15.1 Jaci Harris, 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.)
15.2 The Committee was informed that a Definitive Map Modification Order (DMMO) was made by Bisley Parish Council on 20 May 2018, for a path which ran for a length of 68m across unregistered land connecting Mount Pleasant and Van der Breen Street. The Committee noted the route of the claimed path marked A-B on the plan attached at Appendix JH2 to the report.
15.3 The Asset Data Officer described the character of the path and informed members that it provided pedestrians with an almost direct connection across Mount Pleasant to Public Footpath MBL170 and onto George Street and the main village. In the other direction it provided a direct connection from the village to Mount Pleasant to King George V playing field along Van Der Breen Street.
15.4 The Asset Data Officer informed the Committee of the documentary evidence which existed in regards to the claimed path. She explained that the Tithe Map of 1842 and the Finance Act Map 1910, portrayed the path consistently as an established through-route in a manner similar to the existing highway network of the time (i.e. similar colouring, being unnumbered and excluded from adjacent fields and hereditaments). An alternative explanation of its inclusion on the documents could be that the path existed merely for private access to a few properties by the householders; however, there was no evidence to support this.
15.5 It was reported that five other routes within walking distance of the claimed path, similarly shown on the Finance Act map as uncoloured and unnumbered were considered. Unlike the claimed path, those 5 routes all terminated at fields and yet were all today designated highways. The Asset Data Officer explained that it was not unreasonable to infer therefore that an open path connecting two highways would more likely be available to the public at large as opposed to restricted to the three households abutting the path. She emphasised that the Tithe Map of 1842 and the Finance Act Map 1910 were executed under legal provision, and were in the public domain and thus enjoyed a high evidential weight.
15.6 The Committee was informed that Bisley and Lypiatt Parish Council considered the path to carry highway rights and claimed it as a public footpath during the 1950s National Parks & Access to the Countryside Act 1949 (“NPACA49”) process of officially recording the public rights of way network. No objections were found with regard to its inclusion on the legal record, and documents found during the course of the investigation indicated that the omitted path was to be added during the review of the whole legal record of public rights of way; however, this did not take place because the authority did not complete the first Definitive Map until the 1980s at which time the Wildlife & Countryside Act 1981 had overtaken the NPACA49 allowing for the review of the legal record to be done on a piecemeal basis.
15.7 The Committee noted that the documents showed that the claimed path had retained the same physical characteristics over a period of at least 176 years.
15.8 The Committee was informed that under Section 31 of the Highways Act it had been determined that no action had been taken by a landowner to question or challenge the publics’ use of the path. Therefore, the application was considered under Section 69 of the Natural Environment and Rural Communities Act 2006, which provided that the date of the DMMO application could be used for the assessment of the user evidence over the qualifying 20 year period. This gave a 20 year qualifying period of 1998-2018.
15.9 The Committee noted that a total of 14 Public Path Evidence Forms (PPEFs) were completed by 14 individual members of the public in support of the application dating back to 1935 on foot. However, three forms were discounted: one on the basis of an incomplete PPEF without a signature; one witness who provided 2 PPEFs and thus were considered as one; and one who used the PPEF to object. The evidence of the latter was conserved under the section of the report which looked at ‘lack of intention to dedicate’. Therefore 11 PPEFs submitted by 11 individual members of the public were included in the analysis of use. All 11 individuals claimed to have used the path across the whole 20 year qualifying period. There was no evidence of use of the path by force, secrecy or permission and therefore use was deemed ‘as of right’.
15.10 The Asset Data Officer drew members’ attention to the statements provided by Mrs Batten, a teacher and PE & Sports Co-ordinator at Blue Coat Primary School and Mrs Dawn Lane, School Business Manager. In their statements, Mrs Batten had indicated that she had worked at the school for 20 years and Mrs Lane 19 years. Both stated that the path between Mount Pleasant and Van Der Breen Street had been used, to varying degrees, by pupils and staff, during that time. They both commented that the path was used by pupils to cross the village and gain access to the King George V playing field, from Van Der Breen Street as the school did not have its own playing field.
15.11 In response to a question, the Asset Data Officer confirmed that as the path was on unregistered land, the owners of the cottages which abutted the claimed path, could potentially claim ownership of the path up to its centreline.
15.12 The Committee was informed that the owners of one of the three cottages abutting the claimed path used their PPEF to object to the path being dedicated as a public footpath. They had indicated that they had known about the path for 15 years and had used it on a weekly basis for maintenance of their property; they were concerned about extra foot traffic occurring from an order being made to add the footpath to the Definitive Map. The Committee was reminded that this process was only concerned with evidence of highway rights and factors such as desirability and suitability could not be taken into account when determining whether an order should be made to modify the legal record of public rights of way. If an order was made, it would be recording an existing right, not adding a new one. Further, the objectors had not done anything to make prevent public use or make it clear to users that it was not a public path. Consideration needed to be given as to whether this objection constituted sufficient evidence of a lack of intention to dedicate or a challenge to public use.
15.13 In concluding her presentation, the Asset Data Officer explained that on the balance of probability, a combination of the documentary and user evidence suggested that the path subsisted. The recommendation therefore was that an Order be made to add the length of public footpath to the Definitive Map.
15.14 In response to a question, the Asset Data Officer explained that Gloucestershire County Council had undertaken at some point in the past, the tarmacking of a section of the path, and the installation of a chicane system. However, as the path was not currently included on the Definitive Map as a public footpath, and therefore not maintained by the local authority, the Council would have had no legal justification for this undertaking, but it did raise the question of whether the highway authority considered it at some point in the past to be highway.
15.15 A member made reference to the manhole cover which indicated utilities under the path, and it was clarified that utility companies carried their own rights in regards to accessing land, and thus would be unaffected by the determination of this application.
15.16 Having considered all of the information before it, the Committee
That a Definitive Map Modification Order be made to record the claimed route between points A-B as a public footpath.