Monmouthshire County Council
Countryside Access
Draft Report: Definitive Map Modification Order: Box Cottage, The Narth, Trellech 2020
File Ref: 12Mod _FP406A Box Cottage, The Narth
Index Page No.
1. Introduction: Background ...... 1 - 3
2. Legal Basis ...... 4 - 6
3. Highways Act 1981 s31(1) Tests ...... 7 - 9
4. The 1999 Objections ...... 10 - 11
5. User Evidence Forms ...... 12 - 13
6. Historical Map Evidence ...... 14 - 30
7. The Definitive Map and Statement ...... 31 - 37
8. The Highway Records ...... 38
9. Natural Environment and Rural Communities Act 2006 ...... 39 - 41
10. Site Photographs ...... 42
11. Pre-Order Consultations ...... 43 - 45
12. Conclusion ...... 46 - 48
13. Recommendation ...... 49
Glossary
BOAT ...... Byway Open to All Traffic BR ...... Bridleway CRF ...... Cart Road Footpath CROW 2000...... Countryside and Rights of Way Act 2000 DEFRA ...... Department for Environment, Food & Rural Affairs DMMO ...... Definitive Map Modification Order DM&S ...... Definitive Map and Statement FP ...... Footpath GRO ...... Gwent Record Office LOS ...... List of Streets MCC ...... Monmouthshire County Council MPV ...... Mechanically Propelled Vehicles NRW ...... Natural Resources Wales NERC 2006 ...... Natural Environment and Rural Communities Act 2006 NPACA 1949...... National Parks and Access to the Countryside Act 1949 OMA ...... Order Making Authority OSS ...... Open Spaces Society PRO ...... Public Record Office [KEW] PROW ...... Public Rights of Way RB ...... Restricted Byway RUPP ...... Road Used as Public Path WCA 1981 ...... Wildlife and Countryside Act 1981
1. Introduction
BACKGROUND 1.1. A Definitive Map Modification Order Application (“The 1991 Application”) was submitted by Trellech United Community Council on the 8th November 1991 to register the Route, A to B, (Fig 1.1) shown by a bold broken line as a public footpath (FP 465 [406A] Trellech) in the Community of Trellech. Appendix 1.1 is the location map with an insert of an ordnance survey map details the Route.
Fig. 1.1: Plan showing Route, A to B, by a bold dashed line.
1.2. The 1991 Application was assessed as valid with all the certificates correctly completed. Two application certificates, notify the adjoining landowners, were sent to them. These are dated 8th November 1991 and 22nd October 1992.
1.3. Although the 29 user evidence forms did not have plans attached the description of the Route claimed “from C50-8 near Box Cottage westwards to 406 and 437” (Public Footpath number 406 Trellech) is clearly indicated on each form. Of the 29 respondents, all record using the Route on foot. The user evidence is detailed in a time line chart (Appendix 1.2).
1.4. A pre-order consultation was conducted. On the 9th February 1993 the representative of the Open Spaces Society made an objection to the adding of a footpath to the Definitive Map and Statement (DM&S). The representative’s grounds for objection were based on historical mapping evidence that in his opinion suggested higher public rights (Appendix 1.3.1 & 1.3.2).
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1.5. Regardless of this pre-order objection the Report, to the Chair and Vice Chair of the Planning Economic Development and Tourism Committee, was submitted for consultation under the delegation scheme and finally signed on the 28th October 1999 (Appendixes 1.4.1 to 1.4.3).
1.6. The Report proceeded with the recommendation that states: “I am proposing, therefore, to make a Modification Order under Section 53(2)(b) of the Wildlife and Countryside Act 1981, as applied by Section 53(3)(b) in respect of adding the route from the County Unclassified Road No 50-8 known as Narth Lane to the Public Footpath No 406 to the Definitive Map of Public Rights of Way as Public Footpath No 465 [406A] as shown from A to B on the attached plan.” (Fig.1.1).
1.7. The Report, having recommended making the order under the wrong section under also incorrectly states that; “No objections to the route being registered as a Public Right of Way were received though the local representative of the Open Spaces Society opined that the route should have the status of bridleway.”
1.8. Following consultation under the delegation scheme it was agreed to proceed to make the Order regardless of the opinion of the Open Spaces Society representative. The Order was dated the 15th November 1999 (“the 1999 Order”) of which the Notice of making the DMMO was posted on site and advertised on the 17th November 1999 (Appendixes 1.5.1 to 1.5.3).
1.9. Although the report recommendation refers to section 53(3)(b) the 1999 Order was made under the correct section 53(3)(c)(i). However, the Order was still incorrect as the relevant date can only be six months prior to the date of the making of the Order. The dates on the 1999 Order of less than a month invalidated it. Therefore, it was agreed between officers at the time to re-draft the 1999 Order which was dated the 10th July 2001 (“the 2001 Order”) (Appendixes 1.6.1 to 1.6.3). The Open Spaces Society representative submitted his objections to both the 1999 and 2001 Orders (Appendixes 1.7 & 1.8).
1.10. A brief was passed to the National Assembly of Wales and the Planning Inspectorate noted that the dates on the 2001 Order were more than six months also invalidating it.
1.11. To correct this error an Individual Cabinet Member Decision (ICMD) report was considered to withdraw the 2001 Order with the provision that it was remade correctly. This report was submitted on the 25th February 2015 and approved on the 26th February 2015.
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1.12. In respect of all the above reasons the current officers have fully investigated all the relevant historical and documentary evidence and conducted a pre-order consultation in which the representative of the Open Spaces Society has sustained his objection.
This has resulted in the writing of this detailed Report.
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2. Legal Basis
2.1. The Wildlife and Countryside Act 1981 (WCA) section 53(3)(c)(i) provides the legal tests that applies to highway that has not been shown on any map and ought to be recorded on the Definitive Map and Statement (DM&S).
2.2. Section 53(3)(c) of the WCA 1981 is distinct from other sections of it as with this section historical evidence is uncovered to support the claim (or amendment or otherwise) for a path.
2.3. Highways Act 1980 (HA) section 31(1) provides the statutory foundation for the occurrence of an event under the WCA 1981sections 53(2). It is therefore necessary to consider the relevant sections of the HA 1980 in assessing the tests that must be met for the 20 years use and these are detailed in Chapter 3.
2.4. The Natural Environment and Rural Communities Act 2006 (NERC) also a compulsory Act that applies tests to cases like these has in this instance no bearing on this claim. The details of this are in Chapter 9.
Wildlife and Countryside Act 1981 s53:- (2) As regards every definitive map and statement, the surveying authority shall – (a) as soon as reasonably practicable after the commencement date, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence, before that date, of any of the events specified in subsection (3); and (b) as from that date, keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence on or after that date, of any of those events, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event. Wildlife and Countryside Act 1981 s53:- (3) The events referred to in subsection (2) are as follows – (c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows – (i) 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;
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Discovery of Evidence 2.5. Planning Inspectorate guidance summarises the position on discovery of evidence that has evolved through Case Law:- In Mayhew it was argued that in order to be discovered, evidence had to previously have been unavailable to the authority. This argument was rejected. The judge, Potts J, adopted parts of the judgment in R v Secretary of State for the Environment ex parte Simms and Burrows where it was said that: “the word ‘discovery’ suggests the finding of some information which was previously unknown, and which may result in a previously mistaken decision being corrected”.
2.6. In addition, Potts J adopted the following passage from Simms and Burrows:- “In particular I am satisfied that section 53(3)(c), with its use of the word ‘discovery’, embraces the situation where a mistaken decision has been made and its correction becomes possible because of the discovery of information which may or may not have existed at the time of the definitive map”.
2.7. In the court’s view the meaning of “to discover” is to find out or become aware. The phrase implies a mental process of the discoverer applying their mind to something previously unknown to them.
2.8. In terms of discovery of evidence in the current case, it is noted that discovery need not exclude documents held in the archives at the time of drafting the definitive map, 1952- 1967. The Finance Act Records of 1910 only became available for public inspection from 1979 onwards.
2.9. This should, however, be considered in conjunction with the clarification offered in later case law where the court noted that:- “It is plain that the section [53(3)(c)] intends that a definitive map can be corrected, but the correction… is dependent on the ‘discovery of evidence’.”
2.10. In order to qualify as a discovery for the purposes of this case then, evidence that existed at the time is able to qualify, though must be new in the context of evidence previously considered and the submission of evidence cannot be illegal use of an existing way. Also, evidence already considered in a hearing or otherwise at an earlier stage is precluded from forming the basis of a discovery.
Standard & Existence of Evidence 2.11. Where there is no indication that the proper procedures were significantly departed from the standard of evidence that needs to be produced is that of actual positive
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evidence, of some substance, showing a contrary position to the one included on the Definitive Map and Statement.
