Wildlife and Countryside Act 1981 – Section 53 Application

WILDLIFE AND COUNTRYSIDE ACT 1981 – SECTION 53, SCHEDULE 14 INVESTIGATION INTO THE DEFINITIVE ROUTE OF AX15/1 IN THE PARISH OF COMPTON BISHOP 809m

Author: Erica Darch Date: 9 April 2018

This document is also available in Braille, large print, on tape and on disc and we can translate it into different languages. We can provide a member of staff to discuss the details.

CONTENTS

1. Introduction 2. The Application and supporting evidence 3. Relevant Legislation 4. Documentary Evidence 5. Physical Evidence 6. User Evidence 7. Landowner Evidence & Evidence from those against the application. 8. Consultation and other submissions 9. Analysis of the Evidence 10. Summary and Conclusion 11. Recommendation 12. List of appendices

1. Introduction 1.1 The Council identified a need to investigate the route of footpath AX 15/1 in 2014 after being made aware of evidence that suggested a possible error in the Definitive Map and Statement (DMS). No application from a third party has been received in this case.

1.2 A public footpath can be used by the public on foot.

1.3 The purpose of this report is to establish what public rights, if any, exist and where those public rights should be recorded.

1.4 Private rights may exist, but have no place in this investigation and do not form part of the decision making process.

2. The Investigation

2.1 It has been alleged that the section of definitive footpath AX 15/1 shown between point X-Y-B on Appendix 1, does not carry public rights, and that instead a public footpath exists between points A and B on appendix 1. This investigation looks at whether there is sufficient evidence to delete the record of public rights between X-Y-B. It also looks at whether there is sufficient evidence to record public rights between A and B, or in another location. Although not irrelevant, if sufficient evidence is discovered that rights exist over A-B (or any other route connecting with the undisputed portion of AX15/1) it will not necessarily lead to a deletion of rights over X-Y-B. Conversely, deletion of rights over X-Y-B will not automatically lead to rights being recorded over another route. For a route to be added to, or deleted from, the DMS the statutory tests must be met (see 3.5 – 3.7).

2.2 It was decided that this case would be investigated ‘out of turn’ in accordance with Somerset County Council’s Statement of Priorities1 because the path concerned was subject to a Section 130 notice2 and the County Council is satisfied that there is cogent evidence that the status or route of the path is in dispute.

2.3 The line of footpath AX 15/1 as shown on the Definitive Map (referred to as route XY) runs for approximately 87 metres from point X on Barton Road in an easterly direction up a wooded and overgrown bank,

1 The Statement of Priorities can be viewed under ‘Information and resources’ at http://www.somerset.gov.uk/environment-and-planning/rights-of-way/apply-to-add-delete-or- upgrade-a-public-right-of-way/. 2 Highways Act 1980.

across a field, over the drive that serves the Webbington House Hotel, across another field and tarmacked area before crossing the boundary onto Crook Peak at point Y, then turning immediately north for approximately 7 metres to point B before re-joining the undisputed route of the footpath continuing north.

2.4 It has been alleged that the correct line of the route (referred to as route AB) should run from Point A on Barton Road, for approximately 99 metres in a generally south-easterly direction through a field or wooded area, over the drive serving The Webbington House Hotel and then along a track to point B where the route crosses a field boundary via a stile from which point the line of the route is undisputed and continues in a generally northerly direction.

2.5 A third alleged route (referred to as LM) runs from point L on Barton Road for approximately 145 metres in a generally north-easterly direction up a bank, across what is now the Webbington Hotel car park, over a drive serving the Webbington Hotel, up a bank and across a field to point M, before turning in a generally northerly direction for approximately 25 metres through points Y and B, before continuing on the undisputed line of AX15/1.

2.6 A fourth route through points K-M-Y-B (referred to as route KM), for which only slight evidence has been found, is also considered. This route runs parallel with the definitive line approximately 20 metres south, from point K on Barton Road, through the grounds of the Webbington Hotel, over the drive serving the Webbington Hotel, up a bank and across a field to point M before turning north and running through points Y and B before continuing on the undisputed line of AX 15/1.

2.7 Route XY, AB, LM and KM are shown on appendix 2

2.8 Photographs of the routes taken on 02/12/2016 and 28/07/2017 are at Appendix 3.

2.9 A temporary alternative route was available from approximately 2007 to 2014, and is shown on appendix 4. Although very little evidence supporting the existence of public rights over this route has been found, it is mentioned here for completeness, and is discussed further at paragraph 6.2.

2.10 A land registry search carried out on 21 December 2016 identified eight landowners or adjacent landowners for the routes under consideration in this report. There was no registered landowner for the part of the route between A and B which travels over an enclosed track from immediately east of The Webbington House Hotel drive to point B. The Common Law presumption is that adjoining landowners own up to the centre point in such circumstances, in the absence of any evidence to the contrary. The landownership is shown at Appendix 5.

3. Relevant Legislation

3.1 The Wildlife and Countryside Act 1981 specifies in Section 53(2)(b), that the County Council must keep the Definitive Map and Statement under continuous review and must make such modifications as appear to them to be requisite in the light of certain specified events. In this case the events provided for in sections 53(3)(b)and 53(3)(c)(iii) are of particular relevance.

3.2 Section 53(3)(C)(i) states that the Map and Statement should be modified where the County Council discover evidence which, when considered with all the other available evidence, 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 such that the land over which the right subsists is a public path a restricted byway or, subject to section 54A, a byway open to all traffic”

3.3 Section 53 (3) (c ) (iii) reads “that there is no public right of way over the land shown in the map and statement as a highway of any description, or any other particulars in the map and statement require modification”.

3.4 The DMS is conclusive evidence of what it shows. However, as can be seen from the above, the Wildlife and Countryside Act 1981 does envisage errors being corrected where they are identified. The standard of proof for adding a new route to the DMS is that is can be shown to subsist or be reasonably alleged to subsist.

3.5 The standard of proof to be applied when deleting a route from the DMS is the normal civil test of the balance of probabilities. This is higher than the reasonably alleged test described above. Furthermore, the conclusivity of the DMS weighs heavily in the balance and therefore evidence of some substance is necessary to tip the scales in favour of a deletion.

3.6 Defra’s guidance states that three questions must be asked of the evidence when considering a deletion. These are:

i) the evidence must be new – an order to remove a right of way cannot be founded simply on the re-examination of evidence known at the time the definitive map was surveyed and made; ii) the evidence must be of sufficient substance to displace the presumption that the definitive map is correct; iii) the evidence must be cogent.3

3.7 It should be noted that question (i), i.e. the requirement for new evidence, also applies to the addition of a right of way to the DMS.

3.8 The purpose of Section 53 of the Wildlife and Countryside Act 1981 is to record or delete the record of rights rather than create or extinguish the rights themselves. Practical considerations such as potential utility,

3 Rights of Way Circular 1/09, paragraph 4.33.

suitability, security and the wishes of landowners cannot be considered under the legislation.

3.9 Twenty years use by the general public can give rise to the presumption of dedication of a way under Section 31 of the Highways Act 1980. The period of 20 years is measured backwards from the date of challenge by some means sufficient to bring it home to the public that their right to use the way is being challenged. Section 31 (1) states “where a way over any land, other than a way of such character that use of it by the public could not give rise at Common Law to any presumption of dedication, has actually been enjoyed by the public as of right and without interruption for a full 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”.

3.10 Section 32 of the Highways Act 1980 states that “a Court or other tribunal, before determining whether a way has or has not been dedicated as a highway, or the date on which such dedication, if any, took place shall take into consideration any map, plan or history of the locality or other relevant document which is tendered in evidence and shall give weight thereto as the Court or tribunal considers justified by the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or compiled and the custody in which it has been kept and from which it is produced”.

3.11 Any changes to the Definitive Map must reflect public rights that already exist. It follows that changes to the Definitive Map must not be made simply because such a change would be desirable, or instrumental in achieving another objective. Therefore, before an order changing the Definitive Map is made, Somerset County Council must be satisfied that public rights have come into being at some time in the past. This might be in the distant past (proved by historic or documentary evidence) or in the recent past (proved by witness evidence). The decision is a quasi-judicial one in which the decision maker must make an objective assessment of the available evidence and then conclude whether or not the relevant tests set out above have been met.

4. Documentary Evidence 4.1 The table below shows documentary evidence sources examined as part of this investigation. In some cases it has not been possible to view the original copy of a document and it has instead been necessary to rely entirely on an extract supplied by a third party. Any reduction in weight given to a particular piece of evidence as the result of it having been viewed only in part, or the original not having been viewed, is clearly identified in the description of that evidence.

