PAPER A
Purpose: For Decision
Committee: REGULATORY APPEALS
COMMITTEE
Date: 16 JULY 2004
Title: PROPOSED
DEFINITIVE MAP MODIFICATION ORDER - FOOTPATH, MORTONBROOK, SANDOWN
REPORT OF THE STRATEGIC DIRECTOR OF ENVIRONMENT SERVICES
PURPOSE / REASON
1.
The report sets out evidence to determine whether a Modification Order
should be made to add a footpath at Mortonbrook to the Definitive Map and
Statement. There is a duty under Section 53 of the Wildlife and Countryside Act
1981 to make an order if on balance of probability evidence shows that a
presumption of dedication has been
raised or if a public right of way exists or is reasonably alleged to
subsist.
DETAILS OF THE
APPLICATION / ORDER
2.
The Ramblers’ Association have applied for the Modification Order under
Schedule 14 of the Wildlife and Countryside Act 1981 and have submitted user
evidence in support of their application.
LOCATION
AND SITE CHARACTERISTICS
3.
An extract of the Definitive Map showing currently recorded rights of
way in the area is Map 1 at Appendix 1. The claimed footpath is marked ABCD on
the larger scale (1/2500) plan, Map 2 in Appendix 1. An aerial survey of the
area at the same scale taken on 29 July 1999 is also at Appendix 1.
4.
ABC runs along the northern boundary of three fields on the south side
of the River Yar (ABC) and then down a bank to link to existing Public Footpath
SS41 just south of a footbridge (CD).
Three separate landowners are affected: Landowner (1) by section AB, Landowner
(2) by BC, Landowner (3) by CD.
RELEVANT HISTORY
Factual
5.
The path ABCD was obstructed in the summer of 2000 when barriers and
fences were erected at points B and C where the path entered and left the
easternmost field. A sign similar to a traffic prohibition sign indicating no walkers
was put up at point C. This action prevented use of ABCD as a through link
between Public Footpaths SS38 and SS41. This challenge to public use resulted
in the current application.
Committee
6.
None.
COUNCIL
POLICY
7.
To comply with the
requirements of the Wildlife and Countryside Act 1981 to continuously review
the Definitive Map and Statement by making modification orders as necessary (Rights of Way Strategy 2001-6
paragraph 1.2.1.1).
FORMAL
CONSULTATION
Fire
8.
There are no issues requiring
consultation.
Police
9.
There are no issues requiring consultation.
Relevant
Council Departments
10.
No other departments are affected.
Parish and Town Councils
11.
No objection.
Local
Member
12.
No comment.
Applicant
13.
The Ramblers’ Association believe that the evidence
overwhelmingly demonstrates use of the
footpath over a long period of time and by a large number of people and that
accordingly an order should be made.
Landowners
14.
Initial responses of the landowners to notification of the application,
if any, are at Appendix 2. Comments submitted with evidence are dealt with
under landowner evidence
THIRD PARTY REPRESENTATIONS
15.
There is no opportunity to obtain comments before making an order other
than from formal consultees listed above. If an order is made, there is a
statutory advertisement period of six weeks during which anyone may make
representations or objections.
LEGAL BACKGROUND
16.
The Council has a duty to show all Public Footpaths, Bridleways and
Byways Open to All Traffic on the Definitive Map and Statement and to add by
modification order any ways not currently shown. To determine the application,
the Panel will have to decide on the basis of the evidence presented whether on
balance of probability a presumption of dedication has been raised or a right
of way is at least reasonably alleged to exist.
17.
The Panel is acting in a quasi-judicial role and the decision must be
made on the basis of evidence of fact. The Panel must also apply the rules of
natural justice, in particular with respect to any landowner affected by the
decision. Guidance on the provisions of
the Wildlife and Countryside Act 1981 relating to the continuous review of the
Definitive Map and Statement and on the role of the Panel is Part 1 of Appendix
3. Guidance on the dedication of
highways is Part 2 of Appendix 3.
