Agenda item

Application for a Modification Order for an additional length of Public Footpath linking Rose Hill and Far Wells Road. Bisley, Gloucestershire

Minutes:

7.1      Jaci Harris, Asset Data Officer (PROW Definitive Map), gave a detailed presentation to the Committee aided by a PowerPoint 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.)

 

7.2         The Asset Data Officer explained that an application was made by Bisley Parish Council on 2 May 2019.  The subject of the application was a 15m length of footpath linking Rose Hill with Far Wells Road in Bisley with Lypiatt, Gloucestershire.  The Committee noted the route of the claimed path as outlined in Map GCC2 to the report.  The path was situated between two properties (‘The Firs’, and ‘Greystones’), and was on unregistered land.

 

7.3         The Committee was informed that the documentary evidence in support of the path was not compelling in terms of quantity.  This may have been due to the path measuring only 15 metres in length, and the 1” and 2” smaller scale maps not being able to display it clearly.  The Asset Data Officer drew the Committee’s attention to the Tithe Map 1842 at GGC4 to the report, and the Finance Act Map 1910 at GCC7 to the report, which she explained portrayed the path in a similar manner to the other known highways at that time, albeit much narrower. 

 

7.4         The Committee noted that as part of the 1950s process of officially recording the public rights of way network the Parish Council considered the path to carry highways rights and claimed it as a public footpath.  However, it did not appear in the maps of subsequent stages of the process, again possibly due to its shortness of length or the scale of the map.  The Asset Data Officer confirmed that she had found no evidence of any objections to the path with regard to its inclusion on the legal record; she had therefore determined that the Parish Council would have intended to dedicate the path as a public highway.

 

7.5         The Asset Data Officer drew the Committee’s attention to paragraph 11 of the report which outlined the content of the single response received to the consultation from Mr Flowers of Greystones.  She explained that Mr Flowers had provided background information regarding some neighbourly disputes in the area over the claimed footpath.  The Committee was advised that Gloucestershire County Council had not taken into account the information concerning the disagreements, as part of the determination of the evidence, and it was not a relevant point of consideration for the Committee.

 

7.6         The Committee noted that there were two potential dates to consider (2015 and 2017), when determining the date as to when the public’s use of the path was challenged.

 

7.7         The Asset Data Officer explained that in her previous role as a Public Rights of Way Officer, she had had a conversation with Ms Prior of Greystones at the site of the claimed path, she had also sent an email to her advising her that the claimed path was not an official recorded PROW; both took place in 2015.  The Ward Chairman to Bisley with Lypiatt Parish Council, had supplied a copy of an email written by Ms Prior of Greystones dated 2 October 2017, which outlined the conversation Ms Prior had had with the PROW officer, and included content of the subsequent email advising Ms Prior that the path was not an officially recorded public right of way.  Ms Prior’s email had indicated that the matter of ‘the unregistered strip of land between Greystones and The Firs, Far Wells Road’ would be raised at a meeting of the Parish Council on 4 October 2017. 

 

7.8         The Asset Data Officer explained that from an inspection of the Parish Council minutes from 2017, it was determined that the email was not brought to the public’s attention.  Therefore, the conversation at the path together with the email in 2015 did not constitute a challenge to the public’s use of the path.

 

7.9         The Committee was informed that the owners of the two adjacent properties to the path could potentially claim ownership up to the centre line of the track over which the claimed highway crossed.  The Asset Data Officer explained that challenges to the public using the path, made by someone who could potentially lay claim to the land over which the path crossed, could constitute a challenge to the public’s use of it.  Two responses made in the Public Path Evidence Forms (PPEF) demonstrated that challenges had been made to path users.  In response to a question the officer clarified that the circumstances of the challenges were set out in the two PPEFs and were therefore in the public domain and thus constituted a challenge to the public’s use of the path.

 

7.10      The Committee was informed therefore that the challenge of the owner of ‘Greystones’ to a Mr Merry’s use of the path, had been taken as a date of challenge for the purposes of Section 31 of the Highways Act 1980, the retrospective 20 year qualifying period was therefore 1997 to 2017.

 

7.11      The Committee was informed that 10 PPEFs were submitted by 13 members of the public in support of this application; use dated back to 1944 on foot.  A total of 7 individuals claimed use of the whole 20 year qualifying period.   The use of the path was on foot without force, secrecy or permission, and thus their use was considered ‘as of right’.   

 

7.12      In response to a question, the Committee was informed that from the PPEFs 6 individuals had noted the planting of the conifer trees and 3 individuals had noted the removal of the steps.  They had perceived those actions to have been undertaken in an attempt at frustrating access to the claimed path.  The Committee was advised that the steps and the conifer trees were irrelevant to its determination, as the highway verge was not part of the application.  It was noted that existing legal provisions within the Highways Act protected highway verges.

 

7.13      The Asset Data Officer explained that she had determined from the available evidence that at some point between 1970 and 1990 the claimed path was signposted, either by the Parish Council or the Highway Authority.  In light of the history of signposting paths in Gloucestershire, she could not confirm that the County Council itself had erected the signpost and therefore could state that the path enjoyed highway rights.

 

7.14      The Asset Data Officer informed the Committee that on the balance of probabilities, the user evidence showed that the claimed path had been enjoyed by the public on foot ‘as of right’, without interruption or challenge for a period in excess of 20 years. This was prior to September 2017 when the rights of the public were called into question and it was therefore deemed to subsist. 

 

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

 

Resolved

 

That an Order be made to add the claimed path to the legal record of public rights of way.

Supporting documents: