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.
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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over the investigation route on the basis that this way was considered to be a public vehicular highway when the historical documents were prepared and has not been stopped up by any subsequent legal order.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.
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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
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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
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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.
2.7 Tithe survey (1840’s) As a result of the Tithe Commutation Act 1836 during the early 1840's the majority of parishes were surveyed by the Tithe Commissioners. They produced detailed, large scale parish maps and accompanying schedules, which identified titheable lands, but not highways or their status. The depiction of a way on the Tithe Map cannot be used as conclusive evidence of the existence of public rights, but the maps do mark roads quite accurately, and taken in conjunction with the schedule, can provide useful evidence. As tithes were not payable on public highways, these are sometimes shown in a special colouring on the map.
2.8 Tithe Map: Diocesan copy (1842) (CRO Ref. TM/141) An extract of the Diocesan copy of the Tithe Map of the Parish of ‘St. Mawgan-in-Pyder’ (dated 1843) is shown at APPENDIX C – DOCUMENT 5 (page 88). The extract shows the relevant part of the Tithe map for the Parish of Mawgan-in-Pydar covering the investigation route. The way is clearly shown on this map depicted with a sienna coloured wash which was consistent with it being a highway at the time of the survey. There are two braces linking the investigation route to Tithe plot numbers 1306 & 1307 which indicates that ownership and occupation of the land crossed by the investigation route went with these plots, and tithe was therefore payable for these two plots. There appears to be an unbroken line across the lane at the point where it meets the river which may indicate the presence of a boundary.
2.9 Tithe Map: Diocesan copy (1842) (CRO Ref. TM/141) insert showing ‘Churchtown’ settlement An extract of the Diocesan copy of the Tithe Map of the Parish of ‘St. Mawgan-in-Pyder’ (dated 1843) is shown at APPENDIX C – DOCUMENT 5A (page 89). The extract shows an insert from the Tithe map for the Parish of Mawgan-in-Pydar covering the investigation route, which is in the top right hand corner of the original map. The insert map shows selected Tithe plots associated with land under the occupation of the ladies of the Convent of Lanherne. The investigation route is shown in
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sienna coloured wash as are other routes around the village of St Mawgan.
2.10 An extract of the Diocesan copy of the Tithe Map of the Parish of ‘St. Mawgan-in-Pyder’ (dated 1843) with the official signatures of the Tithe Commissioners shown at APPENDIX C – DOCUMENT 6 (page 90). The accompanying written statement says that it is a copy of the map or plan referred to in the said apportionment.
2.11 Tithe Apportionment: Diocesan copy of the Tithe Apportionment (1842) (CRO Ref: TA/141) An extract of the Diocesan copy of the Tithe Apportionment of the Parish of ‘St. Mawgan-in-Pyder’ (dated 1842) is shown at APPENDIX C – DOCUMENT 6A (page 91). The accompanying written statement indicates that the document was a true copy of the ‘Instrument of Apportionment’.
2.12 Extracts of the relevant pages of a typed copy of the Tithe apportionment register TA/141 (1842) are shown at APPENDIX C - DOCUMENTS 7A & 7B (pages 92 & 93). The relevant description of land and premises on the Tithe Apportionment are encircled in red. Apportionment plot no. 1306 is described under Landownership, as land described as ‘Halcorn Moor’. Apportionment plot no. 1307 is described under the landownership of and occupied by himself and , as land described as ‘Lawn and Mill Leat’. The river crossing the ford adjoining plot no. 1338 has been numbered 1501 on the relevant section of the Tithe map, there is no corresponding entry for plot 1501 in the apportionment register.
2.13 Tithe Map: Parish copy (1842) (CRO Ref. P141/27/2) The extract of the Parish copy of the Tithe Map of the Parish of ‘St. Mawgan-in-Pyder’ (dated 1842) is shown at APPENDIX C – DOCUMENT 8 (page 94). The extract shows the relevant part of the Tithe map for the Parish of St. Mawgan-in-Pydar covering the investigation route. The investigation route between points (A–B-C) is clearly shown on this map depicted with a sienna coloured wash which is indicative that the way was considered to be a public highway at the time of the survey. Where the investigation route crosses the river there is a dotted line which suggests that the way was unbounded between points A and B. The investigation route is not referred to by a hereditament number and there are no braces linking the lane with any neighbouring hereditaments. The map shows an unbroken line across the investigation route next to the letter ‘U’ in ‘CHURCH’ which may signify a boundary. To the north of point B where the ford crosses the river there is another unbroken line shown across the investigation route.
2.14 Tithe Map: Parish copy (1842) (CRO Ref. P141/27/2) signed statement of the Tithe Commissioners The map itself does not have an official seal but it has been signed by the Tithe Commissioners as a certified copy of the map and plan referred to in the accompanying apportionment book CRO Ref: P141/27/1. A relevant extract of the map is shown at APPENDIX C – DOCUMENT 8A (page 95).
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2.15 Tithe Apportionment: Parish Copy “Map of Mawgan-in-Pyder Parish” (1842) (CRO Ref. P141/27/1) Official Seal The official Parish copy of the Tithe apportionment includes an official seal and was signed by the Tithe Commissioners as a certified copy of the ‘Instrument of Apportionment’ and dated the Thirty First day of December 1842. The extract is shown at APPENDIX C – DOCUMENT 8B (page 96).
2.16 Tithe Apportionment: Parish Copy “Map of Mawgan-in-Pyder Parish” (1842) (CRO Ref. P141/27/1) Plot 1306 The extract is shown at APPENDIX C – DOCUMENT 8C (page 97). The extract is the same depiction as shown in the Diocesan and Tithe Commissioners copies.
2.17 Tithe Apportionment:Parish Copy “Map of Mawgan-in-Pyder Parish” (1842) (CRO Ref. P141/27/1) Plot 1307 The extract is shown at APPENDIX C – DOCUMENT 8D (page 98). The extract is the same depiction as shown in the Diocesan and Tithe Commissioners copies.
2.18 Tithe Map: Tithe Commissioners copy for the Parish of ‘St. Mawgan-in- Pyder’ (1842) National Archives Ref. (IR.30.6.125) An extract of the Tithe Commissioners copy of the Tithe Map of the Parish of ‘St. Mawgan-in-Pyder’ (dated 1842) is shown at APPENDIX C – DOCUMENT 9 (page 99). The extract shows the relevant part of the Tithe map for the Parish of St. Mawgan-in-Pydar covering the investigation route, which is clearly shown on the map. Where the investigation route crosses the river there is a dotted line which indicates that the way was unbounded between A and B on the map and there are no braces linking the lane with any neighbouring hereditaments as shown on the Diocesan copy. The footbridge is shown between points A to B on the plan. An unbroken line is shown across the investigation Route to the north of 1326, which may represent a gate or boundary.
2.19 An extract of the Tithe Map containing the Tithe Commissioners’ certification of the accuracy of the Map is shown at APPENDIX C – DOCUMENT 9A (page 100). It is considered that a faint outline of the Tithe Commissioners’ official seal is visible in the extract to the left of the signatures.
2.20 Tithe Commissioners Apportionment:Parish Copy “Map of Mawgan-in- Pyder Parish” (1842) (NA Ref: IR 29/6/125) Plot 1306 The extract is shown at APPENDIX C – DOCUMENT 9B (page 101). The extract is the same depiction as shown in the Diocesan and Parish copies.
2.21 Tithe Commissioners Apportionment:Parish Copy “Map of Mawgan-in- Pyder Parish” (1842) (NA Ref: IR 29/6/125) Plot 1306 The extract is shown at APPENDIX C – DOCUMENT 9C (page 102). The extract is the same depiction as shown in the Diocesan and Parish copies.
2.22 Tithe Commissioners Apportionment:Parish Copy “Map of Mawgan-in- Pyder Parish” (1842) (NA Ref: IR 29/6/125) Plot 1501
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The extract is not shown to exist on the Genealogist at APPENDIX C – DOCUMENT 10 (page 103). The extract is not shown in the Diocesan and Parish copies of the Tithe Apportionment record.
2.23 The District Valuation Map prepared under the Finance Act 1910 A survey was carried out by the Valuation Department of the Inland Revenue under the Finance Act 1909. The task of the valuers was to provide information for tax purposes, to plot and record every piece of land, give every land holding a number, and provide ownership and occupation details for valuation purposes. Their concern with rights of way was in order to assess tax relief. In assessing the value of the land, deductions were made inter alia for “the amount by which the gross value would be diminished if sold subject to any public rights of way”. When it came to disposal a landowner could not claim a deduction if the deduction could have been, but was not claimed on the original site value.
2.24 The fact that almost all individual pieces of land in private ownership were recorded (identified by coloured boundaries) provides a valuable resource of information about the existence of untaxed public roads which were generally excluded from the parcels of private land. But this does not mean that it should be assumed that roads included or part included, in a hereditament were not to be subject to carriageway rights. However, if a lane or track was excluded from the taxable landholdings, it is likely that it was considered to be a carriageway at the time. Marked up Finance Act 1910 maps can be highly relevant where they show that an ‘uncoloured’ road running between enclosures was omitted from the valuations.
2.25 An extract of the District Valuation map on map sheet OS 1:2500 County Series Sheet no. XXXII.6 c.1912) CRO Ref. DV/4/375 is set out at APPENDIX C – Document 11 & 12 (page 104 & 105). The map presents the investigation route running from the ford as an uncoloured road to the junction with the road at Lanvean. The ford is coloured and associated with hereditament 128 under the occupation of the which is identified with grey colouring. Where the investigation route crosses the ford the uncoloured way narrows considerably where it meets the footbridge. The Ordnance Survey mapping that was used as a base map for the survey indicates the existence of a footbridge and a ford as physical features at this location in that they are labelled on the map and the track is depicted where it passes through the river.
2.26 The application route is shown to be excluded from the adjacent plots between points B – C on the application plan, which may consider that it was a carriageway.
2.27 Associated records such as the Domesday book and Forms 37 show that no deductions had been made for public rights of way under hereditament numbers 9, 128 & 178. Extracts of the Domesday book CRO Ref. DV/1/74 and Forms 37 are shown at APPENDIX C – Document 106 - 24 (pages 106 to 117). The lack of deductions for rights of way does not imply the absence of such a right; it only means that the landowner chose not to seek a discount.
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2.28 Ordnance Survey County Series maps It is well established that Ordnance Survey maps do not provide evidence of the status of a right of way, but merely record the physical features at the time of survey.
2.29 Ordnance Survey 25 inch County Series 1st Edition Cornwall XXXII.6 (1881) CRO Ref: AD10432 The extract of the relevant page of the above mentioned map sheet is shown at APPENDIX C - DOCUMENT 25 (page 118). These Ordnance Survey map sheets were prepared at a scale of 25” to a mile (approximately 1:2500 metric equivalent). They show colouring for features such as rivers, buildings and classification of standards of roads. This map also shows dense tree cover in the area illustrated by tree symbols. The way can be identified in its entirety as following a feature marked as an enclosed track. A benchmark can be seen at the connection with the road at Lanvean to the north. An unbroken line can also be seen across the way at point B. The river is coloured on this map and the road leading towards the ford narrows. Neither, the ford or the footbridge is annotated on this map publication.
2.30 Ordnance Survey 1:2500 first edition map key The extract shown shows the interpretation of area braces on the first edition maps relevant to what is excluded and included in the land reference number. The extract is shown at APPENDIX C - DOCUMENT 26 (page 119).
2.30 Ordnance Survey 6 inch County Series 1st Edition Cornwall XXXII.NW (1888) The First Edition Ordnance Survey map sheets were prepared at a scale of 6” to a mile. The maps which are mainly black and white have some colouring which is associated to rivers and natural watercourses. The lane over which the investigation route runs is depicted as an enclosed track bounded on both sides. An extract of the relevant sheet of the above mentioned map sheet is shown at APPENDIX C - DOCUMENT 27 (page 120).
2.31 Ordnance Survey Six-inch Second Edition County Series map XXXII.6 (1908) An extract of this map can be seen at APPENDIX C DOCUMENT 28 page 121. The second edition mapping data appears to shows a line at northern end which may indicate a gate or change of surface. There is an unbroken line at the south of the application route at point B. The defined line shown on Ordnance Survey mapping survey may define the existence of the ford as a physical feature and shows track markings through the river.
2.32 Bartholomew half-inch map sheet 37 Cornwall (1901-06) can be seen at APPENDIX C DOCUMENT 29 & 30 (page 122-123). The map although at a smaller scale to other mapping surveys at the time shows the settlement of St. Mawgan and the lane in question. The lane is
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identified as a secondary road. The key states that the representation of a road or footpath is no evidence of the existence of a right of way.
