Agenda Item 2
COMMONS AND RIGHTS OF WAY COMMITTEE 13 APRIL 2005
AGENDA ITEM:
APPLICATION FOR A MODIFICATION ORDER TO UPGRADE PARTS OF FOOTPATHS HBW 11 AND HBW 8 TO BRIDLEWAYS SALMONSBURY MEADOWS, PARISH OF BOURTON ON THE WATER
JOINT REPORT OF THE EXECUTIVE DIRECTOR: ENVIRONMENT AND THE HEAD OF LEGAL AND DEMOCRATIC SERVICES
1. PURPOSE OF REPORT
To consider the following application:
Nature of Application: Upgrade Footpaths to Bridleways Parish: Bourton on the Water Name of Applicant: Mrs C E King Date of Application: 23 September 2004
2. RECOMMENDATION
That a Modification Order be made to upgrade the existing footpaths to bridleways.
3. RESOURCE IMPLICATIONS
Average staff cost in taking an application to the Panel- £2,000. Cost of advertising Order in the local press, which has to be done twice, varies between £75 - £300 per notice. In addition, the County Council is responsible for meeting the costs of any Public Inquiry associated with the application. If the application were successful, the path would become maintainable at the public expense.
4. SUSTAINABILITY IMPLICATIONS
No sustainability implications have been identified.
5. STATUTORY AUTHORITY
Section 53 of the Wildlife and Countryside Act 1981 imposes a duty on the County Council, as surveying authority, to keep the Definitive Map and Statement under continuous review and to modify it in consequence of the occurrence of an ‘event’ specified in sub section [3]. Any person may make an application to the authority for a Definitive Map Modification Order on the occurrence of an ‘event’ under section 53 [3] [b] or [c]. The County Council is
Page1 3 Created by Neevia Document Converter trial version http://www.neevia.com Created by Neevia Document Converter trial version obliged to determine any such application that satisfies the required submission criteria in accordance with schedule 14 of the Act.
6. DEPARTMENTAL CONTACT
Andrew Houldey, Modification Orders Officer, Definitive Map Unit, Public Rights of Way Section, Environment Department. Telephone Gloucester (01452) 425522 E-mail: andrew.houldey@gloucestershire.gov.uk
Janet Smith, Senior Lawyer, County Legal Services. Telephone Gloucester (01452) 425095 E-mail: [email protected]
REPORT
7. DESCRIPTION OF PATH
7.1 A location map at scale 1:10,000 is attached (numbered ….A) showing the position of the claimed bridleway between Moors Lane, Bourton on the Water and the bridge over the River Eye. The claimed route lies within the parish of Bourton on the Water. The claimed path is approximately 2¾ miles south south-west of the town of Stow on the Wold. The area of interest lies within Ordnance Survey Grid Square SP 1721.
7.2 A large scale map of the Salmonsbury area at 1: 2500 scale is attached (numbered ….B). This map shows the claimed bridleway by a broken and crossed black line between points A-B-C-D. Other existing footpaths are shown by bold dashed lines and existing bridleways by a crossed continuous line. The claimed route runs from Road Used as a Public Path (RUPP) HBW 9 at point A in a generally south-east and then north-easterly direction to connect with public bridleway HBW 10 at point D. It is approximately 580 metres in length.
7.3 The claimed path connects with Road Used as a Public Path (RUPP) HBW 9, known as Moor Lane at point A and forms part of existing public footpath HBW 11 to point B. The claimed route continues as footpath HBW 8 across Salmonsbury Meadows, which is now a Gloucestershire Wildlife Trust Nature Reserve. When footpath HBW 8 reaches the bridge over the River Eye at point D it becomes bridleway HBW 10. On crossing the parish boundary into Wick Rissington at point F the path continues as public bridleway HRW 7. The whole of the claimed route forms part of the signposted Oxfordshire Way, which runs from Henley to Bourton on the Water.
7.4 The route was inspected on 5 July 2004 and on 23 March 2005. HBW 9 is a wide track enclosed by hedges on both sides, surfaced with rough stone, and used by vehicles to Moors Farm. A signpost on the right hand side of the track, as you look north, reads “No through road Private Access to Moor Farm only”
Page2 4 Created by Neevia Document Converter trial version http://www.neevia.com 7.5 HBW 11 is the continuation of HBW 9 as a public footpath. Signs on a wooden post at the junction with HBW 9 (point A) indicate Moor’s Farm to the left, Lakes and Wyck Rissington to the right. Also on the post is a blue marker arrow that reads “Oxfordshire Way bridleway”. The route between points A and B varies in width between approximately 2.4 and 3.2 metres, unsurfaced, and is enclosed by hedges on either side. The claimed route continues to a crossroads where HBW 11 crosses public footpath HBW 8 (at point B).
7.6 HBW 8 is at right angles to HBW 11. There is a rough handmade metal sign at the junction of the paths (point B), signposted to the left “Wyck Rissington” and “OW” and straight on for “Lakes”. A twelve-foot (3.66 metre) metal farm gate allows access to path HBW 8. At the time of inspection in July 2004 the gate was chained, the chain being held in place by a nut and bolt which was easy to undo. When the path was inspected in March 2005, the gate was chained and padlocked. Next to the gate is a metal kissing gate. The path then continues from point B east over two fields, both of which form part of the Salmonsbury Meadows Nature Reserve. The path is unenclosed as it crosses over the fields; the width of the path that has been used here is between 2 and 2.2 metres. Going from one field into the other, the path crosses a druffway [track laid over a drain or watercourse] of a width of 3.2 metres at point C. At this point is a 15- foot (4.54 metre) metal gate, which was propped open in July 2004 and closed (but not locked) in March 2005. Beside the metal gatepost is a length of post and rail fencing crossed by a stile.
