Agenda and minutes

There were no apologies for absence.

To provide an opportunity for Members and Officers to declare any disclosable pecuniary and non-pecuniary interests in any item on the agenda.

In the interests of openness and transparency Councillor R Moreton declared that he knew Mrs Andrea Bossen, the applicant who would be speaking on agenda item 6 in relation to the application for the Deletion of Public Footpath No. 66, Congleton, but he had not discussed the item with her.

To approve the minutes of the meeting held on 1 August 2022.

RESOLVED

That the minutes of the meeting held on 1 August 2022 be confirmed as a correct record.

In accordance with Public Speaking Appendix, members of the public may speak on a particular application after the Chair has introduced the report, provided that notice has been given in writing to Democratic Services three clear working day before the meeting.  A total of 6 minutes is allocated for each application, with 3 minutes for objectors and 3 minutes for supporters.  If more than one person wishes to speak as an objector or supporter, the time will be allocated accordingly or those wishing to speak may agree that one of their number shall speak for all.

Also in accordance with the Committee Procedural Rules and Public Speaking Appendix a total period of 15 minutes is allocated for members of the public to address the Committee on any matter relevant to the work of the body in question.  Individual members of the public may speak for up to 2 minutes but the Chair will decide how the period of time allocated for public speaking will be apportioned where there are a number of speakers. 

Members of the public wishing to speak are required to provide notice of this at least three clear working days’ in advance of the meeting and should include the question with that notice.

Mr David Nixon, Moston Parish Councillor and the applicant in respect of agenda item 5 Wildlife & Countryside Act 1981 – Part III, Section 53. Application No. CO/8/39: Application to add a Public Bridleway between Dragons Lane and Plant Lane, Moston, addressed the Committee.

Mr Nixon complimented the Officers on their work carried out on the investigation into the application and understood the recommendation to add a Restricted Byway based on the balance of probabilities. Mr Nixon informed the Committee that there were concerns raised by the residents of Moston and provided details of the use of the track over the last 80 years which included, the grazing of cattle, walkers and horse riders, but also included anti-social behaviour and drug use.  This  had resulted in the Parish Council erecting stainless steel posts at either end of the track to prevent vehicular access, but to still allow space for walkers, cyclists and horse riders to access the track. Following the erection of the posts the anti-social behaviour had ceased and in the last 20 years it had never been questioned nor any request made for access by horse and carriage. Following the sale of part of an adjourning field in 2011 development concerns were raised about the nature of the track which was not shown on the Definitive Map. As a result, the application was submitted for a bridleway in 2014. Walkers and horse riders continued to use the track and in 2020 during the lockdown many families started using the track as an exercise route. Quad bikers also started to use the track which discouraged walkers from using it and it started to be used as an outdoor toilet. Environmental Health were unable to help as the track was not on the Definitive Map and horse riding and walking usage had never recovered since then. A bridleway, as applied for, would provide the perfect solution, but the recommendation brought to Committee raises concerns as the post which would allow walkers and hose riders, but protected the track from use by vehicles over the last 20 years, was consider not to be wide enough for a restricted byway. Therefore, if the recommendation were to be approved there would be a cost-effective solution where by one post be removed and the keys held by the Public Rights of Way team or the Parish Council.

Mrs Andrea Bossen, the applicant in respect of agenda item 6 Wildlife & Countryside Act 1981 – Part III, Section 53. Application No. CO/8/54: Application for the Deletion of Public Footpath No. 66, Congleton, addressed the Committee.

Mrs Bossen felt that not all the evidence had been included in the agenda pack, several statements within the report were incorrect and the level of attention to detail in considering the detail and facts was fatally flawed and superficial. Mrs Bossen felt that the report misinformed the reader regarding the submission date of the application, which should have read 2020, not 2022. There were superficial errors and a lack of accuracy  ...  view the full minutes text for item 14.

To consider an application to amend the Definitive Map and Statement to add a Public Bridleway between Dragons Lane and Plant Lane in the parish of Moston.

The Committee considered a report detailing the investigation into an application made by Mr David Nixon in 2014 to amend the Definitive Map and Statement to add a Public Bridleway between Dragons Lane and Plant Lane in the parish of Moston.

Section 53(2)(b) of the Wildlife and Countryside Act 1981 required that the Council should 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, (section 53(3)(c)(i) is where 

“(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 on the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way such that the land over which the right subsists is a public path, a restricted byway or, subject to section 54A, a byway open to all traffic.

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

Where the evidence in support of the application was user evidence, section 31(1) of the Highways Act 1980 applies.  This states; -

“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 requires 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 “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”.

