Agenda item

To consider the application to upgrade Public Footpath No. 9 Higher Hurdsfield to Bridleway status

The Committee received a report detailing an application made by Mr R Spoors of Roewood Lane, Macclesfield to modify the Definitive Map and Statement by upgrading Public Footpath No.9 Higher Hurdsfield to a Public Bridleway.

Mr Spoors addressed the Committee as the applicant and also on behalf of the British Horse Society and two local residents – Judith Mosscrop and Mike Blamey. He spoke in opposition to the proposed Order and asked the Committee to approve an Order to upgrade Public Footpath No.9 to Public Bridleway along the definitive route and not the alternative route suggested.

The application to upgrade Public Footpath No.9 Higher Hurdsfield to a Public Bridleway was submitted in July 2003 – between points A-B-C-H-I-D-J-E on Plan No.WCA/004.  The application was supported by 11 user evidence forms and a number of historical documents.

Section 53(2)(b) of the Wildlife and Countryside Act 1981, requires that the Council keep the Definitive Map and Statement under continuous review and make such modifications to the Map and Statement as appear requisite in consequence of the occurrence of certain events.

There are two events that are relevant to this application section 53(3)(c)(i) and section 53(3)(c)(ii), the first requires modification of the map by addition of a right of way and the second required modification of the map by the upgrading of a right of way: -

“(c)  the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows:

(i)         that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates…;

(ii)        that a highway shown in the map and statement as a highway of particular description ought to be there shown as a highway of a different description.”

Where evidence in support of an application was user evidence, section 31(1) of the Highway Act 1980 applied:-

“Where a way…..has been actually enjoyed by the public as of right and without interruption for a full period of twenty years, the way is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.”

This required that the public must have used the way without interruption and as of right; that is without force, secrecy or permission. Section 31(2) states that “20 years is to be calculated retrospectively from the date when the right of the public to use the way is brought into question.”

All evidence must be evaluated and weighed and a conclusion reached whether, on the ‘balance of probabilities’ the alleged rights subsist.  With regards to the addition of a right of way (section 53(3)(c)(i)) the lesser test of ‘reasonably alleged to subsist’ may be used.  Any other issues such as safety, security, suitability, desirability or the effects on property of the environment are not relevant to the decision.

There were a number of dates which could be used as the date the route was ‘brought into question’. Mr Broadbent of Close House Farm stated that in the late 1960s a pole was put across the definitive line of the public footpath.  The Council had a letter from a Mr Burch from 1987 stating that the route was “barred in the vicinity of the farm”, which also states that the diverted route was being used as a bridleway.  In notes of a meeting between Cheshire County Council and the Ramblers’ Association, the Council confirmed the right of way was still immediately adjacent to Close House Farm and it was not obstructed to walkers.  It also stated that “the problem had been caused by horse riding on the path and also on the permissive diversion”.  It is thought that by stating the route was not obstructed to walkers that this could imply it was obstructed to horse riders.  A letter from Mr Spoors in 1988 stated “the right of way is frequently blocked by a wooden bar at the junction with the alternative tract.”  It would appear that from the late 1980s the definitive line of Footpath No.9 became obstructed to horse riders and they had no alternative but to use the footpath diversion, although most were already using the alternative route.  Therefore the date of 1987 should be used as the date the original definitive route (the application route) was ‘brought into question” – the relevant twenty year period to be considered for the user evidence was 1967 to 1987.

An alternative route, between points C-G-D on Plan No.WCA/004, had initially been installed in 1953, by the previous owner (now deceased) of Close House Farm. The purpose of this alternative path was to avoid having people walking the definitive line which ran in front of Close House Farm as the owner had a herd of cows and was concerned about foot and mouth disease.  Although not included as part of the application, the user evidence submitted showed that this route had been used by horse riders and therefore must be considered.  This section of the path was not currently recorded on the Definitive Map, therefore section 53(3)(c)(i) applied.  In 1995 Mrs Broadbent had submitted a Statutory Declaration under section 31(6) of the Highways Act 1980 to state that no additional ways (other then Footpath No.9) had been dedicated as highway.  This is sufficient to negate the presumed dedication of this route from this date.  Therefore when considering the user evidence for this section the relevant twenty year period to be considered was 1975 – 1995. 