7.7 As the path approaches the River Eye and becomes bridleway HBW 10 at point D it crosses the river and the adjacent marshy ground by a recently renewed long wooden plank bridge. The bridge is accessed at each end by four-foot wide (1.22 metre) hand gates with a bar to allow riders to open the gate from horseback. Two parallel lengths of post and rail fencing enclose the section between the two gates; the width of this bridge varies between 1.32 metres (52”) where the route crosses the river and 1.12 metres (44”) on the causeway approaching the bridge. The bridge itself is of plank construction sitting on railway sleepers over a metal girder. The abutments are of stone and concrete.
7.8 A complaint was received by the County Council about the condition of the bridge at point D in August 2002, caused by cattle straying onto the bridge damaging the deck boards. Paul Hackman of English Nature gave permission for works to take place on 28 August 2002. Work was carried out on the bridge by Gloucestershire County Council in 2002-03, including new decking boards and handrails.
7.9 It is understood from the applicant that the long footbridge, which marks the boundary between the end of the public footpath and the start of the public bridleway, was formerly wider. The present bridge was built c.2003 and is both longer and narrower than its predecessor. According to another witness, Mrs Jane Davis, there were no hand gates at either end of the previous bridge. This is consistent with the statement that cattle had managed to get onto the bridge in 2002. Concerns have been expressed by several of the witnesses that it is now no longer possible to ride a horse across this bridge; it is however possible to lead a horse over the bridge.
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7.10 The path continues east from point D as a bridleway across two fields to the parish boundary where it becomes bridleway HRW 7 at point F. Where bridleway HBW 10 crosses the field boundary and watercourse at point E, there is a five-foot (1.52 metre) hand gate tied with a chain and openable. On both sides of the gate is a sign reading “This gate must be kept closed”. Next to the handgate is a narrow plank footbridge, suitable for pedestrians, with a metal handrail and a squeeze stile at each end. On the footbridge is a blue direction arrow that reads “Oxfordshire Way, bridleway”. The bridle path HBW 10 continues unenclosed across the next field to a bridge over the River Dikler at point F. This river is crossed by a 2.5 metre wide railway sleeper bridge on stone and concrete abutments. Next to the bridge, on the Bourton side, is an old gatepost. The path continues east from here as a bridleway (HRW 7) to Wick Rissington. Where the path meets the road in Wick Rissington village there is a metal finger post which reads Public Bridleway. Adjacent to the gates is a blue Oxfordshire Way indicator arrow.
8. BACKGROUND
8.1 The Definitive Map of Public Rights of Way is annotated to show that the length of footpath between points B and D was subject to a claim for upgrading to a bridleway on 31 October 1973 (file number 573/10/8) and that this length of path was also the subject of an instigated claim by Gloucestershire County Council (undated, file number 573/11/35(2)), in order to investigate what was seen as the anomaly of a length of footpath connecting two lengths of highway of higher status (in this case a Road Used as a Public Path and a bridleway).
8.2 The National Parks and Access to the Countryside Act 1949 made provision for revision of the Definitive Map to take place through five yearly or quinquennial reviews. As the Definitive Map for the County of Gloucestershire was not completed before the Wildlife and Countryside Act 1981 came into force, no such review was ever carried out. Thus many investigations were undertaken into correcting perceived anomalies or adding paths to the Definitive Map prior to 1983 but no alterations were made to the map. North Cotswold Rural District Council public rights of way file 1965-1987 (MO 1085 AO 1179.002) contains information on the 1973 claim.
8.3 On 29 October 1973 Mr C H F Ransom of Porters Farm, Wyck Rissington wrote to Mr Blair, County Surveyor: “An anomaly has been pointed out to me on the bridleway and footpath from this village to Bourton on the Water via Wyck Mill and Moor Lane. It is shown on the Ordnance Survey Maps as a bridleway / footpath as far as a point on the parish boundary, and then only as a footpath to a point where it meets Moor Lane, where it once more becomes a bridleway. As this has always been known, certainly for the last 20 years since I have lived in this village, as a bridleway throughout its entire length, I feel that it should now be designated and altered on the maps, as I believe this is the year for these to be altered. Also the Parish Council have been asking for these to be signposted at both ends, so far without much success. I enclose a map showing the stretch in question marked A-A in red”. The map shows the length
Page4 6 Created by Neevia Document Converter trial version http://www.neevia.com A-A as running from our point B along HBW 8 and HBW 10 to point F on map ….C. The map is annotated “B-C [A to B] 5’-6’ wide lane, grass surface bounded by hedges becoming overgrown used as bridleway. C [point B] field gate and kissing gate”.
8.4 Mr Blair replied on 31 October 1973: “…I was in fact already aware of the anomaly and am arranging for the matter to be dealt with when the review of the public rights of way survey is commenced. Unfortunately this will not be for a year or so yet, since I am required by the Department of the Environment to produce a Definitive Map for the whole of the county before I can commence the review on any other part of it and there is yet the Forest of Dean area to be produced to Definitive Stage. In so far as the signposting is concerned, I have refrained from including this particular path in my programme because of the differences in classification” (….M).
8.5 It has not proved possible to locate the file 573/11/35(2), although it is known that this was an application instigated by the County Council in order to clarify the status of the length of footpaths HBW 11 and HBW 8. It is not clear as to whether any investigations were actually carried out.
8.6 The land between points B and E has been in the ownership of the Gloucester- shire Wildlife Trust since 1999 and is managed as a nature reserve. The land, which is traditional hay meadow, is mown for hay in the summer and the aftermath grazed in the autumn. The length of path between points C and E forms part of Salmonsbury Meadows Site of Special Scientific Interest (SSSI). It was designated in 1985 under Section 28 of the Wildlife and Countryside Act 1981.
8.7 In March 1999 Gloucestershire Wildlife Trust applied to the County Council for a licence to use vehicles over the section of footpath A to D. Alan Bently, Head Ranger in the Public Rights of Way Section wrote to Ms S Scott the Development Manager of Gloucestershire Wildlife Trust on 7 April 1999, attaching an extract from the Definitive Map of Public Rights of Way. He stated
“….The route marked (1) [B to D] on your map is public footpath HBW 8, Bourton on the Water Parish, to the west of the watercourse running north- south. To the east it becomes public bridleway HRW 7. The route marked (2) [A to B] is public footpath HBW 11. The section of public footpath highlighted on the enclosed extract from the Definitive Map has been the subject of an application to upgrade its status to bridleway, though this has never been taken forward. I enclose some information about Definitive Map procedures. Whether the route is a footpath or a bridleway, you may apply to this Authority for a licence to use it with motor vehicles…”
The application being referred to is the one that was instigated by the Highway Authority, 573/11/35(2). Thus, the landowners were aware in 1999 that the length of footpath running through their land was the subject of an application to re-classify the way as a bridleway.
Page5 7 Created by Neevia Document Converter trial version http://www.neevia.com 8.8 In July 2004 Mrs C E King of Lincroft House, Bourton contacted Gloucestershire County Council to say that she had openly used the claimed route on horseback since she moved to the area and had recently been stopped by contractors working for Gloucestershire Wildlife Trust who had acquired the site a few years ago. Mrs Jane Davies of The Bungalow, Mousetrap Lane, Bourton contacted the County Council at the same time to say that she had used the route since the early 1980s without challenge until recently when she was advised by contractors that it was not a bridleway.
9. APPLICATION
9.1 An application was made on 23 September 2004 by Mrs C E King of Lincroft House, Clapton Row, Bourton on the Water. Her claim is for existing footpaths HBW 11 (part) and HBW 8 (part) to be reclassified as public bridleways. The claimed path runs from RUPP HBW 9 (Moor Lane) to connect with public bridleway HBW 10. Notice was served on the landowners affected by the application: Gloucestershire Wildlife Trust, Conservation Centre, Dulverton Building, Robinswood Hill Country Park, Gloucester and the tenant of the land, Mr A Firth of Clark Hill Farm, Little Rissington, Gloucestershire.
9.2 A total of twenty public path evidence forms completed by twenty named persons were submitted in support of the application. A summary of these evidence forms is attached (numbered C).
9.3 A subsequent Land Registry search indicated that the length of track A to B (footpath HBW 11) and its continuation southwards was unregistered and it is believed that no one claims ownership of this parcel of land. The remainder of the affected land from point B to point E was confirmed to be in the ownership of the Gloucestershire Wildlife Trust.
9.4 The applicant Mrs C E King received a letter from the Gloucestershire Wildlife Trust (the landowners) on 1 October 2004 which stated: “I have recently received notification from you regarding the proposed upgrading of the Oxfordshire Way from footpath to bridleway across part of Salmonsbury Meadows. I am aware that the existing situation is peculiar with the official bridleway stopping at the river and am keen that we try to find a compromise to this situation, whilst satisfying the needs of all the users of the farm. I wonder if you would be prepared to meet with me to discuss the options available, for example on other Wildlife Trust owned land we operate a riding permit system with permissive bridleways which are accessible at different times throughout the year. I would very much like to meet with you to discuss this further and would be grateful if you would consider this. I look forward to hearing from you”.
9.5 It is understood, following a telephone conversation between the investigating officer and the applicant on 12 October 2004 that this offer of a permissive bridleway with a riding permit system was unsatisfactory to the applicant. Mrs King was aware that the right to use a permissive path could be withdrawn by the landowner at any time and that such permissive use would not establish any public right over the path. She believed that the interests of horse riders would
Page6 8 Created by Neevia Document Converter trial version http://www.neevia.com be best served if she went ahead with her Modification Order claim to establish a public bridleway and would reply to the Trust directly, declining their offer.
10. LANDOWNERS’ EVIDENCE
10.1 A submission was made on 11 March 2005 by Rosie Cliffe, Head of Habitats and Species, acting for the landowner Gloucestershire Wildlife Trust.
10.2 “…I can confirm that the Trust is the owner of the land crossed by HBW 8 but we do not own the land crossed by HBW 11, although we do have a right of access along it. I have enclosed a land registry map showing our full ownership. I also enclose the Landowner evidence form duly completed and have the following additional comments to make.
10.3 The Trust owns and manages land across Gloucestershire and operates a policy of open access to almost all of its land. We actively encourage the public to enjoy and visit these nature reserves, and make every effort to ensure that access provision is suitable.
10.4 In this instance I appreciate that there is an anomaly with the existing public bridleways in the area with bridleway HBW 10 stopping in the middle of our land and not joining up with road used as a public path HBW 9, a gap of merely two fields. However, the Trust has to accommodate all users to its reserves and with this in mind I had hoped to be able to negotiate with local riders to create a permissive bridleway along HBW 8 which would be open for part of the year, and closed for part. This would help to satisfy the needs of all users, whilst ensuring the protection of the wildlife interest of the site at the most sensitive times of year.
10.5 If it is possible to do so, I would like an opportunity to attempt to negotiate this in advance of the council taking this modification order to committee and making a decision”.
10.6 On the Landowner Evidence Form, the Gloucestershire Wildlife Trust stated that they had seen horse riders on a few occasions and added “I have spoken to riders to explain that it is a footpath but did not turn them back, just made them aware for the future”. The five bar gates at points B and C “were padlocked in October 2004 due to problems with travellers / campers driving into the fields”.
10.7 No comment has been made by the tenant of the land, Mr A Firth of Clark Hill Farm, Little Rissington, on the evidence submitted in support of the application.
11. DOCUMENTARY EVIDENCE
The County Archivist and the Modification Orders Officer have examined sources in the Gloucestershire County Record Office to see if this path is marked in any way and to identify other sources which might be useful in establishing the status of any right of way along this route.
Page7 9 Created by Neevia Document Converter trial version http://www.neevia.com 11.1 Inclosure Award 1774 (D1395/VI/1) (….D) Unofficial map only, no official map or award held. Catalogue entry describes the map as “A map of the parish of Bourton on the Water surveyed by William Reeves. Scale 4 chains to an inch. Lands paying tithe to the rector and lord of the manor marked. Key indicates that roads coloured yellow, fields as either green or uncoloured, depending on the recipient of the tithe. Fields are named, ownership distinguished by numbers. Occupation road shown running north to point A and then continuing south-east beyond point B and then east, giving access to a number of fields in differing ownerships (no through route). Claimed route B to F not depicted.
11.2 Tithe Map, 1846 (GDR/T1/35) (….E) No key, roads coloured brown. Moor Lane shown enclosed by two full lines, outside property boundaries and coloured brown. A continuation of Moor Lane is shown running between points A and B and then continuing south from point B and then turning to the east, as a no through route, giving access to various meadows along the Rivers Eye and Dikler. Claimed route not shown east of point B.
11.3 Ordnance Survey 25” to 1 mile, 1886 edition, sheet Glos 29.9 (….F) HBW 11 shown marked by two full lines with a physical barrier indicated at its junction with HBW 8. Status not identified. HBW 8 indicated by double pecked lines, but again with no status indicated.
11.4 Ordnance Survey 25” to 1 mile, 1903 edition, sheet Glos 29.9 (….G) HBW 11 shown marked by two full lines with a physical barrier indicated at its junction with HBW 8. Status not identified. HBW 8 indicated by double pecked lines. Annotated “B.R.” between points D and E. A footbridge is marked over the River Eye, annotated “F.B.”.
11.5 Ordnance Survey 25” to 1 mile, 1922 edition, sheet Glos 29.9 (….H) 3rd edition map shows the route between points A and B within two full lines. A boundary feature is shown at point B. The claimed route is shown by two pecked lines between points B and F. A footbridge is shown over the River Eye at point D annotated “F.B.” and a further bridge is marked over the River Dikler at point F. The section of path between points D and E is annotated “B.R.” indicating a bridleway. There is no indication of status between points B and D.
11.6 Ordnance Survey 6” to 1 mile, 1923 edition, sheet Glos 29 SW (….I) 1923 6” map shows the path HBW 8 [between points B and C] marked as ‘FP’ and the path HBW 10 [D to E] marked as ‘BR’.
11.6 Ordnance Survey 1” to 1 mile map, surveyed 1817 HBW 11 apparently shown, but not HBW 8. HBW 11 indicated by two full lines and uncoloured (major routes are coloured brown).
11.7 Bryant Map of Gloucestershire, 1824 HBW 11 apparently shown, but not HBW 8. Bryant’s colour key indicates that he views HBW 11 as a lane or bridleway.
Page8 10 Created by Neevia Document Converter trial version http://www.neevia.com 11.8 Inland Revenue, maps compiled under the Finance Act 1910 Based on Ordnance Survey 25” to 1 mile c.1902 edition, marked up by Inland Revenue c.1915, and reference books and files (D2428) Map not held, so forms 37 (D2428/2/30) not checked. Map should be available at National Archives, Kew.
11.9 Maps deposited with County Planning Officer under Rights of Way Act, 1932 S1,3 (CP/D 1/8) HBW 8 illustrated on map (map base is 6” to 1 mile OS County Series) and marked as “FP”. There is an accompanying declaration (….J) made by Violet Ethel Lynes of Greystones, Bourton on the Water on 12 April 1937 under Section 1 (subsection 4) of the Rights of Way Act 1932. It admits to a number of footpaths that cross the land as having been dedicated as highways: “A footpath commencing near The Harp and crossing fields numbered 247, 245, 238 and 237 on the said plan and leading eventually to Wyck Rissington so far as such footpath crosses the said fields”. The accompanying plan makes it clear that this is the path HBW 8 / HBW 10.
11.10 Parish Council File, Rights of Way Act 1932 Nothing deposited by Parish Council.
11.11 Duplicate copies of tithe or inclosure awards PC 1871- Modern hand drawings of unofficial inclosure map D 307- Copy of Tithe Map MF 1126/28- Microfilm copy of tithe map
11.12 Private Estate Maps D2871/2/35- Copy of 1919 map of Bourton village. Area not illustrated.
11.13 Footpath or highway diversion orders deposited with Clerk of the Peace (Q/SRh) 1830C, 1934B Q/SR 1831A, 1860C Checked, not relevant
11.14 Plans of public schemes, deposited with the Clerk of Peace (Q/RUm) Not checked
11.15 District Council Clerk’s correspondence DA30/132/4- Reproduces information given about HBW 8 in CP/D1/8. DA23/132/12- Clerk’s rights of way file, 1946-8. Not relevant. DA23/132/23- Correspondence files re: National Parks and Access to the Countryside Act, 1950-58. Not relevant. DA23/132/24/1-3- General rights of way correspondence files, 1950-75. Not relevant DA23/132/38- Footpath diversion file for Bourton, 1963-4. Not relevant.
11.16 County Council Solicitor’s correspondence (K596/27/4)
Page9 11 Created by Neevia Document Converter trial version http://www.neevia.com Correspondence and papers concerning public hearings for the determination of objections to draft footpath map in North Cotswold Rural District, 1954. Checked. Not relevant.
