Agenda Item:

Meeting: Development Management Committee Date: 18 November 2009 Subject: The determination of an application made under Section 53 of the Wildlife and Countryside Act 1981 to add a number of footpaths to the Definitive Map and Statement in the parishes of Brogborough and

Report of: Roy Waterfield - Assistant Director of Leisure and Cultural, Adult and Community Learning

Summary: The report seeks a resolution from the committee to either approve or refuse an application to modify the Definitive Map and Statement by the addition of a number of public footpaths in the parish of Brogborough. The report examines the historic documentary evidence upon which a committee resolution should be based.

Contact Officer: Adam Maciejewski - Definitive Map Officer - Countryside Access Service 0300 300 6530 x44069 Public/Exempt: Public Wards Affected: and Woburn & Harlington

Function of: Council

RECOMMENDATIONS:

1. The Development Management Committee is requested to:

(a) Approve the Rights of Way Association’s application made under Section 53(5) of the Wildlife and Countryside Act 1981 to add a number of alleged public footpaths to the Definitive Map and Statement in the parishes of Brogborough and Ridgmont on the ground that there is insufficient evidence to oppose a reasonable allegation that the alleged public rights of way subsist; and consequently,

(b) Approve the making of a Definitive Map Modification Order under the provisions of Section 53(2)(b) of the Wildlife and Countryside Act 1981, consequent of events under Section 53(3)(c)(i) of that Act, namely, the discovery of evidence which, when considered with all other relevant evidence available, shows that “…a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates …”. The Modification Order will add footpaths to the Definitive Map between points: A - B; C - D; and E - X - F in the parish of Brogborough and between points F - H and F - G in the parish of Ridgmont. The footpaths to have a width of 1.8 metres.

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Heading 1 - Introduction

1. In September 2005 the Bedfordshire Rights of Way Association (hereafter “BRoWA”) applied under Section 53(5) of the Wildlife and Countryside Act 1981 (hereafter “the 1981 Act”) to have the Definitive Map and Statement modified by the addition of a number of footpaths in the parishes of Brogborough and Ridgmont.

2. The evidence supplied by BRoWA consisted of an extract from the 1883 1st edition of the Ordnance Survey 25”:1 mile map which shows a number of tracks, some of which are currently recorded as public rights of way (line C-B- E on the plan at Appendix 1) and some of which are not and a copy of the Definitive Statement for Footpath No. 18. One of the alleged footpaths passes through a tunnel under the embankment for the - Bletchley railway line at point X. This tunnel was filled in by British Rail in 1989.

3. The routes alleged to subsist by BRoWA are all rural in nature. The sections A-B and C-D on the plan at Appendix 1 cross arable fields. The sections B-E-X and G-F-H run around the edges of arable fields - section B-E-X being on a grassed farm track. The section B-C runs along what appears to be an abandoned farm track through an area of mature tree planting. The section between point F and to just north of point X encompasses the embankment and double track of the Bedford to Bletchley railway line.

Heading 2 - Legal and Policy Considerations

4. Council, as the surveying authority, has a statutory duty under Section 53 of the Wildlife and Countryside Act 1981 to maintain a public record of public rights of way. This is known as the Definitive Map and Statement. The Council also has a duty to make such modifications as are required to keep the Map and Statement up-to-date and accurate.

5. Section 53(5) of the Wildlife and Countryside Act 1981 allows any person to apply to Central Bedfordshire Council to modify the Definitive Map and Statement by order if they believe it to be wrong. The relevant legislation and case law is detailed in Appendix A.

6. When an application is submitted, the Council has a statutory duty to investigate the matter, taking into account all relevant evidence - not just that supplied by the applicant - when coming to its decision. If the evidence shows on the balance of probability, or on a reasonable allegation - which is a far more lenient appraisal of the evidence, that a public right of way is not shown on the Definitive Map this error should be corrected by the making of a Definitive Map Modification Order.

