PAPER A
Purpose: For Decision
Committee: REGULATORY APPEALS
COMMITTEE
Date: 20 AUGUST
2004
Title: PROPOSED
DEFINITIVE MAP MODIFICATION ORDER - FOOTPATHS, BEMBRIDGE POINT
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 footpaths at Bembridge Point to the Definitive Map and
Statement in response to an application from Bembridge Parish Council under
Schedule 14 of the Wildlife and
Countryside Act 1981. There is a duty under Section 53 of the Wildlife and
Countryside Act 1981 to make an order if 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.
Bembridge Parish Council have submitted documentary and user evidence in
support of their application.
3.
An extract of the Definitive Map showing currently recorded rights of
way in the area is Map 1 in Appendix 1. The claimed footpath is
marked ABCG with spur BDE on the large scale plan, Map 2 in Appendix 1.
4.
Map 3 in Appendix 1 is a plan illustrating the main areas of
current land use mentioned in the report. This plan is a guide to the various
areas mentioned in the evidence and is not an exact representation of
land titles.
5.
Section CG on Map 2 is already recorded on the Definitive Map as Public
Footpath BB4. The Definitive Statement for BB4 is item 4 in Appendix 1. The destination of BB4 in the Statement is ‘Point Recreation Ground’.
6.
Three land holdings are affected by the claim: Landowner (1) the
developer of Solent Landings) by ABC and BD. Landowner (2), the owner of Sand
Cove, by DE. Landowner (3) by DE which
clips the seaward end of the access strip belonging to Beach Cottage.
7.
A fourth landowner, Maritime and
Leisure Investments Ltd, owns the track
AF which accesses the car park and gravel grading operation. This section is
not part of the claim but joins point A from the nearest highway (Embankment
Road). AF should be considered for inclusion in the modification order should
one be made.
SITE CHARACTERISTICS AND BACKGROUND HISTORY
8.
Bembridge Point is a sand and shingle spit forming the eastern side of
the entrance to Bembridge Harbour. It
was originally a flat unfenced area of sand and shingle with a wall and deep
water on the harbour side. The spit became enlarged after reclamation work
in Bembridge Harbour in 1880 and the harbour wall was buried by
sand dunes. Since the 1950s scrub vegetation has spread over this area. Land
accretion is still occurring on the seaward side where a considerable amount of
additional shingle beach has built up particularly in the last ten years which
is becoming stabilized by ground vegetation.
In the 19th century a coastguard station was established on
the east side of Beach Road. The watch
tower still exists in the grounds of Watch House at the end of Beach Road.
9.
During WW1 all the open land on the Point was taken over by the
Admiralty and developed as a seaplane station (see photograph JC1 in
Appendix 5, Item 2(b)). At the end of the war all the station buildings
were demolished except two which were converted into private residences, Beach
Cottages (Sand Cove and Beach Cottage) and Shoreside. Some concrete foundation
platforms remained adjacent to Beach Cottages which became known as the ‘tennis courts’ (JC4).
10.
Apart from the war period, Bembridge Point has been used for public recreation. It was leased by the
Parish Council for this purpose in 1908 and is referred to as ‘Point Recreation
Ground’ in the 1952 Definitive Statement for BB4 (Appendix 1, Item 4). In
the 1950s and 60s, Walls Fun Fair was located on the Point next to the
Spithead Hotel site every August bank holiday. There do not appear to have been
any physical boundaries, gates or signs and it was treated by the public and
local fishermen as part of the beach for the usual activities.
11.
Before WW2 the Preston family had the rights to extract beach gravel
from the sand bank at Bembridge Point and ran the operation from an area bound
by a low sea wall at the end of Beach Road.
In 1949 the garage on the site was converted into a tea kiosk later
called the Silver Sands Café. In 1981 the gravel operation was moved westwards to its present position nearer the
harbour entrance and the original site formed a car park for the café. In 1982
the café was sold and the new owner introduced a charge for parking. The café
business eventually closed and was sold in 1994. In 1999 the café and car park
site became part of the adjoining private residence, Sand Cove.