EVIDENCE
Documentary
Evidence
18.
Aerial surveys of 1968, 1971, 1986 and 1993 held by
the IWC Archaeological Unit have been examined. Paragraphs 20 and 21 comment on
what these appear to show regarding the claimed path. Photocopies of these
photographs (Items 1-4 in Appendix 4)
are included to assist as far as possible in illustrating the points made, but
are not intended as evidence in their own right as reproduction of some
features may be poor. The comments below apply to the original prints.
19.
With respect to aerial photographs, the following
points should be borne in mind. Features may be so clear as to be
incontrovertible evidence, for example the presence of absence of a building,
or they may be a matter of interpretation and opinion. Photographs cannot show the status of a path
or who was using it unless identifiable users were photographed on the path.
Depending on factors such as position, starting and finishing points, links to
other known paths, inferences concerning the existence of a path and its use
may be drawn to support or question other evidence. Lack of a physical trace
does not prove that a route was not being used as this depends on factors such
as ground conditions, amount of use, time of year photograph was taken.
20.
The 1968 and 1971 photographs appear to show a
trodden path on the route ABC leading to the boundary of the Caravan Park just
east of point C. In these photographs
the path is relatively faint and there may be a difference of opinion. The 1986
and 1993 photographs show the path well marked and also show other paths
similarly well marked. The claimed path continues through a wide gap at point B
and appears the same on both sides of B, indicating similar use in both fields,
whatever this use may have been. The gap at point B does not appear to be
fenced or gated.
21.
The link CD to Public Footpath SS41 cannot be seen in
aerial photographs. On the 1968 photograph the public footpath SS41 from the
Caravan Park (now the Mortonbrook Estate) to the bridge is very clear. There is
a path similar in appearance turning south towards point C. It cannot be seen
whether this path goes through the boundary to join point C or turns along the
river bank strip.
22.
The 1971 Ordnance Survey 1/2500 shows a double pecked
line denoting a track along the southern river bank on the strip of land
between Public Footpaths SS38 and SS41 on the north side of the hedge.
This track is not apparent on the 1968 photograph although these photographs
were used as a basis for the 1971 1/2500 OS map series. Recent site inspection confirmed that a path
in woodland along the river bank starts at SS38 but soon peters out on a reed
bed near the boundary between the two westernmost fields where the ground drops
away such that it would be physically difficult for a path to continue through
to SS41. It is not known whether this has always been the case, but the strip
of bank between this point and SS41 is a marshy reed bed. It cannot have been
an effective or even physically possible route in recent years.
23.
Photographs 1a – 5b of the claimed path taken in
December 2000 by the IW Ramblers’ Association (Item 6 Appendix 4). Photograph 1b shows the gap at point B closed off
with what is clearly new wire fencing. There are no old gate or fence posts to
show the gap was gated or fenced in any way prior to being blocked up in
2000. Photographs 2a, 2b and 3 are of
the area of CD but do not show the path itself. This area now forms part of a
private garden and has been cleared.
24.
Construction of houses numbered 174-196 Perowne Way
on the former Sandown Farm farmyard were begun in July 1976 and completed in
July 1978 according to records in the Council’s Planning Department (Item 5
Appendix 4).
User Evidence
25.
Public use of the claimed path between 1970 and 2000
is summarized in the table and bar chart in Appendix 5. 27 witness statements were originally
submitted in support of the application, some representing husband and wife or
other family members on one form making a total of 37 user witnesses. Use by 17
of the longer term witnesses has been confirmed by interview. 5
witnesses were not available for interview. One witness has died and his
wife was interviewed. Use by one witness ended in 1967 and has not been
included in the table. Shorter term or infrequent users (Witness Nos 18-27) who
could by themselves give sufficient use to raise a presumption of dedication
have not been interviewed, but their use adds to the aggregate user.
26.
All witnesses interviewed stated that before the
actions were taken leading to the present application, there were no signs at
any point along the path ABCD. None were challenged using the path or asked for
or were given permission to use it. All witnesses regarded the path as a public
footpath and used it in that way.
