EEC/06/181/HQ Public Rights of Way Committee 14 November 2006

Schedule 14 Application Claimed Public Footpaths: Burgh Island, Bigbury, South Hams

Report of the Director of Environment, Economy and Culture

Please note that the following recommendations are subject to consideration and determination by the Committee before taking effect.

Recommendation: It is recommended that: (a) a Modification Order be made to modify the Definitive Map and Statement by adding to them footpaths on the routes over Burgh Island between points A-B- X-C-E-G-F-H-I-B, C-D, G-D-H, I-J and K-X as shown on drawing no. ED/PROW/06/136; (b) subject to confirmation of the alternative section I-B-A an order be made under Section 118 of the Highways Act 1980 to extinguish route I-J as no longer needed.

1. Summary

This report relates to a Schedule 14 application, made by Bigbury Parish Council, to record footpaths to the summit and a circular path around the west side of Burgh Island in the parish of Bigbury (the claimed routes). In addition three other routes are discussed.

2. Background

On 13 July 1999, Bigbury Parish Council submitted an application under Schedule 14 of the Wildlife and Countryside Act 1981, to modify the Definitive Map and Statement for the Parish of Bigbury by adding two footpaths, one to the summit of Burgh Island and one circular route around the west side of the island. The application was accompanied by a certificate of service on the landowner, a plan showing the claimed routes, a photographic record of the claimed routes, newspaper articles relating to public access on the Island and user evidence forms. In their letter supporting the application the Parish Council write “The appropriate application forms are enclosed together with documentary evidence of the usage with 8 witness statements. Although we feel that the historical reference should be more than sufficient to support this application.”

This report considers the routes claimed by the Parish Council. However, during the course of our investigations it has become apparent that a number of additional paths have also been used by the public. This report therefore deals with all potential claims on the island, which are described in section 4. A couple of connecting paths have developed in more recent years. These paths have not been used for a sufficient period of time to be considered for presumed dedication under statute or common law and are not shown on the attached plan.

3. Other Matters

The then landowner was Mr Tony Porter of Burgh Island Hotel. Bigbury Parish Council made the application after they had learnt that Burgh Island was up for sale. Access did not appear to be prevented so the application remained dormant in line with the Council’s policy of dealing with s.14 applications as part of the parish-by-parish review.

The island was sold in 2001 to Burgh Island Ltd. (Mr Tony Orchard and Ms Deborah Clark). In the interim, there was a proposal to record Burgh Island in the mapping by the Countryside Agency to bring in the right of access to open country under the Countryside and Rights of Way Act 2000. The landowners successfully appealed against the island’s inclusion. Sometime around Easter 2005, notices were placed on part of the claimed routes indicating that there was no public right of way. Although the public continued to use the routes there was considerable local concern and adverse publicity which resulted in the submission of an increased number of user evidence forms in connection with claimed use by the public of routes on Burgh Island. With it having become a contentious issue the application is now being considered ahead of the general review process.

As a result of investigation of the Schedule 14 application evidence was discovered of use of three other main routes, which are also discussed in this report.

The following consultations have been carried out and the responses were as follows:

County Councillor W Mumford – responded without detailed comment South Hams District Council – support the application Bigbury Parish Council – support the application South Devon AONB – responded with detailed comment Country Land and Business Association – no reply National Farmers’ Union – no reply Ramblers’ Association – support the application British Horse Society – no reply Byways and Bridleways Trust – support the application Open Spaces Society – no reply Trail Riders Fellowship – support the application

4. Description of the Routes

The routes described are shown on the plan ED/PROW/06/136.

Existing recorded route

Burgh Island is linked to the mainland by Footpath No. 10. The footpath is tidal, leading from across the sand from Bigbury-on-Sea to the main island slipway. It then runs in a westerly direction across the northern side of the island to Herring Cove.

Claimed routes

Circular route (A-B-X-C-E-G-F-H-I-B):

It starts from Footpath No. 10, Bigbury on Burgh Island, at point A, approximately 50 metres west-northwest of the Pilchard Inn and proceeds southwestwards up a short flight of steps of timber construction to point B. From point B the route continues generally westwards then southwards up around the western edge of Burgh Island. At point E the route bears generally southeastwards to point G where it bears east-southeastwards and continues around the cliff top on the southern edge of the island. From point F the route turns northeastwards then north-northeastwards (point H) and continues in this direction following a fence line back down to point B.

Route to summit (C-D):

The route proceeds south-southwestwards from point C on the cliff above Herring Cove to the remains of St Michael's Chapel, also known as the Huers Hut, at point D on the island’s summit.

Additional routes

Route across summit (G-D-H):

The route proceeds generally eastwards from point G, on the circular route, across the summit of Burgh Island around the Huers Hut (point D) and a covered reservoir to rejoin the circular route at point H.

Alternative route from summit on claimed circular route (I-J):

At point I the route proceeds generally northwestwards (through fence into hotel gardens), passing to the west of the tennis court and joining Footpath No. 10 at point J approximately 20 metres west-northwest of the Pilchard Inn.

Route from Herring Cove to join claimed routes (K-X):

From Footpath No. 10 at Herring Cove, point K, the route proceeds generally southeastwards along the cliff top to join the circular route at point X.

5. Basis of Claim

Wildlife and Countryside Act 1981, Section 53 (5) enables any person to apply to the surveying authority for an order to modify the Definitive Map. The procedure is set out under WCA 1981 Schedule 14.

Common Law presumes that a public right of way exists if at some time in the past the landowner dedicated the way to the public either expressly, the evidence of the dedication having since been lost, or by implication, by making no objection to the use of the way by the public.

The Highways Act 1980, Section 31 (1) states that where a way over any land, other than a way of such a 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 highway unless there is sufficient evidence that there was no intention during that period to dedicate it.

The Highways Act 1980, Section 32 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 such 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.

Wildlife and Countryside Act 1981, Section 53[3][c][i] enables the Definitive Map to be modified if the County Council discovers evidence which, when considered with all other relevant evidence available to it, shows that a right of way not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates.

Wildlife and Countryside Act 1981, Section 56[1] – the Definitive Map and Statement shall be conclusive evidence as to the particulars contained therein but without prejudice to any question whether the public had at that date any right of way other than those rights.

6. Location and History

Burgh Island is situated in Bigbury Bay about 300 metres from the mainland at Bigbury-on- Sea. It is accessible on foot across the sands three hours after High Water until three hours before the next High Water as a general rule. An existing public footpath, Footpath No. 10, Bigbury, leads from Bigbury-on-Sea across the sands to Burgh Island and along the northern side of the island to Herring Cove.

The island was originally identified as St Michaels or St Michaels Rock, named after the chapel at the summit. It then became known as La Burgh in the 15th century then Burrow or Borough Island until eventually acquiring its present name. Nothing now remains of the 14 th century chapel and the present ruin at the summit is thought to be the remains of a huers hut. The huer signalled the approach of shoals of pilchards to fishermen on the shore below. The island once had a large pilchard fishing industry but this declined in the middle of the 19 th century. The Pilchard Inn remains as a clue of the island’s past. The building is 14 th century and thought to have been built at a time when a monastic community lived on the island. It is believed that a large building, possibly a monastery, existed where the hotel now stands.

The first ‘hotel’, a small wooden summer house was built for George H Chirgwin – a famous music hall entertainer – circa 1896. The island then had several fishermen’s cottages and the pub. The current hotel was built in the late 1920s by Archibold Nettlefold.

There are three other freehold properties on the island under different ownership from the hotel itself.

7. Documentary Evidence

Benjamin Donn’s one inch to the mile map of Devon 1765

Donn is the first to identify the island by the names Borough or Bur Island . Previously it had been referred to as St Michaels or St Michaels Rock in reference to the chapel. A building at the summit is identified as Old Chapel . A building is also shown in the location of the Pilchard Inn. There are no footpaths shown at this scale.

OS Map 1 st Edition, first published 1809 from 1804-1805 surveys with later revisions, 1 inch to a mile.

Burgh Island is identified as Borough Island. Buildings shown on the northern side of the island are indicated as Fishery . A building is also shown at the summit. There are no footpaths shown at this small scale.

OS Map 1st Edition, 1888 – 1890, 25 inch to a mile

Burgh Island is identified as Borough Island. Small buildings are shown in the vicinity of the Pilchard Inn, which is marked. The huers hut and remains of St Michaels Chapel are identified at the summit and a lime kiln on the eastern side of the island. Footpath No. 10, Bigbury to Herring Cove is shown, as is a path marked F.P. leading to the southeastern corner of the island. The claimed paths are not shown at this time.

OS Map 2 nd Edition, 1904 – 1906, 25 inch to a mile

As above.

OS Map 1952, 1:2500

The current hotel buildings, tennis court, a croquet lawn and reservoir are now shown. A path around the perimeter is shown and marked F.P. A spur is also shown leading to the huers hut from the perimeter path (G-D).

Current OS Mapping

The latest large scale OS mapping shows worn paths (marked path (um)) on the routes A-B- X-C-E-G-F-H-I-J and G-D-H.

Sale Particulars 1906

‘Burrough Island’ was put up for sale as one of several lots in the parish of Bigbury in 1906. The sale particulars describe the island as having ‘long been a popular holiday resort, which is every year becoming more and more frequented by the public’. It also refers to the Pilchard Inn as the only licensed premises within a considerable distance.

Finance Act 1910

The whole of Burgh Island comes within hereditament 24 with one owner and occupied by Mrs Bardens. It is described as containing an area of 20 acres of unimproved grazing and also a fully licensed house known as the Pilchard Inn. An item for ‘Public rights of access to island - £1 @ 20 years purchase = £20’ is included in Charges, Easements and Restrictions affecting market value of Fee Simple, with a deduction for a ‘public right of way or user’ of that amount. It indicates that there was considered to be public rights of access to Burgh Island. This may be interpreted to include the linear route now recorded as Footpath No. 10, or any other route, as a ‘public right of way’, as well as a ‘public right of user’ over open land. There is no distinction as to whether the deduction relates to either one or both terms.

Conveyance 1914

The Title Register for Burgh Island refers to a conveyance of the land dated 14 May 1914 made between John Thomas Johnson (Vendors) and Rose Chirgwin (Purchaser). The conveyance contained restrictive covenants including that the Purchaser, her heirs and assigns ”will not interfere with or prevent such free access to the hereditaments hereby conveyed as has been enjoyed heretofore by Visitors and the general public.”

Bigbury-on-Sea Publicity Guide 1914

Burgh Island is described as being the property of Mr G H Chirgwin. The only buildings at that time being the Pilchard Inn and the Burgh Hotel. The guide notes that magnificent sea views are obtained from the summit and that seats and swings for the convenience of visitors have been placed about. With regards to access, the guide indicates that boats can land at all times, including steamers from Plymouth and Salcombe. The Island is described as being ‘open to visitors’.

Newspaper Article 1929

An article in a local newspaper, The Gazette, dated 14 June 1929, reports the meeting of the Kingsbridge Rural District Council (referred to above) at which public rights over Burgh Island were discussed.

It reports that ‘For generations the island had been open for the enjoyment of the public’ that ‘fencing had been put up, enclosing the island, and it would soon be cut off from the public’ . The parish wanted to know what their rights were. The clerk of the RDC states that there was ‘no doubt that the public had used the island from time immemorial.’ Whether the island was the same category as ‘moorland’ rather than it being a question of rights of way also appears to have been debated. It was suggested that the Council get in touch with the society who looked after public paths.

Kingsbridge Rural District Council Minutes

6 June 1929 – The clerk was directed to communicate with the Commons and Footpath Preservation Society as to the rights of the public with regard to Burgh Island.