12.
The Bembridge Harbour Improvement Company (BHIC) acquired the open land
at the Point from British Rail in 1968. Originally the public parked all over the Point and this issue had been discussed by the Parish
Council as far back as 1956. Yarland Properties, who owned the hotel, and BHIC
who owned the harbour, were able to gradually confine parking to the present
paying car park by closing down vehicle access to various areas adjacent to the
hotel, in particular by closing the private vehicle access to Beach Cottages
along AB in 1970, and by enclosing an area to the seaward side in 1980. The process of enclosure was assisted by the
increase in sand dunes in the area between point A and Embankment Road. Access
is now only possible along the track AF, which is freely accessible to
pedestrians all year round but where a seasonal charge is made for the car
park.
13.
The Royal Spithead Hotel closed in 1976 and became part of Graylands
College. In 1980 BHIC formed a scheme to further improve the area and prevent
parking in front of the seaward side of the hotel grounds by fencing an area of
open land adjacent to the hotel boundary wall to form a putting green. In
1982/3 Graylands College acquired this area
for use as a playing field until the College itself closed in 1986. The
boundary hedge between the green and the grounds of the hotel building was
removed during this period.
14.
The hotel building itself was demolished in 1990/1 and the site remained
undeveloped and unfenced until construction of Solent Landings began in 2001.
The development company subsequently proposed to make the former putting green
/ playing field area and further land extending down to mean high water into
private grounds for Solent Landings.
Apart from DE, the claimed paths run over the former playing field land.
15.
There has been a general trend since the late1970s for the various land
holdings to develop their separate types of use more intensively and to become
more clearly demarcated from each other.
16.
There is currently an application for land at the Point to be registered
as Village Green. This application has yet to be determined.
RELEVANT HISTORY
Factual
17.
ABC was obstructed when
security fencing was erected round the old
hotel site in 2001 during the construction of Solent Landings apartments. BDE
was obstructed in 2002 when additional land was fenced off and a planning
application submitted for change of use to private gardens for the development.
These actions called into question the public rights for the purposes of
Section 31 of the Highways Act 1980. The statutory period of use required for
deemed dedication is therefore 1981 - 2001 for ABC and 1982
- 2002 for BDE. The obstruction of ABC in 2001 gave rise to the present
application.
Committee
18.
None for this application.
COUNCIL
POLICY
19.
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
20.
There are no issues requiring
consultation.
Police
21.
There are no issues requiring consultation.
Relevant
Council Departments
22.
No other departments are affected.
Parish and Town Councils
23.
Bembridge Parish Council is the applicant.
Local
Member
24.
The local member was a member of the Bembridge Parish
Council at the time of the application and supports the application.
Landowners
25.
Responses of landowners to notification of the application, if any, are
in Appendix 2.
26.
Landowners are also invited to comment on this report and their comments
if any are in Appendix 7. Evidence submitted
by landowners is dealt with under Documentary Evidence below.
THIRD PARTY REPRESENTATIONS
27.
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
28.
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 the balance of probability a
right of way exists or is reasonably alleged to exist.
29.
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 given in Appendix
3 item 1. General guidance on evidence
in relation to Definitive Map Modification Orders in given in the Planning
Inspectorate Advice Note No 13
(Appendix 3 item 2). Pages 7-11 deal with the dedication of rights of
way. Advice Note 6 (Appendix 3 Item 3)
gives supplementary guidance on the meaning of ‘as of right’.
USER
EVIDENCE
30.
Bembridge Parish Council has submitted 24 witness
statements.
31.
21 witnesses who completed statement forms were
interviewed, 3 were unavailable. 4
family members of witnesses were included in interviews making 28 witnesses in
all. Preliminary assessment (Appendix 4 item 1) showed that 9 of these
witnesses did not meet the requirements of use as of right for one of the
following reasons: (1) witness is landowner or employee, (2) insufficient
detail is given in statement and witness is not available for interview, (3)
use is vague or too infrequent, (4) use
is not on the claimed path or is wandering over whole area.
