Agenda item

Application for a Definitive Map Modification Order for an additional length of public footpath, Popes Hill to Chestnuts Inclosure, Parish of Littledean

 

To consider the following application:

Nature of Application: Additional footpath

Parish: Littledean

Name of Applicant: Chris Vidler

Date of Application: 11 March 2005

Minutes:

31.1    Andrew Houldey, Engagement 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 has been uploaded to the Council’s website.)

           

31.2    The Committee considered the application for a Definitive Map Modification Order (DMMO) for the claimed path at Popes Hill in the parish of Littledean.  It was noted that the claimed route was shown running between points A, B and C, on the plan attached at Appendix 1B to the report.

 

31.3    The Committee was informed that the claimed path between points A to B ran over land which was owned by the Forestry Commission until 1971, before being sold.  From point B the claimed path continued as an unidentified track across bracken to the Forestry Commission owned Chestnuts Inclosure at Point C.  The section of the claimed path between points B to C ran over land which was part of the Statutory Forest of Dean, it then continued into the wood as a forest path.  The whole length of the claimed route ran over land which had been designated as access land under Part 1 of the Countryside and Rights of Way (CROW) Act 2000. This Act created new public access rights over ‘access land’ in England and Wales.

 

31.4    The Engagement Officer explained that The Forest of Dean was established by statute under the Dean Forest (Reforestation Act) of 1667. 11,000 acres, being part of the wastelands of the Forest of Dean, were to be inclosed and kept in severalty for the growth and preservation of timber to supply wood for the Royal Navy and for the maintenance of trade shipping.  The physical inclosures were to allow the young trees to grow and to be kept free from damage by animals. The provisions of the Act were largely re-enacted in the Dean Forest (Timber) Act 1808. 

 

31.5    The Engagement Officer informed the Committee that The National Forest Park Committee (Forest of Dean) produced a report in 1938, which confirmed the Forestry Commission’s view was that access to the Forest was regulated and controlled by the Forestry Commission bylaws, and under those circumstances it would be impossible to show an implied intention to dedicate on the part of the Crown in the Statutory Forest since 1938.  He explained that this confirmed a regulated permissive right of way on foot over the Statutory Forest, had the effect that any subsequent use would be permissive, and not ‘as of right’, and hence would not establish a right through long user. 

 

31.6    He informed the Committee that the claimed path should be considered as two separate sections i.e. A to B and B to C.  This was because the land over which the claimed route ran between points A to B was sold by the Forestry Commission in 1971; the claimed path came into being as a physical feature in 1971, and from that date forward the land over which it ran remained solely as registered access land.   The route between points B to C ran over land which remained part of the Statutory Forest of Dean, under the ownership of the Forestry Commission, and was therefore Crown Land.  He made reference to The National Forest Park Committee (Forest of Dean) report produced in 1938, which confirmed that it would be impossible to show an implied intention to dedicate on the part of the Crown in the Statutory Forest since 1938.   Consequently, the view of officers was that the application to add a length of public footpath to the Definitive Map between points B to C be refused.

 

31.7    The Engagement Officer drew the Committee’s attention to the 1971 conveyancing plan at Appendix 1 to the report, which included the track A to B.  He explained that the document reserved a right of way at all times for the purposes of the then current owners and occupiers of Rock House sheds and the general public.  The covenant’s restrictions and stipulations contained in the Schedule also bound any successors in title.  It was not considered that the wording of the conveyance would prevent a right of way coming into being over the section A to B through long user.

 

31.8    The Committee was informed that the majority of the Forestry Commission’s forests were dedicated in perpetuity as open access land under the CROW Act which gave walkers a right to roam across those areas.  Whist everyone had a right to individual and family recreation on open access land the use of the claimed paths for reasons other than for ‘air and exercise’ could succeed as set out in the case law  R v SoS for Environment ex parte Billson [1998] EWHC Admin 189, Sullivan J.  Applying that ruling to this application meant that if the path running between points A to B was being used, not for the purpose of air and exercise but to travel from a highway along a defined route to reach a place of popular resort, then this use could be considered capable of satisfying a claim.  Members noted that the section of claimed path from point A to B had the character of a track and gave access to an area of land used for ‘air and exercise’, namely Chestnuts Inclosure.  The path A to B, although dedicated as access land, was not in itself a destination.