22 June 1929 – A letter was received from Mr A Nettlefold concerning a report in a newspaper of the last Council meeting. He wished to inform the Council that they had been ‘inadvertently informed as to the work he proposed to carry out on Burgh Island’ and giving particulars of what he intended to do. A letter was also received from the Commons and Footpath Preservation Society on the matter.

17 August 1929 – A letter was received from the Secretary of the Commons, Open Spaces and Footpath Preservation Society, who had visited Burgh Island. Also that ‘the letter the Council had received from Mr Nettlefold was reassuring and it would not be a case for fighting.’

The correspondence referred to above has not been discovered.

Newspaper Articles 1949 & 1965

Copies of articles submitted with the parish council’s application indicate that access to the island was restricted during WWII. An article of 1965 however indicates that the island is again accessible.

Aerial Photographs

The 1946 – 1949 RAF photography shows a path right around the perimeter of the island, now part of the claimed circular route. A path is also visible leading from Footpath No. 10 at Herring Cove to join the claimed routes (K-X) and another across the summit (G-D-H). It is not clear from the photograph whether any direct path to the summit exists at this time.

An aerial photograph from a private collection, taken July 1959, shows part of the claimed circular route (A-B-X-C-E-G-F-H-I) linking with a path across the centre of the island, to the west of the tennis court (I-J). A path is also shown leading directly to the summit from the cliffs above Herring Cove (C-D) and a link from Footpath No. 10 at Herring Cove (K-X) and across the summit (G-D-H). Several other connecting paths are also visible at the summit.

An Ordnance Survey aerial photograph, taken July 1983, again shows a circular route (A-B- X-C-E-G-F-H-I-J) on the western side of the island, the claimed route to the summit (C-D), a path from Herring Cove to the circular route (K-X) and a route across the summit (G-D-H).

A 1999 OS aerial photograph shows that the claimed circular route (A-B-X-C-E-G-F-H-I-B) has been established on its present alignment with steps clearly visible on section I-B. A path is still visible on the original line I-J although indistinct at the northern end. Also indistinct is the claimed path to the summit (C-D) at the northern end, although visible upon close examination. A new connecting path to C-D has developed leading from a point between points B and I on the circular route and this appears to be more worn at this time. Also visible is the route across the summit (G-D-H) and from Herring Cove (K-X). A minor connecting path is also visible avoiding the cliff edge at point E.

2002 OS aerial photography shows the claimed routes clearly, together with both the spur from Herring Cove (K-X) and across the summit (G-D-H). Again a path is still visible along the line I-J. An additional connecting path has developed on the eastern side of the circular route forming a zigzag route.

Bigbury Parish Council Minutes

Parish Council minute books and correspondence are available from 1987 onwards.

6 September 1988 – Mr Porter enquired whether there would be any objection to him putting sheep on the island. 9 June 1998 – It was reported that Burgh Island had been put up for sale. Mr J Bennett asked that the Parish Council endeavour to get Footpath No. 10 registered as going up to the top of the island via the steps. 14 July 1998 – 13 October 1998 – Application to record footpath(s) on Burgh Island discussed.

10 November 1998 – Mr Porter very unwilling to dedicate footpath stating that it would hinder negotiations and entail using a solicitor. Noted that to date all prospective purchasers had expressed their willingness to maintain the status quo. 11 May 1999 – Parish Council discussed making an application. 8 June 1999 – Mr Porter had given an assurance that every prospective buyer is asked to keep footpath to top open on a ‘gentleman’s agreement’. Parish Council agreed to pursue application. 12 June 1999 – Letter from parish council to Mr Porter informing him that the parish council had agreed to make a formal application for the path to the top of the island. Footpath referred to as one ‘which has been used through the kindness of the owners of the hotel for many decades.’ 13 July 1999 – Application to DCC prepared. 8 February 2000 – Mr Porter reported that Heritage Coast had contacted him to ask if they could put steps on the island. 10 April 2002 – Parish Council to ask Tony Orchard (Burgh Island Hotel) if he had any objections to their request to make the footpath to the top of the island a public footpath. Mr Orchard responded on 8 May 2002 that he could not give an answer at that stage.

South Devon Heritage Coast Service

The day-to-day maintenance of public rights of way and public access to the countryside in the South Devon coastal parishes was formerly managed by the South Devon Heritage Coast Service on behalf of Devon County Council. The arrangement began in the 1980s and continued with the South Devon Coast & Countryside Service from 1997 until maintenance was taken back by DCC in 2003.

Rangers for the Service undertook maintenance work on the paths of Burgh Island, at public expense. In his response to the consultation, Robin Toogood, manager of the Heritage Coast Service from 1994, states that this was in view of the fact that, although the paths were not recorded as definitive rights of way, they were heavily used and popular paths in regular use by the public. Their work concentrated particularly on the repair and maintenance of section B-I, where a flight of steps was prone to gullying and erosion.

In September 2001 BCTV volunteers, working for the Coast & Countryside Service, undertook maintenance works on the claimed circular route, including the replacement of steps up from the kissing gate. They also erected post and rail fencing across a section of the path B-I to deter use the eroded flight of steps and constructed a diagonal path as an alternative.

8. Supporting Evidence

User Evidence

Eight User Evidence Forms were submitted with the s.14 application in July 1999 in connection with the claimed routes. A further 163 forms were received following publicity in 2005. In total 171 forms have been received, covering use by 187 individuals.

Twenty-two local users were contacted to clarify details for overall use of the paths on Burgh Island. Their supplementary statements are included with the user evidence forms in the appendix to this report.

135 forms relate to use by 150 people of a circular route around the western half of the island, mostly in combination with two other worn paths leading from Herring Cove and across the summit. Of these twenty-seven also indicate use of the claimed route to the summit and thirty-five indicate a central path which includes part of the claimed route to the summit in conjunction with a more recent connecting path. Twelve further forms only indicate a route following the boundary of the hotel grounds and across to the Huer’s Hut. The earliest use dates from 1926 onwards and relates to a path around the edge of the island.

Many users have indicated the section of path J-I, leading up from the recorded footpath adjacent to a small building, formerly a café. Several users recalled that this path was moved slightly to the current alignment when fencing was erected to keep sheep out of the hotel grounds. However, most do not appear to have been consciously aware that the alignment of the path had changed. Those contacted clarified that they always followed a worn path along the hotel boundary fence. Therefore, where such use pre and post-dates 1989 it relates to both I-J and I-B-A respectively.

All have used the paths for pleasure with many referring to the views from the summit as a point of interest and a tourist attraction. The walks appear to have been popular with families, both locals and regular holiday makers. Most refer to the paths as being well worn and clearly defined and give long and/or continuous usage as their main reason for believing the paths to be public. All believe that the landowner(s) was aware of public use, being able to see people on the paths daily.

No users report seeing any notices on the claimed paths until around Easter 2005 when notices were placed on barriers across the section of path B-I, indicating no right of way and asking users to follow the zigzag diversion. Forty-one users refer to these notices.

Four users remember seeing a notice near Herring Cove indicating no right of way or no admittance, placed there by the previous owner Mr Porter. One user believes that the path K-X turned off the recorded path prior to the notice, which faced seaward. Three of these users believe that it related to dangerous cliffs, one commenting that the owner put it there to cover himself in case any fell over the cliff. They took no notice of it. There is no notice there now, although fixtures are evident and suggest a notice did face seaward. Forty-one other users recall notices warning of dangerous cliffs/rock falls etc.

Other notices referred to by many users relate to the immediate hotel grounds, clearly indicating that they were private and for hotel guests only, specifically on a stile or gate leading into the grounds at the top of the boundary fence. Forty-two users refer to such notices. Many comment that there has always been a clear distinction between “private” hotel land and the rest of the island, as marked by a fence.