32.
Use of ABC by the remaining 18 witnesses is shown on
the bar chart (Appendix 4,Item 2). Further analysis of this use is required to
determine whether a presumption of dedication is raised.
33.
Use of BD, DE, and CD was insufficient to raise a
presumption of dedication over any of
these routes.
34.
Use of ABC (mainly for dog walking) after the hotel
was demolished, ie from about 1990 is relatively well attested, but use during
the first half of the statutory period is much less clear. Only one witness
mentions the putting green and says that it was actually in the hotel grounds.
This is confirmed by the 1986 aerial photograph which shows the boundary except
for the wall section near point A has been removed.
35.
Before the putting green area was enclosed, BB4 gave
direct access to the open land of the Point from Beach Road. The witnesses who
used it were the residents of Beach Road, witnesses instructed as children to
avoid the main road, and as a route from the beach to the Smugglers Barn pub
which adjoined the Spithead Hotel in Beach Road. These witnesses said they
walked round the hotel wall as the quickest route to reach the ferry terminal
in the harbour and Bembridge Sailing Club.
36.
9 witnesses used a route BD from ABC going to the
Silver Sands Café car park via the north west corner of Beach Cottages but only
4 witnesses had used this for the first part of the statutory period.
37.
One witness, Mr Elliot, was not in fact a user, but was employed by
Graylands College from 1972. In the 1980s he was housemaster in charge of the
former Spithead Hotel building. He
recalled that a few local people crossed the enclosure when it was used by the
College. This did not cause a problem and he had no instructions to exclude
them. The College did not want friction with local people.
DOCUMENTARY
EVIDENCE
Evidence
submitted by Applicant
38.
Documents 1-9 (Appendix 5, Item 1) submitted in support
of the application are various path survey lists and Ordnance Survey plans
relating to BB4. BB4 was recorded on the first Definitive Map in 1952 as a
short length of path from Beach Road round the Spithead Hotel boundary giving
on to the open area of Bembridge Point which was described in the Statement as
‘Point Recreation Ground’.
39.
A complete review of the Definitive Map began in 1988
and was completed in 1997 when a new map was published. In 1991 Parish Councils
were issued with a photocopy of the first stage in the process, a working map
which incorporated legal changes to the 1968 Definitive Map, ie Highways Act
and other orders made between 1968 and 1991 (Document 7). This map contained a
drafting error extending BB4 round the boundary of the hotel which was
corrected before publication of the new map (Document 9). No modification order
has been made for BB4 since1952 to record additional footpath and therefore the path should be recorded in the
same way on the 1997 map as on the 1968 map. None of these documents constitute
evidence that any additional length of BB4 has been dedicated.
Evidence
submitted by Landowners
40.
The owner of Sand Cove has submitted evidence which consists of a
summary of the history of land use on the Point and details concerning the
properties owned by his family, various members of whom have owned both Beach
Cottages since the 1920s. Some general points have been included in background
history given above. The letter and selected photographs and correspondence are
Items 2(a-f) in Appendix 5. Correspondence referring to the dispute over noise
with the gravel grading operation is not relevant to the claimed paths and is
not included in this report.
41.
As can be seen in photograph JC1 of the Seaplane Station,
there was clear space capable of providing vehicle access around all the
buildings. When the station was dismantled, the space adjacent to the hotel
boundary survived as the track shown on the OS Survey 1971 which was the
private vehicle access to Beach Cottages
(see Item 2(d) and ends at the Silver Sands Cafe / gravel grading area.
42.
In 1968 when BIHC purchased the Point, they wanted to
create a car-free area in front of the hotel on Embankment Road and around the
seaward side of the grounds. To remove
cars from the seaward area, it would be necessary to close AB to vehicles.
