31.1 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).
31.2 The Asset Data Officer informed the Committee of the following corrections and clarifications to the report:
Ø Map 1B: The two gaps in the hedge shown on the initial application map and on map 1B as point A and B did not accurately portray the position of the gaps. The Committee was shown the correct location of the gaps on the presentation screen.
Ø Paragraph 15.35 and 15.36: Repetition of the phrase ‘the issue of compatibility is a question of fact in each case’.
Ø Paragraph 9.9: The last sentence should read ‘.…Inspector Rowena Meager, the chair of the Public Inquiry….”
31.3 The Committee was informed that an application was received on 23 November 2015, made by John Bond, the applicant, on behalf of the residents group known as ‘Friends of the land known as Debenhams Sports Field’ for an additional length of footpath to be added to the Definitive Map. The Committee noted the route of the circular claimed path as outlined on Map 1B to the report.
31.4 The Asset Data Officer informed the Committee that the claimed path ran over land known as Debenhams Field (formerly Bon Marche Sports Field). He explained that Debenhams Sports Field was the subject of an application for a new town or village green under section 15(2) of the Commons Act 2006. The application was made by John Bond in April 2013. A non-statutory public inquiry took place between 13 and 15 October 2014, and the application was formally refused by the Committee on 2 February 2015, following the recommendation made by the non-statutory hearing.
31.5 The Committee noted that there was no documentary evidence showing the claimed route as a physical feature. Therefore, the application was being considered solely on user evidence. It was reported that a total of 28 public path evidence forms, competed by 28 named individuals, were submitted in support of the application. Use was on foot, and two witnesses also claimed use by bicycle.
31.6 The Asset Data Officer explained that many of those who had completed public path evidence forms in respect of the application for an additional public footpath, had completed evidence forms for the town or village green application, and had given evidence at the public inquiry. As the evidence had been tested at the public inquiry, under cross examination, then it could be afforded greater weight. This enabled an informed decision to be made on whether the evidence was credible and supportive of a claim for an additional public footpath to be added to the Definitive Map.
31.7 The Asset Data Officer emphasised the point that during cross examination at the inquiry, it was established that many of the witnesses’ use was different from the use detailed in their submitted evidence questionnaires. The evidence questionnaires had all been pre-populated by and in discussion with the applicant, and had therefore not been completed independently. He added that precisely the same problems with the evidence in respect of the town and village green Inquiry had arisen in relation to the application for a public footpath. The public path evidence forms and maps had been pre-populated by the applicant, aimed at the town and village green application, and were almost identical in their content. He stressed that this greatly weakened the evidential effect of the forms and map and the overall credibility of the application.
31.8 The Committee was informed that a key issue with the evidence was that despite all of the witnesses signing up to a map showing they had accessed the sports field through two entry points on the eastern boundary, almost half of them had back gates leading onto the field. Therefore, indicating that there were a variety of points of access leading onto the field.
31.9 The Asset Data Officer explained that there were several possible actions that could be considered to have brought the right of the public to use the path into question. However, he considered that it was the action of erecting the fence along the eastern boundary of the sports field in 2007 with a view to excluding path users, which brought into question the right of the public to use the path, even though this was countered by path users removing the fence and demolishing the concrete post and gate within a few days. For the purposes of Section 31 of the Highways Act 1980, the 20 year qualifying period was therefore 1987 to 2007.
31.10 The Committee noted that there was a total of 14 witnesses who had used the path for the full 20 year period. The Asset Data Officer explained that whilst on the face of it there was sufficient user and frequency of use to infer dedication, he reiterated that the criticisms made by the Inspector as to the quality of evidence submitted in support of the town or village green application applied equally in this case. The Council could therefore simply not accept the evidence at face value.
32.11 The Committee was informed that the land was until 2015 held by a trust, who would not have had the capacity to dedicate; consequently a claim could not succeed under common law.
32.12 The Asset Data Officer informed the Committee that the landowner’s solicitors contended that the dedication of the claimed route as a public footpath would not be compatible with their public and statutory purpose under Section 31(8) of the 1980 Highways Act, this specifically related to the plans to create a new student accommodation campus on the land. The Asset Data Officer explained that officers disagreed with this assertion, as the case law relied upon by the solicitors related to railway land, use over which was a criminal trespass. Officers did not consider that the cases created a precedent for dismissing claims over land held by other public bodies.
32.13 In response to a question from a member, the Asset Data Officer explained that any development which took place on land which had a public footpath running across it, did not have to be built around the footpath, as the footpath could be diverted. He further clarified that a footpath could be extinguished or diverted under Section 257 of the 1990 Town and Country Planning Act where it was deemed necessary to allow development to take place.
32.14 A member questioned the legal implications involved with the bordering properties having boundary gates providing direct access to the field. In response, the Asset Data Officer explained that local residents had been gaining access to the field in this way for over 20 years, without challenge, but with no formal agreement in place. This could imply that they had established an easement or a private right as such.
32.15 the Asset Data Officer informed the Committee that on the balance of probabilities, the evidence supplied by the witnesses of use prior to the bringing into question in 2007 did not satisfy the tests either under section 31 of the 1980 Highways Act or under common law to add a length of public footpath to the Definitive Map and Statement. On that basis he had come to the conclusion that no order could be made to add the claimed route to Definitive Map.
32.16 Having considered all of the information before it, the Committee