CORNWALL COUNCIL Report to: Natural Environment Commissioning Manager for a delegated decision on behalf of the Director of Neighbourhoods Date: tbc 2017 Title: Application for the addition to the definitive map and statement of a section of Byway Open to All Traffic from the ford at St Mawgan-in-Pydar CP School (SW 8734/6591) to Lanvean Farm (SW 8734 6591) in St Mawgan-in-Pydar CP Portfolio Holder(s) CC (Environment and Public Protection) Divisions Affected St Mawgan and Colan Relevant Overview And Scrutiny Committee: Environment and Economy Overview & Scrutiny Committee Key Decision: N Approval and clearance N obtained: Urgent Decision: N Implementation Date: Date of Decision Author: Role: Countryside Access Records Officer Contact: Recommendation: • That an Order be made under Section 53(2)(b) of the Wildlife and Countryside Act 1981 to add a Restricted Byway to the Definitive Map and Statement from road U6177 at the ford at Mawgan-in-Pydar CP School to road U6177 at Lanvean Farm in Mawgan-in-Pydar CP. • That the Order be confirmed by Cornwall Council as an unopposed Order if no objections or representations are received to the Order; or, if objections or representations to the Order are received that the Order be submitted to the Planning Inspectorate with a request that it be confirmed by the Secretary of State. - 1 - CORNWALL COUNCIL EXECUTIVE SUMMARY • The purpose of this report is to consider an application to modify the Definitive Map and Statement to add a section of Byway Open to All Traffic from unclassified road U6117 at Mawgan-in-Pydar CP School to unclassified road U6117 at Lanvean Farm in the parish of Mawgan-in- Pydar. • The application was submitted with documents claiming evidence of use and in considering the application the evidence has been examined together with statements and evidence provided by the applicant and affected landowners together with historic maps and documents which are located both within the Council’s own records held by Cornwall Records Office and records obtained from the Kew National Archive. • It is considered that the evidence contained in the maps and historic documents in this report is sufficient to reasonably allege that a right of way to subsists over the investigation route on the basis that this way was considered to be a public vehicular highway when the historical documents were prepared and has not been stopped up by any subsequent legal order. • It is further considered that the evidence of use is sufficient to reasonably allege that a public right of way subsists over the investigation route on the basis of the route being used the public on foot, on horseback and by motor propelled vehicle. Use of the way by the public took place during the 20 year period between 1983 and 2003 when the erection of notices and a gate together with verbal challenges to the public brought the right of the public to use the way into question. The evidence also indicates that the owners of the land affecting the investigation route took no action before 2003 to demonstrate that they did not intend to dedicate a public right of way over the claimed route during this period. • The effect of section 67 of the Natural Environment and Rural Communities Act 2006 (NERCA 2006) was to extinguish all rights for mechanically propelled vehicles that were not recorded before commencement of the Act (subject to certain exceptions). However section 70 of NERCA amended section 53 of the Wildlife and Countryside Act 1981 to allow highway authorities to make Orders to add Restricted Byways to the definitive map and statement where the available evidence indicates that the definitive map and statement should be amended. Therefore it is considered that an Order be made under section 53(2)(b) of the Wildlife and Countryside Act 1981 to add a Restricted Byway to the definitive map and statement over the investigation route by the discovery of evidence. - 2 - CORNWALL COUNCIL 1. BACKGROUND 1.1 An application was made to Cornwall Council on 15 August 2011 by St Mawgan-in-Pydar Parish Council for a Definitive Map Modification Order (DMMO) to be made under Section 53 of the Wildlife and Countryside Act 1981 (WCA 1981), to add a Byway Open to All Traffic from the ford by St Mawgan-in-Pydar CP School (SW 8734/6591) to Lanvean Farm (SW 8734 6591) in St Mawgan-in-Pydar CP. 1.2 The applicant completed to the Council’s satisfaction the legal requirement to serve notice of the application on all owners and occupiers affected by the proposal. The affected landowners were listed as; • 1.3 The Council subsequently conducted a search with the Land Registry and amendments to the title ownership were identified as; • 1.4 The application was acknowledged by Cornwall Council as a valid application made under schedule 14 of the WCA 81 Act and was added to the modification order register on 15 August 2011 (the date of the application). 