2.33 Bartholomew half-inch map sheet 37 Cornwall (1919-1924) can be seen at APPENDIX C DOCUMENT 31 & 32 (page 124-125). The map is much similar to the (1901-06) and shows the settlement of St. Mawgan and the lane in question. The lane is identified as a secondary road. The key states that the representation of a road or footpath is no evidence of the existence of a right of way.
2.34 Cornwall County Council Handover map (1929) Under the Local Government Act 1929 County Councils across England and Wales gained increased powers as highway authorities for and acquired direct responsibility for all roads in the Rural District Council areas. The relevant section of the Handover map is shown at APPENDIX C - Document 33 (page 126). The investigation route is not shown to be included on the handover map as a publically maintainable road.
2.35 Definitive Maps In the early 1950s all Parish Councils were asked to carry out a survey of all the public rights of way in their Parish and to mark these on a map. They were also asked to provide an accompanying descriptive statement describing the relevant features and the termination points of each way.
2.36 Original Parish Survey map for St Mawgan-in-Pydar CP dated (22 February 1951) An extract from the Original Parish Survey map for the parish of St Mawgan-in-Pydar is set out at APPENDIX C - Document 34 (page 127). The map depicts surveys of ways that were included in the original parish survey. The map is a working document and the ways drawn in pencil are somewhat illegible. Path 19 is the closest recorded path shown leading from the school in the settlement of St Mawgan to join path 18. There is no record of the existence of a public highway across the investigation route on this map.
2.37 Draft Provisional Map for St Austell Rural District (1951) An extract of the Draft Provisional map is set out at APPENDIX C – Document 35 (page 128). There is no record of the existence of a public highway over the investigation route on this map.
2.38 First Definitive Map for St Austell Rural District (1968) A copy of the first Definitive Map is shown at APPENDIX C - Document 36 (page 129).There is no record of the existence of a public highway across the investigation route on this map.
2.39 The Current Definitive Map (2006) A copy of the map is shown at APPENDIX C - Document 37 (page 130). There is no record of the existence of a public highway across the investigation route on this map.
2.40 The Definitive Statement St Mawgan-in-Pydar CP (2006)
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The current Definitive Statement for Mawgan-in-Pydar CP sets out the descriptions of the paths in the Parish with the average and minimum width description. The investigation route is not described in this statement.
2.41 Aerial Photographs Although it is not possible to infer information concerning the status of a way, aerial photographs can provide useful topographical detail as to the physical condition of features at their time of capture.
2.42 An extract of an aerial photo from 1946 is set out at APPENDIX C – Document 38 (page 131). Although the lane can be distinguished, due to the quality of the photograph it is difficult to infer with any certainty any detail of topography across the lane.
2.43 An extract of an aerial photo from 1988, is set out at APPENDIX C – Document 39 (page 132). The application route appears to be shown between trees although the investigation route is not visible due to dense tree cover.
2.44 An extract of an aerial photo from 1996, is set out at APPENDIX C – Document 40 (page 133). The application route appears to be shown between trees although the investigation route is not visible due to dense tree cover.
2.45 Francis Frith photograph titled ‘Mawgan, Carnanton Woods Bridge’ (1894) taken from the Francis Frith Collection The photograph shows the ford with a footbridge crossing the river Menalyl in the village of St Mawgan. A wooden gate is apparent on opposite side of the river. There are marks visible exiting the river which may indicate track marks. The photograph is shown at APPENDIX C – Document 41 (page 134)
2.46 St Mawgan-in-Pydar Parish Council Minute book extracts with reference to public access across the lane
2.47 (IMG_001) St Mawgan-in-Pydar Parish Council Minute book extract dated 27 March 1907 is shown at APPENDIX C - DOCUMENT 43 & 44 (pages 136 & 137) of the background papers. This extract of the hand-written minute book refers to the maintenance of the road from the school footbridge to Lanvean Gate. The salient points of the minute item are shown as;
“… asked who was responsible for the road from the school footbridge to Lanvean Gate. said it was not a private road. When the late , built the Rectory he asked the Highway Board to send this road over to him and he would bear the expense of keeping it in repair. The late also bore the expense of keeping it in repair, but since the advent of the nothing had been done to it. If put in repair by the Parish for 12 months the District Council would take it over and keep it... The Chairman thought the District Council responsible for the road if not kept in good order. held that the
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was responsible for the road, and, in his opinion as the speaker, should have seen to it that it was put into proper order when he took possession of the Rectory… The removal of the gate and posts also showed the responsibility. thought the District Council responsible. asked for the remedy. mentioned other similar roads which were in a far worse state than the one under discussion. commented that it was the fault of the District Council and they should wake up. After a lengthy discussion proposed and seconded that the , be asked to repair the road from the school footbridge to Lanvean gate...”
2.48 (IMG_002) St Mawgan-in-Pydar Parish Council Minute book extract (31 March 1908) is shown at APPENDIX C - DOCUMENT 45 & 46 pages 138 & 139 of the background papers. The transcript of the salient points of the minute item is as follows;
“… A discussion again took place on the road from the footbridge near the school to Lanvean gate. Some were still of the opinion that was responsible for the repair of this road. replied that he was willing to keep the road in a state of repair provided it be not used for heavy traffic, that the gates be locked and a stile placed at each end for the convenience of foot passengers. asked how would the cottages served by the road get coals in case the gates were locked? said proposal was an impossible one and would not answer under any circumstance. The Chairman adhered to his former opinion that could not be held responsible for a public road, which was obviously unfair the road had been repaired already privately, the matter then dropped …“
2.49 (IMG_003) St Mawgan-in-Pydar Parish Council Minute book extract (30 March 1932) is shown at APPENDIX C - DOCUMENT 47 pages 140 of the background papers. The transcript of the minute item is as follows;
“Roads … A discussion arose with regard to the bad condition of various roads in the Parish and it was resolved to instruct the Clerk to draw the attention of the County Council to the following with a view to immediate repairs.
1. The northern road from Mawgan Porth to St Columb via Gluvian, Trevenna, Trebleath and Tremouth. 2. The road from Trevenna Cross to Mawgan via the Rectory and Penpont. 3. The road from Higher Tolcarne to Lowerys Mill. 4. The road from Lanvean to Mawgan via the Church room….”
2.50 (IMG_005) St Mawgan-in-Pydar Parish Council Minute book extract (12 April 1932) is shown at APPENDIX C - DOCUMENT 48 & 49 pages 141 & 142 of the background papers. The transcript of the minute item is as follows;
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“… I am instructed by the Mawgan-Parish Council to draw attention to the very bad condition of the following roads in the Parish and this Council earnestly hope that immediate steps may be taken to repair same. 1. The road from Mawgan Porth to St Columb via Gluvian, Trevenna, Trembleath and Trenowth on the north side of the Parish 2. The road from Trevenna Cross to Mawgan via the Rectory and Penpont 3. The road from Higher Tolcarne to Lawrey”s Mill 4. The road from Lanvean to Mawgan via the Church room.”
2.51 (IMG_006) St Mawgan-in-Pydar Parish Council Minute book extract (21 October 1947) is shown at APPENDIX C - DOCUMENT 50 at page 143 of the background papers. The transcript of the minute item is as follows;
“… Rectory Road 3., After some discussion with regard to the Rectory Road leading from Lanvean to the School it was proposed by seconded by and agreed that the Chairman and Clerk interview to ascertain whether he would be willing to waive any rights which he may have over this road with a view to it being ultimately taken over by the Cornwall County Council …”
2.52 (IMG_007) St Mawgan-in-Pydar Parish Council Minute book extract (27 Nov 1947) is shown at APPENDIX C - DOCUMENT 51 at page 144 of the background papers. The transcript of the minute item is as follows;
“… The Clerk having reported that he had seen with regard to the Rectory Road from Lanvean to the School, it was resolved that a letter be written to the Diocesan Registrar to ascertain whether permission would be given to dedicate the road to the public as , although personally willing to waive any rights which he may have over the Road, could not give consent to this without authority …”
2.53 (IMG_008) St Mawgan-in-Pydar Parish Council Minute book extract (30 March 1948) is shown at APPENDIX C - DOCUMENT 52 at page 145 of the background papers. The transcript of the minute item is as follows;
“… proposed that a letter be written to the County Council pointing out the disgraceful condition of the Road between Lanvean and the School and asking them to take such action as may be necessary to improve the same …”
2.54 (IMG_009) St Mawgan-in-Pydar Parish Council Minute book extract (3 June 1949) is shown at APPENDIX C - DOCUMENT 53 at page 146 of the background papers. The transcript of the minute item is as follows;
“Item 10, Rectory Road, The Clerk was instructed to make enquiries as to the ownership of Rectory Road as the Council is taking steps to bring to the notice of the Owners, the very bad state of repair of this Road.”
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2.55 (IMG_010) St Mawgan-in-Pydar Parish Council Minute book extract (19 Jan 1954) is shown at APPENDIX C - DOCUMENT 54 at page 147 of the background papers. The transcript of the minute item is as follows;
“… The Clerk reported that he had written to the Diocesan Registrar in an endeavour to ascertain whether or not the Road was the property of the benefice, but that no satisfactory reply had been received as the registrar required an undertaking with regards to his costs before making a search through the papers held by him …”
2.56 (IMG_011) St Mawgan-in-Pydar Parish Council Minute book extract (9 March 1954) is shown at APPENDIX C - DOCUMENT 55 & 56 at pages 148 & 149 of the background papers. The transcript of the minute item is as follows;
“Meeting of the Rectory Road Improvement Committee … In conclusion, the Chairman said that when he was interviewing the Divisional Surveyor with regard to the Road he had enquired whether or not the County Council was responsible for the Road in front of the house occupied by and that the surveyor had said that in the past the County Council had repaired the Road as far as the house.”
2.57 (IMG_012) St Mawgan-in-Pydar Parish Council Minute book extract (17 September 1957) is shown at APPENDIX C - DOCUMENT 57 at page 150 of the background papers. The transcript of the minute item is as follows;
“… It was resolved that a letter be written to thanking him for cleaning up the Rectory Road i.e. the road leading from Lanvean to the School footbridge…”
2.58 (IMG_014) St Mawgan-in-Pydar Parish Council Minute book extract (14 January 1964) is shown at APPENDIX C - DOCUMENT 58 at page 151 of the background papers. The transcript of the minute item is as follows;
“Riverboard works at St Mawgan The Clerk reported that he had approached the River Board with regard to the construction of the ramp near to the school at St Mawgan and he stated he had been informed by the engineer to the board that:-
‘The ramp which it is proposed should be constructed in the roadway adjacent to the wall of the school playground will entail the raising the road level approximately 2 feet over a distance of 10 feet and then from gradual slopes to the ford on one side and the original road level on the other. The whole will be surfaced with tar macadam to the satisfaction of the County Council and the ramp will in no way interfere with either the free access of pedestrian traffic to the footbridge or to that of vehicular traffic to the ford.”
2.59 (IMG_015) St Mawgan-in-Pydar Parish Council Minute book extract (10
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March 1964) is shown at APPENDIX C - DOCUMENT 59 at page 152 of the background papers. The transcript of the minute item is as follows;
“5. The Rector spoke with regard to the road leading from Lanvean to the School and suggested that it should be adopted by the local authority… It was agreed that the matters contained in Minute 4 and 5 should be dealt with by the Parish Council and the Clerk was instructed to take proper steps to bring the matters before the authority ...”
2.60 (IMG_016) St Mawgan-in-Pydar Parish Council Minute book extract (14 Oct 1970) is shown at APPENDIX C - DOCUMENT 60 at page 153 of the background papers. The transcript of the minute item is as follows;
“Street Lamps 9.) The Clerk was instructed to communicate with St Austell Rural District Council with Regard to provision of street lamps at: 1. Near the Car Park at the Falcon 2. On the Post near the school 3. Near “Trevelyan Bungalow” (Church Lane)”
2.61 (IMG_017) St Mawgan-in-Pydar Parish Council Minute book extract (10 October 1973) is shown at APPENDIX C - DOCUMENT 61 at page 154 of the background papers. The transcript of the minute item is as follows;
“4. An application by for another Bungalow on land near the new Rectory – PC objected: a) That the only access to the building would be by means of the Rectory Lane…”
2.62 (IMG_018) St Mawgan-in-Pydar Parish Council Minute book extract (14 Mar 1974) is shown at APPENDIX C - DOCUMENT 62 at page 155 of the background papers. The transcript of the minute item is as follows;
“10. The Planning Sub-Committee presented a report with regard to the proposed vehicular access to the site at Langweath House. It recommended that irrespective of the vehicular splay that has been suggested Restormel Borough Council be advised not to allow any further access to this hill, as any additional access will mean a further flow of traffic to a narrow hill which could easily prove to be dangerous. It was resolved that this report be accepted.”
