Agenda and minutes

Commons and Rights of Way Committee
Wednesday 12 October 2011 10.00 am

Venue: Meeting Room 1&2 - Shire Hall, Gloucester. View directions

Contact: Alison Wantenaar 01452 425094 

Items
No. Item

21.

Election of Chairperson

To elect a Chairperson for the ensuing year.

Minutes:

Nominations were sought for the position of Chairman for the ensuing year. Two nominations were received, for Cllr Allen and Cllr Cordwell. On being put to the vote, the committee

 

RESOLVED

 

That Cllr Allen be elected Chairman for the ensuing year.

22.

Minutes - pdf icon PDF 65 KB

To approve as a correct record the Minutes of the meeting held on 24 June 2010.

Minutes:

The minutes of the meeting held on 24 June 2010 were accepted as a true record without amendment. It was therefore

 

RESOLVED

 

That the minutes of the meeting held on 24 June 2010 be approved as a correct record and signed by the Chairman.

23.

Public Questions -

To answer any written or public questions about the matters, which are within the powers and duties of the Committee.

The closing date /time for the receipt of questions is 10am on Wednesday 5th October 2011.

 

To answer any oral question(s) put by members of the public.

 

Depending on the nature of the oral questions asked it may not be possible to provide a comprehensive answer at the meeting, in which case a written answer will be supplied as soon as reasonably possible after the meeting.

Minutes:

Mr Guy Adams asked the following question with regard to agenda item 9:

 

‘The report fails to include vital evidence presented to the council on 28 October 2010, confirming that the route was unlawfully recorded as a restricted byway and its entry in the definitive map as void. In 11 months a written answer has not been provided  (only the suggestion of a meeting to talk about the matter) all of which means the issue will not progress until after the determination of this order.

 

As this issue deals with a mistake in law that directly relates to the Quenington-Bibury application, then can the committee explain on what grounds it is going to ignore this evidence and accept a report that does not contain detail of all the relevant information when making its decision, if it proceeds?

 

Mr Adams also asked for a response to an e-mail of his dated 5th October 2011. Officers confirmed that this e-mail and their response had been provided to all members of the committee and the full text follows:

 

From Mr Adams on 5 October 2011

 

‘Despite providing written requests for the GCC to provide its report for the Definitive Map modification application for 573/11/27(5) in  Parishes of Quenington and Bibury, in good time for public questions to be considered and presented to the October CROW Committee, it has failed to do so. As applicants for the order the TRF believes that it is totally unreasonable of the GCC to have provided its report to us only 8 theoretical working hours before a deadline for submitting public questions expired.

Given that the report fails to contain the full submission of input that the TRF has provided and that questions need to be raised about other aspects of the report, this can only be achieved with more consideration and time available. This is particularly relevant given also that I am in the USA with limited access to the files and facing a six hour time disadvantage compared with GMT.

Given that the GCC has provided insufficient time for the TRF to fully read, digest and consider its report (thus prohibiting public questions to be submitted by the required deadline of 10am on Wednesday 5th October) we request that the Committee withdraws this case from its agenda of 12th October and determines the application at a future meeting. Will the Committee uphold this entirely reasonable request, which is made in the interests of natural justice being served?’

 

John Lane, Principal Rights of Way Officer, had responded thus:

 

1981 Wildlife and Countryside Act

Schedule 14 of the 1981 Act sets out the procedure to be followed in determining an application for a Definitive Map Modification Order after it has been received and adjudged to have been duly made.  Paragraph 3 of schedule 14 states that the only requirement of the surveying authority, when processing such applications, is that they consult with “every local authority” in the area covered by the application and then decide  ...  view the full minutes text for item 23.

24.

Members' Questions -

To answer any written members’ questions. The closing date/time for the receipt of questions is 10am on 5th October 2011.

Minutes:

No Members’ questions were received.

25.

