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SECTION 53, SCHEDULE 14 APPLICATION to SOMERSET COUNTY COUNCIL in the PARISH of MONTACUTE & CHILTHORNE DOMER 713M

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SECTION 53, SCHEDULE 14 APPLICATION to SOMERSET COUNTY COUNCIL in the PARISH of MONTACUTE & CHILTHORNE DOMER 713M WILDLIFE AND COUNTRYSIDE ACT 1981 – SECTION 53, SCHEDULE 14 APPLICATION TO SOMERSET COUNTY COUNCIL IN THE PARISH OF MONTACUTE & CHILTHORNE DOMER 713m Author: Claire Goodman-Jones (Birchill Access Consultancy Ltd) Date: 6th November 2019 (updated Jan 2020) This document is also available in Braille, large print, on tape and on disc and we can translate it into different languages. We can provide a member of staff to discuss the details. 1 CONTENTS 1. Introduction 2. The Application and supporting evidence 3. Relevant Legislation 4. Documentary Evidence 5. Landowner Evidence and Evidence from those against the application 6. Consultation and other submissions 7. Summary and Conclusion 8. Recommendation 2 1. Introduction 1.1 On 5th May, 2011 South Somerset Bridleways Association made an application under Schedule 14 and Section 53(5) of the Wildlife & Countryside Act 1981 for an Order to amend the Definitive Map and Statement by adding a public bridleway as described in paragraph 2 below. 1.2 A public bridleway can be used by the public on foot, pedal cycle and horseback. 1.3 The purpose of this report is to establish what public rights, if any, exist. 1.4 Private rights may exist, but have no place in this investigation and do not form part of the decision making process. 2. The Application 2.1 The application is based on documentary evidence. The applicant supplied a number of documents with the application, as follows: • 1766 Manors map of Yeovil, Chilthorne Domer • 1811-1817 1st OS cassini reprint • 1822 Greenwoods map • 1825 Parish Map of Montacute • 1832 Map of Chilthorne Domer manor • 1832 Chilthorne Domer Inclosure Award • 1838 Montacute tithe map • 1863 Yeovil Highway Board Records • 1884 OS boundary sketch book • 1884 OS boundary sketch map • 1899 & 1919 OS Cassini reprint • 1910 Finance Act records The application and supporting documents are held by Somerset County Council 2.2 No user evidence was submitted with the application. No evidence that the general public have used application route as a bridleway has been found during the investigation. 2.3 The claimed bridleway is shown coloured black on Appendix 1. The claimed route starts at Point A off the southern terminus of public bridleway Y17/25 near Windmill Farm and heads along a track in a south easterly direction to Point B before turning in a more northerly direction across fields and crossing parish boundaries (of Montacute & Chilthorne Domer) near Point C onto Point D before heading to Point E where it joins a public road C139 adjacent to a nursey and area called Grindlefield. A total length of 1,641 metres and approx. width of 10ft where following a defined track feature. 3 2.4 Photographs of the claimed route taken on in 2011 are at Appendix 2. 2.5 A land registry search identified that there are two registered owners for the claimed route. The Common Law presumption is that adjoining landowners own up to the centre point of the lane, in the absence of any evidence to the contary. The landownership of surrounding land is shown at Appendix 3. 3. Relevant Legislation 3.1 The Wildlife and Countryside Act 1981 specifies in Section 53(2)(b), that the County Council must keep the Definitive Map and Statement under continuous review and must make such modifications as appear to them to be requisite in the light of certain specified events. In this case section 53(3)(c)(i) is of particular relevance. This requires the Map and Statement to be modified where the County Council discovers evidence: - “that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way such that the land over which the right subsists is a public path, a restricted byway or subject to Section 54A, a byway open to all traffic” (53(3)(c)(i)). 3.2 Later in the same Act section 53(5) enables any person to apply to the Authority (Somerset County Council) for an Order to be made modifying the Definitive Map and Statement in respect of a number of ‘events’ including those specified in Section 53(3)(c)(i) of the Act as quoted above. On receipt of such on application the County Council is under a duty to investigate the status of the route. It was under these provisions that the South Somerset Bridleways Association made their application. 3.3 The purpose of Section 53 of the Wildlife and Countryside Act 1981 is to record or delete rights rather than create or extinguish rights. Practical considerations such as suitability, the security and wishes of adjacent landowners cannot be considered under the legislation. 