APPLICATION FOR A DEFINITIVE MAP MODIFICATION ORDER FOR ADDITIONAL LENGTH OF PUBLIC FOOTPATH AT CASTLETT BANK, PARISH OF

REPORT OF THE COMMISSIONING DIRECTOR FOR COMMUNITIES & INFRASTRUCTURE

1. PURPOSE OF REPORT

To consider the following application:

Nature of Application: Additional public footpath Parish: Guiting Power Name of Applicant: Raymond Sheasby, Guiting Power Parish Footpaths Warden Date of Application: 28 September 2009

2. RECOMMENDATION

That no order be made to add a public footpath, due to insufficient evidence

3. RESOURCE IMPLICATIONS

Cost of advertising Order in the local press, which has to be done twice, is approximately £500 per notice. In addition, the County Council is responsible for meeting the costs of any Public Inquiry associated with the application. If the application were successful, the path would become maintainable at the public expense.

4. SUSTAINABILITY & EQUALITY IMPLICATIONS

No sustainability or equality implications have been identified.

5. STATUTORY AUTHORITY

Section 53 of the Wildlife and Countryside Act 1981 imposes a duty on the County Council, as surveying authority, to keep the Definitive Map and Statement under continuous review and to modify it in consequence of the occurrence of an ‘event’ specified in sub section [3]. Any person may make an application to the authority for a Definitive Map Modification Order on the occurrence of an ‘event’ under section 53 [3] [b] or [c]. The County Council is obliged to determine any such application that satisfies the required submission criteria in accordance with schedule 14 of the Act.

6. DEPARTMENTAL CONTACT

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Andrew Houldey, Asset Data Officer (PROW Definitive Map), Definitive Map Unit, Highway Records, Asset Data Team. Telephone Gloucester (01452) 328984 E-mail: andrew.houldey@.gov.uk

REPORT

7. DESCRIPTION OF PATH

7.1 A location map at scale 1: 10,000 is attached (numbered 1A) showing the position of the claimed path, which runs in a generally south-easterly direction along the top of the woods at Castlett Bank to join public footpaths HGP 6 and HGP 7. A more detailed plan at scale 1: 3,000 (numbered 1B) shows the claimed path between points A, B and C. The area of interest lies within Ordnance Survey Grid Square SP 0925.

7.2 The path was inspected on 26 February 2009, 11 March 2015, 22 October 2015 and 19 November 2015.

7.3 The claimed route from the unsurfaced county road 50574 (Sheep Hill to Barton Lane) at point A. When the path was inspected on 26 February 2009 the junction with the road at point A was obstructed by wire and impassable. The Ordnance Survey map of 1922 shows that it joined the road 50574 just to the south of the gate across the way where it leaves the woods at Castlett Bank. The road 50574 is unsurfaced and passes through two hand gates; it runs from Guiting Power village to the former Castlett Mill, crossing the stream by a ford and then continuing north to Castlett Farm.

7.4 The claimed route runs at the top of the woods known as Castlett Bank for approximately 380 metres from point A to point B. At point B the path crosses a now much dilapidated stone wall by a stone slab stile. The stone slab stile is still extant but much overgrown; the applicant supplied a photograph of the slab stile when it was less obscured by vegetation. When the path was inspected on 26 February 2009, there was an old wire stock fence immediately to the east of the slab stile which obstructed access to the claimed route.

7.5 The way then leaves the woods and passes over a pasture field to join public footpaths HGP 6 and 7 at point C. The distance between points B and C is approximately 290 metres. The footpath HGP 7 is separated from the field at point C by a stockproof sheep wire fence. The 1977 Ordnance Survey maps show a boundary here also; according to the applicant the claimed route formerly crossed this boundary by a kissing gate. The 1922 Ordnance Survey map shows HGP 7 as being open to the field. In the hedge immediately to the east of point C is another stone slab stile on footpath HGP 7, of a similar pattern to the one where the claimed route passes into the woods at Castlett Bank.

7.6 The obstruction of the path by fences at points A, B and C and the dense undergrowth within the wood between points B and C mean that passage along the claimed route is now difficult.

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7.7 The claimed path is approximately 670 metres in length.

8. BACKGROUND

8.1 Morag Sloan, Clerk to Guiting Power Parish Council enquired on 22 November 2007 on behalf of the Parish Council regarding “certain well used but unofficial local footpaths [that] have been closed to the public” and asked about the process for making a claim.

8.2 An application pack was sent to Raymond Sheasby, a parish councillor, on 29 August 2008.

8.3 On 11 September 2008 Mr Sheasby forwarded the following to the County Council: (a) a public path evidence form completed by himself; (b) a 1923 Ordnance Survey map showing the claimed route which is annotated “F.P.” on the map; (c) a list of “residents of Guiting Power who have walked these paths for years” which included seventeen names; and (d) a letter from Roland Greenfield to the Parish Council dated 2 December 2007

8.4 The letter from Roland Greenfield states: “I have been approached by a member of your committee concerning our family’s use of certain footpaths since our coming to the village in 1986. I can confirm that we have used the following footpaths as indicated by the late Mrs Keith for local walks with our children: …. Path along the top of Castlett Bank at the bottom of the The Leasows, from the Sweet Escotts’ Garden, Moore Cottage, to the stone stile at the corner of The Leasows to two stone stiles in the hedge rows coming out at Castlett Farm’s new “Alternative track”. The emergence at this juncture has been obliterated at this time….”

8.5 Mr Sheasby’s letter of 11 September 2008 also included an annotated plan showing the route that he wished to claim. This ran along the top of Castlett Bank, crossed public footpath HGP 7 and then continued east to Moor Cottage. He indicated on the map that the footpath had been blocked at either end of the section through Castlett Bank woods and the position of stone stiles at the eastern end of Castlett Bank and at the junction of footpaths HGP 6 and HGP 7.

8.6 Mr Sheasby’s map and evidence form indicated that he then wished also to claim an additional section of path east from the junction with footpath HGP 7 to Moor Cottage on the road to Barton.

9. APPLICATION

9.1 An application was made on 17 March 2009 by Raymond Sheasby of 4 The Square, Guiting Power, Footpath Warden for Guiting Power Parish Council, for an additional length of footpath from Castlett Bank to the junction with footpaths HGP

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6 and 7. The Form 1 (Form of Application) was dated 17 May 2009 and the Form 3 (Certificate of Notice) was dated 9 July 2009.

9.2 The application was received by the County Council on 10 July 2009; the applicant was informed that they would need to serve notice on the Guiting Manor Amenity Trust in addition to Mr S Forbes. A revised application form and service of notice was received on 28 September 2009 and the application was accepted as being duly made on 1 October 2009.

9.3 Notice was served by the applicant on the landowners: Mr S Forbes, Cotswold, Tally Ho Lane, Guiting Power, Gloucestershire and The Guiting Manor Amenity Trust, The Estate Office, The Square, Guiting Power, Gloucestershire, GL54 5UR. Mr Forbes has subsequently moved to Castlett Mill Farm, Barton Lane, Guiting Power.

9.4 A total of 11 public path evidence forms, completed by 11 named individuals, were submitted in support of the application. A summary of these evidence forms can be found at appendix 1C and a chart showing length of use can be found at 1D

10. LANDOWNERS’ EVIDENCE

The woodland at Castlett Bank (section A to B of the claimed path) is owned by the Guiting Manor Amenity Trust and the field (B to C of the claimed path) is owned by Stephen and Judith Forbes.

10.1 Mr Stephen and Mrs Judith Forbes, Castlett Mill Farm, Guiting Power The Forbes have owned the land in question since 1997, purchasing it from Mr K Wyatt. They have lived at Castlett Mill Farm since 2010. They commented on the application on 19 October 2015, noting that the way is not included on their Land Registry entry

“There was, and is still visible, an old stock fence and wire running along the boundary to Castlett Wood [point B]. It is evident this was in place long before we purchased the land from Mr K Wyatt in 1997. He informed us in 2009 that he was not aware of any footpath, and consulted his solicitor about the matter. He said he had turned a blind eye to people walking off the footpath (D to E [HGP 6]), but only around his arable field 5532 (there was no access through to the now farmyard) as he had no stock at this site”.

“The attack and death of sheep on the bank from uncontrolled dogs escaping over the river was reported to the police, and they recommended we should put up signs on the path D to E [HGP 6], as stated in the Countryside Act, asking to people to keep their dogs under control when livestock is grazing the stubble turnips. These were anonymously removed, and despite electric fencing of increasing distance from the footpath each year, a minority choose to disregard this. Resulting in the fact we feel this would escalate if this pathway was permitted, resulting in enormous concern for the welfare of our sheep and lambs”.

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They also note concern with regards the safety with the increasing rural crime in the area…”with rural crime ever increasing, it must be understandable, and regrettable to state, that by the creation of a footpath and inviting people to walk very close to our farmyard and home, it may compromise the security of our property, and question whether there is any liability, and where we stand legally if any instances should happen, as a result”.

Mr and Mrs Forbes made additional comments in a letter received 19 November 2015. This included “verbal evidence collected by ourselves, in 2009 when we were made aware of this proposal and collected at this present time”.

They state that there was no visible evidence of a path across this field at the time. “The said path was not purposively blocked as we had no legal evidence that it existed. A stock fence was erected and moved for grazing and safety of tractors turning in 1997 upon ownership, to replace the existing one as it was no longer stock proof. Previous wire and fencing in situ across and down boundaries.

The no right of way sign was to inform people that they would no longer be able to access Barton Lane by walking across the arable field 5532, as we had put a gate in to prevent livestock from escaping….

There is still evidence that there was an existing stock fence and wire running across the stile and down the boundary into Castlett wood [point B]”

“Stephen Forbes states that as children, if they were caught in the wood by Mr Arthur Harding, Manager of Guiting Farm, they were asked to leave as they were not allowed to be there”.

They then repeat the statement from their previous letter that Mr Keith Wyatt, the previous owner of the land, had said in 2009 that neither himself or his solicitor were aware of the footpath, and add that Mrs Dorothy Boundy and Mrs Margaret Gauntlett (both longstanding residents) were also unaware of the footpath in question. All three are now deceased. Three further residents state that they were not aware that the way was a footpath.

10.2 Guiting Manor Amenity Trust (GMAT) The Guiting Manor Amenity Trust began in 1976 as a successor to the Guiting Manor Trust. The Manor Trust had been formed by E R Cochrane, who had bought Guiting manor in 1958, with "the object of furthering charitable purposes in Guiting Power and elsewhere". The new Amenity Trust was established to provide clearer guidelines for future Trustees in the use of Trust income. Source: National Archives catalogue entry

Registered Charity Number: 272435 Address: The Estate Office, The Square, Guiting Power, , Gloucestershire GL54 5UR Telephone: 01451 850351 Constitution: Trust Aims and Objectives: The conservation of land and buildings of beauty and historical interest within the Parish and elsewhere, especially in the Cotswold Hills

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Source: Charity Commission website

The Guiting Manor Amenity Trust is responsible for the management of the 800 hectare estate including the upkeep and letting of around half of the village housing, most of which is vernacular buildings.

