COMMONS AND RIGHTS OF WAY COMMITTEE 24 OCTOBER 2005

AGENDA ITEM:

APPLICATION FOR A MODIFICATION ORDER TO UPGRADE PART PUBLIC FOOTPATH GGK 30 AND PUBLIC FOOTPATH GGK 40 TO A BRIDLEWAY, PARISH OF

JOINT REPORT OF THE EXECUTIVE DIRECTOR: ENVIRONMENT & COMMUNITY AND THE HEAD OF LEGAL AND DEMOCRATIC SERVICES

1. PURPOSE OF REPORT

To consider the following application:

Nature of Application: Upgrade Footpaths to Bridleway Parish: Gorsley and Kilcot Name of Applicant: Gorsley and Kilcot Parish Council Date of Application: 22nd April 2004

2. RECOMMENDATION

(a) That no Modification Order be made to upgrade part of public footpath GGK 30 or the whole of public footpath GGK 40 to a bridleway

(b) That a Modification Order be made to upgrade part of public footpath GGK 30 and the whole of public footpath GGK 40 to a byway open to all traffic

3. RESOURCE IMPLICATIONS

Average staff cost in taking an application to the Committee- £2,000. Cost of advertising Order in the local press, which has to be done twice, varies between £75 - £300 per notice. In addition, the County Council is responsible for meeting the costs of any Public Inquiry associated with the application. If the application were successful, the path would become maintainable at the public expense.

4. SUSTAINABILITY IMPLICATIONS

No sustainability implications have been identified.

5. STATUTORY AUTHORITY

Section 53 of the Wildlife and Countryside Act 1981 imposes a duty on the County Council, as surveying authority, to keep the Definitive Map and Statement under

1 continuous review and to modify it in consequence of the occurrence of an ‘event’ specified in sub section [3]. Any person may make an application to the authority for a Definitive Map Modification Order on the occurrence of an ‘event’ under section 53 [3] [b] or [c]. The County Council is obliged to determine any such application that satisfies the required submission criteria in accordance with schedule 14 of the Act.

6. DEPARTMENTAL CONTACTS

Miss Sarah K Ellis, Public Rights of Way and Definitive Map Team, Network Improvement Unit, Environment Department. Telephone (01452) 425576 E-mail: sarah.ellis@.gov.uk

Janet Smith, County Legal Services. Telephone (01452) 425095 E-mail: [email protected]

REPORT

7. DESCRIPTION OF PATH

7.1 A location map at scale 1: 10,000 is attached (numbered …A) showing the position of the claimed path near Kilcot Wood. The area of Kilcot Wood lies in the Parish of Gorsley and Kilcot approximately ¾ mile north-east of the village of Aston Ingham. The Parish of Gorsley and Kilcot was created from part of Parish on 7th December 1999. The claimed Bridleway runs from road 50284 and starts approximately 130m east of Oak House. The area of interest lies within Ordnance Survey Grid Square SO 6924.

7.2 A small scale map of the Kilcot Wood area at 1: 1,250 scale is attached (numbered …B). This map shows the claimed path by a broken dashed black line between points A and point C.

7.3 A set of photographs is attached (numbered …C) showing the claimed path, which were taken on 7th May 2004 shortly before the application was made. Another set, taken on 16th August 2005 show the claimed route at each end. (numbered …D).

7.4 The claimed Bridleway leaves unclassified public road 50284 off Kilcot Green approximately 130 metres east of Oak Cottage at point A at Ordnance Survey Grid Reference SO 6931/2468 and runs in a generally easterly direction for approximately 30 metres to point B at OSGR SO 6933/2467 and continues in a generally south south-westerly direction for approximately 135 metres to its boundary with Aston Ingham in the County of and unclassified public road U70221 at point C at OSGR SO 6927/2455 approximately 35 metres north north-east of Rose Cottage. The claimed path is approximately 4 to 10 metres wide and has a natural stone/mud surface. Many young saplings have grown up over the width of the path, but the boundary is referenced between a hedge and an earth bank. A ‘No Horses or Cyclists’ sign is noticeable on a post which connects to GGK 40. The post points along public footpath GGK 41. This was erected in summer 2003.

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7.5 The total length of the claimed path is 165 metres.

8.0 BACKGROUND

8.1 Peter Maunder, Area Rights of Way Officer for North forest visited Mr Jones of Rose Cottage on 28th August 2003. This was regarding the footpath, which runs close to his house (the footpath stops north of Rose Cottage at the stream). Mr Jones had been having trouble with motorbikes using the footpath and also horses. During this meeting, a lady was seen riding her horse from GGK 40 to the Herefordshire Class 5 road. Peter Maunder stopped the lady and informed her that she was riding on a public footpath. The lady replied that she had thought she had a right to ride there as she had done so for many years previously and had not been stopped before. Peter Maunder suggested that she make an application for a Modification Order to upgrade the footpaths.

8.2 On 10th November 2003, local rider and Parish Council member, Jenny Carling contacted public rights of way to enquire about the Modification Order Process. An information pack was sent out together with a map and request for the exact routes of interest to be marked.