3.4 Section 32 of the Highways Act 1980 states that “a Court or other tribunal, before determining whether a way has or has not been dedicated as a highway, or the date on which such dedication, if any, took place shall take into consideration any map, plan or history of the locality or other relevant document which is tendered in evidence and shall give weight thereto as the Court or tribunal considers justified by the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or compiled and the custody in which it has been kept and from which it is produced”. 3.5 Any changes to the Definitive Map must reflect public rights that already exist. It follows that changes to the Definitive Map must not be made simply because such a change would be desirable, or instrumental in achieving another objective. Therefore, before an order changing the 4 Definitive Map is made, the decision maker must be satisfied that public rights have come into being at some time in the past. This might be in the distant past (proved by historic or documentary evidence) or in the recent past (proved by witness evidence). The decision is a quasi-judicial one in which the decision maker must make an objective assessment of the available evidence and then conclude whether or not the relevant tests set out above have been met. 4. Documentary Evidence The table below shows documentary evidence sources examined as part of this investigation. 4.1 Enclosure Records: 4.1.1 Explanation of the type of evidence Enclosure Awards are legal documents that can still be valid today. They usually consist of a written description of an area with a map attached. Awards resulted from a need by the landowners to gather together their lands and fence in their common lands. A local Act of Parliament was needed to authorise the procedure and an Enclosure Commissioner was appointed as a result to oversee the compilation of the award and map. Land was divided into individual plots and fields and redistributed amongst the existing owners. Enclosure Awards provide statutory evidence of the existence of certain types of highway. They enabled public rights of way to be created as necessary, confirmed and endorsed and sometimes stopped up. Enclosure Commissioners surveyed land that was to be enclosed and had the power to ‘set out and appoint public and private roads and paths’ that were often situated over existing ancient ways. 4.1.2 Chilthorne Domer Inclosure Award, 1832 SHC Q/RDE/9 Appendix: 4 4.1.3 Description and interpretation of evidence The Award was made under the Chilthorne Domer Inclosure Act 1826 which incorporated the General Inclosure Consolidation Act 1801. These Acts gave the Inclosure Commissioners the power to set out public highways (including bridleways). The northern end of the claimed route from the parish boundary between Chilthorne Domer and Montacute (i.e. point D) is very clearly defined as a track feature on the Chilthorne Domer Inclosure Map. It is shaded pale brown (the same colour as adjacent allotment ‘2’) and labelled with the letter ‘C’. There is a line across the application route at its junction with the public vehicular highway at point E. The vehicular highway itself is coloured yellow. Where the south east boundary of the application route is adjacent to allotment ‘2’ the casing line is red, rather than the usual black. The award sets out route C (i.e. the northern section of the application route described above) as a public bridleway. The section of the award relating to 5 the route states:- Bridle Way – ‘also one bridleway of the breadth of ten feet marked C on the said map hereto annexed extending from the public highway leading from Yeovil aforesaid to Tintinhull in the said county of Somerset through a certain common field called Girdle Field unto and into the present public bridleway from Girdle Filed aforesaid to Montacute in the said County of Somerset. This makes it clear that the northern part of the application route was to be set out as a bridleway. Furthermore, the Commisioner was clearly of the view that the continuation of the application route within Montacute (i.e. A-C) was also a bridleway as they refer to the route that they were setting out as leading ‘into the present public bridleway’. The Commissioners were granted powers to create highways by an Act of Parliament. This map and the award therefore has very high value and they are very strong evidence that D-E was created as a bridleway in 1832 even if it had not existed as one beforehand. The Commissioners did not have powers to create highways in the parish of Montacute and therefore the Award carries less weight in relation to A-D.
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