7. If the Modification Order is objected to, the Council cannot confirm it but must forward it to the Secretary of State for the Environment, Food and Rural Affairs. The Secretary of State appoints an Inspector to decide whether the evidence, when weighed on the stricter evidential test of balance of probability, allows the Modification Order to be confirmed. If the evidence does not meet the stricter test the Modification Order is not confirmed. 2/9

8. The Development Management Committee under the Central Bedfordshire Council’s Constitution (Section C of Part E2 at Annex A) is the appropriate body to determine an application made under Section 53 of the 1981 Act. When determining the application, committee members should evaluate the evidence contained within the report to decide whether the alleged public right of way subsists, or can reasonably be alleged to subsist. Ancillary matters, such as the need for a path, or issues of privacy, convenience, nuisance or safety are irrelevant to the issue of whether a right of way does, or does not, exist and are things to be addressed as part of the management strategy of any path added by a Modification Order.

Heading 3 - Historical Evidence

9. In addition to the documents supplied by BRoWA I have investigated historic documents contained in the County Archives (see Appendix B) and Council documents relation to the process of producing the Definitive Map (see Appendix C). BRoWA did not supply any evidence relating to public use of the alleged routes and none has emerged from my subsequent investigations.

10. The parish of Brogborough is a relatively new creation - the land formerly being predominantly part of the parish of Ridgmont with a small part of . The creation of the new parish of Brogborough occurred on 1 st April 1990 and post-dates the publication of the Definitive Map and Statement for the Former Rural and Urban Districts. Consequently most of the documentary records for the alleged paths relate to either the original parish of Ridgmont or the neighbouring parish of Lidlington.

11. The area which is the subject of BRoWA’s application was historically designated as a “Park” and is first documented in c.1246. From the early 18 th Century the Park was owned by the Radcliffe family who subsequently sold it to the Duke of Bedford in c.1828. By c.1925 it had passed into the ownership of two brothers, GE and JT Dunscombe until being bought by a succession of brick manufacturers and currently managed by O&H Properties for Hanson - the owners of the London Brick Company.

12. In the late 18 th Century the parishes of Ridgmont and Lidlington underwent Parliamentary Inclosure. Neither the 1776 Lidlington Parliamentary Inclosure Award nor the slightly later 1797 Ridgmont Parliamentary Inclosure Award created any public rights of way over the area, see Appendix 4, which appears to have retained its protected Park environment.

13. Small scale maps such as Bryants’ 1826 Map of the County of Bedford and the slightly later Ordnance Survey 1”:1 mile map of 1834 pre-date the construction of the Bedford to Bletchley railway line and do not show any routes along the alignment of those claimed by BRoWA, see Appendix 5.

14. The Bedford to Bletchley railway line was constructed under the powers of The Bedford & Birmingham & London Railway Act 1845. There are a number of deposited documents associated with the Bill stage of the 1845 Act including five copies of deposited plans showing the route of the proposed railway and a book of reference giving information about the land over which the railway would pass. The deposited railway plans show the presence of a “ Footway ” 3/9 running approximately along the line of the alleged footpath between points G and F on Appendix 1 - with the depicted route extending further to the north- west and south-east to just beyond the depicted limits of deviation for the proposed railway. A crossing “at the level” of this footpath would require the consent of two Justices and the construction of suitable approaches by the railway company - of which there is no evidence in the Quarter Sessions records or on the later Ordnance Survey maps. One of the plans also depicts an unlabelled track which would have passed through the now blocked tunnel, see Appendix 6. As the tunnel at point X was not depicted on the deposited railway plans it is unlikely to have been planned as the alternative route for a public highway at the time the plans were drafted.

15. Between the late 19 th century and the early 20 th century the Ordnance Survey surveyed and produced three editions of a large scale 25”:1 mile map. The 1883, 1901, and 1925 1 st, 2 nd , and 3 rd editions depict a number of paths along the routes claimed by BRoWA and appear to utilise the railway tunnel at point X, see Appendices 7 and 8. Whilst the Ordnance Survey maps of the day specifically did not depict public rights of way the depiction of a route on the map was indicative of an established track which may have enjoyed public rights.

16. In the early part of the 20 th century two surveys took place in c.1910 and c.1925 to value the land for tax purposes. These detailed surveys took into account land used for public rights of way when allocating a taxable value to a piece of land. Unfortunately for both surveys the acreage of land valued makes it impossible to pinpoint what particular rights of way were attributable for the tax rebate given, see Appendix 9.

