15.1 Jaci Harris, Asset Data Officer (PROW Definitive Map), gave a detailed presentation of the report to the Committee, aided by a power-point presentation, which included photographs of the claimed routes 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).
15.2 The Committee was informed that the applications were received on 23 November 2016 (two) and 20 December 2016, made by Mr A Kingsbury (‘the Claimant’), for three additional lengths of public footpath to be added to the Definitive Map.
15.3 The Committee noted the three routes of the claimed paths (Routh A, Route B (split into B1 and B2), and Route C) across the land adjacent to Henley Road, Springbank, Cheltenham, as outlined on the Order Plan attached at Appendix GCC3 to the report.
15.4 The Committee noted that Severn Trent or its subsidiary Midlands Land Portfolio Ltd owned the land over which the paths crossed. The current tenant, Mr R Pullen, had had the tenancy since 1969. The land was currently agricultural and located within the green belt. The Committee was informed that there was a proposal as part of the Cheltenham, Gloucester and Tewkesbury Joint Core Strategy to remove the Green Belt status, to make way for an urban extension of residential and commercial development.
15.5 The Asset Data Officer explained that there was no documentary evidence in existence to indicate that the claimed routes were ever dedicated as public highways. As a result, the applications had to be determined upon the evidence of long user under Section 31 of the Highways Act 1980, or at common law.
15.6 The Committee noted that 35 public path evidence forms, completed by 30 named individuals, were submitted in support of the application. The Asset Data Officer presented a detailed summary of the user evidence. She explained there was a significant number of user evidence forms which suggested repetition or were considered to be lacking in quality. There was also evidence of repetition on the map users were asked to mark down the routes. Members were informed that this lessened their overall evidential weight.
15.7 The Asset Data Officer explained that when considering the application under Section 31 of the Highways Act 1980, there were three possible dates of when the public right to use the path was challenged/brought into question and from which the 20 year qualifying period could be determined.
15.8 The first date was 2016 based upon the landowner’s solicitor’s consideration that the date of the application was the date of the challenge. The Asset Data Officer explained that she had determined the digging of the ditch in 2001, and the erection of the substantial metal fence by 2005, by the landowner/tenant around the same time or after the farming of the fields was changed from pasture to arable (2001/2002), to be actions aimed at preventing all public access, as stated in the solicitor’s submission, rather than stock control. She had concluded that those actions would constitute interruptions capable of refuting all three applications.
15.9 The Committee was informed that the second possible date of challenge was 1984 based upon two separate sources of evidence. The first being a statement (dated 14 February 2017) from Mr Peter Holt, a local resident of the area. In his statement Mr Holt indicated that stronger wire fencing was erected to prevent access around the year 1983. It was reported that the year 1983 closely related to the date of the second source of evidence, a letter (dated 20 November 1984) from the County Surveyors Office at Gloucestershire County Council to the Farm Manager for Mr Pullen. The letter indicated that the horse riders crossing the land were trespassing unless they had permission; the letter also made reference to a gate on the land which could be locked as requested by the police. The Asset Data Officer explained that whilst erecting the stronger wire fence legally evidenced the landowners lack of intention to dedicate, this could have been seen by the public as improving stock control rather than preventing public access. She added that there was no evidence to indicate that the contents of the letter regarding mis-use of the fields were communicated to the public except possibly the locking of the gate. Further, there was no long user evidence as the user evidence only dated back to 1970. The Asset Data Officer indicated that for those reasons the year 1984 did not constitute a date of challenge.
15.10 It was reported that the third possible date of challenge was 2001. The ditch excavated in 2001 constituted an identifiable ‘bringing into question’ of the publics’ use of the three claimed paths and also evidenced the landowner/tenant’s lack of intention to dedicate them. The Committee noted the quantity of user evidence for the qualifying periods as outlined in the bar chart at appendix GCC17 in the report. The Asset Data officer explained that the low level of users of the paths over the 20 year qualifying period was considered insufficient to support a claimed dedication.
15.11 The Asset Data Officer emphasised the point that over the last 46 years the Highway Authority had received no reports of ‘obstruction’ on any of the three routes.