The amenity value of the estate is an important aim of the Trust, so agri- environmental schemes, such as the new Higher Level Scheme, have been taken up to help maintain and enhance the management of unimproved pasture and public access. Source: Farming and Wildlife Advisory Group case study leaflet

Following a telephone conversation with a representative of the Trust on 17 September 2015, Charles Arkell, one of the trustees, stated that the trust had “no comment and no objection” to the application.

11 DOCUMENTARY EVIDENCE

The following sources have been examined by the County Archivist at Gloucestershire Archives to see whether this path is marked in any way and to establish its status. The sources have then been checked by the Asset Data (PROW Definitive Map) Officer in the Definitive Map Unit.

11.1 Guiting Power Inclosure Award, 1798 (Q/RI 72) Award only, no map. Area inclosed: 983 acres (excluding roads). 'Open arable and common fields, downs, pastures and commonable lands'. Commissioners: John Chamberlin of Cropredy, Oxon; Francis Webb of Salisbury, Wilts; John Stone of Pull Court, Glos. Surveyor: Edward Webb of Stow-on-the-Wold. Award: 1798 copy, (original filed and enrolled 1801), allotment in lieu of tithes; money rents in lieu of tithes where owners had little land in the open fields and common from which allotment could be made; allotment to the parish constable in lieu of ten sheep commons; names of open fields, commons, furlongs and old inclosures. Schedule of persons liable to pay expenses of fencing the tithe allotments with a stone wall; schedule of payments towards expenses by copyholders; schedule of owners paying annual sums in lieu of tithes, with amount and property.

…Do set out award and confirm such public and private Roads and Ways through the said Inclosure…that is to say

WINCHCOMBE TURNPIKE ROAD The present Turnpike Road extending from the village of Guyting Power in a Northwest and West direction between certain Common Fields and Downs called Quarry Hitching the North Downs and Castlett Mill Field to its usual entrance into Castlett Inclosures and adjoining a certain old Inclosure in the Liberty of Rowell to be continued as usual agreeable to the direction of the said Act PUBLIC BRIDLE and DRIFT ROAD called Road and Footway &c Also one Road of the breadth of twenty feet branching out of the said Winchcomb Turnpike Road on the North side thereof and extending first in a Northward direction by the West side of an Allotment hereinafter awarded to the Vicar of

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Guyting Power aforesaid from thence in a Northeastward direction into and over part of the Northwest side of the said last mentioned Allotment to its entrance into the East corner of an Allotment hereinafter awarded to the said John Walker in lieu of tithe hay and from thence in a Northwest direction in its usual course through and over the Northeast side of the last mentioned Allotment, the Allotment for tithe hay of the Westfield or Caldicott Farm and through and over the fourth Allotment hereinafter awarded to the said John Walker in lieu of his Manor lands to its usual entrance into Castlett old Inclosures which said last mentioned and described road is hereby ordered and directed to be and remain a Public Bridle Road and Footway

ALL WHICH said mentioned and described Roads respectively are and are hereby ordered and directed to be and remain public Roads for all purposes whatsoever as the same are now admeasured staked and set out

PUBLIC BRIDLE and DRIFT ROAD called Farmcote Road and Footway &c Also one Road of the breadth of twenty feet branching out of the said Winchcomb Turnpike Road on the North side thereof and extending first in a Northward direction by the West side of an Allotment hereinafter awarded to the Vicar of Guyting Power aforesaid from thence in a Northeastward direction into and over part of the Northwest side of the said last mentioned Allotment to its entrance into the East corner of an Allotment hereinafter awarded to the said John Walker in lieu of tithe hay and from thence in a Northwest direction in its usual course through and over the Northeast side of the last mentioned Allotment, the Allotment for tithe hay of the Westfield or Caldicott Farm and through and over the fourth Allotment hereinafter awarded to the said John Walker in lieu of his Manor lands to its usual entrance into Castlett old Inclosures which said last mentioned and described road is hereby ordered and directed to be and remain a Public Bridle Road and Footway

ALSO as a Private Carriage road and Driftway for the use of the Owners and Occupiers of the respective Allotments through and over which the said Road passeth for time being Also for the Owners and Occupiers for the time being of an old Inclosure belonging to John Rayer situate in Castlett Corner the Hamlet or Liberty of Farmcote Woodmill Woodhouse and Castlett Mill

AND ALSO for the use of all manner of persons for the purpose of going to and from the several Woods called Farmcote Wood Guyting Wood and Castlett Wood

CASTLETT MILL ROAD And also one other Road of the breadth of twenty feet branching out of the said Winchcombe Turnpike Road on the Northeast side thereof in the said Village of Guyting Power extending in its usual course in North Northwest West and Southwest directions into through and over the Allotments hereinafter awarded to John Williams William Wood and Jane Wood respectively and the fourth Allotment also hereinafter awarded to the said Vicar for Tithes situate near Castlett Mill to its communication with the last described road at the Northwest side of the said last mentioned Allotment which said last mentioned Road it is hereby ordered and directed shall be and remain a Public Bridle Road and Footway

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ALSO as a private Carriage and Drift Road for the use of the several Owners and Occupiers for the time being of the several Allotments through which the same passeth old Inclosures belonging to Thomas Hyatt which he holds under the said John Walker, two Inclosures of the said John Walker one whereof was taken in exchange from Powell Snell Esquire and Inclosures of the said John Williams and William Wood which said five last mentioned Inclosures lie adjoining each other, and of Castlett Mill and Castlett Farmhouse