17. Aerial photographs of Bedfordshire have been taken approximately every five years since the early 1960s. These photographs are at a large enough scale to allow even narrow paths to be discerned. Aerial photographs of the area of the alleged footpaths taken in 1968, 1976, 1981, 1986, 1991, and 2002 were examined to try and establish what use, if any, was being made of the alleged footpaths My analysis of these aerial photographs suggests that, in common with a number of fields in the vicinity, the edges of the fields between points C- B-E-X and G-F-H have worn routes of a width that suggests use on foot, see Appendix 11. Pedestrian use appears to have outlasted vehicular use of some of these routes but this has also diminished over time. The aerial photographs do not indicate whether the aforementioned routes were created through public or private use.

18. The Ridgmont Parish Council minutes for the period 1941 - 1972 and the Brogborough Parish Council minutes for the period April 1990 - March 2002 were examined to see if they contained any reference to the footpaths alleged to subsist by BRoWA. I can find no directly attributable minutes to any of the claimed footpaths.

19. The process of surveying paths for inclusion in the Definitive Map as part of the National Parks and Access to the Countryside Act 1949 was started in c.1952 and was generally undertaken by local parish councils. Lidlington Parish Council recorded the existence of a number of routes (Footpath Nos. 1, 18, 21, and 40) which all terminated at the parish boundary in the vicinity of Brogborough Park Farm, see Appendix 2A. Three of these paths, Nos. 14, 18, 4/9 and 21 currently terminate at points A, G and H respectively on the plan at Appendix 1. Ridgmont Parish Council recorded only one path for the area concerned - Bridleway No. 2 which runs from Brogborough Middle Farm generally northwards across the railway line to Brogborough Park Farm and then north-westwards to the A421. No paths were recorded linking to the ones surveyed by Lidlington Parish Council, see Appendix 2B.

20. The parish survey maps were returned to the County Council and the information collated. These paths, along with awarded paths and paths considered public by the County Surveyor, were shown on the Draft Map of Rights of Way which was published in April 1953. No additional routes were added for the area in question and so the Draft Map shows only those routes recorded by the parish councils, see Appendix 3A. There were no objections to the non-depiction of linking footpaths across what was then the Ridgmont- Lidlington parish boundary on the Draft Map and so this miss-match was carried through onto the 1963 non-statutory Modified Draft Map and then onto the statutory Provisional Map which was published later the same year.

21. The culmination of the original National Parks and Access to the Countryside Act 1949 process was the publication of the Definitive Map and Statement. This occurred in March 1964 for the Former Ampthill Rural and Urban Districts. The 1964 Definitive Map reflected the network as depicted on the earlier Provisional Map and can be seen at Appendix 3B. The Definitive Map shows that Lidlington Footpath No. 21 has been drawn to extend approximately 20 metres over the parish boundary into the parish of Ridgmont (from point G to point F). This additional section of footpath would appear to have been included as a drafting error as it is not in any of the previous maps.

22. The 1964 Definitive Map has subsequently been modified by the dedication of a number of new paths and the diversion of a number of existing ones in connection with the local brick industry which has opened a number of clay pits in the locality. Most notable are the dedications by the London Brick Company in 1996 of Lidlington Footpath No. 40 and Brogborough Footpath No. 6 which run along some of the routes alleged to subsist by BRoWA. These changes are reflected in the most recent digital consolidated version of the Definitive Map - an extract of which has been used for the application plan at Appendix 1. The small spur of Lidlington Footpath No. 21 in Ridgmont is absent from this map - thus apparently correcting the earlier 1964 drafting error.

23. The Definitive Statements for Lidlington Footpath Nos. 18 and 21 are carried over from the original parish surveys and both record the paths as going “To: Brogborough Park Farm” although the description of the Footpath No. 18 indicates that the path stops at the parish boundary. The description of Footpath No. 21 is much vaguer and refers to it crossing two fields alongside the railway. Whereas Footpath No. 18 does run towards Brogborough Park Farm, Footpath No. 21 does not - a better descriptor possibly being “ To: Brogborough Middle Farm ” unless the drafter of the Statement envisaged walkers using the now blocked railway tunnel to carry on to Brogborough Park Farm.

5/9 Heading 4 - Consultation

24. The landowners affected by BRoWA’s application (Network Rail, O&H Properties, and Mr. Reeves of Brogborough Middle Farm) have been consulted on the application twice. Mr. Reeves has not responded to either consultation. O&H Properties, the land agent for Hanson, has no objection and comments that …t he historical records show that these footpaths have been in existence for decades.…”.