2.63 (IMG_019) St Mawgan-in-Pydar Parish Council Minute book extract (13 Feb 1980) is shown at APPENDIX C - DOCUMENT 63 at page 156 of the background papers. The transcript of the minute item is as follows;
“16. It was resolved that a letter be sent to pointing out that a tree from the Old Rectory has damaged the drainage in the road outside the Church Room at St Mawgan and requesting them to take the appropriate action as Agents for the Diocese as it is understood that the road is the property of the Diocese in view of the fact that certain repairs are carried out when the new Rectory was built a few years ago.”
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2.64 (IMG_020) St Mawgan-in-Pydar Parish Council Minute book extract (9 Jan 1991) is shown at APPENDIX C - DOCUMENT 64 at page 157 of the background papers. The transcript of the minute item is as follows;
“Church Lane 15. Following a complaint that motor vehicles are using this lane it was resolved that the County Highways Authority be requested to place a sign indicating “Access only” at each end of the Lane and as the Lane is Church Property the Clerk was instructed, as an act of courtesy, to advise the Diocesan Authority accordingly.”
2.65 (IMG_021) St Mawgan-in-Pydar Parish Council Minute book extract (13 Feb 1991) is shown at APPENDIX C - DOCUMENT 65 at page 158 of the background papers. The transcript of the minute item is as follows;
“3. g) Church Lane, St Mawgan – The Clerk read a letter from the divisional surveyor of the County Council explaining that a sign indicating “Access only” would not be appropriate in this lane, mainly because most of it is a “Private Road, but that there is nothing to prevent the local residents to erect signs reading “Private Road, access only” provided that they erect them on the private section of the road and not on the County Council section. The Clerk also stated that he had sent a copy of his letter regarding the matter to the Diocesan Secretary but that he had not received a reply…”
2.66 A full transcription of the minutes is shown in the chronology of the available evidence at APPENDIX I pages 1042 – 1116 of the background papers.
3. EVIDENCE OF THE USE OF THE WAY
3.1 A total of 101 user evidence forms (UEF’s) were considered in support of Mawgan-in-Pydar Parish Council’s application to add section of way between points A–B-C to the Definitive Map and Statement.
3.2 As part of the Council’s investigation into the application it was discovered that 15 further user evidence forms had been completed in 2003. Of the 15 users who had completed UEF’s in 2003, 6 users also completed UEF’S which were submitted in support of the 2011 application. It should be noted that there is a discrepancy between the claimed dates and frequency of use between the 2003 and 2011 evidence with the 6 witnesses’ claims. The structure of the user evidence forms in 2003 had somewhat limited the scope of the frequency of use of the way. It can be taken that the evidence submitted in 2011 is more detailed and gives a more accurate indication of use.
The evidence collated from the UEF’s is presented in tabular form at APPENDIX D1 (pages 159 to 169).
Full copies of the UEF’s are included at APPENDIX D2 (pages 170 to 823).
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3.3 All of the 101 UEF’s that were submitted with the application included maps which were signed by the users to indicate the way they had used. 64 users indicated that they had used section A-B-C (the investigation route) while 37 users indicated by the extent of the line marked on the map that their use of the way commenced on the north-eastern side of the ford at point B and continued to point C. It should be noted that the majority of written descriptions in the 101 UEFs claim the route they used started at St Mawgan-in-Pydar CP School or road U6117 and continued to Lanvean. It is therefore considered probable that despite 37 users indicating on the attached plan that they only used the Application route (section B-C) all of the users used the investigation route also (section A- B-C). Witness 4 appears to show on the accompanying map that she crossed the footbridge between point A-B, although her description of use on her UEF is also considered by motor vehicle, the way shown on the map may be a transcriptional error.
3.4 Evidence of use of section A-B-C on Foot 84 users stated in their evidence that they had used the route on foot. The frequency of use varied from 1600 times as the highest frequency of use to 1 or 2 times a year as the lowest frequency of use.
3.5 Evidence of use of section A-B-C on Horse 44 witnesses stated that they had used the route by horse. The frequency of use varied between 365 times per annum at the highest frequency to four times per annum at the lowest frequency of use.
3.6 Evidence of use of section A-B-C by carriage Two witnesses claimed that they had used section A-B-C with a carriage. Witness 41 claimed that they used the route between 1980 and 1990. Witness 88 claimed to have used the route between 1972 and 2003 weekly.
3.7 Evidence of use of section A-B-C by motor propelled vehicle 73 witnesses stated that they had used section A-B-C by motor propelled vehicle. The frequency of use varied between 600 at the highest frequency to less than once per annum at the lowest frequency of use.
3.8 Evidence that use was exercised under a private right or by permission of the landowner Evidence that was submitted by witnesses 98 and 99 who were two former incumbent Rectors for St Mawgan Parish Church is considered to be private use under their tenancy of the former Rectory along Church Lane. Witnesses 7, 8, 14, 16, 23, 55, 64, 86, 87, 100 & 101 also stated that they had used the way with permission or had used the way in exercise of a private right of access.
3.9 Actual number of valid witnesses All evidence which is considered in exercise of a private right of way or by permission has been discounted. The total number of evidential users that will be considered is 88.
3.10 SUPPORTING EVIDENCE SUBMITTED BY USERS
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3.11 Evidence submitted by (formerly Chairman of St Mawgan-in-Pydar Parish Council) on 30 July 2011, is in the form of a statement accompanying his UEF.
also includes: • Extracts from St Mawgan Parish Council Minutes dated 11 May 2011 and 13 July 2011. • A copy of Ordnance Survey map sheet XXXII.6 (1907) • A copy of the Tithe Map for St Mawgan-in-Pydar stating 1501 = River. • Pages 008 and 009 of St Mawgan-in-Pydar Parish Council minute book dated 1907. • Page 115 of St Mawgan-in-Pydar Parish Council minute book dated 1908.
3.12 claimed that both the appended maps showed Church Lane in what appears to be its current form and width, and that it was apparent that the Lane has existed for a very considerable length of time.
3.13 In his statement claimed that the Lane had been used as a public right of way by pedestrians, horses and motor vehicles since he came to the village in 1976, and he claimed to have used it by car on perhaps a monthly basis.
3.14 stated that sometimes his use of the way was in the course of visiting residents along the lane and sometimes as a short cut between the Post Office and St Columb Major.
3.15 In his statement refers to the extinguishment of motor vehicle rights by the Natural Environment & Rural Communities Act 2006 and he considers the evidence to be sufficient under the exemptions in s.67(2)(a) and (e) of the Act. He considers it is over a way whose main lawful use by the public during the period between 2001 and 2006 was use for mechanically propelled vehicles in the 5 years prior to the commencement of the Act. also considers the evidence to be sufficient to demonstrate use by such vehicles during a period ending before 1st December 1930.
3.16 suggests that the improvement to the ford by the construction of a concrete bottom in the 1950s or 1960s was indicative of the existence of a vehicular right of way existing across the ford.
3.17 referred to documents appended to his statement which were extracts dated 27 March 1907 and 31 March 1908 from the Parish Council's Minute Book. In opinion these extracts explained how the then Rector, , came to assume responsibility "for the upkeep of the Lane which he considered had previously been the responsibility of the ‘Highway Board'.
3.18 A copy of evidence is shown at APPENDIX E1 pages 824 to 841 of the background papers.
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3.19 Evidence submitted by in a letter dated 16 December 2013
sought to address in this correspondence the question of whether landownership of the lane had a bearing on whether a public right of way existed over the lane. at the time of submission of this letter was the chairman of St Mawgan in Pydar Parish Council. A copy of letter and the attached documents is shown at APPENDIX E2 (pages 842 to 868)
The main summary of points of his the letter is:
• The history of the lane being named, ‘Church Lane, Road from the School to Lanvean, School Lane or Rectory Lane.
• There has been a question over the ownership of the lane in the early part of the Twentieth Century without resolution. In 1973 a statutory declaration was made by as a testament of the Diocese ownership of the lane, in 2010 the Diocese used the statement to register the lane prior to the sale of the Rectory. questions the legitimacy of and the Diocese claim of ownership.
• Examination of a Plan of Lanherne Mansion House (1777), St Mawgan in Pyder Tithe Map, the District Valuation Map (1911) and the Parish Council minutes points to the conclusion that a public right of way should be established without delay.
3.20 Further evidence which has been submitted by are listed below:-
• Email dated 18 December 2013 including a Plan of Lanherne Mansion House dated (1777) showing the investigation route crossing the river adjacent to the footbridge (Pages 852 to 853).
• Abbreviated history of Rectory Lane as inferred from investigations in St Mawgan in Pydar Parish Council minute books (29 April 2014).
• Transcribed extracts of St Mawgan-in-Pydar Parish Council minutes dated “27 March 1907, 31 March 1908, 04 March 1908, 30 March 1932, 23 March 1948, 3 June 1949, 19 January 1954,26 August 1960, 14 October 1970 (Pages 854 to 856).
• Letter dated 20 July 2014 including a summary on ‘Observations on change in perception of the Road’s ‘ownership’’ status during period as Clerk (Pages 857 to 858).
• Letter dated 4 August 2014 which includes an extract of St Mawgan in Pydar PC minute dated 14 January 1964 referring to the construction of the ford over which the alleged route runs (Pages 857 to 858).
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• Email dated 9 March 2016 including a copy of a letter from the solicitors of the Church Commissioners concerning the ownership if the lane (Pages 857 to 858).
• Email dated 19 May 2016 including photographic evidence of cars using the lane for a wedding service in 1958 (Pages 857 to 858).
• Email dated 19 May 2016 including a further transcription of extracts from St Mawgan in Pydar Parish Council minute books from (1907 – 1991) and an extract of the District Valuation map 1911 (Pages 857 to 858).
• Email dated 22 May 2016 including a statement from the (Pages 857 to 858).
• Email dated 8 June 2016 including minutes of an open meeting to discuss the sale of the St Mawgan Rectory (Pages 857 to 858).
• Email dated 11 June 2016 including a postcard with the photograph taken from the Francis Frith collection (Pages 857 to 858).
• Email dated 17 July 2016 including two black and white photographs of wedding in 1958 and the use of the lane by car (Pages 857 to 858).
3.21 statement of 13 July 2016 including her ‘Statement of Use of the Lane’
In her ‘statement’ she has made the following points:
• On 1st January 1956 her father took up the position of Headmaster of St Mawgan CP School and the family moved into the School House which is situated on the lane known as ‘Lanvean House’.
• When the family arrived in St Mawgan, the route had already long been the subject of attempts by the Parish Council to establish ownership and responsibility for the Lane. Cornwall County Council (CCC) had installed street lighting.
• The lane was used by the community to access the Church Room (now Moorlands House) which was a central feature of village life. The Church Room was used for a wide variety of meetings and events with free access via the Lane, on foot and by vehicle.
• In 1969, her parents bought the house from Cornwall County Council (CCC), as sitting tenants. They changed the name to Lanvean House. Written into the deeds of the house is the right of access via the Lane.
• A letter from , solicitors for the Church Commissioners, to Cornwall County Council dated 12 February 1969 stated that the Church, at that time, did not claim ownership.
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• In the absence of an owner, the residents clubbed together in order to prevent severe deterioration of the surface and maintain access to their properties. of Trevelyan, with his contacts in the road haulage business, was well placed to do the work.
• Horse riders, including residents, have always ridden up and down the lane.
• It was in the 1990’s, when Trembleath farm started twice daily pony trekking rides with strings of horses going up and down the lane and that the residents took exception to the amount of damage which the trekkers were causing. Questions were being asked of the Parish Council by the residents of the Lane who were concerned about the extra maintenance costs this increased usage was causing.
• A limited amount of vehicular traffic had always used the Lane for transit as well as for access to properties on the lane.
• After the floods in the winter of 1963/64, which washed away the old footbridge and flooded the school, CCC did extensive protective work, creating the tarmac in front of the school, laying the concrete bed across the river where the old ford had been and tarmacking the exit onto the lane to the North.
• The discovery of a Dark Ages burial site (excavated by in 1956) when Langweath House was being built, would suggest it has been in use for at least a thousand years!
A copy of this statement is available at APPENDIX E3 pages 882 to 889 of the background papers.
3.22 ‘Statement of Use of the Lane’ dated 11 July 2016 , who is the brother of , also included a statement to accompany his user evidence which included broadly the same information that was provided in his sister’s statement. also acknowledged that their use was in exercise of a private right of access.
