent land.

The nature of the use by the public exiting in such a way over the curtilage of Clome Cottage, cannot reasonably be regarded as the assertion of a public right over the physical property to which the right attaches which is Glebe land, from Kimber Road to Glebe Yard. The Crown Court was in error in its approach and its conclusion: the hedge prevents public passage and damages the surface of amenity rights over the footpath from Glebe Yard to Kimber Road. The only methods of legally stopping a highway over the land on parcel number 342 known as Glebe yard is by proceedings before magistrates under the statute.

[atticus]

Can we have a party at Cat's place when this thread gets to its 100th page?

[Cat]

We can have a party when the Council reinstate the true path.

[atticus]

OK, I won't need to keep any dates free this year or next, then.

[Cat]

We shall see. The Inspector appointed on behalf of the Secretary of State has to determine within the next few months:

53(3)(c)(i) whether a right of way which is not shown in the map subsists or is reasonably alleged to subsist over Glebe land in the area over the land on parcel number 342 adjoining Station Road to which the map relates, being a right of way to which this Part applies;

53(3)(c)(iii) whether there is no public right of way over Clome land shown in the map as a highway of any description.

The Inspector has to consider capacity to dedicate an exit from Glebe Yard to the public road and the only way he can skirt around this, is only to use alphabetical descriptions and avoid dedication of specific land and capacity to dedicate, as did the judges. This will be particularly difficult for the Inspector to do as their decisions normally follow a particular format, and he has to find that former Glebe land was dedicated as highway in perpetuity. The highway authority cannot by its acquiescence authorise an obstruction and cannot legalise the encroachment, nor could the judges.

[atticus]

is any of that connected with the case before Burton J?

[Cat]

Partly the same decision, so it is connected, just under a different legislation. The Inspector has to make the same decision under The Wildlife and Countryside Act 1981 53(3)(c)(i) as Burton J though and should result in the re-instatement of the true path.

[atticus]

It seems to me like a means of seeking the desired outcome by other means. If this new process is where you are hanging your hopes, then the discussion of the Crown Court case, appeal by way of case stated, judgment of Burton J can surely be closed.

[Cat]

I attempted to achieve the required outcome by both means, as required under both legislations. I applied for this definitive map modification order (DMMO) under the Wildlife and Countryside Act 1981 on 14.07.2009, as it is the required route to amend the alignment error on the definitive map.

As that process normally waits until the applicant dies and can take 20 years or more, we made an entirely separate Section 56 Highways Act 1980 complaint for an order to repair the highway over the land on parcel number 342 known as Glebe Yard in the interim, as that is the required route to get the highway authority to perform its duty to repair a highway that they chose to ignore.

Even if the correct order to repair the highway had been made under HA 1980; we would still have had to await the due process to amend the map under the WCA 1981. They always have been two entirely different processes.

Recorder Abbott and Burton J lacked jurisdiction to consider an alignment dispute under the HA, as the s.56 procedure lacks the power to alter the map, they can only decide if the alleged way is HMPE; and if so, order repair.

Even if the Inspector orders Devon County Council to amend the definitive map to correct the legal position, we still have to get the charging order for the costs removed from our home. Which is why the discussion of the appeal by way of case stated is still open Atticus.