4.2 Quarter Session records: 4.2.1 Explanation of the type of evidence From early times many functions now dealt with by local and central government were dealt with at the Court of

the Quarter Sessions under the jurisdiction of the Justices of the Peace, who were advised by a Clerk of the Peace. Amongst other matters the justices were responsible for the maintenance of county bridges and for the failure of parishes to maintain their roads properly. Diversion and extinguishments of rights of way were dealt with at the Quarter Sessions and Justices certificates in respect of the completion of the setting out of roads were also issued. These records are capable of providing conclusive evidence of what the Court actually decided was the status of the route and can still be valid today.

4.2.2 Session Rolls from Epiphany 1905 to Michaelmas 1910. SWHT reference: Q/SR/818 – Q/SR/841. Order Books 1891 – 1919 (searched relevant years). SWHT reference Q/SO/27 – Q/SO/28 No appendix. 4.2.3 Although documents relating to the diversion of other footpaths were found within the Quarter Sessions records, nothing relating to the routes under consideration here was found.

4.3 Tithe Records: 4.3.1 Explanation of the type of evidence Tithe maps and the written document which accompanied them, (the apportionment) were produced between 1837 and the early 1850’s in response to the Tithe Commutation Act 1836, to show which landowner owned which pieces of land and as a result how much they owed in monetary terms. The tax replaced the previous ‘payment in kind’ system where one tenth of the produce of the land was given over to the Church. A map was produced by the Tithe Commissioners which showed parcels of land with unique reference numbers, and these were referred to in the apportionment document, which contained details of the land including its ownership, occupation and use. Public roads which generated no titheable produce and were not given a tithe number. Some private roads, due to use could be equally not liable to a tithe. However, public and private roads could be subject to a tithe, if for instance, they produced a crop – grazing or hay cut from the verges. The Map and Apportionment must be considered together. Roads were sometimes listed at the end of the apportionment; there was often a separate list for private roads. Tithe maps and apportionments were not prepared for the purpose of distinguishing between public and private rights; they were intended to apportion a monetary rent in lieu of tithe payments in kind. Tithe maps provide good topographical evidence that a route physically existed and can be used to interpret other contemporary documents.

4.3.2 Tithe map: Compton Bishop. 1839. SWHT reference: D\D/Rt/M/68. Appendix: 6 Compton Bishop, altered apportionment, 1927 SWHT reference: DD\CTN/39. No appendix.

4.3.3 Description and interpretation of evidence

The tithe map for Compton Bishop shows field boundaries and casing lines for roads as single black lines, with breaks in the lines presumably indicating access points, although not all parcels of land are shown as being accessible via such a gap. The map is uncoloured.

The field through which route AB and XY pass is numbered 544. There is a break in the eastern casing line of Barton Road at approximately point A, indicating physical access to the field at this point. The field through which route LM runs is numbered 542. There is also a similar gap at point L, the field boundary curving into the field slightly on either side. A narrow gap in the north-east corner of apportionment 542 between apportionments 543 and 544 connects 542 and Crook Peak (576). This gap corresponds approximately with point M. No gap is shown in the field boundaries at point X, Y or B. There is no indication of a physical route running through either 542 or 544.

No information recorded in the apportionment for 542 or 544 assist in this investigation.

The gaps in the boundary lines at point L, and at point M, show route L to M could have been used at this time, although there is no other feature indicating a footpath. Similarly, the gap in the casing line at A shows this could have been used to access apportionment 544, but no corresponding gap is shown at point Y or B.

The tithe map is a good indication of the physical features which existed on the ground at the time. It strongly suggests that route LM was physically available, but provides only weak evidence that AB, XY or KM were inaccessible as clearly not all access points were shown on the map.

4.4 Ordnance Survey Records: 4.4.1 Explanation of the type of evidence The Ordnance Survey (OS) are generally accepted as producing an accurate map depiction of what was on the ground at the time of a survey. OS Maps cannot generally be regarded as evidence of status, however they indicate the physical existence of a route at the date of survey.

4.4.2 County Series Sheet XVII.14, 25 inch : 1 mile. 1st Edition: Published 1885, surveyed 1884. Ref: Appendix: 7 2nd Edition: Published 1903, surveyed 1902. Ref: Appendix: 8

The 1885 edition shows Barton Road coloured sienna with a shaded casing line to the east. Webbington House, The Lodge, the access drive to Webbington House, The Bungalow (now Jacobs Fold) and the enclosed track which now gives access to Jacobs Fold (AB) are not shown on the base mapping as none had yet been constructed (see appendix 2 for the location of these features).

No feature which might represent a physical route on either route AB or XY is shown.

On the east side of Barton Road, opposite the entrance to Webbington Farm at point L there is a break in the casing line and a short section of uncoloured road or land runs in a south south-easterly direction parallel with Barton Road (referred to as a ‘slip road’ for ease). From the south-east end of this slip road parallel dashed lines run through OS field number 404 in a generally north- easterly direction to a field boundary at point M. At point M, field 404 and part of Crook Peak form a narrow gap between field 403 and 388 with a solid line separating 404 from Crook Peak. On the northern side of this boundary, a single dashed line runs parallel with and to the east of the field boundary in a northerly direction past point Y and B and continuing on the undisputed route of footpath AX15/1.

The 1903 edition is uncoloured, but is otherwise the same as the 1888 edition, except for the addition of the letters ‘F. P.’ next to the parallel dashed lines in field 404 and a sub-rectangular feature in field 404 immediately to the south of the dashed lines, perhaps a platform or mound.

4.4.3 County Series Sheet XVII.SW, 6 inch : 1 mile. 1st edition: Published 1884, surveyed 1884. Ref: Appendix: 9 2nd editions Published 1904, surveyed 1902. Ref: Appendix: 10

The 1884 map is substantially the same as the 1885 25 inch map. The 1904 map is substantially the same as the 1903 25 inch map with the exception that the letters ‘F. P.’ do not appear next to the parallel dashed lines between L and M. Any differences between the 6 inch and 25 inch maps are irrelevant to this investigation.

4.4.4 Interpretation of the Evidence

The 1884 – 1904 OS maps are very good evidence of a physical feature consistent with a footpath existing over route LM, and good evidence of no similar physical feature existing over the other routes under consideration here. They are not, however, good evidence for the existence of public rights over the route.

4.5 1910 Finance Act 4.5.1 Explanation of the type of evidence The Finance Act of 1910 provided, among other things, for the levy and collection of a duty on the incremental value of all land in the United Kingdom. Land was broken into land ownership units known as hereditaments and given a number. Land could be excluded from payment of taxes on the grounds that it was a public highway and reductions in value were sometimes made if land was crossed by a public right of way. Finance Act records consist of two sets of documents which are:-  Working Plans and Valuation Books. Surviving copies of both records may be held at the Local Records Office. Working maps may vary in

details of annotation and shading. The Valuation Books generally show records at a preparatory stage of the survey.  The record plans and Field Books (small bound books) are the final record of assessment and contain more detail than the working records. The Record Plans and Field Books are deposited at The National Archives, Kew. While the Valuation and Field Books were generally kept untouched after 1920, many of the working and record maps remained in use by the Valuation Offices and sometimes information was added after the initial Valuation process. The 1910 Finance Act material did not become widely available until the mid1980’s. It cannot therefore have been considered during the Definitive map making process and can be considered “new evidence”, if it is relevant.

4.5.2 Finance Act Working Plan and Valuation Book. SWHT reference: DD/IR/OS/17/14 (plan) and DD/IR/W/43/4 (book). Appendix: 11 Finance Act Record Plans and Field Book (National Archives reference: IR128/3/114 and IR128/9/40 (maps) and IR58/91905 (book). Not included in the appendices. 4.5.3 Description and interpretation of evidence

All the routes under consideration here (AB, XY, KM and LM) run through hereditaments 82 and 83 on the Working Plan. The base mapping predates the construction of Webbington House. The Lodge, the drive and Webbington House together with the new field boundaries around them have therefore been drawn on in red ink, although only in their approximate positions. No building has been added in the position of ‘The Bungalow’ (now Jacobs Fold). The route of LM is shown on the OS base mapping (see paragraph 4.4.2 – 4.4.3) for a discussion of the OS maps), but nothing which might indicate a public right of way or the physical existence of any of the other routes is indicated on the map. No deductions for ‘Public Rights of Way or User’ are shown in the Valuation Book. Herman Tiarks is identified as the owner of both hereditaments.

The Record Plans and Field Book contain very similar information, neither indicating a public right of way on the plan (other than the depiction of LM on the base mapping), nor recording any deductions for ‘Public Rights of Way or User’ in the books. The owner of both hereditaments is identified as H. Tiarks.

