Regulatory Appeals Committee Minutes

19. DECLARATIONS OF INTEREST

There were no declarations received at this stage.

20. PROPOSED DEFINITIVE MAP MODICATION ORDER – BRIDLEWAY, COOK’S CASTLE FARM, WROXALL

The Committee were advised that they needed to decide, on the basis of the evidence, whether a public right of way could reasonably be alleged to exist across fields at Cooks Castle Farm, Wroxall. In view of the fact that the proposed modification order would have a direct impact on the landowner’s enjoyment of the land, the Chairman agreed to hear representations from the owner.

A site visit had taken place to enable the Committee to view the area concerned. The purpose and effect of the Definitive Map was explained to the Committee together with the legal tests employed to decide whether a modification order could be made to the Definitive Map. Specific regard was given to the Wildlife and Countryside Act 1981 and the Highways Act 1980.

User evidence was submitted in order to make a modification order to add a path at Cook’s Castle Farm. A number of witness statements (most of which had been confirmed by interview) were submitted. All stated that, whether walking on horseback or walking, they used the claimed route as a public right of way and had not been challenged. Witnesses also claimed that to use the current footpath on the Definitive Map would cause an illogical detour as users would be forced to go up a steep bank. Witnesses stated that there were no notices or obstructions on or near the route until work was carried out on the hedge and trees. Branches were left across the path and ditches were then dug. Fence posts were erected but with no wire, so the route could still be used. Witnesses confirmed that the route had not been completely blocked and was still useable by going round any obstructions.

Evidence was also submitted regarding a new water main, which had been put in along the route. Again, users could continue to walk the path by going round the construction works. Some users avoided the area during the construction period because of the muddy conditions. Some riders had recalled problems when coming from the direction of the reservoir site towards Wroxall, as construction site fencing left only the route along the hedge, which was narrow and muddy, and they had to suspend their use during this time.

The previous owner of the land had been interviewed. He confirmed he did not put up any notices on the claimed route and that riders would use this direct route. He said they were not supposed to and that he would point them to the correct route by the hedge. He stated that he never objected to walkers using the claimed route.

The Committee then asked questions on the evidence to clarify any outstanding points.

The owner of the land then presented her case to the Committee. Written evidence was submitted, which included aerial photographs and an amended version of the statement given to the Council by the previous landowner. Copies had been supplied to the Committee.

The current owner had owned the land since 1994. In a letter to the Council dated 23 August 1999, the owner had stated that the public used the claimed route instead of the definitive route because the latter had been obstructed by vegetation due to the Council’s neglect of its statutory duty to remove surface vegetation and that use of the claimed route was therefore, a deviation forced on users by the Council’s lack of maintenance, rather than the dedication of a separate path. It was further stated that no additional routes were capable of being claimed because of the plan and statement deposited by her under Highways Act 1980 in February 1997, and therefore the use of claimed route could only be permissive.

The Committee then asked questions to the landowner. During this legal advice was sought and the Committee adjourned into private session. Upon reconvening in public, the further questions were asked to the landowner. The Committee then adjourned into private session to make their decision. Upon reconvening in public it was explained that the Committee having heard all the evidence felt that a right of way was reasonably alleged to subsist over the land in question, being a bridleway. The Committee noted that the table of witnesses’ evidence of use from 1940 to 2000 showed that the path was used continuously by horse riders and pedestrians from before 1970 up until the present day.

The Committee believed that the summary of evidence presented showed that pedestrians and horse riders had used the claimed path without interruption between 1940 and February 1997, being the first date the publics right to use the path had been challenged. Therefore the continuous period was in excess of 20 years.

RESOLVED :

(i) THAT a right of way was reasonably alleged to exist over the claimed route.

(ii) A modification order be made to the Definitive Map and Statement to add the route shown A-B on map 2 of appendix 1, being a bridleway with a width of two metres.

CHAIRMAN