Agenda item

To consider the application for the addition of a public footpath between Public Footpaths No.4 and 11 in the parish of Wybunbury

The Committee received a report detailing an application made by Mr K Billington of Main Road, Wybunbury to modify the Definitive Map and Statement for the parish of Wybunbury by adding a currently unrecorded route as a Public Footpath.

The application for the addition of a public footpath between Public Footpaths No. 4 and 11 - between points A-B-C-D-E-F-G-H on Plan No. WCA/005 -   was made in 2007.  The application was supported by 31 user evidence forms.  

Points C-F of the claimed route ran behind the plot of The Hollies 14 Main Road.  The owner, Mrs Colbert, also owned the field to the back of the property – to the north of the claimed route.  Part of the claimed route itself between points A-F was not registered with the land registry.  Mrs Colbert had showed Officer the barn at the end of her garden, adjacent to which was the claimed route.  It was stated that the barn had been unstable since 2007 when scaffolding was erected at the side of the barn to repair the roof.  Her late husband had blocked off the route and put up signs warning of the danger and advising that the path was closed.  It was this action which had prompted the application as it was discovered that the path was not recorded on the Definitive Map.

Natural England owned the land between points F-G-H and the Reserve Manager had stated that they had no objection to the path.  They would also like to fence off the footpath between points F and G as this would avoid problems with dogs running after the cattle they grazed on the land.

Section 53 (2)(b) of the Wildlife and Countryside Act 1981, required 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.

One such event, accordance with section 53(3)(c)(i), was

“(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….”

The evidence could consist of documentary/historical evidence or user evidence or a mixture of both.  All the evidence had to be evaluated and weighed and a conclusion reached whether, on the ‘balance of probabilities’ the alleged rights subsist or are reasonably alleged to subsist. Any other issues, such as safety, security, suitability, desirability or the effects on property or the environment, were not relevant to the decision.

As the evidence in support was of application was user evidence, section 31(1) of the Highways 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 was without force, secrecy or permission.  Section 31(2) stated that “the 20 years is to be calculated retrospectively from the date when the right of the public to use the way is brought into question.”

Mrs Colbert had provided copies her late husband’s diary entries.  The diary entries showed dates when he closed the footpath for various reasons.  The earliest date was 31 December 1990 when it was stated that the footpath was “closed all day”.  It was believed the date of 1990 should be used as the date the route was ‘brought into question’ and therefore the relevant twenty year period to be considered for the user evidence was 1970 to 1990.

The report concluded that the first part of the claimed route existed in 1846 as shown on the Wybunbury Tithe Map.  The entire claimed route was shown on the 1^st and 2^nd editions of the 25” Ordnance Survey Maps.  However although this was good evidence of the physical existence of the route, these Maps did not denote the status of the route and can therefore only be regarded as supporting evidence.  The Parish Walking Survey, dated 1951, described the route in the schedule and stated that it appeared to be well used. It was therefore surprising that the route was not included in the Draft Definitive Map. 

The user evidence submitted showed considerable use over a period spanning 60 years.  The relevant period to be considered was 1970-1990.  Twelve witnesses had been interviewed and six of these claimed use of the route for the full twenty year period and a further five for part of this period.

Under section 31(1) of the Highways Act 1980 public footpath rights could come into existence by prescription unless there was evidence to the contrary.  Therefore the landowner must provide evidence to that effect, which was normally evidence of a challenge or notices put up during the relevant twenty year period.  Mrs Colbert had not claimed that they ever challenged anyone seen on the path by their property.  None of the witnesses interviewed stated that they were challenged anywhere on the route.  There was no evidence of any notices until the route was blocked in 2006/2007.  There was no evidence of a challenge of any kind to the public during the relevant period.

The Committee considered the historical and user evidence outlined in the report and the Definitive Map Officer’s conclusions and concluded that there was sufficient user evidence to support the existence of footpath rights and therefore, on the balance of probabilities, the requirements of Section 53(3)(c)(i) had been met and that the Definitive Map and Statement should be modified to add the claimed route as a Public Footpath.

RESOLVED:  That

(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 as a Public Footpath the route as shown between points A-B-C-D-E-F-G-H, on Plan No.WCA/005.

(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.