11.17 County Surveyor: papers relating to survey of footpaths under National Parks and Access to Countryside Act 1949 (K687) (….K), (….L) K687/1/9/8 Original submission map and schedule. An extensive survey was undertaken of the paths in the parish by various parish council members. The document is headed “Bourton on the Water Footpath Survey” (….K). It is noted that all OS Numbers are from OS Map of 1885. The claimed routes were surveyed by B Woolley (chairman of Bourton on the Water Parish Council) on 27 April 1951. He describes Footpath 10 [the current HBW 11] as running north and passing by a step stile into Harp Lane [Moors Lane] which he describes in brackets as an occupational road. Footpath 11 [now HBW 8 and 10] is described by him running north-easterly: “…step stile into Harp Lane, cross lane and Hand gate into OS 238 [point B], pasture. (Wire fence has been strung across field with step stile) Foot bridge (handrails missing and approach washed away) now changes to Bridle road [point D] into OS 231, pasture, fence and Bridle gate into Wyck Rissington parish”. Parish Submission Map shows HBW 11 numbered 10A, HBW 8 numbered 11 and HBW 10 numbered 11A. 11 is coloured purple, 11A green. The accompanying notes submitted by the parish describe HBW 11 (10A on the map) as “FP extension of No.10 N end” in the queries column. HBW 8 (11 on the map) is described as “FP”; in the queries column it is noted “?BR (called FP on OS) BR in Rissington. Check W end for BR or FP” and under remarks “NW end BR”. HBW 10 (11A on the map) is described as “BR” (….L). K687/2/7/9 and 2/7/11 Objections files. Not relevant Draft and Modified Draft maps. Both show HBW9 as CRB [Carriage Road used as a Bridleway], HBW 11 and 8 as footpaths, but HBW 10 (the continuation over the River Eye to the parish boundary) as a bridleway. The continuation into Wyck Rissington parish (HRW 7) is shown as a bridleway past Wyck Mill and into the village. K687/3/14 Provisional map. Features as Original Submission map. K687/3/35 Provisional statement. HBW 8 and HBW 11 both described as ‘FP’
The Gloucestershire County Archivist comments “For HBW 11, there is evidence that Bryant viewed the route as having the status of a lane or bridleway in 1824, although more recently it has been viewed as a footpath. The evidence of the original submission map is that the Parish Council considered the status of HBW 8, given that it connected with a bridle road in Rissington parish, but decided to submit it as a footpath”.
12. OTHER OBSERVATIONS
12.1 Bourton on the Water Parish Council
Page10 12 Created by Neevia Document Converter trial version http://www.neevia.com Mr J R Nicholson, Clerk to Bourton on the Water Parish Council, was consulted on 2 February 2005.
12.2 Cotswold District Council Following a letter of consultation to the District Council, Mr T Hawkins replied by letter dated
12.3 County Councillor Councillor Gillams, the local county councillor was consulted on 2 February 2005. He has not as yet responded to this consultation.
12.4 Ramblers’ Association The North Cotswolds Group Footpath Secretary Elizabeth Bell responded by letter dated 22 February 2005: “…Two long distance paths go along this route; the Oxfordshire Way and the North Cotswold Diamond Way. It is [a] quiet peaceful area, the Salmonsbury Meadows of Special Interest. Although it makes sense to join the two bridleways we are objecting to it being modified because it is soft earth and horses hooves would churn it up in wet weather and make it unpleasant for walkers. Horses need a firmer surface than there is in that field. It would seem feasible to separate walkers from horses and they would all have to use the same track. It then becomes a real problem for walkers. It would have to be properly maintained and regularly levelled if it were a bridleway, and it is unlikely that the landowner would do this. We would like it left as it is”.
12.5 British Horse Society Mr William Reddaway, County Access and Bridleways Officer, was consulted on 14 March 2005 but no response has as yet been received.
12.6 Cyclists’ Touring Club Colin Palmer, the CTC Offroad Right to Ride Representative replied by letter dated 16 March 2005. He confirmed that the CTC supported this application but had no evidence to offer.
12.7 Open Spaces Society Gerry Stewart, Local Representative for the Open Spaces Society, was consulted by letter dated 14 March 2005.
12.8 English Nature English Nature was consulted in connection with this application as the path crosses a Site of Special Scientific Interest (SSSI). Paul Hackman, Conservation Officer for East Gloucestershire replied on 22 March 2005: “Thank you for your consultation… regarding the above. I can confirm that the proposed upgrade does affect the SSSI. I note that you state that environmental considerations will not be taken into account in determining this application. As a statutory consultee on matters which may affect an SSSI, English Nature is only in a position to comment on environmental considerations. Additionally as a public body, the County Council has a duty under Section 28G of the Wildlife and Countryside Act 1981, as incorporated by the Countryside and Rights of Way Act 2000, to take reasonable steps, consistent with the proper
Page11 13 Created by Neevia Document Converter trial version http://www.neevia.com exercise of their functions, to further the conservation and enhancement of the SSSI.
Consequently, our advice is as follows: • The SSSI is notified for its wet grassland and marshy vegetation. It supports many wet grassland species which are rare within Gloucestershire • The upgrade of the footpath to a bridleway may cause additional poaching of vegetation along the route and to the sides of the route as users try to find a less muddy alternative • The degree of likely additional poaching and possible methods of dealing with it should be carefully considered • I suggest you discuss the matter with your Ecologist, Gary Kennison, and the landowners, Gloucestershire Wildlife Trust, before any final decisions are made.
Gary Kennison, the Gloucestershire County Ecologist, e-mailed on 23 March 2005: “After seeing a copy of English Nature’s letter to you on the above I can confirm that we have a duty under Section 28 (G) of the CroW Act which is very relevant to this case. As Paul Hackman says I should be consulted before any final decisions are made. We will need to formally consult English Nature on this proposal and I refer you to the attached guide on how this should be done (page 10(11) onwards and appendix 1 and appendix 3)”.
Andrew Houldey, Modification Orders Officer wrote to Gary Kennison on 24 March 2005 to explain that the Council were not creating a new highway, only acknowledging that rights have come into being through long user and that the Modification Order process allowed the Definitive Map to be altered accordingly.
Gary Kennison wrote on 29 March 2005: “Thanks for the explanation. I think English Nature also need to be given the whole picture. You should emphasise to them… that the County Council is formalising a bridleway usage that is already going on (as required by a duty under Section 53 (3) (c) (ii) of the Wildlife and Countryside Act 1981). You should conclude by saying… after consulting with the County Ecologist and Legal Services it is concluded that there should be no change to the current condition of the SSSI because: (1) there are no works proposed to the footpath(s), and (2) usage is not expected to increase as a result of confirming the modification order(s).”
13. APPLICANT
13.1 The applicant, Mrs C E King, confirmed on 21 March 2005 that she had spoken to Mrs J Davis and Mrs Payne, and that they did not wish to accept the Gloucestershire Wildlife Trust’s offer of a permissive bridle path at Salmonsbury.
13.2 On 22 March 2005 Mrs King wrote to Gloucestershire County Council to confirm that they did not wish to accept any offer for a permissive path and wished the County Council to proceed with taking the Modification Order application to the Commons and Rights of Way Committee for determination.:
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“I understand the Wildlife Trust have now suggested a ‘Permissive Bridleway’ for riders’ use together with a ‘riding permit’ system, which would be accessible at different times throughout the year. In view of the unhindered use this route has had by horse riders for many, many years, together with the views of other riders, I would like to go ahead with the upgrading of the whole route to bridleway”.
14. LEGAL COMMENTS AND CONCLUSIONS
14.1 Section 53 [3] [c] [i] of the Wildlife and Countryside Act, 1981 relates to the discovery by the Authority of evidence that shows that a right of way that is not shown on the map and statement subsists, or is reasonably alleged to subsist, over land in the area to which the map relates.
14.2 Section 31(1) of the Highways Act 1980 states that where a way over any land, other than a way of such character that use of it by the public could not give rise at Common Law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it. The period of 20 years in sub-section (1) is to be calculated retrospectively from the date when the right of the public to use the way is brought into question through an overt act by the landowner which makes it clear to the public that their right is being challenged. The twenty years usage must furthermore be “without interruption” and the requirements of Section 31 will not be met if “there is sufficient evidence that there was no intention during that period to dedicate it”.
14.3 Section 31 (9) of the Highways Act 1980 says that nothing in this Section operates to prevent the dedication of a way as a highway being presumed on proof of user for any less period than 20 years. Paragraph 12 of Annex B of the Department of Environment Circular 2/93 states that before making an order the surveying authority must be satisfied that the evidence shows on the balance of probability that a right of way of a particular description exists.
14.4 To fulfil the requirements of Section 31 of the Highways Act, we need to see whether there has been a full 20 years use by the public and, in order to do this, we have to ascertain the date of challenge, that is there has to be some overt act on the part of the landowner to bring it home to users that their right is being challenged. There is no fixed method by which the public’s right is brought into question, though one (the erection of a notice) is expressly referred to in Section 31. The words “or otherwise” in Section 31(2) leave the matter at large. The methods can range from a notice on site denying the public the existence of a right of way, the locking of a gate or seeking a declaration that there is no highway over the land in question. Whatever means are employed, it should be sufficient “to make it likely that some of the users are made aware that the owner has challenged their right to use the way as a highway… The persons to whom the challenge has to be brought home are the users of the way.”
Page13 15 Created by Neevia Document Converter trial version http://www.neevia.com 14.5 The 20-year period over which a way has to be enjoyed by the public as of right and without interruption is that before the date when the right of the public to use the way was brought into question. There has to be an overt act on the part of the landowner to bring it home to users that their right is being challenged. In June 2004 horse riders challenged by agents or contractors working on behalf of the landowners, Gloucestershire Wildlife Trust, who pointed out that the claimed route was a footpath rather than a bridleway. It was these actions that led to the application being made. By July 2004, the gate at point B was chained, the chain being secured by an unscrewable nut and bolt. It was unsure whether this action was to prevent public use or otherwise or whether it was the landowner who took this action.
14.6 The relevant 20-year period is therefore 1984 to 2004.
14.7 It is not essential for the path or way to have been used for the full period of 20 years by the same persons; the period may accrue as a result of use by different persons for shorter periods. Nor does it matter that the use is not continuous in the sense that it may not have occurred everyday.
14.8 The twenty years’ use must further be “without interruption” and this must be proved by the claimant. “An interruption” has been defined as “an actual and physical stopping of the public’s enjoyment” ( Mersham Manor Ltd v Couldson Urban DC [1937]) as opposed to an act which merely challenges the public’s right. It is not a mere absence in the continuity of use. Moreover, such interruption must be with the intention to prevent public use. It is not sufficient if the interruption is for some other purpose. In this case there is no evidence of interruption.
14.9 Twenty public path evidence forms were completed by twenty witnesses. Of these, seventeen state that they have used the route on horseback, three on foot. Use on horse goes back to 1950, with three other witnesses claiming use since 1960. Two of the witnesses have used the path on horseback for more than 40 years. Five more witnesses have used the path for a period of 20-39 years; ten more witnesses have used the path for less than 20 years. Eleven of the seventeen witnesses claim to have used the path up until the time when their right to use the way was brought into question in 2004. Frequency of use is relatively high, with four of the witnesses claiming to use the path more than a hundred times a year and three more claiming use more than 50 times a year.
14.10 For long usage to give rise to a presumption of dedication, user has to be without force, without secrecy and without permission. Landowners do not seem to have prevented horse riders from using the path until Summer 2004. No evidence has been found that use was with permission.
14.11 A deposition was made in 1937 by Violet Ethel Lynes, the owner of the land, under Section 1(4) of the Rights of Way Act 1932. Mrs Lynes admitted to a footpath running along the course of the claimed route. This section remains in existence, and is now contained in Highways Act 1980 s.31(6), enabling landowners to deposit with the highway authority a map of the admitted rights of way on their land. Such a deposit would be sufficient evidence to negative the
Page14 16 Created by Neevia Document Converter trial version http://www.neevia.com intention of the owner or his successors in title to dedicate any such additional ways as highways. The deposit had effect for six years under the 1932 Act. Where a map has been deposited it will be very strong evidence of the status of any way shown on it as an admitted right of way. It is also evidence of a lack of intention to dedicate a bridleway. There is no evidence that the deposition was renewed; it is unsure how long Mrs Lynes remained owner of the land over which the claimed route passes. By 1953 the owner was Mr J D Griffith Davies of Burgh Fields, Bourton on the Water.
