Agenda Item No. 7

Rights of Way Committee

18th October 2011

Ansty and Staplefield: Application for a Definitive Map Modification Order (Application No: 1 (a, b and c)/2010 to upgrade existing footpath 22CR to bridleway status and two additional bridleways

Report by Head of Legal and Democratic Services

Executive Summary

This application, made under the provisions of Section 53 of the Wildlife and Countryside Act 1981, seeks to modify the Definitive Map and Statement for Cuckfield Rural as follows • by the upgrade of footpath 22CR to bridleway status (as shown as path A on the report plan) under Section 53 (2) in consequence of an event specified in sub section (3) (c) (ii) of the Wildlife and Countryside Act 1981, i.e. that a highway shown on the definitive map and statement as a highway of a particular description ought to be there shown as a highway of a different description • by the addition of new bridleways (as shown as paths B and C on the report plan) under Section 53 (2) in consequence of an event specified in sub section (3) (c) (i) of the Wildlife and Countryside Act 1981, i.e. that a right of way which is not shown on the definitive map and statement subsists or is reasonably alleged to subsist

All evidence in respect of this claim is available for inspection in the Members’ Room prior to the meeting.

Conclusion

1. The application was submitted with 26 public way evidence forms and a large file of archive and other documentary evidence in support of the claim.

2. All of the public way evidence forms were accompanied by a plan, identifying which route each user claims to have used. Not all users claim to have used all 3 of the claimed routes.

3. Archive research has been conducted and it is concluded that there is insufficient archive evidence to support the claim that Path A, an existing public footpath, should carry bridle rights or that paths B and C have any public highway status. The evidence and research has been summarised in paragraph 11 of this report.

4. In the absence of conclusive archival evidence or of dedication at Common Law the application has been considered under S31 Highways Act 1980, deemed dedication of a way after uninterrupted use of 20 years. Paragraph 5.10 of the Guide to the Law for the

Rights of Way Committee refers. For the purpose of considering the claim based on the evidence of use, the event which brought the public right to use the way into question, has been taken as the lodging of the application for a Definitive Map Modification Order in 2010

5. The relevant 20 year period of continuous use for the purpose of this application is therefore 1990 - 2010

6. The user evidence is considered in paragraph 5 of this report. As none of the witnesses testify to having used paths A, B or C for the whole of the 20 years period of 1990 to 2010, and because of the evidence from the landowners of regular ploughing and cultivation of the open land crossed by the claimed paths B and C, it is concluded that the S31 requirements are unsatisfied.

Recommendation

Path A That a Definitive Map Modification Order to upgrade the existing footpath 22CR to bridleway status (as shown as path A on the report plan) under Section 53 (2) in consequence of an event specified in sub section (3) (c) (ii) of the Wildlife and Countryside Act 1981 be not made

Path B That a Definitive Map Modification Order to add a new bridleway (as shown as path B on the report plan), under Section 53 (2) in consequence of an event specified in sub section (3) (c) (i) of the Wildlife and Countryside Act 1981 be not made.

Path C That a Definitive Map Modification Order to add a new bridleway (as shown as path C on the report plan) under Section 53 (2) in consequence of an event specified in sub section (3) (c) (i) of the Wildlife and Countryside Act 1981 be not made.

1. Characters and features of the routes

1.1 The claimed routes were visited on the morning of 20th May 2011.

Path A 1.2 Footpath 22CR heads west along the access drive to Westup Farm from Deaks Lane. There is metal 5 bar gate, which was unlocked and open at the time of the visit. To the left hand side there is a wooden WSCC public footpath finger post and wooden stile. The surface of the path at this point is concrete and in good condition with an approximate width of 3.2 metres.

1.3 The path continues west along a farm track, as shown in photographs 2 and 3. Heavy worn large tyre marks are clear along this section of the path as shown in the photographs. The path then heads into a more over grown area, as shown in photographs 5, 6 and 7. Along this section of path the width reduces considerably to that of a single person.

1.4 At point 7 on the plan and as shown in photograph 7, the claimed route continues across open land. This path continues until reaching Broxmead Lane where there is a metal gate, with an opening to the left.

Path B 1.5 Path B commences on Broxmead Lane and enters a field. As shown in the photographs, there is a gate present, but at the time of the visit this gate was damaged.

1.6 The claimed path continues east, south – easterly, into the field, where it follows the cropped field boundary and linking with path A.

Path C 1.7 Path C enters the field, from Broxmead Lane at its junction with public footpath 18CR and crosses the field in a south easterly direction before joining path B. At the time of visit the field was planted with crops.

2. Land ownership

2.1 Land Registry searches have been conducted by West Sussex County Council and show that there are a number of land owners. A landownership plan has been prepared and can be found in the file of background papers.

2.2 Requisition for information forms and owner/occupier evidence forms were sent to all of the revealed landowners. Replies were received from 3 of the landowners as detailed below in paragraph 6.

3. Consultations

3.1 Before making a Definitive Map Modification Order, the County Council is obliged to consult the relevant District or Borough and Parish Councils. Consultations have also been carried out with other interested bodies. Responses received to the consultations carried out can be found in the background papers in the members’ room. In considering the result of the consultations, members of the Committee are requested to bear in mind that, when determining this application they can only take into account evidence which demonstrates whether or not the tests in Section 53 have been satisfied. While giving their comments, none of the consultees produced evidence to support or negate the existence of the claimed bridleways. Members are requested to refer to pages 13 to 18 of the Guide to the Law of the Rights of Way Committee.

3.2 WSCC Property Services and Highway Boundaries West Sussex County Council Property services confirmed that WSCC has no ownership of any of the land. The highway boundaries team confirmed that both Deaks Lane and Broxmead Lane are publicly maintainable highways.

3.3 The Mid Sussex District Council A response was received from the legal department at Mid Sussex District Council. They confirmed that they forwarded the application and plan to … “various officers of the District Council and our Ward members for the area and asked whether they had any comments, - none were received”.

3.4 Ansty and Staplefield Parish Council Responded by saying that …“the Parish Council has considered the application and does not object in principle to it. However, that footpath becomes almost impassable due to mud in bad weather. If horses are to use it as well then this will only make it worse”. The Parish Council has therefore requested that the surface of the footpath is upgraded first.

3.5 The Cyclist Touring Club (CTC) A response received from Mr Richard Bates, the local CTC representative commented on this being a “most interesting proposal and in principal should be supported”. Mr Bates also commented that he had “walked the existing path, 22CR, in June after heavy rains following a long dry spell. The path was navigable despite my uncertainty of its suitability to ride a bike over it. The fact that there were no stiles or gates would encourage cyclists to use this route”. Mr Bates also comments that “I was pleasantly surprised by how nice the route was and of a generous width”

3.6 The Ramblers Mr Graham Elvely, Ramblers representative for the Sussex area commented that “we do not have any archival or user evidence relative to the claim”. Mr Evely’s reply focused mainly on the condition and width of the claimed route.

3.7 British Horse Society Mrs Patricia Butcher, local representative, BHS, confirmed that “the society has no local archive or user evidence to either support or negate the claims”

4 The application

4.1 The application to modify the Definitive Map and Statement for Cuckfield Rural has been split as follows • The upgrade of the existing definitive footpath 22CR to bridleway status is shown as Path A on the plan attached to this report and • The addition of 2 new linking bridleways are shown as Paths B and C.

5 Evidence submitted in support of the application

5.1 The application was supported by 26 user evidence forms claiming to have used the routes since 1932 to the date of the application. There are a series of bar charts provided in the background papers setting out each witnesses use of the paths.

5.2 Path A – Footpath number 22CR This path is recorded on the Cuckfield Rural Definitive Map and Statement as public footpath number 22CR. 16 witnesses, who claim to have used this path, make reference on their user evidence forms and also on the plans attached to the “cross field section” of this path being ploughed, cultivated and cropped.

5.3 21 witnesses claim to have used this footpath on horseback at various periods between 1946 to 2003. The remaining 5 witnesses claim to have seen horse users whilst walking on this footpath. Evidence of use on foot has not been considered as this path is recorded as a definitive public footpath.

5.4 15 of the witnesses comment that the cross field section of path A is sometimes ploughed or cultivated, therefore, the line of the path deviates and has not always been the same.

5.5 Path B Between 1946 and 2003, 9 users claim to have used this path on horseback at some point. Use of this path on foot has been provided by 4 out of the 26 users during 1946 – 2010.

5.6 Path C Between 1960 and 2003, 4 users claim to have used this path on foot and during 1958 and 2003, 8 users claim to have used this path on horseback during certain periods.

5.7 2 witnesses have included a photograph of a stone bridleway sign which they claim was on the ground on the opposite side to the WSCC waymarker on Deaks Lane. This sign was not seen during the site visit.

5.8 As well as user evidence the applicant has submitted numerous plans and other evidence which is considered in paragraphs 7, 8 and 9.

6 Evidence submitted by adjoining landowners Copies of the evidence submitted by landowners can all be found in the background papers in the members room prior to committee.

6.1 Mr and Mrs Hughes The extent of Mr and Mrs Hughes ownership is shown, coloured green on the plan entitled “ownership plan”. Mr and Mrs Hughes completed and returned the requisition for information form, detailing the extent of their ownership and also completed the owners/occupiers public way evidence form. Mr and Mrs Hughes have not commented on each claimed route individually and on their owner/occupier public way evidence, under number of route and description of the claimed route, refer only to “22CR – upgrade to bridleway status”.

6.2 Mr and Mrs Hughes are adjoining landowners and have held this interest for approximately 6 years. They acknowledge that the route is a public footpath and refer to the WSCC way marker. They have confirmed in their evidence form that they see members of the public using this route “often on foot” but make no reference to seeing users on horseback.

6.3 Mr Julian Astor Mr Julian Astor along with Adrian Astor, James Astor, Laura Marsh and Emily Marsh are joint landowners of the majority of the land over which the claimed routes cross. The extent of their ownership is shown on the plan attached to their requisition for information form which his included in the background papers file.

6.4 As well as completing and returning the requisition for information form and the owner/occupier public way evidence form, Mr Astor also submitted a series of photograph of his land and the claimed routes and also a letter from the current tenant farmer.

6.5 The photographs submitted by Mr Astor, along with an annotation plan, show that the area of land over which paths B and C run, is at present arable land and used for the cultivation of crops.

6.6 Mr Astor has also submitted a letter from Mr Andrew Strong, the tenant farmer. Mr Strong confirms in his letter that “proposed path C cuts diagonally through the middle of an arable field where large machinery operates”

6.7 Mr and Mrs Davy Mr and Mrs Davy completed and returned their requisition for information form along with the owner/occupier public way evidence form.

6.8 Mr and Mr Davy own a small parcel of land, in the south west corner, over which path A (22CR) runs and confirm that they have held this interest for “nearly 4 years”.

6.9 They have confirmed that they use this section of the route for “vehicular access to wood and also confirm that there is a “12’ wide field gate erected by us, by road side to deter fly tipping – unlocked and walkers able to walk round”. They make no reference to horse users.

6.10 Mr and Mrs Davy have said by way of their owner evidence form that they would be prepared to agree to dedicate a public right of way over the small parcel of land within their ownership and have indicated that they would dedicate this as bridleway status.

7. Archive evidence

7.1 A large amount of archival evidence was submitted in support of this claim by the Applicant. Copies of all of the documents submitted can be found in the applicant’s application file which will be available in the member’s room prior to committee. As well as studying the maps submitted by the applicant, the County Council has also carried out its own research at the County Record office and also consulted the series of Definitive Maps and Statements produced under provisions of the National Parks and Access to the Countryside Act 1949 dating from the 1950’s to the current Definitive Map and Statement, produced under the Wildlife and Countryside Act 1981.

7.2 Ordnance Survey Mapping Ordnance Survey mapping dating from the 1792 draft map for the first edition Ordnance Survey to the more recent 1930 – 1946, 4th edition mapping has been studied in connection with this claim.

7.3 The 1792 draft map shows clearly Deaks Lane and Broxmead Lane as features and reference is made on the map to “Barnsnape”. Path A is depicted by way of bold parallel lines and continues to a point just over half way between Deaks Lane and Broxmead Lane. No features are shown in connection with claimed paths B and C.

7.4 The 1813 first edition 1 inch to the mile ordnance survey map shows path A (22CR) as a defined track and in is depicted in the same manner as Broxmead Lane and Deaks Lane. No features in relation to paths B and C are shown.

7.5 The 1875 OS Map shows the Path A as a defined track. The track heads west from Deaks Lane on the line of present day footpath 22CR and is labelled number 1628 and 1692.

7.6 From 1885 until the mid 1880’s the OS maps were accompanied by ‘area books, ‘parish area books or ‘books of reference’. These books gave the acreage of each parcel of land and usually its land use. The reference book accompanying this map, defines land numbered 1628 and 1692 as “road”. The land over which the claimed route continues to cross, heading south is labelled 1612 and described as “pasture”. No reference is made to claimed paths B and C on this map.

7.7 The 1897 and 1909 OS, all show Path A (22CR) as double pecked lines in the same manner as the surrounding definitive footpaths 18CR and 59CR. No reference is made on any of these three maps to claimed paths B and C.

7.8 The 1947 OS map shows Path A in the same manner as the previous OS mapping, but it is labelled “BR”. Again, no reference is made to claimed paths B and C

7.9 The 1957 OS map shows the access track section of path A, heading west from Deaks Lane as solid parallel lines. No continuation of path A is shown to cross the field section of this path, heading south west. From Broxmead Lane heading north easterly, a path is depicted by pecked lines, on the same line as the current day footpath. This path continues only to a building that is featured on this edition of the OS map. With regards to paths B and C, path B is depicted by pecked lines heading east from Broxmead Lane and continues to reach the tack feature of path A.

7.10 The 1963 and 1977 OS maps feature the access track section of Path A in the same manner as the 1957 edition of the OS map and on the same line as the current day footpath. Again, part of path B is depicted by a pecked line heading east from Broxmead Lane and continues until reaching with path A.

7.11 In summary, Path A (22CR) is shown as a feature on all of the Ordnance Survey maps studied in connection with this claim. The 1947 edition of the OS shows path A labelled as BR. None of the other OS maps define the status of path A. OS mapping dated 1957, 1963 and 1977, feature path B heading east from Broxmead Lane but not on the exact same line as claimed by the applicant. None of the OS maps make any reference to C. It is worth noting that whilst Ordnance Survey mapping is good at showing what it is on the ground it is not conclusive as to status or existence of public rights of way.

7.12 1818 Cuckfield Parish Map and referencing book

7.13 The Parish Map shows both Broxmead Lane and Deaks Lane as clear features as well as Westup Farm and Barnsnape Farm. None of the claimed routes are shown as features on this map.

7.14 The land upon which the claimed routes cross, are individually numbered and descriptions are provided in the accompanying reference book.

7.15 The claimed routes cross land numbered 1823, 1824, 1830, 1836 and 1837. The referencing book describes these parcels of land as:

ƒ 1823 - Long Leans ƒ 1824 - Great pit field ƒ 1830 - Shaw ƒ 1836 - Road ƒ 1837 – Barnsnape field

7.16 Tithe Map 1843

17.17 Tithe map is very similar to the 1818 Cuckfield Parish map. The land is numbered the same with the descriptions given in the apportionment book being the same as in the Parish reference book.

17.18 Although land numbered 1836 is described in both the Parish Map referencing book and the Tithe apportionment book as “road” it is shown to lead only to the edge of field numbered 1824 which is described in the apportionment book as “Great pit field- pasture”. Therefore as this road only lead to a pasture field, it would be reasonable to conclude that this road was a private/occupation road for the use of farmers/occupiers of the buildings located on land numbered 1834. .

17.19 As with the Parish Map of 1818, none of the claimed routes are depicted on the tithe map as physical features.

17.20 The Tithe maps and awards were concerned solely with identifying tithable land and not with roads or their status. Tithe maps do not provided definitive evidence of the existence of a public right of way but can be useful in trying to show evidence of a physical feature.

7.21 Finance Act 1910 Maps

7.22 Under the Finance Act 1910, owners of land could apply for a deduction in the amount of tax paid on land if they admitted to a right of way across it. The Map and field book held at the West Sussex Record Office are the working copy and the final version of these maps and accompanying field books are kept at the National Archives.

7.23 The working copy held at the West Sussex Record Office, shows the land, over which the all the claimed routes run, as reference number 32 and it is shown coloured pink.

7.24 The property is described simply as “land” and there are no deductions in the box referenced public rights of way.

7.25 As part of the application, the applicant has included copies of the final Maps and Valuers field book, obtained from the national archives. This final map does make an allowance for the deduction for rights of way, although these rights of way are not defined in status nor are they specifically referred to on the maps. However, path A (22CR) is depicted by way of pecked lines, in the same way as definitive footpaths numbers 18CR and 23CR. Claimed paths B and C are not shown at all on this plan.

7.26 Yeakell and Gardner 1778 2” to the mile map

7.27 This map shows both Broxmead Lane and Deaks Lane as physical features. Reference is made on the map to Westup Farm and also Broxmead Farm. An access track features in the same manor as Broxmead Lane and Deaks Lane, by parallel solid lines and continues west, from Deaks Lane on the line of the present day footpath 22CR, before heading north west to where buildings are shown as features and labelled Westup. This map provides no indication of status but again is helpful in seeing what is on the ground.

7.28 No reference or features are shown in relation to claimed paths B and C.

7.29 Christopher and John Greenwood Map 1825

7.30 As with the Yeakell and Gardner Map, both Broxmead Lane and Deaks Lane are shown as physical features by way of solid parallel lines. Westup Farm and Broxmead Farm are not shown as features on this map although reference to them, by name only is shown.

7.31 The access track is again shown by solid parallel lines and stops at a point half way between Deaks Lane and Broxmead Lane and continues south west, as a single line, on the route of a length of the present day footpath 22CR. It is unclear as to where this single line continues to due to the scale and quality of the copied map.

7.32 No reference or features are shown in relation to claimed paths B and C.

8 Other Maps submitted as part of the application

8.1 This included a copy of the 1931 War Office Map and the W and AK Johnstons map of England for tourists and cyclists.

8.2 The 1931 War office map shows both Broxmead Lane and Deaks Lane as physical features and they are depicted, in accordance with the key at the bottom of the map, as main roads.

8.3 Path A (22CR) is shown, by way of solid parallel lines and dotted lines. The key provided on the map describes dotted parallel lines as “unfenced roads”. Looking at the depiction of path A in contrast with other definitive bridleways, definitive bridleway number 59CR, is shown in the same way.

8.4 No reference to claimed paths B and C are made

8.5 The W and AK Johnstons map of England makes reference to “Deaks” and “Westup”. A track is shown to run between, what appears to be Deaks Lane and Broxmead Lane, although it is difficult to say whether this is the claimed route. The key provided on this map shows main roads coloured red and footpaths as a pecked line. This map is considered to show no evidence to the existence of claimed paths B and C, nor give any indication as to status of path A.

9. Definitive Map series and the County Council’s Path File

9.1 The parish claim, draft, provisional and first Definitive Map for Cuckfield have been studied as part of the investigation into this claim. Path A (22CR) was claimed by the Parish as a public footpath. No claim was made by the Parish in relation to path B or C.

9.2 Upon production of the draft map the landowner at the time, Mr R.H.N Worsely made representations to the Cuckfield Rural Parish Council with regards to the rights of way shown across his land.

9.3 Parish Council minutes dated 1st March 1954, show that Mr Worsely requested that “certain footpaths to be either diverted or declared redundant, the paths in question being No’s 17 to 21 inclusive”.

9.4 Parish Council minutes of 24th May 1954 show that it was agreed that “path 17 was redundant and that footpaths 18 and 19 should remain as shown on the draft map and schedule, and that the diversions for footpaths 20 and 21 should be agreed to.”

9.5 Although claimed at the same time and shown on the draft map to which the land owner did make representations, Mr Worsely made no representations regarding the plotting or status footpath 22CR.

9.6 The County Council’s path files have also been consulted and there have been no reports of bridleway use on footpath 22CR. The public rights of way team also confirmed that they have no reports on their path file of any bridleway use.

10. Other Evidence

10.1 The applicant submitted a considerable amount of other evidence in support of the claim to upgrade footpath No.22CR to bridleway status and for the addition of 2 new bridleways. These documents and the applicant’s interpretation can be found from page 53 onwards of the application file which will be available in the members’ room prior to the meeting.

10.2 This section of the claim file focuses heavily on historical evidence of use in relation to use of the claimed path as a route between Cuckfield and Bolney, the iron industry, use of the route as access to the fulling and corn mills, use of the route to access Cuckfield market and use of the route for the avoidance of the tolls.

10.3 The applicant has made reference to, and has included a number of different publications, photographs, maps and dictionary definitions. None of this evidence is considered to show a direct link to the claimed paths or to any evidence of status, however should be considered with all other available evidence.

11 Consideration of claim

11.1 In determining the application the Committee has to decide whether the evidence provided by the applicant, together with all other relevant evidence available, shows that on the balance of probability a right of way exists, or that it is reasonable to allege the existence of a public right of way for paths B and C and that there is evidence to demonstrate that Path A should be upgraded to bridleway. The burden on providing this falls to the applicant. Matters such as suitability of a way and possible nuisance or need, are irrelevant and cannot be taken into account when reaching a decision.

11.2 Archive evidence

11.3 Whilst some of the maps produced and studied record the existence of a physical route in relation to path A, no indication of status can be drawn. When considering commercial maps it is important to remember that they are rarely sufficient in their own right to permit the inference to be drawn that a route is highway of any status.

11.4 Although a small section of path A is referred to as “road” in the Parish map of 1818 reference book and the Cuckfield Tithe Map apportionment, it is not possible to identify whether it was for public or private usage and whilst public rights may exist there is no evidence to suggest that the public rights should be higher than footpath. The depiction of the cross field section of path A, heading westwards changes to pecked lines or a single line until joining with Broxmead Lane. The change in the depiction could suggest that the track/road featureshown heading east from Deaks Lane is a private/occupation road and the public right on foot, continues as shown and depicted by either a single line or pecked lines.

11.4 The 1875 OS map refers to a section of path A as “road”. Looking at other tracks defined as roads on the same map it becomes clear that there is inconsistency. For example present day bridleway number 59CR and footpath 23CR are both referred to as “pasture”. Land numbered 1614, 1732,1775 are all recorded as “roads” in the reference book but carry no present day highway status. It is considered that this map is insufficient on its own right to infer that Path A is of bridleway status.

11.5 None of the archive evidence records the existence of a physical route in relation to path C and the depiction of path B on 3 of the OS maps is considered insufficient to conclude that a public bridleway exists in relation to path B. Neither does the archive evidence conclusively suggests that path A should be shown on the Definitive Map and Statement as a bridleway.

11.6 In conclusion it is considered that that the archive evidence is insufficient to recommend that orders be made to add bridleways to the Definitive Map and Statement

11.7 Other evidence

11.8 The considerable amount of other evidence submitted by the applicant, as detailed in paragraph 7 above, is also considered insufficient to support the claim. These documents provide no actual evidence of status of the claimed paths nor do they make any direct reference to the routes claimed.

11.9 In the absence of any conclusive archive evidence is it necessary to rely on the user evidence submitted by the applicant in support of this claim.

11.10 User evidence

11.11 In such cases where user evidence is submitted, the user evidence should be considered in accordance with criteria in Section 31 of the Highways Act 1980. The user evidence must show that the public have enjoyed the use over the land ‘as of right’ and without interruption for a full period of 20 years.

11.12 Section 31 of the Highways Act states “Where a way over any land, other than a way of such a 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 to be deemed to have been dedicated as a highway, unless there is sufficient evidence that there was no intention during that period to dedicate it.

12 The 20 year period?

12.1 The period of 20 years referred to is to be calculated retrospectively from the date when the right of the public to use the way was brought into question, whether by a notice or otherwise. In this instance, as no users have claimed to have seen any notices or otherwise, the date of the lodging of the application is taken as the date that first brought into question the public’s right to use the way.

12.2 Therefore the 20 year period for the purpose of considering this claim is 1990 – 2010.

12.3 During this 20 year period none of the users claim to have used any of the paths as bridleways for the full 20 year period. No evidence of use of paths A, B or C as bridleways has been provided after 2003.

Path A 12.4 At times within the relevant 20 year period of 1990 – 2010, 13 witnesses claim to have used this path on horse back. None have claimed use of this path on horseback for the full period of 20 years.

12.5 The maximum period of continual use of path A, on horseback, during the relevant 20 year period is 14 years, from 1990 – 2003. None of the 13 users claim to have used this path on horseback after 2003.

Path B 12.6 During the relevant 20 period, 9 users claim to have used this path on horseback at some point and 4 users claim to have used this path on foot. As with Path A, none of these 9 users claim to have used this path on horseback after 2003; therefore the longest period of claimed continuous use on horseback during the 20 year period is 14 years. 3 users describe their use of this path on foot as “to present”. To present was taken to mean until 2010 as this is the year in which all 3 user evidence forms are dated.

