Agenda item

To consider the application for the upgrading of Public Footpaths No.8 Marbury cum Quoisley and No.3 Wirswall to Bridleways

The Committee considered a report which detailed an investigation into an application for the upgrading of Public Footpaths No.8 Marbury cum Quoisley and No.3 Wirswall to Bridleway.

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.  The event relevant to the application was Section 53 (3)(c)(ii), 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:

(ii) that a highway shown in the map and statement as a highway of a particular description ought to be shown as a highway of a different description.”

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

The application had been submitted in 2005 by Miss B Harden and Mrs A Williams to amend the Definitive Map and Statement by upgrading footpaths in Marbury cum Quoisley and Wirswall to bridleways.  The application was based solely on historical evidence dating from 1812 to 1954.  There was no evidence of any use on horseback or bicycle. 

Sofie Paton-Smith spoke in objection to the application and stated that she had carried out her own research and believed that the bridleway rights had been removed and that the route was a footpath.  She was awaiting evidence from the County Records Office, which she thought may affect the decision. 

Two letters of objections from Caroline Paton-Smith and Elaine Von Dinther had been circulated to the Committee members.

A detailed investigation of the evidence submitted had been undertaken, together with additional research.  The application had been made based on historical evidence and the following documents had been supplied by the applicant: Marbury and Wirswall Tithe Maps and Apportionment (1837-1840); the Finance Act Plan, Field Book entries (1910, 1913); the National Parks and Access to the Countryside Act Parish Survey for Wirswall (1954) and copies of a diversion of part of the claimed route made through the Quarter Sessions dated 1812.

The historical evidence has showed that the claimed route appeared in a number of documents of good provenance.  The Quarter Sessions diversion records for 1812 were legal documents and although it did not show the full length of the route, it clearly showed that the route continued and indicated a status of ‘bridle and footway’.  The Tithe Maps (1838-40) showed a consistent alignment corresponding to footpath No.8 Marbury and footpath No.3 Wirswall with the route shown between double pecked lines or one pecked and one solid line. It was annotated as ‘Bridle Road’ on the Wirswall Map and states to Marbury at the edge of the map indicating a continuing route.  The full length of the route appears on Bryant’s map dated 1831 and is depicted as ‘Lanes and Bridleways’.  These early records raise a reasonable presumption that the route was a through route and of a higher status than footpath.

The Ordnance Survey First series from 1833 was consistent with the Tithe and Bryant’s County map clearly depicting a through route from Marbury to Wirswall.  The County series O.S maps from around 1872 to 1910 consistently show a pecked double line for the route.  The 25^th inch first edition gave the route a number but there was no book of reference available. On the 2^nd and 3^rd editions the route is annotated with B.R.

The Finance Act 1910 showed the route included within a hereditament for the Wirswall part of the route and the field book recorded an exemption for ‘Bridle Road’.  The Marbury Parish Council minute from 1910 specifically refers to the route as a ‘Bridleroad’ which confirmed that the full length of the route as considered to have bridle rights at this time.

The minutes of the County Council Roads and Bridges Committee in 1945 suggest that the route was still considered a bridleway and was publicly repairable.

The original survey report for Wirswall, which was used for the completion of the Definitive Map, showed a presumption of the use of the route as a bridleway.  These were written by local people with knowledge of the local area and indicate that the path was capable of being used by horse riders even if it was recorded as a footpath at the next stages of the Definitive Map process.  .

The report concluded that on the balance of probabilities evidence supported the allegation that a bridleway subsists along the route claimed and it was considered that Section 53(3)(c)(ii) had been met.

The Committee considered the historical evidence and the Definitive Map Officer’s conclusion and considered that there was sufficient evidence to support the existence of public bridleway rights.  It was proposed that time be allowed for the additional evidence to be viewed in case any evidence was found that bridleway rights had been stopped up.  The Committee was asked to delegate the decision to the Public Rights of Way Manager, in consultation with the Chairman and Vice Chairman to allow any additional evidence to be considered in reaching a final decision.

RESOLVED:  That

1          the decision be delegated to the Public Rights of Way Manager, in consultation with the Chairman and Vice Chairman.

2          If an Order is made, 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 being withdrawn, the Order be confirmed in exercise of the power conferred on the Council by the said Acts.

3          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.