The route of Public Footpath No.9 at the northern end between points A and B on Plan No.WCA/004 was physically obstructed during the construction of the Hillside Court Flats on Roewood Lane.  The flats were built by Macclesfield Rural District Council in 1973 and unfortunately legal orders stopping up the affected part of the footpath were never published.  Since the development users of the right of way have used the adopted highway to access the start of the footpath at point B.

There was also an anomaly at the southern end of the route.  The Definitive Map showed the footpath ending at the parish boundary with Macclesfield – point E on Plan No.WCA/004.  The section of Roewood Lane, between points E and F was an unadopted highway therefore the route should continue to point F where it met Ecton Avenue. 

The report concluded the historical evidence supported the existence of the route but did not help determine the status of the route.  Although the Finance Act Working Plan did support the claim that public rights higher then footpath existed along part of the route. 

The user evidence for the claimed route past Close House Farm (points C-H-I-D) was not considered sufficient to meet the legal test as only one person hadclaimed use on horseback during the relevant period 1967-1987 and they may well have used it with permission during this time.  The applicant had stated that horse riders would have used the definitive line if not for the obstruction and overgrown state of the path.  However from the Council’s correspondence files and photographs of the pole it would seem that the definitive line was obstructed to horse riders from the late 1980s and no evidence indicating an earlier obstruction has come to light.  In order to show bridleway rights it must be shown that the route was used as such during the relevant twenty year period.  The users who claimed to use the definitive line prior to 1967 then chose to use the alternative route and this was before any obstruction. 

Under section 31(1) of the Highways Act 1980 public bridleway rights can come into existence by prescription unless there is evidence to the contrary.  Mrs Broadbent had claimed she challenged any horse riders seen on the path by her house. None of the witnesses interviewed state they were challenged by her but they were almost all for the majority of the time using the alternative path (C-G-D). None of the witnesses claim to have been challenged on the alternative path and Mrs Broadbent has admitted that horse riders used this path.  The user evidence for the alternative path and the remainder of the claimed route was considered sufficient to show bridleway rights.  It was believed that the landowner had not negated the presumed dedication of this route.

It was concluded that there was insufficient historical and user evidence to support the existence of bridleway rights along the route C-H-I-D and on the balance of probabilities the requirements of section 53(3)(c)(ii) had not been met and it was recommended that this section remain as Public Footpath on the Definitive Map and Statement.

For sections B-C and D-J-E of the route it was considered that there was sufficient user evidence to support the existence of bridleway rights and on the balance of probabilities the requirements of section 53(3)(c)(ii) had been met.  It was therefore recommended that the Definitive Map and Statement be modified to upgrade these sections from a Public Footpath to a Public Bridleway.

For sections C-G-D and E-F of the route it was considered that there was sufficient evidence to support the existence of bridleway rights and that on the balance of probabilities the requirements of section 53(3)(c)(i) had been met.  It was recommended that the Definitive Map and Statement be modified to add these sections as a Public Bridleway.

The report concluded that section A-B was not needed for public use as an alternative access was available and recommended that this section be extinguished under section 118 of the Highways Act 1980.

The Committee considered the comments made by Mr Spoors, the historical and user evidence outlined in the report and the Definitive Map Officer’s conclusions and by majority:

RESOLVED:  That

(1)       the application to modify the Definitive Map and Statement to record public bridleway rights between points C-H-I-D, as shown on Plan No.WCA/004, be refused on the grounds that there is insufficient evidence to show the existence of Public Bridleway rights.

(2)       An Order be made under Section 53(3)(c)(ii) of the Wildlife and Countryside Act 1981 to modify the Definitive Map and Statement by upgrading to Public Bridleway the route shown between points B-C and D-J-E, as shown on Plan No.WCA/004.

(3)       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 as a Public Bridleway the route shown between points C-G-D and E-F, as shown on Plan No.WCA/004.

(4)       An Order be made under Section 118 of the Highways Act 1980 to stop up part of Public Footpath No.9, as shown between points A-B on Plan No.WCA/004, on the grounds that it is not needed for public use.

(5)       Public Notice of the making of the Orders be given and, in the event of there being no objections within the specified period, or any objections received being withdrawn, the Orders be confirmed in exercise of the powers conferred on the Council by the said Acts.

(6)       In the event of objections to the Orders being received, Cheshire East Borough Council be responsible for the conduct of any hearing or public inquiry.