Agenda item

To consider the application for the upgrade of a Public Footpath between Knutsford Road, Chorley and Moor Lane, Wilmslow to Public Bridleway Status (Public Footpath Nos. 29, 15 (Part), 14, 10 (Part), 9 (Part), 27 Parish of Chorley and Footpath No. 40 (Clay Lane) Parish of Wilmslow); and Application to Upgrade Public Footpath No. 42 (Filter Bed Lane) to Public Bridleway Status, Parish of Wilmslow.

The Committee received a report which detailed two applications from The Border Bridleways Associations to modify the Definitive Map and Statement by upgrading a number of public footpaths to public bridleways. 

Section 53(2)(b) of the Wildlife and Countryside Act 1981 requires that Cheshire East Borough 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 requiring modification of the map by the upgrading of public rights of way is the discovery of evidence by the Council which, when considered with all other relevant evidence available, shows “that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description.” 

This was commonly demonstrated by user evidence. All evidence must be evaluated and weighed and a conclusion reached whether, on balance of probabilities, either the alleged rights subsist or are reasonably alleged to subsist.  Any other issues such as safety, security, suitability, desirability or the effects on property or the environment are not relevant to the decision.

Where 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”

This required that the public must have used the way without interruption and as of right: this 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 in question.”

Application No. 1 had been submitted by The Border Bridleways Association in January 2008 to modify the Definitive Map and Statement by upgrading a number of footpaths to public bridleways.  The public footpaths together made up a route from Knutsford Road to Moor Lane.  A further application had been submitted in May 2008 (Application 2) to modify the Definitive Map and Statement by upgrading Public Footpath No. 42 in the parish of Wilmslow, known as Filter Bed Lane.  This footpath ran between Upcast Lane and Clay Lane.

Both applications were based on user evidence.  For Application No. 1 user evidence forms were received from 31 individuals and for Application No. 2 user evidence forms were received from 23 individuals.  Nineteen individuals claimed to have used both routes and because of the close proximity of the routes, it had been decided to investigate both applications at the same time.

In relation to Application No. 1, the witness evidence submitted showed use of the claimed route on horseback between 1945 and 2007.  Public access on horseback appeared to be brought into question in 2006 when a landowner locked a gate across the route. Therefore the relevant 20 year period to be considered was 1986 to 2006.  Officers had interviewed 11 witnesses and of these, 3 witnesses had used the route for the relevant 20 year period.  A further two witnesses had used the route cumulatively over the period and one had used the route for 19 years.  Of the 11 witnesses interviewed, 7 stated that they had been challenged at Studholme Kennels and the remaining 4 were aware of others being stopped.  None of the witnesses recalled being challenged by anyone else.

For Application No. 2, the user evidence covered a cumulative period of over 48 years from 1960 to 2008.  As there was no evidence of the route being brought into question, the relevant period is calculated from the date of the application; therefore the 20 year period to be considered was 1988 to 2008.  The cumulative use of the route on horseback over this period could be considered sufficient to show that public bridleway rights had come into existence by prescription.  None of the witnesses stated that they had been challenged when riding on Filter Bed Lane and many had said that they used this route as an alternative to going past Studholme Kennels.

The Committee considered the evidence presented in the report and taking into account that under section 31(1) of the Highways Act 1980 public bridleway rights can come into existence by prescription unless there was evidence to the contrary came to the agreement that due to the challenges at Studholme Kennels, for this section of the route there was sufficient evidence to show that the landowner had rebutted the presumed dedication, by indicating that he had no intention to dedicate the way as a bridleway.   As there was no witness evidence to having been challenged anywhere else along either of the claimed routes, the user evidence for the remainder of the route was considered sufficient to show public bridleway rights.  The Committee therefore considered that there was sufficient user evidence to support the existence of public bridleway rights along the route A-B-C-D-E-H-G on drawing no. MO/001 and that on the balance of probabilities the evidence provided showed inter alia that a right of way which was not shown on the Definitive Map and Statement was reasonably alleged to subsist and the requirements of Section 53 (3) (c) (ii) had been met and that the Definitive Map and Statement should be modified to upgrade the route from a Pubic Footpath to a Public Bridle Way. 

RESOLVED:

1          That an Order be made under Section 53(3)(c)(ii) of the Wildlife and Countryside Act 1981 to modify the Definitive Map and Statement by upgrading to Public Bridleway, the route as shown between points A-B-C-D-E-H-G on drawing number MO/002.

2          The application to modify the Definitive Map and Statement to record public bridleway rights between points H and F, as illustrated on drawing number MO/001 be refused on the grounds that there is sufficient evidence to show that the landowner has rebutted the presumed dedication by indicating he had no intention to dedicate the way.

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.