Agenda item

To consider an application to add a Byway Open to All Traffic to the Definitive Map and Statement

Note: Councillor L Jeuda arrived at the meeting during consideration of this item but did not take part in the discussion or vote on the matter.

The Committee received a report which detailed an investigation into an application to add a Byway Open to all Traffic, known as Red Lane, in the parish of Disley to the Definitive Map and Statement.

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.

The application had been registered in November 2002 by Disley Parish Council.  Red Lane formed an access route to a large number of properties and also to St Mary’s Church.  Three public footpaths joined Red Lane and two public footpaths ran from the end of the claimed section of Green Lane.  The application suggested that there had been a route from Lyme Hall to St Mary’s Church and Disley village since at least the 16^th century.  The application also referred to historical documents including Tithe Map, County Maps, Ordnance survey maps, Railway Plans and the Finance Act.  Four user evidence forms were also submitted claiming use of the route on foot, on horse and by vehicle as far as the gates to Lyme Park for a period of 25, 26, 27 and 43 years.  A further evidence form was submitted in 2007 claiming 20 years use on foot and 10 years in a vehicle to access properties. 

An objection to the claim was lodged with the Council when the application was made by a resident of Red Lane referring to the private maintenance of the Lane to which they had contributed over many years.

An investigation into the claim was initially commenced in 2007. Consultation was undertaken with adjacent property holders and all interested parties at that time, which resulted in comments referring to the private maintenance of the lane and the cost of repairs at various times.  There was also concern about visitors to Lyme Park parking their cars along Red Lane and causing obstruction issues.  Others objected as the route for vehicles would be a dead end and serve no purpose except to increase parking problems.  The case officer undertaking the investigation left Cheshire County Council in September 2007 and the file had remained largely dormant until now. 

A detailed investigation of the evidence submitted with the application had been undertaken, together with additional research.  The application had been made based on historical evidence and user evidence from five witnesses and one statutory declaration.  In addition to the submitted evidence, a detailed investigation of the available historical documentation had been undertaken to try and establish the history and original status of the claimed route. 

Red Lane had appeared on a number of historical documents of good provenance.  The Tithe Map of 1850 listed the lane as a public road along with other connecting routes that were not wholly in Lyme Park and private.  The route had appeared consistently on early County Maps and on many was referenced as a ‘cross road’.  These early records raised a reasonable presumption that the route was a through route and of higher status than footpath.

However, the Stockport, Disley and Whalley Bridge Railway Plan of 1853 recorded the route onto which Red Lane joined as its westerly end as private road and the owner as Thomas Legh.  The railway proposal was enacted by parliament and the subsequent construction of railway altered the alignment of the adjourning road and changed the nature of the ‘through road’ that Red Lane might otherwise have been.  The 1872 Ordnance Survey map showed how the alignment of the road had changed and most of the old route was subsumed under parkland.  The Stockport Corporation Water Plan of 1904 referred to Red Lane as ‘Private Road and Public Footpath’.

The Legh Estate papers had shown a consistent picture through letters and other documents that Red Lane was considered to be a Private Road maintained by the Estate.  The Disley Rural District Council minutes and papers gave the same picture.  There was evidence from minutes and estate papers of a complaint about the condition of the road resulting in the County Council serving notice on the Estate and frontagers in 1946 to effect repairs to the road as it was not ’publicly maintainable’.

In order to show public vehicular rights had been acquired along Red Lane through usage, a twenty year period must be identified during which use of the route by vehicles had been established.  In this case signs have been in evidence along Red Lane at various times.  Mr Gresty, of 19 Red Lane, claimed to have put signs in approximately 2002 and also recalls a ‘No through road’ sign on the wall at the Doctors Surgery.  A sign stating ‘No Right of Way for vehicles’ and other information was in place towards the Lyme Park end of the lane and according to Mr Gresty had been since approximately 1992.  It this date is taken as the first date of challenge to motorised vehicle users then the period for these purposes must be taken at 1972 to 1992.  There had been no challenge to pedestrians or other users therefore use on foot or horseback could be considered up to the date of the application, which is the period 1982 to 2002. 

Three people had claimed to use the lane during the relevant period but not for the full twenty year period and had been for the purpose of parking and walking to Lyme Park or to visit residents or to attend the Church.

In the Legh Estate papers from 1933 there was correspondence stating that people parking in the lane who had no business there could be served with an injunction from the County Court.   This demonstrated the intent of the Legh Estate no to allow public vehicular use of the lane but whether that intent was made clear to the public was difficult to ascertain. 

The user evidence showed that all bar one of the six witnesses had used Red Lane on foot during the period 1982 to 2002, with use being to access Lyme Park and also to access the other public footpaths that led into the claimed route.  The use had been very frequent in some instances i.e. every day to 20 times per year.  There was no indication from the historic documents that pedestrian use by the public had ever been discouraged or prevented.

The route as a public footpath was quite widely documented throughout the Legh Estate Papers and in a number of other documents from the 19^th century.  The number of connecting footpaths gave rise to a strong presumption of use of Red Lane as a footpath was demonstrated in the user evidence provided.  Use of a bridleway had been catalogued but was demonstrated by only one of the users and did not provide a strong enough basis on which to base a reasonable allegation.  The report concluded that for Red Lane there was insufficient historical and user evidence to support the existence of a byway open to all traffic.

The Committee considered the evidence presented by the officer and detailed in the report and considered that there was insufficient evidence historical and user evidence to support the existence of a byway open to all traffic along A-B-C and B-D on plan number WCA/010.  However, the Committee considered that on the balance of probabilities the requirements of Section 53(3)(c)(i) had been met in regard to the existence of public pedestrian rights and therefore recommended that these sections should be subject to a Definitive Map Modification Order to add them as Public Footpaths to the Definitive Map and Statement.

The Committee RESOLVED: That

(1)       The application to modify the Definitive Map and Statement to record a byway open to all traffic between points A-B-C and B-D, as shown on plan number WCA/010, be refused on the grounds that there is sufficient evidence to show the existence of Public Byway Open to All Traffic rights.

(2)       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 along the route shown between points A-B-C on plan number WCA/010.

(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 a Public Footpath along the route shown between points B-D on plan number WCA/010.

(4)       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 Orders be confirmed in exercise of the power conferred on the Council by the said Acts.

(5)       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.