Human Resources and Miscellaneous Appeals Sub Committee Minutes

1. MINUTES

RESOLVED :

THAT the minutes from the meeting held on the 3 March 2006 be confirmed.

2. DECLARATIONS OF INTEREST

None declared.

3. APPLICATION FOR DEFINITIVE MAP MODIFICATION ORDER – FOOTPATH, THREE GATES FARM, CALBOURNE, ISLE OF WIGHT

The Chairman welcomed all those present for the meeting and introduced members of the Committee. He outlined the procedure that the meeting would follow.

The Committee received the report of the Strategic Director of Economic Development and Regeneration, which required the Committee to determine an application under Schedule 14 of the Wildlife and Countryside Act 1981 for an order to modify the Definitive Map and Statement by adding a footpath at Three Gates Farm, Calbourne. The Committee were to make whatever order, if any, based on the evidence presented. The Committee were advised that to determine the application they had to decide, on the basis of evidence, whether, on balance of probability, a presumption of dedication had been raised or a right of way existed or was reasonably alleged to exist. The Committee were advised that it was the duty of the Council to ensure that the Definitive Map was an accurate and up-to-date record of public rights of way on the Island.

The Committee were advised that, under the Highways Act 1980 Section 31, a way capable of giving rise to a presumption of dedication at common law was deemed to have been dedicated if it had been actually enjoyed by the public as of right and without interruption for a full period of 20 years unless there was sufficient evidence that there was no intention during that period to dedicate it. The Committee were informed that public rights were brought into question by personal challenge to the present applicant in 2003, for which the statutory period would be 1983 to 2003.

After receiving the report of the Strategic Director for Economic Development and Regeneration the meeting was adjourned to allow Committee Members to visit the site.

The meeting was reconvened at 1.30pm on the same day for the Committee to hear submissions from the applicant and landowner and to conclude the matter.

The applicant drew the Committee’s attention to a number of potential periods, which he believed had not been considered. The applicant also expressed that in light of these potential periods and the user evidence a modification order should be made to add the path in question to the Definitive Map.

The landowner raised some issues with regard to the nature of signs and gates shown in the report and informed the Committee that she had tried everything possible, locking gates, displaying signs and personal confrontations to limit the public’s usage of the said path.

The Committee then sought legal advice and considered their decision.

The Committee accepted that, although several members of the public had used the path in a way that met the criteria, the landowner had made several attempts since 1975 to assert her right over the land and to stop the public using the path. The steps included signage and personal confrontation. Therefore the Committee concluded that on the balance of probability no presumption of dedication could be deemed nor could a right of way be reasonably alleged to have existed.

The Committee ignored any temporary closures of the path during outbreaks of foot and mouth.

The Committee also considered the Human Rights Act and felt that the decision was both proportionate and lawful.

RESOLVED :

THAT, after reading the report and background papers and having heard submissions from the Council’s Definitive Map Officer, the applicant and the landowner, no order be made in response to the application.

CHAIRMAN