Copy of this statement and supporting evidence is shown at APPENDIX E3 pages 890 to 891 of the background papers.
3.23 supplied supporting evidence to accompany her UEF. This evidence included;
• A photograph of a steam-traction engine crossing the lane. • A photograph showing the gate, notice and street lighting along the lane. • A copy of two map extracts from the British Horse Society showing an extract of a plan that is considered to be the 1929 handover map and an extract of what is considered to be an Ordnance Survey map with roads and public rights of way marked thereon.
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The evidence is shown at APPENDIX E4 pages 893 to 895 of the background papers.
3.24 An undated post card submitted by portrays a photograph of the blacksmith’s shop situated at Lanvean in which she stated; “…Please find enclosed a well-known photograph of the Old Blacksmith Forge in St Mawgan. Due to the forge’s location access for horse drawn vehicles, was via the lane linking Lanvean with the village pub etc… This lane was the only access route for horse drawn vehicles from Tolcarne and St Columb area. The alternative route involved a sharp bend with severe gradient on the road.”
The postal card is shown at APPENDIX E4 pages 896 to 897of the background papers.
3.25 Email correspondence between and Cornwall Council on 16 June 2016 included a copy of Ordnance Survey 25 inch Colour County Series 1st Edition Cornwall XXXII.6 (1881) and associated key.
“… The most interesting finds include;
1. The first ordnance survey map 2. The lane is shown on an incredible hand drawn map, relating to the family a famously wealthy family who lived in the area in the 13th Century (they are the ones who built the Convent in St Mawgan) 3. A map which clearly shows the Smithy. 4. A copy of 1842 Tithe map… “
A copy of this email correspondence together with two copies of extracts of the 1st Edition Colour County Series map sheet XXXII.6 and the key is shown at APPENDIX E4 pages 898 to 903 of the background papers.
3.26 Email sent from dated 17 June 2016 in which she states; “… It has been suggested that the lane was laid with stone but not tarmac because they had trouble with not one but two water springs plus a stream that crossed it. A stream which some people can remember as flooding the Methodist chapel.”
A copy of this email is shown at APPENDIX E4 pages 904 of the background papers.
3.27 An email sent from dated 22 June 2016 in which she asked;
“… Can I draw your attention to community use as?
1. Moorlands House enjoyed a previous existence as a Parish Hall, it is unlikely a community resource would have been built on a private drive. 2. Public street lights were installed and maintained at the taxpayers’ expense again unlikely on a private property.
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3. The 1777 Arundel maps as held in the County Records Office shows a coach route through school lane in St Mawgan. 4. A solid base was built for the ford to allow wheeled access. 5. There are numerous recorded accounts of horse drawn vehicles accessing the Smithy opposite the Methodist Chapel, this smithy is confirmed in a rare 1881 Ordnance Survey Map. 6. I enclose a key to the legend regarding maps from Ordnance Survey ref; http:www.ancestry-maps.com/page-legend.asp”
A copy of this email is shown at APPENDIX E4 pages 905 of the background papers.
3.28 Letter dated 27 July 2011 from accompanying her UEF The way was open to all types of traffic and had a concrete base in the river and a depth gauge, also street lightening was in place. Her father was the first person to own a car in the 1920’s and would have use the lane
Copy of this extract is shown at APPENDIX E4 page 910 of the background papers.
3.29 Statement from re: ‘CHURCH LANE, ST MAWGAN-IN- PYDAR’ dated 14 June 2011 The statement by made the following points: • Vehicles of the 1960’s and earlier always found it very hard to get up and around the bend up the hill towards Lanvean on the lane from what was then the Post Office.
• At one time the Community Centre in the lane was the home of the pre-school playgroup and many families used the lane for access.
• When her family lived in St. Mawgan they would also use the lane to go to St Columb or St, Eval, either for visiting friends at St Eval in R.A.F. quarters, or visiting the surgery or shopping in St. Columb.
• In 1968 her husband opened his first shop in Bank Street St. Columb and would use Church Lane to go on service calls before going to the shop.
• There were two horse riding establishments nearby who used the lane on their hack routes and I rode out with both of them several times of the year.
• She stabled a horse for a couple of winters at Lanherne Farm and a friend and rode up and down Church Lane many times on the various routes that they took.
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• In the 1990’s her horse was stabled at Hendra Paul Livery Yard, near Newquay. Most weeks in the autumn and winter and about once a month spring and summer, a few riders would ride out to Watergate Bay, up through Merbain Caravan Park, along to Polgreen Hill up through the ford to Retorrick Mill bridleway, then up the hill and down into St. Mawgan via Church Lane. They usually we bought a drink at the shop and then the route back would be up the hill by Lanherne Farm to the main road/ or along the unclassified road to Polgreen and back down through Tregurrian to Trebelsue Farm and to Hendra Paul.
• Sometimes they would vary the route to go through the fields along Church Park and the bridleway through the caravan park to the beach then up the main road to Trevarrian and back down to Watergate.
• Since 2000 with the increased use of Watergate Bay this journey has largely lapsed to winter season use only, and has been pretty sporadic. However they boxed over a few times and rode part of the route and now she rides a village horse several times a week and usually includes the investigation route in the journey.
• Over all these years whether as a resident or visitor, Church Lane was considered a thoroughfare for all users should they wish to exercises their rights. also included with her statement as evidence a faded extract of the Tithe map of the area surrounding St Mawgan village which is illegible. A copy of her statement and attachments can be seen at APPENDIX E4 pages 914 to 916 of the background papers.
3.30 Correspondence containing a statement from dated 5 May 2016 • Along with his wife he used Church Lane both on foot and by car regularly throughout the past 35 years… When they were at Gluvian, their daughter was just four years old and his wife took her to the playgroup which was then held in the old parish hall towards the bottom of Church Lane
• He also used the lane when for professional reasons visiting the disabled son of a former rector living in the New Rectory.
• He used to take Ektachrome slide film for processing to a gentleman who lived at Lanvean and would then use the lane to get down into the village.
• stated that on no occasion in all those years was there ever a suggestion that use of the lane, by pedestrians or vehicles, was restricted.
• There were never any signs to that effect nor notices indicating that its use was under any permissive limitation.
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• To their great surprise, a few years ago, notices appeared indicating and continued to pass through the lane when necessary, usually on foot but sometimes by car. They were never challenge or stopped but the sudden appearance of gates gave them even greater cause for concern.
Full copy of the extract is shown at APPENDIX E4 page 917 of the background papers.
3.31 Letter from 20 July 2014 • From the age of 5 years (1965 – 70) until leaving primary school she used the lane twice a day on foot or by car to and from the school.
• As a teenager she used to use the hall for social events such as wedding and discos, and obviously had to excess (sic) the hall via the lane.
• As an adult my older children attended the playschool when it was in the hall and they would walk or drive up the lane.
• For many years on a daily basis she would ride down the lane on our horses, and again when helping at the local horse stable use to trek with about 10 horses up and down the lane at weekends.
Full copy of this letter is shown at APPENDIX E4 page 918 of the background papers.
3.32 Letter from dated (28 May 2016) • She was born in 1944 and brought up in the Parish of St Mawgan.
• In my youth I can remember accompanying my mother on numerous occasions to various functions at St Mawgan Church Hall. We used to get by car to these functions and drive up the lane to the Church Hall and park outside the hall.”
Full copy of the extract is shown at APPENDIX E4 page 919 of the background papers.
3.33 Letter from 8 May 2011 • I have resided in the village of St Mawgan since I was born in 1982 until the present day.
• I used to walk up and down this lane from as early as I can remember.
• My mother will confirm she used to push my brother and me up and down the lane in our prams 28 years ago.
• I have been riding my horses and ponies up the lane since I was four years old.
• My mother used to collect me from St Mawgan Village School.
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• We would regularly use the lane to drive down as a short cut into the village.
• In 2003 allowed me to ride in her field which is adjacent to the village river.
• It was up until about 2004 that riding horses up and down the lane became impossible due to the verbal abuse you received from residents.
A copy of this letter is shown at APPENDIX E4 page 920 to 921 of the background papers.
3.34 Evidence from the previous Incumbent Rectors who lived at the Rectory and served the villages of St Mawgan, St Ervan & St Eval
3.35 Email from dated 13 June 2016 “I was never formally aware that the Diocese owned the lane - it was used by all for vehicle and pedestrian (and horse-riding) access to the Rectory and the Church Hall and other properties in the lane as well as a popular through route. Parents delivering children to the school were frequently driving cars up or down the lane. I was never instructed to notify that the lane was private and for access only. Nobody ever asked me for permission to use the lane. I lived in the Rectory (following ) from 1979 until 1981. I never saw notices erected in the lane. I never gave permission for notices on the lane or verbally challenge public use. The field below the Rectory was never in my ownership (as far as I knew). It was occasionally cut (by the family I believe). Yes horses were frequently brought to graze in the field - again by the family I seem to recall. The lane was frequently used by horse riders in my time at St Mawgan.”
A copy of the email is shown at APPENDIX E4 pages 922 to 923 of the background papers
3.36 Email from dated 15 June 2016 “I was not aware of the Diocese being owners of the lane – but obviously they could have been because the new Rectory was built on Glebe land on the other side of the lane to the Old Rectory... I was never instructed to notify the public that the lane was private and for access only. Members of the public did not seek permission from me to use the lane when walking and driving from Lanvean to the school, shops, post office, pub and church. I was appointed Rector of the Benefice and began living at the St. Mawgan Rectory on 3rd February 1982. With my family I moved from the Rectory on January 10th 1986 to take up a new appointment with HM Home Office Prison Chaplaincy. I do not remember there ever being notices of any kind being erected in the lane during the years I was incumbent. Nor did the occasion or reason arise for me to give permission to individuals to erect notices on the lane or verbally challenge the public’s use of the lane. Villagers daily used the lane to access the school, post office and shops and, of course, the church. It was my habit to drive up the lane to the Rectory through the ford (other than when the river was in spate!). Visitors
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to Rectory too used the same route. The lane was also used by parishioners and visitors when attending events and meetings in the building opposite the Rectory – which in my time was the Parish Church Hall.”
A copy of the email is included at APPENDIX E4 page 924 to 926 of the background papers.
3.37 Email correspondence between Cornwall Council dated 09 June 2016 “As far as ownership of the lane is concerned, whenever I asked the Diocese if they would repair the lane, they said it was not their responsibility, so I was surprised to hear that they had included all or part of it in the sale of the Rectory. That is not to say, of course, that their solicitor could not subsequently have discovered title. At no time did I give residents of the lane authority to challenge the public's use of the lane on behalf of the Diocese. Nor was I ever asked for permission to erect signs across the lane on behalf of the Diocese… You may use my Statement of Truth.”
STATEMENT OF dated (11.11.2013) 1) I was the Rector of St Mawgan-in-Pydar Parish from 1991 to 2002 and during that period I lived in the Church property known as ‘The Rectory’, St Mawgan, with my wife and son, .
2) Adjoining the property known as ‘The Rectory’ was an unmade road, or lane which served as the access for ‘The Rectory’ and for all other properties along the lane, from both ends.
3) Repairs to this un-adopted road were occasionally undertaken by residents, principally , who occupied the property known as This was done in consultation with the relevant residents at the time, not particularly with me as Rector.
4) When other utilities, such as South West Water, had to dig up and repair the road outside ‘The Rectory’, no permission was sought from me.’
5) During my period as Rector, whenever I enquired of Diocesan officials about the Diocese contributing to the repair of the road, I was told it was not owned by the Diocese and therefore not Diocesan responsibility.
6) While I was in residence as Rector I was not aware of any evidence of the road being in Church ownership.
7) At no time during my incumbency was I approached as Rector for permission for access through or to any of the gates or their entrances to residents’ properties or land.”
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Full copy of the extract is shown at APPENDIX E4 page 927 to 929 of the background papers.
4. LANDOWNER EVIDENCE
4.1 A landowner evidence consultation was carried out on 12 January 2012 with those who were served notice of the appropriate certificate under paragraph 2 of schedule 14 of the Wildlife and Countryside Act 1981. Also including those discovered via a land registry search.
Those who were consulted were:
•
4.2 and responded to the consultation and confirmed that they were not the title owner of the lane but provided comments of their knowledge of public’s use of the way.
4.3 stated that, “… the lane has been maintained by those with houses on it to make their access viable, not for the use of the general public. If public rights are granted, who will have the responsibility for the lanes upkeep especially as it’s not suitable for constant heavy traffic… There is no access to the lane when the river is high which happens frequently. As it is a narrow lane there is a potential safety hazard for pedestrians, especially school children using it.”
