Agenda item

To consider the applications for the deletion of part of Public Footpaths No.15 and No.23 in the parish of Rainow and Kettleshulme.

The Committee considered a report which detailed an application to amend the Definitive Map and Statement  by deleting Public Footpath Nos. 15 (part) and 23 between Charles Head Farm and Neighbourway Farm in the two parishes of Rainow and Kettleshulme.

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

One such event under section 53(c)(iii) required the modification of the Map and Statement to delete a public right of way where:

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

(iii)       that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification.”

The evidence could consist of documentary/historical evidence or user evidence or a mixture of both.

The following case law test and government guidance notes also needed to be considered when considering deletion cases:

·         DEFRA Government Circular 1/09 (1990)

·         Trevelyan v SOS [2001] EWCA Civ 266 and Burrows v SOS [2004] EWHC 132

·         Planning Inspectorate Rights of Way Section Advice No 9 (2006).

The application had been made by Marie Cunningham in March 2016 and had included a large amount of documentary evidence such as maps, letters and other material sourced from Cheshire Archives, Cheshire East Council Records and elsewhere.  In addition there were also twenty statements attached from individuals who stated that they did not believe that Public Footpath Nos. 15 and 23 were public footpaths.

Reference had been made to a previous application made in 1991 to delete Public Footpath No.23 Kettleshulme – MA/5/174.  It was understood that this application had been left undetermined at the time.  It was Officers’ opinion at the time that there was insufficient evidence to support the application; however Officers had given the applicant further time to submit additional evidence but this was not forthcoming and the application was left in abeyance.

Marie Cunningham attended the meeting and spoke in support of her application, and making reference to the documentary historical evidence, stating that she believed that Public Footpath Nos. 15 and 23 had been included in error and that there had been confusion over the routes as they were in close proximity to Public Footpaths Nos. 16 and 95. She stated that  Rainow Parish Council had not claimed Public Footpath No.15 and Kettleshulme Parish Council had not claimed Public Footpath No. 23 in their surveys for the Definitive Map so there was no continuity of the route.

The report before the Committee detailed the investigation carried out into the documentary historical evidence and user evidence statements and the responses from the consultation undertaken with the user groups/organisations. The report concluded that, whilst it was always a possibility that an error did occur, without very clear substantial and robust documentary evidence of an error in recording the route, or credible evidence of non-use between about 1930 and 1950 the application to delete Footpath Nos. 15 and 23 struggled to meet the legal tests required by statue and case law and that the requirements of Section 53(3)(c)(iii) had not been met.

The Committee considered the comments from the Applicant, the historical evidence and user evidence submitted and the Definitive Map Officer’s conclusion and considered that the evidence was not sufficient to overturn the presumption that the Definitive Map was correct.  It was clear that the correct legal procedures had been followed during the time of recording Public Footpath Nos.15 and 23 on the Definitive Map and Statement and no objections were received at that time. 

The Committee unanimously

RESOLVED:  That

1          An Order not be made under Section 53 (3)(c)(iii) of the Wildlife and Countryside Act 1981 to delete Public Footpaths No.15 (part) and No.23 in the parishes of Rainow and Kettleshulme, as shown between points C-D-E-F-G-H-I-J-K-M on Plan No.WCA/015.

2          Definitive Map Modification Order applications Nos. MA/5/252 and MA/5/174 be refused on the grounds that there is not any robust evidence to overturn the legal presumption that the Definitive Map and Statement are correct.