1.5 The claimed route was depicted in map accompanying the Application Form and is described as commencing at the north-eastern side of the ford by St Mawgan-in-Pydar CP School and continuing in a north-easterly and north-north-easterly direction for a distance of approximately 25 metres and connects with the unclassified road U6177 by Lanvean Farm. The claimed route is shown as section B-C on the Plan at APPENDIX A (at page 58 of this report). During the investigation into the application it was identified by the Council that the claimed route did not connect with another highway at point B. 1.6 Schedule 14 of WCA 81 Act requires a surveying authority to investigate an application for a DMMO as soon as reasonably practicable after it has been made and decide whether or not to make the order to which the application relates. It is generally accepted that the scope of the authority - 3 - CORNWALL COUNCIL to make an Order is not limited to the claimed route, and where an authority discovers evidence as part of its investigation of other matters which are not the subject of the application, then it is reasonable for the authority to consider whether any Order that is made should include these additional matters. During the Council’s investigation evidence was discovered which indicated the existence of another unrecorded section of public right of way commencing at the south-western end of the claimed route on the north-eastern side of the ford (point B on the plan at Appendix A) and terminating at the unclassified road U6177 on the south-western side of the ford. It was therefore decided to extend the scope of this report to include section A-B as shown on the plan. The way that was the subject of the Council’s investigation (section A-B-C) is therefore described as the ‘Investigation Route’ throughout the rest of this report 1.7 A report on the physical condition and the topography of the Investigation Route was prepared following a site inspection on 31 August 2011. This report is included at APPENDIX B (pages 59 to 83). 2. DOCUMENTARY EVIDENCE 2.1 The following documentary evidence was considered as part of the investigation into this application: 2.2 Thomas Martyn Map 1748/49 (CRO Ref. AD1145∗) An extract from the Thomas Martyn map (1748/49) is set out at APPENDIX C - DOCUMENT 1 (page 84). The map extract indicates the existence of roads or tracks in the settlement of Mawgan. There appears to be no route shown in the approximate location of the investigation route. 2.3 Plan of Lanherne Mansion House (1777) (CRO Ref. AD1043/2) part 1 The Plan titled, ‘A Plan of Lanherne Mansion House (1777)’, shown at APPENDIX C - DOCUMENT 2 (page 85) shows the settlement of St Mawgan on this early estate map. The Investigation Route is shown between points A to B crossing the river. The footbridge is shown. 2.4 Plan of Lanherne Mansion House (CRO Ref. AD1043/2) part 2 An accompanying Plan also titled, ‘A Plan of Lanherne Mansion House’ has no date but is considered to also be an accompaniment to the Plan dated 1777 by virtue of its design and layout. The plan is illustrated with a compass point and a key and is marked in a similar manner to the 1777 plan showing buildings and structures within the estates land curtilages. The map is in colour and shows routes in brown ink. There is no associated key with this map to identify what the brown ink refers to. One way identified in brown ink leading towards the ford is labelled as ‘Coach Road to Lanherne from St. Columb’ and this way bifurcates at a location near to the Churchyard with one of the ways marked by brown ink ∗ Cornwall Records Office document reference number - 4 - CORNWALL COUNCIL continuing over section A-B of the Investigation Route towards land that is labelled as ‘Part of the Gleeb’. The extract is shown as APPENDIX C - DOCUMENT 3 (page 86). The footbridge is also visible on this plan. 2.5 The Greenwood Map (1826/27) (CRO Ref. AD197) An extract from the Greenwood Map (1826/27) is set out at APPENDIX C - DOCUMENT 4 (page 87). The scale of the map is too small for it to be useful for identification purposes. A + symbol is shown, which is indicative of a church obscures where the investigation route would be shown and the route is not shown on this map. 2.6 The depiction of paths and tracks on maps such as the Thomas Martyn Map and Greenwood Map, whilst indicative of the physical existence of such routes, provides no conclusive evidence that public rights existed over them, or the precise nature of any rights that might have existed at that time.