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Wildlife and Countryside Act 1981

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Wildlife and Countryside Act 1981 WILDLIFE AND COUNTRYSIDE ACT 1981 – SECTION 53, SCHEDULE 14 APPLICATION TO ADD BRIDLEWAYS IN THE PARISH OF BROADWAY 568M, 569M AND 570M AND APPLICATION TO ADD A RESTRICTED BYWAY IN THE PARISH OF BROADWAY 571M Author: Erica Darch Date: 14 February 2019 This document is also available in Braille, large print, on tape and on disc and we can translate it into different languages. We can provide a member of staff to discuss the details. 1 CONTENTS Page 1. Introduction 3 2. The application and supporting evidence 3 3. Description of route 4 4. Relevant legislation 5 5. Documentary evidence 6 6. Landowner evidence and evidence from 29 those against the application 7. User Evidence 30 8. Consultation and other submissions 31 9. Discussion of the evidence 32 10. Summary and conclusion 36 11. Recommendation 36 2 1. Introduction 1.1. On the 22/09/2008 the South Somerset Bridleways Association (SSBA) made an application under Schedule 14 and Section 53(5) of the Wildlife & Countryside Act 1981, for an Order to amend the Definitive Map and Statement by adding bridleways as described in paragraph 2 below (568M, 569M and 570M). 1.2. On the 12/12/2008 the SSBA made an application under Schedule 14 and Section 53(5) of the Wildlife & Countryside Act 1981, for an Order to amend the Definitive Map and Statement by adding a restricted byway as described in paragraph 2 below (571M). 1.3. A public bridleway can be used by the public on foot, bicycle, or riding or leading a horse. 1.4. A restricted byway can, in addition, be used by the public with non- mechanically propelled vehicles (such as a horse and cart). 1.5. The purpose of the report is to establish what public rights, if any, exist. 2. The Application 2.1. The application is based on documentary evidence and includes extracts of the following documents. Document 568 569 570 571 Recent photographs of the route ● ● ● ● Neroche Forest Inclosure Award, 1833 ● ● ● ● Q\RDE/107 Broadway Tithe Map, 1844 ● ● ● ● Sale documents, Earl of Egromont’s Estate, ● ● 1852 DD\WY/9/2/144 OS Boundary Records. Circa 1885 ● Sales documents, 1887 DD/CA/181 ● OS Map, Cassini reprint, 1898 – 1900 ● ● ● ● OS Object Name Book, circa 1900. ● Finance Act 1910 records ● ● ● ● OS Map, Cassini reprint, 1919 ● ● ● ● Sale Documents D/P/ILT/23/10 - 13 ● ● Bartholomew’s map, 1927 ● ● ● ● OS War Revision Map, 1940 ● 3 Land Registry documents ● 2.2. No user evidence was submitted with the application. Evidence of use submitted during the investigation is discussed at section 7. 3. Description of Route 3.1. The application routes are shown on Appendix 1. The widths of the routes as measured during the site visit 11/12/2017 are shown on Appendix 2. 3.2. Application route 568M runs from point A at the vehicular highway known as Silver Street at Dingford Farm in a northerly direction for about 594 metres to point B on the south side of a vehicular highway known as Hare Lane, and then from the north side of Hare Lane for about 155 metres in a north north-westerly direction to point C at a junction with Long Drove. This route was overgrown and inaccessible between A and Ai. Between Ai and B and B and C the route has a metalled or gritted surface with grass verges to either side. 3.3. Application route 569M runs from point C in a generally north easterly direction through point D to point E on the south west side of the vehicular highway adjacent to Long Grove Farm. The surface is grass or bare soil / mud with hedges and trees to either side, with some metalling in the vicinity of point E. There is a metal field gate across the way between D and E. 3.4. Application route 570M runs from point F on Hare Lane at Hare Farm in an almost northerly direction for about 401 metres to point D on Long Drove. The surface is grass and bare soil/ mud with some metalling in the vicinity of point F. There are double field gates just north of point F, open at the time of the site visit. 3.5. Application route 571M runs from point G on Hare Lane in an almost northerly direction for about 422 metres to the vehicular highway at Newhouse Farm. The surface is gritted / bare soil with grass verges to either side. 3.6. Photographs of the claimed route taken on 11/12/2017 are at Appendix 3. 3.7. A land registry search was carried out on 24/11/2017. The land registry search identified that there were no registered owners for the claimed route, and 14 owners or joint owners of adjacent land. The landownership is shown at Appendix 4. 3.8. The case file, including the application, accompanying evidence and consultation responses can be viewed by Members by appointment. 4. Relevant Legislation 4 4.1. The Wildlife and Countryside Act 1981 specifies in Section 53(2)(b), that the County Council must keep the Definitive Map and Statement under continuous review and must make such modifications as appear to them to be requisite in the light of certain specified events. In this case sections 53(30(b) and 53(3)(c)(i) are of particular relevance. 4.2. Section 53(3)(b) requires the Map and Statement to be modified on “the expiration, in relation to any way in the area to which the map relates, of any period such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path”. 4.3. Section 53(3)(C)(i) states that the Map and Statement should be modified where the County Council discover evidence which, when considered with all the other available evidence, shows “that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way such that the land over which the right subsists is a public path a restricted byway or, subject to section 54A, a byway open to all traffic” 4.4. Later in the same Act section 53(5) enables any person to apply to the Authority (Somerset County Council) for an Order to be made modifying the Definitive Map and Statement in respect of a number of ‘events’ including those specified in Sections 53(3)(b) and 53(3)(c)(i) of the Act as quoted above. On receipt of such on application the County Council is under a duty to investigate the status of the route. It was under these provisions that the SSBA made their application. 4.5. The purpose of Section 53 of the Wildlife and Countryside Act 1981 is to add or delete from the record of public rights of way so that it accurately records the rights that exist. It is not to create or extinguish rights themselves. Therefore, practical considerations such as suitability of a route, security, and the wishes of adjacent landowners or user groups, cannot be considered under the legislation. 4.6. Twenty years use by the general public can give rise to the presumption of dedication of a way under Section 31 of the Highways Act 1980. The period of 20 years is measured backwards from the date of challenge by some means sufficient to bring it home to the public that their right to use the way is being challenged. Section 31 (1) states “where a way over any land, other than a way of such character that use of it by the public could not give rise at Common Law to any presumption of dedication, has actually been enjoyed by the public as of right and without interruption for a full period of 20 years, the way is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it”. 4.7. Section 32 of the Highways Act 1980 states that “a Court or other tribunal, before determining whether a way has or has not been dedicated as a highway, or the date on which such dedication, if any, took place shall take 5 into consideration any map, plan or history of the locality or other relevant document which is tendered in evidence and shall give weight thereto as the Court or tribunal considers justified by the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or compiled and the custody in which it has been kept and from which it is produced”. 4.8. The Natural England and Rural Communities (NERC) Act 2006, Section 66 and 67, extinguished rights for mechanically propelled vehicles (MPV’s) over any routes that were recorded on the Definitive Map as footpath, bridleway or restricted byway and over any routes that were not recorded on the Definitive Map or the list of highways maintained at public expense. There are a few exceptions to the general rule outlined above, none of which appear to apply in this case. There is therefore no question of rights for MPV’s existing over the claimed route. 4.9. Any changes to the Definitive Map must reflect public rights that already exist. It follows that changes to the Definitive Map must not be made simply because such a change would be desirable, or instrumental in achieving another objective. Therefore, before an order changing the Definitive Map is made, SCC must be satisfied that public rights have come into being at some time in the past.
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