14.12 There is no statutory minimum level of user required for the purpose, and the matter does not seem to have been tested in the courts. However it is clear that there has to be a sufficient level of use for the landowner to have been aware of it, and to have had the opportunity to resist it if he chose. In Hollins v Verney (1884) it was said that: No user can be sufficient which does not raise a reasonable inference of such a continuous enjoyment and that no actual use can be sufficient to satisfy the statute…unless the user is enough to carry to the mind of a reasonable person (owner, etc) the fact that a continuous right of enjoyment is being asserted and ought to be resisted…It follows that use of a way is less cogent evidence of dedication if the landowner is non-resident- at any rate, if the owner had no agent on the spot- than if he is resident. If the landowner did not know that the way was being used, no inference can be drawn from his non-interference.
14.13 Use of the way should also have been by a sufficient number of people to show that it was use by the public, that is the people as a whole, or the community in general, and this may well vary from case to case. Very often the quantity of valid user evidence is less important in meeting these sufficiency tests than the quality (i.e. its cogency, honesty, accuracy, credibility and consistency with other evidence).
14.14 It was held in Mann v Brodie (1885) that the number of users must be as might reasonably have been expected, if the way had been unquestionably a public highway. Watson J said: If twenty witnesses had merely repeated the statements made by the six old men who gave evidence, that would not have strengthened the respondents’ case. On the other hand the testimony of a smaller number of witnesses each speaking to persons using and occasions of use other than those observed by these six witnesses, might have been a very material addition to the evidence. Arguably therefore, the evidence contained in a few forms may be as cogent- or more cogent- evidence than that in many. However, Dyson J in Dorset 1999 did not question that the Inspector had found the evidence contained in five user statements insufficient to satisfy the statutory test, even though the truth of what was contained in them had been accepted.
14.15 The tests of sufficiency outlined above seem to be met by number of witnesses. Twenty is a high number of witnesses to bridleway use. Use goes back to the 1930s, and was described as having taken place for at least twenty years in 1973 when the issue of the status of the claimed route was raised.
Page15 17 Created by Neevia Document Converter trial version http://www.neevia.com 14.16 Under Section 32 of the Highways Act 1980, when determining whether a way has or has not been dedicated as a highway, or the date on which such dedication, if any, took place, shall take into consideration any map, plan or history of the locality or other relevant document which is tendered in evidence, and shall give such weight thereto as the court or tribunal considers justified in the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or compiled, and the custody in which it has been kept and from which it is produced. The Panel’s attention is drawn to the report on documentary evidence at section 11.
14.17 An Inclosure Map dated 1774 provides the first evidence of the existence of part of the claimed route. The map is an unofficial landowner’s copy and it is not accompanied by an Award and hence cannot be considered as conclusive evidence creating or laying out a section of highway. The section of the claimed route A to B is depicted as an enclosed track, continuing south and then east, appearing to give access to a number of outlying fields, in several ownerships. The way is shown in a manner consistent with other known roads, although no indication given as to status. The section of the claimed route east of point B is not shown.
14.18 The Bourton on the Water Tithe Map, dated 1846, is consistent in depicting section A to B as an enclosed track, outside of property boundaries, and forming part of a no through route that gives access to a number of fields in differing ownership in the Moors area. The section B to E is not shown. Both maps appear to show A to B as part of an occupation road, giving access to The Moors for several landowners. The 1910 Finance Act map was unavailable, although modern records suggest that this section A to B is outside of property boundaries and is presumably highway land. Although the historical evidence is strongly indicative of the section A to B being highway, perhaps of a higher status than bridleway, the evidence is not conclusive as to its status.
14.19 Ordnance Survey maps carry a disclaimer that any representation of a road, track or path is no evidence of the existence of a right of way over it. However they do provide evidence of the physical existence and extent of a way, suggesting (but not proving) that the path had been in use for a longer period than that for which user evidence is available. The claimed way is depicted as an enclosed track between points A and B and as a cross field path with no indication of status on the 1886 25” to 1 mile map. The 1903 and 1922 25” maps show the claimed route in the same manner, but the route between points D and E is annotated “B.R.” indicating bridleway. It is unclear as to whether or not this annotation referred to the whole route between point B and Wyck Mill or just to section D to E. The 6” map of 1923 annotates the section B to D as “F.P.” and that between D and E as “B.R.”.
14.20 The survey of footpaths under the National Parks and Access to the Countryside Act 1949 questions whether the route should be included as a bridleway but comes to the conclusion, presumably on the basis that it is depicted as a footpath on the 1923 6” OS Map, that is should be included as a footpath. The correspondence makes it clear that the Parish Council were aware of the anomaly that the western section was a footpath and the eastern
Page16 18 Created by Neevia Document Converter trial version http://www.neevia.com section a bridleway. The Parish Submission also gives important information as to the condition of the path and its structures, making mention of the condition of the footbridge at point D. There is no indication from the description that the path was not capable of being used by equestrians (for example there are no references to stiles along its length).
14.21 The 1973 correspondence, which drew attention to the apparent anomaly of a length of footpath forming a link between a bridleway and a RUPP, asserts that use of the route by horse riders then went back at least 20 years. A survey of the route undertaken by the County Surveyor at that time indicated that there were no structures extant which would impede or prevent equestrian use. He also noted use by horses.
14.22 It is clear that HBW 8 was designated as footpath and HBW 10 as bridleway in the Parish Submission in response to the Ordnance Survey 1923 6” to the mile map, which annotates the two sections thus. Oddly, the 1922 25” map annotates the section D to E as “B.R.” (as does the 1903 map) and does not give any indication as to the status of section B to D. It is unclear as to whether the designation referred to the whole route B to E as bridleway or whether this description was limited to section D to E only. The continuation of the route into Wyck Rissington parish is also marked as bridleway.
