21.1 Andrew Houldey, Asset Data Officer (PROW Definitive Map) gave a presentation to the Committee aided by a power-point presentation which included photographs of the claimed way. (For information – A copy of the presentation slides has been uploaded to the Council’s website, and a copy is included in the signed minute book).
21.2 The Committee noted that the act which brought the right of the public to use the way into question was the erection of new stock fencing undertaken by the landowner in 1997, at point C (as shown on Appendix B1 of the report) and an accompanying sign at the same position. An application for an additional footpath at Castlett Bank, was received by the County Council on 10 July 2009. The qualifying period of use was taken to be 1977 to 1997.
21.3 In response to questions from the Committee the following matters were noted:
21.3.1There were two landowners; Guiting Manor Amenity Trust owned the woodland at Castlett Bank (section A-B of the claimed path), and the field (B-C of the claimed path) was owned by Mr and Mrs Forbes.
21.3.2 A trustee of Guiting Manor Amenity Trust had confirmed via a telephone conversation in September 2015, that the Trust had no comments and no objections to the application.
21.3.3 Members noted that Mr and Mrs Forbes were not in support of the application. Mr and Mrs Forbes commented on the application on 19 October 2015, indicating that there was no visible evidence of a path in 2009 when they were notified of the application. They had also indicated in a letter received 19 November 2015 that the path was not purposively blocked as there was no legal evidence that it existed. They had erected a stock fence in 1997 upon their ownership to replace the existing one as it was no longer stock proof.
21.3.4 The photograph showing the Slab stile at point B, looking south-east towards point C was supplied by the applicant in 2007, but was not dated. In 2009 officers visited the site and discovered that the area around point B had become much more overgrown (than shown in the applicant’s photograph taken pre -2007), and looked to have fallen into disuse.
21.3.5 A member made reference to the claimed path being detailed on the 1880s, 1903 and 1922 editions of the Ordnance Survey Maps of the area. He felt that this was clear evidence of a footpath existing and in use at that time. He acknowledged however that this was in contrast to there being no evidence of the existence of the footpath, in maps, and other documentary sources, of recent years.
21.3.6 Officers explained that as part of the legal test to determine on the balance of probabilities whether the right of way subsisted, the documentary evidence on a whole would be taken into account, and a judgement made as to how much weight was placed on particular aspects. Historic Ordnance Survey maps were not strong evidence that a right of way existed. Ordnance Survey maps had since 1889 carried a disclaimer that any representation of a road, track or path was not evidence of the existence of a right of way over it. Therefore, the surveyor for Ordnance Survey would have noted the character of a footpath, or that it was used as a footpath, but this was not evidence that it carried certain rights.
21.3.7 There were no maps with the Guiting Power Inclosure Award of 1798, and the Tithe maps of the area from 1842 did not show the claimed route.
21.3.8 The Guiting Power Parish Council minute book included the minutes of a meeting from October 1898 where reference was made to ‘…the dangerous part of the footpath between the Old Mill and Barton Brook Stile’. Mr Houldey explained that there was uncertainty as to whether the reference was about Castlett Mill, and therefore the entry could be taken to refer to the claimed route, or whether reference was being made to another path nearby. Mr Houldey confirmed that Castlett Mill (disused) was shown and named on the 1903 Ordnance Survey Map of the area. However, it could not be determined from the documentary sources at Gloucestershire Archives when exactly Castlett Mill had closed.
21.3.9 In the qualifying period of use between 1977 and 1997, only one witness had used the path throughout the whole relevant period. The Committee was informed that whilst there was no statutory minimum level of users required to show sufficient use to raise a presumption of dedication, use should have been by a sufficient number of people to show that it was ‘use by the public’. Reference was made to case law from 1999, whereby the judge had deemed that five user evidence forms was insufficient to satisfy the test. Only between the years of 1988 and 1997 was there evidence from 6 or more users.
21.3.10 Mr Houldey explained that there was insufficient evidence of use over the qualifying period even by taking into account the rural nature of the area. He suggested that the path was used very infrequently and placed emphasis on the point that the application was not submitted until 10 years after the claimed path was obstructed in 1997.
21.4 Having considered all of the information before it, the Committee
That no order be made to add the claimed footpath to the Definitive Map of Public Rights of Way.