There were significant penalties for any landowner attempting to claim a right of way existed that did not (in order to gain the financial advantage). However, although it would usually be considered to the financial benefit of the landowner to claim any right of way running over their land because a corresponding deduction in value would be granted and therefore less tax due, they were not required to do so. A landowner might have preferred the financial disadvantage to admitting to an inconvenient right of way across their land. Therefore, if Finance Act documents record a public right of way they are good evidence for its existence, but the non-recording of such a right is not good evidence that it does not exist. In this case, the documents do not

provide any evidence that a right of way did not exist from Barton Road to Crooks Peak Common, nor do they help determine where any rights that do exist are located.

4.6 Definitive Map and Statement preparation records 4.6.1 Explanation of the type of evidence The Definitive Map and Statement were produced after the National Parks and Access to the Countryside Act 1949 placed a duty on County Councils to survey and map all public rights of way in their area. The process was undertaken in four statutory stages:  Walking Survey Cards and maps - Parish Councils were required to survey the paths they thought were public paths at that time and mark them on a map. The route was described on a survey card, on the reverse were details of who walked the route and when. Queries for the whole parish are often noted on a separate card.  Draft Map – Somerset County Council produced the Draft Map from the details shown on the Survey Map. These Maps were agreed by the County Works Committee and the date of this Committee became the ‘relevant date’ for the area. The map was then published for public consultation. Any objections received were recorded in a Summary of Objections found in the District file.  Draft Modification Map – This stage in the process was non statutory. SCC produced a map to show any proposed changes as a result of objections to the Draft Map. Any objections received were recorded in a summary of Counter Objections to the Draft Modification map, found in the District file.  Provisional Map – This map incorporates the information from the Draft Maps and the successful results of objections to the Modification Maps. These were put on deposited in the Parishes and District Council offices at this point only the tenant, occupier or landowner could object,  Definitive Map and Statement – Any path shown is conclusive evidence of the existence and status of a public right of way until proved otherwise. The Definitive Map is without prejudice to other or higher rights.

4.6.2 Survey Card. Appendix: 12 The Compton Bishop card for footpath no. 1, describes the route as ‘HILL PATH OR EXONS PATH’. It goes on to state that:

“The path starts at Barton Road Passing through the grounds of Webbington House to Crook Peak Common Means of Passage K.G. in Barton Rd W.G. at Crook Peak Common. Path well kept. No obstructions”.

On the reverse, the card reads “This path was diverted in 1906” and is dated 16/11/50. A third page has been crossed through in red, but contains no additional information.

4.6.3 Survey Map. Appendix: 13 The survey map shows footpath 1 in blue on the current recorded route (XY), labelled “KG” at approximately X and “WG” approximately 40 metres further north than point B.

4.6.4 Copy of a parish survey map provided by Compton Bishop Parish Council and titled by them “Draft Map of Footpaths 1 and 2 Prepared by Compton Bishop Parish Council between 18th September 1950 and 28th November 1950” Appendix: 14

This is a hand drawn sketch map titled in blue ink “FOOTPATH No.1 & FOOTPATH No.2 COMPTON BISHOP”. The map itself appears to be drawn in pencil, with Loxton, Webbington Farm and Webbington House labelled in blue and some other features labelled in black, including Barton Road. Webbington House and two buildings which are presumably The Lodge and Grove Cottage are shown as shaded blocks, and the drive to Webbington House is drawn in pencil. Two parallel black lines run from Barton Road over the drive to Webbington House and join Crook Peak immediately north of the boundary of Grove Cottage and to the south of Jacobs Fold. The annotation KG appears at the Barton Road end, and SG at the Crook Peak end.

Because of the hand drawn sketched nature of the map the features are not shown in their correct positions relative to each other and it is difficult to be certain exactly which alignment of the footpath is intended to be shown. The west end of the route appears to be at point A, the east end at M, but the overall alignment is east to west which corresponds with XY. Ultimately all that can be concluded from this map is that a footpath is shown from Barton Road crossing the Webbington House Drive and joining Crook Peak between Grove Cottage and Jacobs Fold, and that there was a kissing gate at Barton Road and another gate (possibly a ‘ Swing Gate’) at Crook Peak.

4.6.5 Draft Map. Appendix: 15

The Draft Map shows the current recorded route of footpath AX 15/1 (XY) in purple, labelled AX 15/1.

4.6.6 Summary of Objections to the Draft map No appendix.

Although a summary of objections to the Draft Map and Statement for this area exists, no objection relating to the application route was found within it.

4.6.7 Draft Modification Map. Appendix: 16

The Draft Modification Map shows no public right of way over the current recorded route of footpath AX 15/1, or on the nearby routes AB, KM or LM. This suggests no change to the section of route under consideration here as shown on the Draft Map was considered necessary. The bridleway currently

recorded as AX 15/1/1 is shown in green labelled ‘AX 15/1’.

A notice dated 24/07/1964, apparently accompanying the Draft Modification Map, was found in SCC’s rights of way files which included a schedule of intended modifications to the Draft Map which would appear on the Draft Modification Map. Under ‘Parish of Compton Bishop’ the schedule reads;

“Add 2 new F.Ps and 1 new B.R. Amend routes of F.P. 15/18 and B.R. 15/6. Redesignate F.Ps 15/1 and 15/6 as CRFs.”

The notice states that CRF means “road used as a public path” viz: either as a footpath or bridleway. Given what is shown on the draft modification map the re-designation clearly refers to the route now recorded as AX 15/1/1 and not to the application route under consideration here.

4.6.8 Summary of Counter Objections to the Draft Modification Map No appendix.

Although a summary of counter-objections to the Draft Modification Map and Statement for this area exists, no objection relating to the application route was found within it.

4.6.9 Provisional Map. Appendix: 17

The provisional map shows footpath AX 15/1 in purple, running from point K on Barton Road in an easterly direction but approximately 20 metres south of route XY on the southern side of the field boundary, before crossing onto Crook Peak and turning north at point M.

4.6.10 Definitive Map. Appendix: 18

The Definitive Map shows a footpath in purple ink labelled 15/1 running east from point X on Barton Road to point Y at which point it crosses the field boundary onto Crook Peak and turns immediately in a northerly direction, continuing generally north on the undisputed line before connecting with other rights of way.

4.6.11 Definitive Statement

The Definitive Statement records AX 15/1 as running from Barton Road to the County road just south of North Hill Quarry. The description reads “THE PATH IS A F.P. & B.R. IT STARTS AT Barton Road at kissing gate and passes through the grounds of Webbington House to Crook Peak Common at wicket gate and thence north to join bridleway 6, after which it continues as a bridleway northwards to the county road just south of North Hill Quarry.”

4.6.12 Description and interpretation of evidence

The Parish Survey, Draft Map and Definitive Map show the same route (XY) and the Definitive Map is definitive of what it shows. Read in isolation, the Parish Survey Card and Definitive Statement might refer to any route under consideration here as they all run from Barton Road, cross some part of the grounds of the Webbington Hotel, and carry on over Crook Peak. However, both the card and statement record a K.G. (kissing gate) at the Barton Road end, and a W.G. (wicket gate) at the Crook Peak end. The sketch map provided by the parish council also indicates a kissing gate at Barton Road and another gate (possibly ‘swing gate’) at Crook Peak. This is significant in relation to the physical evidence (discussed in section 5).

The route shown on the Provisional Map is likely to be a drafting error as no relevant objections, counter objections or changes on the Draft Modification Map were recorded and there would therefore be no reason to show the route differently on the Provisional Map to the way it was shown on the Draft Map.

4.7 Proposed Ballroom Extension. Webbington Hotel and Country Club. June 1973. SWHT reference: A\BUG/1/28/72 Appendix: 19 4.7.1 Description and interpretation of evidence The plan, drawn at a scale of 1/8th of an inch to 1 foot, was produced by Michael J. Marsh and Partners, Chartered Architects and Surveyors, presumably in preparation for a planning application or design for a new building. It shows a detailed drawing of the building, with an inset location plan.

Although the words ‘FOOT PATH’ appear to the immediate west of the hotel on the detailed plan, this almost certainly doesn’t refer to any kind of public footpath, but to a walkway or pavement as this area forms part of a paved area raised above the level of the grounds, apparently some form of veranda accessed by steps.

The location plan shows no feature which might be a public right of way over any of the routes being considered. However, it does show the drive or track over which part of route AB runs from the east of Webbington Hotel’s drive to point B. Other than confirming the physical existence of some of the relevant features in 1973, this plan is of no assistance to the investigation.

