Agenda item

To consider an application under the Wildlife & Countryside Act 1981 - Part III, Section 53. Application No. CO/8/54: for the Deletion of Public Footpath no.66, Congleton.

The Committee considered a report detailing the investigation into an application made by Andrea Bossen, the landowner of the property Puddle Bank, Congleton, at the far southern end of Public Footpath No.66. The application was to amend the Definitive Map and Statement to delete part of Public Footpath Congleton No. 66. The report considered the evidence submitted and researched in the application to delete part of Public Footpath No. 66, Congleton. The evidence consisted of a detailed letter from the applicant with reference and statements as to why they believed the route should be deleted. It included reference to historical documents such as the Enclosure Award, sale plans, Tithe Map, Finance Act Map, Peak and Northern Footpath Society reports and more.

The Committee noted that the date of the application made by Andrea Bossen had been incorrectly stated as ‘2022’ in the report and in fact it should have read February 2020.

A site visit was made on 25th August 2022. The route was walked in full south to north and back again and an interview conducted and documented with the applicant. The landowner at the north end at Castle Farm had not responded to the consultation but a brief phone conversation was held as well as speaking to other residents on the ground at Castle Farm on 25th August 2022.

Section 53(2)(b) of the Wildlife and Countryside Act 1981 requires that the Council shall 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)(iii) requires modification of the map and statement to delete a public right of way where:

“the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows: -

(iii) that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification.”

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 before a conclusion was reached. Any other issues, such as safety, security, suitability, desirability, cost or the effects on property or the environment, are not relevant to the decision.

The legal test for deleting a public right of way was different than for claiming a public right of way or for applications to change the status or alignment of a route. In particular, there were specific case law tests and government guidance notes to be considered when examining deletion cases.

The following case law test and government guidance notes needed to be considered when considering deletion cases:

· DEFRA Government Circular 1/09 (1990)

· Trevelyan v SOS [2001] EWCA Civ 266

· Planning Inspectorate Rights of Way Section Advice No 9 (2006).

Documentary evidence submitted included 1798 Enclosure Award, Congleton Tithe Map and Apportionment 1845, Ordnance Survey Records, Bartholomew’s Half Inch to a Mile, Finance Act 1910, National Parks and Access to the Countryside Act 1949, Land Registry Information. Additional documentary evidence provided by the applicant included a photograph, sale particulars for Puddle Bank Farm and Peak and Northern Counties Footpaths Preservation Society reports.

Consultation letters and a plan of the application route had been sent out to the Ward Member, Town Council, user group organisations, statutory undertakers, and landowners on 26th July 2022. Further letters had been sent to the landowners at either end of the application route. There were 5 formal written responses from consultees received which included: -

-       The Open Spaces Society representative - sent a brief response to say they would object if a deletion order was made as they did not believe there was any information to support a deletion order.

-       The Congleton Ramblers Group representative responded with a table of the groups record of surveying the public footpath in 2013, 2014 and 2018 where it was recorded as an open and available route. They also stated the public footpath was a vital recreation route and had obviously been walked for a long period of time and noted a further inspection in 2019 by the group noting it remained open.

-       The Sandbach Footpath Group representative responded to say they objected to the possibility of Footpath No. 66 being deleted as it was a direct and natural link that had been used for many years since the early 1950s and was not a useless route. They mentioned if there had been a problem with people walking near the farm, that the path could be diverted at that location, or a permissive route put in place.

-       A local resident responded stating the route was a useful way connecting routes on and around the slopes leading up to Congleton Edge and Mow Cop and mentioned it could be possibly diverted around farm if it was an issue.

-       BT Openreach responded to say they have no issues with the application from a utility stance.

Mrs Bossen attended the committee and spoke in support of the

application.

In response to questions and comments raised by Members, the Definitive Map Officer reported that:

-       In respect of whether another application could be submitted to delete the footpath, it could be considered if it had been shown that some new evidence had come to light not previously considered.

-       In respect of timings of objections made during the legal procedures of the Definitive Map process these were in the 1950’s/1960’s and that no objections had been received during this period.

-       The applicant had a right of appeal to the Secretary of State if the application was refused.

-       The landowner could apply to have the route diverted if there was a suitable alternative put forward.

-       The report included an appendix which listed the evidence provided by the consultant following the investigation, and it was the Definitive Map Officers role to interpret that evidence which had been presented by the consultant.

The report concluded that overall whilst there were always possibilities mistakes could have happened in the past when the Definitive Map was drawn up, in this case it did not appear that sufficient robust evidence had come to light to overturn the Definitive Map and Statement to delete the route.

The Committee considered the comments from the Applicant, the historical evidence and user evidence submitted and the Definitive Map Officer’s conclusion and considered that the evidence was not sufficient to overturn the presumption that the Definitive Map was correct. In particular, it was clear that the correct legal procedures were followed during the time of recording Public Footpath No. 66 on the Definitive Map and Statement with no objections being received at the time. In addition, there was also evidence of the public having used the footpath over many years and it served as a key link in the overall network. Therefore, the committee considered that the requirements of Section 53(3)(c)(iii) had not been met in relation to deleting a public footpath and that the Definitive Map and Statement should not be modified.

RESOLVED (by majority)

1. That an Order is not made under Section 53(3)(c)(iii) of the Wildlife and Countryside Act 1981 to modify the Definitive Map and Statement to delete Public Footpath Congleton No. 66 as shown on Plan No. WCA/026.
2. The application be refused on the grounds that there is not any robust evidence to overturn the legal presumption that the Definitive Map and Statement are correct.