27.
According to several witnesses, prior to the field BC
being closed up, all the fields were accessible. They had not been used for
agriculture for many years apart from cutting hay. At one time horses had been kept there. The field gate at
Greenfields (vehicular access to the fields, not part of the claimed path) was
only closed for safety on a few occasions when hay was being cut. Older witnesses brought up in the area say
there has always been a path and they played there as children.
Landowner
Evidence
28.
Current landownership and ownership
during the relevant period has been confirmed
by Land Registry search. The land crossed by AB was registered to Miss A
Clarke in 1998 and previously to Simon Clarke (deceased). The land crossed by
BC was registered to Mr and Mrs Jones in 1976 and solely to Mrs Jones in 1999.
Title was transferred to her grandson, Mr P Creighton, in April 2001 and to the
current owners, PKC Developments Ltd, in
April 2002 (registered July 2003), directors of this company being Mr
Creighton and his father, Mr K Creighton. The land crossed by CD was registered
to Deluxelarge Ltd, developers of Mortonbrook, in 1996 and to the current
owners, Mr and Mrs Cook, in October 2003.
This land originally belonged to Sandown Caravan Site, of which Mrs
Jones appears to have been one of the owners.
It was sold for housing development and the original developer appears
to have been John Lelliott Residential (Sandown) Ltd.
29.
The owner of the two westernmost fields (section AB
of the claimed path) has not attempted to prevent public use which still
continues as part of a circular walk around the fields that remain open and
there is no evidence that the previous owner did so. A Highways Act 1980 section 31(6) deposited plan dated 1999 (Item
1 Appendix 6) is in force with respect to these two fields. The deposit states
what highways are acknowledged by the landowner, namely SS38, and states her
lack of intention to dedicate further highways. In the absence of contrary
evidence, the deposit has the effect of negating any presumption of dedication
based on use after the date of the deposit. It also calls into question the
public right to use any route which is not an acknowledged highway, which would
include AB. 1999 is the earliest date for which there is evidence that any part
of the claimed route has been called into question and is therefore the date
from which the statutory period should be calculated.
30.
The easternmost field through which BC runs was
bought by Mr and Mrs Jones in 1976. Mrs Jones says (File note, Item 2 Appendix
6) that they only visited the field occasionally and were surprised at the
state of the field when they did. Children played there, the field gate at
Greenfields (Perowne Way) was broken down and people came in from the caravan
site through the boundary fence. They attempted to secure the gate at
Greenfields. As far as she recalls no notices were erected. She does not
remember inspecting the whole field and was unaware of gaps at points B and C.
The field was cut from time to time to keep it tidy but was not rented out. Her
husband died in 1999 and in about 2001 she transferred ownership of the field
to her grandson, Mr P Creighton.
31.
A letter dated 3 March 2004 from Keith Traves,
solicitors for PKC Developments Ltd (Item 4 in Appendix 6) submits statements
from Mrs Jones (Item 5) and Mr P Creighton (Item 6) and a copy letter from IWC
to Glanvilles Solicitors dated 17 July
2000 (Item 7). Keith Traves’ letter includes additional information from
Mr Creighton and includes comment on a report on the claim which was drafted
before this evidence was submitted. This information and comment is dealt with
in paragraph 34 below.
32.
Mrs Jones’ statement adds to her previous information
that there was no right of way over the land while she and her husband owned
it, but there was persistent vandalism and problems with people walking their
dogs. Her husband often repaired the fences and was often helped by her
grandson. Mr Smith who cut the hay may also have repaired fences. She states there were “Keep Out “ signs at
the field gate at Perowne Way and at point C and that the land was transferred
to her grandson on 5 April 2002.
33.