DMMO Process 2.12. It should be noted that the DMMO process seeks to ensure rights are correctly recorded as they exist and is an exercise in modifying the definitive map to reflect such a position. It is not within the remit of the DMMO process or order to give consideration to matters such as privacy; the future or current necessity or usefulness of a route (though such factors may assist where they constitute evidence of past use).
LEGAL TESTS – DISCOVERY OF EVIDENCE 2.13. In this case the Council received the application in 1991 along with a report consisting 29 user evidence forms describing the Route being “from C50-8 near Box Cottage westwards to 406” (that is existing public right of way number 406 Trellech).
2.14. The discovery of evidence is determined from both the user evidence and the historical documentation which when taken together shows that the Route has only public footpath rights.
2.15. It is not possible to show that the historical records were referred to in the process of the compilation of the Definitive Map and Statement. While recognising that this lack of surviving evidence does not prove that no consideration was given, it is proposed that the submission of the historical documents at least, should be considered sufficient for a discovery under s53(3)(c)(i).
LEGAL TESTS – STANDARD OF EVIDENCE 2.16. While the historical evidence is, in this case, demonstrated to be sufficient to prove public footpath rights it is also required to be enough to rebut any objections made in respect of the level of rights specified in the Order. Additionally, the evidence should be tested by way of a DMMO under s53(3)(c) of the WCA 1981, which requires all the relevant evidence to be taken into account thereby meeting the requirement for the ‘discovery of evidence’ as set out under that Act.
2.17. In 1991 the applicants wishing to verify access to Trellech Common submitted the claim to register a public footpath under the WCA 1981 s53(3)(c)(i). The calling into question of the route, for the purposes of the HA 1980 section 31, is therefore the application dated 8th November 1991.
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3. Highway Act 1980 s31(1) Tests
Highways Act 1980 s31 (3) Where a way over any land, other than a way of such a character that use of it by the public could not give rise at Common Law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a Highway unless there is sufficient evidence that there was no intention during that period to dedicate it.
Common Law 3.1. This section stipulates that when the status of a route is being investigated the first consideration is to the common law position and then to apply any necessary restrictions to status imposed by statute in respect of restricted byways and byways open to all traffic.
3.2. There is public use but under Common Law there is no presumption of dedication because although landowners are present and have been notified there is no single specific registered landowner to dedicate the Route, A to B.
3.3. Halsbury states1: “Both dedication by the owner and user by the public must occur to create a highway otherwise than by statute. User by the public is a sufficient acceptance. And – an intention to dedicate land as a highway may only be inferred against a person who was at the material time in a positon to make an effective dedication, that is, as a rule, a person who is absolute owner in fee simple; and At common law, the question of dedication is one of fact to be determined from the evidence. User by the public is no more than evidence, and is not conclusive evidence… any presumption raised by that user may be rebutted. Where there is satisfactory evidence of user by the public, dedication may be inferred even though there is no evidence to show who was the owner at the time or that he had the capacity to dedicate. The onus of proving that there was no one who could have dedicated the way lies on the person who denies the alleged dedication”.
3.4. It is understood that the inference of dedication may arise in three ways: i) From the fact that the owner has done exactly what one would expect from any owner who intended to dedicate a new highway that is to express dedication allowing the public free use from the time it was completed.
1 Halsbury’s Laws of England (Volume 55 ‘Highways’)
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ii) From evidence that the way was already recognised as being a highway by the start of the period covered by living memory, coupled with the absence of anything to show that the public recognition was misplaced. In this type of case the common law approach simply distinguishes that the facts all conclude the same thing, and that it is immaterial that the claimant cannot identify the early owners or show the actual date when dedication was likely to have occurred2. iii) From use and enjoyment by the public as of right, known by the owner and conceded by him. The owner’s recognition of the fact that the public is using the way as a highway may itself be a matter for inference, rather than clearly proven fact3.
3.5. It is the second option that will mostly likely apply in this case.
3.6. Presumption of dedication by continuous use relies on each element of the HA1980 section 31(1) being met. These are considered below by reference to the application and evidence as submitted thus far.
Where a way over any land… 3.7. The land over which the alleged public rights run is an access to various properties and is also the route that most people use to enter Trellech Common. The Route connects the existing public highway C50-8 to the registered public footpath 406 Trellech shown on the Definitive Map and Statement, relevant date 1st July 1952.
3.8. The key for the Ordnance Survey maps records the Route as being a “fenced minor road”.
…other than a way of such a character that use of it by the public could not give rise at Common Law to any presumption of dedication… 3.9. Ways cannot be claimed where use has been criminal or where access barred by any statutory provision. In this case a local resident reports, in his letter dated 9th December 1999 (Appendix 4.1), the vandalism of a wooden stile. The extent of damage to the wooden stile has resulted in it being replaced with a metal kissing gate.
…has been actually enjoyed… 3.10. Evidence forms indicate continuous use of the Route for leisure walking and access to Trellech Common.
…by the public… 3.11. There is historical and user evidence that indicates that use has been both public and private.
2 See e.g. Williams Ellis v Cobb [1935] 1 KB310 (CA) 3 See e.g. Parker J in Webb v Baldwin and others (1911) 75 JP 564 at p565
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…as of right… 3.12. Is taken to indicate use that has occurred without force, secrecy or permission (nec vi, nec clam, nec precario). Force 3.13. There is no implication that the Route, A to B, was used by walkers with force; that any obstruction to the Route was destroyed or dismantled, in gaining access; or any challenge was issued in the evidence thus far submitted. Whereas, other users, such as horse riders and motor cyclists, have reportedly and illegally used registered public footpath 406 dismantling the wooden stile at point B demonstrating forced use of the Route. Secrecy 3.14. Use is indicated to have been open and continuous without any inference of stealth or subterfuge for walkers. While horse riders and motor cyclists have illegally and forcibly used the existing public footpath and the Route. Permission 3.15. No respondents indicate that they were given permission to use the Route for access.
…without interruption for a full period of 20 years… 3.16. Sufficient use of the way must be shown for a 20-year period. The user evidence submitted reports public and private access along the Route in some capacity and was made continuously by 29 users, reporting their use of the Route on foot, for longer than the required 20 years.
…no intention during that period to dedicate it. 3.17. Under the HA 1980 section 31(6) no deposit is recorded in respect of the Route. No other indication of an overt intention not to dedicate, notwithstanding the comments above (particularly regarding private vehicular use), is demonstrated within the evidence supplied with the 1991 Application.
3.18. It must be acknowledged that an intention not to dedicate and an outline of any action taken in supporting such a position typically arises as a response to an application rather than within an application itself. An assessment that no intention to dedicate appears to have existed at this point must therefore be considered without prejudice to
the likelihood of any future evidence being uncovered in the course of the DMMO.
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4. The 1999 Objections
4.1. The Open Spaces Society representative stated in his letters dated 10th December 1999 and the 6th August 2001 (Appendixes 1.7 & 1.8) that he wished to make a “Formal Objection!” The grounds for objection are: 4.1.1. The surveyors in the 1950s under the then 1949 National Park and Access to the Countryside Act 1949 considered the Route to be of a higher status. The reason for this is because the Definitive Map (Fig. 7.4) shows existing FP 406 to terminate when it joins the Route.
4.1.2. The Route was undeniably a cartroad to access Trellech Common, such commons were a very important resource to the local populace in earlier times.
4.1.3. The 1910 Finance Act Working Plan also indicates it was a white (public) road. (That means if a route is uncoloured or “white out” then it is understood that such a route is considered to have the higher status of road that is maintained at public expense.)
4.1.4. Case law “R v Secretary of State for the Environment ex-parte Hood (1975)” is referred to by the Open Spaces Society as support for a presumption that at least Bridleway rights exist.
Comments 4.1.5. It is an assumption to say that the surveyor thought this or did that. However, the fact remains that the surveyor did not extend public FP406 over the Route and it remains unrecorded on the Definitive Map. The reasons for this is unknown and this DMMO endeavours to amend this short fall by registering the Route as a footpath to join up the existing public footpath 406 with the public highway network.
4.1.6. Mr D. O. Morgan’s reference of Trellech Common and the Finance Act Map have been further investigated. Although these two documents, in part suggest higher rights they, when compared with other historical documents, do not stand alone to prove public rights for equestrians, cyclist and motorists. On balance, when all the historical evidence is taken together, it is reasonable to suggest that only public footpath rights exist. This is detailed in Chapter 6.
4.1.7. The Hood law case (R v Secretary of State for the Environment ex-parte Hood (1975)) refers to a reclassification of a registered “road used as a public path”
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(RUPP) to a footpath (essentially a downgrading). This does not support the making of this DMMO which is based on new evidence discovered, for adding a route that was and has never been recorded on the Definitive Map and Statement.