PUBLIC FOOT ROAD from BARTON and GUITING to HALLING LODGE And also one other public foot road of the breadth of four feet branching out of the west side of Castlett Mill Road at the South East corner of the Allotment to John Williams extending over the Southeast side of the same Allotment to its communication with the said Winchcombe Turnpike Road and after crossing the said Road extending Westward between certain Cottages and Gardens belonging to the said Powell Snell John Walker and Williams Robins held under the said John Walker to through and over the Allotment hereinafter awarded to the said John Walker in lieu of his right of soil from thence in a Southwestward direction over the Northwest end of Studfurlong and over the Downs being the second Allotment hereinafter awarded to the said John Walker in lieu of part of his Manor Lands to its usual entrance into the said Inclosure called the Warren belonging to Halling Lodge

FOOT ROAD to the WOOD HOUSE Also one other public foot road of the like breadth of four feet branching out of the said Winchcomb Turnpike Road on the North side thereof at Sheephill Bank extending Northwestward in its usual course into through and over the Allotment hereinafter awarded to the said John Walker in lieu of half a yardland and Commons claimed by the Devisees of Thomas Vernon deceased to its usual entrance into Castlett Old Inclosures WHICH said last described Roads it is hereby ordered and directed shall be and remain Public Foot Roads as the same are now admeasured staked and set out

PRIVATE CARRIAGE ROAD for JOHN WALKER and JOHN WILLIAMS And one other Private Road of the breadth of Ten feet branching out of the Castlett Mill Road on the east side thereof at or near the South corner of the said old Inclosure of the said Thomas Hyatt held under the said John Walker extending Northeastward by the Southeast side of the same Inclosure to its entrance into an old Inclosure belonging to the said John Walker taken in exchange of the said Powell Snell which said last described Road shall remain continue and be a private Carriage Road and Driftway to and for the use of the Owners and Occupiers for the time being of the last mentioned Allotment and Inclosure until the said Inclosure of the said Thomas Hyatt shall become also the property of the said John Walker his heirs and assigns but no longer

PRIVATE ROAD for JOHN WILLIAMS And also one other Private Road of the breadth of Ten feet branching out of the said Castlett Mill Road on the East side thereof extending in its usual course eastward and northward through and over the said Allotment of the said William Wood to its usual entrance into an old Inclosure of the said John Williams which said last described Road shall remain continue and be a Private Carriage Road

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and Driftway for the use of the Owners and Occupiers of the last mentioned Allotment and Inclosure for the time being

The above are extracts from the Award that are possibly relevant to the claimed way.

11.2 Guiting Power Inclosure Act 1798 38 Geo III (Q/RIa/72) Includes powers to set out private and public roads

11.3 Tithe map, 1842 (GDR/T1/88, 89, 90) Tithe map for Castlett Hamlet. Does not include the area of interest. There are two other tithe maps covering portions of Guiting Power (GDR/T1/89 and GDR/T1/90). They do not show the area of the claimed route either.

11.4 Ordnance Survey 25” to 1 mile, 1880s edition, sheets Glos 21.13 and 21.14 (1E) Western section of claimed path shown running along the top of Castlett Bank, north of Castlett Mill, by one full line and one pecked line and annotated “F.P.” At the eastern end of Castlett Bank, the path is shown dividing into two paths. The more westerly is shown leading to plot 183. The more easterly of the two paths runs south-east along the claimed route to join four other paths and is labelled “F.P.” where it enters parcel number 174.

11.5 Ordnance Survey 25” to 1 mile, 1903 edition, sheets Glos 21.13 and 21.14 (1F) Western section of claimed path shown running along the top of Castlett Bank, by one full line and one pecked line and annotated “F.P.” At the eastern end of Castlett Bank, the path is shown dividing into two paths, both shown by twin pecked lines and annotated “F.P.”. The more easterly of the two paths runs south- east along the claimed route to join four other paths, all labelled “F.P.”, at its eastern end. Castlett Mill (disused) is shown and named on the map. An “Old Mill Pond” is shown at the end of Well Lane, approximately 80 yards south-west of the Windrush at OSGR SP 094249. No mill is shown.

11.6 Ordnance Survey 25" to 1 mile, 1922 edition, sheets Glos 21/13 and 21/14 (1G) Western section of path shown by one solid and one pecked line at the top of Castlett Bank and annotated “F.P.”. At the eastern end of Castlett Bank, the path is shown dividing into two paths, both shown by twin pecked lines and annotated “F.P.”. The more easterly of the two paths runs south-east along the claimed route across field number 186 to join four other paths, all labelled “F.P.” at its eastern end. Boundary features are shown at the western end of the claimed route across the road to Castlett Farm and also at the eastern end of Castlett Bank.

11.7 Ordnance Survey 1: 2,500 National Grid SP 0825-0925 (1977) (1H) Map does not show rights of way, only physical features. Claimed route not shown.

11.8 Ordnance Survey 1” to 1 mile map, 1st edition, surveyed 1815

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Castlett Mill shown and named, road to Castlett Mill shown as is the outline of the Castlett Bank woods. Claimed route is not shown.

11.9 Bryant, Map of Gloucestershire, 1824. Shows road to Castlett Mill and Wood Mill from Guiting Power and the road from Barton to Castlett Farm. Area shown, claimed route not shown

11.10 Greenwood, Map of Gloucestershire, 1824 (D10820/Maps/1/1) Area not shown in detail

11.11 Inland Revenue, maps compiled under the Finance Act, 1910, based on Ordnance Survey 25": 1 mile, c.1902 edition, marked up by Inland Revenue c.1915, and reference books or files (D2428). D2428/3/21/13 and 14 –The Castlett Bank portion of the route is shown running through hereditament 1, while the eastern section through the field runs through hereditament 24.

D2428/2/83 – Form 37s. There is no sheet held for hereditament 1. The sheet for hereditament 24 shows a £60.00 reduction for public rights of way or user, but the OS evidence is that several footpaths run through that hereditament, so it is impossible to be sure that the claimed route is included in this reduction.

11.12 Maps deposited with County Planning Officer under Rights of Way Act, 1932 S1, 3 (CP/D). None deposited

11.13 Parish Council file, Rights of Way Act, 1932. Nothing deposited

11.14 Duplicate copies of tithe or inclosure awards PC1812/88 – Amalgamated modern hand drawing of all three Guiting Power tithe maps. Checked – doesn’t show area of claimed route

11.15 Private estate maps D6432/2/4 - Sale particulars for Manor of Castlett in Lower Guiting and two cottages and gardens in Donnington, 1869. Checked, area of claimed route not shown.

11.16 Footpath or highway diversion orders deposited with Clerk of the Peace (Q/SRh) None held

11.17 Plans of public schemes deposited with Clerk of Peace (Q/RUm) Q/Rum38 and 54 – both checked; neither show Guiting Power in any detail

11.18 District Council Clerk's correspondence DA23/132/24 - Rights of way: general correspondence, 1950-1962, 1962-1970, 1970-1975 (3 files). Checked – not relevant.

11.19 County Council Solicitor's correspondence

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K596/27/4 – North RDC objections file, 1954. Checked – not relevant.

11.20 County Surveyor: papers relating to survey of footpaths under National Parks and Access to Countryside Act, 1949 (K687) Parish Submission (K687/1/9/17) (1J) Routes claimed by the Parish Council are shown on the submission map by red ink. Claimed route is shown marked by a red ink line and numbered 3 in pencil, but is shown hatched through, as if subsequently deleted. The accompanying schedule drawn up by the County Surveyor describes 3 as a FP, and makes the query “Why closed? Shown on OS (1924 edition)”. The following remark is made “old walk used by [illegible]”. Objections to the Draft Map for North Cotswold RDC (K687/2/7/23, 24) Checked. Not obviously relevant. Provisional Map and Statement (K687/3/14) Provisional map. Route not claimed

11.21 Tony Drake archive (Ramblers’ Association) (D12676) D12676/2/1/40 – Guiting Power file, 1970-88. Checked, not relevant. D12676/3/9/22 - Correspondence file related to diversion of road at Guiting Power (1998). File relates to the diversion of unclassified road 50573 at Castlett Farm. Searched, not relevant.

11.22 Guiting Power Parish Council Minutes (supplied by Parish Council) (1I) Parish Council Minute Book, referring to a meeting on 1 October 1898, which recorded that: “The clerk was instructed to ask Mr C B Stanley “Waywarden” to call attention of the Winchcombe Highway Board to the dangerous part of the footpath between the Old Mill and Barton Brook Stile.”

11.23 Winchcombe Highway Board Winchcombe Highway Board was established in 1863 and included Guiting Power parish. Minutes 1895-99 (HB21/M/1/2) Searched 10 September 1898 to 25 March 1899. On 25 March 1899 the Highway Board ceased to exist and highway matters were transferred to the Rural District Council under s.25 of the Local Government Act 1894.

11.24 Mills and Milling in Gloucestershire by M J A Beacham (Tempus, 2005) Contains list of all recorded watermills in the county [over 800], including the following: SP091257 Guiting Power Castlett Mill corn mill after 1754 SP099245 Guiting Power The Dyers corn mill? 17c; rebuilt 19c last work after 1851? Status 7H [house]

11.25 The Mills of Gloucestershire by Stephen Mills and Pierce Riemer (Barracuda Books, 1989) p.121 “The Windrush has supported numerous mills over the centuries, some of which are still standing. The first edition Ordnance Survey shows a succession, the highest being Wood Mill, on the edge of Guiting Wood, followed by Castlett Mill,

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near Guiting Power. These were followed by mills at , Aston and Bourton on the Water…”

12. CONSULTATIONS

12.1 Guiting Power Parish Council The Parish Council are the applicants. Their comments can be found in section 13 of the report.

12.2 Council Sophia Price, Heritage and Design Manager, replied on 12 October 2015: “I refer to your consultation…and confirm that this Authority has no comments to make on this proposal.

12.3 County Councillor Councillor Nigel Moor, the County Council for the Stow Division, which includes Guiting Power, was consulted on 22 September 2015.

12.4 Ramblers’ Association Mary Hamilton, Footpath Secretary for the North Cotswolds Ramblers was consulted on 22 September 2015.

12.5 Open Spaces Society Gerry Stewart, Local Correspondent for the Open Spaces Society, was consulted on 22 September 2015.

13. APPLICANT

The application was made by Mr Raymond Sheesby in his capacity as Parish Footpath Warden. Geoffrey Cuthbert, his successor as Footpath Warden for Guiting Power Parish Council, wrote on 12 February 2015, stating that the footpath application between Castlett Bank and HGP 7 was to re-establish an historic footpath as depicted on the 1902 Ordnance Survey map. They pointed out that this map predated the Guiting Manor Trust by many years and thus use would have been as of right.

The Parish Council further wrote on 2 March 2015 enclosing the map accompanying the Higher Level Stewardship agreement made by the Guiting Manor Amenity Trust, pointing out that it did not include the area over which the claimed path ran.