Since this was the private vehicle access to Beach Cottages (JC31 and 32), land
adjacent to the west frontage of the cottages was offered for sale to the
owners on condition that this access round the hotel was given up. This caused a dispute with Charles Preston
as vehicle access would now have to be gained via Beach Road and the café site
(Item 2(d)). The offer of the land was accepted (conveyance 1970 Item 2(c)) and
the extended gardens were enclosed with low chain and post fencing and a hedge
(JC33 June 1971).
43.
In 1980 BHIC proposed to establish a putting green to
further improve the area and exclude parking in front of the seaward side of
the hotel (Item 2(e) Appendix 5). The plan was supported by the Parish Council
and involved landscaping the area with topsoil and waist-high panel fencing.
There is no mention of providing public footpaths through the enclosure.
Invoices show that the fencing of the area was carried out.
44.
It is not clear whether the proposed putting green
ever operated, but in 1982/3 this area
was leased to Graylands College who had taken over the hotel building. Yarland
Properties offered the strip of land between the chain link fencing and the
wooden panel fencing of the putting green to the owners of Beach Cottages (Item
2(f)). It was eventually bought by the Bonhams
and served to provide an access to the beach from their garden which
they would not otherwise have had. This is the strip, now gated at point C, shown in the Rights of Way
photographs (paragraph 47 below). Photographs 2 and 4 show the surviving panel
fencing and the present gate. It
appears from these photographs that the panel fencing has been cut off and
originally extended across the end of
BB4 to the hedge boundary. It seems likely this strip was used to get from BB4
to the beach when the putting green fencing was erected, as some user witnesses
mentioned, but was not in use for long enough for a right of way to become
established, as the letter from Yarland Properties notes.
Other
Documentary Evidence Available to the Council
45.
Aerial survey 1946. Track
visible from Point A to Silver Sands café area crossing foundations of Seaplane
Station building (‘tennis courts’) adjacent to Beach Cottages. Well marked track over grassed area from
near point A due north to beach.
46.
Aerial survey 1968. This is
the large scale (1/2500) aerial photographic survey from which the 1971 OS
1/2500 series maps used in the application is derived. The double line track
marked in the application as the claimed footpath can be seen from this survey
to be a representation of the track shown in the photograph. The track crosses
a rectangular area and two smaller rectangles are shown adjacent to Beach Cottages
usable as hard standing for parking for those properties. No significant change
from 1946 except the grassed area adjacent to ABC is considerably smaller and
the track due north is no longer visible.
47.
Aerial Survey 1971. Little change from 1968.
48.
Aerial survey 1986. Enclosed area adjacent to hotel grounds and
Beach Cottages. Hedge boundary between hotel grounds and putting green removed
but original position apparent. No path worn on ABC although some of original
track area shows appears lighter. No path corresponding to BD or exit on to
beach apparent at D.
49.
Aerial survey 1993. Hotel demolished, several paths
criss-crossing hotel site and adjacent enclosure. Approximation of BDE and to lesser extent ABC apparent, also path due north from near point A similar to
1946. Strongly marked track east-west across old hotel site emerging on to
beach at approximately point B, possibly associated with demolition of
building.
50.
Aerial survey 1999. Scale 1/1250. Soil mark corresponding to the 1968 track apparent which now
appears to lead to Beach Cottage and does not give access to the Silver Sands
car park area. No path apparent between points B and C or B and D.
51.
Rights of Way Photographs 2001. Photographs taken by a rights of way officer
in July 2001 at point C and at the end of the strip at approximately point D
showing the strip of land belonging to Beach Cottage and the original panel
fencing of the putting green. The strip is now gated at the end of BB4.
52.
Lease of Bembridge Point between Bembridge Parish
Council and the Isle of Wight Railway Company 1908. The Point was leased for a period of 6 years
and then year by year with 6 months notice of termination on either side, for a
Recreation and Pleasure Ground for the use of the inhabitants of Bembridge and
the public generally. The land included covered the whole of the Point except
for a strip 20 feet wide around the boundary of the hotel site which is
described on the plan as a Right of Way. This right of way is not mentioned or
included in the lease, although a right for the public to pass along the
harbour wall (Breakwater Wall on the plan) is specified. The width of the route
around the hotel site, its exclusion from the lease, and its description as
Right of Way rather than Public Right of Way implies it was a vehicular access.