4.2. Mr R. A. Emms of Rose Cottage, The Narth, objects in his letter dated 9th December 1999 (Appendix 4.1) to the registration of the Route as a public footpath. His grounds for objection are not valid as he concedes that the way does exist.
Comments 4.2.1. Adding a route on the Definitive Map and Statement is a method of recording that public right that already exists and need, nuisance and/or suitability cannot be taken into account when determining cases such as this one.
4.2.2. The Order Making Authority is under a duty to consider all Definitive Map Modification applications to register routes and can only consider evidence which either supports or negates a claim. The grounds of objection submitted by Mr R. A. Emms are not suitable to contradict the claim that the Route is a right of way.
4.3. For the reasons already laid out in this report it is necessary to re-investigate the user and historical evidence and re-make this DMMO.
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5. User Evidence Forms
5.1. The information reported in the evidence forms and the results tabled in a time line graph (Appendix 1.2) indicate that out of the 29 submissions one used the Route in a vehicle for a period of 36 years. While only three equestrians used the Route for less than the 20-year period. This shows that the Route is not utilised by the public at large as a through route by vehicles, horse drawn carts, horse riders or cyclists.
5.2. All 29 users report walking the Route, A to B. Out of the 29 users no one recalls being regularly challenged on use of lane, or obstructed by barriers and/or signage for walking the Route.
5.3. The users do report “one stile into wood” meaning that only walkers ever gained access to the wood by firstly negotiating the stile.
5.4. Only one user recalls a gate at the entrance of the lane while three users report the gate at Box Cottage to have been removed/disappeared. The indication of a gate suggests that the route was not a public through road for motorised vehicles, horse drawn carts or horse riders.
5.5. The Open Spaces Society representative Mr D. O. Morgan states in his letter dated 9th February 1993 (Appendix 1.3.1 & 1.3.2) that: “The Finance Act Plan shows most of the section (465)[406A] as a road, while there does seem a shortfall of a small section at the western end, I think this really a mistake by the surveyor at the time, as a site visit clearly reveals it is an ancient route probably a Bridleway onto Trellech Common. To Summarise, it is my opinion as both the Def. Map and the 1910 finance act plan show it a highway of higher status than a footpath, it seems to myself, the only modification would be to add to the Def. map as a Bridleway.”
5.6. The applicant was asked whether or not she wished to proceed with registering the Route as either a public footpath or bridleway in letters dated 6th November 1996, 15th October 1997 and the 20th May 1998. The applicant replied on the 31 May 1998 stating that they wished to proceed with registering the Route as a public footpath only.
5.7. A file note dated 9th October 1992 (Appendix 5.1) recording that Mr Luxmore-Ball called to say the he had no objection to the registration of the public footpath. Mr Luxmore- Ball’s suspicions of a local landowner also owning the Route are unsupported by the October 2020 Land Registry MapSearch Snapshot (Appendix 5.2). The Route is
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shown by this document as unregistered and not included in any adjacent landowner’s control.
Concluding comments 5.8. The office files have no complaints from any of the users stating that they were not able to gain access to Trellech Common.
5.9. Evidence forms only show public footpath rights and do not sufficiently support public vehicular, or equestrian rights over the Route. Confirming that the Route has only public footpath rights and these should be registered on the Definitive Map and Statement.
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6. Historical Map Evidence
The Parliamentary Enclosure Award Act of 1810 6.1. The Enclosure Award Map, dated 9 March 1821 (Fig. 6.1), shows the Route, A to B, as referenced ‘No. LXXVIII Public Footway 4 feet’. In other words, this route has been given a number 78 and is described as a ‘public footway’ with a width of 4 feet. This is the only route on this section of the Enclosure Award that is given the term ‘public footway’.
6.2. It is also shown here that the extent of landownership for plot 1198 includes the width of the ‘public footway’. This suggests that the landowner Ann Morris did not disagree with the laying out of this footway over land in her control.
6.3. Also shown on this Enclosure Award is Lot number 175 which suggests that Ann Morris was considering selling parts of her land that is later reflected in other historical maps. The point here is that even at the time when the Enclosure Awards were compiled it was not inconceivable to have both a public and a private route utilising the same alignment for access to places of interest and/or properties.
B
A
Fig. 6.1: The Enclosure Award Map 9th March 1821: not to scale: Gwent Record Office Ref: Q/Inc. Aw. 2 page G 6.4. The process of the compiling the Enclosure Award involved landowners wishing to maximize the land available to be allotted, and would therefore seek to minimize the number of highways laid out. So the utilisation of a laid out highway for both public and private rights is feasible although this resulted in a number of conflicting issues. Namely, if the way were a public right of way the liability to maintain it fell on the public.
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Or, if a way was laid out as a private right of way the Award would also specify which landowners were to bear the costs of repairing it.
6.5. Furthermore, landowners who would have to bear the costs for repairing a private right of way may have been tempted to argue for a public right of way to be dedicated. They would still use it, but the costs of maintaining it would be spread among the public of the parish (by which one means those wealthy enough to pay the parish rate), not just one or two landowners. Conversely, parish rate payers were likely to scrutinize proposed public rights of way carefully before agreeing to them which would imply an ongoing responsibility for maintenance costs.
6.6. Enclosure Awards as evidence, when considering definitive map modification orders, hold substantial legal weight as it was these awards that created the network of roads and ways, and in some cases extinguished old ones. Furthermore, the Enclosure Awards went through an extraordinary consultation process prior to being settled in the courts. The Enclosure Award is an Act of Parliament that declares the right of way to exist at that date. This means that only a legal stopping-up order would rebut the claim of the existence of a road or way shown within an Enclosure Award.
A detailed translation of the Preamble included with the Maps. [The Margin Title]. The Act of 1810 (the Act) imposed a duty on the Commissioner to set out and appoint Public and Private Roads and Footpaths…. Etc. 6.7. In the 41st year of the reign of the King the Act authorised the Commissioner firstly to set out and appoint the Public Carriage Roads and Highways before he made any of the Divisions and Allotments directed by the Act.
Direction stipulated by the 1810 Act 6.8. The Commissioner was empowered by the Act to judge as necessary and divert, turn and stop-up any of the roads and highways that affected the land in the region. He was also to ensure that the roads and highways remain at least thirty feet wide. In addition to this the Public Carriage Roads and Highways should be set out in such directions that on the whole would appear to him most commodious to the Public.
6.9. The Commissioner was then required to: ascertain the roads by marks and bounds. prepare Maps with the intended roads accurately laid down and described. deposit the endorsed Map showing the roads with the Clerk for the inspection of all Persons concerned.
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give Notice of the deposited Map showing roads in some Newspaper named in the Act and, fix the same Notice on the church door of the parish so affected.
6.10. Once the Commissioner had set out the roads and deposited the Map showing the general lines of the intended Carriage Roads he was to arrange a meeting to be held in a convenient place in the affected parish or Township. The Meeting to be held could not occur any sooner than three weeks from the date and publication of the Notice.
6.11. At this Meeting it was lawful for any person who might be injured or aggrieved by the setting out of such roads to attend. Furthermore, if any person should object to the setting out of the roads then the Commissioner or Commissioners together with the Justices of Peace would hear and determine the objection and the objections of any other such person to any alteration that the Commissioner had proposed to make.
6.12. The Commissioner was then required according to the best of his judgement to order and finally direct how such Carriage Roads should be set out and either to confirm the said Map or make such alteration thereon as the case might require.
6.13. The Commissioner was empowered and required to set out and appoint such Private Roads, Bridleway, Footways, Ditches, Drains, Watercourses, Watering places, Quarries, Bridges, Gates, Stiles, Mounds, Fences, Banks, Bounds and Landmarks in, over, upon and through or adjoining the allotments to be made and set out in accordance with the Act as he saw fit.
6.14. Then he was, again, to give Notice and examination equal to the process carried out for the Public Roads. The Award states that the Private Roads or Paths should be made now, forever be supported, kept in repair by and at the expense of the landowners and proprietors, for the time being, of the area to be divided and enclosed in such shares and proportions as the Commissioner should in and by his Award order and direct.
The Commissioner as directed by the 1810 Act 6.15. The Commissioner as directed by the Act proceeded with accurately appointing and drafting on Maps the Public Carriage and Highways, Private Roads, Bridleways and Footways.
6.16. Then the Commissioner signed the Draft Maps and deposited them with a Mr T Phillips the Commissioners Clerk for the inspection of all persons concerned.
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6.17. After this the Commissioner published a Notice in the Gloucester Journal and posted the same Notice on the outer doors of the Churches in the Parishes of Trelleck, Penallt, Michel-Troy, Cwmcarvan, Landogo, Tintern and Lanishen.
6.18. This Notice announced the development of the Draft Map and also appointed meetings to be held in the above mentioned Parishes three weeks after the publication of the Draft Maps. In other words, the public had a three week period to consult the Draft Maps and then if the public wished to attend a meeting to voice their concerns regarding the setting out of the Roads they were able to do so.
6.19. As those members of the public who were invited did not object to the setting out of the Roads either in whole or in part, the Commissioner confirmed the Draft Maps.
6.20. The Commissioner further enacted, as he saw fit, prior to dividing and inclosing the Commons and Waste Lands, to set out and allot such parts or parcels of the aforementioned Lands for Public, stone, gravel and sand pits with convenient Roads and Ways to and from them for the purpose of making and repairing the Public and Private Roads and Ways within the Parishes of Trelleck, Penallt, Michel-Troy, Cwmcarvan, Landogo, Tintern and Lanishen.
Comment on the Enclosure Award Preamble 6.21. The all-encompassing public consultation to ascertain the alignment of public and private roads, bridleways, footways, bridges, stiles gates and highways was carried out before the lands and grounds were divided and allotted. The legal process conducted makes the Enclosure Award a very important document when showing all types of Road and Highway.
6.22. The two main points found in the Enclosure Award along with the maps shows that firstly, the public were consulted and that they did not object to the setting out of the Route, A to B, or any other roads, highways and footways in the locality. Secondly, the Commissioner arranged that areas of common land where made available for the supply of stone gravel and/or sand for the making and repairing of the public and private roads & footways.
6.23. The word ‘public’ on the Enclosure Award for this footway referred to the maintenance liability of the route. Prior to the 31st August 1835, dedication and then the acceptance of a road by the public became a cost to the inhabitants of the parish who were liable
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to maintain the highway. The Map suggests that the ‘public footway of 4 feet’ was narrower and therefore possibly more manageable for the local inhabitants to maintain.
Price’s Map 1823 6.24. Price’s Map, dated 1823 (Fig. 6.2) was commissioned by the Duke of Beaufort, and inscribe by Henry and Charles G. Price. The title of this Map has been destroyed. However, it states in part that it was ‘Drawn from … Actual…and founded on a Trigonometrical basis by the surveyors of Hereford Henry and Charles G. Price’.
6.25. This 1823 map does not show the Route, A to B.
Fig: 6.2: 1823 Price’s Map: not to scale: GRO Ref: Q/Misc Maps/20
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Greenwoods Map 1830 6.27. The Greenwoods Map, dated 23rd August 1830 (Fig. 6.3), does not show the Route, A to B, and is not as clear as both the David & Charles Map and Ordnance Survey Map of the same year.
Fig: 6.3: 1830 Greenwoods Map: not to scale: MCC Office
The Cassini Map 1830 6.28. The Cassini Map (162) (Fig.6.4), has been created using the Old Series Ordnance Survey sheet 35 which was published on the 1st May 1830 and, like the David & Charles Map, does not show the Route, A to B.
Fig. 6.4: 1830 Cassini Map: not to scale: MCC Office
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The David and Charles Map 1830 6.29. The David and Charles Map, Sheet 86, published 1st May 1830 (Fig. 6.5), is a reproduction of numerous documents covering various dates and based on surveys originally executed by the Ordnance Survey between 1811 and 1816 but extensively revised in the late 1820s. The David & Charles Map does not show the Route, A to B, due to the limitation in scale of the Map that is at 1 inch to a statute mile. The detail afforded to this Map is not great enough to depict a footway. Furthermore, the Enclosure Award Map shows that the Route was not constructed as a road pre-1835.
Fig: 6.5: 1830 David and Charles Map: Sheet 68: not to scale: MCC Office
The Ordnance Survey Map1830 6.30. The 1830 Ordnance Survey map (Fig. 6.6), is the first survey take between 1791 and 1874 and published with many revisions and new editions between 1805 and 1874. These surveys are the bases for the Cassini and the David & Charles facsimile maps already discussed. The Route, A to B, is not shown on any of the earlier maps investigated.
Fig. 6.6: 1830 1st Edition Ordnance Survey Map: not to scale GRO
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6.31. The 1830 OS Map is known to be better drawn and more accurate in the depiction of physical features surveyed. It is from these original Ordnance surveys that the Cassini, David & Charles and the Greenwoods Maps have been copied.
6.32. The Route, A to B, is not shown on the Ordnance Survey map. Here again the scale of 1 inch to a mile does not give the required detail to depict the differing status of each route. The Route was laid out as a footway as recorded by the Enclosure Award. The 1830s maps that do not usually extend to the depiction of footpaths do not illustrate the Route. All of this suggests that the Route has public footpath rights only.
The Tithe Map for Trellech 1848 6.33. The Tithe Map for Trellech, dated 28th September 1848 (Fig. 6.7) shows part of the Route, A to B, to be coloured terracotta. The linear markings on the Tithe Map that designate plot boundaries are in keeping with similar markings shown on the 1881 Ordnance Survey map (Fig. 6.8).
A B
Fig. 6.7: Tithe Map for Trellech 28th September 1848: not to scale: GRO
GRO 6.34. When comparing Highway Records with tithe maps the shading of the roads on the tithe maps are normally consistent with the shading of publicly maintained roads shown on the highway maps. Therefore, when a road is identified on the Tithe Map as shaded terracotta then it is reasonable to suggest that the road should be recorded as public route maintained at public expense.
6.35. However, the shading of this route here does not nessarily mean that it should be a byway open to all traffic it is feasible to record a route depicted in this manner as a public footpath along with shared private use as an access to individual land holdings. This is supported by the 1830s map evidence that do not depict the Route.
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6.36. The Enclosure Award Map with the record for ‘Public Footway 4 Feet’ (Fig. 6.1) attests to the narrowness of the Route, A to B, and this evidence shows that the shading on Tithe Maps does not always automatically imply public road. The shading of routes on the Tithe Map can also suggest private access ways that are also shared with public footpaths.
6.37. Notably when comparing the Tithe Map (Fig. 6.7) with the Enclosure Award Map (Fig. 6.1) the Route, A to B, on the Tithe Map is shaded terracotta only up to the end of Plots 720 and 744. Furthermore, there are no other markings to depict any other continuous route. This suggests that the Route, A to B, is only an access way for various plots.
6.38. It is sometimes indicated (by shading and a plot number) on the Tithe Map and then further explained in the Tithe Appointment book with areas of land marked as Common Land. However, west of Plots 720 and 744 there is no such indication of Common Land. This again supports the fact that this section of the Route, A to B, was not considered a publicly maintained road, but instead probably a private access and a public footpath.
6.39. The Route, A to B, is clearly indicated on the Enclosure Award map prior to the production of the Tithe Map, then afterwards by double lines on all historical Ordnance Survey Maps. When a map like this shows a coloured and un-numbered strip of land, it can be taken on balance, when considered together with other historical maps that the Route, A to B, was and therefore still remains in the public domain. However, it is noted here that the level of that public right is not determined from the Tithe Map alone.
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6.40. The 1881 Ordnance Survey map (OS) (Fig. 6.8), contrary to the Tithe Map, shows the Route, A to B, as not shaded. However, the OS Map is similar to the Tithe Map as it shows that the physical features of the Route, A to B, change at the same point at which the shading on the Tithe Map ends. The comparison of both of these maps suggests that the Route, A to B, had a dual purpose — firstly as a private access road serving local residents and secondly as a public footway.
A B
Fig. 6.8: 1881 Ordnance Survey Sheet 21:1 colour copy not to scale
GRO
6.41. The detailed depiction of the physical features surveyed shows that the first section of the Route, A to B, has solid unbroken lines denoting a fenced minor road while the remainder of the Route has a double pecked broken line that denotes an unfenced minor road. The key to the markings of the OS maps (Fig. 6.9) are taken from the Conventional signs and writing used on the Ordnance Survey six inch maps.
Fig. 6.9: Conventional signs and writing used on the six inch maps of the Ordnance Survey
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6.42. At point A on the extract of the 1881 OS map there is a solid line which in terms of the conventional map signage practice implies that a fence crosses the Route, A to B, at this location. However, it is reasonable to suggest that this solid line represents a gate or barrier of some description. This adds further support to the fact that the Route was not regarded as a through road.
6.43. Additionally, in keeping with the Enclosure Award stating that it was a ‘Public Footway 4 Feet’ is evidence that the Route, A to B, should be registered as a public footpath only.
6.44. The Route, A to B, has not been awarded a status equal to other know public roads in the area. The Ordnance Survey Map unlike the Tithe Map has a Plot numbered 401a. This plot is listed in the 1st Edition 25-inch Ordnance Survey Book of Reference for the Community of Trelleck, held at the British Library. In the Book of Reference there is only a numerical entry for Plot number 401a and no further description of the use of the land that would indicate the possible private or public nature of the Route, A to B.
