Agenda item

To consider the application for the addition of a Public Footpath between FP13 Lyme Handley on the Macclesfield Canal to FP13 Lyme Handley to the south east of Throstlenest Farm; and also a link footpath from FP13 to FP8 Lyme Handle.

Councillor Stockton joined the meeting during this item.

The Committee considered a report which detailed the investigation of an application made to amend the Definitive Map and Statement for the Parish of Lyme Handley by adding a footpath.

Under Section 53(2)(b) of the Wildlife and Countryside Act 1981, the Council had a duty to keep the Definitive Map and Statement under continuous review. Section 53 (c) allowed the Authority to act on the discovery of evidence that suggested that the Definitive Map and Statement needed to be amended. The Authority must investigate and determine the evidence and decide whether to make a Definitive Map Modification Order or not.

One such event under section 53(3)(c)(i) was 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 in 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. Where the evidence in support of the application was user evidence, section 31(1) of the Highways Act 1980 applied:- “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.”

The application had been submitted in March 2015 by Mr David Kitching. The application was supported by user evidence from sixteen witnesses; with a further witness, the spouse of one witness, who had not previously completed a user evidence form, who gave evidence to Officers during an interview.

The report before Committee detailed the investigation carried out into the application. Documentary evidence from Ordnance Survey Maps and the Lyme Handley Tithe Map supported evidence that public rights existed along the definitive route of Footpath No.13 and part of the claimed footpath.

Fourteen of the sixteen witnesses had claimed use of the route on foot for the whole 20 year period, and all had completed standard user evidence forms. The relevant 20 year period was 1994 to 2014. The route had been used for a variety of recreational purposes; dog walking; visiting friends and leisure/exercise. The witnesses stated that they had not been challenged and there was no evidence of any challenge to the public during the relevant period. All the witnesses who had been interviewed had used the route A-B-C-D; most had used D-E, but not many had mentioned the link to Footpath No.8 Lyme Handley (between point C-H on Plan No. WCA/022).

The Committee considered the user evidence submitted and the Definitive Map Officer’s conclusion and considered that there was sufficient user evidence to support the existence of footpath rights. The Committee considered that on the balance of probabilities, the requirements of Section 53(3)(C)(i) had been met and the Definitive Map and Statement should be modified to add the claimed route between points A-B-C-D-E on Plan No. WCA/022 as a Public Footpath.

The Sub Committee by majority

RESOLVED: That

1          An Order be made under Section 53(3)(c)(i) of the Wildlife and Countryside Act 1981 to modify the Definitive Map and Statement by adding as a Public Footpath, the route as shown between points A-B-C-D-E on Plan No. WCA/022;

2          The application to modify the Definitive Map and Statement to record public footpath rights between points C and H as illustrated on Plan No. WCA/022 be refused on the grounds that there is insufficient evidence of use of that section.

3          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 received being withdrawn, the Order be confirmed in exercise of the power conferred on the Council by the said Act.

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.