4.8 Compton Bishop Parish Council 4.8.1 Compton Bishop Parish Council Minutes 1905 - 1906 SWHT reference: D/PC/com.b/1/2/1 Appendix: 20

At a Parish Council meeting on 13/10/1905 Herman Tiarks requested permission to divert a path at Webbington from OS field no.404 to field no.388. The location of those fields can be seen on the 25 inch Ordnance Survey of 1903 (see appendix 8).

At a meeting on 22nd January 1906 a plan of the altered path was submitted and the Parish Council approved it. It was reported that notices of the alteration had been posted at the church door and at Cross on 23rd December 1905. (No copy of this plan has been found).

At a meeting on 15th March 1906 the proposal to allow the diversion of the path from field 404 to field 388 was unanimously confirmed.

April 18th 1906, “The Clerk reported having sent a copy of the confirmed resolution to divert the path from No 404 to No 388 Government Survey map Mr H A Tiarks fields at Webbington to Mr JH Powell, Solicitors, Banwell4”.

4.8.2 Compton Bishop Parish Council Minutes, extracts from between 18/09/1950 and 01/03/1984. Appendix: 21

Copies and Transcript Supplied by Compton Bishop Parish Council.

Minutes for 12th April 1961 state “It was requested that The Clerk to the Parish Council should write to R.D.C. regarding the gate to the public footpath and right of way just above Webbington House on Barton Road which is badly in need of repair”.

The rest of the transcript gives details of the process by which the Parish Council carried out the survey of footpaths in the 1950s and 1960’s, and other matters related to footpaths up to 1984, none of which are of assistance in the case.

4 John Hungerford Powell, Solicitor, late of Banwell, died 7th October 1929 (The London Gazette, 15/11/1929, https://www.thegazette.co.uk/London/issue/33552/page/7415/data.pdf). No records relating to his business have been found.

4.8.3 Compton Bishop Parish Council Minutes 1971 – 1974. SWHT reference: D/PC/com.b/1/2/3 Appendix: 22

Although there are a number of references to work to be done to footpath 15/1, most are of no assistance in determining which, if any, of the routes under consideration here were being discussed.

However, on the 28th September 1973 the minutes record that “The Chairman opened the discussion saying he had, with Cllr. Wells, walked footpath No. 1/15 Webbington Country Club, off the Barton Road to the Hill Entrance. It was found that a considerable amount of work would have to be carried out here.” The parish clerk was then instructed to “obtain an estimate for the clearance of the top and by Mr Southwood’s bungalow”. The property now known as Jacobs Fold near point B was previously a bungalow (see appendix 2), and is the only likely bungalow to which this could be a reference. The description at the beginning of the minute makes it clear that it is the section between Barton Road and the entrance to the Hill that is being discussed. Although the eastern end of route XY might be described as being by the bungalow, the description is more compatible with route AB which actually runs adjacent to the bungalow. Furthermore, the minutes refer to walkers coming from the hill into Mr Southwood’s garden (the bungalow) because the route was blocked. Since AB certainly was a physical route on the ground it seems unlikely that walkers finding XY blocked would choose to use a private garden, rather than a path that was in physical existence. It is therefore more likely that this minute is referring to route AB. The minutes of the 11th January 1974 record a signpost being erected on the “Webbington Path, leading the Crooks Peak”. Although this doesn’t in itself give the precise location of the path, given the minutes of September 1973 which suggests the route the parish council intended to clear was AB, it is highly likely a signpost was installed on route AB by January 1974. It would make no sense for the parish council to clear one route and signpost another, unless there were two routes leading from Barton Road to Crook Peak, and if there was another nearby route available it seems unlikely walkers would have been using a neighbouring garden when they found AB blocked.

4.8.4 Compton Bishop Parish Council Record Sheet for footpath AX 15/1. Appendix: 23

Supplied by Compton Bishop Parish Council.

The front of this card describes the route in the same way as the Definitive Statement. The reverse of the card contains the following relevant notes relating to repairs (see appendix 23 for the layout of the card).

(11) REPAIRS (13) REMARKS DATE FILE NO. June 1968 Only to entrance clear; impassable Sept 1971 Entrances opened up, cleared.

Oct 1972 Mendip Society instructed to clear opening to Hill.

This would suggest that in 1968 the route which the parish council considered to be footpath AX15/1 was partially blocked, that in 1971 both ‘entrances’ were cleared, and that in 1972 the entrance to the Hill (the eastern end of the path) needed work to open it up.

4.8.5 Description and interpretation of evidence

The parish council minutes of 1905 – 1906 indicate that a path may have diverted from field 404 to field 388. Route LM, which appears as a feature on OS maps of 1903 and 1904, ran through field number 404 (25 inch map) and no other feature which might be a public footpath is shown in this field. Route KM (shown on the Provisional Map) also runs through field 404, but no feature corresponding with this route is shown on OS mapping. It is therefore highly likely that the proposed diversion being considered in 1905-06 related to route LM.

Both route XY and AB are in the field numbered 388, and therefore either could be the route onto which it was proposed to divert the footpath.

The minutes of 12th April 1961 clearly refer to a gate at the Barton Road end of the path.

The minutes of September 1973 indicate that part of the route which the parish council was attempting to maintain ran from Barton Road to the entrance to Crook Peak Common and was adjacent to a bungalow. Part of route AB runs to the immediate south of Jacobs Fold (previously The Bungalow) but none of the other routes leading from Barton Road to Crooks Peak are adjacent to this property. These minutes therefore strongly suggest that the route the parish council was maintaining in the early 1970s was AB, and that a signpost was installed on this route by January 1974. At the time of the site visit in December 2016 a cast iron signpost reading ‘Public Footpath’ was in place at point A and B, but it is unknown when these were installed.

Overall, the parish council records either do not indicate the precise route of AX15/1, or indicate the route in use was AB.

4.9 Parish File for Compton Bishop (held by Somerset County Council (SCC) and relating to PROW issues). Appendix: 24 4.9.1 Description and Interpretation of the evidence

A letter dated 17/01/1974 from Compton Bishop Parish Council to SCC regarding the erection of signs on rights of way includes the following description;

“ Webbington. This path, off the Barton Road goes over the Country Club

Drive, and over the Stile, continues as a Bridleway to the Hill, the Whole of this has been completely opened up by the Council.”

All the routes under consideration here run from Barton Road and over some part of the Webbington House / Hotel drive. However, it is known from the parish council minutes (see 4.8.3) that the route opened up in the early 1970s was probably AB. It is therefore likely that this is referring to AB and indicates a stile was present at B, although it does not indicate the precise line of the path when read in isolation.

4.10 Aerial and Historic Photographs 4.10.1 Aerial photograph 1946 Appendix: 25

A route on the ground from A almost all the way to B is clearly visible on these photographs, running between raised banks or hedges from the eastern side of the Webbington House Hotel drive, although it is not possible to discern details such as gates and stiles. Point B itself is obscured by trees. No similar route can be seen over XY, KM or LM although much of these routes are also obscured by trees or shadows. The quality of the image makes it difficult to be certain, but it is likely that route LM was obstructed by the vegetation and boundaries visible in the image, and KM and XY may also have been obstructed by a hedge or shrubs visible on the east side of the drive to the Webbington House. This photograph is therefore very good evidence that XY was a physically available route in 1946, and some evidence against XY, KM or LM being physically available at the same time. 4.10.2 Aerial Photograph Circa 1947 – 1950s. Appendix: 26 Supplied by User 6 (dated 1947) and Landowner F (dated 1950s), but apparently copies of the same photograph.

This photograph also shows a clear gap in the hedge at point A (again, it is not possible to see whether or not a gate is present). It also shows a short section of the route between point A and The Webbington House Drive partly obscured by trees, and a well defined route from the east of the Webbington House drive to point B, although apparently narrower than the route visible on the 1965 photograph (see paragraph 4.10.5). Again, point B is obscured by shadows and it is not possible to see the means of accessing Crook Peak.

Although it may have been possible to walk the majority of route XY no physical feature can be seen defining it on the ground and probable obstructions in the form of mature vegetation, particularly on the east side of Webbington House drive, can be seen. Overall, therefore, this photograph weighs strongly in favour of the physical existence of AB and against XY being a useable route when this photograph was taken.

4.10.3 Photographs of Webbington House taken in circa 1960 held by The Francis Frith Collection, reference c147018 and C147019.

These photographs have not been reproduced in the appendices due to

copyright restrictions. They can be viewed at https://www.francisfrith.com/compton-bishop/compton-bishop- webbington-country-club-and-guest-house-c1960_c147018 and https://www.francisfrith.com/compton-bishop/compton-bishop- webbington-country-club-and-guest-house-c1960_c147019.