8.3 A meeting was set up between Sarah Ellis and Peter Maunder of Gloucestershire County Council (GCC), Jenny Carling and Barry Sleet of Gorsley and Kilcot Environment Group (GKEG) and Pat Milsom and Chris Dennis, both local riders (LR) on 8th January 2004. The group walked through the footpaths in Kilcot and Spring Wood, including the footpath GGK 40. GKEG and the LR expressed a desire to upgrade footpaths to bridleways and to add bridleways in order to create a safe off road route for horse riders between and Queens Wood, . They believed that GGK 40 almost certainly carried public rights higher than that of footpath and were keen to apply to get this section of footpath, linking two class five roads, upgraded to a public bridleway.

9 APPLICATION

9.1 An application for a Modification Order to upgrade part of public footpath GGK 30 and the whole of public footpath GGK 40 to a bridleway was received by Gloucestershire County Council from Gorsley and Kilcot Parish Council on 22nd April 2004. The application was considered duly made.

9.2 Mrs Highton, of Gorsley and Kilcot Parish Council described the application as ‘up-grading to a bridleway the footpath GGK 40 from junction with road 50284 called Stony Lane, Kilcot to road south of Rose Cottage. It was supported by 9 public path evidence forms. A summary of these is attached (numbered …E)

10.0 LANDOWNERS LETTERS

All the landowners adjacent to the track were consulted by letter on 2nd March 2004. Their comments are as follows:

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10.1 Mr G Jones, Rose Cottage

Mr Jones first contacted Public Rights of Way on 24th February 2004. The letter was addressed to Peter Maunder, Area Rights of Way Officer for North Forest and stated that he was ‘extremely concerned that various local residents appear to be going to request that the public footpath is upgraded to a bridle path’.

Mr Jones raised the issue of the surface of the track. He wrote ‘you may recall that the footpath is in a very poor state, for most of the year the path is impassable to walkers, this is the direct result of horses and motorbikes churning up the surface’. He commented on the use of the track and said that ‘surely the fact that the public footpath has been illegally 1 used as a bridle path for many years is irrelevant’.

In his letter, Mr Jones also wrote that ‘any change of status would have a detrimental effect on our property, may affect its value and appeal and we may seek legal advice’.

Mr Jones also sent Gloucestershire County Council a copy of a letter that he sent to Herefordshire County Council on the same date. He explained the location of his property and said that it was ‘clear that the property straddled a disused road and it is only since we took up residence that we fully appreciate the ramifications of this’. He made it clear that both he, and previous owners maintained the grassed area between the front door and forest boundary and requested that ‘the road be terminated at our boundary so that we are afforded the opportunity to upgrade the surface to a more suitable surface and secure the boundary of our property’.

On 27th March 2004 a landowner evidence form was received from Mr Jones regarding the recent Modification Order Application. In his evidence form Mr Jones agreed that the claimed route adjoins his land. He did not believe that any rights higher than footpath status had been acquired. He had been aware of the public using the way on horseback through evidence of ‘hoof prints, droppings and degradation to paths’. Mr Jones stated he had not been asked for, or given, permission for people to use the way on horseback.

A lady on horseback had been turned away from the path by Peter Maunder (this was in 2003) when visiting Mr Jones to discuss the path. Mr Jones stated that he erected a notice on the public footpath signs but did not give any details of what they read.

Mr Jones stated that there had never been any gates or stiles on the way and the way had never been obstructed.

1 Riding on a public footpath is not illegal. It is a trespass against the landowner who may chose to take the trespasser to Court

4 When asked for any more information, Mr Jones stated that ‘the public footpath has been used by motorcyclists, cyclists and horses. There have also been attempts by motor vehicles to use the lane as a ‘green lane’ for off road use’.

Another letter was sent in from Mr Jones dated 27th July 2004. This letter supplemented another application to upgrade footpaths and add bridleways in Spring Wood. Most of the comments in the letter referred to that application, however, the last few paragraphs seem to cover comments regarding the upgrade of footpath GGK 40 as well as the others in Spring Wood.

The comments are as follows:

‘We are advised by Peter Maunder that at present such use of the footpath is illegal. Will the Local Authority or Police prosecute the people that only now openly confess to using the footpath?

Mr Jones went on to state that ‘as a public footpath, the public have a right to be safe. The motorbikes use the path at high speed with no care for the environment, wildlife or other users’.

Regarding the surface of the track, Mr Jones went on to say that ‘the degraded condition of the footpath surface now makes it dangerous for pedestrian traffic as slipping into deep tracks or deep hoof prints is a very real hazard. Surely the people responsible for causing such damage are liable for the re-instatement as they continue to use the footpath illegally………….GGK 40 is not currently maintained on a regular or frequent basis….and the grass, mud and stone surface is frequently disturbed and damaged. It is without doubt unsuitable for use by horses and motorised vehicles at the end of the track and is left for others to attempt restoration’.

Mr Jones concluded his letter with the statement that ‘if the Modification Order is allowed, the degradation of the road and path surfaces will worsen involving costs, the risk of personal injury will increase possibly involving litigation and costs and the area will lose an important and attractive amenity’.

