Agenda item

To consider the following application:

Nature of Application: Additional Footpath

Parish: Lydbrook

Applicant: Lydbrook Parish Council

Date of Application: 26 February 2001

5.1      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 has been uploaded to the Council’s website.)

5.2      The Committee considered the application for a Definitive Map Modification Order (DMMO) to add a length of public footpath in Lower Lydbrook, Lydbrook Parish, Gloucestershire.  On the Plan attached at Appendix JH2 to the report, the application route was identified by a black broken line between points A-B.

5.3      The Committee was informed that the claimed way commenced at the boundary with the Statutory Forest at the junction of Public Footpath RLY12 adjacent to the property Colliers Cottage at a point marked A on Appendix JH2, and continued in a southerly direction for approximately 218m along the line of the dis-used railway to the junction of Public Footpath RLY17. 

5.4      The Asset Data officer explained that as part of the consultation process carried out in 2022, the landowner, Mr L Jones responded by email of 30 August 2023; “After consideration, we formerly object to the footpath amendment request from points A to B due to the fact that there is already an existing footpath linking RLY12 to RLY17 to few meters to the East”.  Footpath RLY12 although running in parallel to the claimed route was different in character and at its narrowest point it was approximately 10m and at its widest point approximately 20m.

5.5      The Asset Data Officer explained that the DMMO application was submitted by Lydbrook Parish Council on 26 February 2001.  Members should note however that the application route was part of a claim for an additional public footpath made by Dr Cahn in February 1984.  On the Plan attached at Appendix JH3 to the report, the original 1984 claim was shown comprising sections: A-F & G-F.  On 19 March 1986, the Commons and Rights of Way Sub-Committee determined that no order be made due to the insufficiency of the evidence.  There was no proven 20 years of uninterrupted user since the railway became inoperative in 1960.

5.6      The Committee noted that the Applicant appealed the decision to the Secretary of State and asked that he consider the claim in smaller individual sections.  This request was rejected, the Inspector preferring to examine the entire length of the claimed route as one entity.  He did concede however that the spur route from Bayhead to the Church: G-F (highlighted pink on Appendix JH3), was different in nature.  He considered that there was sufficient evidence of use at common law of the spur route and directed the County Council to make an order for it.  This was confirmed and added to the Definitive Map as Public Footpath RLY39.  Members noted the reasons why the Secretary of State dismissed the appeal of the main application route A-F.

5.7      The Asset Data Officer reported that Lydbrook Parish Council made three further applications for smaller individual sections of the claimed route.  The first of the smaller individual routes B-C, subject to an application dated 5 June 1998 and shown yellow on appendix JH3, was determined by the Commons and Rights of Way Sub-Committee, that an Order be made to add this section of route to the Definitive Map.  The Order was made on 16 March 2004 and objections were received.  This was now waiting to be considered by the Secretary of State.

5.8      The second of the smaller individual routes C-F, subject to an application dated 26 July 2006 and shown orange on Appendix JH3, was rejected by the Commons and Rights of Way Sub-Committee.  Insufficient evidence of use was considered to exist.  Lydbrook Parish Council appealed but this was in turn refused by the Secretary of State on the grounds that the appeal was invalid.  The third, coloured blue, on Appendix JH3, was the subject of the Committee’s determination.

5.9      The Committee was informed that with regard to documentary evidence, no evidence had been found which suggested that the claimed route existed prior to the creation of the ‘Lydbrook Lydney Railway’ (tram road) in 1809.  Part of the application route crossed Crown land for which a permissive right on foot existed.  However, both the Crown and British Rail sold their freehold interests in the land over which the application route crossed in 1973 at which point a statutory claim of presumed dedication could arise.

5.10    The Asset Data Officer explained that the user evidence would be assessed over the 20-year period 1981- 2001 leading up to the application.  The application would be analysed under this statutory test as opposed to common law because the user evidence post-dated the disposal of interest by the Forestry Commission (Crown) and British Rail in the land crossed by the application route in 1973.

5.11    The Asset Data Officer drew members’ attention to Section 9 of the report which set out the analysis of the user evidence.  She reported that 15 Public Path Evidence Forms (“PPEFs”) were completed by 15 individual members of the public in support of this application dating back to 1923 claiming a public footpath.  All 15 individuals claimed use of the path over part or all of the 20-year qualifying period under analysis.  She advised that the user evidence would be sufficient for a presumption of dedication of a public footpath.

