Agenda item

Application for a Modification Order to add a Public Bridleway - Parish of Southam

Minutes:

38.1    Jaci Harris, Asset Data Officer, gave a detailed presentation to the Committee aided by a power-point presentation, which included photographs and maps of the two 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).

 

38.2    The Asset Data Officer informed the Committee of the background to the application. She explained that on 9 March 2017, the Footpath Secretary to the Cleeve Group of the Ramblers Association had contacted Gloucestershire County Council to ask that an apparent anomaly found on the legal record, affecting the first 133 metres of the Public Bridleway ASM25, be addressed. 

 

38.3    The Asset Data Officer explained that she had carried out a detailed investigation and had come to the conclusion that the alleged anomaly was the result of a drafting error on the Definitive Map.  All but the first 133m (approx.) of Public Bridleway ASM25 was shown on the Definitive Map co-existent with Bentley Lane, the first 133m however, was shown in the field abutting the lane. 

 

38.4    The Asset Data Officer explained that Mr and Mrs O’Connor, the owners of the property located on Bentley Lane known as ‘Bentleys’ had stated to the Case Officer that they had received verbal confirmation from the Public Rights of Way (PROW) Officer for Tewkesbury District, that the Definitive Map showed the first part of Public Bridleway ASM25 in the adjacent field and not along Bentley Lane and the highway authority would therefore not maintain it.  The Committee was informed that there was no written record of the conversation and the PROW Officer no longer worked for the authority.  The Asset Data Officer stressed to members that whilst the information given by the PROW Officer was technically correct, it was only technically correct due to an anomaly.  Section 56 of the 1981 Wildlife and Countryside Act stated that the Definitive Map was legally conclusive as to what it showed without prejudice to the existence of other rights.

 

38.5    The Asset Data Officer explained that the property owners had claimed that as a result of the conversation with the PROW Officer, they had undertaken a number of improvements works, including the installation of electric gates across the lane, which had effectively prevented all public access.  She emphasised to members that the property owners had taken a risk by carrying out the improvement works and installing the gates, as the land was un-registered.

 

38.6    The Committee was informed that the Case Officer had discussed the anomaly with the owners of the property, and had made them aware of the substantial historical documentary evidence, which officers considered, on the balance of probability was sufficient to provide evidence of public highway rights along the whole of Bentley Lane. The Case Officer had discussed with the property owners, the option of the repositioning of the driveway gates. The Case Officer had suggested to the property owners that a Diversion Order under the provision of Section 119 of the Highways Act 1980, was the most expedient way of resolving the issue, and a letter was sent to them outlining the proposed way forward. 

 

38.7    The Committee was informed that a Public Path Diversion Order was subsequently made, but following receipt of an objection from the property owners, the matter was submitted on 1 September 2017 to the Secretary of State, for confirmation by the Planning Inspectorate.  On 11 May 2018 the Planning Inspectorate returned the order refusing to confirm it on the basis that the test of expediency had not been met and the issues regarding the anomaly were outside the remit of s119 Highways Act 1980.

 

38.8    The Asset Data Officer informed members that following the return of the order from the Planning Inspectorate, a Definitive Map Modification Order application was received from the Footpath Secretary to the Cleeve Group of the Ramblers Association on 25 May 2018, to ‘correct the error on the Definitive Map to confirm the historic true route of ASM25 along the Lane as shown between points A and B on the attached map’.

 

38.9    The Asset Data Officer gave a detailed description of the documentary evidence associated with the application which she explained had been obtained from many diverse and independent sources. 

 

38.10  The Committee noted that documents drawn up under statutory authority, in the public domain, were considered as having greater evidential weight, such as the Tithe Appointment and Finance Act map.  The 1842 Tithe Map (first class) showed Bentley Lane as untithable and excluded from the valuation, and coloured in a similar manner to other know highways in the area.  The 1910 Finance Act valuation plan showed Bentley Lane as uncoloured and excluded from surrounding hereditaments, all of which were in the same ownership.

