ED/06/44/HQ Public Rights of Way Committee 7 March 2006
Definitive Map Review Schedule 14 Application: Deletion and Downgrading of Bridleway No. 4, Hockworthy (part) and the Addition of a Public Footpath
Report of the County Environment Director
Please note that these recommendations are subject to confirmation by the Public Rights of Way Committee before taking effect.
Recommendation: It is recommended that: (a) no Order be made to which the application relates; (b) the addition of a footpath between points D – B on drawing no. ED/PROW/06/18 be reconsidered if further supporting evidence is submitted during the general parish review of the Definitive Map.
1. Summary
The report examines an application by Mr RM Heywood of Lea Barton, Hockworthy to delete and downgrade part of Bridleway No. 4, Hockworthy and to add a new section of public footpath as shown on plan ED/PROW/06/18. The application was submitted on 5 April 1997 and supported by seven witness statements and a plan of the Hockworthy Estate of 1953.
Additional supporting evidence has been supplied by Mr and Mrs Hannaford, of Hurds Farm situated at the southern end of the bridleway.
2. Background to Application
Confusion about the status of Bridleway No. 4 appears to have arisen when it was signed as a ‘Public Footpath’ in or about 1986/87 by the former Manpower Services Commission. These signs remained in place until the Autumn 1996 when correct ‘Public Bridleway’ signs were erected. This prompted several letters from one landowner, Mr Ward, in October 1996 as he believed the route to be a footpath. In a reply from Devon County Council Mr Ward was informed that the legal status was that of a bridleway and had been so recorded since the Definitive Map was complied in the 1950s.
In further correspondence Mr Ward pressed for the Definitive Map Review to start in the parish which led to Mr Heywood submitting a Schedule 14 Application on 5 April 1997.
Three landowners are involved with this claim. The applicant, Mr RM Heywood, owns land from the north near Bray Cottage to the start of the hedged lane C – B and the family has done so for many years; Mr and Mrs Hannaford who own the section from A - x and have done so since mid 2002; and Mr Ward owns the land x - B and has done so since December 1989.
3. Application
The application submitted by Mr RM Heywood is considered below together with the additional submissions made by Mr and Mrs Hannaford. The witness statements and the Hannaford’s submissions are included in full in the backing papers and should be read in conjunction with this report.
4. Consultations
The following consultations have been carried out:
County Councillor Ray Radford - no reply Mid Devon District Council - no reply Borden Gate Parish Council - full support to reinstatement of bridleway British Horse Society - Strongly object to application Byways and Bridleways Trust - Strongly object to application Country Land & Business Assoc - no reply Open Spaces Society - Object to application Ramblers' Association - object to downgrading & deletion Trail Riders' Fellowship - no reply
5. Matters for Consideration
The application was made under section 53(2) of the Wildlife & Countryside Act 1981 and the applicant considers that an Order should be made under section 53(3)(c)(iii) i.e. “the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows that there is no public right of way over the land shown in the map and statement as a highway of any description, or [that] any other particulars contained in the map and statement require modification ”
It should be noted that in applications for deletion, the Department of the Environment circular 18/90 applies:
“In a right of way, it will be for those who contend that there is no right of way to prove that the map is in error by the discovery of evidence, which when considered with all other relevant evidence clearly shows that a mistake was made when the right of way was first recorded.”
“It is not for the authority to demonstrate that the map is correct, but for the applicant to show that an error was made”.
“The evidence needed to remove a public right of way from such an authoritative record will need to be cogent”.
In the Court of Appeal case of Trevelyan v Secretary of State for the Environment, Transport and the Regions [2001]. Lord Phillips, M.R., stated, “Where the Secretary of State or an Inspector appointed by him has to consider whether a right of way that is marked on the Definitive Map in fact exists, he must start with the initial presumption that it does. If there were no evidence which made it reasonably arguable that such a right 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 that 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 that a balance of probabilities. But evidence of some substance must be put in the balance , if it is to outweigh the initial presumption that the right of way exists. Proof of a negative is seldom easy, and the more time that elapses, the more difficult will be the task of adducing the positive evidence that is necessary to establish that a right of way that has been, marked on a definitive map has been marked there by mistake.”
6. Preparation of the Definitive Map and Statement
The original parish surveys for the Definitive Map in Hockworthy parish were undertaken in October and November 1950 by Capt. Fellows and Messrs. M Heywood, L. Redwood and S Northam. Three bridleways and one footpath were proposed which were included on the Draft Definitive Map of 1 March 1958 on the basis that the rights of way subsisted or were reasonably alleged to have subsisted.
The procedure called for the Draft Map to be advertised in the local and national press and the following advertisement appeared in the Western Morning News of 15 April 1958 in the Public Notices section: “Notice is hereby given that pursuant to part IV of the National Parks and Access to the Countryside Act 1949, the Devon County Council have carried out a survey of all lands within the area of the Borough of Tiverton and the Rural District of Tiverton, in the county of Devon over which a right of way is alleged to subsist and have prepared a Draft Map and Statement showing and describing all public rights of way which in their opinion subsist or reasonably alleged to subsist on 1 st March 1958”.
The notice also stated that a copy of the Draft Map and Statement could be inspected at the residence of the Parish Clerk or the Chairman of the Parish Meeting and invited objections from landowners and the public to the inclusion or omission of routes. No such objections were made to the Draft Map with regard to Bridleway No. 4.
The second stage in the process was the publication of the Provisional Map and Statement when there was a further opportunity for landowners, not the public, to object to the inclusion of routes. This took place between 18 June 1963 and 16 July 1963 and again no objection was made with regard to Bridleway No. 4.
The third and final stage was the publication of the Definitive Map and Statement when landowners could appeal to the High Court on the basis that any requirement of the Act had not been complied with. No such appeals were made and the Definitive Map for Hockworthy took effect with a relevant date of 1 March 1958.
On the basis of the Trevelyan case the presumption that applies is that the proper procedures were followed when the Definitive Map and Statement (DMS) were being prepared, and that there was sufficient evidence existing at that time to support the inclusion of Bridleway No. 4 Hockworthy on the DMS. For this application to succeed there would, therefore, need to be clear, cogent and persuasive evidence to overturn that presumption.
7. Description of the Route
Bridleway No. 4 Hockworthy starts at the county road at point A on plan no. ED/PROW/06/18 from Staple Cross to Holcombe Rogus and proceeds in a generally northerly direction across the court yard of Hurds Farm through a gate and into a double hedged lane. The bridleway continues uphill over a mud and stone track in a north easterly and then easterly direction. The easterly section is along a more even gradient following the contours. At point B the hedges end and the route continues through a gate into a field and follows the northern hedge line, then downhill through two other fields to join the county road at point C. This section of Bridleway No. 4 is approximately 1.1km in length. The remainder of Bridleway No. 4 continues across the county road to Hole Farm and then into Somerset where it also continues as a bridleway.
The bridleway is currently unusable by horseriders between points A – C due to various unserviceable gates and stiles.
The suggested footpath commences on Bridleway No. 1, Hockworthy at point D and proceeds north east across fields to point B where it follows the line as Bridleway No. 4 to point C. This path between points B - D is approximately 330m in length.
The Definitive Statement for the bridleway is given below, with the part relevant to the deletion and downgrading application underlined:
“The path is a Bridleway. It starts at the County road by Hurd’s Farm and proceeds in a north-easterly direction along a cart road and cart tracks and crossing a County road by Bray’s Cottage and continuing northwards through the Old Quarry and then veering north – westwards to Hole Farm. The path passes through the farmyard to the County boundary where it continues as Bridleway 1/2”.
8. Witness Statements
Daphne Charlotte Bruton . Mrs Bruton has lived in Hockworthy House since 1953. At the date of the application in 1997 she states that “I have always believed the path coloured brown on the attached plan to be a footpath and prior to 1958 it was used as a footpath and known locally as such.” Mrs Bruton goes on to say “to the best of my knowledge and belief no public right of way existed prior to 1958 over the track shown coloured green on the attached plan.”
