Agenda item

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 bollards (just over 5ft apart) sometime in the early 2000s to prevent quad bikes and vehicles going down the route and to discourage anti-social behaviour, which there had been an issue with.  None of the witnesses mentioned any challenges to use on foot, horse, or bicycle by any landowner, and no one was given permission to use the route or had any connection with the land or landowners in question. 

In the relevant 20-year period prior to the application 1994-2014, no challenge to use of

the route had been identified and therefore the 20-year period of deemed dedication had

been satisfied.

The Committee considered the application and noted that following consultation with the user groups/organisations; statutory undertakers and landowners which included the ward member for Moston, Moston Parish Council, Sandbach Footpath Group and United Utilities that no objections had been received. MrDavid Nixon, Moston Parish Council attended the meeting and spoke in respectof access and vehicular use historically and more recently, along the proposedroute.

The Committee agreed on the balance of probabilities, that restricted byway rights subsisted along the claimed route.  The balance of user evidence supported the case that a public bridleway, at least, subsisted along the routes A-B (Plan No. WCA/025) and combined with the documentary evidence that the route historically was evidenced to have had public road status.

It was considered that the requirements of Section 53(3)(c)(i) had been met and the Committee agreed that a Definitive Map Modification Order be made to record a Restricted Byway between Dragons Lane and Plant Lane and thus amend the Definitive Map and Statement. 

RESOLVED (by Majority) 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 to add a Restricted Byway as shown between point A and B on Plan No. WCA/025.
2. 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.
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