The documentary evidence that had been examined included County Maps, Tithe Records, Railway Plan Records (1871), Ordnance Survey Records, Finance Act 1910, Definitive Map Process – National Parks and Access to the Countryside Act 1949, Land Registry information, photographs, and other evidence.

Witness evidence included 11 user evidence forms. In total 7 witnesses were contacted to be interviewed.  Interviews with 3 were held face to face and the remaining 4 were conducted as phone interviews. The users all clearly referred to the same route, all believed it to be a bridleway and could give evidence of use from 1936 to 2014 on foot, by horse and by bicycle.

5 of the witnesses mentioned the erection of bollards at either end to prevent the use of the route by vehicles. Upon interviewing it was established that the Parish Council erected the  ...  view the full minutes text for item 15.

To consider an application under the Wildlife & Countryside Act 1981 - Part III, Section 53. Application No. CO/8/54: for the Deletion of Public Footpath no.66, Congleton.

The Committee considered a report detailing the investigation into an application made by Andrea Bossen, the landowner of the property Puddle Bank, Congleton, at the far southern end of Public Footpath No.66. The application was to amend the Definitive Map and Statement to delete part of Public Footpath Congleton No. 66. The report considered the evidence submitted and researched in the application to delete part of Public Footpath No. 66, Congleton. The evidence consisted of a detailed letter from the applicant with reference and statements as to why they believed the route should be deleted. It included reference to historical documents such as the Enclosure Award, sale plans, Tithe Map, Finance Act Map, Peak and Northern Footpath Society reports and more.

The Committee noted that the date of the application made by Andrea Bossen had been incorrectly stated as ‘2022’ in the report and in fact it should have read February 2020.

A site visit was made on 25th August 2022. The route was walked in full south to north and back again and an interview conducted and documented with the applicant. The landowner at the north end at Castle Farm had not responded to the consultation but a brief phone conversation was held as well as speaking to other residents on the ground at Castle Farm on 25th August 2022.

Section 53(2)(b) of the Wildlife and Countryside Act 1981 requires that the Council shall 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, (section 53(3)(c)(iii) requires modification of the map and statement to delete a public right of way where:

“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. All the evidence must have been evaluated and weighed before a conclusion was reached. Any other issues, such as safety, security, suitability, desirability, cost or the effects on property or the environment, are not relevant to the decision.

The legal test for deleting a public right of way was different than for claiming a public right of way or for applications to change the status or alignment of a route. In particular, there were specific case law tests and government guidance notes to be considered when examining deletion cases.

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

· DEFRA Government Circular 1/09 (1990)

· Trevelyan v SOS [2001] EWCA Civ 266

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

Documentary evidence submitted included 1798 Enclosure Award, Congleton Tithe Map and Apportionment 1845, Ordnance Survey Records,  ...  view the full minutes text for item 16.

To receive an informative report detailing the decision made by the Planning Inspectorate on the Order made by the Council to modify the Definitive Map and Statement by adding a footpath in Cranage

The Committee received an information report which detailed the decision made by the Planning Inspectorate on the Order made by the Council to modify the Definitive Map and Statement by adding a footpath in Cranage.

The Committee heard that following the referral of this Order to the Planning Inspectorate following an objection; a site meeting was held with an appointed Inspector. Along with consideration of the submitted evidence and correspondence with the affected parties, the Inspector determined that the Order not be confirmed.

RESOLVED:

That the report be noted.

To receive an informative report in respect of a new permissive path agreement in the Parish of Bradwall.

The Committee considered a report detailing a new permissive path agreement in the Parish of Bradwall between the Council, Bradwall Parish Council and respective landowners.

Bradwall Parish Council had secured the agreement of third party landowners for the creation of a permissive footpath in the parish as shown on Plan No. PPA/007 appended to the report. The aim of the 273m long path was to form a safe and pleasant off-road link alongside a section of Bradwall Road where there was no footway, limited verges and limited sightlines. There had been an increase in the number of walkers from Sandbach using this road to form circular routes using other public footpaths in the area.

The Parish Council would be bearing all costs of construction, maintenance, and liabilities throughout the duration of the agreement which would be in place for an initial term of 3 years. Cheshire East Council was a signatory to the agreement so that it was formally recorded with the Highway Authority.

RESOLVED

That the report be noted.

To note the Public Path Orders determined under Delegated Decision.

The Committee received an information report on the uncontested Public Path Order cases that had been determined under delegated decision.

The Committee noted that in paragraph 6.2.1 of the report it should read that a decision had been taken under delegation which related to:

“Highways Act 1980 Section 119 Proposed Diversion of Public Footpath No.14 in the Town of Alsager (part)”.

RESOLVED

That the uncontested Public Path Order case determined under delegated decision be noted.