Mr Creighton states that he has been familiar with
the land since a teenager when he helped his grandfather, Mr Jones, to repair
the fence on the eastern boundary. There
were fallen trees at point C which would have prevented access, which are still
there. There was always a barbed wire fence along the whole of the western
boundary. Since the early 1980s there
have been problems with vandalism and people walking their dogs, accessing the
field from various points. He asserts
that there is no public right of way as he and his grandfather always took active
steps to prevent public access by repairing fences and by erecting two large
signs at the field gate to Perowne Way and at point C.
34.
Additional information and comment given on behalf of
Mr P Creighton by Keith Traves’ letter is summarised below. A response to these
comments is given in the following paragraph 35.
(a) Signs
and fences: these have always been in place from points B to C. The owners Mr
and Mrs Jones lived in the adjacent property, Sandown Caravan Park. Mr Jones
and Mr Creighton spent time fixing signs and fences.
(b) Aerial
Surveys dated outside the 20 year period are of no evidential value and those
within show paths in the fields A to B, but not in field B to C. Faint marks demonstrate fencing which
prevents walking through BC, otherwise the trodden markings would be the same
density as in A to B. There is a path along the northern bank of the river
demonstrating that this is the path used by the public and not the claimed
route.
(c) Mr
Creighton has on occasions challenged people throughout the 20 year period.
Witnesses must have climbed over broken down fences and hedges thus being
trespassers.
(d) The
field was used for cutting hay which is an agricultural use. Boundary security
is important and the field was fenced.
(e) Mr
Creighton’s father was general manager of the Sandown Caravan Park from about
1965. The family purchased the field as a possible extension of the business.
His recollection is that the gate was padlocked. There was never any question
of a public footpath as this would have prejudiced intended development of the
land.
(f) User
witness statements have not been disclosed so no comment can be made on whether
the right of way has been used without interruption but this is questioned.
(g) The
courts have held that it is not necessary to demonstrate lack of intention to
dedicate for the whole of the 20 year period, only at some point during the
period, and there is no requirement for the action of challenge to be brought
to the attention of users.
(h) According
to most recent case law, bringing into question should be an action directed at
users to the extent that at least some of them would be aware that the public
right was being challenged (the view expressed by Lord Denning in 1956). This
would have been 2000, when the erection of fences challenged users and caused
the present application. This is the date from which the 20 years should be
calculated, not 1999, the date of Miss Clarke’s Section 31 deposit, as claimed
by the Council.
(i) Mr Creighton’s evidence that he has
challenged use during the 20 year period has demonstrated no intention to
dedicate at some point during this period and this is sufficient to defeat the
claim.
35.
Response to these comments is numbered
correspondingly:
(a) Evidence
given by the owner and users conflicts on this point. Mrs Jones says that she
and her husband did not live on the Island for about 14 years before their
retirement and only visited occasionally. When the field was purchased in 1976,
their address was in Ryde. Mr Jones assisted by Mr Creighton may have repaired
fences on one or more occasions. According to Mrs Jones, the main focus appears
to have been on the fence to the caravan site and the Perowne Way gate.
(b) This
is not evidence that all fences, particularly on the northern and western
boundaries, were kept in constant repair during the 20 year period. User and
photographic evidence concerning point B tends to show that they were not and
that the state of the land was compatible with a relatively low level of
attention by the landowner until 2000.
Recent site inspection confirms that some gaps in the western hedgerow
boundary of the field as well as the main gap at point B are now fenced with
new post and wire but there is no sign of original fencing on this boundary.
Photographs show that considerable efforts had to be made to shut off the gap
at point B in 2000 initially by with a post and wire fence and then by adding a
soil bank with fencing on top reinforced with brush and brambles, now well
established. If the field was kept secured by fences and gates throughout the
20 year period, one would expect to see at least remains of them, where they
were broken down by trespassers and where they had been repaired or reinforced.
There
is no evidence other than Mrs Jones’ and Mr Creighton’s statements that signs
were maintained before the path was blocked off in 2000 and this differs from
Mrs Jones’ original recollection. No evidence has been given of any sign at
point B.