14.23 The Inclosure and Tithe Maps are consistent in depicting the section of HBW 11 between A to B as a continuation of Moor Lane, and in showing it continuing south and then east to give access to the meadows beside the Rivers Eye and Dikler. Although the two maps are evidence that this route is a highway, they do not give any indication as to status, and we cannot presume that the way necessarily carried public carriageway status. It is equally possible that the route acted as a private accommodation road, giving access to a number of fields in differing ownerships. It would appear that this whole area, known as The Moor, was drained to create farmland, probably in the 17 th century, when large ditches were excavated and rivers were straightened; presumably Moor Lane was laid out at this time to give access to The Moor.
14.24 The historical evidence indicates that the section of the claimed route B to D carried a lesser status: it is not marked at all on the Inclosure and Tithe maps and is shown by double pecked lines on the 1886 Ordnance Survey map (i.e. as a cross field path rather than as a defined track). The section of bridleway HRW 7 in Wick Rissington parish gave access to Wick Mill, which was on the eastern bank of the River Dikler; this mill is recorded in 1868, by which time (according to a sale particular) it was being used as a farmhouse, and it had gone by 1962. It is to be noted that on the 1886 Ordnance Survey map, the section of path between Wyck Rissington and Wick Mill is annotated only as “F.P.”. The 1868 sale particular for Wick Mill does not depict any route between the mill and Wyck Rissington village. There is no suggestion that the claimed route was used by traffic from Bourton to Wick Mill.
14.25 We can tentatively conclude that A to B forms a continuation of Moor Lane and is thus presumably of similar status. B to D seems to have been accorded a lesser status- it is not shown on the Tithe or Inclosure maps and is first depicted
Page17 19 Created by Neevia Document Converter trial version http://www.neevia.com on the 1886 Ordnance Survey map when the whole of the route through to Wyck Rissington seems to have been regarded as a footpath. On subsequent maps of 1903 and 1922 the route from the mill to Wyck Rissington was considered to be a bridleway. The 1903 and 1922 maps are consistent in annotating the section of path D to E in Bourton parish as bridleway; no designation is given to the section B to D. Presumably the whole route was depicted as a bridleway, but this contradicts with the evidence of the 1923 OS 6” to 1 mile map which makes a clear distinction between the sections B to D which is annotated footpath, and the section D to E which is annotated bridle road.
14.26 The County Council has duties with regard to Sites of Special Scientific Interest (SSSIs) which are contained in schedule 9 of the Countryside and Rights of Way Act 2000 and which have amended and added to existing provisions within the Wildlife and Countryside Act 1981. Under a new section 28G the Gloucestershire County Council (as with other public bodies and Local Authorities) will have a duty to “further the conservation and enhancement of the flora, fauna or geological or physiographical features by reason of which the site is of special scientific interest”. Under section 28H, if the authority is to carry out (in the exercise of its functions) operations likely to damage any of these features, it must give notice to English Nature. English Nature then has 28 days in which to respond and it can either refuse assent or assent to the works (with or without conditions). If English Nature do not respond they are treated as declining assent. The authority can still carry out the operation however it then has to give English Nature a start date (after a further 28 day expiry), demonstrate whether (if at all) it has taken into account any written advice from English Nature, cause as little damage as is reasonably practicable to the special features of the SSSI and finally to restore the site to its former condition (as far as reasonably practicable) if any damage does occur.
14.27 The County Council has a duty under Section 53 of the Wildlife and Countryside Act 1981 to keep the Definitive Map and Statement under continuous review and to modify it in consequence of the discovery of evidence that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description (53 (3) (c) (ii). Through a Modification Order, the County Council seeks to change the Definitive Map to accurately reflect rights that have already come into being, in this case through user as of right over a period of twenty years. The Council is not creating a new highway (as would be the case with Section 26 of the Highways Act 1980) or through diverting an existing path (Section 119 of HA) but acknowledging that rights exist and that the map should be altered to show those rights that already exist. Usage in this case dates back to at least 1950, and presumably dedication had taken place before the land was designated as a Site of Special Scientific Interest in 1985.
14.28 Section 28G of the Countryside and Rights of Way Act 2000 is a general duty which applies wherever the County Council is exercising statutory functions. Section 28H imposes an obligation on the County Council to notify English Nature but only where works are to take place. If works do need to be done then clearly the Council would have to go through the correct procedure. It is
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14.29 The historical evidence is inconclusive in determining the status of the claimed route, but it does allow us to determine that the route has been in existence throughout the period (and longer) for which use has been claimed. Seventeen evidence forms alleging bridleway use, over a long period of time and with a high frequency of use would seem to comfortably meet all of the tests of sufficiency mentioned above. It is thus the conclusion of the officers that the section A-B-C-D be re-classified as a bridleway, on the basis of user evidence.
15. APPENDICES A. Location Map 1:10,000 B. Moor Lane and Salmonsbury Meadows, 1:2,500 C. Summary of Public Path Evidence Forms submitted D. Inclosure Map, 1774 E. Tithe Map, 1846 F. Ordnance Survey 25” to 1 mile, 1 st edition 1886, Glos 29.9 G. Ordnance Survey 25” to 1 mile, 2 nd edition 1903, Glos 29.9 H. Ordnance Survey 25” to 1 mile, 3 rd edition 1922, Glos 29.9 I. Ordnance Survey 6” to 1 mile, 3 rd edition 1923, Glos 29 SW J. Deposit made in 1937 by Mrs V Lynes under Section 4 (1) of the Rights of Way Act 1932 (including map) K. Bourton on the Water Parish Footpath Survey, 1951 L. Parish Submission and Map M. Correspondence, Mr Ransom and County Surveyor, October 1973
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