On 10 March 2015 Mr Cuthbert wrote enclosing additional evidence, taken from the Parish Council Minute Book, referring to a meeting on 1 October 1898, which recorded that: “The clerk was instructed to ask Mr C B Stanley “Waywarden” to call attention of the Winchcombe Highway Board to the dangerous part of the footpath between the Old Mill and Barton Brook Stile.” A copy of the relevant page was attached. (see appendix 1I)

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The County Council wrote to the Parish Council on 12 February 2016, giving them the opportunity to comment upon the representations made by Mr and Mrs Forbes. No response has been received.

14. OTHER OBSERVATIONS

No other comments have been made

15. LEGAL COMMENTS AND CONCLUSIONS

15.1 Section 53(3)(c)(i) of the Wildlife and Countryside Act 1981 relates to the discovery by the Authority of evidence that shows that a right of way that is not shown on the map and statement subsists, or is reasonably alleged to subsist, over land in the area to which the map relates.

15.2 Section 31(1) of the Highways Act 1980 states that where a way over any land, other than a way of such 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 deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.

15.3 Section 31(2) states that the period of 20 years in sub-section (1) is to be calculated retrospectively from the date when the right of the public is brought into question whether by a notice or otherwise. The twenty years usage must furthermore be “without interruption” and the requirements of Section 31 will not be met if “there is sufficient evidence that there was no intention during that period to dedicate it”.

15.4 Before making an order, the surveying authority must be satisfied that the evidence discovered by the Council, when considered with all other relevant evidence available, shows that, on the balance of probabilities, the Definitive Map and Statement require modification because a right of way which is not shown on the Map and Statement subsists, or is reasonably alleged to subsist. (R. v Secretary of State for the Environment, ex parte Bagshaw and Norton [1994] and in R. v Secretary of State for Wales, ex parte Gordon Emery [1997]) (Emery) an Order should be made if either of the following tests is met:

Test A, does a right of way subsist on the balance of probabilities? There must be clear evidence in favour of the appellant and no credible evidence to the contrary;

Test B, is it reasonable to allege that a right of way subsists? If there is a conflict of credible evidence, and no incontrovertible evidence that a way cannot be reasonably alleged to subsist, then it must be a reasonable allegation.

15.5 Section 31(9) of the Highways Act 1980 says that nothing in this section operates to prevent the dedication of a way as a highway being presumed on proof of user

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for any less period than 20 years. If there is no presumption of dedication under Section 31 of the 1980 Act, then we will also consider whether the evidence is such as to establish, again on a balance of probabilities, dedication at Common Law.

15.6 We need to consider whether there has been a full 20 years use by the public of the claimed routes and, in order to do this, we have to ascertain whether there has been an overt act on the part of the landowner to bring it home to users that their right is being challenged. The 20 years use, for the purposes of Section 31, is to be dated retrospectively from this date of challenge (s.31(2)).

15.7 There is no fixed method by which the public’s right is brought into question, though one (the erection of a notice) is expressly referred to in Section 31(3). The House of Lords in R (on the application of Godmanchester and Drain) v SSEFRA [2007] is the most recent case addressing the meaning of s.31(2) as to what act or acts constitute “bringing into question”. Godmanchester endorses earlier judgments in this regard.

15.8 The words “or otherwise” in Section 31 (2) leave the matter at large. In R v SSETR ex parte Dorset County Council 1999 Dyson J stated that the challenge had to be communicated to the user and that the test to be applied is that set out by Lord Denning in Fairey v Southampton CC (1956). Denning said “In order for the right of the public to have been brought into question, the landowner must challenge it by some means sufficient to bring it home to the public that he is challenging their right to use the way, so that they may be apprised of the challenge and have a reasonable opportunity of meeting it”.

15.9 The methods by which the public’s right to use the way might be brought into question could include: the locking of a gate; putting up a notice denying the existence of a right of way; seeking a declaration that there is no highway over the land in question or physically preventing a walker from proceeding along a path. “Whatever means are employed… they must be sufficient at least to make it likely that some of the users are made aware that the owner has challenged their right to use the way as a highway... The persons to whom the challenge has to be brought home are the users of the way”. (Lord Dyson in R v Secretary of State for the Environment, Transport and the Regions ex parte Dorset CC (1999).

15.10 The House of Lords in R (on the application of Godmanchester and Drain) v SSEFRA [2007] is the most recent case addressing the meaning of s.31(2) as to what act or acts constitute “bringing into question”. Godmanchester endorses the earlier judgments of Fairey and Dorset County Council in this regard.

15.11 The act that brought the right of the public to use the way into question seems to have been the erection of new stock fencing at point C by the landowner in 1997. This had the effect of separating the claimed route from footpaths HGP 6 and 7. According to the applicant, there had formerly been a gate at this point, which was presumably removed at this time.

15.12 The evidence forms corroborate the landowner’s evidence that this fence was erected shortly after they bought the land in 1997. Both witness number 4

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(Nicholas Bumford) and no. 10 (Zoe Sheasby) state that they stopped using the path in 1997, while Roger Swallow (no. 9) stopped using the path in 1994. He marks the fence at point C as an obstruction on the map accompanying his evidence form. Janet Boote (number 3) refers to a “no right of way” sign that appeared at point C c.2000, and this notice is also referred to by Mr E Boote (no.2). Nicholas Bumford (no.4) states that the sign said “Private Land” but he takes the erection of the fence and the accompanying sign in 1997 to be a bringing into question, as he states that he assumed that it was a right of way until the land changed ownership and the sign was put up. The landowner, Mr Forbes, states that the sign said “no right of way” and that it was directed at walkers who were crossing the arable field north of point B to C to reach Barton Lane. However, it has been taken by witnesses to refer to the claimed path.

15.13 It is reasonable to take the erection of the fencing at point C and an accompanying sign at the same position in 1997 as bringing into question the right of the public to use the claimed route. Site visits undertaken in 2009 showed a path that appeared also to have been deliberately obstructed by wire at the western end and it was extremely difficult to walk because of undergrowth through the wood. At point B, outside of the stone slab-stile, along the boundary of the wood there was a barbed wire fence, which is visible on the undated (pre-2009) photograph supplied by the applicant. It seemed apparent that the path had sometime before fallen into disuse.

15.14 If we take the date of challenge as 1997, then the relevant period for the purpose of section 31(1) of the 1980 Highways Act is 1977 to 1997. It is not essential for the path or way to have been used for the full period of 20 years by the same persons; use by different persons, each for periods of less than 20 years, will suffice if, taken together, they total a continuous period of 20 years or more (Davis v Whitby (1974)). Nor does it matter that the use is not continuous in the sense that it may not have occurred everyday.

15.15 Consideration should first be given as to whether use is “as of right”, that is without force, secrecy or permission. The aims of the Guiting Manor Amenity Trust are set out in paragraph 10.2. They are a charity, who allow permissive access on foot to parts of their estate and have entered into a Higher Level Stewardship (HLS) agreement over land in Guiting Wood. Certain ways adjoining HGP 6 and 7 were signposted as permissive footpaths by blue GMAT discs when the claimed route was inspected on 26 February 2009, but they did not include the claimed way. There is no deposition made under section 31(6) of the 1980 Highways Act covering the Amenity Trust land, and the HLS agreement, which makes provision for permissive access on foot, does not include the area over which the claimed route runs.

15.16 We now need to consider whether there has been sufficient use of the claimed way by walkers in a manner that could be supportive of a claim to record the way as a public footpath. The earliest reported use is from the late 1940s (no.3 Janet Boote) with an additional witness reporting use since the 1950s (no.2 Mr E Boote) and another since 1960 (no.7 H Joynes). One of the witnesses, Tony Swallow (no.11), who used the path between 1961 and 1970, was at that time an employee of Castlett Farm, so his use is not as of right. In addition, Nicholas Bumford (no.4)

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is an employee of Guiting Manor Farms, so his evidence of use over the section within the ownership of Guiting Manor Amenity Trust (A to B) would not be as of right.

15.17 Taking 1977 to 1997 as the relevant period for the purposes of section 31, then we have only one witness (H Joynes) who has used the path throughout the whole of the relevant period. However, given Davis v Whitby, the long use during the earlier part of the relevant period by Janet Boote and Mr E Boote is complemented by other evidence forms relating to the latter part of the 20-year period.

15.18 There is no statutory minimum level of user required to show sufficient use to raise a presumption of dedication. Use should have been by a sufficient number of people to show that it was use by ‘the public’ and this may vary from case to case. Often the quantity of user evidence is less important in meeting these sufficiency tests than the quality (i.e., its cogency, honesty, accuracy, credibility and consistency with other evidence, etc.)

15.19 It was held in Mann v Brodie (1885) 10 App Cas 378 that the number of users must be such as might reasonably have been expected, if the way had been unquestionably a public highway. It is generally applicable that in remote areas the amount of use of a way may be less than a way in an urban area. Guiting Power had a population of 296 in 2011; it is also a popular area for tourists and walkers.

15.20 R v SSETR (ex parte Dorset) [1999] accepted that, although the evidence within five user evidence forms was truthful, it was insufficient to satisfy the statutory test. The finding did not consider whether use by five witnesses would satisfy the test.

15.21 The use can be broken down by year: 1977-80, 4 users; 1980-82, 2 users; 1982- 83, 3 users; 1983-84, 4 users; 1984-88, 5 users; 1988-90, 6 users; 1990-93, 6 users; 1993-94, 7 users; 1994-97, 6 users. It can be seen that only between 1988 and 1997 is there evidence from six or more users. For the period 1980 to 1982 there are only two users (no.6 Betty Joynes and no.7 H Joynes), both of whom only used the path several times a year.

15.22 Section 31(2) of the Highways Act states that the 20 years use must be without interruption. An “interruption” has been defined as “an actual and physical stopping of the public’s enjoyment” (Merstham Manor Ltd v Coulsdon and Purley UDC (1937) 2KB 77) as opposed to an act that merely challenges the public’s right. It is not a mere absence in the continuity of use. Moreover, such interruption must be with the intention to prevent public use. None of the witnesses note any such interruption to use of the claimed footpath.

15.23 The presumption is that the way has been dedicated through long user by the public, unless the landowner can demonstrate sufficient evidence of a lack of intention to dedicate (through overt acts directed at the path users). No evidence of any action overt action directed at path users prior to 1997 has been discovered, although Mr S Forbes asserts that as children (1960s-70s) “if they were caught in the wood by Mr Arthur Harding, Manager of Guiting Farm, they were asked to leave as they were not allowed to be there”. It is not however certain whether this refers to the path itself or to the wood generally.

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15.24 The judgment R (on the application of Godmanchester Town Council) v S of S for Environment, Food and Rural Affairs; R (on the application of Drain) v S of S for EFRA, 2007 affirms that it is not the case that any evidence of a lack of intention to dedicate is sufficient; there has to be an overt act or acts on the part of the landowner to show the public at large that he has no intention to dedicate.

15.25 Evidence of a lack of intention to dedicate might include the direct challenging of path users, the locking of gates (provided that this was with a view to preventing public use rather than for example, for stock control) or the erection of suitably worded signs. No evidence has either been provided or discovered that (prior to 1997) the landowners have taken any action that either brought into question the right of the public to use the paths or showed that they did not intend to dedicate the claimed paths to the public.

