ITEM 14 TRANSPORT COMMITTEE

6 MARCH 2001

This report may be of interest to: Councillors for the and Park Wards, Neighbourhood Council, Parish Council

APPLICATION FOR A DEFINITIVE MAP MODIFICATION ORDER TO SHOW A PUBLIC FOOTPATH BETWEEN THE TOWPATH AND THE REMAINS OF ST. PETER’S CHURCH, STANTON LOW.

Accountable Officer: Andy Hudson (Head of Infrastructure) Author: Will Steel (Rights of Way Officer) - MK252060

1 Purpose

1.1 To consider an application for a Definitive Map Modification Order (DMMO) to show a Public Footpath from the Grand Union Canal Towpath to the remains of St. Peter’s Church, Stanton Low. A plan is attached as an Annex with the route marked as a bold black broken line, A-B-C.

2 Summary

2.1 An application was received by County Council from Mrs Amy Allen-Rowlandson dated 1 October 1995. The application contained a brief resume of the history of the route and signed statements of use by 22 people. 2.2 Additional research has identified some items of documentary evidence that are of limited significance in determining the application. 2.3 The Committee is required to consider the evidence and, using various legal criteria, decide whether, on the balance of probabilities, they feel there is sufficient evidence to reasonably allege that a right of way subsists over the route discussed.

3 Recommendations

3.1 That the application from Mrs Rowlandson be accepted and that a Definitive Map Modification Order be made to show a Public Footpath leading from point A to point B to point C as indicated on the plan attached to this report.

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D:\IServ Files\2000-01\enl_Report_393298_FITEM14.doc 4 Background

4.1 An application for a DMMO was received by Buckinghamshire County Council from Mrs Amy Allen-Rowlandson dated 1 October 1995. The effect of the application if successful would be to add a Public Footpath from the Grand Union Canal Towpath to the Unclassified County Road adjacent to the remains of St Peter’s Church, Stanton Low. The application contained a brief resume of the history of the route and signed statements of use by 22 people. 4.2 A plan showing the relevant area is Annexed to this report. The application was submitted in support of the route marked A-B-C (“the application route”).The land affected by the application lies entirely within Haversham-cum-Little Linford Parish on the northern edge of the designated area of . The route runs from point A, on the Grand Union Canal towpath (OS Grid Reference SP 8358 4243) in a generally north north westerly direction for a distance of approximately 330 metres to point B, by the remains of St Peter’s Church, Stanton Low (Grid reference SP 8354 4276) and then in a generally easterly direction for a distance of approximately 50 metres to point C, on the Unclassified County Road U558 (Grid reference SP 8359 4276). The route is undefined and runs over open pasture. There is currently a hedge and barbed wire fence alongside the towpath and the remains of a stone wall by the church. 4.3 The application has been investigated. The evidence provided by Mrs Rowlandson as part of her application is primarily evidence of use. Additional research has identified some items of documentary evidence that are generally neutral as to a public status for this route. Summaries of all the Documentary and User Evidence are provided in the background papers. The evidence is outlined below starting with the documentary evidence. 4.4 The route has not been identified on any early or current Ordnance Survey maps. The County Series Maps of 1881, 1900 and 1925 show the church isolated with a small number of other buildings; there are no tracks or paths leading to the church indicated on the maps. The nearby settlement of Stanton Low is shown on a track connecting the Black Horse Pub to Haversham Mill. At the time of these maps, the area had not been used for gravel extraction and subsequently flooded to form lakes and this track is considerably further east than its current position. The Stanton Low settlement was lost at the time of the extraction. The First Definitive Map for the area, published in 1957, was produced on a 1: 25,000 OS base map created from the surveys up to 1938 with some revisions up to 1950. This base shows a pecked line with the notation “FP” (meaning footpath) leading from the Church east towards Stanton Low and the track and then south over a canal bridge and on to the Newport Road east of New Bradwell. This is not shown as a Public Right of Way; it just indicates the physical existence of a route along that alignment. 4.5 The Finance Act of 1910 created a tax based on landholdings. Landowners could obtain reductions in their tax liability by declaring the existence of rights of way across their land although they were not obliged to. The lack of a tax deduction cannot therefore be taken as proof that a public right of way did not

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D:\IServ Files\2000-01\enl_Report_393298_FITEM14.doc exist. Comprehensive plans and books of reference were prepared showing the ownership of land and any reductions in tax liability claimed. Taxable land was divided into plots known as “heraditaments”. Each heraditament was coloured up on the map and given a reference number. This number identified an entry in the book of reference where information about the plot including any deductions awarded was recorded. In this case, the application route runs through Heraditament 183 in the ownership of Earl Spencer K.G. and in the occupation of Robert Wylie and Sons. There are no deductions for rights of way recorded. 4.6 The Definitive Map and Statement (DMS) is the legal record of the existence and line of public rights of way. It is conclusive evidence of what is shown, it is not conclusive as to what is not shown i.e. the fact that a route is not shown as a right of way cannot be taken as conclusive evidence that a right of way does not exist over that route. The DMS was created as a result of the National Parks and Access to the Countryside Act 1949. Parish Councils were instructed to survey the paths felt to be public in their area. At that time the area of land affected was part of Stantonbury Parish. The map showing the routes claimed by Stantonbury Parish Council cannot be found although the route would not appear to have been claimed by the Parish Council as the path was not included in the Rights of Way Record Sheets they submitted as part of the same process. 4.7 No legal order stopping up the public rights over the application route has been located on file or in the index of Quarter Sessions orders held at the County Record Office. 4.8 The Rights of Way files relating to Stantonbury, Haversham and New Bradwell have been examined. A letter from Borough Councillor M R Petchey (Bradwell Ward) to Buckinghamshire County Council dated 8/9/1983 states

"For many years the inhabitants of New Bradwell have exercised a right of way between a point on the towpath of the Grand Union Canal (SP 8360 4245 approximately to St Peter's Church, Stantonbury (SP 8354 4275), yet this footpath does not appear on the definitive footpath map.

Can I suggest a revision of the map to include this path. I can produce many witnesses who can testify to using it for thirty years and more." A reply from Buckinghamshire County Council on 1 July 1985 requested that Councillor Petchey submitted a formal application under the terms of the Wildlife and Countryside Act 1981. There is no record of this being done. 4.9 Research at Buckinghamshire County Records office identified two bundles of correspondence. The first, dating from 1933, commences with a letter from Rev. AN Guest of the Vicarage, Stantonbury to Rural District Council requesting that the path from St Peter’s Church to New Bradwell be restored. The Rural District Council forwarded this letter on to the County Council. Buckinghamshire County Council wrote back to the Rural District Council stating that any obstructions should be dealt with by the Rural District Council. The Rural District Council requested advice as to how to proceed from Buckinghamshire County Council who advised them to examine the Parish Award. The last letter in

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D:\IServ Files\2000-01\enl_Report_393298_FITEM14.doc the sequence was a letter from the Rural District Council to the Rev. Guest asking for the Parish Award of the Ecclesiastical Parish of Stantonbury. No indication is given of what the problem with the path in question was nor is there any plan identifying the path itself. (BRO Ref DC3/10/32) 4.10 The second set of letters dates from 1936. It appears that a Mr HB Dowdy of St James Church, New Bradwell Parochial Church Council wrote to Newport Pagnell Urban District Council asking for “the proper right of way to St Peter’s Church Stanton Low”. The UDC replied that they could find no reference to the route on the OS maps they had available but they believed that the land used to be in the ownership of Earl Spencer and that it may be worthwhile approaching the Estate’s agent. Again no plan is included making identification of the precise path referred to impossible. (BRO Ref DC3/10/37). 4.11 There is also a reference in the Minutes of Newport Pagnell Rural District Council on 28 September 1938 - Minute No. 223. This refers to a letter from Bradwell Parish Council. This stated that the Parish Council had no definite evidence of a right of way but had no objection to the Rural District Council proceeding with an application if it wished. Again there is no plan accompanying the minute making identification of the route in question impossible. 4.12 Several books on Local History contain references to a route as outlined below. At best these provide evidence of reputation; no maps are provided as to the exact route being referred to. 4.13 The book “The Nineteen Hundreds” (1951) by Sir Frank Markham refers to an incident which formed the basis of the JB Priestly play “When we were married.” It appears that when St James Church in New Bradwell was built in about 1850, it was not properly licensed for marriages. This was discovered in 1909 and for a while marriages took place at the old church, St Peters. The book, primarily based on local newspaper coverage, describes one of these in the following terms - “..many elected to wend their way that morning by way of the towing path, over the fence and across the fields, to the isolated little church.” 4.14 “Remember Wolverton, Stratford and Bradwell” by Bill West (ISBN 0 86023 474 6) contains the following reference as part of a description of a popular walk “…To Haversham the path would be along the canal towpath to Stanton Low, across the fields, passing the site of the old Rifle Butts……Next to the Butts stands the Norman church of St Peter (now in ruins)….The walk continued to the gated road to Carrs Mill….”. 4.15 The book, “New Bradwell – The Unique Community” (1995, privately published) by Sylvia Mead has a series of photographs of the Church. One of these shows the congregation gathered outside by a gap or gate in the wall which would appear to be approximately where the application route passes. The group are standing on both sides of the wall and a number of bicycles can be seen. 4.16 Extensive user evidence has been researched. Completed Public Rights of Way Information Sheets from 22 people were submitted with the application. Eight of these people have been interviewed to provide additional information on the claim as well as two other people with knowledge of the route. The chart T ITEM 14 6 MARCH 2001 PAGE 4

D:\IServ Files\2000-01\enl_Report_393298_FITEM14.doc Annexed to the end of this report indicates the periods of use claimed. This shows that 24 people claim use for varying periods since around 1910 with 17 having individual uses of over 20 years. All the forms refer to personal use on foot whilst two have taken a bicycle along the route occasionally. 4.17 All the evidence of use and interview notes are included in the Background Papers. However the picture that consistently emerges is that people have used the route for considerable periods, many in excess of twenty years. The path was used for leisure and recreation, by those going swimming and fishing in the river and also by those worshipping in the church when it was still functioning. Mrs Rowlandson, recalled being told by a local man, Clem Lister, that children from Bradwell School used to be taken down that way to Haversham Mill to collect fossils from the river. 4.18 Most of the interviewees refer to a wooden stile at the canal end of the path. This originally had a single wooden step but it disappeared many years ago and people just climbed over the fence instead. One interviewee, Mrs Hollands, recalled a green footpath sign at this point but this was not corroborated by any of the other witnesses. A Mr A Cadman of Haversham was actively involved in footpath issues for Haversham Parish Council before the 1950s. The route in question was not then in Haversham Parish and he has not used it. However he does recall seeing other people coming and going along the route and has vague recollections of a footpath signpost with two arms situated by the church. One arm pointed along the Unclassified County Road towards the Black Horse and the other along the claimed path. 4.19 A number of people recall signs being put up saying "Private Land" or similar. Memories of actual dates are vague and vary from the early 1960s up to the early 1980s. Mr G Crisp thinks it was about 1965 but says similar signs went up along the length of the Unclassified County Road leading up towards the Black Horse pub. 4.20 In other correspondence from Mrs Rowlandson dated 18 November 1997 she stated “When I was first married I lived away for a few years, and on my return was unhappy to find the fence in question had been barbed-wired (although not replaced) but it didn’t matter a great deal as obviously the barbed wire very soon got bent and access gained. As soon as it was replaced there was always someone to repeat the exercise, and this goes on to this very day.” 4.21 From notes taken at the interview with Mrs Rowlandson it would appear that the date of her return to the area after her marriage was 1960. This is significant in that it fixes a date of what appears to be the first indication of a challenge to people's right to use the route. 4.22 A number of supporters of the order have also put forward the general argument that the application route is the direct and therefore logical route for the residents of New Bradwell to access the church and land beyond. The alternative, of walking to the Black Horse and then following the made up track back to the church, is much longer and thus the former is likely to have been the accepted and widely followed route.

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D:\IServ Files\2000-01\enl_Report_393298_FITEM14.doc 4.23 Most of the land affected by the application is currently in the ownership of Genesis Homes Ltd who are not opposed in principle to the recognition of a right of way across the area. However the land is tenanted by Messrs C and E Gurney of Foscott Buckingham, who were the freehold owners of the affected land from 1946 until its sale to Genesis in 1997. In a telephone conversation on 31 March 1999, Mr Charles Gurney stated that he would oppose any order on the basis that it was not a public right of way. He said his family had put up signs on concrete posts reading “No Entrance – Private property” . The signs were periodically vandalised and the Gurneys replaced them. He was not specific about the date on which signs were first erected. Mr Gurney was aware of a small number of people who would try and use the land as a short cut to the church and beyond; he would always challenge them and ask them to leave the land. He said that the normal route for people to get to the church when it was still functioning was via the road from the Black Horse Pub. A draft of this report was sent to Mr Gurney and a response was received from his solicitors dated 25 January 2000. This refuted the existence of the right of way and included two statements from farmworkers who worked for the Gurneys from 1957. They state that they challenged people using the path and replaced and repaired the fencing by the canal on many occasions. 4.24 The northernmost section of the path, running along the western and northern boundary of the churchyard, would appear to be situated on land in the ownership of Mr David Marle of Little Linford. Mr Marle has no objections to the recognition of the footpath over this land. 4.25 A request for information about this route was made to Haversham cum Little Linford Parish Council in June 1999. Although the Parish Council itself had no specific information, the Parish Clerk commented that she had seen signs at the canal end of the route saying “No Trespassers” during the period 1985 to 1995. The Council also advised that information was sought from the owner of adjoining land. Mr Paton of Hill Farm, Haversham, stated that he had farmed in that area since 1955 and was unaware of any footpath over the application route. He also confirmed that there had been a “Private – Keep Out” sign by the Church although did not give any dates. 4.26 Informal consultations on the application were carried out by this Council in June 2000 with Statutory Undertakers, prescribed organisations and other relevant parties. No objections or significant comments were received as a result of the exercise.

5 Issues and Choices

5.1 To make an order to add a right of way to the Definitive Map, Milton Keynes Council has to be able to say that it has been shown that a right of way subsists or is reasonably alleged to subsist. A right of way may be shown to exist in two ways; by reference to historical / documentary evidence or by evidence of use. In considering the evidence members should be aware that they are using a “balance of probabilities” test and not a “beyond all reasonable doubt” test.

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D:\IServ Files\2000-01\enl_Report_393298_FITEM14.doc 5.2 It should be noted that this is not an application to create a new right of way, rather it is an application to recognise public rights that, allegedly, already exist. In this sense, the only relevant consideration for Members is the strength of the documentary and user evidence put forward in support of the application and any rebuttal of this evidence provided by, for instance, any landowners. Other considerations, such as desirability and environmental suitability of the route, are not factors that can have any bearing on whether such rights already exist. 5.3 The criteria to establish a right of way based on user evidence is set out in section 31, Highways Act 1980. Sub-section (1) states “where a way over any land has been actually enjoyed by the public as of right and without interruption for a period of 20 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”. The public must have used the way openly without hindrance (e.g. clear objections, verbal / written warnings, etc.) or permission from the landowners or their agents for a period of 20 years. The 20 year period is generally taken to run backwards from the time of the use of the path being first called into question. 5.4 If the presumption of twenty years use is successfully raised then the onus is on any landowner to show that there is sufficient evidence to prove that there was no intention to dedicate. This must be by some overt act on the part of the landowner to show the public at large that there was no such intention. 5.5 Such evidence may consist of notices or barriers, or by closing the way on one day in the year, and drawing this to the attention of the public, or by the deposit of a Statutory Declaration to the effect that no additional ways (other than any specifically indicated in the Declaration) have been dedicated as highways since the date of deposit. 5.6 Section 53(3)(c)(I) of the Wildlife and Countryside Act 1981 states that the Surveying Authority shall modify the Definitive Map on

“the discovery of evidence.. which.. shows ..that a right of way which is not shown in the Map and Statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to which this part applies”.

It has been held by the Courts (R v Secretary of State for the Environment, ex p. Bagshaw, R v Secretary of State for the Environment, ex p. Norton, 28/4/1994) that

“if the evidence from witnesses as to uses is conflicting but, reasonably accepting one side and reasonably rejecting the other, the right would be shown to exist then, it would seem …. to be reasonable to allege such right.”

In the words of the Rights of Way Law Review (8.2, June 1994) this means that where the “outcome would depend on what people said orally at a public inquiry and how they stood up to cross examination, it was not appropriate to seek to

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D:\IServ Files\2000-01\enl_Report_393298_FITEM14.doc “balance” their evidence, as recorded in writing, at the preliminary order-making stage”. The relevant ground for adding a route to the Definitive Map and Statement based on 20 years user evidence is Section 53(3)(b) WCA 81 which states:- “the expiration in relation to any way in the area to which the map relates of any period such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path”. 5.7 The Committee needs to look at all the evidence and decide whether it thinks there is sufficient evidence to reasonably allege that rights of way subsist over any of the routes considered in this report. If they feel that on the balance of probabilities there is, then they should request that an order is made to that effect. The Committee should decide whether any evidence of use is evidence of the public exercising a right or whether it is merely individuals using the route by permission of the landowner.

6 Implications

6.1 Environmental None. 6.2 Equalities None. 6.3 Financial Under Section 41 of the Highways Act 1980 this Council would have a statutory duty to maintain the route should it become a footpath; such expenditure would be drawn from existing maintenance budgets. 6.4 Legal The claim is made under the Wildlife and Countryside Act 1981 (WCA 81) for the addition of a route to the Definitive Map and Statement as a footpath. Modification of the Definitive Map and Statement can be made under WCA 81 Section 53(3) (b) which states that the Surveying Authority shall modify the Definitive Map on

“the expiration in relation to any way in the area to which the map relates of any period such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path”. and WCA 81 Section 53(3) (c)(1)

“the discovery of evidence.. which.. shows ..that a right of way which is not shown in the Map and Statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to which this

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D:\IServ Files\2000-01\enl_Report_393298_FITEM14.doc part applies”. In determining the application MKC should be satisfied that the correct procedures have been followed. These procedures are set out in Schedule 14 of the WCA 81. 6.5 Staff and Accommodation None. 6.6 Cultural Planning None. 6.7 Crime Prevention None.

7 Conclusions

7.1 The application submitted by Mrs Rowlandson relies primarily on user evidence. The witness statements and interviews indicate that the path has been used by the public at least since the early part of this century. A considerable number of users claim to have walked the path in excess of the twenty year period set out in s31, Highways Act 1980 for the statutory presumption of dedication. 7.2 The users acknowledge that steps were taken to prevent or discourage use of the path. These steps include the erection of barbed wire on the stile by the canal and erection of “Private Land” signs at either end of the path. The earliest date that such challenges have been noted 1960 when Mrs Rowlandson returned to live in the area. The twenty year period which can give rise to the presumption of dedication of the route thus runs from 1940 to 1960. Thirteen witnesses state that they used the route during this period, nine of them for the full twenty years. This would seem sufficient to raise the presumption of dedication. 7.3 The then landowner has stated that he took various steps to challenge the use as mentioned above. The intention not to dedicate is supported by the statements from his former farmworkers. However, their evidence only relates to 1957 onwards. It is also contradictory to the evidence provided by the other witnesses in support of the making of an Order. Where contradictory evidence such as this exists then the Bagshaw and Norton cases indicate that it is not the role of the Order making authority to try and balance the evidence; if the user evidence in support of making an Order is reasonable, then an Order should be made. 7.4 The limited documentary evidence relating to this route provides no proof of status of the route. At best it is evidence of reputation of the route as a right of way. The 1930s correspondence, although unreliable due to lack of a plan showing the path being referred to, would indicate some problem with the route at that stage although this is prior to the relevant period. There is some merit in the argument that the route must have been widely used as it was the most direct way for the residents of New Bradwell to access the church. Again this does not

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D:\IServ Files\2000-01\enl_Report_393298_FITEM14.doc constitute proof; it is just supportive of a case for recognition of the route as a public right of way. 7.5 The user evidence and evidence from the landowner is contradictory but following the judgement in the Bagshaw and Norton cases it would seem that the criteria for making a DMMO as requested have been met; i.e. that it is reasonable to allege that a right of way subsists over the route in question.

Background Papers: A set of all the Background Papers will be placed in each of the Members Group Rooms. Additional sets are available on request from the Rights of Way Section. A. Application from Mrs Allen-Rowlandson dated 1 October 1995 including amongst other documents 22 Public Rights of way Information Sheets B. Certificates of Compliance with Paragraph 2, Schedule 14, Wildlife and Countryside Act 1981 dated 29 January 1996 and 10 February 1996 C. Summaries, copies and extracts of Documentary Evidence researched in the course of the investigation D. Notes from Interviews with Users taken in the course of the investigation. E. Correspondence and information from Landowners.

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