25. Network Rail has stated that its predecessor, British Rail, had consulted with the County Council in 1989 prior to infilling the railway tunnel at point X. At this time the County Council allegedly informed British Rail that no public right of way recorded through the tunnel. This assurance appears to have been verbal and no record of it exists in the Council’s files. Network Rail has asserted that the tunnel was intended solely for a private occupation right, and that no public footpath existed through the tunnel. Network Rail supports its argument by stating that if the passage through the tunnel was public the landowner would be recorded as “Surveyor of Highways” and not Mr. Radcliffe or the Duke of Bedford depending on the records examined.

26. Network Rail are particularly opposed to the recognition of a public footpath across the railway line at point X and states it “…cannot and will not consider a reopening of the [tunnel at point X] … …Further it is also Network Rail’s policy to not allow the creation of new level crossings on its operational network, which is supported by the Office of the Rail Regulator …”.

27. In response to Network Rail’s contention relating to the private nature of the tunnel at point X, both the Planning Inspectorate’s Definitive Map Order Consistency Guidelines and Bill Riley’s 1990 Railway and Canal Deposited Plans essay published in the Rights of Way Law Review confirm that for public roads it was usual for the land owner to be identified as “ Surveyor of Highways ”, or even the surveyor’s actual name. However, little mention is made in these publications concerning the recording of footpaths and bridleways. It is likely that the railway’s surveyor made little distinction between the owner of the land and the highways surveyor for such minor highways. The recording of the footpath as a “ Footway ” and in the ownership of the local landowner is entirely consistent with the recording of other public footpaths which cross this railway line in the parishes of Brogborough and Lidlington.

28. The Lidlington and Ridgmont Parish Councils were consulted and both support BRoWA's application. Brogborough Parish Council was also consulted but has not responded at the time of writing (September 2009) despite being re- consulted.

Conclusion

29. The early Ordnance Survey maps suggest that the alleged footpaths existed as physical features between 1883 and 1925. Aerial photography from 1968 to 2002 indicates that some of these routes continued to be present as a physical feature. None of the historic documentary evidence specifically identifies public rights of way along the routes alleged to subsist by BRoWA - although the deposited railway map does depict a route which can be interpreted as probably being a public footpath. 6/9

30. The deposited railway plans for the 1845 Bedford & Birmingham & London Railway show the presence of a “ Footway ” running approximately along the line of the alleged footpath between points G and F on Appendix 1. Additionally one plan indicates a track of uncertain status crossing the railway at the tunnel’s location. Under the Railway Clauses Consolidation Act 1845, the depiction of a public right of way on a deposited plan is conclusive evidence of its existence. The depiction of a public footpath on the deposited plan would require the railway company to provide a crossing at its expense and so it is unlikely to be a drafting error in my opinion.

31. If a drafting error on the deposited railway plan is discounted, and it is assumed that a “footway” means a public footpath, we are left with the options that: A. A public footpath subsists on the depicted line across the railway to the east of point X and pre-supposes that the railway company subsequently neglected their legal duty to establish and maintain a suitable crossing; or, B. That the footpath was legally diverted and subsists on an undocumented alternate line. This alternate route either could have run along the northern side of the railway and then utilised the now blocked up tunnel, or could have crossed the railway line further to the north to then run along the southern side of the railway embankment along what is now the definitive line of Lidlington Footpath No. 21.

32. I have found no evidence to support either of these options beyond the facts that Ridgmont Parish Council did not record the presence of a footpath through the railway tunnel but Lidlington Parish Council did record the presence of Footpath No. 21 parallel to the south side of the railway line and even recorded in the path's Definitive Statement that the footpath went to Brogborough Park Farm. If members assume that the legal process was followed, even if no record remains 1, then, in my opinion, it would appear that Footpath No. 21 is the legally amended course of the footway originally depicted on the deposited railway plan.

33. There is no record of any public rights of way being legally stopped-up or diverted. Consequently, it is likely that if any of the alleged routes did exist historically they continue to do so. I have found no evidence to support the allegation by BRoWA that public rights of way subsist on the “balance of probability” over any of the routes claimed by BRoWA.