4.10.4 Description and interpretation of evidence

Photograph C147018 appears to have been taken from Barton Road, near the entrance to Webbington Farm, looking up at Webbington House.

Photograph C147019 was probably taken from Sevier / Webbington Road approximately 40 metres west of the junction with Barton Road (the central chimney and gable end wall of Webbington Farm can be seen in the far left of the photograph), looking east north east at Webbington House. Although the photograph would probably show route LM, the resolution is too low to make out any feature useful to this investigation.

Due to the difficulty in relating the features shown in the photograph to those which exist on the ground today (Webbington House has been substantially altered) and therefore in determining whether or not they show point L or any other relevant feature, and the low resolution, these images are ultimately unhelpful to this investigation.

4.10.5 Oblique Aerial Photograph, circa 1965. SWHT reference: A/DXC/2/37/3 Appendix: 27

An oblique photograph, taken from the west of Barton Road, looking east towards Crook Peak. Barton Road is clearly visible, as is a gap in the hedge on the east side of Barton Road at point A although it is not possible to see if a gate is present or not. The route is visible between point A and the Webbington House Drive, although it is not very clearly defined. From the east of the drive the route is clearly defined with hedge or fence to either side, although point B itself is obscured by shadow and it is not possible to see the means of access to Crook Peak.

The area over which route XY runs is visible in the photograph. Although much of the route would have been walkable, there is no clearly defined path visible on the ground, and possible obstructions in the form of a hedge or bank at point X, a fence (suggested by posts, the wire is not visible in the photograph and there may, therefore, have been a gap) on the west side of the Webbington House Drive and a bank on the east side of the Webbington House Drive. No physical feature which corresponds with route L-M can be seen in the photograph, part of which would have run diagonally across the car park and gardens of Webbington Hotel which are visible in the photograph.

Overall, therefore, this photograph weighs against XY being physically accessible in 1965, and strongly in favour of the physical existence of a defined route over AB.

4.11 Land Registry Records. Appendix: 28

4.11.1 Description and Interpretation of the Evidence.

Land ownership can be seen at appendix 5. The title plans and registers do not, for the most part, give additional information of relevance to this investigation. However, title number ST251429 refers to a deed of gift dated 27 April 1955. That deed provides for a private right of way over the Webbington House Drive. The plan accompanying the deed clearly shows the whole of route AB between solid lines, and labelled to the east of Webbington House drive “BRIDLE PATH”.

Although the route of XY (the definitive line) and KM is covered by the plan, neither is shown on the plan. However, as no physical feature corresponds with XY or KM there would not necessarily have been a reason to label them as public rights of way even if the landowner acknowledged their existence.

The land over which routes AB, XY and KM run was not included in the transfer, and the primary purpose of the document was not to record public rights. Nevertheless, This document would have been created on the instructions of the landowner, Herman Tiarks, and presumably carefully checked either by him or his representative as a legal document.

The same title also refers to a conveyance of September 1983 and a private right of way over the part of route AB that runs from the east of the Webbington House drive to The Bungalow. The conveyance states that “part of the width of which said access way comprises the bridal path shown on the said plan and further parts of which said access way comprise (by way of widening the original bridal path) narrow strips of land on either side thereof” (sic). This again suggests that the landowner in 1983 acknowledged the existence of a public right of way (the bridle path) over part of route AB, in addition to the private access rights being described.

Both of these documents (the 1955 Deed and the 1983 Conveyance) are silent as to the existence of public rights over XY and KM. However they are in favour of public rights over route AB as they show that the landowners considered it to be a bridleway.

4.12 Other sources of Primary Documentary Evidence which either did not cover the relevant area or did show the claimed route but do not assist in determining the status.

A Plan of Tenements Lands and Grounds Exchanged within the Parish of Compton Bishop in the County of Somerset 1779 (Q/RDE/117) Day and Masters map, 1782 Greenwood’s map, 1822 OS Map Sheet 280, 1 inch : 1 mile, 1898 Highway Road Records held by the County Council (1929, 1930s and 1950s) Ordnance Survey Popular Edition, 1 inch : 1 mile, 1946 Compton Bishop Parish Survey Queries Card circa 1950. OS Map Sheet 165, 7th Series, 1 inch : 1 mile, 1958 OS Map 1:25,000, 1960

Section 31 Statutory Declarations

5. Physical Evidence

5.1 A number of physical features which existed on the ground at the time of the site visits in December 2016 and July 2017 are of relevance to this investigation.

5.2 At point A there is a rectangular sectioned metal pole supporting a green and white ‘Public Footpath’ finger post sign with a white arrow pointing towards B. Next to this is a stone gate post, rectangular sectioned with a decorative quatrefoil upper face, with an iron hinge pin still in place (see appendix 2 i – iv). The gate (which is not present) which would have hung from this hinge would have shut across route A-B at point A. No corresponding post for a latch was present, meaning it is not possible to determine the original width of the gate.

5.3 At point B (see appendix 3 v – vii) there is a similar green and white ‘Public Footpath’ sign on the east side of the fence, pointing towards point A. A wooden stile provides a means of crossing the fence at B, although the stile is now obstructed by debris. To the immediate north of the stile in line with the fence which runs north-south is a second rectangular sectioned stone gate post with a rounded top. An iron hinge pin similar to that on the stone post at A protrudes from the north face of the post, which would have supported a gate which closed in line with the current fence, immediately north of the stile and adjacent to the southern boundary wall of Jacobs Fold. No corresponding post for a latch was observed which means the width of the original gate cannot be determined.

5.4 Although it is not possible to date the stone gate posts closely, they are of some antiquity and do not appear to have been moved recently. Although similar gate posts of a corresponding style have not been found elsewhere at the property, both would be consistent with 19th or early 20th century architecture and the overall style of Webbington House.

5.5 No physical feature corresponding with route X-Y (the definitive line), KM, LM or any other potential route was visible on the ground. A steep, high bank rising from the eastern side of Barton Road and now covered in mature vegetation, would make access at X, K or L extremely difficult. Although the vegetation may have been clear in the past, the bank alone would have been an effective obstruction to the majority of pedestrians, and allowed access only with difficulty and risk for those who were able to climb it. Historic public footpaths are not necessarily on the most convenient or easily accessible line available today, but it seems unlikely the Parish Council would have approved the diversion of a footpath onto such an inaccessible route in 1906.

5.6 Overall, therefore, the physical evidence is in favour of public rights over route AB, or at least of AB having been physically accessible from the early 20th century (the gates) and having the reputation of a public footpath for some decades (the signposts). There are no physical features supporting a

route over XY, KM or LM, and access to these routes from Barton Road is physically obstructed.

6. User Evidence

6.1 Eight User Evidence Forms (UEFs) were returned in response to the County Council’s consultation relating to this application. These users have been allocated numbers 1 to 8. None gave evidence that they had used route XY, KM or LM. A graphic summary of the user evidence can be found at appendix 29. Please note that user 5 used the temporary alternative route, but did not give dates and their use of this route is therefore not indicated at appendix 29. Some other dates indicated in appendix 29 have had to be deduced or estimated from other details provided.

6.2 The table below summarises the relevant evidence. The alternative route/s identified by users 1,2,5 and 6 all correspond to the approximate route of the temporary alternative path which was available between circa 2007 and 2014, the route of which is shown on appendix 4. To use the temporary alternative route users would have used route AB from Barton Road to the Webbington Hotel rear drive before diverging onto the alternative route.

User Route used Dates and Details 1 AB 1960’s – circa 2007. Family member confirmed A-B since 1930s. Alternative Circa 2007 - 2014 2 Alternative 2002 - 2015 3 AB 1974 - 2014 4 AB Mid 1990s to 2014. No memory of a public footpath on X-Y. 5 AB 1996 - 2015 Alternative “For a short period the path was rerouted into a field via a stile approx. 10’ away, and parallel to the road to ‘B’.” Led groups of 20 – 30 people over the route AB on approximately 10 occasions in the last 10 years. [ Replied to consultation 23/08/17] 6 AB 1980 – 2014 Alternative “There was an alternative permissive footpath from about 2007/8 until 2014. However I never used it preferring the historic route A-B.” 7 AB 1987 – 2005 approx. 8 AB 1979 - 2013

6.3 User 1 believed they had been given permission to use the route but also that it was a public footpath. User 2 – 8 had not sought or been given permission, nor did they report having a private right to use the route they identified.

6.4 User 1 refers to a gate/stile being present at B for as long as they can remember having used the route since the 1960s.