 

38.11  The Committee was informed that issues relating to Bentley Lane were raised on such a regular basis, that it had its own sub-heading in the Southam Parish Council minutes, over a period of 37 years from 1933-1970.  The minutes showed that the parish, rural, district and county council by their actions considered the claimed path to be a public bridle road wholly located in Bentley Lane.

 

38.12  The Asset Data Officer explained that the anomaly between the Definitive Map and the written statement appeared to have occurred during the process leading to the creation of the legal record of public rights of way under the NPACA49.  To comply with this legislation in the drawing up of the Definitive Map and written statement, the authority initially provided parish councils with Ordnance Survey 6”:1 mile, 1924 edition maps to record their public path networks.  Southam Parish Council’s original submission had a layer of tracing paper sellotaped onto it, which the existing roads, some of which were claimed by the parish as footpaths or bridleways were annotated (For Information: committee members had taken the opportunity to view the original submission with the tracing paper attached).   

 

38.13  The Committee was informed that the drafting error was likely to have occurred when the draughtsman depicted the first part of the bridleway onto the draft map in the adjacent field, this may have happened due to the movement of the tracing paper overlay. The error once made, but not identified, was then repeated at every subsequent stage of the process.

 

38.14  The Asset Data Officer informed members that there was sufficient evidence associated with the application to infer dedication of the claimed section of Bentley Lane by a landowner in the past; therefore the route could be claimed under Common Law.

 

38.15  The Asset Data Officer explained that for the purposes of Section 31 of the 1980 Highways Act, when considering the user evidence, the public’s use of Bentley Lane/claimed way was brought into question in August 2010, when brick pillars were erected to hold a substantial pair of electricity operated wooden driveway gates.  The qualifying period of use had therefore been taken to be 1990 to 2010.

 

38.16  The Committee noted that 41 Public Path Evidence Forms supplied by 42 individual members of the public collectively claimed use of Bentley Lane, without interruption or challenge, ‘as of right’, for a period of 65 years from 1945-2010.  A total of 7 witnesses had claimed to use the path throughout the whole qualifying period.  A total of 30 members of the public supplied evidence of use on foot and 8 supplied evidence of use on horseback.  The Asset Data Officer explained  that the user evidence was substantial and would therefore support a case for deemed dedication as a public bridleway.

 

38.17  A member commented that if an order was made to add a length of public bridleway to the Definitive Map along Bentley Lane, this may mean that the length of Public Bridleway ASM25, located in the adjacent field, would fall in to disuse as members of the public may view the Bentley Lane route as more direct.  Questions were then raised on whether it was necessary to delete Public Bridleway ASM25 located in the adjacent field.  In response, the Asset Data Officer explained that the two recommendations as set out in the report should be taken together.  She reiterated that the length of Public Bridleway ASM25 in the field abutting Bentley Lane had come into being due to a drafting error, and therefore her recommendation was that it should be deleted. She added that there was insufficient evidence to infer or presume dedication of highway rights along that section of the path.

 

38.18  In response to a question, the Asset Data Officer clarified that if the orders were made in accordance with her recommendations in the report, and the order to add a length of public bridleway to the Definitive Map along Bentley Lane at points A-B was challenged, as the result of any objections received, the orders would be referred to the Secretary of State for confirmation by the Planning Inspectorate.  Case law inferred that orders to delete lengths of paths may be rejected by the Inspectorate and other paths be retained.  She added that theoretically if the orders were referred to the Secretary of State there was a possibility that the resulting decision could mean that both lengths of public bridleway were lost.  However, the Asset Data Officer emphasised to members, she was satisfied that that there was sufficient evidence for the Inspector to infer dedication of the claimed section of public bridleway along Bentley Lane at points A-B under Common Law.  She was also satisfied that there was sufficient user evidence to support a claim under Section 31 of the Highways Act 1980.

 

 

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

           

            Resolved

           

                 (a)     That an order be made to add a length of public bridleway to the Definitive Map of Public Rights of Way along Bentley Lane between points A-B.

 

            (b)     That an order be made to delete a length of Public Bridleway ASM25 from the Definitive Map of Public Rights of Way between points A-B (currently located in the adjacent field).

 

Supporting documents: