Agenda item

Application for a Modification Order for Additional Footpaths at Claymeadow Farm - Parish of South Cerney

Minutes:

5.1      Andrew Houldey, Asset Data Officer, (PROW Definitive Map) informed      the Committee of the following corrections and clarifications to the          report:

 

Ø    Clarify recommendation- refer to 17.9.

Ø    8.11                 Reverse two points B and C (lines 4 and 5).

Ø    8.25                 Third line- regarded should read regraded (automatic                                      spellcheck).

Ø    9.10                 This point is now designated J on map B (last line).

Ø    14.1                 Applicant- maps- evidence form map is 1I, application

                                                map is 1J.

Ø    16.34              No longer (since 2013) required to display notices on site                              of s.31(6), only on website, as a result of 2013 Growth &

                                    Infrastructure Act, unless combined with deposition under                 schedule 15A (Village Green).

Ø    16.48              2002 should read 2012, making the relevant 20 year                                       period under the s.31 of the 1980 Act 1992 to 2012.

Ø    16.50              Word missing “way”, line 1 after “crossed by the way, the                                public             have an undoubted right to deviate.

Ø    16.51              GCC owned both properties until 2012 not 2002.

 

5.2      The Asset Data Officer gave a presentation to the Committee aided by a power-point presentation which included photographs and maps of the claimed routes.  (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).

 

5.3      The Committee noted that an application for additional footpaths at Claymeadow Farm, was received by the County Council on 4 July 2013. Members were informed that initially there was a discrepancy between the application map and the evidence form map submitted by Mr Hill, the Applicant, as the two maps submitted each showed different paths he wished to claim.  However, the Applicant did subsequently clarify to officers that the evidence form map was the one which the public path evidence forms and application were based on.

 

5.4      It was reported that Claymeadow Farm was purchased by the present owner from Gloucestershire County Council in September 2012.  Claymeadow Farm had previously been used as a Rural Interpretation Centre by the County Council from 1997 to 2011.  The new owner was using the land to farm alpacas, and high wire fencing had been erected around their paddocks, around the outer perimeter of the property, and alongside the two rights of way recorded on the Definitive Map that crossed the land.   The new owner had blocked off the non-definitive paths which ran over the land, making them impassable.  This act brought the right of the public to use the claimed routes into question.  The qualifying period of 20-years use was therefore taken to be 1992 to 2012.

 

5.5      The Committee noted that 94 public path evidence forms had been completed by 102 individuals.  An additional letter was submitted by one witness outlining their use of the path.  There were no individual maps attached to the evidence forms, they all referred to an annotated, lettered plan submitted with the application.  The Asset Data Officer drew attention to the fact that the answers to some of the questions on the public path evidence forms had been typed out by the Applicant before he distributed them to the witnesses for completion.

 

5.6      It was reported that use dated back to 1954, and there were 64 submissions from individuals who had walked the paths for 20 years or more. Only two witnesses had crossed out the description of one of the two paths pre-typed on the evidence forms to show that they had only used the path between points F to G (all lettered points referred to are shown on the map at Annex 1B to the report). Use of the paths was on foot only.

 

5.7      The Asset Data Officer confirmed that the application was not invalidated by the Applicant supplying two maps each showing different paths that he wished to claim.  However, the evidential value of the public path evidence forms had been weakened by pre-populating the form and by the lack of individual maps accompanying user evidence forms. 

 

5.8      The Committee noted that Gloucestershire County Council and the Bathurst Estate had both made depositions under S.31(6) of the 1980 Highways Act.  In response to a question, the Asset Data Officer clarified that S.31(6) deposits had the effect of preventing use from establishing a right, but were only effective when the initial deposition had been followed up by a statutory declaration within the period set out in the legislation.  The Bathurst Estate depositions had effectively showed sufficient lack of intention to dedicate a right of way over their land and hence provided protection over their land since 1987.  The deposition made by County Council was not followed up by a declaration so did not have any effect.  

 

5.9      The Asset Data Officer explained that the initial Bathurst Estate deposition made in 1987 was not considered to be an event that brought into question the right of the public to use the path.  Without such trigger event from which 20 years could be backdated, any use before 1987 could only be considered under common law between 1971 and 1987 rather than under the statutory provisions set out in S31.of the 1980 Highways Act.  He explained that officers had concluded that there was insufficient evidence under common law between 1971 and 1987 to infer dedication.

 

5.10    The Asset Data Officer reported that signs were erected in September 1997 by the County Council, ahead of the opening of the Rural Interpretation Centre.  The signs were erected at all three points where a stile led onto the Rural Interpretation Centre from a public footpath, namely points C, E and F. The wording was “G.C.C. Private Property Keep to public footpath”.  The signs were extant at E and F until 2012.  It was understood that the sign at point C was removed when the stile upon which it was situated was replaced by a kissing gate in 2010.  He explained that given the position of the signs, their wording and that the Interpretation Centre was open by arrangement for school parties, it was the opinion of officers that the signs showed a sufficient lack of intention to dedicate a right of way over paths F to G and A to C during the 20-year period. 

 

5.11    In response to a question, the Asset Data officer explained that the claimed route G to F, did not connect to a highway at each end.  Although there was nothing in law to state that a public highway could not exist when it did not join a right of way at both ends, it was usual that a right of way would lead to a ‘place of popular resort’ (e.g. a beach or view point).  The route was in effect a cul de sac path that did not lead to a place of public resort.

 

5.12    The Committee noted that public path users had a right to deviate when a path was obstructed, provided that they remained on land in the same ownership.  The towpath was blocked from 1970 until at least 1993 or possibly 1997, and this led to path users walking on a parallel path between point B and the Cirencester Road.  The Asset Data Officer explained that both the towpath and Claymeadow were in the ownership of the County Council, so any such use would be by right as opposed to as of right, so would not have established a public right.

 

5.13    The Committee noted that as the towpath was blocked and impassable between the Cirencester Road through Lock House to beyond point C on the Map at Annex 1B to the report, until October 1993, there would only have been 19 years use over path A to C. Therefore, not the full 20-year period as required by statute.  The Asset Data Officer explained that as the stile and steps were put in at point C in June 1997, it was considered that there may only have been 15 years use. 

 

5.14    Having considered all of the information before it, the Committee

 

            Resolved

 

            That no order be made to add the claimed footpaths over the two routes to the Definitive Map of Public Rights of Way.

Supporting documents: