Rights of Way Committee Agenda Item No: 7(b)

12th June 2012

West Hoathly: Application for a Definitive Map Modification Order (Application No: 2/11) to add to the Definitive Map and Statement for Rural a footpath from Finche Field, through Garden Mead and Sandy Lane, to North Lane in West Hoathly.

Report by Head of Legal and Democratic Services

Executive Summary

The application, made under the provisions of Section 53 of the Wildlife and Countryside Act 1981, has been submitted by West Hoathly Parish Council and seeks to modify the Definitive Map and Statement for Cuckfield Rural by adding a footpath from Finche Field, through Garden Mead and Sandy Lane, to North Lane in West Hoathly.

All evidence in respect of this claim is available for inspection in the Members’ Room prior to the meeting (user evidence and landowner evidence).

Conclusion

1. The application was submitted with 14 witness evidence forms which testify to use on foot between 1969 and 2011. 10 witnesses testify to use on foot for the entire relevant period of 1991 to 2011.

2. The evidence submitted by the applicant shows use to have been as of right, without force, without secrecy and without permission.

3. No evidence has been submitted against the application.

Recommendation

That a Definitive Map Modification Order, under Section 53 (2) in consequence of an event specified in sub-section 53 (3)(c)(i) of the Wildlife and Countryside Act 1981, to add a footpath from Finche Field, through Garden Mead and Sandy Lane, to North Lane in West Hoathly be made.

1. Characters and features of the route

1.1 The site of the claimed route was visited on 8th August 2011. The photographs taken on this site visit will be available for viewing on the display boards at the Committee. The claimed route is shown on the plan attached to this report, running between points A, B, C, D and E.

1.2 At point A the claimed route begins on the western end of public footpath 45WH, at the south west corner of Finches Field, adjacent to steps leading down a steep bank to Church Hill. The surface of the claimed route here is tarmac and the width is approximately 1.8 metres.

1.3 The claimed route then turns in a north westerly direction following a tarmaced path which is fenced on the eastern side and having a grass verge on the western side. Along the edge of the grass verge there are concrete posts (remnants of a fence) before the claimed route runs along side a set of garages. On the grass verge, there is a notice saying ‘LITTER maximum penalty £100’. This notice is very old and almost illegible. The width along this part of the path is approximately 2.3 metres and runs for a distance of 46 metres where the route meets point B at a width of 2.9 metres.

1.4 At point B the claimed route enters Garden Mead which is listed as a private street. The path turns in a slight westerly direction and crosses the southern side of a roundabout feature. The width here is approximately 8.8 metres with a surface of tarmac.

1.5 At point C the claimed route narrows to 3.9 metres extending across the whole width of the carriageway as it continues along Garden Mead, with houses on either side with a consistent tarmac surface.

1.6 The claimed route continues in the same direction with the same width as it approaches Sandy Lane at point D. As the claimed route approaches the western end it widens slightly to 4.4 metres and at point E, as the claimed route meets North Lane, the width is 9.7 metres.

2. Land ownership

2.1 There are two registered owners of the claimed route. Mid District Council own a very small section at point A just at the entrance to public footpath 45WH and at the top of the steps which lead down to Church Hill. Affinity Sutton, a housing association, own from point A to point D. Both registered owners have been consulted and their responses are set out in Section 5.

2.2 Sandy Lane, between points D and E on the Committee plan, is unregistered and if an order is to be made dispensation will need to be obtained for this section of the claimed route from the Planning Inspectorate.

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. 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. Members are requested to refer to pages 19 to 27 of the Guide to the Law of the Rights of Way Committee.

3.2 Council:

3.2.1 As part owner of the claimed route the Council’s response is set out in Section 5, paragraph 5.2 of this report.

3.3 The Ramblers’ Association:

3.3.1 The Ramblers’ state that they have no local archival or user evidence to either support or negate the claim.

3.4 County Councillor Christine Field, Chairman for the North Mid Sussex CLC:

3.4.1 County Councillor Christine Field felt that although the matter did not warrant going to the local CLC as it was a very local issue she understood there to be very little opposition to the application. She further felt that it was a sensible and safe route for people from to use in accessing Finche Field and beyond to the pre- school and it may even improve access into the village and village congestion if people were to use the Finche Field car park.

3.5 Public Rights of Way:

3.5.1 The public rights of way team comment that having the route recorded may help people to more easily connect with FP 45WH avoiding a narrow and bendy section of Church Hill.

3.6 None of the consultees have provided evidence which assists in negating or proving the claim.

4. Evidence submitted in support of the application

4.1 The application was submitted on 21st July 2011 by West Hoathly Parish council and is supported by 14 evidence forms providing evidence of use spanning over a period from 1969 to 2011.

4.2 The witnesses claim to have used the route as access from Sharpthorne to West Hoathly and vice versa to access local amenities like the Church, the local pub, shops in West Hoathly, the village hall and local schools.

4.3 All witnesses claim to have seen other users on foot and no one reports to have been stopped or turned back when using the route or to have been given permission.

4.4 None of the witnesses report to have seen any obstructions or notices during their use of the claimed route, however, Mr. P. Brown (use from 1988 to 2010) states there may have been a gate prior to his use on the claimed route as there were gate posts situated along the claimed route. He remembers the post being between the field and the path at its southern end where it interfaces with the existing Finche Field path.

4.5 With regards to the width of the claimed route the applicant has confirmed that it extends across the entire width of the carriageway and the majority of witnesses confirm that the claimed route is the whole width between the boundaries.

4.6 4 of the 14 witnesses state that for part of their use they have used the way or part of the way in a private capacity to visit friends and residents in Garden Mead and Sandy Lane and 1 witness claims to have exercised a private right as a landowner of no. 6 Garden Mead from 1979 to 1986. However, all 5 of these witnesses have used the path for other purposes and after their use as an adjoining landowner as paragraph 4.2 refers.

5. Evidence submitted by landowners and adjoining landowners

5.1 Requisitions for Information and consultation requests were sent out to the landowners, adjoining landowners and notice of the application was posted on site.

5.2 Mid Sussex District Council:

5.2.1 The claimed route crosses a small section of land within the District Council’s ownership at its very eastern end where the route meets footpath 45WH. Their interest in the land originates from the transfer of land to the Housing Association in the early 1990’s but the Council retained the small section as it is registered today.

5.2.2 The District Council have no objections to the application.

5.3 Affinity Sutton Housing Association:

5.3.1 Affinity Sutton are registered owners of part of the claimed route from points A to D. They have no objection to the proposed modification.

5.4 Adjoining landowner: Mr. Baker of 10 Garden Mead:

5.4.1 Mr. Baker has been an adjoining landowner for 44 years and does not consider the claimed route to be a public right of way, although he understands it to be a shortcut to Church Hill and reports to seeing users on foot, horseback and with vehicles for the past 44 years.

5.4.2 Mr. Baker believes there was a gate into Finche Field when the path was first built but it was never shut and believes he played on it as a child.

5.5 Adjoining landowner: Mrs. Davidson of 2 The Dunnings, Sandy Lane:

5.5.1 Mrs. Davidson has been an adjoining landowner for 4 and half years and understands the route to be a public right of way. Mrs. Davidson reports to have seen other users on a daily basis.

5.6 Adjoining landowner: Mr. and Mrs. Maynard of 8 Garden Mead:

5.6.1 Mr. and Mrs. Maynard have been adjoining landowners for 46 years and understand the route to be a public right of way and see users every day on foot.

5.7 Adjoining landowner: Mr. Mensinga of Providence Cottage, North Lane:

5.7.1 Mr. Mensinga has been an adjoining landowner for 1 year and considers the claimed route to be a public right of way. Mr. Mensinga uses the path to get to shops in Sharpthorne and sees other users on foot on a daily basis.

5.8 Adjoining landowner: Mr. Ward of Comwell, Sandy Lane:

5.8.1 Mr. Ward has been an adjoining landowner for 14 years and does not consider the claimed route to be a public right of way, although Mr. Ward reports to seeing other users twice daily to access local school and using for other purposes.

6. Archive and other evidence

6.1 Various historical maps of the area have been examined as part of the research into this claim, these include the 250 years of map making series, the West Hoathly 1841 Tithe Map, the Barnetts Estate Map of the area dated 1865 and the Ordnance Survey Maps.

6.2 It is not until the 1896 Ordnance Survey edition that any of the claimed route is shown and on this map base it is only Sandy Lane which is depicted. The rest of the claimed route is shown as a field.

6.3 From the 1969 Ordnance Survey onwards the entire length of Sandy Lane/ Garden Mead is shown. On this survey the path at the eastern end, leading to FP 45WH, is also depicted running along side the garages with the steps leading down to Church Hill.

6.4 It must be noted that Ordnance Survey maps, although good at showing what is on the ground, give no indication of status or the existence of a public right.

6.5 Records held by the County Council were examined as part of the investigation into the claim and these include statutory deposits under Section 31(6) of the Highways Act 1980 and the mapping stages leading up to the first Definitive Map and Statement for Worthing in 1952. There were no deposits made and no claim for a right of way along the claimed route on the draft and provisional definitive maps.

7. Consideration of claim

7.1 The application was submitted with user evidence and although archive evidence was examined as part of the investigation it is not considered conclusive as to the existence of a public right of way. Additionally, as part of the investigation, consultations were sent out to local authorities and amenity societies, as section 3 refers, and although the consultees expressed their opinions on the application none submitted evidence to prove or negate the claim.

7.2 In the absence of any other documentary evidence it is therefore necessary to rely on the user evidence provided by the applicant. In such cases where user evidence is submitted, the user evidence should be considered in accordance with the 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.

7.3 The 20 year period?

7.3.1 Under Section 31 of the Highways Act 1980, a relevant date needs to be established. The relevant date is determined as the period when the land has actually been enjoyed by the public as of right and without interruption for a full period of 20 years taken back retrospectively from the first date of challenge.

7.3.2 Acts like obstructions or notices would constitute a challenge to use. 1 witness and 1 adjoining landowner mention in their evidence the potential existence of a gate at point A on the claimed route. Please refer to paragraphs 4.4 and 5.4.2 above. Mr. Brown states the gate was not in existence during his period of use only the gate posts remained and Mr. Baker believes the gate was in existence when the path was first built but was always kept open. There is no evidence of a gate on the claimed route today. Both reports of a gate do not constitute evidence of an obstruction and not a challenge to use and there is no other evidence to suggest otherwise.

7.3.3 The act of making and submitting the application is taken to be the point when use by the witnesses was first brought into question as, according to the evidence summarised above, no prior challenge has come from the landowners, no obstructions have been placed on site and use is continuing today. The relevant period therefore runs retrospectively from the date the application was submitted 1991 to 2011. All of the witnesses have used the claimed route during the relevant period and there are 10 witnesses who claim to have used the claimed route throughout the entire 20 year period (1991 to 2011).

7.4 As of right and without interruption?

7.4.1 The House of Lords has recently provided guidance on the meaning of the phrase “as of right”. It has been confirmed that this phrase means without force, secrecy or permission. However while it had been thought that the users of a path had to believe they were entitled to use the route in order for their use to be as of right, that is no longer the case. It is irrelevant whether the users actually knew they were not entitled to use the route or were indifferent as to whether they could use it. What is important is that looked at objectively they appeared to be using the path as of right.

7.4.2 All 14 witnesses claim to have used the route without secrecy and without force. The question that arises is whether use has been with permission and as such not ‘as of right’. 4 out of the 14 witnesses state they have exercised a private right to use part or the entire claimed route during some of their claimed use to visit friends and residents in Garden Mead and Sandy Lane. However, they have at other times used the claimed route to access local amenities for recreational purposes and so their use can be considered as of right. 1 other witness claims to have exercised a private right whilst owning no. 6 Garden Mead from 1979 to 1986, however this use, whilst it can be considered to have been exercised as part of a private right during the period of ownership, was before the relevant period. Their use continued until 2011 spanning throughout the relevant period for recreational purposes and can therefore be considered as of right for the relevant period.

7.4.4 With regard to the issue of ‘permission’ a distinction needs to be drawn between toleration and permission. A landowner may be aware of the use of a path but chooses to do nothing to prevent that use. In those circumstances, even if he later makes it clear he did not support the use of the path during the relevant period, his actions could be regarded as toleration of the use during that period. This means the use could still be regarded as being as of right. However the situation would be different if the landowner permitted the public to use the path but made clear (either expressly e.g. by a sign or through his conduct e.g. by closing the path occasionally) that his consent could be withdrawn in the future. In that case the use would be with permission and not as of right.

7.4.5 No evidence from a landowner has been submitted to suggest that use was with permission, that use was not ‘as of right’ and further providing evidence of a lack of intention to dedicate. The claimed use itself has not been objected to by a landowner or interested party.

7.4.9 It is considered on the balance of probabilities that the relevant tests under the Wildlife and Countryside Act 1981 have been met.

8. CRIME AND DISORDER ACT IMPLICATIONS

The Definitive Map Modification Order process involves the application of legal tests, which mean that it is not possible to give substantial weight to any effect on crime and disorder in this area.

9. HUMAN RIGHTS ACT 1998 IMPLICATIONS

9.1 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.

9.2 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.

9.3 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.

9.4 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.

10. EQUALITY ACT 2010 – CUSTOMER FOCUS APPRAISAL

10.1 The Committee should be aware that the Equality Act 2010 bans unfair treatment, and seeks equal opportunities in the workplace and in wider society. It also introduces a Public Sector Equality Duty (PSED). The PSED requires us to have due regard in all decision making processes to the need to:

a) Eliminate discrimination, harassment, victimisation or other prohibited conduct;

b) Advance equality of opportunity between persons who share a relevant protected characteristic and those who do not; and

c) Foster good relations between those who share a relevant characteristic and those that do not share it.

10.2 The relevant protected characteristics are age, disability, gender reassignment, marriage/ civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

10.3 No relevant impact upon any of the protected characteristics in the Equality Act 2010 emerged during the consideration of this application.

Background Papers

(a) Application (DMMO 2/11)

(b) Evidence submitted in support including 14 public way evidence forms

(c) Consultation replies

(d) Evidence submitted by landowners, adjoining landowners and other interested parties

(e) Archival and Other Information

Contact: Tanneth Melhuish Ext: 56731

TONY KERSHAW Head of Legal and Democratic Services