Application for Registration of an area of land known as Sophie's Pitch as a Town or Village Green pdf icon PDF 242 KB

To consider the attached report of the Director of Law and Administration

 

Recommended

 

That the application by Mr Kenneth Nicholls for the registration of an area of land known as Sophie’s Pitch, Eastington, as a town or village green pursuant to Section 15 of the Commons Act 2006 should be granted as the applicant has successfully shown that the land in question has been used for lawful sports and pastimes by a significant number of the inhabitants of any locality, or a neighbourhood within it, in accordance with the statutory provisions.

Additional documents:

Minutes:

Janet Smith, Senior Lawyer, made a presentation on the case. She recalled that the matter had come before the committee in 2008 and had been adjourned due to late representations. She highlighted the salient points of the application and the legal tests.

 

It was noted that the oblong grassed area within the Swallowcroft estate, claimed as a village green and known as ‘Sophie’s Pitch’ fronted Number 9, Bath Road. This property was now subject to development and the only vehicular access was across the claimed village green. Photographs of the site taken in 2008 and 2011 were displayed. The function of the inspector’s report; page 37 to 50 in the papers – was to advise the Registration Authority (Gloucestershire County Council) first as to the appropriate procedure for resolving the dispute and second, to recommend whether the application should be granted. This report found that there was sufficient evidence in support of the application. It also found that the suggestion that the application was ‘collusive’ was not substantiated and that the owner of the site had expressed their willingness for the matter being determined by an inspector. The report concluded that, subject to the Registration Authority being satisfied on the issue of ‘neighbourhood’, that the land should be registered as a town or village green.

 

As there were a significant amount of additional papers submitted to the committee after the reports were published, ten minutes were taken to enable all present to read these additional papers. Janet Smith explained that representations had been received from: the owner/developer of the adjoining land, Eastington Parish Council, a number of local residents and the Director of Bathurst Homes Ltd. She set out what the registration Authority regarded as being the ownership history but pointed out that the decision on a successful village green application depended on the statutory criteria in Section 15 of the Commons Act 2006 being satisfied.

 

In response to questions of the photographs, it was clarified that the land behind the developer’s fencing did not form part of the application. It was enquired if any complaints had been received regarding the use of the land in question. The answer was negative; it was pointed out that such considerations were not relevant to the application. It was also confirmed that further photographs, showing the area in use by children and families had been presented to the inspector. These were made available to the meeting. It was pointed out that during the time the land had been used by the community, those using it had not known that it was under threat so had no reason to keep photographic evidence. It was confirmed that the name ‘Sophie’s Pitch’ derived from the daughter of a resident.

 

It was enquired what access would be allowed if the application was successful. Janet Smith explained that no development could then take place on the land but made it clear that the planning consent and the village green application were totally separate matters. ‘Grasscrete’ would  ...  view the full minutes text for item 25.

26.

Application for additional public footpaths at Box Woods, Parish of Minchinhampton pdf icon PDF 172 KB

To consider the attached joint report of the Commissioning Director for Communities & Infrastructure and the Director of Law and Administration

 

RECOMMENDED

 

that two lengths of public footpath be added to the Definitive Map of Public Rights of Way, in the positions as surveyed.

Additional documents:

Minutes:

Andrew Houldey, Public Rights of Way Operations Officer, introduced the item. He started by tabling a summary of evidence contained in the 1910 Finance Act map and field books, which were held at the National Archives. An e-mail was read out from Matt Bullock of the solicitors representing the landowners which queried the process regarding consultations. It was confirmed that the County Council went beyond the statutory requirements set out in 1981 Wildlife and Countryside Act regarding how the Council process and present Modification order Application. Andrew Houldey stated that the process was concerned with the discovery of evidence. It was the view of officers that an additional round of consultations would not be of assistance as no new matters of evidence were raised in the previous round.

 

The Committee was shown a slide show of photographs of the two claimed paths in April 2010. The photographs showed the claimed paths very clearly on the ground. They also showed several obstructions; of wall and wire and of brushwood. In response to a question it was confirmed that all of the obstructions were on the claimed paths and not on the existing definitive public footpaths that ran through Box Woods. It was explained that there was a slight difference between the claimed route submitted and the actual route on the ground; if the Committee agreed to make an order then the path would need to be re-surveyed.