5.12    Members were informed that whilst the landowner had objected to the application for the claimed route to be added to the Definitive Map as part of his consultation response, he had not submitted any evidence whether physical or verbal, including evidence of any overt actions to challenge the public’s use of the route, or which would demonstrate his lack of intention to dedicate it.  None of the 15 individuals who had submitted PPEFs had mentioned any physical or verbal obstruction to their use of the path.

5.13    The Asset Data Officer explained that the provisions of the Highways Act 1959, meant that rights of way created by deemed dedication after this Act came into force, would not give rise to them becoming a highway maintainable at the public expense.  Therefore, if the Committee considered that highway rights subsisted or were reasonably alleged to subsist resulting in the direction that an Order should be made to add the claimed route to the Definitive Map, it would be recorded as not being publicly maintainable because the statutory presumption of dedication took place post 1959 when criteria for ways proposed to be adopted as publicly maintainable was introduced.

5.14    Members were directed to note that Section 36 of the 1980 Highways Act (which replaced the 1959 Act) set out specific categories of way as being automatically publicly maintainable.  The claimed route did not fit into any of the categories and that the majority of evidence, must be disregarded prior to 1960 whilst the railway was operational.  There was no evidence of maintenance carried out by the highway authority and the route was not claimed during the 1949 process of compiling the Definitive Map.

5.15    The Asset Data Officer concluded her presentation by advising the Committee that the original application made in 1984 failed due to insufficient user evidence.  The present application formed part of the original 1984 application, and now a number of years later was considered to be supported by sufficient evidence of use post the disposal of the land affecting the claimed route in 1973 by British Rail and the Forestry Commission (Crown).  In her view, it was submitted therefore, that this route subsisted along section A-B and must now be protected by being recognised on the Definitive Map as a public footpath.

5.16    Cllr Dr David Willingham commented that based on his observations during his site visit, only the handrail to the steps could present as an impediment to access.  However, he felt that people would be able to duck underneath the handrail to gain access.  In response, the Asset Data Officer explained that this would not prevent the claimed route being dedicated on the Definitive Map.  However, if the Committee did direct that an Order be made to record the route on the Definitive Map, once the Order was confirmed, the County Council would most likely remove that section of handrail.

5.17    Cllr Dr David Willingham reported that on his site visit he had been able to see the line of where people had been walking along the route.  He had spoken to people who were using the route to walk their dogs, and they were of the view that the path was already a public right of way.  He commented that there was no signage or barriers to imply that access was not permitted.  He felt that given the claimed route was a former railway line, it could have been considered that the route carried higher rights.  However, he saw no evidence of this, as the width of the path was too narrow for even cyclists to use.

5.18    In response, the Asset Data Officer reported that the claimed route could be made wider than it was currently by removing some of the scrub.  This would be looked at if the Committee resolved that an Order should be made to add the route to the Definitive Map.  She pointed out that the user evidence had only recorded use on foot, and therefore there was no evidence to indicate that higher rights existed.

5.19    In response to a question, the Asset Data Officer explained that some paths were publicly maintainable by the Council as the local Highway Authority, some were maintainable by the landowner, and for some paths there was no clear indication of where responsibility lay in respect of maintenance.  In regard to the claimed route, whilst it would not be publicly maintainable, if any safety issues became apparent, then the Highway Authority would take action to make the path safe; however, this was different to any on-going maintenance of the route.  The maintenance responsibility for rights of way recorded on the Definitive Map was shared between the landowner and the Highway Authority.  The landowner would automatically become responsible for maintaining the stiles and gates along the path across their land and maintaining any overhanging growth of the tree canopy.

5.20    One member questioned whether the stile on the claimed route could be made more accessible and user friendly.  In response, the Asset Data Officer explained that there was on-going dialog between the Public Rights of Way Team and landowners around moving away from restrictive structures on rights of way and installing much more accessible structures such as kissing gates.  However, the legislation did not prevent landowners from installing stiles, and therefore the Public Rights of Way Team could only make suggestions and try and negotiate with the landowners to install accessible structures.

5.21    Members of the Committee considered all the evidence, it was proposed, seconded and

Resolved

That a length of public footpath be added to the Definitive Map of Public Rights of Way between points A-B.