 

31.9    It was reported that a further requirement for a claim of presumed dedication was that the path joined a highway at both its start and end points or connected with a highway at its start point and with a place of popular resort at the other.  Public user could not give rise to a presumption of dedication if it did not.  It was confirmed that the section of path from point A to B connected to a highway at its eastern end and to a place of popular resort at its western end, an area of access land to which the public had  a right to air and exercise under Section 16 of the 2000 Countryside and Rights of Way Act.

 

31.10  The Engagement Officer explained that having established that public user could give rise for a claim of presumed dedication of the path between points A and B, consideration now needed to be given as to whether there was sufficient user evidence to support the claim.  He drew the Committee’s attention to the summary of public path evidence forms at Appendix C to the report.  He reported that the application was supported by 9 user evidence forms, completed by 9 individuals. Use was on foot, for leisure purposes, and to give access to Chestnuts Woods, Welshbury and Green Bottom.

 

31.11  The Engagement Officer explained that as the claimed route only came into being as a physical feature in 1971, the user evidence from before that year should be disregarded.  There were some witnesses who had claimed to have used the path before 1971, however, he felt that they were referring to the public footpath adjacent to the claimed route between points A and B.

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31.12  The Committee was informed that there was no event that had been identified by which use by the public had been brought into question.  The 2006 Natural Environment and Rural Communities (NERC) Act allowed for the date of the making of an application under Section 53 of the 1981 Wildlife and Countryside Act as the date of bringing into question.  As a result, the date of bringing into question was the application date of March 2005.  For the purpose of section 31(1) of the 1980 Highways Act the 20 year qualifying period was therefore 1985 to 2005. There were three witnesses who had used the path for a full 20 years and one for 19 years. It was pointed out that two of the witnesses’ use seemed to date from the physical setting-out of the path in 1971.

 

31.13  The Engagement Officer explained that use of the path should be by a number of people who together may sensibly be taken to represent the community.  He confirmed that all users of the path who had submitted the public path user evidence forms were from the Popes Hill area.  However, he referred to the case law for Coleridge LJ in R v Southampton (Inhabitants) 1887, which confirmed that local usage of a path by a particular community rather than the wider public was not a hindrance to rights of way coming into being through long user. 

 

31.14  In concluding his presentation, the Engagement Officer explained that the weight of user evidence was sufficient to show that the claimed path between points A and B subsisted as a public footpath.

 

31.15  A member referred to the land over which the section of the claimed path ran from points B to C.  He questioned whether Point B could be considered to be a place of popular resort as the land was still part of the Statutory Forest of Dean.  In response, the Engagement Officer explained that The Countryside and Rights of Way Act 2000 gave the public right of access to land mapped as ‘open country’ (mountain, moor, heath and down) or registered common land.  Whilst the Act did exclude forestry land, the Forestry Commission took the opportunity under Section 16 of the Act to designate the land as access land.  Consequently, as well as the confirmed regulated permissive right of way on foot over Statutory Forest Land, the publics’ right of access was further encapsulated by the recording of the land as access land.  He added that a place of popular resort was essentially where the public had an interest in visiting (e.g. seashore or a local beauty spot).  He confirmed that point B did meet the criteria for a place of popular resort; as the public reached point B, they had a right enshrined in law to then walk over land past point B to Chestnuts Inclosure.

 

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

 

Resolved

a)            That an order be made to add a length of public footpath to the Definitive Map and Statement between points A and B; and

 

(b) That the application to add a length of public footpath between points B and C be refused.

Supporting documents: