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1 Wildlife and Countryside Act 1981

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1 Wildlife and Countryside Act 1981 WILDLIFE AND COUNTRYSIDE ACT 1981 – SECTION 53, SCHEDULE 14 APPLICATION TO UPGRADE PART OF FOOTPATH CH 7/39 TO A RESTRICTED BYWAY, AND ADD RESTRICTED BYWAYS IN THE PARISHS OF COMBE ST.NICHOLAS AND BROADWAY 630M, 632M and 633M APPLICATION TO VARY THE PARTICULARS OF PART OF CH7/39, 862M Author: Erica Darch Date: 04 December 2018 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 1. Introduction 2. The Application 3. Relevant Legislation 4. Documentary Evidence 5. Landowner Evidence and Evidence from those against the application 6. Consultations and other submissions 7. Analysis of the evidence and conclusions 8. Summary and Conclusion 9. Recommendation 2 1. Introduction 1.1 The South Somerset Bridleways Association made two applications on 4 June 2009 (630M and 633M) and one on 12 June 2009 (632M) under Schedule 14 and Section 53(5) of the Wildlife & Countryside Act 1981 for Orders to amend the Definitive Map and Statement (DMS) by upgrading part of footpath CH 7/39 to a restricted byway and adding the routes described in paragraph 2 below as restricted byways. A fourth application was made 2 November 2018 (862M) under the same legislation which relates to part of the route over which 632M runs between points A and B on appendix 1. As such, application 862M is only specifically discussed in relation to the width of the application route between A and B. 1.2 A restricted byway can be used by the public on foot, bicycle, horseback, or non-mechanically propelled vehicle (such as a horse and cart). 1.3 The purpose of this report is to establish what public rights, if any, exist. 1.4 Private rights may exist, but are not of direct relevance to this investigation. 2. The Application 2.1 The application is based on documentary evidence. The applicant supplied a number of documents with the application, as follows: Document 630 632 633 862M Land registry report ● ● ● ● 1813 Property belonging to the Deanery of ● Wells 1814 and 1818 Combe S. Nicholas Inclosure ● ● ● ● Act and Award 1822 Greenwoods Map ● ● ● ● 1839 Combe St. Nicholas tithe map ● ● ● ● 1844 Broadway tithe map ● ● 1885 Ordnance Survey (OS) boundary records ● ● 1888 OS 25 inch County Series ● 1898 – 1900 OS Cassini / Timeline reprint ● ● ● ● 1901 Object Name Book ● ● 1902 OS 25 inch County Series ● 1905 Object Name Book ● ● 1910 Finance Act record plans ● ● ● ● 1911 Bartholomew’s Map 1919 OS Cassini / Timeline reprint ● ● ● ● 1927 Bartholomew’s Map ● ● ● 3 1940 OS war revision ● ● ● ● 1941/2 National Farm Food Survey ● 1964 Bartholomew’s Map ● 2.2 No user evidence was submitted with the applications. User evidence submitted during the investigation is discussed at 7.1. 2.3 The application routes are shown coloured blue on Appendix 1 and can be described as follows: ● 630M Charmoor Drove, parish of Combe St. Nicholas, running from point D through C-E-F-I-J-K-L-M to N at the A303 (add a restricted byway). ● 632M Hamway Lane, parish of Combe St. Nicholas, running from the public vehicular road at point A through point B to C at its junction with Charmoor Drove (upgrade public footpath CH 7/39 between points A and B to a restricted byway and add a restricted byway between points B and C). ● 633M Charmoor Lane, in the parishes of Broadway and Combe St. Nicholas, running from point F at its junction with Charmoor Drove through point G to H at the public vehicular road called Silver Street (add a restricted byway). ● 862M Hamway Lane in the parish of Combe St Nicholas from point A running in a generally northerly direction to point B (vary the particulars in relation to the width of the route). 2.4 Photographs of the claimed route taken on 10 January 2018 are at Appendix 2. 2.5 A land registry search was carried out on 7 December 2017. No registered owners for the application routes were identified. However, seventeen landowners (or joint landowners) of adjacent land were either identified by the Land Registry search or by other means. The Common Law presumption is that adjoining landowners own up to the centre line of a public or private road or way, in the absence of any evidence to the contrary. This investigation has not determined the ownership of the unregistered land over which the application routes run. Throughout this report landowners have been given the letters A to Q for identification purposes. The landownership as recorded by the Land Registry or on maps returned by landowners is shown at Appendix 3. Landownership which has been identified from other sources (i.e. not from the Land Registry or shown on maps returned by landowners) is not shown on appendix 3. 2.6 The case file, including the application, accompanying evidence and consultation responses can be viewed by Members by appointment. 3. Relevant Legislation 3.1 The Wildlife and Countryside Act 1981 specifies in Section 53(2)(b), that the County Council must keep the Definitive Map and Statement under 4 continuous review and must make such modifications as appear to them to be requisite in the light of certain specified events. In this case 53(3)(c)(i), (ii) and (iii) are of particular relevance. 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” 53 (3)(C)(ii) reads 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 highway shown on the map and statement as a highway of a particular description ought to be shown as a highway of a different description”. 53 (3)(C)(iii) reads 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 there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification”. 3.2 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)(c) (i), (ii) and (iii) of the Act as quoted above. On receipt of such an application the County Council is under a duty to investigate the status of the route. It was under these provisions that the South Somerset Bridleways Association (SSBA) made their applications. 3.3 The purpose of Section 53 of the Wildlife and Countryside Act 1981 is to add to or delete rights from the record rather than create or extinguish the rights themselves. Practical considerations such as suitability, the security and wishes of adjacent landowners, user groups or other interested parties cannot be considered under the legislation. 3.4 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 5 highway unless there is sufficient evidence that there was no intention during that period to dedicate it”. 3.5 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 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”. 3.6 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.
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