Cornwall Council
Report to: A Delegated Powers Decision to be made by the Natural Environment Manager
Date: 15 August 2018
Title: Application for a Modification Order to add a Footpath from the Road A30 to Footpath 59 Penzance at Trembath, Madron CP [WCA 533]
Portfolio Holder(s) Sue James, Environment & Public Protection
Divisions Affected St Buryan
Relevant Overview And Scrutiny Committee: Scrutiny Management Committee
Key Decision: N Approval and Y clearance obtained:
Urgent Decision: N Implementation 15/08/2018 Date:
Author: Jon Rowell Role: Countryside Access Records Officer
Contact: 01872 326684 / jarowell@cornwall.gov.uk
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Recommendations:
• That an Order be made under Section 53(2)(b) of the Wildlife and Countryside Act 1981 to modify the Definitive Map and Statement by the addition of a Footpath from the A30 to Footpath 59 Penzance at Trembath in the parish of Madron.
• That the Order be confirmed by Cornwall Council as an unopposed Order if no objections or representations are received to the Order, or any objection received is subsequently withdrawn; or, if objections or representations to the Order are received that they be submitted by Cornwall Council to the Secretary of State with a request that the Order be confirmed.
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EXECUTIVE SUMMARY
• The purpose of this report was to consider an application to modify the Definitive Map and Statement by the addition of a Footpath from the A30 to Footpath 59 Penzance at Trembath in Madron CP. The claimed route is shown as A-B on the plan at APPENDIX A-1 to this report.
• The available evidence of use of the way on foot is considered to be sufficient to give rise to the presumption that a Public Footpath has been established under section 31 of the Highways Act 1980.
• In determining the application, the Council has also examined documentary evidence. While these records are useful in indicating the path existed as a physical entity, on their own they fail to provide sufficient evidence about whether the path was public, but are supportive of the decision the Council has reached to add a right of way to the definitive map.
• In conclusion the report recommends that an Order be made under section 53(2)(b) of the Wildlife and Countryside Act 1981to add the claimed way to the definitive map and statement on the basis of the occurrence of an event.
• It also recommends that the Council confirms the Order if it is unopposed or asks the Secretary of State to confirm it if it is opposed.
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1. APPLICATION DETAILS
1.1. The purpose of this report is to consider an application to modify the Definitive Map and Statement by the addition of a Footpath from the A30 to Footpath 59 Penzance at Trembath in Madron CP.
1.2. The route of the alleged Bridleway is shown on the Map between A-B set out at APPENDIX A-1.
1.3. On 3 January 2006 on behalf of the Penwith Access & Rights of Way Forum submitted an application to modify the Definitive Map and Statement under Section 53 of the Wildlife and Countryside Act 1981 by adding a Footpath at Trembath in Madron CP from the A30 to the footbridge at the parish boundary between Madron and Penzance, thereby providing a link from Footpath 13 Madron to Footpath 59 Penzance.
1.4. A letter accompanying the application, set out at APPENDIX A-2, explains the delay in submission and why the application form is dated 13 September 2005.
1.5. The application was supported by 10 User Evidence Forms which were completed in 2005. A further User Evidence Form was received in 2018.
1.6. Use of the way on foot was claimed by all 11 witnesses for varying periods between 1934 and 2018.
1.7. The applicant first certified that the requirements of Paragraph 2 of Schedule 14 of the Wildlife and Countryside Act 1981 had been complied with by serving Notice of the Application on every owner and occupier of the land on 19 November 2005.
1.8. In the absence of a response to a consultation with landowners in 2009 the Council requested and authorised the applicant to serve notice on the Land by impersonal means. A second certificate of service of notice was supplied by the applicant in 2016.
1.9. Due to the time elapsed between receipt of the application and Cornwall Council on appeal to the Secretary of State under Schedule 14 being directed to reach a determination in 2018 when the case reached its turn for processing the authority undertook a Land Registry search and consulted with landowners again.
1.10. A list of owners/occupiers consulted at these various dates is set out at APPENDIX B.
1.11. A description of the topography of the way arising from a survey conducted by a Council officer is set out at APPENDIX C. Photographs
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of the route produced in 2008 illustrate its physical condition at that time.