Path C 12.7 During the relevant 20 period of 1990 – 2010, 2 users claim to have used this path on horseback and 1 user claims to have used this path on foot. Again, with regards to the use on horseback these 2 users claim to have used the path up until 2000 and 2003, therefore only showing a maximum of 14 years use during the relevant period on horseback.

12.8 The evidence provided by 16 witnesses claiming that the cross field section of path A is sometimes ploughed, cropped or cultivated is contradictory to the evidence provided by the Landowner and tenant farmer.

13 As of right and without interruption

13.1 The user evidence must show that the public have enjoyed the use over the land as of right and without interruption for the full period of 20 years. Use of the land ‘as of right’ means without force, without secrecy and without permission and does not turn on the subjective belief of users.

Path A 13.2 All 13 witnesses that have used this route in the relevant period report to have used the way without force, secrecy or permission. There are reports of interruption in use made by some of the witnesses due to ploughing, cultivation and cropping of the field over which this path runs.

Path B 13.3 All 9 witnesses that have used this route in the relevant period report to have used the way without force, secrecy or permission.

Path C 13.4 Both of the 2 users that have used this route in the relevant period report to have used it without force, secrecy or permission.

13.5 With regard to paths B and C, evidence produced by the landowner/tenant farmer and aerial photography show that paths B and C have been ploughed and cropped showing that the use of this would not have been without interruption. The inspecting officer for the area was consulted and comments that “the cross field section (of path A) running from SW to the NE is across a meadow that doesn't look like it is ever ploughed”.

14 Evidence of no intention to dedicate

14.1 If members decide that the user evidence has not met the statutory tests then there is no need to consider whether there is evidence of no intention to dedicate by the landowner. However if members conclude that the requirements are met we must look to see if there is any evidence of no intention to dedicate.

14.2 In this case evidence provided by the landowner and tenant farmer has shown that land crossed by claimed paths B and C is used for the cropping and cultivating of crops and this is considered to be sufficient to show that there has there has been no intention to dedicate.

15 Conclusion

15.1 The witnesses do not provide the required evidence of 20 years continuous bridleway use on any of the paths A, B and C. Whilst it is not necessary for all claimants to demonstrate continuous use throughout the 20 year period, they must demonstrate that the use has been made by the public on horseback continually during that period. The applicant in this case has not been able to demonstrate any use of the paths on horseback between 2003 and 2010 and therefore the relevant legal tests are not satisfied.

16. Crime and Disorder Act implications

16.1 Member are referred to paragraph 3 of the rights of way guide to the law and reminded that the Definitive Map Modification Order process involves the application of legal tests, which means that it is not possible to give substantial weight to any effect on crime and disorder in this area.

17 Human Rights Act 1998 implications

17.1 It is unlawful for a public authority to act in any way, which is incompatible with a convention right. The rights, which should be considered, are rights pursuant to Article 8, Article 1 and Protocol 1 and Article 6.

17.2 Article 8 protects the right to respect for private and family life including an individual’s home. This is a qualified right and there may be interference by a public authority if that authority does so with an intention of protecting the right and freedom of others.

17.3 Article 1, Protocol 1 deals with the protection of property. Again, this is a qualified right and interference of it may take place where it is in the public’s interest to do so subject to the conditions provided by law. Any interference, however, must be proportionate. The main body of the report identifies the extent to which there is interference with these rights and whether the interference is proportionate.

17.4 The Committee should be aware of Article 6, the focus of which (for the purpose of this Committee) is the determination of an individuals civil rights and obligations. Article 6 provides that in the determination of these rights, an individual is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal. Article 6 has been subject to a great deal of case law. It has been decided that for rights of way matters, the decision making process as a whole, which includes the right of review by the High Court, complied with Article 6.

Background Papers

(a) Application form and plan

(b) Certification of service of notice form DMMO A2

(c) Evidence file submitted in support of the application

(d) Summary of User Evidence Table

(e) Bar graphs of use

(f) Copies of consultation responses received

(g) Evidence submitted by adjoining land owners

(h) Archive evidence

(i) Extract of the Definitive Map for Cuckfield Rural

Contact: Ami Sweeney Ext: 77012

TONY KERSHAW Head of Legal and Democratic Services