10.2 Brian Hopkinson C/o D Mullin of Fountain Forestry

Dara Mullin, Area Officer of Fountain Forestry wrote on 7th May 2004 on behalf of the woodland owner, Brian Hopkinson, regarding the potential (which it was at that stage) claim to upgrade footpaths to bridleways in Kilcot and Spring Wood. Mr Mullen stated that Mr Hopkinson was apparently ‘strongly of the opinion that no amendment should be made to any PROW designation that would permit horse riding on his property’. He went on to say that ‘even the present low level of un-authorised horse access in the woodland causes quite serious damage to the network of paths and makes them almost un-walkable in wet weather. In addition to the damage they cause in their own right, horse usage tends to attract other users such as off-road motorcyclists and 4wd enthusiasts, none of which are appreciated in such a woodland’.

5 When contacted again by letter on 6th June 2005, Brian Hopkinson phoned the Rights of Way Department. He asked several questions regarding the path and how his company would be affected by the claim. The process was explained to him, and he decided that he would not have any objection to the upgrading of the footpath GGK 40 to a bridleway, but he did not agree with the other footpaths through the wood being upgraded. He stated that he would ask his Area Manager to put this in writing.

A letter stating that Fountain Forestry had no objection to the proposal to upgrade the footpath into a bridleway was received on 1st July 2005.

10.3 Mr and Mrs Sang, Roseville

Mr and Mrs Sang own land to the west of the claimed track. They have been sent all information regarding the application but have not made any comments.

They did fill out a Public Path Evidence form at the start, however, when the application first came about. On the form, the both stated that they had used the path, GGK 40 approximately 50 –75 times a year on bicycle. This usage took place from 1980 to date.

11.0 DOCUMENTARY EVIDENCE

11.1 The County Archivist has examined sources in the Gloucestershire County Record Office to see if this path is marked in any way and has identified other sources, which might be useful in establishing the existence of a public right of way along this route. These sources have then been checked by the Modification Orders Officer."

11.2 Inclosure Award

No Inclosure Award

11.3 Newent Tithe map, 1840 (GDR/T/126)

Map of whole Parish, showing roads coloured in brown, fields edged in green or brown to denote state of cultivation, houses in pink, watercourses in blue. Claimed route shown coloured brown, open at each end, not given a plot number. Marked “ to Aston Ingham” at parish boundary. Current main road to Aston Ingham is marked “to Mitcheldean”. Second Class Tithe Map. Apportionment separate not searched. See map attached (numbered …R).

11.4 Aston Ingham Tithe Map and Apportionment (HRO, OS 100) Map is diocesan copy, dated 16th July 1841. First Class map, bearing the Tithe Commissioners’ stamp and signatures, dated 13th June 1841. Roads are coloured brown, watercourses in blue and houses in pink. Paths are shown by a single dashed line.

The southern extension of the claimed route into Aston Ingham Parish is given a plot number and described at the end of the apportionment in a section entitled

6 “Roads” as ‘936 Road from the branch towards Kilcots Wood’. This road, as well as those surrounding and described below are shown in brown. It is shown by two full lines giving access to two houses, open at southern end and crossing a solid line on the parish boundary at the northern end (presumably the stream) and then shown extending into Gloucestershire.

Elsewhere in the apportionment parcel 872 is described as Occupation Road to Upper Mill House, Richard Garrold landowner, Thomas Little occupier, although it is unclear from the schedule as to whether this plot has an apportioned rent charge or not. 297 is also described as an occupation road, but described as pasture under state of cultivation. Neither plot is obviously a “road”. It cannot be inferred as to whether the Roads listed at the end of the apportionment are necessarily public. A digital photograph is attached showing the area of interest (numbered …F).

Table showing the description of apportionments as referred to on the Map:

LAND- OCCU- NO’S NAME AND DESCRIPTION OF STATE QUANTITIES IN AMOUNT OF REMARKS OWNERS PIER REFERRING LANDS AND PREMISES OF STATUTE RENT TO PLAN CULTIVA MEASURE CHARGE APPORTIONED 933 Turnpike Road 11 0 37 934 Road leading out of 933 towards - - 31 Ravens Hill 935 Road leading from 934 towards - - 12 Turnpike Road 936 Road from the Branch towards - - 38 Kilcots Wood 937 Road to the second branch towards - - 25 Ravens Hill 938 Road from 936 to Turnpike Road - 1 16 939 Road from 937 to 940 - - 9 940 Continuation of road towards Ravens - 1 10 Hill

11.5 Ordnance Survey 25” : 1 mile, 1883 Edition

Coloured map showing metalled roads in brown, masonry buildings in pink and watercourses in blue. Map shows Gloucestershire only, not Herefordshire. Gloucestershire section of claimed route shown uncoloured, continuation of route north and west are both shown coloured indicating that they were metalled. Colouring is not evidence of status, only of surfacing. A known public road running from the Ross Road to Oxenhall is also shown uncoloured. The claimed route is shown crossing a stream at the southern end, open at its northern end, and forming part of plot 1040, as is its continuation to the west.