Evidence
relevant to dedication is not confined to the 20 year period. Under the Highways Act s32 all documentary evidence
tendered to a court or tribunal determining whether or not a way has been
dedicated must be taken into consideration and may be given such weight as the
court or tribunal consider appropriate.
While
there must be 20 years unchallenged use by the public ending in the right being
brought into question in order to raise a presumption of dedication under
section 31, evidence of use may stretch back longer. Such evidence may support an earlier dedication or strengthen
evidence of use as of right during the 20 year period and is therefore
relevant. The 1986 and 1993 photographs have been re-examined and the comments
in paragraph 20 above are considered correct.
(c) This
conflicts with the evidence of users.
User witnesses say they were not challenged until Mr Creighton decided
to block the path off and lock the gate at Perowne Way in 2000. Mr Creighton
would have been 14 at the start of the statutory period and it seems unlikely
that he was challenging people at that time. Evidence given above also supports
the view that there were no fences or gates, at least at point B, which could
have been broken down. A gap must have been created or come to exist in the
hedge boundary at point C at some point, but there is no evidence that this was
forced. Witnesses reported considerable shock at the challenges in 2000 as they
had been used to using the path and the field openly without difficulty for
many years.
(d) It
is accepted that the production of hay is an agricultural use, but is not
intensive, does not require the frequent attention of the farmer or necessarily
the fencing of the field, although this may lead to damage by the public and
their dogs. Hay production does not in itself preclude the possibility of the
claimed user. In this case, Mrs Jones says specifically that the hay was cut to
keep the field tidy and not for an agricultural purpose. User evidence is that
the regime was relaxed and the gate at Perowne Way was only shut for safety
during actual cutting. Fencing of the
field is addressed above.
(e) Sandown
Caravan Park was closed and remained derelict some years before redevelopment.
It is not clear when Mr Creighton senior ceased to be regularly on site, but
this is likely to have been no later than 1990. The owners already had
experience of public access over their site as the existing caravan park was
crossed by Public Footpath SS41. No conclusion can be drawn as to whether such
public access was regarded as
prejudicial to intended use of the additional field. Whatever view might have
been taken, in the event the evidence is that the public were not effectively
excluded.
(f) Use
of the way is dealt with under User Evidence above. The issue concerning copies
of witness statements is a procedural point, not evidence for or against
dedication. For Members’ information, user witness statements are open to
inspection as background papers when the agenda for this meeting is published.
Copies without names and addresses are supplied earlier to landowners on
request to assist in commenting on the report and such copies were supplied to
this landowner.
(g) The
length of time for which no intention to dedicate must be demonstrated during
the 20 year period in order to defeat the claim has not been decided by the
courts. Evidence of an overt and contemporaneous expression of lack of
intention should be looked for and this expression should be sufficiently
specific and sustained to convince a court or tribunal if and when the
intention not to dedicate existed. This is a matter of fact and the facts in
each case have to be considered to reach a conclusion as to whether the
requirements of Section 31(1) for rebuttal are met.
(h) Whether
bringing into question must be directed at the users has not been decided by
the courts. This Council has taken the view that a Section 31 Deposit is an
overt contemporaneous act directed at the highway authority which specifically
defines rights acknowledged by a landowner and excludes others and is therefore
an effective challenge to the public rights on any excluded routes bringing
them into question. There may be more than one occasion when a path is brought
into question before a legal procedure such as the present application is
triggered to resolve the issue. The 20 years is counted back from the date of
the first occasion, but please now refer to supplementary advice in Appendix 3.
Calling
into question by Miss Clarke’s deposit is addressed specifically in paragraph
29 above. AB is two thirds of the claimed through route ABCD to which no other
access is claimed, so the whole route is affected. It does not have to be the
landowner who brings a way into question under section 31, although only a
landowner (or possibly a tenant) can rebut a presumption of dedication.
(i) It
is not clear that Mr Creighton has provided sufficient evidence of personal
challenge to demonstrate no intention to dedicate during the 20 year
period.