15.26 Under Section 32 of the Highways Act 1980, when 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 such weight thereto as the court or tribunal considers justified in 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.

15.27 There is an Inclosure Award of 1798 for Guiting Power, but it does not have an accompanying map. The significance of inclosure awards to rights of way arises from their value as legal documents giving effect to the creation or extinguishment of public highways, depending on the powers given to the Inclosure Commissioners. Awards and maps may also provide supporting evidence of other matters, such as the existence or status of public rights of way over land adjacent to but outside the awarded area. It is possible to tentatively identify the roads set out in the Award, by reference to the bounds of allotments set out in the Award, including the Winchcombe Turnpike Road, Castlett Mill Road and the Farmcote Road. The possibility that the public bridle and drift road called Farmcote Road set out by the Award could be identified with the claimed route was considered, especially as the award grants a private vehicular right to the owners and occupiers of Castlett Mill, an inclosure at Castlett Corner and for the purpose of going to and from Farmcote Wood, Guiting Wood and Castlett Wood. Without a map it is not possible to positively identify (on the balance of probabilities) the way set out in the Award with the claimed route. It should be noted that Castlett Wood is 1,550 metres north-west of Castlett Bank (it is shown and named on the 1923 OS Map).

15.28 The way is not shown on either Bryant’s Map of Gloucestershire (1824 or, the Ordnance Survey 1” to 1 mile map (surveyed 1815). It is however shown on the large scale Ordnance Survey plans of the 1880s, 1903 and 1922 by a mixture of double pecked and pecked and full lines running along the top of Castlett Bank and then continuing across an open field to join the present footpaths HGP 6 and HGP 7 at point C, and labelled “F.P.”, as is an eastward continuation towards Moor Cottage.

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15.29 Ordnance Survey maps have since 1889 carried a disclaimer that any representation of a road, track or path is no evidence of the existence of a right of way over it. The 1905 Instructions to O.S. Field Examiners by the Director General of the O.S., page 19 stated “The Ordnance Survey does not concern itself with rights of way, and Survey employees are not to enquire into them”. Despite this they were instructed to show routes that were “of use or interest to the public” and to only show a clearly marked track if “it is in obvious use by the public”. Ordnance Survey maps do provide evidence of the physical existence and extent of a way, suggesting (but not proving) that the path has been in use for a longer period than that for which user evidence is available. Showing the way as a Public Footpath in the 1880s, 1903 and 1922 is only evidence that it appeared to the surveyor for the Ordnance Survey that the way had the character of a footpath or was then being used as a footpath; it is not evidence that it carried certain rights.

15.30 Further evidence that the way may have been a public footpath is provided by the stone slab stile at point B, which is similar to one just to the east of point C on public footpath HGP 7. The Parish Council considered claiming the way in their submission of paths made under the 1949 National Park and Access to the Countryside Act. The way is shown on the submission map and then crossed out. The County Surveyor’s notes record “Why closed? Shown on OS (1924 edition) and then remarks “old walk used by [last word is illegible]”

15.31 The evidence supplied by the Parish Council from their minute book for 1898 is not conclusive. “The clerk was instructed to ask Mr C B Stanley “Waywarden” to call attention of the Winchcombe Highway Board to the dangerous part of the footpath between the Old Mill and Barton Brook Stile.” If we take the Old Mill to be Castlett Mill, which was disused by 1903, then this entry could reasonably be taken to refer to the claimed route; however, the 1903 Ordnance Survey map also shows an Old Mill Pond at the end of Well Lane, close to the present path HGP 7, so the entry could conceivably refer to this latter path instead. The Winchcombe Highway Board minutes do not include reference to this footpath.

15.32 The path is shown as a public footpath on the Ordnance Survey large scale plans for the 1880s, 1903 and 1922, and this evidence, although not conclusive, is supported by the physical existence of the stone slab stile at point B. The Parish Council considered claiming the path under the 1949 Act, but it was recorded as being closed at that time. The Inclosure Award cannot be interpreted as referring to the claimed route, and the 1898 Parish Council minute book entry, although requesting repair of the way by the then Highway Authority, could also be taken to refer to another path.

15.33 The evidence of use supplied by the applicant does not, in the opinion of the officers, constitute sufficient evidence to raise a presumption that it has been dedicated as a public right of way. There are ten public path evidence forms that relate to the relevant period (1977-1997) but use is not frequent, and there are less than six evidence forms relating to the period 1977-88 and only two for the period 1980-82. It is apparent that the path has not been used recently, and is now obstructed by overgrowth and wire fences making its passage difficult. When the claimed route was inspected in 2009, there was no obvious sign of a path

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within the woodland between points A and B. A wire fence had apparently obstructed the path at point B for a considerable period before the bringing into question in 1997. No complaints were received by the County Council regarding the blocking of the claimed path and the erection of no right of way signs in 1997 and no interest was shown in claiming the path until 2007, ten years later.

15.34 It is thus the opinion of the officers that there is insufficient evidence to support making an order to add the claimed footpath to the Definitive Map.

APPENDICES

A. Location map, 1: 10,000 scale B. Plan showing claimed route, 1: 2,500 C. Summary of user evidence submitted in 2009 D. Table showing length of use E. Ordnance Survey 25” to 1 mile, County Series map, 1st edition, 1880s F. Ordnance Survey 25” to 1 mile, County Series map, 2nd edition, 1903 G. Ordnance Survey 25” to 1 mile, County Series map, 3rd edition, 1922 H. Ordnance Survey 1: 2,500 National Grid map (1977) I. Parish Council Minutes for 1 October 1898 J. Extract from Guiting Power Parish Submission Map, made under the 1949 National Parks & Access to the Countryside Act

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