It is in fact the same vehicular access enjoyed by Beach Cottages until
1968. BB4 and BB32 (Beach Road) are not
shown as enclosed routes. An unlabelled building
in
the position of Shoreside and an area approximately equivalent to the original
curtilege of Beach Cottages is shown excluded from the lease. The lease is
evidence that there was some kind of right of way on the route ABC in 1908, the
width implies that it was vehicular and appears to access a property but gives
no evidence that it was public.
EVALUATION OF EVIDENCE AND CONCLUSIONS
53.
User evidence for ABC as a specific route from
approximately 1990 onwards appears to be relatively good although small in
quantity for a populous area. User evidence between 1980 and 1990 is less
clear. A number of witnesses for this period had also used the Point from their
childhood in the 1950s and 1960s when the land was open. They made little
distinction between earlier use and use after a considerable amount of the land in question had been enclosed in
such a way as must have altered patterns of walking. The enclosure may not have
prevented all use of ABC, but it was not clear from the evidence how it
continued during this time or to what extent. Photographic evidence does not
show persistent paths. There is also
evidence from the 1993 IWC path survey that BB4 was not well used at that
date.
54.
Mr Elliot’s evidence implies that most people did not
enter the playing field to use ABC. There is no evidence that enclosure of this area precipitated the
reaction from the public or the Parish Council
which would be expected if an established and well-used right of way was
being interrupted. On the contrary, the Parish Council apparently supported the
plan.
55.
The fact that only the enclosed length of path from
Beach Road was recorded in 1952 and that the Definitive Statement for BB4 gives
the destination of the path as the Point Recreation Ground supports the view
that point C was regarded at that time as the
start of the open ground where wandering would begin, that is, the
physically open dune and shingle beach originally leased for recreation.
56.
The origin and nature of the track on the 1971 OS
survey has been ascertained. Its presence on the map is not evidence supporting
dedication as a public footpath.
Firstly, the route is not present physically in later aerial surveys and
has not persisted consistently through the 20 year period. Secondly, appearance
of a route on an OS survey is not evidence of public rights, but only of the
existence of a physical feature on the ground at the time of, or just prior to,
the date of the survey. A right of way
wide enough for vehicles has existed since 1908 but there is no evidence that
this was public, rather the opposite, as it was excluded from the proposed
public amenity and appears to terminate at a property which may have been part
of the Coastguard Station.
57.
Various pedestrian desire lines have existed on the Point at certain times
but evidence of use of specific routes over a full 20 year period sufficient to
meet the requirements for deemed dedication of a highway cannot be reliably
distinguished.
58.
It is concluded that there is insufficient evidence
of continuous public use as of right during the full statutory period to raise
a presumption of dedication of ABC, due to insufficient or cessation of use
during the years 1980 to 1986. Use before 1980 appears to have been part of a
general use by the public wandering at large over the whole open area of the
Point. It is not clear that a single route
BDE has existed or been used continuously for the 20 year period and therefore
no presumption is raised on this route.
COMMENTS ON THE REPORT
Applicant
59.
Applicant’s comments with officer’s response are in Appendix 6.
Landowners
60.
All reports on modification order applications are submitted to
landowners for comment. Landowners’ comments are in Appendix 7 with officer’s
response.
FINANCIAL
IMPLICATIONS
61.
None outside current budgets.
LEGAL IMPLICATIONS
62.
See paragraphs 16 and 17 above and Appendix 3.
IMPLICATIONS
UNDER THE CRIME AND DISORDER ACT 1998
63.
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 as a result of the modification order procedure, 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 issues as the public already has
access to the area by means of existing paths.
IMPLICATIONS
UNDER THE HUMAN RIGHTS ACT
64.
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.
65.
In respect of Article 8 (respect for private and family life) and
Article 1 of the First Protocol (protection of property), the impacts which
modification might have on the owners of property affected by any the
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
66.
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