6.45. The detail afforded to this Map due to its larger scale shows the Route, A to B, has a solid line crossing its entrance between 402 and 415 that represents a possible barrier. Additionally, there are no braces that combine the Route with any adjacent field or dwelling. These factors suggest that the Route was considered a shared private access and not serving any individual ownership.
6.46. The line markings on the Ordnance Survey Maps are the depiction of physical features surveyed. Between Plots 400, 401, 402 and 415 the Route, A to B, is marked as being a ‘fenced minor road’. Then through Plot 399 it becomes an ‘unfenced minor road’. These line markings record structures as seen on the ground and are not a recording of the status or type of route. The Enclosure Award is the legal document that best records public or private routes and this document, as previously discussed, records the Route, A to B, as a public footpath.
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The Ordnance Survey Map 1886 6.47. The Ordnance Survey Map dated 1886 (six inches to 1 Statute mile 1:10560) (Fig. 6.10), is also the scale of the Definitive Map and, although it is small in scale it still gives more detail than that shown on the 1830s mapping. At this scale it is worthy to note that there is an unbroken solid lines across the Route, A to B. A solid line across a track like this usually denotes a barrier such as a gate. There are three solid lines across the Route both on the 1881 and 1886 OS Maps. Therefore three gates were probably in existence at the time of these surveys.
A B
Fig. 6.10: 1886 Ordnance Survey Sheet 21: not to scale GR O
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The Ordnance Survey Maps 1902 & 1921 6.48. The 1902 (Fig. 6.11) & 1921 (Fig. 6.12) Ordnance Survey Maps at the larger scale of 1:2500 show the parallel solid line depicting the alignment of the Route, A to B. Usually the linear markings indicating un-metalled roads and footpaths also have the symbol ‘track’ or ‘F.P.’. On both Maps, however, the first section has neither symbol while the next part has the symbol ‘F.P.’. On these Maps the solid line across the Route, possibly denoting a gate at points A and B, remains while the middle one has been removed.
X Y
A
B
Fig. 6.11: 1902 Ordnance Survey Sheet 21: 1 not to scale: MCC
6.49. In comparison there are dotted lines marked across other nearby routes, at point X and Y, on the map below which possibly denotes a physical change in the surface of those routes rather than barriers as broken lines represent unfenced topographical features.
6.50. It is noted that in 1881, 1886 and in 1902 that the Route, A to B, is access to a single property. It is only at the time of the 1910 Finance Act Map (page 30) that it is shown that the Route serves three separate properties. The Enclosure Award shows that the Route was regarded as a public footpath to Trelleck Common in the first instance. Then later the Route was treated as a private access way that initially served one property and finally became a shared driveway to access three properties.
6.51. The 1921 Ordnance Survey map (Fig. 6.12) has similar linear markings to the previous OS maps discussed. Although some elements are different there still remains a solid line across the Route at points A and B possibly denoting the presence of a gate at
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both ends. Also, the broken lines at points X and Y remain along other nearby tracks, possibly depicting changes in the surface.
X Y
A
B
Fig. 6.12: 1921 Ordnance Survey Sheet 21:5: not to scale: GRO
6.52. It is not known what type of barrier was located at points A and B and it is possible that these physical features may or may not have inhibited the public use of the way.
6.53. The Ordnance Survey Maps all show the Route, A to B, bound by a solid line for most of its length. This is normally the marking adopted to depict minor roads (see the conventional sign for Ordnance Survey Fig. 6.9).
6.54. Ordnance Survey was given the duty to depict all physical features that were encountered during the task. It is possible, therefore, that some of the routes depicted on the OS maps may prove to be private ways.
6.55. Consistently on all four of the larger scaled Ordnance Survey Maps, at points A and B, there are solid lines crossing the Route. The conventional signs and symbols have been kept as standard over the years and it is understood that a dashed or double pecked line represents a route or way that is unfenced. Therefore the broken lines on these maps represent a change in surface only and some roads with these markings in The Narth area have become publicly maintained highways.
6.56. In contrast to this, a solid unbroken line represents a boundary such as a fence or wall. Therefore, if a solid line crosses a route or way then this is interpreted as a gate or
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another type of barrier. Although barriers such as gates do not prohibit usage of a route by any type or means they do constitute some form of limitation and prevention. As the mapping inspected so far indicates barriers at more than one location this suggests that the Route, A to B, was not used by the public at large but instead was possibly private access with a public footpath over it.
The Finance Act Register Books and Maps 1910 6.57. The 1910 Finance Act Register Books and Maps provided for the levy and collection of a duty on the incremental value of all land in the United Kingdom. In the collation of the 1910 Finance Act records, the rules stipulated that if any landowner or lessee did not declare their landowner interests then this was regarded as a criminal offence. In this way, private owners were required to surrender to the State part of the increase in the site value of their land, which resulted from the expenditure of public money on communal developments such as roads, common land or public services.
6.58. The reason for the production of the Finance Act Maps and Registers was to record land values and not for the purpose of recording the extent of the publicly maintainable highways.
A B
Fig. 6.13: 1910 Finance Act Map Sheet 21.1 Kew Record Office (KRO) IR131/1/206 6.59. The Finance Act Map (Fig. 6.13) for this area shows part of the Route, A to B, to be uncoloured and, when compared with the highway record, it typically shows that the roads shaded on the Highway Map are also uncoloured on the Finance Act Map suggesting that the road was considered public. However, this is not always the case as there are some uncoloured routes that are not in the public domain.
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6.60. The Finance Act Map is first and foremost a record of the extent of landownership which provided for the levy of various taxes on lands, and the resulting records also help with the status of any routes that are in dispute.
6.61. The reason for this is because the Finance Act Registers and Field books record a monetary deduction in the calculation of tax for each property for ‘public rights of way or user’. However, for the majority of cases, routes normally used by vehicular traffic were left uncoloured or ‘white out’ as they were considered not to have any agricultural value. The 1821 Enclosure Award initially bounded and laid out any routes that have been in use by the local inhabitants since then as shared access ways to private dwellings.
6.62. The Register Book that accompanies the Finance Act Map for this area records no monetary value that would reduce the taxable value of the land. The strip of land that is the Route is not allocated a plot number for the very reason that it was never included within any particular private land ownership.
6.63. The Finance Act Map Register Book was investigated for any further details pertaining to Plots 89, 90, 153, 206 and 382. The Register Book does not record any deduction of tax for “public rights of way or user” for any of these plots.
6.64. The Field Books with these plot number listed, held in the National Archives, give no further detail. Furthermore, the Field Book for plots 101 to 200 is recorded as missing in transfer. Therefore, only the Finance Act Register Book is the surviving source of detail for plot 153, in which there is no extra evidence.
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6.65. The working copy of the Finance Act Map (Fig 6.14) has no other significant information that has been omitted from the official copy previously looked at (Fig. 6.13). The Route, A to B, is uncoloured while the next section, beyond a solid line that denotes a barrier, is shaded green and included with Plot number 382.
A B
Fig. 6.14: 1910 Finance Act Map “working copy” Sheet 21:5 GRO
6.66. This strongly suggests that the Route, A to B, was not regarded as having public vehicular rights but instead as a shared private access way for a few local inhabitants with a public footpath along it.
6.67. The Finance Act Map and Register Book are historical documents that along with the OS maps indicate the differing types of routes, ways and roads. These records along with the Enclosure Award are all supporting evidence to register the Route, A to B, as a public footpath. Furthermore, it is not correct to assume that the Finance or Tithe records automatically stipulate higher public rights. It is the Enclosure Award that registers public and private roads and ‘driftways’. In this instance the Enclosure Award records the Route as a ‘No. LXXVIII Public Footway 4 feet’ and is shown to extend from the existing publicly maintained highway to Trellech Common.
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7. The Definitive Map and Statement
7.1. The public rights of way are registered on the Definitive Map and Statement for the area of Monmouthshire. These maps have a ‘Relevant’ date, 1st July 1952. They were published on the 16th November 1967 and are now kept under continuous review by Monmouthshire County Council Countryside Office.
7.2. The County Council was required, under section 27 of the National Parks and Access to the Countryside Act 1949 (NPACA 1949), to carry out a survey and define all those footpaths, bridleways and roads used as public paths which were considered public. The process of producing the Definitive Map & Statement went through three stages.
7.3. The former County of Monmouthshire (Gwent) began the task by sending a map to every Community Council. Secondly, the Community Councils were asked to walk every path and provide details of them. Thirdly, a public meeting had to be held and local people were invited to recommend alteration at this stage.
7.4. The Draft Map was deposited in all District Offices as well as at County Hall. Notice of its publication and where it could be inspected was given in local papers and the London Gazette. A minimum of four months was allowed for objections against the alterations made by the Council as a result of original objections, which the Authority had to consider in the light of all evidence submitted and inform all parties of its decision. Any user who was not satisfied with decisions could appeal to the Secretary of State who appointed a representative to hear appeals before coming to a decision.
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The Draft Definitive Map 1952 7.5. It is noted that on the Draft Definitive map dated 16th December 1952 (Fig. 7.1) the Route, A to B, has not been marked up.
A B
Fig. 7.1: 1952 Draft Definitive Map Sheet 21: not to scale: MCC Office 7.6. The information gathered from the survey of the Trelleck area in 1951 was transferred onto the Draft Definitive Map which was published in 1952. The nearest mark to the Route, A to B, is a solid bold blue line with the number 406 shown near point B.
7.7. It is possible to interpret from this Draft Map, as done by the Open Spaces Society representative, that the surveyors believed the Route to be public like other ways in the surrounding area. However, the surveyors made an incorrect assumption because the Highway Records (Chapter 8) do not list the Route, A to B.
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7.8. Furthermore, on a nearby section of the Draft Definitive map (Fig. 7.2) there are other ways in the area that have been initially marked up and then later removed. These are indicated by red crosses and/or hatchings as seen below.
Fig. 7.2: 1952 Draft Definitive Map Sheet 21:1 not to scale: MCC Office
7.9. This proves that Highway Records were interrogated and it was noted that certain ways were already part of the highway network and on the “List of Streets”, making it unnecessary to record them again on the Definitive Map and Statement.
7.10. However, at the same time other ways in the area were missed and no explanation for this can be found. The omission of the registration of the Route, A to B, renders the existing Public Footpath number 406 a dead end and unconnected to the rest of the public highway network. Moreover, by not registering the Route, A to B, on the Definitive Map and Statement, the historical record of ‘Public Footway’ as shown on the Enclosure Award will be lost.
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The Additions and Deletions Map 7.11. The Additions and Deletions map (Fig. 7.3) records no markings over the Route, A to B. The markings on this Map show alignments of routes to be added marked in red and alignments to be removed marked in blue. It is noted from this Map that no changes were made for or near FP406.
B A
Fig. 7.3: Additions and Deletions Map sheet 21: not to scale: MCC Office
7.12. It is unknown why this route was not assessed like other ways in the area. It is evident from the Draft and this Map that the ways to the east have been removed from the records as public rights were deemed to exist already and there was no need to record these again.
7.13. The fact that other routes to the west and the east were either added (red) or deleted (blue) demonstrates that the area was investigated.
7.14. The Route, A to B, was not given similar assessment suggesting that the incorrect assumption was made causing the ‘Public Footpath’ to be omitted from the Definitive Map and Statement. It is no longer possible to find out why the county surveyors did not record the Route.
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The Definitive Map 7.15. The Definitive Map (Fig. 7.4) shows no markings for the Route, A to B. The ways marked on the previously detailed Addition and Deletion map are shown to have either been added or deleted. For example FP437 to the west and FP443 to the east have been added.
A B
Fig. 7.4: 1967 Definitive Map sheet 21: not to scale: MCC Office
7.16. When all appeals and objections to the Draft Definitive Map and Statement had been processed and any additions or deletions marked on an intermediate map the Authority then compiled a Provisional Definitive Map and Statement dated 17th September 1965.
7.17. The County Council published and advertised, as before, the Provisional Definitive Map and Statement (17/9/1965). This is the Draft Definitive Map duly modified. The public had no further right of objection but any owner/occupier of land crossed by a right of way could apply to quarter sessions, within 28 days of publication, for a declaration modifying the map or statement in respect of the rights of way. When all applications had been determined the County Council finally published on 3rd November 1967 the Definitive Map and Statement for the County of Monmouthshire (formerly Gwent).
7.18. The Definitive Map shows no marking denoting the registration of any public right of way over the Route, A to B.
7.19. The Definitive Map & Statement is afforded considerable weight due, firstly to the statutory provision already mentioned and secondly, to the process of continuous review set out in Section 53 of the Wildlife and Countryside Act 1981, allowing for the modification of the Map and Statement on the discovery of evidence suggesting that it
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contains errors or omissions. This allows for thorough investigation of any perceived discrepancies and their correction. This report represents such a case.
7.20. The Case of Trevelyan v Secretary of State 2001 raised a presumption that what is marked on the Definitive Map and Statement is properly and correctly recorded and evidence of some substance has to be put forward to displace that presumption.
The Definitive Map Statements 7.21. The Definitive Map and Statement in its entirety is regarded as the legal register for public rights of way and the information held within is, for completeness, better understood when both the Map (Fig. 7.5) and Statements are looked at jointly. The descriptions made during the survey remain the Statements for the Definitive Map.
7.22. Public Right of Way numbered 403 to 404 state: “commencing at junction with path No 400 and 401 about 100 yds east of Upper Barn following west side of stone wall for 250 yds in northerly direction crossing Trellech – Maryland Road at stone stile then continuing NE through woodland for ½ mile emerging on to road at Rose Cottage.”
Fig. 7.5: 1967 Definitive Map (part sheets joined 14, 15 20 and 21): not to scale: MCC Office
7.23. Public Right of Way numbered 405 to 406 state: “Commencing at junction of Warren Road with Trellech – Maryland Road at wooden stile and proceeding through woodland for 1.2 mile to junction with path No. 404.”
7.24. It is noted here that the description for Public Footpaths numbered 405 to 406 does not describe the full extent of the footpath that reaches the Route, A to B, at Rose Cottage.
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While the description for Public Footpaths 403 to 404 does describe FP406 that states that the route “continues NE through woodland for ½ mile emerging on to road at Rose Cottage”.
7.25. This description records a “road at Rose Cottage” showing that the surveyor at the time was describing the physical attributes of the Route, A to B. The Definitive Map Statement uses the word “road” on a number of occasions. It is incorrect to assume that the descriptive word “road” automatically stipulates that such a route should have public vehicular rights and be maintained at public expense. A road of this type would have had to be listed on a parish record and transferred from the rural district areas to the county councils. Such records are no longer available, but if there had been any information this would have been transferred to the current highway records.
7.26. The “List of Streets” does not record the Route, A to B. The surveyor was referring to the physical nature of the route that Public Footpath number 406 was joining and making no reference to any assumed public rights. In keeping with the reported physical features on the ground all the Ordnance Survey Maps depict similar physical features as those described in the Definitive Statement.
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8. The Highway Records
8.1. Both the 1st April 1949 and the current “List of Streets” do not record the Route, A to B, as a county unclassified road. The OS base maps on which the Highway information is recorded shows the Route on a similar alignment to all previous historical maps discussed.
A B
Fig. 8.1: 1949 Highway Records: not to scale: MCC Office
A B
Fig. 8.2: Current highway records not to scale: MCC Office
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9. The Natural Environment and Rural Communities Act 2006
9.1. Regulations associated with restricted byways (RB) and roads used as public paths (RUPPs) came into force on the 11th May 2006 in Wales through the Countryside and Rights of Way Act 2000 (Commencement No. 8 & Transitional Provisions [Wales] Order 2006).
9.2. The Natural Environment and Rural Communities Act 2006 (NERC) sections 66-72 Part 6 came into force Wales on the 16th November 2006.
9.3. A guide for local authorities, enforcement agencies, rights of way users and practitioners compiled by DEFRA for Part 6 of NERC and Restricted Byways is used here to test whether or not the Act applies in this case.
9.4. The 2006 NERC Act flow chart illustrating the process for determining public rights of way for mechanically propelled vehicles (MPVs) over any given way are included on Appendixes 9.1 to 9.3. The NERC Act sub-sections that do apply to the Route, A to B, have been repeated and commented on below.
Testing of the claim against the NERC Act 2006 9.5. Section 67(1) extinguished, on commencement, public motor vehicular rights over every highway that was not already shown on the Definitive Map and Statement, or was shown only as a footpath, bridleway, or restricted byway. In effect this means that public rights of way for mechanically propelled vehicles have been extinguished over every highway not already shown on the Definitive Map and Statement (DM&S).
9.6. If this section 67(1) were left with no further explanation it would mean that not only do public vehicular rights along the Route, A to B, extinguish but also virtually the whole of the existing highway network including other highways such as county unclassified roads. However, subsection 67(2) introduces a series of exceptions to protect certain highways from such extinguishment under subsection 67(1). Any route that qualifies under any one or more of these exceptions would not have its public rights of way for mechanically propelled vehicles extinguished.
9.7. Subsection 67(2)(a) – excepts ways that have been lawfully used more by motor vehicles than by any other user types in the five years preceding commencement. The intention here is to except highways that are part of the ‘ordinary roads network’.