36.
The current owners of the link CD acquired the land
after the statutory period. The owners during the statutory period are
understood to have been the successive developers of the Mortonbrook estate.
There is no evidence that any attempt was made to exclude or challenge the
public.
37.
Mrs Chandler, the tenant of Sandown Farm
(approximately 60 acres) just prior to it being developed as Perowne Way, has
been interviewed (File note, Item 3 Appendix 6). She ran a livery and riding
school at the farm for 8 years and left literally as the development began on
site, although she is uncertain of the exact dates (confirmed as 1976, see
paragraph 24). She states that the
field BC was her schooling field where she was present regularly, and that
there was definitely no footpath on the claimed route during her time. She
would not have permitted it because of the need to secure her horses. The only paths being used were in the field
crossed by SS38.
EVALUATION
AND CONCLUSIONS
38.
User evidence shows that the claimed route ABCD has
been used by the public continually as of right since at least 1970 until
interrupted in 2000. This use is supported by evidence of aerial photographs
that a trodden path probably existed in 1968, 1971, and more than probably
existed in 1986 and 1993. Evidence of closing off point B in 2000 is clear, but
there is no evidence of closing off the path before this date. Apart from
husbands and wives, witnesses were interviewed separately but gave consistence
evidence regarding the accessibility of the site, the lack of signs and their
habitual use of the path. This use is sufficient to raise a presumption of
dedication under the Highways Act 1980 s31(1).
39.
The evidence of Mrs Chandler, tenant of Sandown Farm
from 968 to 1976 does not concur with user evidence or with the view the 1968
and 1971 aerial photographs show a path.
There may have been little or no use during her occupancy, or there was
no use at all until after she left in 1976. Three witnesses claim use of the
path before 1976. Mrs Chandler’s evidence raises a question about this early
use and the discrepancy would have to be tested by cross-examination. However,
this is prior to the statutory period. It is clear that user and photographic
evidence and the present state of the remaining fields, supports the view that
from 1976, when housing development began at this end of Perowne Way and then at Mortonbrook, the fields were no longer
actively farmed or occupied apart from the occasional cut for hay and there
were points of access not secured by gates. The evidence shows that the fields
became increasingly well-used by local residents for recreational walking and
that the kind of use that still continues in the two westernmost fields applied
until 2000 to the section of claimed path BC and on the link CD through the
piece of rough copse.
40.
The landowners of BC between 1976 and the present
belong to one family. They have asserted that they have taken steps during the
statutory period to prevent public use by maintaining fencing of the field,
locking of the gate and by personal challenge.
However, the picture that emerges from the evidence of both users and
the landowners considered together is of a period of about 20 years during
which the owners were relatively absent and inactive and only occasional
attempts, possibly just one, were made to repair the eastern fence and to shut
the field gate.
The
land was apparently bought as an extension of the caravan site or as other an
investment. In the event the caravan site closed approximately halfway through
the 20 year period and was derelict for some years until the housing
development began. This was completed in two phases by two different
developers. The adjoining fields were not and are still not designated as
building land. Mr and Mrs Jones might have foreseen potential for housing
development, but it was not an immediate possibility providing a strong
incentive to guard the land.
After
Mr Jones died in 1999 and Mrs Jones was in her eighties and too elderly to be
concerned with the land, Mr Creighton apparently took over management and shortly after took active steps to secure it
by locking the gate at Perowne Way,
fencing gaps, erecting notices and challenging people. There is no independent
evidence that these things were done prior to 2000. Subsequently Mr Creighton
passed ownership to the development company set up with himself and his father
as directors. It is concluded that it is probable that no effective action to
negate dedication by fencing the gaps at B and C, challenging the public and
erecting signs was undertaken during the 20 year period.
41.
