To consider the application for the addition of a Public Footpath between nos. 95 and 97 King Street to Old Market Place, Knutsford
The Committee considered a report which detailed an investigation into an application for the addition of a public footpath between nos. 95 and 97 King Street to Old Market Place, Knutsford to the Definitive Map and Statement. Additional letters objecting to the application and a statement from Knutsford Town Council, which had been received since the report was written, were circulated to the Committee.
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)(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. All evidence had to be evaluated and weighed and a conclusion reached whether, on the ‘balance of probabilities’ the alleged rights subsist or are reasonably alleged to subsist. Other issues such as safety, security, suitability, desirability or the effects on property or the environment were not relevant to the decision.
John Cummins, on behalf of Matthew Mooney, spoke in objection to the application and stated that during the twenty year period and before, the owners had placed a sign notifying the users there was no right of way over the site. In 2001 Mr Mooney placed a sign over the existing sign reaffirming this. Use of the land for the servicing of adjacent properties had prevented people crossing the way. The area between the properties had previously been used by owners to park their company vehicles.
Councillor T Dean, on behalf of Knutsford Town Council, spoke in support of the application. The Town Council had made the application after being approached by members of the public who were using the path when it was blocked off by a fence – this path offered a more level access to King Street from Old Market Place Car Park. The evidence supplied showed that the path had been used by the public as of right and without interruption for 20 years and was therefore deemed dedicated. The signage referred to was not visible for all to see as it was covered by ivy for the relevant period.
The application had been submitted in May 2016 by Knutsford Town Council. The route applied for ran from King Street to Old Market Place, Knutsford and was based on user evidence from 14 users. The application was submitted following the blocking of the claimed footpath with a fence in 2015 making it inaccessible to the public. A planning application was submitted for an outdoor ground level dining area – planning reference no.16/1717M, which was approved in August 2016. The area to be used as an outdoor dining area would affect the claimed footpath.
Where the evidence in support of the application is user evidence, section 31(1) of the Highways Act 1980 applies:
“where a way… has been actually enjoyed by the public as a 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 required that the public must have used the way without interruption and as of right, that is without force, secrecy or permission. The twenty years was to be calculated retrospectively from the date when the right of the public to use the way was brought into question. In this case the date the route was blocked should be used as the date the way was ‘brought into question.” The relevant twenty year period to be considered for user evidence was 1995 to 2015.
The report detailed the investigation of the evidence submitted with the application, together with additional research including historical evidence. The report concluded that a decision on the application had to be made on the basis of user evidence. During the relevant period 1995 to 2015, the user evidence forms and witnesses interviews showed that the route was being used on a fairly regular basis and that there was sufficient user evidence to support the allegation that a public footpath subsisted along the routes A-B-C Plan No. WCA/013. The majority of witnesses had not seen any signs or notices and there was evidence to suggest that the sign had not been visible for a significant length of time. The report concluded that the landowners intentions had not been made clear to the public.
The Committee considered the evidence outlined in the report and the Definitive Map Officer’s conclusions along with the additional documents, photographs and comments from the public speakers. The Committee sought clarification on the signage and visibility of it, the reason for the application being brought and the connectivity of claimed footpath. The Committee not being convinced regarding the period for which, and the degree to which, the signage had been obscured concluded that, on the balance of probabilities, the requirements of Section 53(3)(c)(i) had not been met in relation to footpath rights.
The Committee by majority
That an Order, under Section 53 (3)(c)(i) of the Wildlife and Countryside Act 1981, to add a public footpath between numbers 95 and 97 King Street to Old Market Place, Knutsford, not be made.