8.1 Andrew Houldey, Asset Data Officer (PROW definitive Map), gave a detailed presentation to the Committee aided by a power-point presentation, which included photographs of the claimed route under consideration. (For information – A copy of the presentation slides is included in the minute book and has been uploaded to the Council’s website).
8.2 The Committee was informed that an application was received on 15 December 2006, made by Theresa Mansbridge, on behalf of Rodborough Parish Council, for an additional length of footpath to be added to the Definitive Map.
8.3 The Committee noted the route of the claimed path between Rodborough Avenue and Bath Road from point A-E on the location map attached at Annex 1B to the report.
8.4 The Asset Data Officer explained that whilst there was no overt act that could be considered to have brought the right of the public to use the way into question, Section 69 of the 2006 Natural Environment and Rural Communities (NERC) Act clarified that an application for a definitive map modification order was sufficient to bring a right of way into question under Section 53 of the Wildlife & Countryside Act 1981. He explained that as the application for a Definitive Map Modification Order was made in 2006, for the purposes of Section 31 of the Highways Act 1980, the 20 year qualifying period was from 1986 to 2006.
8.5 He informed the Committee however, that the claimed path between points B-E ran over Crown land. The Highways Act did not bind the Crown, therefore any claim for a right of way across Crown land could not rely on the 20 year provisions of the 1980 Act. The application was therefore being considered under common law.
8.6 The Asset Data Officer explained that although the land was owned by the Crown, it was not part of the Crown Estate unless the Crown completed the escheat, by taking steps to assert rights as its owner. He informed members that the Crown Estate’s solicitor had confirmed by letter that the land had been disclaimed. It was the contention of officers however, that as the land was owned by the Crown, then despite the Notice of Disclaimer, it would be considered to be Crown land in determining the application.
8.7 The Asset Data Officer explained that a total of 11 public path evidence forms, completed by 14 named individuals, had been submitted in support of the application, with use dating as far back as 1969. It was noted that seven witnesses had used the path for the full 20 year period prior to 2006, and one witness had used it for 19 years and another for 17 years.
8.8 The Committee was informed that were two objectors to the application, both of the objectors claimed to be the owners of the track to the garages from points A-B. However, it had been determined that the freehold was not registered with either of the objectors; members noted that the actual landowner had not responded to the consultation on the application.
8.9 The Committee was informed that the two objectors to the application claimed that a fence had been erected across the claimed route by the landowner at the Bath Road end, and that the fence was pulled down by members of the public using the path. Officers had determined however, that there was no user evidence to demonstrate that a fence had been erected to prevent use of the path. The Parish Council was not aware of any fence being erected, and there was no physical sign of such a structure found on the site visit.
8.10 A question was asked on whether each of the two sections of the claimed path, could have been dealt with as separate routes, because of their different ownerships. In response, the Asset Data Officer explained that the majority of the path was outside the scope of being considered under Section 31 of the Highways Act 1980, due to it running across Crown land. Consequently, the application for the whole of the route of the claimed path, was being considered under common law. He added that under common law the length of time needed to demonstrate sufficient use of the path was not fixed and was dependant on the facts in the case being considered. The shorter the length of time the path had been used then the more intensive and compelling evidence would be necessary to raise the inference of dedication.
8.11 Janet Smith, Senior Legal Adviser, pointed out that whilst it would have been possible for an application for the route at points A-B to be considered separately, this part of the claimed path 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).
8.12 A question was asked on whether cyclists would be restricted from using the claimed path, if it was added to the Definitive Map. In response, the Asset Data Officer explained that it was not a criminal offence to cycle on a footpath. He suggested that given the usage of the claimed path as a cycle route, if cycling on the footpath was prevented such as through the use of ‘No Cycling’ signs, then this could give rise to a restricted byway claim. He pointed out that at point C the claimed path crossed the former railway, which now formed part of a cycle track. Gloucestershire County Council owned the former railway, and discussions had been taking place with Rodborough Parish Council to dedicate the disused railway as a cycle route. There were however complex legal issues involved as the route was on Crown land, and therefore in-effect ownerless. He explained that one option being considered was the transfer of the former railway to a community group for them to dedicate as a cycle route.
8.13 A member asked a question on the maintenance costs of the footpath. In response, the Asset Data Officer explained that if an order was made to add the claimed path to the Definitive Map, then the path would became a County Council asset and the Highways Authority would be responsible for maintenance. It had a duty to keep the surface in a safe condition and fit for the type of traffic which was ordinarily expected to use it.
8.14 In response to a question on whether the landowner could object to an order for the claimed path being added to the Definitive Map, officers informed the Committee of the 42 day objection period which came into effect once the Notice had been published. The Committee noted that any objections would need to be backed by relevant counter evidence and would then be subject to the legal tests under Section 31 of the Highways Act 1980 or common law.
8.15 Having considered all of the information before it, the Committee
That an order be made to add the claimed path to the Definitive Map as a public footpath.