Agenda item

To consider the application for the addition of Public Footpaths from Byley Lane to Carver Lane in the parish of Cranage.

The Committee considered a report which detailed an investigation into an application for the addition of public rights of way from Byley Lane to Carver Avenue in the parish of Cranage 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 (3)(c) allowed the Authority to act on the discovery of evidence that suggests that the Definitive Map and Statement needed to be amended.  The Authority must investigate and determine the evidence and decide on the outcome whether to make a Definitive Map Modification Order or not.

 The event relevant to the application was Section 53 (3)(c)(i), which required modification of the map by change of status of a right of way:

“(c) discovery by the authority of evidence which (when considered with all other relevant evidence) 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. 

Where the evidence in support of the application is user evidence, section 31(1) if 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.”

If the statutory test failed, the issue of common law dedication could be considered: that was whether the available evidence showed that the owner of the land over which the way passed had dedicated it to the public.  Under Common Law the onus of proof was on the claimant to show that the landowners, who must have the capacity to dedicate, intended to dedicate a public right of way; or that public use has gone on for so long that it could be inferred; or that the landowners were aware of and acquiesced to public use.  There is no fixed period of use, and depending on the facts of the case, may range from a few years to several decades.

Cranage Parish Council had submitted an application to modify the Definitive Map and Statement to Cheshire County Council in March 2007 for the addition of footpaths from Carver Avenue to Byley Lane – route A-B-C-D; route A-B-G; route G-F; route E-C and route E-D as shown on Plan No.WCA/016.  The application was supported by 19 user evidence form, 4 of those being minors at the time their evidence was submitted.  The application was made because of the installation of fencing across the paths.

In April 2007 a meeting had been held between representatives of the Parish Council, landowners, the local County Councillor and an Officer from Cheshire County Council to discuss the possibilities for securing use of the footpaths through other means and in July 2007 the Parish Council confirmed that permissive path agreements would be the best way forward.  However, this line of action does not appear to have been pursued since that time.

Cranage Parish Council had sought a direction from the Secretary of State for a decision to be made on the application as it was still awaiting investigation. A direction dated 16 March 2108 was received, which directed the Council to determine the application no later than 6 months from the date of direction.

Following a tendering exercise an external consultant was appointed to investigate the application on behalf of the Council.

Councillor Rachel Hurst, on behalf of Cranage Parish Council, addressed the Committee andcommented that the evidence tended to show that the public use of the application routes began when the land was owned by the government department and was therefore Crown Land.  The application should be considered on common law principles that the public rights of way had come into existence through long use and not under the statutory assumptions.  The 1934 dedication by the Health Board was not relevant as they had failed to renew the declaration and had lost the protection.  The user evidence showed that on the balance of probabilities that route A-B-C-B had been used consistently since the 1950s without interruption from the landowners.

The report before the Committee detailed the investigation carried out into the application.

In addition to the user evidence submitted, an investigation was undertaken to establish whether the claimed routes were of historical origin. Investigation was undertaken to see if the routes were shown on the Tithe Maps, Ordnance Survey Maps, aerial photographs, plans submitted under the Rights of Way Act 1932, the surveys and plans undertaken for the National Parks and Access to the Countryside Act 1949 and other documents.    It was found that these documents did not show any evidence to suggest that public rights existed along the claimed routes.

Investigation of the 19 user evidence forms submitted showed clear use of the route A-B-C-D with 9 witnesses claiming use of the route on foot, cycle or horseback. Evidence of use of the other routes was fewer in number.  The letters written by children who were under 16 at the time of the application indicated that their use was predominately play and recreation.  There was therefore, insufficient evidence of use along the alignment of the routes to include the children’s evidence.

In order to show that public rights of way have been acquired along the claimed routes, a twenty year period must be identified during which use of the route by the public had been established.  It was considered that the date of the application – March 2007, would have brought the right to use the routes into question and therefore the relevant twenty year period would be 1987 to 2007.  However until 2001 the land in question was classed as Crown Land and section 327 of the Highways Act 1980 indicates that the Act does not apply to land belonging to any government department unless there is an agreement between the highway authority and the government department that the Act shall apply.  The land affected by the application was owned by the Health Authority from at least 1934 until 2001.  The use of the routes was challenged from at least 2005 when the first section of fencing as installed.  The use of the routes had therefore only been available to use ‘as of right’ by the public from 2001 to 2005 and in some cases to 2007, depending on when the fencing was installed on the route in question.  There was therefore insufficient years of use available to satisfy the 20 year test as the period of use outside of the ownership of the Health Authority was only 4-6 years.

The land, as Crown Land, had been under the ownership of Hospital and Health Authorities from at least 1934, when the Cheshire Joint Board for the Mentally Defective had deposited a plan which did not depict or admit that any rights of way existed.  However, the Board did not submit a further statement and plan ending the protection of the land from public rights of way claims. 

The land was sold in 2001 and divided into smaller plots and some of the land was sold again in 2006.  The land was now owned by several landowners.  However some sections were still unregistered.

The landowners in general accepted and agreed that route A-B-C-D was used by the public, although some landowners may have been of the belief that it was on a permissive basis.  There was less evidence of use of the other routes which had been challenged by fencing and also private signs in a couple of locations.

Under Common law there can be a presumption of dedication over Crown Land.  Whilst it appeared that there had been use of the claimed routes, the existence of the deposited plan by the Hospital Board demonstrated that there was no intention to dedicate a public right of way.  When the land was sold there were no indication of the existence of public rights of way. With reference to route A-B-C-D the use of the alignment and width of the route was challenged as a path was accommodated on a revised alignment by the installation of fencing in approximately 2007.  Its use was also challenged by a letter stating objection to the establishment of formal footpaths in 2006 and the later development of garages and boundary.  Use of this route, as applied for in the application, was therefore challenged, showing a negative intention to dedicate.

The Officer’s report concluded that there was insufficient documentary and historic evidence to show that public rights of way existed along the alignment of the claimed routes and that as the land was Crown land prior to 2001, there was insufficient evidence of use since that time for a full 20 years to support the dedication of the routes as public rights of way.

The report concluded that there was insufficient evidence to show that public rights were deemed to exist under Common Law dedication during the time of ownership by the Crown and since 2001 by subsequent landowners.

The Committee considered the comments from the parish council, the historical evidence, the user evidence submitted, the landowner evidence submitted and the Definitive Map Officer’s conclusion and considered that there was insufficient evidence to show that public footpath rights existed along the routes claimed.

The Committee by majority

RESOLVED:

That application CO/8/34 to record public footpaths between points A-B-C-D; B-G; G-F; E-C and E-D, as shown on Plan No.WCA/016, be refused on the grounds that there is insufficient evidence to show that public footpath rights exist along these routes.