16.1 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 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.)
16.2 The Asset Data Officer made the Committee aware of the following corrections to her report:- Paragraph 11.20 – should read 9.13 not 9.15; paragraph 11.26 – should read 11.21 not 11.22; paragraph 11.30 – should read 9.20 & 21 not 9.22 & 23.
16.3 The Committee was informed that a Definitive Map Modification Order (DMMO) was made by Mrs Hayden, Cranham Common Management Committee, on 22 June 2018, for a path which had an overall length of approximately 207 metres (‘main path’), and an additional spur path (‘spur path’) which had an overall length of 29 metres. The claimed paths connected the junction of 3/193 and the 41149 highways, abutting the property, Hillfield, with Cranham Wood and Cranham Common. The Committee noted the route of the claimed paths on the plan marked A-F the ‘main path’ and B-G the ‘spur path’, attached at Appendix JH3 to the report.
16.4 The Asset Data Officer described the character of the paths and informed members that the claimed paths crossed land abutting Cranham Wood and Common, designated under the Commons Registration Act 1965 and thus by virtue of Section 2 Countryside and Rights of Way Act 2000 (“CROW Act”), granted the public a right of access on foot to land mapped as registered common land for the purpose of enjoying ‘open air recreation’.
16.5 The land was separately subject to a revocable Deed of Grant executed under Section 193 Law of Property Act 1925 (“deed”) dated 15 November 1929 which granted the public a right of access for ‘air and exercise’ and as such was designated as Section 15 land under the CROW Act (land which benefitted from rights of access under an alternative legislation provision). She explained that this Deed was subject to an ‘Order of the Minister of Agriculture and Fisheries Imposing Limitations on and Conditions as to the Exercise of Rights of Access to a Common or Manorial Waste under Section 193 of the Law of Property Act 1925’ dated 12 November 1930.
16.6 This deed included sections of the claimed paths. Any such use would operate as a conditional permission to use the land and as such prevent presumed dedication under Section 31 of the Highways Act 1980. However, use of the claimed paths for reasons other than for ‘air and exercise’ could succeed. The Asset Data Officer explained that In case law; Billson 1998, Sullivan J accepted “if a track across a common is not used for the purpose of air and exercise but is being used by the public for some other purpose; as a route between points A and B for example, from the village across a common to a nearby school, church, or railway station, then in principle such usage of the track is capable of establishing a right of way over it under section 31 of the 1980 Act. Applying this ruling, if the paths subject to this application were being used, not for the purpose of air and exercise but to travel along a defined route between two highways, then this use could be considered capable of satisfying a claim.
16.7 The Asset Data Officer gave a detailed account of the documentary evidence in existence in regards to the claimed paths. She explained that when considered as a whole, the evidence suggested that the claimed paths were used mainly as a private access to the properties abutting them. Further, Cranham Parish Council did not claim the paths when they had the opportunity to add them to the official record of public rights of way in 1950s.
16.8 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.
16.9 The Committee noted that a total of 13 Public Path Evidence Forms (PPEFs) were completed by 12 individual members of the public in support of the application; use dated back to 1955 and was broken down as follows: all 12 claimed use of the paths on foot, but 4 claimed use by horse back and all 4 claimed additional use with motor vehicles. The frequency of the claimed use varied from 5-10 times per year to ‘many’
16.10 The Asset Data Officer outlined to the Committee that PPEFs from three individuals record that they had used the paths to deliver goods to the householders, or visit family. This use was not considered to be use by ‘the public at large’, and therefore did not satisfy the requirements of Section 31 of the Highways Act 1980 that use must be ‘by the public’; consequently their use would fail the user ‘as of right test’.
16.11 In response to a question the officer clarified that it was considered that the use of the claimed path by the three individuals was use by implied permission or private easement even though the land was unregistered. It was pointed out that the home owners whose properties abutting the path could claim ownership of the land up to the centreline of the path.
16.12 The Asset Data Officer clarified that for the remaining 9 PPEFs none of the individuals had indicated in their response that their use of the path was by force, secrecy or permission; therefore their use was considered to be ‘as of right’. Analysis of the 9 PPEFs had indicated that the paths had been used without interruption or challenge for part or all of the 20 year period, on foot. Of those, 5 used the claimed paths over the whole period, with 4 of those claiming additional use by horse back and 3 claimed additional use by motor vehicles.
16.13 The Committee was informed that the claimed use of the path by motor vehicle did not comply with the Natural Environment and Rural Communities 2006 (NERC) exemptions and thus a claim for public motor vehicular rights could not succeed. In addition, the quantity of user for use by motor vehicles was insufficient to raise a claim of presumed dedication as a restricted by way or byway. The Asset Data Officer made the point that with regard to the 4 individuals who claimed to have ridden a horse along the claimed paths, it was suggested that the character of the area in which those paths were located was such that one would expect more compelling evidence of use of horse riding along them. The quantity of user on horseback was therefore considered insufficient to raise a claim of deemed dedication as a bridleway.
16.14 It was reported that for a successful claim of presumed or inferred dedication, the paths needed to terminate at either a highway or a ‘place of popular resort’. The Asset Data Officer explained that by means of the 1929 Deed, executed under the LPA25, the public were granted by way of a private licence or easement, a right to take ‘air and exercise’ across the common. This meant that Cranham Wood and Common would be considered to be ‘a place of popular resort’, and would therefore support a claim of presumed dedicated of the paths terminating at it.
16.15 In concluding her presentation, the Asset Data Officer explained that on the balance of probability, the user evidence was insufficient to show that the claimed paths subsisted as public bridleways as per the application but it was deemed sufficient to show that the paths subsist as public footpaths. The recommendation therefore was that an Order be made to add the lengths of public footpath to the Definitive Map.
16.16 In response to a question, the Asset Data Officer explained that there was no historical evidence showing a boundary feature (wooden field gate) at point C near Timbertops, and therefore if the Committee agreed to make the Order, then the homeowner would probably be asked to remove the wooden field gate.
16.17 In response to a question, Janet Smith, Specialist Adviser, informed the Committee that it was not a criminal offence for horse riders to use public footpaths. She pointed out that if a sufficient number of horse riders used the claimed paths then, 20 years into the future, this could give rise for a claim to alter the status of the claimed paths to public bridleways.
16.18 Having considered all of the information before it, the Committee:
(a) That no order be made to add a length of public bridleway to the Definitive Map of Public Rights of Way between points A-F and B-G.
(b) That an order be made to add a length of public footpath to the Definitive Map of Public Rights of Way between points A-F and B-G.