4.4 who had already submitted evidence in support of the application, stated that he was aware of members of the public using the way since moving to the village in 1995. The use has been on foot, horseback and vehicle (including agricultural vehicles). He stated that there were never notices, but notices now existed on both ends of the way.
4.5 On 12 April 2012, and submitted a Landowner Evidence Form (LEF) to the Council setting out their evidence concerning whether public rights had historically existed over the lane as far back and the turn of the last century. They stated that as far back as their ownership of the lane in 2010 they had given permission to people to use the way and pedestrian access had been permitted across the lane subject to conditions. New signage had been erected to this effect in 2011.
4.6 Their evidence is set out and detailed below:
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• and confirmed their ownership of the land over which the alleged way runs.
• and do not believe this way to be public and have seen people using the way by means of vehicle, by horse and on foot.
• It is and presents evidence which confirms that gates have been locked on occasions between April 2011 and December 2012 and they had stopped and turned back horse riders and motor vehicles on numerous occasions during 2010, 2011 and 2012.
• and confirmed that they have maintained “Private Lane, Access Only, No Horses” signs and in addition installed new “Permitted Pedestrian Access” and “No Sat Nav route” signs across the lane.
• and affirm that pedestrian access had been permitted across the lane subject to conditions. New signage has been erected to this effect in 2011.
• and state that they have purchased the property from the Incumbent of the benefice of St Mawgan on the understanding that the access road was; private and owned by the Church, was for access only to certain properties along the lane, that previous use of the lane was by permission of the previous owner and that the previous owner had not at any time intended to dedicate the lane for public use.
• It is and state that the land over which the claimed right of way (ROW) passes was previously the residence of the Rector of St Mawgan parish and owned since at least the 19th century by the Church.
• It is and claim that the public had good cause to use the claimed ROW for access to church property, including the Old Church Hall owned by the benefice until 1993 which was the venue for many public meetings and functions.
• It is and claim that the public’s use was in fact "under licence" in that the public were engaged in permitted access by the owner, in much the same way as the public visit the parish Church.
• and claim by the accounts of residents whose properties are located on the lane, many of whom have lived there for more than two generations use by the public of "Church Lane" has either been permitted or contested over many years.
• It is & claim that users were at times using force by ignoring directions by those authorised to do so by the landowner, were possibly secretive in using the lane on the pretence of permitted use when in fact they were not (i.e. looking as if they were accessing the Church Hall when they were actually just short-crossing over the land) and in the alternative were given permission by the landowner.
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• and further claim that several documents refer to gates being situated on the lane up to around 1945 and were locked at times (see attachments Al,A2,A3,A4,A9).
• and claim that some users were turned back at times by the owner and those authorised to do so by the owner (see statements of residents attached).
• & claim there is sufficient evidence to show a clear lack of intention on the part of the Church as the landowner not to dedicate the way to the public
• & claim that the Church Commissioner’s chose not to dedicate the way to the public’s use by creating rights of easement over the lane to residents of the lane.
• & make a claim by accounts of residents whose properties are located on the lane, many of whom have lived there for more than two generations; use by the public of "Church Lane" has either been permitted or contested over many years.
• & set out evidence which they claim shows the "without interruption" proviso is clearly challenged going back at far as we can find to the 19th century.
i) Several documents refer to gates being situated on the lane up to around 1945 and were locked at times.(see attachments Al,A2,A3,A4,A9) ii) Some users were turned back at times by the owner and those authorised to do so by the owner (see statements of residents attached)
• & attached conveyances specified that the Church as the Vendor intended to keep the lane private and control access through the granting of easements and access rights.
• It is and claim that to grant such rights would be contrary to any intention to dedicate the way for public use and make further claims that:
i) Conveyance dated 16 Feb 1956 specified no "right of access" for the purchaser over any land retained by the Church including "any drives, paths or ways theron or thereover", which would include Church Lane. (Attachment A5)
ii) Conveyance dated 28 Sept 1973 granted an easement for the benefit of the purchaser creating a private Right of Way across the whole length of the Church Lane. (Attachment A6)
iii) Conveyance dated 14 Nov 1973 granted the right to the purchaser to use a section of the lane, therein specified as a
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Right of Way due to the easement created 28 Sept. (Attachment A7)
iv) Conveyance dated 3 Sept 1993 (sale of Old Church Hall to and ) granted rights of use to part of the lane (document not attached)
v) Signs were displayed indicating the private nature of the lane over periods of time prior and up to sometime in the mid 1970's and from 1991 onwards. (see attachment A9 and attached Statements from residents of the lane)
4.7 and make the following claims:
A1 School Photograph dated 1935 – Claims to show gates at the bottom of the lane in the background.
A2 Photograph dated 1894 of the footbridge and bottom of the land - clearly showing gates in existence on the lane.
A3 A photocopy extract from publication Vale of Lanhearne by Charles Lee. ISBN 907566456 A guide to St Mawgan dated 1903 - refers to the gate at the top of the lane (page 47)
A4 Copy of handwritten letter by , incumbent rector of St Mawgan dated 10 June 1971. Refers to the fact that: i) only access to bungalow is through the ford or up the lane, ii) the lane is "Private" iii) the condition of the lane surface is not in a good state and that "a considerable amount of work will have to be done to render this 'Private' lane suitable for access ... " iv) past existence of Gates on the lane and they were locked at times of the year. v) The hard bottom of the ford was put in 3 years previous to (1968) "to give access to the owner of the bungalow"
Note: the old photocopy of this letter appears to be incomplete
A5 Land registry extract CL20664 for Langweath House situated at the top of the Lane. Highlighted BLUE- Refers to conveyance 1956 when land was sold by the Church to Lady Boyle and details covenant detailing NO RIGHT OF ACCESS to retained land which includes would include Church Lane. Highlighted in PINK- Refers to conveyance 1973 detailing specific rights of access over the Lane (see full 1973 conveyance also attached as A7)
A6 Copy of conveyance dated 28 Sept 1973 between Church and , sale of Old Rectory. Page 4 of 4 Details the creation of a private Right of Way on foot over the lane for the benefit of the purchaser.
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A7 Copy of conveyance dated 14 Nov 1973 between Church and , sale of land adjacent to the Old Rectory and Church Lane. Details the right of the purchaser to use a section of the private Right of Way created for the benefit of in Sept 1973 (refer A6).
A8 Copy of Statutory Declaration made by with attached plan details extent of land owned by the Church at that time.
A9 Copy of correspondence between of Diocese of Truro and of Church Commissioners in London. Refers to : i) lane was blocked once a year in the past ii) the existence of signs indicating private status of the lane “… In years gone by the Incumbent used to block the lane once a year at the point marked ‘X’ which normally tends to indicate private ownership but public access… “
A10 Copy of correspondence between St Mawgan-in-Pydar Parish Council, Cornwall Council and Diocese of Truro referring to the erection of new signs on the Lane. The original letter could not be found but the subsequent replies clearly infer the content of that letter.
4.8 Statements submitted in support of and ’ evidence are as follows:
S1 -O wner and resident of states:
• The lane was gated at both ends and was nothing more than a dirt path along the whole length.
• Some children at the time would no doubt have walked the length of the lane past the schoolmasters house (then owned by the church) to access the church school, as my wife did in the 1940's.
• In those days much was owned and run by the Church and parish Rector so people would clearly had good reason to use the lane to access the Rectory, Church Hall and the Church School.
• I myself had brought a small lorry down the lane on the odd occasion with permission of but by the time the new rectory building was being planned opposite the Church Hall in 1971 the at the time thought the lane was so bad it would be unsuitable for access to his new residence.
• The Reverend was concerned not to improve the lane to such a degree that it would encourage people to make unauthorised use of it so gave authority that I should advise any persons using the
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lane for other than good reason that it was not a public right of way.
• As Rectors came and went many times over the rest of the 1970's and into the 1980s the attitude towards the use of the lane by the incumbent Rector of the time also changed. In the mid 70's permission was given to some horse riders to make use of the lane for access into the village in the summer months. This was not welcome by the residents of the lane and when the new Rectors came in during the 80s this permission was not continued.
• The last of the large elm trees that stood along the lane in the 1970's succumbed to Dutch elm disease and with those went the signs attached to them indicating the lane was "Private property" and was for access only to the church hall and residents of the lane.
• Around 1980 my daughter was permitted to keep a pony on part of the Rectory property by ( , but sometime later after arrived in 1982 horses were not permitted general use of the lane any longer.
• Around 1986 under another new rector, the residents of the lane contributed towards improvement works and resurfacing of the lane which I again carried out. made suggestions of putting bollards in the lane to prevent unauthorised use by any vehicles as a result of the lane being more accessible although this was not done. Again I was authorised to advise anyone using the lane without good reason that the lane was private access only and not a public right of way and on occasion I turned people back from accessing the lane.
• In 1990, we were again without an incumbent Rector for a time and given the increasing problem of unauthorised people trying to use the lane the Parish Council at the time tried to have signs erected to advise it was a private lane and "Access only". The residents were told the owner of the lane would be responsible for erecting signs so when moved in to the parish in 1991 myself and who lived at the old school house made up new signs for the Reverend and had them put them top and bottom of the lane.
• Since putting these signs up in 1991 signs have been clearly on display top and bottom of the lane at all times.
• made attempts to solve the problem but the local Diocese have never been willing to put up the money to have the original gates replaced.
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• Over the past 20 years I have continued to take the responsibility for maintaining the lane with the help of the other residents and have taken authority from the Rector a number of times to advise people that the lane is not a public right of way and have turned people back including those on horses and in vehicles.
S2 -O wner and resident states:
• I attended school at the primary school in St Mawgan village and remember walking to school from Trevenna Cross which would take me down the hill and through the gate at the top of a path that we knew as School Lane past the schoolmaster’s house and the church hall.
• I remember some time towards the end of the war the gates at the bottom were damaged by the army and were removed. In those times the lane was a lot narrower than it is today, and it was always thought the lane was part of the church hall and the school as this was where the school master lived and on school days we would often come up the lane to the Church Hall from the school to be served soup for lunch by the vicar’s wife
• In the 1960s can say we hardly ever saw people coming and going up and down the lane in front of our house. The only people we did see were the Vicar, the Schoolmaster and the family who were tenants at Lanvean Cottage further up the lane. The only other people were at times when there was something going on at the Church Hall such as dances or community events or parish meetings and the like.
• I can say that I don't think I ever saw a horse using the lane in the 1960s and there were certainly no cars coming up and down the lane as it was then just a muddy track and impossible to drive on.
• Our two children would have been primary school age in the late 60's and early 70s and often played out of the lane and in the river during the summer months. I remember on occasions the children would put rocks in the river across where the ford now is that would be there for days so there were certainly no frequent use of cars driving through the ford at that time.
• After the new rectory was built next door in the 1970s my husband agreed to help sort out parts of the lane for the Vicar as we had excavators in our business to help with the work. Bits and pieces of work were done in parts over many years with a lot of effort and expense on our part before the lane was at all usable for pedestrians and vehicles alike.
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• Of course, as the lane became usable more and more people gradually started to make use the lane on the premise of access to the church hall or residences, in cars and occasionally on horses when in fact they were using it as a cut through from the village up towards Trevenna Cross and Tolcarne.
• The many vicars we had over the years never had any funding or instructions from the Diocese to replace the gates that had been damaged all those years ago but it only became an issue with the increasing unauthorised use of the lane in the late 1980s.
• With the Authority of the Vicar we would often challenge people crossing the ford onto the lane but naturally we were not able to police the use of the lane all the time.
• The Church Hall became derelict and closed sometime around 1990 and when moved to the village shortly after new signs were placed top and bottom of the lane indicating it was a Private Lane and Access Only and horses were not permitted.
• The Church Hall was sold in 1993 to and converted to a residence. The only reason to use the lane after that time was for resident access but many people took advantage and drove or rode horses on the lane ignoring the signs. This led to the occasional heated exchange when again with the Vicars authority my husband advised people they should not be using the lane without good reason. ..”
S3 -R esident states:
• Throughout this time it is my clear recollection that Church Lane has always been known to belong to the church and has been for private access only. The lane was the access onto church lands to the south west of the Old Rectory including the old Church Hall as well as being the shared access driveway to my property, and Lanvean Cottage next door.
• When I first took over the school in 1956 there were a number of encumbrances over the school buildings retained by the Church which were later removed when the County Council bought the freehold, although permission for schoolchildren to use the lane was retained to access the playing field, which then existed near to Dalswinton House and the school.
• Regarding use of the lane, until recent years there was little dispute about rights of way as the only people using the lane during the 1950's & 60s were the residents living on the lane.
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• The lane was used for access to the Church Hall where private and public functions and meetings would take place on a regular basis.