11.6 Ordnance Survey 25” : 1 mile, 1923 Edition

The claimed route is shown between two full lines and is open at its northern end. It has been given plot number 816 and covers 0.648 of an acre. The claimed route has an appearance similar to the surrounding roads, although no status is defined. The width is between 4 and 10 metres and the track is shown as part of a way joining with the Aston Ingham road. Map attached (numbered …G)

11.7 Ordnance Survey 25”: 1 mile, 1970 Edition

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The section of claimed route GGK 30 is shown between a full line and a broken black line leading into the woods. At its start point, the claimed route is open and shown as part of the road connecting with the Aston Ingham Road. It has been labelled as part of plot 3278. The width of this section is 5-6 metres. The section of claimed path GGK 40 is shown between two full lines. It is enclosed by a broken black line at its north end and a solid black line at its southern end. It is shown as part of plot 3161 and has a width between 4 and 10 metres. Trees are shown as features along the length of this section. The length of claimed track is similar to the class 5 roads at each end. This is due to the similar appearance, however, no status is defined. Map attached (numbered …H)

11.8 Ordnance Survey 1st edition 1” : 1 mile, 1817

Area not presented clearly

11.9 Bryant, Map of Gloucestershire, 1824

Route not shown

11.10 Finance Act Maps marked up by Inland Revenue, 1910

The Finance Act Maps of 1910 imposed a tax on the increase in value of land when it changed hands. The Board of Inland Revenue plotted and recorded every piece of land to determine the value of all land in the . This resulted in the most comprehensive record of land ever prepared. Many landowners and occupiers would have wanted to ensure that public highways were correctly recorded on the plans and Field Book. It was an offence to knowingly make any false statement of representation, punishable by up to six months in prison. This, and the fact that the survey was carried out by a public body under statutory powers give the survey documents weight. All private land including private roads was assigned an assessment number, whereas public highways were left uncoloured and un-assessed.

Gloucestershire Finance Act Map 1915 D2428

The claimed route is shown uncoloured between two full lines and as part of the track connecting with the Aston Ingham road. No status is defined, but it is shown outside property boundaries. This means that at that time there was no owner and was therefore considered to be part of a highway. See digital picture (numbered …I)

Herefordshire Finance Act Map 1910

Base map is OS 25” to 1 mile, second edition, sheet number Herefordshire 52.4 (1904). Map shows land on both sides of the county boundary. Herefordshire portion of route is shown outside property boundaries, given plot number 383, acreage 0.291.

8 Claimed route is shown enclosed by two solid lines and open at each end. It is included in the same plot as the western section, which is given an acreage of 0.648. The northern extension is described as 1.742 acres in area; none of the plots in Gloucestershire are allotted a plot number.

The southern extension from the claimed route into Herefordshire is shown by two solid lines. County boundary is the stream, which is shown crossing the way; the boundary mereing is given as “C.S.” (i.e. centre of stream) See digital picture (numbered …J).

11.11 Maps Deposited with County Planning Officer under Rights of Way Act, 1932

Nothing relevant

11.12 Parish Council file, Rights of Way Act, 1932. Clerk’s general correspondence file, 1919-38

Not relevant

11.13 Footpath or highway diversion orders deposited with Clerk of the Peace

Nothing relevant

11.14 District County Clerk’s correspondence on Newent public footpaths, 1963-73

Not relevant

11.15 County Council Solicitor’s correspondence – Hearing of objections file, 1954

Not relevant

11.16 County Surveyor: papers relating to survey of footpaths under National Parks and Access to the Countryside Act, 1949 (K687)

Gloucestershire

Original Submission – Route not shown Draft Map- The claimed route is shown coloured purple, indicating footpath. The part of claimed route running from west to east (GGK 30) is labelled as 58. The section running south to the border is labelled 134. Draft Map Objections – No relevant objections Provisional Map – Route marked as a footpath by a broken black line. It is not clear whether route is unnumbered or an extension of GNE58 or 134. When the maps were drawn up, Gorsley and Kilcot Parish Council did not exist, and this is why they are numbered as part of Newent. See map attached (numbered …K) (Gorsley and Kilcot became a Parish on 7th December 1999)

9 Provisional Statement – Both GNE58 and 134 described as ‘FP’ on accompanying schedule

Herefordshire

Aston Ingham Parish Submission Footpaths are marked in red, bridleways in blue and roads in green. The Herefordshire extension of the claimed route is coloured green, indicating that it was a county road. Route not claimed.

Draft Definitive Map Acetate, using County Series 6” to 1 mile map Herefordshire 52 NE. Herefordshire extension of claimed route not shown on map.

Statement Annexed to the Draft Map Rural District of Ross and Whitchurch Giving particulars of the Rights of Way, subsisting or reasonably alleged to have subsisted on 1st October 1952. Searched, not relevant

11.17 Definitive Map- Gloucestershire

Route is marked as a footpath by a broken black line. Route is numbered GNE134 and part GNE 58. Map attached (numbered …L)

11.18 Definitive Statement - Gloucestershire

The claimed routes are shown as footpath’s GNE 134 and GNE 58 passing through plot numbers 816, 833, 810, 784 and 832 as taken from the 1923 map. Copies of statements attached (numbered …M and …N). A map showing the plot numbers and footpaths is also attached (numbered …O) Plot number 816 is the track in question.

12.0 CONSULTATION REPLIES

12.1 A number of user groups and members of the council were contacted with regards to the claim, and the following comments were received.

12.2 Councillor Windsor-Clive

Councillor Windsor-Clive was contacted on 12th May 2004 and made aware of the application for a Bridleway claim through Spring Wood and also GGK 40. To date, no reply has been received.