2. CONTEMPORARY EVIDENCE OF USE
2.1. Why we consider this evidence important Evidence in the form of questionnaires completed by users is generally provided to establish use by the public. Owners of the land are then invited to complete and submit a questionnaire deliberately designed to elicit evidence of actions they have taken to demonstrate their intentions not to dedicate a right of way. Evidence of use may be submitted in support of historical evidence showing a right of way subsists, although where no documentary evidence of a route is discovered, a public right of way can still be established if members of the public can demonstrate they have used a path ‘as of right’ without interruption for a period of 20 years. ‘As of right’ means any public use of a route is required to have been:
• without force (i.e., not breaking a lock on a gate, or cutting down a fence to access the route) • without secrecy (i.e., so as to make the landowners aware that the route was being used) • without permission (i.e., not having the permission of the landowner).
Legislation requires evidence of 20 years use ending at a ‘date of challenge’ (Section 31 of the Highways Act 1980). The ‘date of challenge’ is the point at which the right of the public to use the route is brought into question e.g., by a landowner erecting a notice, or locking a gate. Where there is no evidence that public use has been challenged, Section 31(7B) of the Highways Act 1980 specifies that the date the application was made should be used as the end of the 20 year period.
Where a landowner can produce evidence to show that they have taken steps to prevent public rights accruing over a way, a right will not have been dedicated. Such action must be overt, apply to the way being claimed and be capable of making the public aware of the landowner’s intentions. They can include erecting and maintaining notices on site stating that the route is not public or that it is used with permission; by installing and locking gates; or by telling people seen using the route that it is not public, etc.
Section 31(6) of the Highways Act 1980 (following on from the Rights of Way Act 1932) also allows landowners to deposit a statement and map with the relevant highway authority identifying existing public rights of way across their land, indicating their intention not to dedicate any further rights, which upon lodging a declaration is sufficient proof that no additional ways have since been dedicated. Landowner statements of this type do not act retrospectively and
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therefore have no effect on rights that may pre-exist the date of the initial deposit.
A right of way can also be established at common law. The common law presumption is that land has been dedicated as a highway if it has been used by the public as of right and without interruption. The land does not have to be used for a defined length of time. However, it must have been used for long enough to justify an inference that the freehold owner intended to dedicate the way as a highway. It is possible, although unusual, that dedication at common law can be presumed on the basis of less than 20 years use. The common law presumption can be rebutted by demonstrating that the landowner had no intention of dedicating the land to the public. The common law principles of dedication are expressly preserved and, if the statutory provision cannot be used, a claim may be made under common law.
2.2. Summary of Evidence
Forms of Evidence are set out at APPENDIX D-1. Below is a summary of witnesses who have used the alleged way as a public footpath.
Years of Challenge URN Frequency Comments Use to Use
1 1975-2002 4-6/Year No Signposted as a footpath
2 1981-2003 4/Year No
Footpath sign at the start 3 1974-2004 1/Year No near A30
Footpath sign at A30 4 1978-2004 2/Year No near entrance at Trewidden
Until recently a sign at A30 saying Public 5 1967-2005 10-12/Year No Footpath Trevadoe/Has spoken to owner & wife whilst using the path
6 1978-2001 4-5/Year No Footpath sign
Owner greeted walkers & 7 1945-2004 3-4/Year No chatted/Signpost at junction with A30
Have seen Mr Legrice in yard tending his horse/ 8 1950-2005 6-8/Year No Sign public footpath from Trewidden to Trevadoe
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Metal CCC sign till 2004 9 1985-2005 5-12/Year No Footpath to Trevadoe
Always been used with the occupiers fully aware/ Father farmed at Lower 10 1934-1964 100+/Year No Trembath from 1930-64. Path was always free to anyone who wanted to use it
Informed recently by new 11 1970-2018 20-40/Year Yes landowner that there was no right of way
The witnesses have not been interviewed, but information has been taken from the Forms of Evidence which have been signed by each witness to the effect that "I hereby certify that to the best of my knowledge and belief the facts that I have stated are true" accompanied by annexed maps detailing the precise routes, which have also been signed.
Permissive & Private Use Asked whether they were working for any owner, or occupier of the land crossed by the way at the time they used it, Witness 10 identifies that their father farmed at Lower Trembath from 1930 - 1964 when was owner. For this reason their evidence should be discounted between these years. No other witnesses indicate that they have used the alleged route with the permission of the landowner, or in exercise of a private right so all their evidence can be used in support of the claimed public right.
Inconsistencies
Witness 10 reports using the way from 1934-1964 adding a comment ‘and present day’. They later confirm in writing that they have used the way for 75 years. In this instance use after 1964 has been discounted because it is not possible to establish the actual years that they used it.
Bar Chart of Claimed Use on Foot
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1930 1940 1950 1960 1970 1980 1990 2000 2010 2020
User 1
User 2
User 3
User 4
User 5
User 6
User 7
User 8
User 9
User 10
User 11
Frequency of Use
In order to be satisfied about whether there has been sufficient use of the way by the public, it is necessary to consider not only the number of users but also how often witnesses claim to have used the paths. In terms of evidence that can be counted, the summary table above shows that while two users (Witnesses 3 & 4) indicated they only used the path once or twice a year, one user (Witness 11) used the way approximately fortnightly, and the remaining 8 witnesses used it between once a month and once every three months. In this instance the length of time witnesses have used the way is also important. All 10 witnesses, whose evidence can be used in support of the claim, have used the way for at least 20 years, with one (Witness 7) having used it 3-4 times annually for 60 years Therefore, together the number of witnesses who claim to have used the way, use on foot has been shown to be continuous over a significant period of time.
Additional Evidence In Support Of Application
Although no further evidence in the form of reference to historical and written documents was adduced in support of the application, several additional comments on User Evidence Forms are worth noting. At the junction between the path and the A30, 8 witnesses
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reported that the way was signposted as a footpath by a metal Council fingerpost, removed in 2004, directing walkers down the claimed route towards ‘Trevadoe’.
Witness 10 who lived at Lower Trembath for 34 years and whose evidence therefore would not constitute use ‘as of right’ indicates that the path formed one of the most popular walks in the vicinity and passage was never barred. However, they also note that numbers fell away when use by cars and motorbikes increased. They reported still using it frequently when invariably they would encounter other walkers.
2.3. Evidence from Landowners With the identity of affected landowners provided by the applicant, a letter of consultation, inviting the identified landowners to confirm they were the owner, or occupier of the land over which the alleged ways run and also requesting that they complete a Landowner/Occupier Evidence Form and/or submit comments in regard to the application was sent to each of the persons certified by the applicants to be an owner and/or occupier of the land in January 2006 and May 2007.
There was no response to the first consultation, prompting the Council to recommend that the applicant serve notice on the Land impersonally in 2009. No landowner came forward at this time.
Given the time that had elapsed since the first consultation, following a Land Registry search a further consultation was conducted with new landowners identified as being affected by the claim of rights. A list of their names is set out in Appendix B. The landowner evidence is set out at Appendix E.
responded indicating that they owned land over which the alleged way runs for the last 12 years. They did not consider the way to be public, had seen members of the public using the way on foot very occasionally and while they had not kept locked gates or erected notices they indicate they had stopped and turned back people using the way, but provided no dates, or examples where this had happened.
As owners of Lower Trembath since 2016, responded indicating that they did own land over which the alleged way runs. They did not consider the way to be public, but had seen members of the public using the way on foot. They had put barriers in place while working and indicate they had challenged and turned back a small number of people using the way.
Checking with previous occupiers who had owned the property over several generations, reported they had never given
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anyone authority to go through their land and had challenged people when they were in residence.
raised concerns about the intrusion of the footpath through the farm buildings now they had received planning consent for barn conversions and more particularly consent for a change of access way to the A30 for vehicles, required for safety reasons by the Highways Agency, Historic England and Cornwall Council who wanted the lane blocked and access moved down the road.
A statement provided by n from the previous landowner indicates that during his occupancy he allowed some people to walk through the yard. People he knew, or had come to know, but it was a relatively infrequent event. On a small number of occasions, usually involving a large group of younger people, or walkers with a dog causing a nuisance they would be asked to leave. also indicates that he received no letters from the authority in 2005 and knew nothing of what was being considered.
A further statement from confirms that he did not receive any letters or notices in 2005 the year when they bought Trembath Farm, or later in 2009. was not the owner of the lower part of the land only the drive and yard section over which the proposed footpath runs. reports challenging about 20 people over the years pointing out that they were not on a public footpath.
2.4. Consultation Responses Consultations with the local councils, the prescribed organisations, statutory undertakers and other relevant bodies were carried out on 17 January 2006. Responses to the consultation set out at Appendix G were received from: , Madron Parish Council and Penzance Town Council.
the local Cornwall Councillor originally consulted over the application in 2006 responded indicating he had no comments to make.
another local Cornwall Councillor consulted over the application in 2006 responded indicating he ‘totally supported’ the application.
the current local Cornwall Councillor was consulted over the application in May 2018, but provided no comment.
, Clerk to Madron Parish Council responded in writing saying that the parish had discussed the case at ‘Madron Parish Council meeting on 2nd February 2006 and I have been instructed to
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reply to you to the effect that this council has no objections to the implementation of this order. The applicant, , is Chairman of the Penwith Access & Rights of Way Forum and works very closely with this parish and this parish supports his proposal. The councillor responsible for footpaths in the parish is also very supportive and whilst I cannot provide any archival evidence, councilors seem to feel that this route has been well walked in previous times’.
The Town Clerk to Penzance Town Council also responded in writing saying that ‘the Town Council has resolved to support the proposed addition of the above footpath. Unfortunately, there are no records to hand in relation to the footpath, but it is known to members and it provides a logical link between the two footpaths outlines on the map’.
Although not formally consulted, Historic England in responding on 20 September 2017 to a planning application [PA17/07714] by the owner of Trembath for a proposed new vehicular access onto the A30 away from the claimed route made some important comments about the history of the path. They noted that the:
‘application involves the closure of an existing access point to the historic 'A30' route into West Penwith from Penzance adjacent to a medieval 'wayside' stone cross which is protected as a nationally important Scheduled Monument (1008171 Trembath Cross 200m ENE of Buryas Bridge). Wayside crosses are one of several types of Christian cross erected during the medieval period, mostly from the 9th to 15th centuries AD. In addition to serving the function of reiterating and reinforcing the Christian faith amongst those who passed the cross and of reassuring the traveller, wayside crosses often fulfilled a role as waymarkers, especially in difficult and otherwise unmarked terrain. The crosses might be on regularly used routes linking ordinary settlements or on routes having a more specifically religious function, including those providing access to religious sites for parishioners and funeral processions, or marking long-distance routes frequented on pilgrimages. The cross at Trembath is, unlike many such examples, thought to be in its original position, this location representing the crossing point of this ancient east west route by an ancient church path linking the historic dispersed settlements such as Trembath, and those now forming Newlyn to the south, with Madron church to the north. Such church paths are a particularly distinctive characteristic of West Penwith constituting a fundamental and deep structure to its rights of way network. The impact of this application in its current form would be to remove the coherence of the north south route within the landscape, and the significance of the cross' positioning at this location, as a result harming the 'setting' of the scheduled monument’1.
1 The response from Historic England can be viewed via Cornwall Council’s Planning Portal using the planning reference provided, or via the following webpage: http://planning.cornwall.gov.uk/online- applications/applicationDetails.do?activeTab=consulteeComments&keyVal=OUO3E3FG1T200
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While Historic England supports the proposal by landowners to move the entrance of the claimed way for vehicular traffic, they have significant concerns that: ‘the loss of the legibility of the north south route which determined the location of this in situ wayside cross would have a substantive impact on the significance of the setting of the scheduled monument. This aspect of the setting of the monument does not necessarily depend on the existence of a currently recognised right of way, nor would it require vehicular access at this point, as, historically the north south route would most likely have carried primarily foot or pack animal traffic, however it does depend on the existence and legibility of such a route. The diversion of this route, without design mitigation, would in our opinion lie at the upper end of ‘less than substantial harm’ […]. Such harm requires ‘clear and convincing justification’ […] and should be necessary to achieve comparable (ie substantive and significant) public benefits’.
Historic England therefore advise that ‘great weight’ should be accorded to the conservation of the setting of this highly graded heritage asset and observe that were the historic route to be maintained as a footpath, with a well detailed traditional but accessible opening, they consider this harm could be appropriately avoided.
3. DOCUMENTARY EVIDENCE
Investigating a claim of rights the Council consults at least 7 primary sources to establish whether historical evidence relating to the application route exists. Where a document listed below can be viewed at the Cornwall Record Office (CRO) a catalogue reference is provided. Alternatively, the record can be made available to view via the Countryside Access Team (CAT).
For further information contact: • Cornwall Record Office – 01872 323127 • Countryside Access Team – 0300 1234 202
Further advice about documents and their relative value for investigating rights of way claims can be found in the Guidance to Definitive Map Orders published by the Planning Inspectorate here.
Documents containing evidence pertinent to the application route are listed with the following information: • document name, date and where it can be sourced (location and reference) • why the document is considered important for making a decision
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• what the document shows that is applicable to the claim for a right of way • comments from the investigating officer
Upon investigation the following historical documents have yielded no evidence relevant to application route2: • Thomas Martyn Map 1748-1749 Ref: CRO - No evidence found • Inclosure Records for [Place] – No records found • [Railway & Canal Plans – No records found] • [Highway Diversion/Extinguishment Records – No records found] • [Highway Maintenance Records – No evidence found]
3.1. Greenwood Map Date: 1826-1827 Ref: CRO – AD318/1
3.1.1. Why we consider this document important Christopher and John Greenwood were brother cartographers responsible for producing large-scale maps of England and Wales in the 1820s. Although they failed in their intention to produce a series of maps for the whole country at a scale of one-inch-to-the-mile, at least in part due to competition from the recently founded Ordnance Survey, their output, of which the Cornwall map is an example, is said to have been finely drafted, elegantly engraved and based on their own surveys. The Cornwall sheet shows county, parish and hundred boundaries; market towns, parishes, villages and other places; turn pikes, cross roads and toll bars; railways, mines and navigable canals; churches, chapels, castles, priories, windmills and watermills; heaths and commons, rivers and brooks, woods, hills and rising grounds and parks and pleasure grounds. Printed in colour on paper and surveyed in 1826-1827, it was published by the proprietors Greenwood and Co, Regent Street, Pall Mall, London.
3.1.2. What this document shows in the area of the application route The map of the area set out at Appendix F-1 shows the whole way as part of a loop of especially distinct character leaving and rejoining what is now the A30, no differently to many other routes in the vicinity that are now highways on the Council’s list of streets maintainable at public expense. Furthermore, the Greenwood map also includes a linear feature identifiable as a single broken line that diverges from the loop and appears to coincide with the right of way that is currently recorded on the definitive map as Footpath 59 Penzance.
3.1.3. Investigating Officer Comments The scale of the maps is relatively small which means it is not possible to identify historical routes marked with any degree of
2 Please note a distinction is made between documents which contain no relevant evidence recorded as ‘no evidence found’ and documents for which no record exists recorded as ‘no record found’.
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accuracy. However, in this instance there does appear to be a feature consistent with a road in a similar position to the claimed way over the whole of the route at the date these maps were published.
3.2. Tithe Survey [Madron] Date: 1843 Ref: CRO – CB/P/32 & AD7/3
3.2.1. Why we consider this document important Around the early 1840's following the Tithe Commutation Act 1836 the majority of parishes were surveyed by Tithe Commissioners. They produced detailed, large scale parish maps and accompanying schedules, which identified titheable lands (literally a tax value equating to a tenth of the produce of the land), but not highways, or their status. The Tithe Map cannot be used as definitive evidence of public rights, but the maps do mark roads quite accurately, and taken in conjunction with the apportionment record, can provide useful supporting evidence by inference. Land considered to be unproductive was excluded from the process and not subject to tax. Tithes were therefore not payable on public highways, and it was in the interests of landowners to ensure that these were shown correctly and indeed were sometimes shown on the map by special colouring, most often a sienna wash. Where the evidence from the tithe record is uncertain it can only be used in support of, or conjunction with, other more compelling evidence of the public nature of the way.
3.2.2. What this document shows in the area of the application route An extract from the Tithe Map and Tithe Apportionment Register for the Parish of Madron is set out at Appendix F-2. The claimed route follows a clearly marked lane, but is different from other roads in the area by virtue of not having the characteristic colour wash and been ascribed apportionment numbers: 1566a, 1575 and 1579. In the Name and Description of Land and Premises the landowner is identified as the Rev. Charles Valentine Le Grice with 1566a described as a private road, 1575 as a homestead and 1579 Lower Moor.
3.2.3. Investigating Officer Comments Although the apportionment record does not show whether individual parcels were subject to tax, indications are that the claimed path follows a track that will have been regarded as of an essentially private character and therefore there is no indication that local parishioners might have enjoyed public access over the application route at this time.
3.3. District Valuation Records Date: c1912 Ref: CRO – DV/5/278
3.3.1. Why we consider this document important
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With the intention of charging tax on any increase in value of property sold or inherited, a survey was carried out by the Valuation Department of the Inland Revenue under the Finance Act 1910. 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. Two parts of the Act were pertinent to highways and are now relevant for rights of way purposes.
First, Section 35 of the Act provided for excluding public vehicular roads from adjoining landholdings. Second, their concern with rights of way was in order to assess tax relief which was available for land crossed by footpaths and bridleways. In Section 25 of the Act while assessing the value of the land, deduction was made inter alia for “the amount by which the gross value would be diminished if sold subject to any public rights of way”. In view of the financial implications, many landowners would have been anxious to ensure that public highways were correctly recorded on the plans and all rights of way properly identified in the Field Book. Indeed as such deductions allowed for the existence of public rights of way, the valuations required by the Finance Act 1910 can be highly relevant where highway status is in issue.
The fact almost all individual pieces of land in private ownership were recorded (identified by coloured boundaries) enables one to deduce valuable 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 public road at the time.
The plans used an Ordnance Survey base map, but it is the annotated hereditament numbers and boundaries that are of potential evidential value. Evidence from Finance Act maps can be supported by evidence from the Valuation Book (colloquially knows as the ‘Domesday’ Book), Forms 37 (Valuation field notes) and Field Books.
3.3.2. What this document shows in the area of the application route On the extract set out at Appendix F-3 the claimed way at Trembath is wholly contained in hereditament number 167 in Madron. The relevant Forms 37 shows the hereditament, described as ‘House, Buildings, Land, Premises – Trembath’, was subject to a deduction in the taxable value as a consequence of declared rights of way.
3.3.3. Investigating Officer Comments The incremental value duty records provide some evidence that the public enjoyed access through Trembath at the time. With no identifiable footpath recorded on the Ordnance Survey base map, but
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a clearly marked ‘footbridge’ leading to the track over which the claimed route runs providing the only link through the property, supports the inference that it was this way that benefitted from the deduction. However, there is no indication in the records what type of use the public might have enjoyed as no status for the right of way is given.
3.4. Ordnance Survey & Other Small-Scale Commercial Maps Date: 1878 - 1961 Ref: NLS Website here.
3.4.1. Why we consider these documents important The roots of Ordnance Survey lie in tactical military strategy, particularly defending vulnerable coastal areas from the threat of French invasion during the Napoleonic wars, hence the first published map was of Kent. However, it took till the early 20th century for Ordnance Survey to evolve into a public mapping body responsible for providing spatial information to the public.
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. While carrying a disclaimer to the effect that the representation of any track or way is no evidence of a public right of way since the time the 2nd edition of the larger scale series were published circa 1890s, they are very useful in confirming the existence of a way at a particular date and the type of use along the way. Although produced at various scales including maps at one inch and six inch to the mile, it is the detailed County Series at 1:2500 that provide the best evidence of routes including their widths and any structures associated with them.
While alongside Ordnance Survey maps other commercial maps say little about the reputation of a route enjoyed by the public, they can provide useful corroborating evidence of the existence of a way over time. Indeed, although the sheets produced by Bartholomew carry a disclaimer to the effect that the ‘representation of a road or footpath is no evidence of the existence of a right of way’, they also state that ‘the uncoloured roads are inferior and not to be recommended to cyclists’. Given that these maps were produced expressly for cycling purposes, where a route is defined it is likely to have been at least accessible by bike.
3.4.2. What these documents show in the area of the application route Ordnance Survey maps set out at Appendix F-4 including: the OS 25- inch maps of England and Wales 1878 & 1908 editions; smaller scale maps such as OS 1:25,000 maps of Great Britain 1960 edition; OS One-inch to the mile England and Wales Revised New Series 1907, New Popular Edition 1946 and the 7th Series 1961 all identify the route in its entirety, as a distinct track with mostly solid boundary lines clearly showing a way linking the Class 4 Road (A30) with Footpath 59 Penzance.
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The claimed route also appears on the Ordnance Survey Drawings Lands End, Cornwall Sheet OSD1 1809 and Bartholomew’s Half Inch Maps of England & Wales Cornwall Sheet 1903.
3.4.3. Investigating Officer Comments Ordnance Survey and other commercial maps provide evidence that a track existed as a physical entity on the same line as the application route as early as the 19th century and persisted as a feature throughout editions published into the 20th century too. However, while the way existed, these maps do not provide evidence of either the type of use that occurred, or whether that use was public, or private.
However, in this instance large-scale OS maps (1:2,500) also show a medieval ‘Stone Cross’ close to the junction of the claimed route with the A30, which Historic England has claimed is evidence of an ancient path linking the churches and dispersed settlements of Madron in the north with Newlyn to the south (see Historic England comments in the consultation section 2.4)
3.5. Definitive Map Record Date: 1951 – 1967 Ref: CRO – CC/HF/146
3.5.1. Why we consider these documents important In the early 1950s Parish Councils were asked to carry out a survey of all the public rights of way in accordance with the provisions of the National Parks & Access to the Countryside Act 1949 (the 1949 act) with an accompanying descriptive Statement describing the relevant features and the termination points of each way.
In light of the information collected by local parishes the County Council prepared the Draft Map and Statement. Notice of its preparation was advertised in the London Gazette and one or more local newspapers circulating in the area of the authority. The purpose of the public notice was to give the public an opportunity to inspect them and see whether the information they contained appeared correct, e.g., whether all the paths believed to be public had been included and whether the information in the statement was accurate, and also to give landowners and occupiers an opportunity to see if paths they regarded as private were shown as public. Anyone could object to what was included in, or omitted from, the map and statement.
Following the determination of any appeals to the Secretary of State about what appeared in the Draft Map and Statement, the County Council then prepared a Provisional Map and Statement including any modifications it had chosen or been directed to make. Notice of its preparation was given in the London Gazette and the local press as before, whereupon any owner, lessee, or occupier of land over which
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the map showed a public right of way had the right to apply to Quarter Sessions to contend what was shown on the map. It was only following the resolution of any outstanding objections that the first definitive map and statement for Cornwall was published. The Map and Statement together provide conclusive evidence of the existence of those public rights of way shown at the ‘relevant date’.
3.5.2. What this document shows in the area of the application route The documents set out at Appendix F-5 show that when Madron Parish Council carried out a Parish Survey in 1951 in which it recorded and described the paths it believed to be public rights of way in its area although it included Footpath 13 Madron, it did not show a link from this right of way to Footpath 59 Penzance. The claimed route has remained unrecorded since.
The surveyors of Penzance Borough Council on the other hand considered the path did exist, which is why they provided a link to it at the parish boundary and described the ultimate destination of the path in the schedule that accompanied the parish survey as ‘Footbridge at Trembath, then through farm to Lands End Road at Trewidden (Buryas Bridge)’ and additionally in the concise information about the path recorded the following: ‘At the footbridge the path continues through Trembath Farm to the west or to the Trereife Cross Roads to the north’.
After the Parish Survey, the County Council prepared the Draft and later Provisional Maps, which showed Footpath 59 Penzance continuing to terminate at the footbridge that marks the parish boundary. When the opportunity arose during consultations that followed the preparation of these maps, no one locally sought to correct the position of Footpath 59 Penzance which is the line that has been recorded on the definitive map since.
3.5.3. Investigating Officer Comments There seems little doubt that Penzance Borough Council understood by recording Footpath 59 Penzance it intended to provide a link via Trembath Farm to the A30 at Buryas Bridge. Why they considered a right of way existed while Madron Parish Council appeared not to, is more difficult to determine. There are however, many similar instances of missing links on the definitive map of Cornwall where surveyors failed to record a right of way over made tracks where that change in surface gave the appearance that it may already be part of the highway network at the time.
3.6. Aerial Photographs Date: 1946, 1988, 1996 & 2005 Ref: CAT
3.6.1. Why we consider this document important Although unable to infer information about the status of a way aerial photographs can sometimes provide useful topographical detail on the
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existence, character and delineation of tracks including physical features on the route. The value derived from aerial photographs improves where the date and time at which the photographs were taken is known and an accurate record of the position and orientation in relation to the relevant route can be provided.
3.6.2. What this document shows in the area of the application route The aerial photographic record set out at Appendix F-6 confirms the claimed route in its entirety was a distinct highway from 1947 through 1988 and appears to be of sufficient width suitable to accommodate vehicles over most of its length. Later vegetation growth means by 2005 the lane is obscured by trees.
3.6.3. Investigating Officer Comments Aerial photos only provide evidence that a track existed over the route as a physical entity, but do not provide evidence of either the type of use that occurred, or whether that use was public, or private.
4. ANALYSIS
4.1. Date That Public Rights Were Brought Into Question
4.1.1. To establish that a right of way subsists under Section 31 of the Highways Act 1980, it is necessary to determine a date that public rights were brought into question so that a period of 20 years immediately prior to this date can be calculated over which public use of the way can be shown to have occurred.
4.1.2. Affected landowners all report that though they had not kept locked gates or erected notices they indicated they had stopped and turned back people using the way. However, they do not provide dates when this has occurred and as both current landowners have taken up occupancy recently, in 2016 and Perkins Farms in 2005, any action they have taken is likely to postdate the submission of the modification order application.
4.1.3. A statement provided by a previous landowner does talk about asking people to leave the property, but this appears to have been done selectively, to have only involved large groups of people, or walkers with a dog causing a nuisance and by his own admission on only a small number of occasions. He does not provide any dates when this is said to have occurred. Indeed Witness 8 reports seeing tending his horse in the yard and Witnesses 5 & 7 having greeted and talked to him, but none reports being prevented from using the path, or being told it was not a right of way.
4.1.4. No other evidence has been provided of actions taken by landowners to indicate that they did not wish to dedicate a right of way.
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4.1.5. With the exception of a recently received User Evidence Form from Witness 11 who does report being informed by the new landowner that there was no right of way, no other user who supplied evidence in support of the application at the time it was submitted mentions a challenge to use by landowners.