• I do not recall seeing horse riders on the lane until sometime around the 1970s when it seems one or two of the new Rectors over that time were happy to permit this use, although this was never popular with the residents and in following years subsequent Rectors withdrew such permission.
• Motor vehicles did not start regularly using the lane until much later into the 1980's after took up the task of helping the Rector of the time improve the drainage and the surface with donations from all the residents along the lane. Prior to this, throughout the 1970s and into the 1980 the lane was in a terrible condition. has been mainly responsible for the upkeep of the lane over many years since.
• Towards the end of the 1980s the old Church Hall fell into disrepair and was closed. Around this time there was increasing concern about the unauthorised use of the lane by the public and on behalf of the Parish Council applied to Cornwall Council to have new "Private, Access Only'' signage put up. In the end it was left to the Rector and residents to erect the new signs as it was private land and I assisted in making up signs which were placed at the top and bottom of the lane where they have stood to this day.
• Whilst the signs have made clear the private nature of the lane since 1991 this has not completely stopped all unauthorised users which has become a frustration to the residents who have had to contribute to the upkeep of the lane to this day.
S4 - Owner and resident states:
• Occasionally people would also come down the lane to access the Church Hall further down the hill.
• Whilst I recall visitors and neighbours walking the lane I never saw a horse using the lane up until the 1970s.
• I remember the day when a came to ask permission of Mum to bring a group of horses down the lane.
• Mum didn't consider herself in a position to refuse as she would say she was only a tenant so she agreed at the time, although thereafter we realised it was a regrettable decision to permit the horses as the noise inside the cottage with the horses going by from time to time was quite shocking.
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• The horses only came down a few weeks in the summer but a few years later a new vicar put a stop to the horses using the lane.
• My niece was once told off when she rode a horse up the lane to see her Gran as they were not permitted up the lane.
• Cars and other vehicles were never seen using the lane in the 60s.
• In the 1970s after the new rectory was built there was the occasional vehicle going down to the Church Hall or to the rectory to visit the Vicar but the condition of the lane surface was so muddy for most of the year it would not have been safe or passable for regular use especially after the horses had been down a few times and churned up the surface.
• People coming to the Church Hall would generally walk up from the bottom and if they had a car this was parked across the river near the Falcon Inn or the school.
• Over the years also resurfaced sections at the top of the lane but his led to problems with more people using the lane as a cut through.
• Some of the vicars over that time let it be known that people were not permitted to use the lane as a cut through but of course this could not be policed all of the time.
• By the time the Church Hall was closed down around 1989 there was no excuse for most people to be coming up the lane. As things came to a head the parish council got involved in putting signs up on the lane saying Private Lane Access Only and no horses.
• These signs were put up in 1991 a couple of years before Mum died and and I moved into the Cottage.
• Unfortunately the signs did not solve the problem of people taking advantage of the lane as by now it was possible to drive the full length most of the year when the river was not too high.
• Occasional horse riders also ignored the signs which led to the occasional heated discussion when attempts were made to stop the horses and turn them back.
• I have called the Diocese many times and also written letters complaining to them that they should do more to stop the unauthorised use of the lane by putting up gates.
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• Despite the efforts of the Vicar this was never done so we had to do our best to inform those using the lane to take notice of the signs and only use it for access.
S5 - Owner and resident of states:
• We have now lived at over 18 years and I can state that throughout this whole time signs have been in place and clearly visible at the bottom of the lane next to the ford across the river, and at the top of the lane where meets the public road. The signs have made clear the lane is private, for access only and horses are not permitted…”
S6 - former owner & resident states:
• As can be see and claim and from the attached copy of correspondence from our solicitor at the time of purchase in 1985 it was always clear to us that the lane was privately owned and belonged to the Church/vicarage.
• The responsibility for upkeep went to the vicarage, but residents who used the road would contribute to the upkeep of it.
• I can state that over the time we owned the lane had only been used for access and not general traffic.
• I remember clearly a number of occasions when some users of the lane were turned back by the Vicar or and also my late husband had cause to remind people of the private nature of lane and tum people back onto the public road.
• Horses were also not permitted to use the lane and I remember one time a young lady whose grandmother lived at the small cottage on the lane being told off when she once came to visit on a horse.
• The lady at , was also told off once for taking a horse up the lane.
• A few years before we sold the property in 1995 there were new signs put up stating the lane was for private and for access only which helped to stop some of the misuse thereafter.
S7 - former resident of states:
• I am able to say that as a child during the 1960s and 1970s I do not remember cars or other vehicles coming through the river and up the lane and it wasn't until the 1980s after my father had done a lot of work for the Vicar repairing the lane that cars
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would really be able to drive up to access the Rectory and occasionally up to the old church hall.
• People would walk up the lane to access to the vicarage or to the church hall as well as the residences at Lanvean Cottage and Lanvean House further towards the top of the lane but a lot of the time it was so muddy you would hardly be able to cross.
• I can clearly remember there was a period of time during the summer in the mid-1970s that trekking ponies were allowed across the lane but this was later stopped and when I had my pony sometime later around 1980 I remember having to ask permission from , the vicar at the time, to keep her in the lower section of the rectory property.
• I was never allowed to ride the pony up the lane although some years later I was permitted to take dolly up to field toward the top of the lane.
• Unauthorised use of the lane became an increasing problem over time and despite new signs being put in the lane when moved to the parish this has continued to this day.
S8 - former resident of states:
• The lane was most often a very muddy track and in the winter months there would be a stream that would flood, running down part of the lane from where the old church hall stands.
• I remember as a child that the lane would become so muddy that anyone trying to walk up the lane would need wellington boots to get across.
• The lane was only used for access to the old Church Hall, the Rectors residence and the other houses along the lane.
• Those regularly using the lane would be the Rector of the time, the residents and those accessing the properties along the lane and on occasions the public attending meetings and functions at the old church hall.
• The Rector would also have regular visitors. From the time the new Rectory was built in the early 1970s my Dad, did a lot of work for the Rector to improve and maintain the lane. This benefited all those residents on the lane but as the lane became easier to cross it also appeared to encourage the unauthorised use of the lane to cut through across the village.
• I don't recall any horses using the lane until the 1970s. I can confirm that on a fairly regular basis over the years my Dad has turned back numerous people trying to use the lane without
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good reason or permission and did so to assist the Rector of the time as part of keeping the lane in good order.
Full copies of these statements are shown at APPENDIX F pages 925 to 980 of the background papers.
4.9 Additional Evidence submitted with correspondence dated 07 September 2016
4.10 submitted further evidence to support his previously submitted report in the form of a letter to Cornwall Council in which he commented on the Council’s handling of the investigation and the Council’s engagement with him as the affected landowner. subsequently supplied further correspondence to support his claim in the form of a chronology of events and e-mails.
4.11 submitted as evidence a map which he considered to be an extract of the Tithe map illustrated as ‘Churchtown ‘, which appears to be an insert map from the Diocesan copy of the Tithe map ‘St Mawgan-in- Pyder’ (1842) Ref: TM/141. The Tithe map shows the investigation route in sienna coloured wash as depicted on the Parish Copy of the Tithe Map “Map of Mawgan-in-Pyder Parish” (1841). This extract has been considered in paragraph 2.9 under Documentary Evidence.
4.12 also submitted two copies of the relevant section of the Diocesan copy of the Tithe Map “Map of Mawgan-in-Pydar Parish” (1842) which he had personally annotated to demonstrate that the land was included as Glebe land. These were annotated copies of the Diocesan Tithe Map extract held by Cornwall Records Office as shown at APPENDIX C - DOCUMENT 5 at page 88.
4.13 Further documents submits as evidence are listed as: • Letter dated 07 September 2016 from to Cornwall Council. • A Chronology of Events for WCA573. • Emails between and Cornwall Council in November 2013. • Emails between and Cornwall Council from September 2015 to February 2016. • St Mawgan Parish Council notice from June 2011. • Copies of Tithe Map and Annotated copies of Tithe Map.
(Full copies of the additional landowner evidence and attachments can be seen at APPENDIX F pages 930 to 1006 of the report)
5. CONSULTATIONS WITH LOCAL AUTHORITIES, PRESCRIBED ORGANISATIONS AND OTHERS
5.1 Consultation documents were sent to the following people concerning the claimed way:
• CC (Mawgan & Colan Electoral Division)
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• (Asst. Head of planning regeneration[Central]) • • Wales and West Utilities • Western Power Distribution SW Plc • South West Water • The Post Office • Auto Cycle Union • (Auto Cycle Union) • Environment Agency • Natural England • (Cornwall BDS) • The British Driving Society • The Open Spaces Society • Byways and Bridleways Trust • (Cornwall BHS) • British Horse Society • (Cornwall TRF) • BT Openreach national Notice handling Centre • (Cormac Countryside Officer) • The Parish Clerk (St Mawgan-in-Pydar Parish Council) • (Green Lanes Association (Cornwall)) • (Mid Cornwall FPs & BRs Association) • Tree Officer Cornwall Council • (Land Searches Cornwall Council) • (The Ramblers Association) • (Cornwall & Devon Landrover Club Ltd) • (Auto Cycle Union) • (Kernow Trail Riders Club)
5.2 In response to the period for Preliminary Consultation a number of responses were received and are detailed below;
5.3 CC (Elected Member for Mawgan & Colan), returned his comments on 20 January 2012, “I am aware that when I was taking my Children to St Mawgan School from St Columb Major I was informed by a Resident who lived in the lane that cars were not permitted to use the lane to reach the school by driving across the stream by the Bridge. After receiving this advice I no longer
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used that route. This was sixteen years ago. I have walked the lane for the last 40 years.”
5.4 Western Power Distribution Plc commented on 18 January 2012; “…Western Power Distribution Plc may have overhead cables and apparatus affected by the proposal, as shown on the enclosed plan. However, Western Power Distribution Plc has no objection to the proposal provided the order contains the usual clause in respect of maintaining access to its apparatus.”
5.5 (The Ramblers Association) commented on 20 January 2012; “…With reference to this Proposed Modification, my colleague, , Ramblers local Footpath Secretary, provides the following comment: "The Ramblers Association supports the Application which gives certainty to what was believed to be the position until last year. Ramblers Association Members have used this route on foot for many years and, while walking the route, have seen vehicles using it. Until last year (2011) there was no indication that it was not a right of way."
5.6 (CC Land Searches) commented on 20 January 2012; Thank you for your letters concerning the above. I would like to make two comments.
1) The route exists on the O.S. 1st and 2nd edition sheets.
2) There appears to be a gap between the end of the existing unclassified road and the south-western end of the proposed byway at the ford. Technically there is no legally recorded right of way with vehicles across the ford; therefore there will be two recorded highways which do not join, and this will not legally be recorded as a through route.
5.7 Natural England commented on 20 January 2012; “Thank you for your consultation on the above, dated 12 January 2012 and received by Natural England on 16 January 2012. Natural England is a non-departmental public body. Our statutory purpose is to ensure that the natural environment is conserved, enhanced, and managed for the benefit of present and future generations, hereby contributing to sustainable development. This path order will not affect a statutory site for nature conservation (Site of Special Scientific Interest SSSI, Special Area for Conservation- SAC; Special Protection Area- SPA or a Ramsar site).
Full copies of the Consultations can be seen at APPENDIX G pages 1007 to 1014 of the background papers.
6. ANALYSIS
6.1 Documentary evidence
6.2 The Thomas Martyn map (1748/49) and Greenwood map (1826/27) are considered to be at a scale too small to show anything of significance.
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6.3 The evidence that can be inferred from the two Lanherne Mansion Plans dated 1777 are limited but these plans provide information regarding the geography of the settlement of St Mawgan recorded in the 18 century for the purpose of the Arundell Estate. It is likely that the maps were prepared by a private cartographer. Routes that are marked in brown are some which are known to be highways and some as private roads. The investigation route is shown linking with the, ‘coach road to Lanherne from St Columb’. However there is nothing to indicate whether the way was considered to be public or private in nature at the time that the plans were prepared.
6.4 The information shown on three copies of the Tithe Map for Mawgan-in- Pydar Civil Parish regarding the extent of the investigation route is somewhat conflicting.
6.5 The Diocesan copy shows the lane coloured in sienna wash but the colouring is obscured at the point where it crosses the river across the investigation route between points A-B. The sienna colouring was a common convention used by some surveyors to suggest that the land was not considered to be of value for tithe purposes and was therefore, in all probability was a carriageway of some description. The depiction in sienna coloured wash does not in itself provide good evidence of public vehicular rights. There is no key or other information with the Diocesan extract which provides explanation to what the colouring means. There is no tithe plot number ascribed to the investigation route or the application route on the Diocesan map which suggests that it may have been considered as a public highway similarly with other coloured roads in the Parish that do not have an associated plot number. The Diocesan copy has the signature of the Tithe Commissioners as being a copy of the official Tithe map and therefore should be given lesser weight than a sealed copy by the Tithe Commissioners.