15.12 The Asset Data Officer informed members that where an application failed the test for statutory dedication under Section 31 of the Highways Act 1980, rights may be dedicated at common law. She added that under common law the burden of proof rested with the Claimant to show that the owner of the land intended to dedicate the route in question. With regard to user evidence, 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
15.13 The Committee noted that there was a relatively small increase of users over the 42 years as shown on the bar chart at Appendix GCC17 to the report, leading up to the date of the application in 2016. The Asset Data Officer emphasised the point that whilst the paths were not set out by the landowner/tenant as they ran over agricultural fields, one would have expected the paths to have become more prevalent over the years (e.g. through dog-walking), as alternative open space areas reduced, due to the substantial development of the local area. She indicated that an increase in the number of people living in the area should also have led to an increase in the numbers of people using the paths. It was suggested that the low number of users could be attributed to the fact that there were other areas of green space and amenity land within walking distance of Henley Road.
15.14 The Asset Data Officer explained that when looking at the user evidence she had considered three periods of time under common law. The first was a 10 year period between 1974-1984; the second a 15 year period between 1985-2000; and the third an 11 year period between 2005-2016. The Committee noted the analysis of the users for each of the three periods as set out in the report.
15.15 The Committee noted that since 1974 the landowner could have dedicated the paths under common law; however, the Claimant had not produced any evidence of a positive intention to dedicate the paths by the landowner over the considered periods.
15.16 The Asset Data Officer informed the Committee that under common law the evidence had to be considered in its totality. In its totality the evidence showed the clear lack of intention by the landowner to dedicate the routes as public rights of way over many years. Whilst there was a degree of user evidence it was determined to be insufficient on an urban fringe of Cheltenham. On that basis she had concluded that there could be no implied dedication of the claimed routes at common law on the basis that user was by force and thus not ‘as of right’.
15.17 Cllr Simon Wheeler explained that he was aware of a number of local people who were more concerned about not being able to use the paths, as opposed to being concerned about the plans for the development of the land. He contended that there were more users of Route A than the 17 evidenced in the report. He recalled that there had been a significant level of anti-social behaviour on the land, and as a result, local people had been in support of the erection of the substantial metal fence. He suggested that the users of the paths did not object to the erection of the fence as they would have believed this to be a measure to prevent access to the land by motor vehicles only.
15.18 In response to Cllr Wheeler’s comments, the Asset Data officer explained that the initial evidence the Claimant had submitted in support of the application, was deemed to be insufficient. The Claimant was asked to provide more substantial evidence before the application could be progressed; this was subsequently provided by the Claimant. The Asset Data officer emphasised that the user evidence documented in the report should therefore be considered within the context of the there having been an additional request to the Claimant to provide more evidence. Members of the Committee were reminded that they would need to base their decision on the evidence supplied.
15.19 In response to a question from a member, the Committee was informed that the user evidence forms and maps, were supplied to the Claimant to distribute, which was the usual process.
15.20 The Asset Data Officer informed the Committee that she had spoken to planners representing the landowner to discuss the three routes over the land. The initial indications were that two out of the three routes would be maintained as footpaths within the development.
15.21 A member expressed concern that despite the measures taken to prevent public access to the land, the users did of the paths did not view them as an obstruction directed at them, only to access by motor vehicles. The Asset Data Officer explained that whilst it was clear that the landowner/ tenant was trying to prevent the public with motor vehicles from accessing the fields, it must be noted that the landowner excavated the ditch and erected the fence along the whole length of the fields abutting Henley Road, leaving no provision for access to any user group, thus indicating that he was trying to prevent all access. Some members of the public had notified Mr Pullen when fencing had been damaged and the livestock escaped, and therefore it seemed because of this he had inferred permission to some of the local people, which would not in itself constitute user ‘as of right’. She added that even though local people assisted the tenant, none complained to the landowner/ tenant with regard to the lack of provision of a crossing point in the fencing and ditch and no complaints were received by the Highway Authority of obstruction of the paths. The ditch was excavated in 2001 and yet it took 15 years for the DMMO application.
15.22 Having considered all of the information before it, the Committee
That no definitive map Modification Order be made to record the claimed routes as public footpaths.
(Cllr Simon Wheeler abstained from the vote).