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Alleged Footpath Along the Old Railway Line from Melton Mowbray Country Park to Scalford

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Alleged Footpath Along the Old Railway Line from Melton Mowbray Country Park to Scalford D DEVELOPMENT CONTROL AND REGULATORY BOARD - 16TH OCTOBER 2003 PROPOSED DEFINITIVE MAP MODIFICATION ORDER - ALLEGED FOOTPATH ALONG THE OLD RAILWAY LINE FROM MELTON MOWBRAY COUNTRY PARK TO SCALFORD REPORT OF THE CHIEF EXECUTIVE PART A PURPOSE 1. The purpose of this report is to seek the Board’s approval of the above-mentioned proposal. Recommendation 2. It is recommended that an Order be made under the provisions of Section 53 of the Wildlife and Countryside Act 1981, the effect of which will be to add a footpath along the old railway line from Melton Mowbray Country Park to Scalford to the Definitive Map of Public Rights of Way, as shown on the plan attached to this report. Reason for Recommendation 3. That the statutory criteria in Section 53 of the Wildlife and Countryside Act 1981, have been met by user evidence which shows that the footpath exists and should therefore be added to the Definitive Map. Circulation under Sensitive Issues Procedure 4. Mr. J.B. Rhodes CC Dr. M. O'Callaghan CC Officer to Contact 5. Mr. Gary Jackson, Chief Executive’s Department, Tel 0116 2656159. PART B Background 6. An application has been received from The Ramblers Association to add a footpath to the Definitive Map, as shown on the plan attached to this report. 7. The route of the alleged footpath from Melton Mowbray to Scalford was originally the route of the old railway line. Passenger trains stopped using the track in 1962 and later freight trains stopped using the track in 1964. Finally the track bed was taken up in 1966 and it is alleged that people have been using the route on foot since then. 8. The application is being processed under the provisions of Section 53 of the Wildlife and Countryside Act 1981. User Evidence in Support of the Application 9. 18 statements of user evidence have been submitted in support of the application. (User Evidence Document No. 1) Copies of the User Evidence Document are available for inspection in the Members Rooms and the Members Library. Legal Considerations 10. As this application relies on a claim of user over a period of 20 years, it raises the question of Section 31 of the Highways Act 1980. This states:- (1) 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 a 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. (2) The period of 20 years referred to in subsection (1) above 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 such as is mentioned in subsection (3) below or otherwise. (3) Where the owner of the land over which any such way as aforesaid passes:- (a) has erected in such manner as to be visible to persons using the way a notice inconsistent with the dedication of the way as a highway, and (b) has maintained the notice after the 1st January 1934, or any later date on which it was created. the notice, in the absence of proof of a contrary intention, is sufficient evidence to negate the intention to dedicate the way as a highway. 11. Therefore if the application and any other evidence shows there to have been uninterrupted, unchallenged use over a period of at least 20 years on a route which can be identified with some certainty and such use is of a kind which in itself amounts in law to a right of user (as opposed to a mere licence or being invited onto the land) then the law assumes that there is an implied dedication by the owner of the land of a right of way. This implied dedication can be rebutted if the owner can show that there was no intention to so dedicate the land as a right of way. 12. A landowner can do this by producing evidence that users were successfully challenged or asked to leave the land. A landowner can also obstruct the route to prevent public use of it and this will be sufficient to prevent the route becoming a right of way if done for that purpose. The interruption need only be of a brief period. Section 31 also allows a landowner to rebut any claim of a right of way by erecting prominent signs which clearly indicate that there is no right of way and that the land is not subject to any such user right. 13. The Board therefore has to determine if the usage claimed by the applicants or others is sufficient in itself to establish an implied dedication under the provisions of Section 31 of the Highways Act 1980. If so then consider if the landowner has successfully rebutted any such implied dedication. Comments of the Director of Community Services 14. The Director of Community Services has stated that owing to the circumstances of this particular case, which involve an alleged footpath along an old railway line, there are no historical documents that might support the existence of the footpath, hence the application will rely on user evidence. 15. In 1994 Mr. D.M.W. Shouler (landowner) made a Statutory Declaration under Section 31 Highways Act 1980 regarding rights of way across his land. The path along the railway line was not part of this Declaration, therefore only evidence prior to this date is relevant to this claim. Of the 18 user evidence forms submitted, 11 witnesses claim to have used the path in excess of 20 years prior to 1994. 16. Two of the witnesses saw signs along the route stating that the land was private with no right of way across it. The signs were erected when a section of the line at the southern end changed hands (according to witnesses in about 1997). The signs were in place for about 4 weeks before disappearing. The signs were not maintained and were erected well after the 1994 cut-off date set by the Statutory Declaration. 17. Only one of the witnesses has ever spoken to a landowner when using the route. The time of this encounter was again well after the 1994 cut-off date. Survey of the Alleged Route (Survey Document No. 2) 18. The main route of the alleged footpath extends between the Melton Country Park at point A on the plan and Scalford at point L on the plan. The alleged route is along the line of the old railway line which is on a raised embankment for most of the route, with a width of 8 to 10 metres, consisting of a wide grass/earth path mostly enclosed between hedges. The line of the path is well worn on the ground, with a width of 1 metre between points A and E and then continues past this point still visible on the ground but narrower, suggesting less heavy use. No sign was seen stating that there was no right of way or that it was private land along the route during the survey. 19. At point B there is a 1 metre high wooden fence and rail fence with the top rail missing, marking the boundary of the Country Park. The worn path on the ground has no break due to the fence and continues past it. 20. At point C a bridge has been demolished since 1999, leaving a dip in the embankment. The path continues down one side of the dip and carries on up the other side. 21. At points D and E there is a 1 metre high wooden post and rail fence. At the latter there is a tall pole on the eastern side of which the top rail of the fence is missing, also the path continues beyond the fence. After point E the hedges encroach onto the embankment, although there is still a 2 metre unobstructed width in places. 22. At points F and G there are hunt jumps. These are wooden fences with a more substantial top rail. The hunt jump at point F also has some barbed wire adjacent to the top of the rail, but there is room adjacent to this to climb over and continue along the path. 23. At point H there is a large hole in the embankment where cinders have been extracted. The path passes to the west of this hole. 24. At points J and K there are field gates. The gate at point J is locked with a chain and padlock and the gate at point K is unlocked. Copies of the Survey Document are available for inspection in the Members’ Rooms and the Members’ Library. Consultations 25. The following parties have been consulted and have made no objection: Melton Borough Council (also Landowner) Scalford Parish Council The Parish Council has stated that it fully supports the application for a footpath along the old railway line from Melton Mowbray Country Park to Scalford. Also that this old railway line forms a sound and pleasant walk across the countryside, as opposed to the Jubilee Way which becomes very wet at times. Sustrans, National Cycle Network (Landowner) Mr. Watchorn, Scalford Lodge, Thorpeside, Melton Mowbray, Leicestershire (alleged landowner). Mr. Watchorn has stated that he does not own any land over which the proposed footpath would be added.
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