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9.8. The Authority does not have extensive records of motor vehicle use of the Route, A to B, but there is evidence from local residents who report using the Route in motorised vehicles to gain access to their properties. It is not incumbent on the local highway authority to undertake a detailed investigation or survey of “main lawful use” on every way.
9.9. Subsection 67(1) says that public mechanically propelled vehicle rights are extinguished if the Route, A to B, is not shown on the Definitive Map and Statement in accordance with subsections 67(1)(a) & (b) or if it is subject to one of the exceptions listed in subsection 67(2) & (3). Comment 9.10. The Route, A to B, is not registered on the Definitive Map and Statement. The only types of highway registered on the Definitive Map and Statement are public byways open to all traffic, restricted byways, bridleways and footpaths.
The flow charts (Appendixes 9.1 to 9.3) illustrating the process of determining whether or not a public right of way for Mechanically Propelled Vehicles (MPVs) over any given way are extinguished by section 67 of the Natural Environment and Rural Communities (NERC) Act 2006 are helpful aids:
9.11. Subsection 67(2)(a) states that public MPV rights are extinguished unless the way is mainly used by MPVs. Comment 9.12. Evidence reports that vehicular use is mainly by the residents and those invited as visitors or service providers such as the postman and not by the public at large. Therefore public MPV rights are extinguished.
9.13. Subsection 67(2)(b) states that public MPV rights are extinguished unless the Way is shown on the List of Streets. Comment 9.14. The Route, A to B, is not shown on the List of Streets. Therefore public MPV rights are extinguished.
9.15. Sub-Section 67(2)(c) states that public MPV rights are extinguished unless the way is created expressly for MPVs. Comment 9.16. The Route, A to B, was not created expressly for MPVs. It was created as a footway by the 1810 Enclosure Award. 9.17. This evidence suggests that the Route, A to B, was not created expressly for mechanically propelled vehicles. Therefore, public vehicle rights over the Route are extinguished by the 2006 NERC Act.
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9.18. Sub-Section 67(2)(d) states that public MPV rights are extinguished unless the way is built for use by MPVs. Comment 9.19. The 1846 Tithe Map shows part of Route, A to B, shaded. Additionally, this map predates the availability of any MPVs. Therefore, the way being investigated was not built for or by motorised vehicles. This means that public MPVs are extinguished.
9.20. Sub-Section 67(2)(e) states that public MPV rights are extinguished unless the way was created by MPVs use pre-1930. Comment 9.21. The evidence of part of the Route, A to B, shown on both the 1846 Tithe and the 1881 OS Map indicates that the first section of the Route was probably created by private MPVs, usage pre-1930 for occupants to reach their homes. Therefore, public MPV rights are extinguished.
9.22. Sub-Section 67(3)(a) states that public MPV rights are extinguished if an application under Section 53(3) of the WCA 1981 is made before 19 May 2005 (Wales) for any other type of way other than a byway open to all traffic. Comment 9.23. Subsection 67(3)(a) does not apply. 9.24. Although an application for a Definitive Map Modification Order predates the coming into force of the legislation. This Modification Order intends to register a footpath and because of this “other type of way” this means that public MPV rights are extinguished.
9.25. Sub-Section 67(6) states that public MPV rights are extinguished ensuring that the application is valid as stipulated by this sub-section 67(6). Comment 9.26. Yes, the Definitive Map Modification Order application is valid and was made on the 8th November 1991. However, as the application is for a public footpath this means that public MPVs are automatically extinguished by the NERC Act 2006.
Concluding comments (NERC Act 2006) 9.27. The 1991 DMMO for the Route, A to B, to register a footpath means that the NERC Act 2006 extinguishes public MPV rights. 9.28. The subsections under the NERC Act 2006 examined and applied to the Route, A to B, have been carried out for completeness and has shown that under subsection 67(2) the Route does not have public vehicle rights.
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10. Site photographs (Appendix 10.1)
10.1. Photographs 1 to 4 (Appendix 10.1) show a wide strip road with a grass knoll in the middle of the road. The Route, A to B, has been utilised by motorised vehicles as a private shared driveway to gain the only access to the properties, Rose Cottage, Moorside and Ty Ffynnon.
10.2. There is a finger post indicating public footpath at the side of Rose Cottage where it narrows substantially, photograph 5 (Appendix 10.1). The Route, A to B, changes in width along the northern boundary of Rose Cottage that is also depicted on the 1886 and 1902 Ordnance Survey maps.
10.3. The Route, A to B, becomes essentially a route that was and only ever has been negotiated on foot. One boundary is an ancient wall and the other a well-established boundary to Rose Cottage. The narrowness of the Route, A to B, seen in photographs 6, 7 & 8 indicates that the Route was only ever used as a footpath.
10.4. Furthermore, at the termination of the Route at point B (Appendix 10.1) there is in existence a metal kissing gate (Photograph 7, Appendix 10.1). This was installed by the Authority in approximately 2000 at the request of the landowner of Rose Cottage, Mr R.A. Emms, who states in his letter that:-
“the wooden style where it joins the public footpath No 406 was ripped out and thrown in the woods on several occasions so that they could bring down their horses and at time motor bikes from the woods,” “…I recommended a metal kiss gate to be fixed in concrete in the ground this has stopped the miss use of the footpath.”
10.5. The Authority has no record of any complaints from the public or users regarding any wooden or metal furniture at point B. The only letter that has been received is this one from Mr Emms. This would indicate that horse riders and motorcyclists were not using the route “as of right” or at all. Furthermore, the replacement metal kissing gate has not resulted in any new complaints regarding its installation.
10.6. The misuse use of the footpath is supported by the facts that the Route, A to B, is recorded as a “public footway” on the Enclosure Award and that Mr Emms reports the existence of a wooden stile being replaced on a regular basis thereby demonstrating that the Route was never intended as a right of way for horse riders or motorised vehicles.
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11. Pre-Order Consultations
11.1. There have been two periods for pre-order consultation the first period was conducted in 1993 which produced the 2001 Order that due to errors was withdrawn. The second consultation period that ran for six weeks commencing on the 19th January 2016.
11.2. The first order made to register the Route as a public footpath received a formal objection from the Open Spaces Society stating that it should be registered as a bridleway.
Pre-Order Consultation results dated 2016 1 Matthew Lewis Head of Countryside No comments at this time Countryside Access 2 Ruth Rourke Continuous input Officer 3 Kate Stinchcombe Biodiversity Officer No comments at this time 4 Claire Williams Legal Services No comments at this time 5 Wendy Mustow Highways No comments at this time Councillor D 6 Councillor for Trellech No reply Blakebrough 7 Ms A. Davidson Community Council No reply 8 Mr A Blake A.O.N.B No reply 9 Mr D Wyatt GLASS No reply The Byways & bridleway 10 No reply Trust Tread Lightly Area 11 Mr J Askew No reply Ambassador CTC national Cycle 12 Mr G. Owen No reply Charity 13 Mr D. O. Morgan Open Spaces Society Objection Lower Wye Valley 14 Mr A Thomas No objection Ramblers Association 15 Ms A Underwood The British Horse Society No objections/observations 16 Mr P Fitzpatrick Western Power No objections/observations Openreach, Network 17 British Telecom No affect Alterations National Resources 18 External Relation Team No affect/standard notice Wales National Grid Plan National Grid Plan 19 No objections/observations location enquiries Protection 20 Rachel Humphreys Welsh Water No affect Mr M. Roger and Ms 21 Box Cottage No reply P Davies 22 Mr R. A. Emms Rose Cottage Wishes to be fully informed at each stage Mr & Mrs SC 23 Moorside, No reply Luxmore-Ball 24 Mr & Mrs M Bone Ty Ffynnon, No reply Cornwall/but owns land 25 Ms B Joslyn No reply adjacent to route
11.3. The second (current) pre-order consultation has resulted in a sustained objection, made by the Open Spaces Society.
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11.4. Mr R.A. Emms, of Rose Cottage the land adjacent to the Route, A to B, does not object but has instead only made comments.
11.5. Mr Owen Morgan, of the Open Spaces Society, in his 2016 pre-order consultation reply refers to his 6th August 2001 (Appendix 1.8) letter where he makes his formal objection. He wrote that the way is probably of a higher status than a footpath making reference to his previous pre-order consultation letter dated 9th February 1993 (Appendix 1.3.1 & 1.3.2) in which he refers to the Finance Act Plan. He states that this plan shows most of the Route, A to B, as a road, while there does seem a “shortfall” of a small section at the western end. He goes on to suggest that this is really a mistake by the surveyor at the time, as a site visit clearly reveals it is an ancient route probably a bridleway onto Trellech Common. He further summarises that in his opinion as both the Definitive Map and the 1910 Finance Act plan shows the Route, A to B, as a highway of higher status than a footpath. Therefore, in his opinion, the only justifiable modification would be to add to the Definitive Map as a bridleway.