34. Case law has confirmed that a Definitive Map Modification Order should be made to add a right of way to the Definitive Map if it can be shown that such a public right of way subsists on a “ reasonable allegation” (see Appendix A at section A5). The depiction of tracks on the early large-scale Ordnance Survey maps and on later aerial photographs, when combined with the railway evidence of the possible existence of a footpath and the later description of Lidlington Footpath Nos. 18 and 21 as running to Brogborough Park Farm, suggest that the paths claimed by BRoWA could carry public rights. I have found no direct evidence to counter such an allegation. Consequently, after

1 This is known as “ the presumption of regularity ” and assumes that the due legal process was followed even if no record of it remains. 7/9 weighing all the evidence, it is my opinion that there is sufficient evidence to support a “reasonable allegation” that the alleged footpaths subsist.

35. I have no evidence to indicate a width for these footpaths and so, in accordance with Defra and Planning Inspectorate guidance (see Section A.8.), I propose these paths should have a width of 1.8 metres.

CORPORATE IMPLICATIONS Council Priorities: The processing and determination of applications made under Section 53 of the Wildlife and Countryside Act 1981 is a statutory duty of the Council.

Financial: It is likely that any order to add a public right of way to the Definitive Map would be objected to by Mr. Reeves and Network Rail. The Council cannot confirm an opposed Definitive Map Modification Order and must forward it to the Secretary of State for the Environment, Food and Rural Affairs. Officer time would be required in preparing the case to send off. If a public hearing or inquiry is necessary, the Council would have to hire a venue and officer time would be required for preparation and presentation of the Council’s case.

If the Development Management Committee resolves not to approve the making of a Definitive Map Modification Order it is likely that BRoWA would appeal against the decision. Such an appeal would be processed by the Government Office for the North- East and would require the County Council to respond to defend its decision. Based upon a recent case, it is my opinion that the Secretary of State is likely to Direct the Central Bedfordshire Council to make a Modification Order.

If a Modification Order was confirmed to add the alleged routes to the Definitive Map there would be a limited amount of work required to clear and waymark the new routes which would be done at the Council’s expense. Under the Railways Clauses Consolidation Act 1845 it would be the responsibility of Network Rail, as the track owning company, to provide a safe crossing over, across or under the railway line. As the tunnel has been blocked up it is probable that a crossing at the level or by a new bridge would have to be provided along with several flights of stairs to facilitate walkers ascending and descending the embankment. The cost for these works to Network Rail is likely to be considerable and consequently it is likely that Network Rail would strenuously object to any orders made to add a footpath across the railway.

Legal: Central Bedfordshire Council has a statutory duty under the Wildlife and Countryside Act 1981 to keep the Definitive Map and Statement up-to-date and correct and to process any applications to modify it. Case law has clarified the evidential tests required to add a right of way to the Definitive Map. The Council is obliged to make an order, if satisfied that the requisite evidence (based upon a "reasonable allegation ") exists, in order to establish a right of way, even though the order so made may be incapable of being confirmed if opposed. Failure to make an order could result in a Direction by the Secretary of State to make the order anyway.

8/9 Risk Management: A Definitive Map Modification Order does not create a new public right of way but merely recognises the unrecorded existence of the public right. Once a route is added to the Definitive Map it is appraised to determine whether any management regime needs to be applied.

Staffing (including Trades Unions): No implications

Equalities/Human Rights: No implications - beyond the possible impact on users if steps are required to climb and descend the railway embankment and potentially any footbridge constructed.

Community Safety: No implications - beyond the possibility of walker safety if the railway line is to be crossed “at the level”.

Sustainability: Whilst the cross-railway link would be a desirable link in the local rights of way network, there are existing crossings of the railway line to the north-east and south- west of point X that currently provide links between Brogborough and Ridgmont and Brogborough and Lidlington.

Appendices:

Appendix A – Legal and Policy Considerations Appendix B – Historic Documentation Appendix C – Definitive Map Process Appendix 1 – Application plan Appendix 2A & B – Parish Council survey maps Appendix 3A & B – Draft Map of Rights of Way and Definitive Map Appendix 4 – Inclosure Award maps Appendix 5 A & B – Bryant’s Map and the Ordnance Survey 1” map Appendix 6 – Bedford & Birmingham & London Railway deposited plan Appendix 7 – 1883 25”:1 mile Ordnance Survey map (1 st Ed.) Appendix 8 – 1901 25”:1 mile Ordnance Survey map (2 nd Ed.) Appendix 9 – 1910 and 1925 Finance Act valuation maps Appendix 10 – 1975 1:2500 Ordnance Survey map (4 th Ed.) Appendix 11 – 1968 and 1991 Aerial photographs

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