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Not in my playground, you don't

Schools are able to get public footpaths across their grounds moved, argues Michael Orlik

St Mark's Chuch of England primary school at Hadlow Down, East Sussex is unable to lock its gates because of a path through the playground that it wants to divert, The TES reported in January. The article suggested that public rights of way across school grounds could not be closed to protect children and staff. But I would argue that this is incorrect. The Highways Act 1980 says that a council can create a new route if it is expedient in the interests of the owner or occupier of the land - but the council must get its decision confirmed by the Secretary of State for the Environment if there are objectors.

The diverted route must be laid out in such a way as to begin and finish on a highway. The council has to consider the effect that the diversion has on the public enjoyment of the path. If the route passed across pleasant school playing fields and the proposal was to divert it on to derelict land or on to made-up paths through housing estates, there might be second thoughts If, on the other hand, a diverted path remained on the school playing fields, but further away from the buildings, or was diverted on to open park land or countryside beyond the school grounds, there might be no reason to object. The diverted path must not be "substantially less convenient to the public in consequence to the diversion", but that does not mean that it cannot be a little longer.

Although this is a difficult balancing exercise, schools should not jump to the conclusion that it is not possible to do anything.

In 1975, the police were concerned that a public footpath across Chequers, the Prime Minister's country estate, passed within 475 yards of the terrace of the house so it would not be difficult for an experienced marksman to shoot the Prime Minister or his guests from the path. The district council made an order diverting the path further away from the house but still running through the estate. The Secretary of State confirmed the order.

A local resident challenged his decision in the High Court. The judge said that the words "the efficient use of land" (in the law prior to the 1980 Act) required the court to consider "whether the diversion is necessary in order to enable the land to be used to its best advantage according to the purpose for which it is occupied".

If one considers that the purpose of school buildings is to provide education for children in a calm atmosphere, free from anxiety about intruders, then it would be more "efficient" in the 1959 Act wording to move a right of way away from the building and it would probably be "expedient" in accordance with the wording of the present legislation although no judge has yet considered this point. Prime ministers are important, but so are children.

It is certainly difficult to extinguish or divert rights of way. Because of the security problems that schools face, it is important to prevent new rights of way being created on school grounds. Under the 1980 Act, where a way has been used for more than 20 years by the public as of right and without interruption, the route is to be deemed to have been dedicated as highway.

There are serious risks for schools here because many schools have the benefit of footpaths, often surfaced, leading to the school from more than one direction to provide safe and easy access for parents and children away from the roads. However, these paths are often used by members of the public who have no connection with the school and whom nobody challenges. That way a 20-year-user claim can arise.

The law does provide that the presumption of dedication after 20 years will not apply if there is sufficient evidence that there was no intention during that period to dedicate. If the path can be gated and locked at night or during school holidays that should be sufficient to prevent it becoming a public right of way. If this is not possible, it is essential to erect notices on the path saying "No public right of way". There is no harm in adding "Private path for the use of parents and children only". Such notices can be vandalised, so it would be sensible to photograph them in position, date the prints and store them.

The Highways Act also provides that a landowner can place with the council a map indicating which ways (if any) over his land he admits to be highways. Such a statement constitutes sufficient evidence to show there is no intention on the part of the owner to dedicate any other ways which might otherwise arise through 20 years use. Where the Council owns a school site, it is giving notice to itself, as the highway authority, that this is possible. Depositing a map and statement with the Highway Authority is certainly something that voluntary, grant-maintained and schools that own their own sites could usefully do to prevent rights of way arising in the future.

* Michael Orlik is a partner with Dibb Lupton Alsop, solicitors, Birmingham, and author of An Introduction To Highway Law (Pounds 18.95; Shaw and Sons. Tel: 01322 550676).

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