Decision details

The committee considered a report which outlined an application made in September 2020 for an order to add two footpaths to the DM shown between points A-B-C and B-D on Plan WCA/MO048A (“the Plan”) (Appendix 1 to the report). The report assessed the submitted evidence and made a recommendation in accordance with the duty set out under Section 53 (2) (b) of the 1981 Act, following the occurrence of an event under Section 53(3)(c)(i), namely the discovery of evidence that a public footpath subsists. This was set out in detail at Appendix 2 to the report.

The evidence in support of the application consisted primarily of user evidence forms from 15 people,14 of which provided relevant information. Route A-B-C on the Plan was alleged to have been used by the public within periods from 1982-2002 and also a period from 1987- 2007. This could meet the test for a reasonable allegation of public rights under Section 53 (3)(c)(i). However, the evidence for route B-D over the period 1987-2007 was insufficient to meet that threshold.

The investigation also considered maps and plans from the nineteenth century, the records of the DM and a paths leaflet submitted by the applicant. While these documents were not conclusive in establishing additional rights of way, they did suggest that there had been a longstanding reputation of a public path crossing prior to the construction of the rail line.

The evidence was assessed against the statutory tests set out under the 1981 Act and the Highways Act 1980 (“the 1980 Act”). Submissions from landowners relate to a later period than the claimed use. Based on the user evidence covering a twenty-year period prior to 2002 and 2007, it was considered on the balance of probabilities, that a public footpath subsists between points A-B-C on the Plan. The evidence relating to route B-D was insufficient to support a similar finding. There was no clear basis to suggest that public rights have arisen over that section of the route.

Officers confirmed that they had been provided with confirmation that the land changed hands in 2007 and was held as Crown Estate. Crown land was not bound by the effect of the 20-year statutory test but was affected by the application common law.

RESOLVED: (Unanimously)

That the Highways & Transport Committee

1. Approve a Definitive Map Modification Order under Section 53(2)(b) on the basis of evidence under Section 53(3)(c)(i) of the Wildlife and Countryside Act 1981, for the route A to B to C on Plan WCA/MO048A.

2. Refuse to make a Definitive Map Modification Order for the route B to D on Plan WCA/MO048A

3. Approve that public notice of the making of the Order be given and in the event of there being no objections within the period specified, that the Order be confirmed in the exercise of the powers conferred on the Council by the said Act.

4. Note that in the event of objections being received, Cheshire East Borough Council will be responsible for the conduct of any Hearing or Public Inquiry relating to the Order.