Agenda item

Application for a Modification Order for additional length of Public Footpath at Bowbridge, Stroud, Gloucestershire

Minutes:

8.1      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.)

 

8.2         The Asset Data Officer explained that an application was made by Mrs Fernando, a member of Stroud Ramblers Group, on 11 November 2016.    The subject of the application was a 338m long path connecting public footpaths ZST50 and ZST54 across an area of land in Bowbridge Stroud.    The Committee noted the route of the claimed path as outlined in Map JH2 to the report.

 

8.3         The Committee was informed that there was little documentary evidence to support the claim.  Gloucestershire Archives, commissioned to compile a report into the history of the path, found no record of the claimed path on any historical documents and maps.  In addition, the path was not claimed under the National Parks and Access to the Countryside Act 1949 process.  Two Ordnance Survey maps showed the physical existence and extent of the claimed path, however those maps carried a disclaimer that any representation of a road, track or path was not evidence of the existence of a right of way over it. 

 

8.4         The Asset Data Officer explained that the documentary evidence was insufficient on its own to infer on the balances of probabilities, that the claimed route was dedicated as a public highway.  Consequently, the application would be determined upon evidence of long user under Section 31 of the Highways Act 1981, or at common law.

 

8.5         The Committee was informed that no action had been taken by the landowner to question or challenge the public’s use of the claimed path. In such cases Section 69 of the Natural Environment and Rural Communities Act 2006 (NERC) provided that the date of the Definitive Map Modification Order application could be used in accordance with paragraph 1 of the Schedule 14 to the Wildlife and Countryside Act 1981.

 

8.6         The Committee noted that the user evidence had therefore been assessed over the 20 year period between 1996-2016 leading up to the application.

 

8.7         The Asset Data Officer drew the Committee’s attention to the summary of the Public Path Evidence Forms (PPEFs)  as outlined at JH8 to the report.  The Committee noted that 13 PPEFs completed by 13 individual members of the public were submitted in support of the application; use of the paths dated back to 1932. 

 

8.8         The Asset Data Officer further drew the Committee’s attention to the main points of a signed statement made by Mr M Cullimore, who held Power of Attorney for the business affairs of Mr R Cullimore, the landowner.  The statement was submitted by Katie Moylan of Sewell Mullings Logie LLP Solicitors and was included at JH7 to the report. In particular reference was made to his point that the evidence of 6 individual users should be discounted due to the fact they claimed less than 20 years use.  She explained that use of a way by different persons, each for periods of less than 20 years, would suffice if, taken together, they totalled a continuous period of 20 years or more.  As a result the individual evidence of use in support of the application of less than 20 years would not be discounted.

 

8.9         The Committee was also informed that PPEFs submitted by two members of the public indicated that the landowner/tenant was aware of their use of the path and both stated that the tenant/farmer gave them permission to use it.  The Asset Data Officer explained that such permission was inconsistent with the user ‘as of right’ test, and she confirmed that the two PPEFs must be discounted.  It was noted that this point was also raised in Mr Cullimore’s statement.

 

8.10      The Asset Data Officer explained a total of 11 individuals had used the path for part or all of the qualifying period on foot without force, secrecy or permission, and thus their use was considered ‘as of right’.  Of those, 8 claimed use of the path across the whole of the 20 year period.  She considered the user evidence to be sufficient on the balance of probabilities to support a case of deemed dedication as a public footpath in accordance with the provisions of Section 31 of the Highways Act 1980. 

 

8.11      The Committee was informed that apart from the express permission to use the path granted privately to two individual members of the public, whose use was discounted, no further evidence had been provided by the landowner, tenant, or members of the public that use had been publicly challenged or interrupted or of a lack of intention to dedicate prior to the application 2016.  The path was therefore reasonably alleged to subsist. 

 

8.12      The Committee was informed that Mr Cullimore had indicated in his statement that the landowner had never intended for the claimed path to become a dedicated right of way in existence over his land.  He had also indicated in his statement that no signs had been positioned at the entry and exit points of the path due to there being other public footpaths crossing Thrupp Farm for which the landowner could not prohibit use of. 

 

8.13      In response to a question, the Asset Data Officer outlined to members the methods landowners could undertake to protect their land from claims for additional public rights of way.  This included the use of appropriate wording on correctly located signage to accord with the relevant legislation.  She explained that the most effective way to demonstrate a lack of intention would be to deposit a landowner statement and map to the local authority under Section 31(6) of the Highways Act 1980. This would constitute a formal declaration to the effect that the landowner did not intend to dedicate any additional public rights of way over the land delineated on the map.

 

8.14      In response to a question the Committee was informed that if an Order was made to add the claimed path to the Definitive Map, and objections were received and not withdrawn, the Order would be referred to the Secretary of State for inquiry.

 

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

 

Resolved

 

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

Supporting documents: