Agenda item

To consider the claim for a footpath at Malkins Bank Golf Course

The Committee received a report which detailed an investigation into a claimed footpath at Malkins Bank Golf Course, parish of Hassall, from Mill Lane to Bridleway No. 15 Hassall. 

Under section 53 of the Wildlife and Countryside Act 1981, the Borough Council had a duty, as surveying authority, to keep the Definitive Map and Statement under continuous review.  Section 53(c) allowed for an authority to act on the discovery of evidence that suggested that the Definitive Map needed to be amended.  The authority must investigate and determine that evidence and decide on the outcome whether to make a Definitive Map Modification Order or not.

With reference to Plan No.WCA/003, the claimed route commenced at Point A and ran in a northerly then north easterly direction crossing a stream and then running generally easterly to the north of the stream and continuing to its junction with Bridleway No.15.  The surface was grassed.  When the path left Mill Lane there was a post and rail fencing preventing access and further along the road to the south east there was a gap in the fencing/hedge.  There was no bridge where the path crossed the stream although the remnant of a sleeper bridge can be seen.

The claim for the footpath came to the attention of Cheshire County Council in approximately 2005 when an inquiry was made by Mr C Meewezen regarding whether a right of way existed at Malkins Bank Golf Course and consequently an application pack to make a claim to record the footpath was sent out to Mr Meewezen.  The existence of the footpath was being concurrently pursued by Mr Meewezen with the then landowner Congleton Borough Council. 

In order to address this situation Congleton Borough Council instigated a Footpath Task Group who contributed to a report put by the Health Scrutiny Committee before the Council’s Executive in April 2006.  The report accepted that there was no evidence that the claimed route had been stopped up or diverted since 1941 and considered that there was no evidence to suggest the route was currently being used and that the ‘used route’ was some distance away.  The report considered that the public attempting to use the route would be at considerable risk as it ran through the 6^th and 7^th fairways of the Golf Course.  The report concluded that it was felt that the need of the public had been addressed by the previous dedication of a bridleway running north to south across the course (Bridleway 15) and that the correct procedure to have a footpath recognised was to submit any relevant evidence with an application for the Definitive Map Modification Order to the Public Rights of Way Team at the County Council.

Officers in the Public Rights of Way Team had now carried out additional research to see if available historical documentation supported the existence of the footpath or showed the route had been formally closed by statutory procedure. 

It was found that the Bryant’s Map of 1831 showed part of the route by a double pecked line indicated on the key as ‘Lanes and Bridleways’.  The Tithe Map and Award of Hassall dated 1841 showed most of the route in question as a double pecked line.  A small part of the route had an apportionment number 14a which was described as Road and Waste, whist the greater part fell under apportionment number 16 and was described as Meadow.  The entire route appeared to be faintly shaded.  The Ordnance Survey Map 1” to 1 Mile 1842 ‘Old Series’ showed most of the route and was similarly depicted as on the Tithe Map. 

The North Staffordshire Railway – Liverpool Extension 1845 plan depicted an intended railway which was subsequently built.  The plan showed a corridor of land defining the limits of deviation either side of the intended railway, with plot numbers for the land and public and private routes.  The part of the route shown within the limits of deviation is within plot number 172 which was recorded as ‘Grass field and footpath’.  This was the second route contained within this plot.

The ICI (Alkali Ltd) Statutory Declaration dated 1941, with a map dated 1935, indicated their areas of land ownership in Wheelock and Hassall. This document was deposited under the provisions of the Rights of Way Act 1932 which allowed land owner to declare those rights of way that they accepted affected their land at the date of deposit with a statement that they did not intend to dedicate any further rights of way.  The document shows that the footpath in question had been dedicated as a public right of way. 

The Cheshire County Council Green Book of annotated O.S Maps showed the claimed route with a reference to the Rights of Way Act 1932 deposited plan. There was also a reference to a file number within which there was a memorandum, dated 3 November 1955, from the County Surveyor to Congleton Rural District Council referring to the footpath as being shown on the map deposited by ICI and that “it will be necessary at some future date to make arrangements to have it included as a public footpath.  It is well defined by stiles at either end and is a grass footpath in a good and clean condition.”

No evidence had been found that the footpath had been formally extinguished.  The Quarter Sessions Highway Index had been viewed at the Record Office and a wide search of the online records of the London Gazette had been undertaken.  Nothing relating to a path closure on this route had been discovered. 

The Committee considered that the evidence to support the claimed footpath showed, on the balance of probabilities that a reasonable allegation had been made that public footpath rights subsisted along the claimed route.  It was considered that there was sufficient evidence to prove the existence of a public footpath along the route A-B on Plan No.WCA/003 and therefore in line with the requirements of Section 53(3)(c)(i) of the Wildlife and Countryside Act 1981 recommended that the Definitive Map and Statement be modified to add the route depicted on the 1935 statutory declaration map as a public footpath.

RESOLVED:

1          An Order be made under Section 53(3)(c)(i) of the Wildlife and Countryside Act 1981 to modify the Definitive Map and Statement by adding a Public Footpath on the route shown between points A-B on drawing number WCA/003.

2          Public notice of the making of the Order be given and, in the event of there being no objections within the specified period, or any objections received being withdrawn, the Order be confirmed in exercise of the power conferred on the Council by the said Act.

3          In the event of objections to the Order being received, Cheshire East Borough Council be responsible for the conduct of any hearing or public inquiry.