Mr and Mrs Bruton purchased Hockworthy House and Hurds Farm in January 1953, but rented Hurds Farm to Mr Percy Prescott. They remained owners of Hurds Farm until 2002 when it was sold to Mr and Mrs Hannaford.
Mr P Prescott Mr Prescott lived at Hurds Farm from 1955 and was still there when he completed his witness form in 1997. Mr Prescott says “I have always believed the path shown coloured brown on the attached plan to be a footpath and prior to 1958 it was used as a footpath and known locally as a footpath. I was unaware that part of the said path had been designated a bridleway.” He goes on to say “to the best of my knowledge and belief no public right of way existed prior to 1958 over the track shown coloured green on the attached plan.”
Phyllis Mary Heywood Phyllis Heywood has lived at Lea Barton Hockworthy since 1920. Her statement reads “prior to 1958, I walked the footpath shown coloured brown on the attached plan whilst attending Hockworthy School and Hockworthy Church.” She also states “Prior to 1958 the said path was never used as a bridleway nor any part thereof and was always used and known locally as a footpath. I was not aware that part of the said path had been designated a bridleway until bridleway signs were erected recently.”
Nina Mildred Heywood Ms Heywood says on her witness statement that “ prior to 1958, whilst living at Lea Barton, Hockworthy, I walked the footpath shown coloured brown on the attached plan whilst attending Hockworthy School and Hockworthy Church.” She also states “Prior to 1958 the said path was never used as a bridleway nor any part thereof and was always used and known locally as a footpath.”
Christine Mary Heywood Christine Heywood declares in her witness statement that “prior to 1958 whilst living at Lea Barton, Hockworthy, I walked the footpath shown coloured brown on the attached plan whilst attending Hockworthy School and Hockworthy Church.” She also states “Prior to 1958 the said path was never used as a bridleway nor any part thereof and was always used and known locally as a footpath.”
Hazel Lucy Bray Hazel Bray lived at Home Farm, Hockworthy from 1958 to 1988. She states “During that time the path shown coloured brown on the attached plan, which crossed land previously owned by myself and my late husband, was known locally as a footpath and used as a footpath.” She also says “I was not aware that part of the said path had been designated as a bridleway and to the best of my knowledge and belief the said path was never used a bridleway between 1958 and 1988.”
William John Vaulter William Vaulter lived at Hole Farm Hockworthy between 1947 and 1979. He states “During my occupation of Hole Farm the path shown coloured brown on the attached plan and which ran across land forming part of Hole Farm was used as a footpath and was locally known as a footpath.” Mr Vaulter goes on to add “to the best of my knowledge and belief the said path was never used a bridleway between 1947 and 1979 and I was unaware that part of the said path had been designated as a bridleway. Neither did I receive any notification that the path was going to be so designated and neither was I aware of any public notices to that effect.”
Comment: The original parish survey for Bridleway No. 4 was undertaken on 10 November 1950 which pre dates knowledge of the route by Daphne Bruton, P Prescott and Hazel Bray.
Mr Vaulter moved to Hole Farm in 1947, just three years before the survey was undertaken. His knowledge of route at that time is likely to have been limited given that Hole Farm lies to the north of the section of bridleway in question.
The three statements of Phyllis Heywood, Nina Heywood and Christine Heywood are from members of the same family who all lived at Lea Barton at the time the Definitive Map was being prepared in the 1950s. Mr M Heywood, who was jointly responsible for the original parish surveys the 1950s, also lived at Lea Barton and is related to them all. Although the survey for Bridleway No. 4 was undertaken by Capt. Fellows, it would be likely that Mr M Heywood would have been aware of the proposal to record Bridleway No. 4 and would have had an opportunity to object to its inclusion on the Draft and Provisional Definitive Maps if he disagreed with the route or its status. Similarly, no objection was made to Bridleway No. 4 by Phyllis, Nina or Christine Heywood.