12.3 Mr M Mabel, Herefordshire County Council

Mr Mabel was consulted on 28th April 2004 but to date no reply has been received

12.4 Mr W Reddaway, British Horse Society

10 The British Horse Society was consulted on 12th May 2004 but no reply was received.

12.5 Mrs Pat Williams, Ramblers’ Association

Mrs Williams was consulted on 12th May 2004. On behalf of the Ramblers’ Association, she replied that many of the routes claimed on the other application for paths through Spring Wood were very muddy and rutted in places. She made no comment on the claimed route GGK 40.

12.6 M C Palmer Cyclists’ Touring Club

Mr Palmer was consulted on the 12th May 2004 and his comments read, ‘A commendable initiative by local riders. If they are aware of any cycle use then I will see if I can [?] use in support’.

12.7 Jackie Lodge, District Council

Mrs Lodge was contacted on 9th August 2005. She wrote on 22nd August 2005 and confirmed that the District Council has ‘no objection to the proposed modification order to upgrade public footpaths GGK 30 and GGK 40 to bridleways.

13.0 OTHER COMMENTS

13.1 P & J Shaw, Foxberry Cottage

Mr and Mrs Shaw contacted Public Rights of Way on 27th July 2005. They had heard from local contacts about the application to upgrade part of GGK 30 and the whole of GGK 40 to a bridleway.

They stated that ‘this is very near our property and as we regularly use this path for walking with two young children and dogs we would strongly oppose its use for horses. The path is narrow and on one side has a field hedge/fence and the other side, for most of its length is an earth bank. This would need major work and disturbance to the natural environment to make the path wide enough for horses 2.

Mr and Mrs Shaw further stated that the application was ‘not in the public interest’……..’We would not support a change in the Definitive Map even if use by horses over the required period of time is proved. There have been no complaints in the past because until this application to allow horses became public, local residents were not aware that the tracks were footpaths only and not bridleways’.

2 The claimed route has been measured on the ground and from the 1923 OS Map. It has a minimum width of 4 metres and a maximum width of 10 metres.

11 13.2 Jenny Carling, Standfast Annex, Kilcot

Mrs Carling submitted her comments regarding the application on behalf of the local riders group. She is also a member of Gorsley and Kilcot Parish Council, but decided to keep her comments separate from those of the Parish Council, as there has been some difference of opinion.

On behalf of the local riders group, her comments are as follows:

“We note that the only landowner objecting to the application is Mr G Jones of Rose Cottage. In response to his various comments we would reiterate that we have provided evidence that horse riders and cyclists have had uninterrupted use of GGK 40 for longer than the statutory period required to request a change to the Definitive Map. Additionally, these users have traversed the route without complaint until the recent change in ownership of Rose Cottage.

Local research by the Bridleways Group (which is part of the Gorsley and Kilcot Environment Group) shows that the path in the woods going over the small stream with sleepers to cross by is on the deeds of a local property as being Dowlers Road. According to the property owner the track was part of the original road to Mitcheldean and should have vehicular access to Stony Lane. This view that the track is of higher status than a footpath appears to be supported by Mr Jones’ own statements in the summary. Therefore we believe that sufficient evidence has been provided to argue for a change to the Definitive Map. We would object therefore to Mr Jones’ request that the road be terminated at his boundary.

We are also of the opinion that comments on the surface of the route and its suitability for use by walkers, riders and cyclists at the present time are irrelevant to the core decision to be made. These issues can be addressed in the proper way when the outcome of this Application is known and we would point out that much has been done in this parish and adjoining parishes to ensure that all users can benefit from proper and legal access to the countryside by reinstating and improving “lost” public rights of way.

In Gorsley and Kilcot’s Parish Plan published in 2003 after public consultation and adopted by the Parish Council, is the promotion of safer off-road riding for horse riders and the possible development of a route to link May Hill in the south with Dymock Woods in the north. It was through this investigative process by the Bridleways Group and in response to Mr Jones’ complaint that the track was being used improperly by horse riders that it was discovered that the current Definitive Map might have been drawn up incorrectly. “

14.0 APPLICANT’S COMMENTS

A letter dated 10th August 2005 was received from Gorsley and Kilcot Parish Council. The Parish Council was sent a summary of the landowner comments and the documentary evidence regarding the application. It was confirmed that it ‘has no comments to make on the contents of the summary’.

12 15.0 LEGAL COMMENTS

15.1 Section 53 (3) [C] [1] of the Wildlife and Countryside Act, 1981, relates to the discovery by the Authority of evidence that shows that a right of way is not shown on the map and statement subsists, or is reasonably alleged to subsist, over land in the area to which the map relates.

15.2 Section 53(3)(C) [11] of the Wildlife and Countryside Act 1981 states that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description

15.3 Section 66 (1) of the Wildlife and Countryside Act 1981, states that a ‘byway open to all traffic’ means a highway over which the public have a right of way for vehicular and all other kinds of traffic, but which is used by the public mainly for the purpose for which footpaths and bridleways are so used.

15.4 Section 31(1) of the Highways Act 1980 states that 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 been actually 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. The period of 20 years in sub-section (1) is to be calculated retrospectively from the date when the right of the public to use the way is brought into question whether by a notice or otherwise.

15.5 Section 31 (9) of the Highways Act 1980 says that nothing in this Section operates to prevent the dedication of a way as a highway being presumed on proof of user for any less period than 20 years. Paragraph 12 of annex B of the Department of Environment Circular 2/93 states that before making an order the surveying authority must be satisfied that the evidence shows on the balance of probability that a right of way of a particular description exists.

15.6 In 2004, the House of Lords in the landmark case of the Bakewell v Brandwood, decided that vehicular use over a public right of way, although criminal at the time, would not in fact bar to acquiring an easement If the use had been over 20 years (provided no public nuisance was caused).

15.7 This would allow for the use of motor vehicles to be taken into consideration, but although there has been a mention of motorcycles in the adjacent landowner’s statements, there has been no evidence provided of user.

15.8 Under Section 193 of the law of Property Act 1925 and Section 34 of the Road Traffic Act 1988 the offence occurred if driving across common or other land was done ‘without lawful authority’. Because these provisions leave it open to landowners to lawfully grant the authority needed (even if they don’t do so) to ‘decriminalise’ the user, the House of Lords ruled that there is no reason why a person who can show 20 years usage (provided it is done openly and without force or permission) cannot acquire a prescriptive right.

13 15.9 In the Masters Case (2000) it was further concluded that a byway should not be removed from the Definitive Map because the use made of the way by the public had ceased or the balance between the various uses made by the public of the way had been changed. Parliament intended that ‘full ways or cart ways’ which might not be listed as highways maintainable at the public expense under the Highways Act 1980, should be included in the Definitive Map and Statement so that rights of way over highways should not be lost. If a highway was more suited to horse riders or pedestrians, then, as in the Masters Case, it was made obligatory by parliament that they continue to be shown on the maps and statements.

15.10 The conditions for classification of a byway open to all traffic have been clarified by the Court of Appeal’s judgement [Masters v the Secretary of State for the Environment, Transport and the Regions (2001)]. The Court stated that it is not a precondition for a carriageway to be a BOAT for there to be equestrian or pedestrian use or that such use is greater than vehicular use. The test for a carriageway to be a BOAT relates to its character or type and in particular whether it is more suitable for use by walkers and horse riders than vehicles. In summary, a byway open to all traffic is a carriageway and thus a right of way for vehicular traffic, but one that is used mainly for the purposes for which footpaths and bridleways are used, i.e. by walkers and horse riders.

15.11 To fulfil the requirements of Section 31, we need to see whether there has been a full twenty years use by the public, and in order to do this, we have to ascertain the date of challenge, that is there has to be some overt act on the part of the landowner to bring it home to users that their right is being challenged.

15.12 The Dorset case [R v Secretary of State for the Environment, Transport and the Regions, ex parte Dorset County Council, 1999] makes it clear that there was a need to “bring into question” the public’s right to use a way in order to trigger the provisions of Section 31 of the 1980 Highways Act. If this does not happen, there can be no deemed dedication under that Section. Not every user need be told by the owner of the challenge, nor is there any particular method of bringing it home to users. In terms of a Modification Order application, if the owner objects to the application, this will be a date of challenge. If he does nothing until the Order is made, this is insufficient and there will be no challenge that will meet the requirements of Section 31. If the owner does nothing at all, then this would not preclude a claim based on common law.

15.13 In this case, the actual challenge date is a little unclear. Neither Fountain Forestry nor Mr Jones has personally challenged anybody using the track on horseback. Neither of these two landowners actually own, or indeed, claim to own the track in question. Neither is there any evidence of them having stopped any motor vehicles. Anybody riding a horse along the track would not have been aware; it would seem, to them, that they were trespassing.

Mr Jones of Rose Cottage states that he erected a sign. He gave no details of what it said, nor did he give details of when it was erected.

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In August 2003, Peter Maunder, Area Rights of Way Officer for North Forest placed a ‘No horses or cyclists’ sign. This was on a post pointing along GGK 41. Again, this is not a direct challenge to anyone riding a horse along GGK 40.

The most direct challenge to riders using GGK 40 is by Peter Maunder in August 2003 when he advised a lady, who had ridden along GGK 40 that she was riding along a public footpath. However, this is still not clear, as he was only advising her of the situation.

Before the application was submitted, Mr Jones of Rose Cottage wrote a letter regarding his disapproval of the potential upgrade. This could be considered as counting as a challenge. This first letter from Mr Jones was dated February 2004.

15.14 The Planning Inspectorate take the view that it is not necessary for it to be the landowner who brings into question the right of the public to use the way. The date of calling into question is simply the date when, as the result of some action, the public’s entitlement to use the way was put in issue. There are no words in Section 31(2) of the 1980 Highways Act confining this action to be by or on behalf of the landowner. It simply sets the date from “…when the right of the public to use the way is brought into question.” Whilst in practical terms, the bringing into question will be by or on behalf of the landowner, it does not have to be so and thus there is no requirement to prove that the action was by the owner of the land. This view is confirmed by Applegarth V SSETR (2001), which stated that anybody with an interest could bring into question that the right of people to use the path, and this needn’t necessarily be the landowner. The burden lies on whoever needs to rebut the presumption to show that the owner of the path had not intended to dedicate the path as a public highway. The claimed path has never been obstructed by any of the landowner’s, neither has anyone been physically stopped from using the way. However, Mr Peter Maunder of Public Rights of Way does have a vested interest in the surface of the track, so his challenge, in August 2003, to the lady riding her horse could be crucial to the challenge date.