11.5.1. In his letter dated the 6th August 2001 (Appendix 1.8) in which Mr Morgan makes his formal objection to the 2001 Order he states:- “It seems patently obvious, that our wise fathers in the 1950s under the then 1949 NP&ACA. When parish submissions were made, also considered it of a higher status, that is why the eastern end of path 406 finishes here it is on the definitive map, otherwise it would have been a cul-de-sac!, the clearly would have also claimed the section concerned with this order, also as a footpath if they had thought otherwise?. It was undeniable I suspect a cartroad to access Trellech Common, such commons were a very important resource to the local populace in earlier times. The 1910 Finance Act “Working Plan” also indicates it was a white (public) road, although there is a slight short fall, probably for the reasons I indicated in the second para of my letter of the 9th Feb. 93, I also bring to your attention the Hood law case, my understandings, there is a presumption that at least Bridleway rights exist.” Comment 11.5.2. The Finance Act records have been discussed in detail in this report from point 7.57 to 7.67. Both the official National Archives 1910 Finance Act map (Fig7:13) and the “working plan” (Fig 7:14) show only part of the Route, A to B, not shaded and therefore not included in any specific landownership.
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11.5.3. In the collation of the 1910 Finance Act records, the rules stipulated that if any landowner or lessee did not declare their landowner interests then this was regarded as a criminal offence. Therefore, with these strict rules for completing the Inland Revenue forms, depiction of the results of these forms on the accompanying maps would not be incorrect. Furthermore, if there was any error then one of these maps would differ from the other and they do not.
11.5.4. The “uncoloured” route ends at the Plot numbered 382 which shows that the Route, A to B, is not an access to Trellech Common. Instead, the Route is shown to be cut off from the Common by the private property numbered 382 which shares a private driveway with the other surrounding properties.
11.5.5. It is usually assumed that when the Finance Act maps show a route “uncoloured” then that route is regarded as a public highway maintainable at public expense. This is an incorrect assumption as a single shared access is more often than not the only route available for use to enter homes or agricultural lands. Furthermore, no landowner would declare false landownership extents for the fear of penalties and a criminal record.
11.5.6. The Finance Act records along with all the other historical documents discussed in this report shows that, on the balance of probabilities, the Route, A to B, does not have public vehicular or equestrian rights but instead in this case only public footpath rights. Public footpath rights are supported by the Enclosure Award which is detailed at points 7.1 to 7.23 of this report.
11.6. Mr R.A. Emms of Rose Cottage, objected in his letter dated 9th December 1999 (Appendix 4.1). However, in his pre-consultation email dated 1st February 2016 he is not objecting at this stage only requesting that he is kept fully informed with regard to the Definitive Map Modification process and what the Authority hopes to do with this “lane that is also my drive”.
11.7. The pre-order consultation does not add any further significant information to oppose the Route, A to B, being registered as a public footpath.
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12. Conclusion
12.1. It is concluded that there are no public vehicular or equestrian rights for the Route, A to B. However, there are public footpath rights and these are recorded on the 1821 Enclosure Award. The Enclosure Award is a historical document that has been authorised by an Act in which an elected commissioner set out and appoint public and private roads and footpaths. In this case, under strict legislative process, a public footpath has been set out utilising the alignment of the Route, A to B.
12.2. The 1821 Price’s Map, the 1830 Cassini, the Greenwoods, the David & Charles Maps and the Ordnance Survey maps do not show the Route, A to B. This evidence suggests that there were no higher public rights, such as vehicular or equestrian, over the Route, A to B. These early 1800s maps support the evidence that there was no access leading into Trellech Common at this location. Furthermore, if there is not a route in existence pre the 1st August 1835 then it is neither maintained at public expense nor recorded on the List of Streets.
12.3. The 1846 Tithe Map shows only part of the Route, A to B, highlighted terracotta. This suggests that there is no public thoroughfare to the Common. Additionally, this Tithe Map does not specify the location of Trellech Common, while there are other Tithe maps that do indicate common lands. The layout of separate private properties suggests that the Route, A to B, is a shared private access way. When this is taken with all the other historical documents it shows that on the balance of probabilities the Route does not have public vehicular or equestrian access.
12.4. The 1881 Ordnance Survey Map shows the Route as unshaded while other through routes are shaded. This again suggests that the Route, A to B, was not regarded as a public vehicular or equestrian way to access Trellech Common. Moreover, the OS shows the Route to be completely bound by solid black lines and the OS key indicates that this is a fenced minor road which means that the Route is probably gated at three locations.
12.5. The 1886, 1902 & 1921 Ordnance Survey maps all depict the same solid line markings as the 1881 OS maps but without the shading. This suggests that the Route, A to B, was not a major road to Trellech Common. Also the 1881, 1886 & 1902 OS maps show that the Route near point B to be marked with the symbol “F.P.” and depicted by double or single broken lines which shows that on the balance of probabilities the Route was only regarded a footpath and not as a main road for horses or motorised vehicles.
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12.6. The 1910 Finance Act map shows only part of the Route, A to B, shaded suggesting that it was not regarded as a main thoroughfare. This evidence along with all the historical documents suggests the Route, A to B, does not have higher public vehicular or equestrian rights.
12.7. The Draft and Definitive Maps do not record the alignment of the Route, A to B. There are no records retained that demonstrate what the surveyor may or may not have thought regarding the public status of the Route.
12.8. The Additions and Deletions Map that verifies any changes on the Draft Definitive Map shows the alignments of routes to be added marked in red and alignments to be removed marked in blue. This Map has no markings for the Route, A to B.
12.9. The “List of Streets” and historical highway maps do not record the Route, A to B. The parish roads records that were transferred from the rural district areas to the county councils were not retained therefore no assumptions should be made with and between the limited documents that remain.
12.10. Under Section 67(1) of the 2006 Natural Environment and Rural Communities Act all public motor vehicular rights not recorded on the “List of Streets” or the Definitive Map and Statement are extinguished. Moreover, under Sections 67(3)(a) and (6) of this Act, a valid Definitive Map Modification Order submitted on the 8th November 1991 to register the route as a public footpath also extinguishes public motor vehicular rights.
12.11. Site photographs show the first section of the Route, A to B, as a wheeled worn track with a central grass knoll. The next section of the Route narrows substantially passing the side of Rose Cottage suggesting the Route has only public footpath rights and no public equestrian or vehicular rights.
12.12. At the end of the Route, A to B, there is a metal kissing gate that was probably installed in about 2000. Prior to the installation of the metal kissing gate, Mr Emms of Rose Cottage, reports there being a wooden stile. He also states that there have been many wooden stiles that have been removed by equestrians and motorcyclist who have illegally removed the stiles. This report of illegal use of the Route, A to B, is verified by there being no record on office files of any complaints from either equestrians or motorcyclists regarding that type of furniture preventing their access.
12.13. The pre-order consultations conducted in 2016 resulted in two replies. One from the landowner that utilises the Route, A to B, to access his home and the other from the Open Spaces Society.
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12.14. Mr Emms of Rose Cottage is not at this stage objecting but stipulates that he would like to be kept informed with what the Council proposes to do with the “lane that is also my drive”.
12.15. The representative of the Open Spaces Society states that he will maintain his objection if the Council proposes to register the Route, A to B, as a public footpath. His reason for his sustained objection is because the 1910 Finance Act Map shows the Route, A to B, to be “uncoloured” meaning that the route should be registered with higher public rights. This may be an understandable analysis of the Finance Act documents viewed in isolation from any other reference, but there are many exceptions to this interpretation. Furthermore, the Route, A to B, is partly left “uncoloured”. It is often demonstrated on the Finance Act maps that routes similar to this one are “uncoloured” as they are marked as shared access driveways to many different private properties.
12.16. For the reasons outlined in this report the Route, A to B, is deemed to have public footpath rights only. Therefore, it is recommended that the DMMO is made and confirmed.
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13. Recommendation
13.1. Members are invited to consider the evidence provided. If after consideration they believe that the evidence shows that the right of way not recorded on the Definitive Map and Statement “subsists, or is reasonably alleged to subsist” and the status of the Route, A to B, is a public footpath and not a byway open to all traffic, a restricted byway or a bridleway then an Order should be made.
13.2. It is therefore recommended that a Definitive Map Modification Order is made under section 53(3)(c)(i) of the Wildlife and Countryside Act 1981 to register the Route as a public footpath and to confirm or seek confirmation of the Order.
Authors: Mandy Mussell, Definitive Map Officer and R. Rourke, Principal Countryside Access Officer Contact Details: Telephone: Ext 4813 Email: [email protected]
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