With regard to the statements that Bridleway No. 4 has been used as a footpath, this is not inconsistent with its status as a bridleway as both walkers and horse riders are permitted to use such routes.
The route coloured brown as mentioned in all the statements is the line C – B – D on plan No. ED/PROW/06/18.
9. Submissions by Mr and Mrs Hannaford of Hurds Farm
Mr and Mrs Hannaford have examined various historical records and their property deeds. Their arguments in support of the application are summarised below in bold typeface with our comments in normal typeface. Full details of Mr and Mrs Hannaford’s submissions are included in the backing papers. N.B. The spelling of Hurds Farm also appears as Herds or Heards Farm on some documents.
9.1 Tithe Map and Apportionment 1842
The areas apportioned to the House Building & Yard has never changed indicating that as far back as this date the road 703 never ran through the farmyard and was always separate from the farmyard and never a part of it. The Tithe Map clearly shows track no. 703 leading from Hurds Farm petering out after field no. 705 where it turns in to a footpath leading through woods to exit by cottage at road. Both wood and steep incline would have made it unsuitable as a cart track.”
Tithe Maps were drawn up under statutory procedures laid down by the Tithe Commutation Act 1836, by surveyors employed by local landowners. They would also have been subject to local publicity, which would be likely to have limited the possibility of errors being made. The roads were sometimes coloured and the colouring generally indicates carriageways or driftways. Public roads were not titheable.
The Tithe Apportionment Book gives number 624 to the house, buildings & yard and describes 703, as a road. The route from Hurds Farm along the hedged track is marked on the Tithe Map in the same manner as it appears on today’s Ordnance Survey maps. It is not possible to deduce that the road marked 703 was a continuation of the public highway network. The fact that the route is not marked as continuing through the house, buildings and yard is of no relevance. Indeed, the route of the nearby Bridleway No. 1, Hockworthy is recorded in the same manner.
The maps give good evidence of the existence and alignment of the route in 1842. It is a reasonable indication that some public rights might have existed over it, although the surveyors were solely concerned with identifying titheable land and not defining public rights of ways. Tithe maps do not offer confirmation of the precise nature of the public and/or private rights that existed over the route shown.
9.2 Ordnance Survey Mapping
The 1906 Ordnance Survey map 6 inch clearly shows a footpath leading from the church and continuing to Bray’s Cottage. The track is completely segmented by lines from where it starts to where it finishes showing it does not go through the farm yard. The path is clearly marked F.P. (footpath) shortly after it changes direction at the end of the track. There is no indication of a footpath coming from Hurds Farm whereas the continuation of Bridleway No.4 is shown through Hole Farm and marked as B.R. (Bridle Road).
All Ordnance Survey maps from the 1880s First Edition 6” to 1 mile to modern day clearly show the existence of a hedged lane between Hurds Farm and point B along the line of Bridleway No. 4. Where it passes through the yard of Hurds Farm it is depicted by pecked lines. The claimed church path between points D to B is shown by double pecked lines.
The Ordnance Survey surveyors recorded the physical features that they found on the ground and it was practice to record any gates in the closed position. Such routes were usually only recorded if they were well worn.
The footpath notation F.P. is likely to be an observation by the surveyor on the day and attaches no legal status to Bridleway No. 4. Indeed, Bridleway No. 1, Hockworthy to the south, is drawn in exactly in the same manner as Bridleway No. 4.
The continuation of Bridleway No. 4 to Hole Farm is drawn in the same way but with the notation B.R. This may have been as the track was surfaced with stone due to the nearby quarrying activities. However, no legal status can be attributed to the notation B.R.
9.3 Finance Act 1910 - Inland Revenue Field Valuer’s Report of Hockworthy
Mr and Mrs Hannaford make the point that no reduction was made in the valuation undertaken for the bridleway between points A – B, but a reduction was made for a footpath along the line y – B – C. A sum of 10 pounds was, however, allowable for Hurds Farm, but only for a private right of way over the courtyard.
The survey undertaken as a result of Finance Act 1910 was to ascertain the value of land for the purpose of taxation. The survey was conducted on behalf of the Inland Revenue using, in the main, local surveyors. Landowners completed forms providing information about their landholdings. There were heavy penalties if false information was provided. The surveyors prepared maps showing the different landholdings or hereditaments. Field books partnered the maps detailing the hereditaments and the tax liabilities.
The fact that no reduction was made in the valuation for the lane running north from Hurds Lane is of little significance. Many of the recorded public rights of way in the county were similarly not referred to in the Finance Act surveys. Indeed, no reduction was made for nearby Bridleway No. 1.
A reduction was made for a footpath running along the line y – B – C, but not for the section D – y although reference is made to a church path crossing a field.
In summary, the Finance Act surveys and field books can provide useful supporting information, but the references to public or private rights of way was incidental to their main purpose of land valuation. The Definitive Map surveys undertaken some 40 years later were, on the other hand, carried out for the express purpose of determining public rights of way and greater reliance must be placed on the formal legal record.
9.4 Property Deeds for Hurds Farm from 1907 – 1973
Mr and Mrs Hannaford suggest that there are no descriptions of the bridleway recorded in their deeds.
The primary purpose of deeds is to record title and details of private rights of way. It is unusual for them to record details of public rights of way. The lack of a reference to Bridleway No. 4 is of no relevance. (If deeds could be regarded as a reliable record of public rights of way then it would be unnecessary to undertake Search enquiries when property changed hands.)
Mr and Mrs Hannaford point out that their deeds identify a private right of way over their courtyard along the line of Bridleway No. 4. They make the point that it would be unnecessary to record a private right of way if a public right of way already existed.
Private and public rights of way can co-exist, for example, a private vehicular right may run along the same line as a public bridleway and there are many examples of this in the county. If the public right of way is then either diverted or extinguished (as is proposed with the current application) the private right of way would be unaffected and no dispute should arise.
1934 Extract from Requisition on Title for Herds Farm
Question 9 asks “Are there any rights of light, water or drainage, or any rights of way public or private or any easements affecting the property and not disclosed by the abstract? If so particulars should be furnished. The reply states;” The Purchaser is entitled to a right of way from the Main Road through the farm yard and over the road no. 703 to certain fields which belong to him. There is a Church Path over the same road to Hockworthy Church”.
These deeds confirm road no. 703 (the route of the bridleway running north from point A) as a private means of access to fields, but the above comment regarding public and private rights co-existing applies. The mention of a church path over the same road suggests that the road extended to point C near Brays Cottage.
Question 12 of the same document asks “Have the roads on or adjoining the property been taken over by the local authority? If not, is there anything owing to the local authority in respect of any such roads? The reply states “The road abutting on the property is a highway maintained at public expense. The private road No.703 has not been taken over. We do not know of any thing owing to the local Authority in respect of such road”.
Road no. 703 was not officially recognised as enjoying public status until 24 years later when the Draft Definitive Map was published. Accordingly, the answer to the search enquiry was correct in referring to it as private.
1954 Conveyance document of 27 January The Conveyance of September 1953 gives details of Hurds Farm and describes ordnance numbers 312 and 421 as an “Accommodation Road”. These are the numbers allotted to the entire length of the hedged lane and 312 corresponds to road 703 as described by the Tithe Map.
An accommodation road in this context is considered to refer to a private means of access. However, as has been mentioned before this is not inconsistent with such a route carrying public rights of way, and there are many examples within Devon of such routes carrying public footpaths or bridleways.
Hurds Farm in Probate Mr and Mrs Hannaford mention that the estate containing Hurds Farm was in probate in 1954 and therefore the landowner would have been unaware of the bridleway route.
The property was purchased by C.M.K. Bruton in January 1954. The Draft Map was not published until 1958 giving ample time for the new owner to assess usage of the route and to object to its inclusion. As has been pointed out previously no objection was made at the Draft, Provisional or Definitive stages.