 

Certain notices were discussed. There were two types of notice. One was a Board on the Definitive path and the other was a No Entry sign near point B2 on the claimed path B (see maps). It was felt that the information boards gave a misleading impression that permission was required from the owners to use the definitive paths, which was not correct. Whilst a landowner could give permission to use paths on his land, no such permission was required to use a legally recorded public right of way.

 

It was pointed out that no documentary evidence had been discovered which suggested that the claimed ways carried historical rights. The claim was based wholly on long use. The legal presumption was that a way had been dedicated through long use by the public, unless the landowner could demonstrate sufficient evidence of a lack of intention to dedicate (through overt acts directed at path users) or through interruption during the relevant twenty year period.

 

It was noted that 74 members of the public completed evidence forms detailing their use of the path on foot. Use was brought into question by the blocking of the paths and the erection of suitably worded signs by the present landowner in 2010; the qualifying period of use (for the purposes of Section 31 of the 1980 Highways Act) should be taken to be from 1990 to 2010. Evidence of use dated back to 1954, with fifteen witnesses claiming use since the 1970’s or before. There were twenty witnesses who had used the path for the whole of the qualifying  ...  view the full minutes text for item 26.

27.

Application to reclassify Public Footpath BQU 1 and restricted byway KBY 14 to byways open to all traffic, parishes of Bibury and Quenington pdf icon PDF 221 KB

To consider the attached joint report of the Commissioning Director for Communities & Infrastructure and the Director of Law and Administration

 

RECOMMENDED

 

a)            That the application to reclassify public footpath BQU 1 and restricted byway KBY 14 as byways open to all traffic (BOATs) be refused

b)           That public footpath BQU 1 be reclassified as a restricted byway.

Additional documents:

Minutes:

Andrew Houldey, Public Rights of Way operations Officer, introduced the item. A revised summary of usage of the way, by members of the Trail Riders’ Fellowship, was tabled. Andrew Houldey then provided photographs as a slide show, of the claimed path and a presentation of the documentary evidence for the application.

 

It was explained that the applicant, representing the Trail Riders Fellowship (TRF), had applied for both sections of the route to be reclassified as byways open to all traffic. Andrew Houldey explained how the application had been made after the cut-off date for part 6 of the 2006 Natural Environment and Rural Communities (NERC) Act, under which unrecorded public motor vehicular rights had been extinguished subject to exceptions set out in S.67 (2) and (3) of the Act.

 

The report set out in detail the evidence that the way carried historical carriageway rights. The exemptions to extinguishment of unrecorded public motor vehicular rights under S. 67 (2) of the (NERC) Act set out in the report were considered. Particular consideration was given to the main user test in the Act. Attention was drawn to the submissions made by the landowner, Quenington Parish Council and the various user groups. It transpired that the route had been used predominantly by people on foot. The data provided by the TRF indicated that 1.5 journeys per week had been made by their members in 2005-6.

 

An explanation was given how the route had come to have two classifications; the northern section being a restricted byway and the southern end a public footpath. The two sections fell in different parishes in different rural districts such that the paths became part of the definitive map at different times.

 

In response to a question about the local landowners’ rights of vehicular access, it was explained that their rights were not affected by the application and that it was possible to have private rights over public rights of way. In summary the evidence was that carriageway rights existed over the whole of the claimed route but that none of the exemptions to extinguishment of unrecorded public motor vehicular rights set out in Sections 67(2) and (3) of the 2006 NERC Act had been met.

 

On being put to the vote it was proposed, seconded and

 

RESOLVED

 

a)            That the application to reclassify public footpath BQU 1 and restricted byway KBY 14 as byways open to all traffic (BOATs) be refused

b)           That public footpath BQU 1 be reclassified as a restricted byway.