15.15 Advising a horse rider that they are riding on a public footpath does not give rise to a challenge, unless it is by the landowner. Neither does erecting a footpath sign. In the Sunningwell Case (R v Oxford County Council and another ex parte Sunningwell Parish Council E.G. LR 7 August) the judgement refers to the initial use: “ But user that is apparently as of right cannot be discounted merely because, as will often be the case, many of the users over a long period were subjectively indifferent as to whether a right existed, or even had private knowledge that it did not”.

15.16 The public must have been made aware that their use of a way was being challenged either through a notice denying the public the existence of a right of way, the locking of a gate or the seeking of a declaration that there is no highway over the land in question. The riders are aware that the local adjacent landowner was unhappy with the application being submitted. This will

15 therefore be the overt challenge to bring into question the riders right to use the way has occurred.

15.17 In all, nine public path evidence forms were submitted with the application. A table is attached (numbered …P) which shows the period of use. Eight witnesses have used the claimed route on horseback. Out of these, only one (Christine Dennis – Witness 2) was told that she was riding on a footpath. This was by Peter Maunder of PROW. Before this, she had assumed she had a right to ride there. Two witnesses have used the way by bicycle and four have used it on foot. A table is attached, which shows the method and frequency of use by each of the witnesses. (numbered …Q). There has not been any submitted evidence of use by motor vehicles. As the claim was to upgrade the footpath to a bridleway, the Trail Riders’ Fellowship was not consulted. If consulted, they may have been able to provide evidence. According to the main adjacent landowner, Mr Jones, motorcycles have used the path GGK 40.

15.18 The most frequent user is Phillipa Boon (witness 1) who claims to use the path approximately 200 times a year. The least frequent user is Juliet Wheatley (witness 9) who claims to use the path only 2 – 3 times a year. An attachment is available to look at showing the distance each user travel from home to reach the claimed path. Each witness keeps his or her horse at home, apart from Roger Leggett who keeps his horse near Aston Fruit Farm.

15.19 As the challenge date has been taken as 2004, the witnesses of the way need to prove that they have used the path for twenty years or more. The witnesses must have used the way since at least 1984 in order to get twenty years use. Looking at the Period of Use Table, it is clear that witness 1 (Boon), witness 2 (Dennis), witness 3 (Leggett), witness 4 (Marriott), witness 5 (Moreton), witness 8 (Sang) and witness 9 (Wheatley) have all used the claimed path on horseback or bike for at least 20 years.

Witnesses 6 and 7 (Pople) have used the way since 1987. This gives them both 17 years usage.

15.20 Under Section 32 of the Highways Act 1980, when 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 in 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 complied, and the custody in which it has been kept and from which it is produced.

15.21 The claimed path is between 4 and 10 metres wide. The character of the path is one that is more suited to horses and use on foot. At the moment the full width of the path cannot be seen as young saplings have grown in between the hedge and the earth bank. Mr and Mrs Pople of Quarry Farm (witnesses 6 & 7) both state that they were told by older residents that the claimed track

16 was in fact the main road before the Aston Ingham Road. This statement is supported by some of the documentary evidence.

15.22 The claimed route is shown clearly on the Gloucestershire Tithe Map of 1840 as well as the Herefordshire Tithe Map of 1841. Tithe Maps were concerned solely with identifying tithable lands, and not with roads and their status, so cannot be used as definitive evidence regarding public roads. However, Tithe Maps do mark roads quite accurately and, taken in conjunction with the schedules, provide useful supporting evidence. As tithes were not payable on public highways, these are often shown in a special colouring on the plans. The claimed path is shown on the Newent Map (Gloucestershire) coloured. It does not have a plot number but is shown in a manner consistent with other known routes. It is labelled “ To Aston Ingham”, and this implies that it was a through route.

The Aston Ingham Tithe Map shows the claimed route coloured and open at its northern end beyond the stream. There is an apportionment for this and the route is listed at the end under “roads”. There is no landowner or occupier given in the schedule. However, occupation roads have been distinguished in this schedule, indicating that the claimed way was considered to be public at that time.

15.23 In the case of Maltbridge Island Management Company v Secretary of State for the Environment, 31st July 1998, Sullivan considered that:

“The Tithe Map and apportionment evidence is undoubtedly relevant as to both the existence, and physical extent, of a way at the relevant time. Both public and private roads were not tithable, the mere fact that a road is shown on, or mentioned in a Tithe Map or Apportionment, is no indication as to whether it is public or private.”