9.5 National Parks and Access to the Countryside Act 1949 – Preparation of the Definitive Map and Statement
Mr and Mrs Hannaford’s concern is that the review process for Hockworthy parish was not carried out correctly in 1950 and the inclusion of Bridleway No. 4 over Hurds Farm was an error. They suggest that as Capt. Fellowes had turned down the parish Chair in April 1947 on the basis that he had not been in the area long. Consequently, that he lacked the local knowledge to conduct a parish survey.
The surveys were carried out over three years later: Bridleway No. 1 was surveyed by Capt. Fellowes and Mr M Heywood of Lea Barton Hockworthy; Footpath No. 2 was surveyed by Mr L Redwood and Capt. Fellowes; Bridleway No. 3. was surveyed by Mr L Redwood, Mr S Northam and Capt. Fellowes; Bridleway No. 4 through Hurds Farm was surveyed by Capt. Fellowes.
It is evident that the parish went to some lengths to co-ordinate the surveys and that there was good collaboration with several parishioners. Small parishes such as Hockworthy had the draft maps and forms held with the parish Chairman as agreed with the District Council and Surveying Authority.
In notes from Tiverton Rural District Council (1950s) discussing various references for checking paths there is a heading “Defence Regulation 62 (5a). Under this heading is written “Hockworthy Parish. Permission was given during the war for a portion of path No.4 (Hurds Farm) to be permanently ploughed up under the provisions of Defence Regulation 62 (5a). These powers have now lapsed but everything appears to be in order as the Parish Council have claimed this path”.
This would explain part of the description written by Capt. Fellowes …”turns south westwards across 2 more formerly grass fields that were ploughed up some years ago, the track here is practically non existent” and provides further evidence that he was diligent in undertaking the surveys.
9.6 Local Authority Search 2002
Mr and Mrs Hannaford say that when they purchased Hurds Farm in 2002 their solicitor provided them with a plan which showed a green line (indicating bridleway) only within the area they were proposing to purchase. The continuation of the route outside the area in question was marked as a footpath. They therefore understood that the bridleway was a cul-de-sac and not a through route.
In answering search enquiries it is standard practice only to provide information within the specific area requested. The reference to footpath outside of the area being purchased was to an ‘FP’ symbol which appears frequently on Ordnance Survey maps. All OS maps carry a disclaimer to the effect that such depiction is no evidence of the existence of rights of way.
10. Conclusions
In deciding this application the key question to be answered is whether there is clear cogent and persuasive evidence to overturn the presumption referred to at the end of paragraph 6 of this report and which led to the lawful recording of Bridleway No. 4, Hockworthy on the relevant date of 1 st March 1958, the date of publication of the Draft Map and Statement. All subsequent events such as the erection of a ‘Public Footpath’ sign in the 1980s and the fact that the route has been unusable by horses due to unserviceable gates and stiles are irrelevant.
There is nothing to suggest that the procedures for establishing the Definitive Map were followed incorrectly and there is no evidence that any challenge was made to the inclusion of Bridleway No. 4 when the Draft, Provisional and Definitive Maps were advertised.
It is not considered that the witness or documentary evidence, either individually or when taken as a whole, are sufficient to overturn the presumption that applies in this case. It is not considered that there is any sufficiently clear, cogent or persuasive evidence to lead members to conclude that an error was made when the Definitive Map and Statement were prepared.
With regard to the addition of a footpath along the line D – B, the evidence in support of the claim is similarly insufficient to justify the making of an order. However, the general parish review for Hockworthy will commence shortly and if further supporting evidence is forthcoming the matter may be reconsidered.
Edward Chorlton
Electoral Division: Tiverton Rural
Local Government Act 1972
List of Background Papers
Contact for enquiries: Richard Butler
Telephone No: 01392 382251
Background Paper Date File Ref.
Correspondence file: Hockworthy 1997 - 2006 ES/DMR/Hock
mj100206pra sc/bridleway no 4 2 240202