Definitive Map Modification Order: Box Cottage, the Narth, Trellech 2020
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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). 1 Monmouthshire County Council Reference: Countryside Draft Report – 2020 12Mod_FP406A Box Cottage_The Narth: Report 1.9 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. 2 Monmouthshire County Council Reference: Countryside Draft Report – 2020 12Mod_FP406A Box Cottage_The Narth: Report 1.9 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. 3 Monmouthshire County Council Reference: Countryside Draft Report – 2020 12Mod_FP406A Box Cottage_The Narth: Report 1.9 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