6.5 In addition to those users who filled in a UEF, 8 users responded to the consultation via letter or email. These users have been allocated numbers 9 to 16. User 9, 10, 14, 15 and 16 were sent a UEF to fill in, but did not return one. None of these users included a map, although some referred to points X, Y, A and B and therefore presumably had sight of the consultation plan (appendix 1). A letter from User 9 was also supplied by landowner F (see section 6.6 below).

6.6 The information included in user 13, 14 and 15’s responses was insufficiently detailed to be of assistance in this investigation.

User Evidence (Summarised) 9 From letter supplied by landowner F: Used since 1945 with family to access Crook Peak. Described route as 3 – 4ft wide with railings adjacent to The Bungalow.

From letter sent directly to SCC: Used this path [AX 15/1] for about 60 years. Worked in the Webbington gardens in the fifties. No footpath X-Y.

10 Used route AB since 1975 and not XY Used path regularly with groups of 40 people for nearly 30 years up to 2003 as part of a circular route. Must have taken more than 1000 people on that route.

11 Started using the route 16 years ago. Accessed Crook Peak via the route marked A-B on the map.

“The path takes you through a small wooded copse along side Barton Road and then straight up an old driveway and over a marked stile at the foot of woods surrounding the base of Crooks Peak.”

“Several years ago… a sign was put up at the entrance to the driveway saying something like “Private Property. No access to the Peak via this drive”. Shortly after, a new style [sic] appeared on Cross Lane5 which suggested that you could cross the fields (Marked ROUTE X-Y on your map) to a new stile at Y. …I don’t recognise Route X-Y on your map, to my knowledge there has never been a path across the sheep field from Barton Road and the stile on Cross Lane is much closer to Route A-B….I believe ROUTE A-B was very much the original path used by all the locals here.”

[ Replied to consultation 16/08/2017 ]. 12 “…as far as I can remember the footpath has always run from point A

5 Cross Lane is located in a different part of Compton Bishop and could not be relevant to this investigation. Presumably the respondent intended to refer to Barton Road.

to point B. I have no recollection of there ever having been a footpath from point X to point Y.”

User 12 was familiar with the route from the mid / late 1960s.

16 User 16 described the temporary alternative route as a ‘diversion’ and referred to the stile being blocked and the road way as being the obvious route to take.

6.7 Of the 16 people who provided user evidence 116 had used AB, none recalled using XY and 5 users7 explicitly stated they had either never known a path over XY or that they had no recollection of there ever having been a path at XY. None referred to routes corresponding with LM or KM.

6.8 The earliest direct evidence for the use of AB is in 1945, with one third hand account of use as far back as the 1930s. Two landowners or adjacent landowners (F and G, see 7.1) also recall AB being the route they have always known as a public right of way, and that they have never known a public right of way to run over XY, although other landowners have a different opinion (see 7.1, landowner E).

6.9 Landowner F supplied two letters from third parties giving details of their knowledge of the route, both addressed ‘To whom it may concern’. One was from user 9, and the relevant details are summarised at 6.6, above. The other also described route AB as a public footpath since before 1959, about 4 feet wide, with railings to the north and a hedge to the south.

6.10 The user evidence and recollections of two adjacent landowners, whilst they must be considered with all the other available evidence, is very strongly supportive of route AB having been the route used since the later 1940s, and provides some evidence against the use of XY from the late 1950s onwards.

7. Landowner Evidence

7.1 This section of the report includes information provided by the landowners. A plan showing the extent of the land which they each own can be found at appendix 5.

Landowner and response No response was received from Landowner A, B, C or D.

Landowner E: Appendix 30.

6 This includes User 16. They are probably referring to route AB but their evidence is not detailed, and there is therefore an element of uncertainty meaning less weight can be given to their evidence as use of route AB. 7 6, 9, 10, 11 and 12

Landowner E submitted a covering letter and 8 plans, most of which are either discussed elsewhere in the report, or contain the same information as other documents discussed elsewhere in the report.

Plan 0243 shows the route which landowner E believes to be the correct line of footpath AX15/1. The route they have drawn runs from approximately point Y in a south-westerly direction terminating at the rear drive to the Webbington Hotel (the original drive to Webbington House) at a point approximately 35 metres east of point K, which they have labelled ‘”OLD GATE NO LONGER IN PLACE”.

Plan 0244A shows an extract of an OS map, apparently the 1884 6 inch to 1 mile (although landowner E refers to it as an 1885 map) which is discussed at paragraph 4.4.3. Landowner E has added annotations pointing out specific features including the route shown on the map which corresponds with L – M (see appendix 30), and at M “OLD GATE NO LONGER IN PLACE”.

On plan 0249 landowner E have hatched their land in blue.

Landowner E states that they do not agree that the footpath should or ever has run from point A to B. Landowner E states that route AB has never been recorded anywhere, is unsafe and incorrect.

Landowner F:

Landowner F made a number of submissions, both prior to and during the consultation process.

Landowner F states that in the 1950s route A-B was not in thier family’s ownership, but that the majority of the land adjacent to the route came into their family’s ownership at that time (Land Registry references ST64283, ST251429 and ST 286067), although some has since been sold.

They states that no public right of way has ever crossed the land held by their family, except the part of route AB to the east of the Webbington House drive which was widened by taking in a strip of land to the south to allow vehicle access for their family to reach their land. They also state that their family have maintained route A-B for over 60 years.

Landowner F states that there has never existed in their lifetime, nor to their knowledge has there ever been, a public right of way over route X-Y.

Most of the documents or information submitted by landowner F are either discussed elsewhere in the report, or contain the same information as other documents discussed elsewhere in the report.

Document 5 is an e-mail from Chris East (SCC Rights of Way) dated 25 September 2014 summarising the situation at the time and stating that it was not possible to walk the definitive line (X-Y) and that the definitive line of the path had been mapped incorrectly.

Document 6 is a letter dated 2 April 2016 from User 9 (summarised at 6.6).

Document 7 is a letter dated 31 March 2016 which briefly describes route AB. The author describes the original public footpath as being about four feet wide, before they widened it by about 6 feet between the Webbington House drive and The Bungalow [now Jacobs Fold] on the instructions of the landowner in or about 1959.

Landowner G:

Landowner G state they have seen the submissions made by landowner F, and that they endorse and concur with everything he has stated in thier letter of 1 August insofar as matters concern contemporaneous ownership, events, locations, drawings and documents current at any particular time over the last 40 years.

Landowner G state that AX15/1 has always (until the last three years) run along route A-B, that it has always been walled / fenced (until the last three years) on both sides, and that to the best of their knowledge, no adjoining landowners hold title to the strip of land over which A-B runs except as described by Landowner F.

Landowner G states that in their lifetime, no PROW [Public Right Of Way] has ever run over route X-Y, or anywhere else on the land in which they have an interest.

7.2 Comments on the landowner evidence.

The documentary evidence submitted by the landowners or adjacent landowners is either discussed elsewhere in the report, or duplicates information contained in other documents discussed elsewhere in the report. The personal recollections relating to the routes under consideration here are considered with the user evidence.

8. Consultations and other submissions

8.1 Consultations regarding the claimed route were sent out to all landowners and relevant local and national user group organisations in July 2017. The table below shows who was consulted and gives brief details of replies that were received.

Consultee and response Compton Bishop Parish Council “The route between point A and B is the locally accepted original route of AX15/1 and The Parish Council records would support this.”

The parish council submitted a number of documents purporting to show that the true line of AX15/1 is AB. Each of those documents is either described

and discussed above, or contain the same information as other documents discussed and described above.

Sedgemoor Bridleways Association

No objections as long as the relevant historic sources have been consulted. A local representative was to give a further response if necessary, but no further response was received.

Sedgemoor District Council

No evidence to submit. Forwarded to District Councillors.

Sedgemoor Area Highways (Somerset County Council)

No evidence to submit.

The Mendip Society

The Mendip Society detailed efforts they had made or intended to make to publicise the consultation process and encourage responses. No evidence was submitted.

Sedgemoor South Bridleways Association

The respondent was not familiar with the area, and stated their intention of forwarding the enquiry to Bridleways Officers in Avon in case they were able to assist. No comments were received from bridleway user groups in Avon.

The respondent considered the possability that the route was a bridleway but later decided to make no further comments.

Local Member (Brent)

No evidence to add, but wished to be kept informed.

User 6.

In addition to evidence of their own use, user 6 submitted an aerial photograph, discussed at 4.10.2.

User 6 submitted other evidence which is either discussed elsewhere in the report, or contained the same information as other documents discussed elsewhere in the report.