4.1.6. The modification order application submitted in 2006 does not appear to have been prompted by any challenge to use, but to update the definitive map and statement by applying to record a missing path linking a Class 4 road (A30) to Footpath 59 Penzance.
4.1.7. In this case, the evidence makes no mention that use of the way was brought into question by, for instance, physical barriers, or warning notices and there is no corroborating evidence to establish when a landowner claims to have used verbal restraint. Consequently, where no direct action has been taken by the landowner to challenge public rights, it is not possible to ascertain the date upon which public rights were brought into question. In such circumstances the Highways Act 1980 (as amended by the Natural Environment and Rural Communities Act 2006) advises that the date when a legally valid application is made should be treated, for the purpose of deliberations, as the date upon which public rights were brought into question. In this case the application was made in early January 2006.
4.1.8. The relevant period of use by members of the public, as of right and without interruption, to establish public rights by presumed dedication under Section 31 of the Highways Act 1980 is therefore 20 or more years prior to the date when rights were called into question in January 2006.
4.2. Evidence of Use
4.2.1. The number of user evidence forms (11) submitted by witnesses claiming use of the alleged way on foot during the relevant period 1986–2006 is relatively limited, and of that evidence that has been taken into consideration use was also relatively infrequent. However all 10 users claimed to have used the path for at least 16 years or more of that period with 4 users over the whole 20 year period. Taking into consideration the length of time witnesses have used it the extent that witnesses claim to have used the route is adequate.
4.2.2. None of the landowners dispute that the way is being used identifying on their evidence forms and in the statements provided that they have witnessed the way been used as a footpath.
4.2.3. Combining figures for the number of users, how frequently they used the claimed route and more particularly the length of time all the witnesses have used the path for, evidence of use is sufficient to show the way has been dedicated as a public footpath.
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4.2.4. Evidence of use is also supported by evidence contained in documentary sources and from Historic England. In this instance deduction for a right of way in the incremental value duty records of the Finance Act 1910 point strongly to the fact that a way of some description existed through the Trembath property.
4.2.5. The Greenwood Map 1827 also shows the route as part of a network of highways. As an early tourist map this was used to show principal routes available to travellers at the time, many which form part of the road network now. Small-scale Ordnance Survey maps and the Bartholomew map also include the way.
4.2.6. The definitive map record indicates that Penzance Borough Council also understood the claimed path to be a right of way, which is why surveyors recorded a footpath that linked to it at the parish boundary.
4.2.7. Expert advice from Historic England indicates medieval wayside crosses are not only important Scheduled Monuments, but will have fulfilled the role of waymarkers. The cross at Trembath is unique in that it is thought to be in its original position locating the crossing point of an ancient east-west route with a north-south path linking the churches and dispersed settlements of Madron with Newlyn.
5. CONCLUSIONS
5.1. 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 is reasonably alleged to subsist along the line of route A-B on the report map. The ‘event’ will have taken place if it can be demonstrated that the evidence shows that public rights have been shown to exist:
• 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. • 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. • having regard to Section 32 of the Highways Act 1980 which states that a court, or other tribunal, before determining whether a way has, or has not been dedicated as a highway shall take into consideration any map, plan or history of the locality or other relevant document tendered in evidence.
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5.2. For the purposes of Section 31 of the Highways Act 1980, it is considered that public use on foot was brought into question by submitting a properly made modification order application claiming rights over the alleged way in 2006.
5.3. No evidence was produced that demonstrated a lack of intention to dedicate a right of way on the part of a landowner during the relevant 20 year period prior to the right being brought into question.
5.4. The available evidence of use by the public of the route on foot between A-B on the report map for a 20 year period prior to the right being brought into question was sufficient to show the way has been dedicated as a public footpath.
5.5. Evidence of contemporary use is supported by historical evidence contained in documentary sources, particularly the incremental value duty records, Greenwood map, Ordnance Survey and other small- scale commercial maps, together with advice provided by Historic England.
5.6. The evidence set out in this report indicates that a public footpath can be reasonably alleged to subsist over route A-B on the report map This satisfies the test for an ‘event’ in section 53(3)(c)(i) of the Wildlife and Countryside Act 1981.
5.7. It is therefore considered that the Council should make a Definitive Map Modification Order to add sections A-B to the definitive map and statement for the former district of Penwith as a public footpath. It is considered that if the Order made by the Council is unopposed, it should be confirmed by the Council and if the Order is opposed, it should be forwarded to the Secretary of State with a request that it be confirmed.