15.24 Sullivan went on to consider whether a tithe map and apportionment could be evidence of the status of a road.

“But if detailed analysis shows that even though he was not required to do so, the cartographer or the complier of this particular map and apportionment did in fact treat public and private roads differently, whether by the use of different colours, the use or non-use of plot numbers, or other symbols, or in schedules or listings, I do not see why evidence based on such analysis should not be admissible as to the existence or non-existence of public rights of way. … Since it was not one of the purposes of the 1836 Act to distinguish between public and private roads, such information as can be derived for the Tithe Map and Apportionment cannot be conclusive, and must by its very nature be tentative…”

15.25 Ordnance Survey Maps carry a disclaimer that any representation of a road, track or path is no evidence of the existence of a right of way over it. However they do provide evidence of the physical existence and extent of a way, suggesting (but not proving) that the path has been in use for a longer period

17 than that for which user evidence is available. The routes surrounding the claimed way are shown coloured on the 1880’s OS Map. The claimed section is uncoloured, but this is not evidence that it does not carry vehicular rights. This should instead be seen as part of the process whereby and ancient highway fell into disuse, as more suitable routes came into being.

15.26 The Finance Act of 1910 imposed a tax on the incremental value of land when it changed hands. In order to levy the tax, the Board of Inland Revenue was required to ascertain the site value of all land in the United Kingdom, which meant plotting and recording every piece of land, and resulted in the most comprehensive record of land ever prepared. It was an offence to knowingly make any false statement of representation, punishable by up to six months imprisonment. The threat of criminal sanction and the fact that the survey was carried out by a public body under statutory powers are relevant in giving the survey documents weight.

15.27 As with the Tithe Map, the Finance Act Map shows the claimed route as uncoloured and outside property boundaries. This is indicative of there being no owner of the land crossed by the claimed ways and that it was considered to be a highway at that time, although no status is made clear. The Finance Act map does provide good evidence however of a ‘highway of some sort’, but this evidence is not conclusive.

15.28 The 1923 OS Map shows the claimed route between two full lines and is open at its northern end. It has been given plot number 816 and covers 0.648 of an acre. The claimed route has an appearance similar to the surrounding roads, although no status is defined. The width is between 4 and 10 metres and the track is shown as part of a way joining with the Aston Ingham road. A further OS Map dated 1970 shows the section of claimed route GGK 30, between a full line and a broken black line leading into the woods. At its start point, the claimed route is open and shown as part of the road connecting with the Aston Ingham Road. It has been labelled as part of plot 3278. The width of this section is 5-6 metres. The section of claimed path GGK 40 is shown between two full lines. It is enclosed by a broken black line at its north end and a solid black line at its southern end. It is shown as part of plot 3161 and has a width between 4 and 10 metres. Trees are shown as features along the length of this section. The length of claimed track is similar to the class 5 roads at each end. This is due to the similar appearance, however, no status is defined.

15.29 Nobody has claimed that they own the claimed track. Fountain Forestry own land to the east of the track, and Mr Jones owns land to the south and either side of it.

15.30 The adjoining routes, Stony Lane and also the section of track that runs past Rose Cottage are both class 5 Public Roads. The claimed route is a gap between the two. In Eyre v New Forest Highways Board 1892 Wills J covers the situation in which two apparent cul de sac are related by reason of uncertainty over the status of a short, linking section. (In that case, a track over a common). He held that, where a short section of uncertain status exists, it could be presumed that its status is that of the two highways linked by it.

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15.31 If we look at the Masters case (referred to in paragraph 15:10 and 15:11) it becomes apparent that the claimed route, part of GGK 30 and the whole of GGK 40, is in fact more suited to use on foot and by horse. The character of the track is one that is enclosed, almost like a sunken lane. At one stage it would have been used as a main road, and the width before the young saplings grew would easily support and allow a horse and cart to pass through. The 1970’s map showed the trees within the track and this indicates that the track had become more disused. The track is un-surfaced, certainly not suitable for tarmac and does not have the same character as that of the immediate surrounding public roads.

15.32 In conclusion, the user evidence supports the upgrading to at least a bridleway. The path is fairly rural; so many users would not be expected. Those who have used the way have all used it by horseback or bicycle.

The documentary evidence on the other hand suggests rights higher than that of bridleway. It would appear that the track was a main ‘through route’. On both tithe maps the route is shown as a ‘through route’. It was also marked as ‘to Aston Ingham’. What is the main road now, was then the turnpike road and was marked as ‘to Mitcheldean’. It is possible that our claimed path, GGK 30 and 40 was in fact a local route used as a means of avoiding paying toll on the turnpike.

The Finance Act map was shown outside property boundaries and this is still the case today. There is no known owner of the way.

With all the above evidence taken into account and judging the track by its character and suitability, it is therefore recommended that part of GGK 30 and the whole of GGK 40 be upgraded from public footpath to a byway open to all traffic.

16.0 Enclosures

A. 1:10,000 Location Map B. 1:1250 Site Map C. Photographs taken on 7th May 2004 D. Photographs taken on 16th August 2005 E. Public Path evidence Form Summary Table F. Aston Ingham Tithe Map 1841- Digital Photograph G. 1923 OS 25” Map H. 1970 OS Map – Enlarged I. 1915 Finance Act map for Gloucestershire - Digital Photograph J. 1910 Finance Act Map for Herefordshire – Digital Photograph K. Provisional Map copy: 1:10,560 L. Definitive Map Copy: 1:10,560 M. Definitive Statement showing GNE 58 N. Definitive Statement showing GNE 134

19 O. Map showing Plot Numbers in relation to 1923 Map P. Period of Use Table Q. Method and Frequency of Use Table R. Newent Tithe Map 1840

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