6.6 The Parish copy indicates the existence of a sienna coloured wash across the application and investigation route. The investigation route is clearly depicted on the parish copy of the Tithe map and at the mid-way point next to the letter ‘U’ there is an unbroken line shown across the lane which is taken to indicate a change of surface, boundary or a gate. An unbroken line is also shown above the ford. The Parish copy shows the investigation route between points A-B unbraced from any associated plots. The Parish copy similarly has the associated signature of the Tithe Commissioner as a copy of the official Tithe map and therefore should be given lesser weight than a sealed copy by the Tithe Commissioners.
6.7 The sealed Tithe commissioners copy of the Tithe map for St Mawgan-in- Pyder (1842) shown at APPENDIX C Document 9 (page 99), does not show the route in sienna wash but clearly shows the extent of the investigation route throughout. No other routes are shown coloured on the full extent of the map and it can be accepted that colouring was not used on this specific extract. The track can be seen crossing the river and the Tithe plot shown as 1501 is braced on either side of the track. There is a continuous brace across the track linking Plot number 1306. As shown on the legend for the Ordnance Survey first edition map (1880), a continuous
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brace across a track conventionally indicates that the track itself is included with the land on either side, a broken brace to show that it is excluded; it is unclear whether the convention of using broken braces on maps applied in the 1840si1 . The sealed copy of the Tithe Commissioners map is accepted as a ‘first class’ map and should be relied upon as the principle document. The interpretation of ‘first class’ and ‘second class’ Tithe map extracts is cited in publication ‘Maps for Family and Local History’ by and .
6.8 In the accompanying apportionment hereditaments 1306 & 1307 are shown to be Glebe land. Although the Diocesan Tithe extract (1843) shows 1306 and 1307 braced with the lane, both the Parish and Commissioners copy do not show the association of the lane with any tithe plot. The Commissioners copy clearly shows the plot 1306 braced on either side of the lane indicating the lane’s exclusion. This is also the characteristic that is shown on the map that submitted as being a copy of the Tithe Map.
6.9 The three maps taken together present common features which suggest that the lane was considered to be a public highway and was excluded from titheable deductions at the time of the survey. On balance it is considered that the investigation route was treated differently from adjacent land (including adjacent glebe land) for the purposes of the Tithe survey and was not subject to tithe charges.
6.10 The evidence submitted by purporting to be a copy of the Tithe map extract is an insert map from the Diocesan copy of the Tithe Map. In his commentary on the evidential value of the Diocesan map copy, drew a conclusion that it showed that the lane was not public but was in the private ownership of the Church as part of the glebe land. However, it is considered that the ‘Churchtown’ insert map does not show the full extent of the sealed version albeit it has sienna coloured wash similarly to the Parish, it is considered that less evidential value should be given to this extract.
6.11 The OS First Edition 25 inch Colour County series XXXII.6 (1880) map shows the investigation route as a fenced, third class, metalled road. Although the depiction of a way on Ordnance Survey mapping is not generally considered to be evidence of the existence of a right of way, it does demonstrate that the way was in existence at the time of the survey.
6.12 The evidence of the Finance Act Map indicates that it is probable the investigation route enjoyed the status of public vehicular highway at the time of the survey due to its exclusion from neighbouring hereditaments. The Finance Act map was based on the OS County Series 2nd Edition Cornwall XXXII.6 (1906-1908) at 25” to a mile. This map shows a bench mark and an unbroken line at the north junction with the road at Lanvean (point C), which might be indicative of the existence of a gate at this point.
1 Ref: Order Decision FPS/V3500/7/299M para. 10 2 Tithe Maps (IR 30) page 18-19 (shown at APPENDIX C - Document 41 pages #)
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6.13 At the southern extent of the investigation route where it meets river Menalyl (point B), a ford is recorded on the OS Base map and the investigation route is depicted with parallel dashed line where it crosses the river. It is shown by colouring to be associated with Hereditament 218, which is owned the Convent of Lanherne. It is considered that the inclusion of the river and ford within Hereditament 218 is evidence that the land was in private ownership. However, the depiction of a way as crossing private land on the Finance Act map is not necessarily inconsistent with the land being a public highway, though one would normally have expected the landowner to claim a deduction for the existence of a public right of way, if this were the case. The depiction of a Ford on the OS Base map is evidence of the existence of a vehicular, but is not considered to be evidence about whether it was for public or private use. Adjacent to the ford is a footbridge, marked on the OS Base Map as “F.B”. The way that the adjacent plots are coloured indicates that the footbridge is excluded from surrounding hereditaments. It is unclear whether the colouring across the ford also includes the footbridge. As a footbridge, it is unlikely that the way would have been accessible for horse-riders or vehicles that would have used the adjacent ford alternatively.
6.14 Both the Bartholomew maps ‘Half Inch to one Mile Maps’ Sheet 37 Cornwall (1902-06) and (1919-24) and were published as tourist maps and as such provided a useful record of the ways that were considered to be public highways when the map was prepared. Both maps record the full extent of the investigation route (A-B-C) as having the status of a secondary class road.
6.15 The Francis Frith photograph ‘St Mawgan, Carnanton Woods Bridge’ (1894) shows the investigation route at its southern extremity where it crosses the ford. A gate is shown across the way but it is not possible to say whether the gate is locked in the photograph. Track marks are visible which indicate that the way had in all likelihood been used by non- motorised vehicles such as horse and cart at this time, it is not known if their use of the way was in a public or private capacity.
6.16 The documentary evidence suggests that gates existed to along the investigation route as documented in the Tithe map, District Valuation map and the Francis Frith photograph dated 1894. There is also evidence that gates were present in the portrait of St Mawgan CP School 1932 and the extract of the book by Charles Lee, ‘The Vale of Lanherne past and present’. There is some evidence that a gate was locked a couple of times a year as mentioned by , St Mawgan in Pydar Parish Council Minutes in 1907/08 and documented in the letter from in 1971 and the letter between and the Church Commissioners dated 1985. In the letter dated 10 June 1971 he states, ‘… This lane was formerly more than 20 years ago gated at both ends and the gate locked one day of the year. The gates have vanished long since.’ This evidence indicates that the status of the way has been in dispute for a long time. If gates were locked across the way, this may indicate that the way was considered to be private at the
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time, though the locking of the gates may have been done in ignorance of the way’s true legal status. The effect of locking gates across an existing highway would have been to have caused an illegal obstruction of the way but would not have been to bring its status into question.
6.17 The evidence from the minute books of the St Mawgan-in-Pydar Parish Council indicates that there was considerable discussion about whether the investigation route was a public highway from the first reference in 1907 to the present day. In 1907 it appears that the Parish Council considered that the lane was a public road. In 1969 the evidence indicates that the Church Commissioners did not consider that they owned the lane - the implication being that they did not consider themselves responsible for the maintenance of the road. But, in 1973, who was both the Church Warden and St Mawgan Parish Clerk made a statutory declaration that the roadway had always been considered the property of the Church. Ownership of the lane was subsequently registered with the Land Registry on the back of statutory declaration. In 1991 the Divisional Surveyor for Cornwall County Council indicated that he considered the way to be private. The minutes of an open meeting concerning the sale of the Rectory held on 6 July 2009 indicate that the land that had been put up for sale with the Rectory included the ownership of the lane. The evidence indicates that neither the Parish Council, the Church Commissioners or the County Council as highway authority were keen to take responsibility for the maintenance of the lane. It fell to local people, particularly those who lived on the lane to undertake any maintenance in the absence of action by the ‘authorities’. Inevitably this meant that they increasingly treated it as being a private access track. The intervention by led to the resolution of the ownership of the lane, but up to now, its status as private road or public highway has remained in dispute.
6.18 The documentary evidence suggests that historically, gates have existed along the investigation route as documented in the Tithe map, District Valuation map and the Francis Frith photograph dated 1894. There is also evidence that gates were present in the portrait of St Mawgan CP School 1932 and the extract of the book by Charles Lee, ‘The Vale of Lanherne past and present. There is evidence that a gate was locked a couple of times a year as mentioned by , St Mawgan in Pydar Parish Council Minutes in 1907/08 and documented in the letter from in 1971 and the letter between and the Church Commissioners dated 1985. In the letter dated 10 June 1971 he states, ‘… This lane was formerly more than 20 years ago gated at both ends and the gate locked one day of the year. The gates have vanished long since.’ The evidence that there were gates and that these were occasionally locked supports the view that the status of the way has been in dispute for a long time. If gates were locked across the way, this may indicate that the way was considered to be private at the time, though the locking of the gates may have been done in ignorance of the way’s legal status.
6.19 The way has not been claimed for inclusion or depicted on any definitive map and statement of public rights of way. This is surprising given the
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claimed use and reputation of the way being at the heart of the village. It is possible that the way has not been claimed until recently because the right of the public to use the way has only been challenged in more recent times and in previous times the existence of the way was not in dispute.
6.20 Date that the public’s use of the way was brought into question
6.21 Under section 31 of the Highways Act 1980 it is necessary to determine the date that the right of the public to user the way was brought into question in order to determine the relevant 20 year period. As indicated above the status of the way and the responsibility for maintaining it has been in dispute for a considerable period of time. The matter was discussed at meetings of the Parish Council on many occasions from 1907 onwards.
6.22 The statutory declaration made in 1973 by in his position as the Clerk of the St Mawgan-in-Pydar Parish Council and as Church Warden is not considered to have brought the right of the public to use the way into question. The effect of the statutory declaration was to enable the Church Commissioners to claim ownership of the investigation route and include this within the title deeds of the new Rectory. However the evidence also indicates that the Diocese did not take any overt action to prevent use of the way. There is little evidence that they instructed the incumbents of the Rectory to stop members of the public from using the way.
6.23 Evidence which claims that the lane had been locked at certain times of the year was mentioned in documents A4, A9 & S1. A gate can be a legal limitation on a public right of way. The claim that a gate was locked at certain times of the year in correspondence is vague and does not provide a specific date in which this had occurred, so the evidence is considered to be inconclusive.
6.24 The erection of notices along the lane can be perceived to be an action which has brought the right of way into question. The recollection of witnesses’ varies considerably. Although the application date and recent history alludes to the more recent event in 2011, when the lane was closed by a locked gate, there are earlier instances which need to be considered in order to determine the first time in which the public’s use of the way was brought into question.
6.25 Of the 101 witness statement the recollections of the placement of notices across the lane varies considerably; Witness 94 claims that notices were present as far back as the 1980’s. Witness 44 claims that notices were present in 1985 more specifically. Witnesses’ 101 and 102 claim that notices were present at some time during the 1990s. Witnesses’ 25 & 52 claim that notices were present in 2000. Witnesses’ 81 & 82 claim that notices were on the lane in 2001. No. 52 & 97 claim that notices were present in 2002. Witnesses’ 18, 38, 47, 53, 94 & 96 claim that notices were present in 2003. Witnesses’ 6 & 67 claim notices in 2004. Witness 53 claims notices in 2005. Witness 64 claim notices were present in 2008. Witnesses 9 & 71 claim that notices were present in 2010. Witnesses 28,
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32 & 39 claim that notices went up a few years before 2011. 45 witnesses claimed that notices were erected in 2011 at the time of the application submission.
6.26 Statements which are submitted in support of the affected landowner claim various dates in which notices were erected on the lane from 1990 to 2004. Witness S2 claims that notices were present sometime around 1990. Witnesses S1, S3, S4 & S7 claim that notices were erected in 1991 stating, “Private Lane, Access only, No Horses”. Witness S6 claims that notices were present a few years before 1995. Witness S5 claims that notices were present as far back as they lived in the area in 2004.
6.27 It is claimed in evidence from 4 witnesses in support of the landowner, that notices were erected in 1991. There is no evidence supplied by the 101 evidential users in support of the application that notices were erected in at this time period. Witnesses 100 & 101 in evidence supporting the application both claimed that notices were erected sometime during the 1990s which is non-specific.
6.28 Although, most of the evidence of overt actions is more recent, Witness S1 claims in his statement that signs were erected on the lane as far back as the 1950s. He also claims that the Elm trees along the lane, some of which had ‘Private Property’ signs were removed in the 1970’s. However there is no evidence from users to indicate that they recalled signs going back this far. The recollection of users varies with 20 out of 101 users suggesting various dates between 1985 and 2011 when notices were seen. 27 witnesses out of the 101 did not have any recollection of notices at all. stated that, during his residency at the Rectory between February 1982 and January 1986, no notices were erected in the lane.