8.2 No response was received from the following organisations:

The Rambler’s Association, Area Secretary The Rambler’s Association

Sedgemoor Ramblers British Horse Society, County Access and Bridleways Officer British Horse Society All Wheels Drive Club Open Spaces Society Auto Cycle Union Cycling UK Natural England British Driving Society Club Zulu Trail Riders Fellowship

8.3 A draft version of this report was circulated to interested parties on 12 March 2018 and comments were invited. Those who responded either had no comment to make, or were supportive of the recommendation in the draft report and made no substantive comments which needed to be addressed. No additional evidence or information was submitted.

9. Analysis of the Evidence

9.1 The DMS provides conclusive evidence of what it records, and the presumption must be that the DMS is correct. For evidence to be sufficient to lead to the removal of a route from the DMS; - there must be new evidence (which must be considered with all the available evidence) - the evidence must be sufficient to displace the presumption that the DMS is correct - the evidence must be cogent8.

9.2 In this case, new evidence has been discovered in the form of the deed of gift dated 1955 (see XX). It is unlikely that this document, which refers to route AB as a bridle path, was available when the Definitive Map was being prepared, as it would have been in private hands. The sufficiency and cogency of the evidence is discussed further below.

9.3 Land ownership

9.3.1 A useful history of the life of Herman Tiarks can be found on the ‘Kemnal Road, Chislehurst, Kent’9 website. The main points of relevance to this investigation are that Herman Tiarks lived briefly at Webbington Farm until he had Webbington House built in 1907 [or 1908] where he lived until his death on 20 December 195510. He left ‘much’ of his property to his housekeeper, Gwen Southwood.

9.3.2 The 1910 Finance Act documents do not record any public right of way in either of the relevant hereditaments, and therefore provide no direct weight in terms of the existence of public rights. They do, however, show that

8 Rights of Way Circular (1/09). Guidance for Local Authorities (October 2009, Version 2), 9 http://www.kemnal-road.org.uk/Pages/People/HermanTiarks.html# 10 https://www.wikitree.com/genealogy/Tiarks-Family-Tree-9

in 1910 Herman Tiarks was considered to be the owner of the whole of both hereditaments through which all the routes for which evidence has been found during this investigation (AB, XY, KM and ML) run.

9.3.3 The part of route AB to the east of Webbington House drive is not registered with the Land Registry, and it is unknown whether Herman Tiarks sold or transferred this land before his death, or if not, to whom it was transferred after his death. The current owner of this unregistered strip of land is therefore unknown. However, the ownership of the land is almost completely irrelevant to this investigation as knowing the current owner of the land over which any of the routes under consideration here runs does not assist in determining whether the recorded definitive line of AX 15/1 is incorrect, and if it is, in determining the correct location of the right of way.

9.4 Diversion

9.4.1 In 1905 the Parish Council approved Herman Tiarks request to divert a footpath from field 404 to field 388 (see appendix 8 for field locations), presumably in preparation for building Webbington House. While the Parish Council’s consent was needed for such a diversion, the final decision lay with the Quarter Session. Although no record of the diversion has been found in the Quarter Sessions, a note on the Parish Survey Card of 1950 suggests that the diversion was successful.

9.4.2 This would be consistent with other maps produced as evidence. OS maps produced prior to Webbington House being built in 1907 (see paragraph 4.4) show none of the features associated with Webbington House including;

 The Lodge  the drive which formed the main entrance to Webbington House and is now the rear entrance to The Webbington Hotel  Jacobs Fold, or a structure on the same site  Any physical feature corresponding with route AB, XY or KM  Webbington House itself

9.4.3 They do however show a feature along the route of LM in field 404. Similarly, whilst not identifying its status, the tithe map shows route LM was physically accessible in 1839.

9.4.4 The above would suggest that prior to 1906 a physical route ran over LM through field number 404 and that in 1906 a footpath was diverted from field 404 into field 388. After 1906 there is no evidence of a physical route in field 404 on route LM or anywhere else. Instead a physical route appears in field 388 from at least 1946 (see 4.10.1) and public rights from at least the time of the parish survey (see 4.6.2 - 3). Therefore, although there is no conclusive proof that the diversion was completed by the Quarter Sessions, when looked at as a whole the rest of the evidence strongly suggests that it was.

9.5 Route LM

9.5.1 As described above, there is excellent evidence that route LM was in physical existence in 1884 and 1902 from OS maps. There is good evidence in the form of parish council minutes that it was a public footpath until 1906 when it was diverted, and from the parish survey card that the route to which it was diverted became AX15/1 when numbers were assigned to the public footpaths during the preparation of the Definitive Map. No user evidence has been submitted relating to route LM, and no other evidence suggesting LM has been re-dedicated has been found.

9.5.2 It therefore seems unlikely that route LM is a public footpath today.

9.6 Route XY

9.6.1 No evidence has been found which shows a physical feature consistent with a public right of way on route XY, either pre or post 1906. A footpath through fields might not be delineated by physical features (hedge or fence, different surface) and in which case may not appear on maps. However, aerial photographs dated between circa 1946 and 1965 show probable obstructions which would have made using route XY difficult. A steep, high bank which still exists on the east side of Barton Road makes access at X impractical, and is consistent with the feature in the aerial photographs. Although it is possible for a route to be drastically altered in a relatively short space of time (erection of fences, landscaping, planting or removal of vegetation) these photographs are sufficiently close to the date of the preparation of the Definitive Map to suggest route XY was unlikely to have been physically available for use at that time. This is inconsistent with the parish survey which recorded the route as being unobstructed.

9.6.2 When the DMS was prepared there was an extensive consultation process, but no objections were made to the Draft Map which showed the route currently recorded on the Definitive Map (XY). However, it would have been particularly difficult to relate the Draft and Definitive Maps to features on the ground in this case as both used OS base mapping surveyed in circa 1902, which did not show any of the features associated with Webbington House over or past which the routes under consideration here run. The base mapping was therefore considerably different to the features on the ground at the time.

9.6.3 No user evidence supports public rights over XY, although it would be understandably difficult to find users who were familiar with the route over 50 years ago. In any case, lack of use does not lead to a public right of way ceasing to exist.

9.7 Route KM

9.7.1 Other than the Provisional Map, there is no supporting evidence for KM being a public right of way. AX15/1 is shown XY on the draft map.

There appear to have been no objections to this and the route is not shown on the Draft Modification Map. Therefore, the route should not have been shown differently on the Provisional Map. Furthermore, both before and after the Provisional Map the route is shown in the same way – XY – on the Draft Map and Definitive Map. The marking of this route on the Provisional Map was therefore almost certainly an error.

9.8 Route AB

9.8.1 Parish Council minutes of 1905 and 1906 show that a footpath was probably diverted into field 388, through which AB and XY run.

9.8.2 Arial photographs taken 1946, 1947 – 1950s and 1965 show AB physically existed on the ground as a defined route of much the same character as exists today, although the width of part of the route may have changed. A route may physically exist as an enclosed or defined path without having public rights over it, but it does show the route could have been physically used.

9.8.3 In addition to the known physical existence of AB there is also positive evidence of the existence of public rights over it. The deed of gift dated 27/04/1955 refers to at least part of AB as a bridleway. This suggests the landowner considered it to be a public right of way. Similarly, the Land Registry record the same part of route AB being referred to as a bridleway in a conveyance of 1983 when the land was in different ownership. This is the only evidence for higher rights than that of a footpath over AB (or any other route under consideration here), and is not sufficient on its own for higher rights to be reasonably alleged to exist over the route. Furthermore, no evidence has been found that the route was accepted by the public as a bridleway. Nevertheless, the deed of gift and 1983 conveyance do seem to be supportive of the conclusion that the landowner considered AB to be a public highway.

9.8.4 The Parish Survey and the Definitive Statement record a kissing gate at the Barton Road end of AX15/1, and a wicket gate at the Crook Peak end. Parish Council minutes of 12 April 1961 refer to the need to repair the gate at the Barton Road end of the path. Although Landowner E has referred to a gate on the route of LM the only evidence for gates on any of the routes considered here was found on route AB in the form of a stone gate post at point A and point B, both of which would have been broadly consistent with the architectural style and date of Webbington House. The gates themselves are no longer present and it is therefore not possible to tell what type of gate they were, but the position would be compatible with the description of the gates in the Definitive Statement. Furthermore, if the footpath was diverted in 1906 to accommodate the construction of Webbington House then it would be reasonable to expect any furniture (such as gates) which are consistent with the overall style of construction of the new property to have been installed at about the time the new route was created. Although private access from Webbington House to Crook Peak may have been desirable, the location of AB would not be a convenient means of providing such access. AB would

have been convenient private access from Barton Road to The Bungalow (now Jacobs Fold), however, it would appear from the Finance Act documents that Webbington House and therefore presumably the gates at A and B predate The Bungalow. It would therefore appear that the most likely reason for gates to have been installed at these points would have been to allow public, rather than solely private, access.