Although physical interruption of the path did not
occur until 2000, Miss Clarke’s deposited plan is the earliest date that public rights over the claimed path were
called into question in any way. For the purposes of the Highways Act 1981s31
the 20 year statutory period of use is therefore 1979 - 1999. There is no
evidence from users, landowners or from any other source that any action
capable of negating a presumption of dedication was taken by landowners during
the statutory period, other than that advanced by Mr Creighton and discussed in
the previous paragraph.
42.
It is concluded the evidence shows that on balance of
probability the path ABCD has been used continuously for 20 years up to 1999
when the path was first called into question such that a presumption of
dedication is raised and that this presumption has not been rebutted. Consequently the path is deemed to have been
dedicated under the Highways Act 1980 s31 and should be shown on the Definitive
Map and Statement as a public footpath.
COMMENTS ON THE REPORT
Applicant
43.
Reports on modification order applications are only
submitted to the applicant for comment where the recommendation is that no
order be made.
Landowners
44.
All reports on modification order applications are submitted to
landowners for comment. Any comments submitted are copied at Appendix 7
together with the officer’s response.
FINANCIAL
IMPLICATIONS
45.
None outside current budgets.
LEGAL IMPLICATIONS
46.
See paragraphs 16 and 17 above and Appendix 3.
IMPLICATIONS
UNDER THE CRIME AND DISORDER ACT 1998
47.
The Council has a duty to make an order to modify the Definitive Map and
Statement or not according to its conclusions on the evidence. Should a right
of way be confirmed, any powers that may be available to the Council with
respect to Public Paths and Byways for the purposes of reducing Crime and
Disorder could be considered. In this case it is not considered that there are
any immediate issues as the public already has access to the area by means of
existing paths.
IMPLICATIONS
UNDER THE HUMAN RIGHTS ACT
48.
In respect of Article 6 (right to a fair trial) of the European Convention
on Human Rights, it is considered that by submission of the report to the
applicant and to landowners for comments and by advertisement of the proposed
order with the opportunity of independent determination in the event of
objection, the Council has met the requirements of this Article.
49.
In respect of Article 8 (respect for private and family life) and
Article 1 of the First Protocol (protection of property), the impacts that the
modification might have on the owners of property affected by any order which
may be made and on owners of other property in the area and users of the paths
before and after modification have been carefully considered. Whilst there may
be some interference with the rights of owners and occupiers if a modification
order is confirmed, it is considered that the recommendation is proportional to
the legitimate aim of the Council and in the public interest.
OPTIONS
50.
The Council has a duty to make an order to modify the Definitive Map and
Statement or not according to its conclusions on the evidence.
EVALUATION
/ RISK MANAGEMENT
51.
In the event of an order being made and an objection being registered
during the six-week statutory advertisement period, the order must be referred
to the Secretary of State and an independent inspector will be appointed by the
Planning Inspectorate to hear the evidence and decide whether the order should
be confirmed. The Council bears the cost of arranging the inquiry and each side
bear their own costs of appearing unless there are exceptional circumstances.
52.
In the event of an order not being made, the applicant may appeal to the
Secretary of State who may direct the Council to advertise an order which then
follows the same procedure described above.
53.
After an order has been confirmed there is a 6 week period during which
any person can appeal to the High Court
on the grounds that it is not within the powers of section 53, or that
there has been a procedural failing and that the appellant’s interests have
been substantially prejudiced as a result. There is no right of appeal on
grounds of a challenge to the evidence as the objection and public inquiry
procedure provides the opportunity for this. In the High Court procedure costs
follow the event and are likely to be considerable.
54.
In making its decision the Panel is therefore recommended to carefully
follow the legal guidance set out in paragraphs 16 and 17 and in all three
parts of Appendix 3. Members are reminded that they should make the best
decision they can on the evidence available to them and not take into
consideration whether there will or will not be a public inquiry subsequently.
55. A Modification Order
be made to add the footpath 2 metres wide on the route ABCD linking Public
Footpaths SS38 and SS41 to the Definitive Map and Statement.
RECOMMENDATION
APPENDICES
PLEASE NOTE – appendix 1 is attached
to the report. Copies of Appendices 2 –
7 are available on application to Committee Services. Tel 01983 823287.