6.29 In 1991 St Mawgan-in-Pydar Parish Council wrote to the Divisional Surveyor of Cornwall County Council, asking whether a sign stating ‘Access only’ could be placed at each end of the lane. The Divisional Surveyor replied that the County Council’s records did not show the lane as having any public status and he considered it to be private. The Divisional Surveyor informed the Parish Council that it was not appropriate for the Parish Council to erect signs stating ‘Access only’, but he stated further that there was nothing to prevent local residents from erecting signs stating, ‘Private Road, access only’ providing that they were erected on the private section of the lane and not the public highway.
6.30 During his term of his office as Rector from February 1991 to June 2002, the states in his evidence that he had granted no permission for the erection of notices or that he gave authority for residents to challenge to the public’s use of the lane. Nevertheless, in a letter dated 18 February 1991 to St Mawgan Parish Council, the Diocese stated that they would have no objection to “Access only” signs in the lane. It is considered that the conflicting nature of the evidence concerning the erection of notices in 1991 makes it is difficult to conclude that this was an event that sufficiently brought a question to the public’s
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use of the way at this time as the public at large did not recall notices in 1991.
6.31 It is possible that an event bringing the right of the public to use the way occurred in 2003 as stated in the evidence submitted by six witnesses. It is alleged that there was an incident of verbal challenge against users, a gate was locked in the winter of 2002/03 and notices were erected by local people who lived along the lane. 15 User Evidence Forms were submitted from people whose main use of the way was by horse. Although evidence was collected in 2003, a definitive map modification order application was not submitted to the Authority at this time. This evidence of a challenge to the public use of the way was supported by evidence from in the form of an article in the Cornish Guardian Newspaper written by her late father , which was dated 19 April 2003. The article suggested that there had been a challenge to the public’s use of the way with horses and that the matter was being referred to the department that deals with rights of way. It is considered that although an application was not made to modify the definitive map and statement, the 15 UEFs and the article in the newspaper were sufficient to demonstrate to the public at large that their right to use the way had been challenged.
6.32 In 2011 a gate was erected across the way which generated a 71 signature petition and resulted in St Mawgan-in-Pydar Parish Council collating evidence to support a definitive map modification order application. It is considered that the erection of the gate in 2011 was a sufficiently overt to challenge the right of users to enjoy the way and that this is evidence by the petition and the fact that an application to add the way to the definitive map and statement was made to Cornwall Council as surveying authority.
6.33 On balance, it is considered that the date when the public’s right to use the investigation route was first brought into question was 2003. For the purposes of section 31 of the Highways Act 1980, the 20 year period during which it is necessary to demonstrate that the way has been used as of right for statutory deemed dedication to have occurred is 1983 to 2003.
6.34 Bar charts have been prepared to illustrate the periods of use by the public on foot, by horse, carriage and motorised vehicle in order to demonstrate that there is sufficient evidence of use of the way on foot, horseback and motor-propelled vehicles from 101 people who have claimed use from as early as 1935 to 2011. Of the 101 users, 13 users stated that their use of the way was in exercise of a private right of way or by permission and their evidence has therefore been discounted. The remaining 88 users are members of the public at large and their evidence is considered to be sufficient to show that the use of the way by the public was with vehicles during the period 1983 to 2003.
6.35 It is considered that the claimed way is over land of such a character that use of it could give rise to a presumption of dedication at common law. The claimed way is clearly defined along an enclosed lane which
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commences at road U6117 at St Mawgan School and continues through a constructed ford across the river named ‘Menalhyl’ and continues to re- join the same section of unclassified road at Lanvean.
6.36 It is considered that the public’s use of the way has been ‘as of right’ (i.e. without force, secrecy or licence). 13 users have been identified as having a private right of access or permission from the landowner leaving 88 users who claim public status of the way. It’s not apparent from the evidence that any users were using the investigation route in secrecy. It is stated openly in the recollections of witnesses their means of access across the lane was at a sustained high frequency at all modes of transport. However there is evidence that during the period 1983 to 2003 some users will have been aware that their right to use the way was under dispute and may therefore have been using the way regardless of whether they had a right to do so. In 1991 residents of the lane and the Parish Council raised the question with Cornwall County Council whether signs could be placed at either end of the way stating ‘Access only’. The Divisional Surveyor stated that there was nothing to prevent local residents from erecting notices stating ‘Private road, access only’. This response was forwarded to the Diocese for their information. The Diocese returned that they had no objection to ‘Access only’ signs being erected on the lane and the evidence provided by residents is that signs were erected. A small minority of users indicated that they were aware that there were notices erected by residents but they continued to use the way in contravention of them. Some users were challenged, notably by , and as a result may have used the way less frequently. However most users failed to recall any notices and continued to use the way unhindered. On balance it is considered that the public’s use of the investigation route during the period 1983 to 2003 was ‘as of right’ in spite of the fact that some users were aware of the notices and other users (particularly horse riders) were challenged when using the way.
6.37 The view that the majority of users enjoyed the way ‘as of right’ is supported by the evidence contained in statements made by the , and confirms that during their terms of office, 1979-1981, 1982-1986 & 1991-2002. They were all residents of the Rectory during their periods of office and they all indicated that they did not give permission to residents of the lane to erect signs or verbally challenge the public’s use of the way. It is likely that users’ who saw the signs or were challenged when using the way continued to use it because they understood the lane to be a public right of way.
6.38 This statements made by the and concerning their actions on behalf of the Church Commissioners as owners of the land crossed by the investigation route during this period also provide evidence that there was no intention on the part of the Church Commissioners during this period to stop or restrict use of the land by the public. The evidence indicates that the Church Commissioners agreed to the erection of “Access Only” signs in 1991, but signs of this nature do not demonstrate the necessary evidence that the Commissioners did not intend to dedicate a public right of way. Perhaps the best that can be said
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is that they were ambivalent about whether the public had a right to use the way. The permission granted to the residents to erect a sign saying “Access Only” made no distinction between public and private access over the lane and did not suggest that the Church Commissioners were an assertive landowner looking to protect their private land by restricting use by the public.
6.39 and have provided evidence in the form of title deeds demonstrating that residents along the investigation route had grants of easement or private rights of access over the lane. Whilst this evidence is accepted it is possible for private and public rights to exist over the same lane. Purchasers of properties often wish to ensure that deeds provide a private right of access to a property where there is uncertainty over whether public rights subsist. It is not considered that a lack of intention to dedicate a right of way can be inferred from the existence of private rights of easement over the same lane.
6.40 The erection of a gate in 2011 across the land by following his purchase of the property appears to have been a clear and unambiguous challenge made to users of the way and this was the action which resulted in the application which is the subject of this report. However the action by was outside of the 1983 to 2003 period which has been identified as being the relevant 20 year period over which rights may have accrued. He has provided evidence from other parties including residents along the lane about their actions but, through no fault of his own, he has not been able to provide any direct evidence of his own actions during that period. The evidence provided suggests that there were challenges to users made by residents along the lane, but that these were not made with the support of the owners of the land who were the Church Commissioners and it is therefore considered that the owners of the land during the relevant period showed no lack of intention to dedicate for the purposes of section 31 of the Highways Act 1980.
6.41 Much of the evidence of use conflicts with evidence provided in statements provided by other parties. The test that officers have had to consider is the test contained in section 53(2)(b) of the Wildlife and Countryside Act 1981 which is whether an event has occurred which requires an amendment to the definitive map and statement. The relevant ‘event’ is set out in section 53(3)(c)(i) which is whether it is reasonably alleged that a right of way subsists over the investigation route.
6.42 The evidence considered in this report indicates, on balance an ‘event’ has occurred which requires modification of the definitive map and statement. The evidence indicates that at common law, a vehicular highway has been established along the investigation route (A-B-C). The evidence also indicates that a vehicular highway has been dedicated in accordance with the tests for statutory deemed dedication set out in section 31 of the Highways Act 1980. Therefore it is considered that a Definitive Map Modification Order should be made to add the investigation route to the definitive map and statement for public rights of way.
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6.43 In considering the type of highway to be included in the Order, it is necessary to take account of the impact of section 67 of the Natural Environment and Rural Communities [NERC] Act 2006. This had the effect of extinguishing existing public rights of way for mechanically propelled vehicles unless, the way qualified under one or more exceptions introduced in subsection 67(2) of the Act. One such exception was applications for a DMMO to add a BOAT to the definitive map and statement made in the prescribed form prior to the relevant date for the purposed of section 67(3) of NERCA 06 [20 January 2005]. The application made by St Mawgan-in-Pydar Parish Council did not achieve exceptional status because it was made after the NERC cut-off date. Had an application been made to Cornwall County Council in 2003 then this would have met the exception
6.44 In this instance, none of the other four exceptions in subsection 67(2) are considered to have been met by the application or the evidence discovered during this investigation. It has been argued by that the way was used as a vehicular highway by MPVs prior to 1930. He has also argued that the way was used mainly as a vehicular highway for the 5 years preceding the cut-off date. On both counts it is considered that the evidence is insufficient to enable the Council to make an Order to add the way to the definitive map and statement as a Byway Open to All Traffic. It is therefore considered that, on the balance of probabilities, the definitive map and statement should be modified to add a Restricted Byway between points A-B-C) as shown on the application plan.
7. CONCLUSION
7.1 In deciding whether to make an Order under Section 53(2)(b) of the Wildlife and Countryside Act 1981 it is necessary to consider whether an ‘event’ has taken place which would require the authority to make the Order. In this report the ‘event’ that has been considered is under Section 53(3)(c)(i) of the Wildlife and Countryside Act 1981 namely the discovery of evidence which shows that a right of way which is not shown on the definitive map and statement is reasonably alleged to subsist along the line of route A-B-C on the Application Plan. The ‘event’ will have taken place if it can be demonstrated that the evidence shows that;
• a right of way has been established at Common Law by showing that the landowner at some time in the past dedicated the way to the public either expressly, the evidence of the dedication having been lost, or by implication making no objection to use by the public of the way. Section 32 of the Highways Act 1980 permits the taking into consideration of historical records or relevant documents.
• a right of way has been established under Section 31 of the Highways Act 1980 through having been used by the public as of right and without interruption for a period of 20 or more years ending with the date on which the public right to use the way was brought into question.
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7.2 The evidence discovered by Cornwall Council when considering the application made by St Mawgan-in-Pydar Parish Council for the claimed way section (A-B-C) has been considered against two tests. The first test is under section 31 of the Highways Act 1980 and it is considered that the evidence of use and the contrary intention of the landowner during the relevant period 1983 to 2003 are sufficient to conclude that a public right of way subsists as a public vehicular highway. The second test is under section 32 of HA80 and it is considered that the evidence of the Tithe records, the Finance Act records and supporting documentary evidence indicates that the claimed way between the sections (A-B-C) on the investigation Route held the status of a public vehicular highway at common law during the late 19th to the early 20th Century.
7.3 It is considered that the evidence contained in the User Evidence Forms submitted by the applicant in support of their claim that section A-B-C should be added to the definitive map and statement as a Byway Open to All Traffic fulfils the requirement of 20 or more years use by the public with vehicles, by horse and on foot during the relevant 20 year period 1983-2003. Furthermore there is insufficient evidence that the owner of the land during that period took sufficient action to demonstrate that they did not intend to dedicate a right of way.
7.4 The documentary evidence that has been examined by the Council is also considered sufficient to demonstrate that a right of way subsists as a public vehicular highway from the road at point A to the road at Lanvean at point C on records such as the Tithe Map survey, District Valuation records, the Bartholomew map and OS map surveys. The case for existence of the way is supported by recollections and memories from users of the way as well as correspondence and photographs which support the argument that the claimed way was, historically, a public highway. It is therefore considered that a public vehicular highway subsists along section A-B-C.
7.5 The Natural Environment and Rural Communities Act 2006 extinguished all existing rights of way for mechanically propelled vehicles which were not shown in a definitive map and statement before 20 January 2005, except in specified exceptional circumstances. It is considered that St Mawgan-in-Pydar Parish Council’s application to add a byway open to all traffic to the definitive map and statement made in 2011 does not meet the exceptions set out in the legislation and should therefore be added as a Restricted Byway.
7.6 It is considered that, on the basis of the available evidence, a vehicular highway is reasonable alleged to subsist over the investigation route and that an Order should be made to add it to the definitive map and statement as a Restricted Byway. Moreover it is further considered that the evidence contained in this report is sufficient to support confirmation of the Order by the Council if the Order is unopposed or by the Secretary of State for Environment Food and Rural Affairs if the Order is opposed.
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