Couple fighting to get footpath removed planning high court action

Ted Peskett, local democracy reporter

A couple who have been fighting for decades to have a footpath removed from their driveway are planning to take their case to the High Court.

Jean and Graham Underdown found out in September 2023 that their application to have footpath 73, which goes across a shared driveway in Clos Cwm Barri, was refused by Vale of Glamorgan Council.

The issue, which goes back more than 20 years, caused a long-running neighbourhood dispute with the Underdowns gating off part of the path and some people subjecting the couple to verbal abuse and damaging their property.

Tyres slashed

At one point the Underdowns had a breeze block thrown into the windscreen of one of their cars and had their car tyres slashed.

Jean said: “It is the pressure that you are constantly under all of the time and not only from the council but from residents as well.

“They don’t want footpaths through their property but they don’t mind walking through yours.”

Vale of Glamorgan Council said the footpath had already been in use for more than 20 years but Jean and Graham dispute this.

At a public rights of way planning sub-committee meeting on September 6, 2023, one professional aerial photographer produced a report stating that pictures taken in 1979, 1981, 1990, 1992, and 2000 show that there is no trace of a public right of way along what is now footpath 73 during that period.

In a planning report presented to that same committee the council argued that “aerial photographs cannot in any event provide persuasive evidence of the status of a right of way or the basis on which it is used”.

hopeful

Jean remains hopeful that she and Graham will get the decision they have been seeking for decades but said this could take many more years.

She added: “I am not getting any younger and I have got very serious health issues which have been brought on by all of the worry and the stress that I have been put through over the years.

“We could have sold the house a long time ago but it is blighted – permanently blighted.

“Nobody would want to buy this house – nobody. We are stuck in limbo.”

The Welsh Government’s planning arm, Planning and Environment Decisions Wales (PEDW), decided in October 2024 to refuse an appeal on Vale of Glamorgan Council’s decision regarding footpath 73.

Jean claims the PEDW inspector never carried out a site visit of her property to get a better idea of the problem she and her husband face.

This is one of the key reasons she is challenging the inspector’s decision to dismiss the appeal.

Before seeking a judicial review on the matter a letter of claim has to be made to the Welsh Government.

The Underdowns are hoping the letter of claim will be enough to quash the decision of the planning inspector.

Campaigner

An experienced campaigner involved with disputes relating to public footpaths, Karen Medhurst, has been helping the Underdowns with their case and is preparing a letter before claim on their behalf.

Even if the Underdowns get their day in court Karen also cautioned that this can be a “tortuous” process that takes years.

She said there are many cases of people having to wait decades on decisions regarding footpaths going across their private property.

Karen added: “This is the problem and it is throughout England and Wales.

“The act, the Wildlife and Countryside Act, it is not very good at timelines so basically it is left to local authorities.

“The Vale of Glamorgan doesn’t actually have many applications on their books – it is a dozen maybe.

“Each one, especially if it is controversial, is a tortuous, lengthy process. Jean’s case is just not unusual.”

The Deregulation Act 2015 was supposed to speed up the decision-making process on footpath disputes but this has been years in the making.

The legislation came into force in November 2023 and applies to England.

We asked the Welsh Government if it has plans to introduce any legislation to speed up decision-making on footpath claims and about Jean and Karen’s criticism of PEDW’s decision in October.

A Welsh Government spokesman said: “It would be inappropriate for us to comment on an inspector’s decisions which may be subject to legal proceedings.”

When we spoke with Jean and Graham in October 2023 one of the problems they faced with the footpath was the amount of dog mess and mud on their driveway.

Some local residents pointed to the council’s decisions over the years to keep the footpath in place and said their right to walk along it has been hindered at times.

Respectful

One resident we spoke with who did not want to be named, also in October 2023, said they did not condone the incidents of vandalism and intimidation aimed at the Underdowns and another said that they and many other residents use the path without disturbing the couple and are respectful of their property.

The beginnings of the issue can be dated as far back as 1994 when Wimpey, before the company’s merger with Taylor Woodrow to become Taylor Wimpey, obtained planning permission to build new homes on land off Cwm Barry Way and Pontypridd Road.

As part of the planning approval Wimpey were under condition to provide a public access to the proposed public open space that footpath 73 goes through.

However Jean and Karen claimed this was not fulfilled when Jean and Graham bought their home in 1999 and that the access used as part of footpath 73 was incorrectly passed off as the achievement of the condition.

Vale of Glamorgan Council’s order for the creation of a footpath off Clos Cwm Barri wasn’t confirmed until 2003.

The Underdowns argued that the public access should have been put in elsewhere or redirected to another location in the estate that doesn’t go across anyone’s private property.

Another application was made to delete the footpath in 2009.

“They never put one in,” said Jean about the introduction of a public access at the housing estate developed by Wimpey.

“A lot of people bought houses up here who were old with dogs.

“I have got to be honest, there were not many schoolkids up here when I moved.

“The selling point of having public access into public open space for their dogs… that is why they bought properties and they said it was a selling point.”

Karen said: “Footpath 73 has been passed off as the pedestrian access which was a planning condition and a section 106 planning obligation.

“People, when they look at their deeds and they see this term ‘pedestrian access’… they think the footpath is the pedestrian access which they were promised but of course it is not.”

A Vale of Glamorgan Council spokesman said: “Planning conditions do not have a set timeframe to be implemented. Instead this varies according to the specific requirements in each case.

“The council always aims to act quickly where there has been a breach of planning permission.

“In this instance it is satisfied that all procedures relating to planning permission and the public right of way have been followed properly.”

Complied

A Taylor Wimpey spokesman said: “Whilst we understand the concerns raised by the homeowners we have previously investigated the issue and are of the view that we have fully complied with the relevant planning permissions.”

The PEDW planning inspector overseeing the appeal to the council’s decision on footpath 73, Mark Yates, said in a report that “some weight” should be given to the aerial photographic evidence of the land.

However he went on to add that aerial photographs, presented by Christine Cox of Air Photo Service, can “only show the nature of the land on any given day” and that the lack of signs of visible wear does not demonstrate that a path was not used.

One area Karen and the Underdowns have suggested the footpath be redirected to is a kissing gate in Lon Fferm Felin, which is about a five-minute walk away.

Karen said: “Although Jean has not been served justice over the years you have to have faith in the justice system otherwise where would be be?

“We just hope and pray that the truth will out and the footpath will be deleted.

“Yes people will maybe be a bit annoyed initially but it won’t take long before people get used to walking down to the kissing gate.”