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 wales@planning-inspectorate.gsi.gov.uk 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.

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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. 16. Mr Hollins’ main argument was that there had never been a public right of way along the drive to the mill cottages (now The Lilacs). He accepted people did use a route through “the Nurse” but contended this was only for access to the cottages and it was not a public path. In support, he cited the physical limitations of the drive that existed when his father bought the property in 1971, requiring major alterations to make it accessible for vehicles. 17. At the inquiry I heard evidence from several local witnesses who recalled use on foot of both the definitive route along the original drive and of the path through “the Nurse” as long ago as 1932. Because of the nature of the latter, down a steep slope through woodland, it seems older people chose the route via the drive whereas youngsters often preferred the challenge of the more direct path. In fact the path through “the Nurse” appears on the 1912 OS map

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(although that is not confirmation of public status). A delightful sketch helpfully produced by Mr E Jones illustrated both paths in graphic detail. 18. From the evidence I have seen, I have no doubt that in the 1950s the Parish Council intended to record the drive (long before its extension by Mr Hollins) as part of the public right of way which became registered as Footpath 29 and there was clearly contemporary use by the public. There is no evidence to suggest the required statutory procedures were not complied with at the time; from my examination of the relevant records supplied by WCBC it appears they were and in full. Whether there was, or is, evidence to demonstrate the route through “the Nurse” was also a public path is not a matter on which I can adjudicate in determining this Order. 19. Having examined all the available evidence, I reach the conclusion that, on balance, there is no cogent evidence to show that Footpath 29 was incorrectly recorded as a public right of way on foot as shown on the Order map (that is along the line of the original drive) at the relevant date of the definitive map in 1954. Other matters 20. Mr Hollins supplied a number of documents and gave information to the inquiry about matters raised post-1971 during his father’s ownership of the land on the north side of the river. Although I have read these, they do not cause me to doubt the conclusion I have reached that the Order route was indeed a public right of way when first recorded on the definitive map in 1954. In the absence of any legal order to extinguish that right, it would have been in existence in 1971 just as it is today. 21. I heard from the present owner of The Lilacs, Mr Roberts, of his worries over the impact of Footpath 29 on his property and his family if public access is restored. Whilst I understand his concern, the tests I am required to apply do not enable me to take into consideration either the value of the path to the public or any inconvenience caused to the landowners affected. Future management of Footpath 29 would be a matter for discussion with WCBC. Conclusion 22. Having regard to all matters raised at the inquiry and in the written representations, I conclude the Order should not be confirmed. Formal Decision 23. The Order is not confirmed.

Sue Arnott INSPECTOR

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APPEARANCES

In support of the Order

Mr P Hollins 101 Council Street, Llay, Wrexham, LL12 0DP Mr D Roberts The Lilacs, Pentre, Minera, Wrexham, LL11 3DW Mr E Powell 77 Tan-y-Dre, Wrexham, LL13 9AY

Opposing the Order Mr H Roberts Of Counsel, appearing on behalf of Wrexham CBC

Who called Mr S Hanratty Definitive Map Team Leader; Wrexham CBC Dr I Greatorex 3 Pen-y-Nant, Minera, Wrexham, LL11 3DA Mr E Jones 9 Plas Tirion, Nant Parc, Johnstown, Wrexham, LL14 1UR Mr T Jones 36 Cefn Road, Bwlchgwyn, Wrexham, LL11 5YE Mr G Evans 20 Court Road, Wrexham, LL13 7RH Mr S Edwards Grosvenor Cottage, Willowbank Road, Minera, Wrexham, LL11 3PY Mr D Morton 20 Glastonbury Avenue, Upton, Chester, CH2 1NG Mrs Shirley Davies Grey Gables, Ty Brith Lane, Pentre, Minera, Wrexham, LL11 3DW Mr D Fidler 6 Shepherd’s Bush, Minera, Wrexham, LL11 3YP Mrs Sylvia Davies 5 Lower Minster, Wrexham, LL12 7PT Mrs C Peters Arfryn, Newbrighton, Minera, LL11 3DT

Mr G Emery 27 Gladstone Road, Chester, CH1 4BZ

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DOCUMENTS

1. Copies of statutory notices and certification 2. Copies of the statutory objections and representation 3. Documents submitted by Mr P Hollins including 3.1 Extract from OS 1:2500 map (c1964) 3.2 Extract from OS 25”: 1 mile map (1899) 3.3 Extract from the current definitive map (relevant date: 31 October 1978) said to differ from that produced by WCBC 3.4 Extract from plans showing proposed garage at The Lilacs (c1975) 3.5 Plan showing Mill Cottages site (presumed to be an extract from 1947 deeds) – as amended by Mr Hollins 3.6 Document detailing decision of the Magistrate’s Court at Wrexham on 10 December 1997 3.7 Copies of 28 colour photographs taken in 1997 by Mr Hollins for the Court case 3.8 Colour photograph taken c 1991 or 1992 and others taken in 2009 3.9 Copies of correspondence dating from 1991-1993 4. Documents submitted by Wrexham CBC including 4.1 Statement of grounds on which it is considered the Order should not be confirmed 4.2 Statement containing comments on objections and representations 4.3 Extract from the current definitive map (relevant date: 31 October 1978) 4.4 User evidence forms 4.5 Proof of evidence of Mr S Hanratty with accompanying appendices 1- 34 5. Sketch plan drawn by Mr E Jones 6. Documents submitted by Mr G Emery including 6.1 Handwritten note (and sketch) complaining of obstruction dated 24 May 1988 6.2 Details of planning permission granted on 15 October 1975 for garage at the Lilacs 6.3 Letter dated 14 October 1975 from Minera Community Council to Chief Planning Officer commenting on the planning application

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