Agenda item

To consider the application to upgrade Public Footpath Nos.6 and 7 Arclid and No.16 Smallwood to Bridleways

The Committee received a report which detailed an investigation into an application to amend the Definitive Map and Statement by upgrading Public Footpath Nos. 6 and 7 Arclid and No.16 Smallwood to bridleways.

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 that evidence and decide on the outcome whether to make a Definitive Map Modification Order. 

The application had been made in January 2005 by Mrs P Amies, on behalf of the Border Bridleways Association, to modify the Definitive Map and Statement by upgrading three footpaths to bridleways in the parishes of Arclid and Smallwood.  The route applied for was currently recorded as Public Footpath No.7 (part) Arclid between points A-B-C-D-F on Plan No.WCA/007; Public Footpath No.6 Arclid between D-E and Public Footpath No.16 Smallwood between points F-G.  A considerable amount of historical evidence had been supplied with the application including extracts from County Maps, Tithe Maps, Ordnance Survey Maps, the Finance Act, the 1950’s Parish Survey and several Road and motoring maps.  Also submitted were six user evidence forms from individuals who claimed use of the route or part of it on horseback, one also claimed cycle use and another vehicular use.  The periods of use varied between 9 years and 57 years and were stated to be frequently, weekly or monthly.  The earliest use was from 1918 and it extended until 1997.  Three of the forms were completed in 1997, two in 2000 and one in 2004.  One of the witnesses had since died, one stated that they no longer wanted to be involved and three did not return contact after they were written to.

Objections to the application had been received from the land owners DM Beresford & Partners Ltd and lessee Archibald Bathgate Group Ltd, who had planning permission to undertake sand extraction between point B to points E and F.  There were proposals to divert the paths affected as part of the restoration scheme.  The land between points F and G were owned by Mr Bracegirdle, who had also lodged an objection to the application.

A detailed investigation of the evidence submitted with the application had been undertaken, together with additional research.  The application was made on the basis of historical evidence and user evidence from 6 witnesses. 

The Tithe Maps for Arclid and Betchton showed a consistent alignment corresponding with Footpath Nos.6 and 7 Arclid, with the route shown coloured and bounded on both maps.  The route was recorded as ‘road’ on the Arclid map.  The route on the Smallwood Tithe map was not the exact alignment of Footpath No.16 and was not separately described but included in surrounding hereditaments.   The claimed route appeared in a similar way on three of the County Maps and on Bryant’s map Footpath Nos.6 and 7 were annotated Bridle Road.  The route easterly was not clearly depicted.  These early records raised a reasonable presumption that at least part of the route was a through route and of a higher status then footpath.

The 1840’s 1^st Edition Ordnance Survey was consistent with the Tithe and County maps clearly depicting a bounded lane along the line of the Footpath Nos.6 and 7, with the continuation easterly not shown across the first field.  The County series OS Map from 1872 showed a pecked double line for the easterly extension of the route of what is now Footpath No.16.  The alignment of the Arclid section was mostly shown as a bounded lane and described as a road in the book of reference.

Evidence from sales catalogues from neighbouring properties in the early 1900’s provided evidence of the believed status of the route.  It was annotated road along the section of Footpath No.7 and the continuation towards Footpath No.16 Smallwood was annotated as footpath on one of the sales plans.

The Finance Act plans were prepared to a statutory process and were generally regarded as good evidence of public rights.  The claimed route was shown on the plans and included in the surrounding hereditaments and the field books recorded exemptions for footpaths. 

The minutes of Congleton Rural District Council suggested that the route between Dean Hill and Arclid was considered to be road.  The detail of the minute related to Hood Lane and it was not known to what condition the road was repaired; it was accepted that it was a least bridleway and was publicly repairable.

The Bartholomew’s Road Map 1937 edition was supported by the Cyclist’s Touring Club, so generally believed to show routes open to cyclists.  The Map showed a continuous route from point A to point E (on Plan No.WCA/007) and continuing down Hood Lane.  This was depicted as ‘Other Road.’  There was no route shown easterly into Smallwood to the A50.

There was additional evidence of a presumption of the use of the route as a bridleway in the original survey reports which led to the compilation of the Definitive Map.  These were written by local people with knowledge of the local area and indicate that the path was capable of being used by horseriders even if it was recorded as footpath at the Draft stage of the Definitive Map process.

Of the six users evidence forms submitted, all six claimed to have ridden the route with a horse, one had also cycled and another used the route with a vehicle.  Different routes had been used by the witnesses; two had used the whole claimed route, three had used a route incorporating A-B-C-D to E and a sixth one had used the route from Hood Lane and then E-D-F-G.  The use of the route varied from 9 years to 57 years.  Three of the user’s period of use fell within 1973 to 1993, the twenty year period identified for this application.  Frequency varied between 2/3 times per week to monthly.  Only one witness was interviewed, whose knowledge of the route and the local area was quite extensive. 

The evidence collected was very detailed and specific to the claimed route but did not cover the period 1973 to 1993.  The use that did cover some of this period i.e. from the early 1980’s to 1997 did not refer to the whole route but incorporated the sections between A-B-C-D-E – Footpath Nos.6 and 7 Arclid.  Use of the section covering Footpath No.16 Smallwood was from an earlier time period, concentrated around the 1940’s and 1950’s.

The report concluded that there was on the balance of probabilities evidence to support the allegation that a bridleway subsisted along the route A-B-C-D-E  (Plan No.WCA/007) .  However it was considered that there was insufficient historical and user evidence to support the existence of bridleway rights along D-F-G.

The Committee considered the historical and user evidence outlined in the report and the Definitive Map Officer’s conclusions and considered that there was insufficient evidence to support the existence of bridleway rights along route D-F-G.  The Committee considered that the requirements of Section 53(3)(c)(ii) had been met for route A-B-C-D-E and that the Definitive Map and Statement be modified to upgrade Public Footpath Nos.7 (part) and 6 Arclid to bridleway.

The Committee by majority RESOLVED:  That

(1)       the application to modify the Definitive Map and Statement to record a bridleway between points D-F-G, as shown on Plan No.WCA/007, be refused on the grounds that there is insufficient evidence to show the existence of Public Bridleway rights;

(2)       An Order be made under Section 53(3)(c)(ii) of the Wildlife and Countryside Act 1981 to modify the Definitive Map and Statement by upgrading Public Footpath Nos.7 (part) and 6 Arclid to bridleway along the route shown between points A-B-C-D-E on Plan No.WCA/007.

(3)       Public Notice of the making of the Order be given and, in the event of there being no objections within the specified period, and any objections received being withdrawn, the Order be confirmed in exercise of the power conferred on the Council by the said Acts.

(4)       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.