Yr Arolygiaeth Gynllunio, Adeilad y Goron, Parc Cathays, The Planning Inspectorate, Crown Buildings, Cathays Park, Caerdydd CF10 3NQ 029 2082 3889 Ffacs 029 2082 5150 Cardiff CF10 3NQ 029 2082 3889 Fax 029 2082 5150 e-bost [email protected] e-mail [email protected] Penderfyniad ar y Gorchymyn Order Decision Ymchwiliad a agorwyd ar 18-02-2009 Inquiry opened on 18-02-2009 gan/by Sue Arnott FIPROW Arolygydd a benodwyd gan y Gweinidog dros An Inspector appointed by the Minister for yr Amgylchedd, Gynaliadwyedd a Thai, un o Environment, Sustainability and Housing, Weinidogion Cymru. one of the Welsh Ministers. Dyddiad/Date 20/03/09 Order Ref: H6955/W/2008/515134 The Minister for Environment, Sustainability and Housing has transferred the authority to decide this Order to me as the appointed Inspector. This Order is made under Section 53(2)(b) of the Wildlife and Countryside Act 1981 and is known as the Definitive Map Modification Order to delete Public Footpath Number 29 in the Community of Minera. Wrexham County Borough Council submitted the Order for confirmation to the National Assembly for Wales. The Order is dated 30 April 2008. There were eight objections and one representation outstanding at the commencement of the local inquiry. The Order proposes to delete from the definitive map and statement the full length of the route recorded as public footpath 29 leading north eastwards from Wern Road near Pentre Cottages across the River Clywedog then north west to re-join Wern Road at Plas Gwyn Hill, Minera. Summary of Decision: The Order is not confirmed. Preliminary Matters 1. I opened a public local inquiry into the Order at the Plas Pentwyn Enterprise Centre in Coedpoeth, Wrexham on 18 February 2009. I made an unaccompanied visit to the site on the afternoon of 17 February before opening the inquiry the following day and returned on 19 February to complete a full inspection of the Order route, on that occasion accompanied by both supporters of, and objectors to, the Order. 2. Wrexham County Borough Council (WCBC) made the Order on the direction of the National Assembly for Wales following a successful appeal by the applicant, Mr Hollins1. Having previously concluded that the evidence was not sufficient to justify the Order, WCBC appeared at the inquiry as an objector. The case in support of the Order was presented by Mr Hollins with assistance from Mr Roberts, the present owner of land north of the river crossed by the Order route. 1 The appeal was lodged by Mr W Hollins (deceased) but continued by Mr P Hollins ORDER DECISION: H6955/W/2008/515134 Main issues 3. The Order is made under Section 53(2) of the Wildlife and Countryside Act 1981 (the 1981 Act) relying on the occurrence of events specified in Section 53(3)(c)(iii). The main issue is therefore whether the evidence discovered by the order-making authority, WCBC, when considered with all other relevant available evidence, is sufficient to show that, on the balance of probability, there is no public right of way over Footpath No 29 in the Community of Minera as shown in the definitive map and statement. 4. When considering cases where deletion of a way from the definitive map and statement is proposed by an order, paragraph 7 of Welsh Office Circular 45/90 advises that "The evidence needed to remove a public right of way from such an authoritative record (the definitive map and statement) will need to be cogent." 5. Circular 5/93 Annex B paragraph 13 further advises that "in the case of deletions, the conclusive evidential effect of definitive maps and statements means that the evidence must show that no right of way existed as at the relevant date of the definitive map on which the way was first shown. If the evidence does not support this, consideration should also be given to whether the way has acquired such rights in the intervening period." 6. The rights of way at issue were recorded on the first definitive map and statement which had a relevant date of 30 June 1954. The central question is therefore whether or not it was included in error at that time. 7. In approaching cases where deletion of a path from the definitive map is proposed, the often quoted statement of Lord Phillips in the case of Trevelyan v SSETR (unreported) 23 February 2001 The Times Law Reports (at paragraph 38) is of particular relevance: "Where the Secretary of State or an Inspector appointed by him has to consider whether a right of way that is marked on a definitive map in fact exists, he must start with an initial assumption that it does. If there were no evidence which made it reasonably arguable that such a right of way existed, it should not have been marked on the map. In the absence of evidence to the contrary, it should be assumed that the proper procedures were followed and thus such evidence existed. At the end of the day, when all the evidence has been considered, the standard of proof required to justify a finding that no right of way exists is no more than the balance of probabilities. But evidence of some substance must be put into the balance if it is to outweigh the initial presumption that the right of way exists." 8. Circular 5/93 further advises that if the evidence does show, on a balance of probability, that the path was mistakenly recorded, it may be possible that a public right of way has come into existence along the same route through deemed dedication since 1954 such that it is now correctly shown as a public footpath on the current definitive map and statement. Reasons Assessment of the evidence 9. Mr Hollins submitted that the absence of a bridge crossing over the River Clywedog meant that no public right of way had ever existed. In support of his argument only two items of evidence were supplied that originated before the relevant date in 1954: an extract from the Ordnance Survey (OS) map of 1899 and a copy of a plan showing the site of the former mill cottages (now the Lilacs), presumed to be from 1947 property deeds. 2 ORDER DECISION: H6955/W/2008/515134 10. Neither of these documents show a defined river crossing on the line of Footpath 29 (at the point shown as B on the Order map) but that does not necessarily preclude the existence of a public right of way on foot and the weight I attach to these plans is very limited. 11. In the case of the 1899 OS map, other contemporary evidence (supplied by WCBC) suggests local pressure some 7-8 years earlier for repairs to a footbridge over the river, the existence of which is confirmed by the previous edition of the OS map dated 1872. 12. The 1947 sketch map does indeed confirm there was no bridge in existence at that time, a fact corroborated by all the witnesses at the inquiry who knew the path from that period and by a photograph of children standing in the river at or around point B taken in the 1940s. However this same witness evidence also confirms that the path was in use by the public irrespective of the absence of any bridge. Informal stepping stones provided an adequate facility for crossing at most times of the year. 13. Although cogent evidence to support his submissions was lacking, Mr Hollins also contended that part of the definitive route (immediately north of the river crossing at B) was shown along a sluice that carried water from the mill pond to the river and therefore could not ever have been used by pedestrians. Further, he asserted that an access path ran north-eastwards from a point north of B through an area known as “the Nurse”, not along the drive to point C. He claimed that this was the route people had walked although it was not a public path. 14. As regards the sluice, other evidence confirmed the position of the mill race along the northern edge of the access road above the old mill buildings as shown on the 1872 OS map. Although it appears the mill itself may have been relocated from the position shown on this map (and the 1816 Minera Enclosure Map) to a building a little further west in which Dr Greatorix’ grandfather later lived, there seems to me little doubt that the section of footpath below the still-standing mill pond wall was not a sluice. I find no evidence to indicate that at any time prior to 1954 the route of the definitive footpath was unavailable for pedestrian use (other than in flood) although it became partially obstructed many years later when Mr W Hollins carried out works to create a hard-standing for vehicles. 15. Mr P Hollins produced an extract from the 1978 definitive map which omitted the section of Footpath 29 north of river. There was no reliable information from which to ascertain the exact origin of this copy or its authenticity, but the relevant definitive sheet from WCBC’s records was produced which clearly showed the full length of the path as described in the definitive statement. Mr Hollins further argued there was a discrepancy between the 1954 and 1978 versions of the definitive map. Whilst I can see a slight difference in the alignment of the path to the south of the river, I find no material difference on the north side.