9.8.5 The presence of a kissing gate is further evidence against bridleway rights (as referred to in the deed of gift) as this would have been a very unsuitable limitation for a bridleway.

9.8.6 The gate posts are also relevant in relation to the Definitive Statement. In most respects, the Definitive Statement can be read as compatible with the Definitive Map. Both show or describe a route which runs from Barton Road, through the grounds of Webbington House to Crook Peak Common. These details would be compatible with all the routes under consideration in this report. However, the statement clearly records a kissing gate at the Barton Road end and a wicket gate at the boundary with Crook Peak. While there may have been such gates on XY, there is no evidence of their existence. Furthermore, it would have been difficult to install a useable kissing gate at point X on Barton Road due to the steepness of the bank at that location. On the other hand there is evidence of there having been structures consistent with those referred to in the Definitive Statement at both points A and B. Therefore, while the Definitive Statement is not incompatible with the route shown on the Definitive Map (i.e. XY) it would appear to be a closer description of AB and is therefore consistent with the theory that XY was a drafting error and that the intention had been to draw AB.

9.8.7 Parish Council minutes show that it is likely that at least part of route AB was being maintained as a public right of way by the Parish Council in 1973, and that this route was therefore probably signposted by the parish council by January 1974. ‘Public Footpath’ signposts at A and B were in place in 2016 and are of a type which might have been installed in the 1970s.

9.8.8 The user evidence and recollections of two of the adjacent landowners is strongly supportive of AB having been the route in use as footpath AX15/1 since at least the early 1970s. The physical characteristics of the route would certainly have made it more desirable for the public to use than XY, KM or LM.

9.8.9 Overall, therefore, there is strong evidence for public footpath rights existing over AB and it is reasonably alleged that such rights exist over this route. There also seems to be sufficient evidence of presumed dedication of route AB at Common Law, and of acceptance of that route by the public.

9.9 Conclusion

9.9.1 It has not been suggested that there is no public footpath connecting Barton Road with the undisputed continuation of AX15/1 and although it is possible for cul-de-sac rights of way to exist it would be highly

unlikely that AX15/1 led south from Crook Peak only to terminate at point B. No evidence has been found which suggests two routes led from point B to Barton Road. The parish council minutes refer to walkers finding the route blocked and accessing the garden of The Bungalow instead. Had an alternative public footpath been available from point B it is unlikely that walkers would choose to enter a private garden. The strong evidence for public rights over route AB is therefore some evidence against public rights over XY.

9.9.2 Collectively the evidence is considered to be cogent and of sufficient substance to displace the presumption that the Definitive Map is correct. The most likely explanation is that the parish council described AB in their survey card and had intended to draw it on the map. However, they were not professional surveyors and the base map showed a lack of contemporaneous features which made the route difficult to depict with any accuracy. The parish council therefore inadvertently drew the wrong line on their survey and this error was copied onto the Definitive Map. For the same reason, the error was not spotted until use of the route was challenged and the line of the Definitive Map was examined more closely.

10. Summary of Conclusions

10.1 The starting position for any case such as this is that the DMS is correct. As mentioned in paragraph 9.1 above evidence of some substance is needed to overturn that presumption.

10.2 There is good evidence that route LM was historically a public footpath but that it was diverted in 1906 into the field through which AB and XY now run. No evidence to show rights have been dedicated or acquired over this route since then has been found.

10.3 There is insufficient evidence to support public rights over KM and the depiction of this route on the Provisional Map is considered a drafting error.

10.4 Other than the Definitive Map and the accompanying preparation documents, there is no evidence to support the conclusion that public rights exist over XY. Furthermore, there is no evidence that it ever existed as a physically defined route on the ground. In fact aerial photographs provide evidence that XY would have been difficult and unattractive to use at the time the DMS was being drawn up.

10.5 It is of course possible that those responsible for the Definitive Map would have been aware of evidence which has since been lost. For example, they may have consulted with local residents who had knowledge of XY having been used over a considerable period of time. However, this argument does not sit well with the description of the route in the parish survey. In that document AX15/1is described as being ‘unobstructed’ which, based on contemporaneous aerial photography, does not appear to have

been an accurate description of XY at the time. It does however accurately describe AB (which as mentioned above did physically exist at the time) raising the possibility that it was this route, rather than XY, which the parish meant to record as a footpath.

10.6 Those undertaking the survey on behalf of the Parish Council were not professional surveys and, given the differences between the features which appeared on the map that they were using and those which must have been on the ground at the time, it is easy to see how such a drafting error might have been made. This argument is further supported by the evidence from both users and some landowners which has been submitted. Whilst few people provided evidence of use of the route as far back as the 1950s when the DMS were being drafted, they do provide evidence that since at least the 1970s, and probably earlier, AB has had the reputation of being a public footpath. No user evidence supports use of XY.

10.7 Importantly there is also significant new evidence which would not have been available to those drafting the DMS. The deed of gift of 1955 (and therefore prior to the drafting of the Definitive Map) is evidence that the owner of land adjacent to AB considered it to be a right of way. Since then the conveyance of 1983 and maintenance and signposting by the parish council have also pointed towards AB having the reputation of a right of way.

10.8 On balance, the evidence shows that prior to 1906 a footpath ran over the route LM. It was diverted in 1906 into OS field number 388. The route of both XY and AB would have run through that field. When the Compton Bishop Parish Council surveyed the rights of way network in the 1950s they marked XY as a footpath. This was eventually copied onto the draft and then definitive map as AX15/1. However, it is suggested that there is sufficient and cogent evidence to suggest that this was a drafting error and that they had meant to record AB.

10.9 There is therefore sufficient evidence to show that, on the balance of probabilities, no right of way exists over route XY, but a public footpath is reasonably alleged to exist over AB.

11. I therefore recommend that:

i. an Order be made, the effect of which would be to add to the Definitive Map and Statement a public footpath between points A and B on appendix 1, and joining with the undisputed line of AX15/1 which continues generally north from point B. ii. an Order be made, the effect of which would be to delete the part of the public footpath known as AX15/1 as shown on the Definitive Map between X, Y and B, shown on appendix 1. iii. if there are no objections to the order, or if any such objections are withdrawn, it be confirmed iv. if objections are maintained to the order it be submitted to the Secretary of State for Environment, Food and Rural Affairs.

12. List of Appendices

Please note that the document reproductions in the appendices are not to scale. The report writer has added the red letters A, B, X, Y, K, M and L present on Appendix 1 and 2 to maps to help the reader identify the sections of the route the document is depicting. Red circles, arrows or lines have also been added to some appendices to indicate the area of the claim where lettering is not appropriate. Maps and plans are orientated north, unless otherwise indicated.

1. Consultation plan, showing route AB and XY. 2. Plan showing route AB, XY, LM and KM, and other relevant features. 3. Photographs taken during the investigation 4. Plan showing the temporary alternative route 5. Land ownership 6. Tithe Map 7. County Series Sheet XVII.14, 25 inch : 1 mile. 1st Edition: Published 1885, surveyed 1884. 8 County Series Sheet XVII.14, 25 inch : 1 mile. 2nd Edition: Published 1903, surveyed 1902 9. County Series Sheet XVII.SW, 6 inch : 1 mile. 1st edition: Published 1884, surveyed 1884 10. County Series Sheet XVII.SW, 6 inch : 1 mile. 2nd editions Published 1904, surveyed 1902 11. Finance Act Working Plan and Valuation Book 12. Parish Survey Date 13. Parish Surevey Map 14. Draft Map of Footpaths 1 and 2 Prepared by Compton Bishop Parish Council between 18th September 1950 and 28th November 1950 15. Draft Map 16. Draft Modification Map 17. Provisional Map 18. Definitive Map 19. Proposed Ballroom Extension. Webbington Hotel and Country Club. June 197 20. Compton Bishop Parish Council minutes, 1905 – 1906 21. Compton Bishop Parish Council minutes, 1950 – 1984

22. Compton Bishop Parish Council minutes, 1971 – 1974 23. Compton Bishop Parish Council record for AX 15/1 24. Extracts from SCC Rights of Way file for Compton Bishop 25. Aerial Photograph 1946 26. Aerial Photograph provided by landowner F and User XX. 27. Aerial Photograph c. 1965 28. Land Registry records 29. Summary of the user evidence 30. Evidence from Landowner E.