1.
Map 1: Definitive Map extract showing existing recorded paths and
location of claim (Scale 1/10,000)
2.
Map 2: Large-scale plan of claimed route ABCD (Scale 1/2500)
3.
Most recent (1999) aerial survey of the area
Appendix 2: Landowner comments on application
1. Letters Glanvilles Solicitors to IWC
8.3.01 and 23.3.01
Appendix 3: Legal background and guidance
1.
Provisions of the Wildlife and Countryside Act 1981 relating to the
review of the Definitive Map and Statement and Guidance on Quasi-Judicial role
of the Panel
2.
Guidance Notes on Evidence of Dedication issued by Department of the
Environment 1986 and Planning
Inspectorate Advice Note No 6 re Sunningwell Judgement
3.
Supplementary Advice on ‘Bringing into Question’
Appendix 4: Documentary
evidence
1.
Aerial Survey 1968
2.
Aerial Survey 1971
3.
Aerial Survey 1986
4.
Aerial Survey 1993
5.
Letter IWC Planning Services 2.12.03
6.
Photographs taken by IW Ramblers’ Association 2.12.03 and location plan
Appendix 5: User evidence
1.
Table of user evidence
2.
Bar chart of user evidence
Appendix 6: Landowner evidence
1.
Highways Act 1980 s31(6) Deposited Plan and Statement Alison Clarke 1999
2.
RWA/SS902 File note Mrs Jones 23.10.03
3.
RWA/ File note Mrs Chandler 20.11.03
4.
Letter Keith Traves Solicitor to IWC on behalf of PKC Development Ltd
3.04.04
5.
Statements of Mrs D Jones
6.
Statement of Mr P Creighton dated 23.02.04
7.
Copy letter IWC to Glanvilles Solicitors 17.07.00 to IWC
Appendix 7: Landowner comments on report and officer’s
response
1.
Landowner of AB (Miss A Clarke)
2.
Landowner of BC (PKC Developments)
3.
Landowner of CD (Mr and Mrs D Cook)
BACKGROUND PAPERS *
item appears in Appendices
Application for
Modification Order 14 WCA81 Schedule 8.03.01
27 Witness Statements
11 File notes user
witness interviews
*Highways Act 1980 s31(6)
deposited plan and statement Alison Clarke 1999
*Aerial Photographic
Surveys held by IWC Archaeological Centre 1968,1971,1986, 1993
*Aerial Photographic
Survey held by Engineering Services
1999
*Guidance Notes on
Evidence of Dedication: by Department of the Environment 1989
*Planning Inspectorate
Advice Note No 6 Oct 2000 re Sunningwell Judgement
*Planning Inspectorate
Consistency Guidelines 2003 paragraphs 5.16 – 5.20
Results of Land Registry
Search 21.03.03
Results of Requisition
for Information 8.10.03
*Letters Glanvilles
Solicitors to IWC 8.3.01 and 23.3.01
Letter IWC to Mrs D Jones
23.10.03
IWC to Mr P Creighton
1.11.03
*File note of telephone
call Mrs D Jones 20.11.03
*File note interview Mrs
D Chandler 20.11.03
Letters IWC to Cllr Miss
Humby, Cllr Mrs Jarman and Ramblers Association 28.10.03
Letter Sandown Town
Council to IWC 14.11.03
Letter Ramblers
Association to IWC 2.11.03
Letter IWC to Mr and Mrs
D Cook 10.08.03
Letter IWC to Creasey
Biles & King 17.11.03
Letter IWC Planning
Services 2.12.03
Land Registry Search
22.01.04
Land Registry Search
17.02.04
Land Registry Search
17.03.04
Company Search 23.01.04
Contact Point: Alexandra
Russell (Ext 3741), Rights of Way,
Engineering Services
DEREK ROWELL, STRATEGIC
DIRECTOR OF ENVIRONMENT SERVICES