Several users also refer to notices such as “Welcome to our lovely island. Please do not leave litter or pick flowers” and other notices indicating that the paths on the west side of the island were public.

There are no gates or stiles on the claimed paths, although there is a kissing gate installed on the definitive path immediately before the claimed path leaves it at point A. Many users refer to a stile at the bottom of the hill, later replaced by a kissing gate. They also refer to a stile, and later a gate, at the top of the island leading to the hotel.

Twenty-three users refer to minor diversions to avoid or prevent erosion but do not specify where on when. Seven specify that the path down from the chapel/by the hotel was diverted but not when. Five note that the path was diverted in 2004/05 to prevent erosion, five that it was diverted, or may have been diverted, when the boundary fence was moved and three when the Coast & Countryside Service put steps in.

Five evidence forms have been completed by guests of the hotel and their use may therefore be considered as permissive. However, all believed the paths to be public having observed use by non-guests. Four guests state that the owners were aware of or accepted public use. Three used them without objection when not staying at the hotel, two of these making a distinction between the ‘private’ hotel grounds and the paths over the rest of the island.

Twelve user evidence forms were received from people who used the routes whilst employed at the hotel. Their use during that time, and subsequent use, may be considered as having been with the permission, actual or implied, of the owner(s). Of these however, four also used routes prior to their employment. Such use can therefore be counted as of right. Eight state that they were given no instructions by the owner(s) as to use of the routes by the public. Four comment that the public were able to walk anywhere other than in the hotel grounds.

Other than previous employees or guests, three other users claim to have had permission to use the routes.

One user evidence form was received from a previous owner of Burgh Island, Mrs Waugh. Her evidence as a former landowner is discussed below.

Twenty-four forms were not sufficiently clear as to where their use relates and have not been included in this analysis.

Evidence of Previous Landowners

Mrs Susan Waugh Mrs Waugh completed a landowner evidence form and provided supplementary information in the form of a statement.

Mrs Waugh owned the island from 1967 to 1981. She and her late husband had previously spent holidays at the hotel (then run as self-catering flats) from 1961 and worked in the Pilchard Inn for several years before buying the island. Mrs Waugh sold the island to Landstone Estates in 1981 but continued to lease it from them for three years and then stayed on until 1985 as caretaker.

From her first visit and during her ownership Mrs Waugh believed the paths on the west side of the island to be public. She based her belief on the fact that so many people used them, following the worn paths. She remembers there being a path straight up by the hotel fence, one around the edge from Herring Cove to the top and another path straight up from Herring Cove to the top avoiding the edge.

The hotel area was fenced and entered either via a stile at the top or the main entrance near point J. The stile had a notice saying “private – hotel residents only” which Mr & Mrs Waugh replaced during their ownership. They also had a private sign on the flat sunning area to the left of the slipway. They considered the immediate hotel grounds to be private and would direct people back to the stile if found wandering in this area but never queried people using the paths on the rest of the island. They did put up signs around the edge of the island saying “these cliffs are dangerous – please take care” but quickly took them down when they were advised that they could be liable if anyone went over. They also put up signs asking people not to pick the wildflowers. Mrs Waugh adds that she thought, and still thinks, that everyone should be able to enjoy the beauty of the island and the views that it offers.

Mr Tony Porter Mr Porter completed a landowner evidence form relating to his ownership of Burgh Island between 1986 and 2001. He also provided supplementary information in the form of a statement.

Mr Porter states that he and his wife were not surprised to see people walking around the island when they first bought it and realised that was what people had always done. They were happy with the way it was as walkers would also use the pub, which they operated. They observed people using the worn paths most days. A stock proof fence was put in a few years after they bought the hotel when a local farmer grazed sheep on the island. Mr Porter thinks that the end of the path may have been altered slightly as a result of the new fence and that it also had the effect of fencing off the helipad. Previously people had used the helipad area for picnicking.

They put a notice at the main entrance saying “Welcome to our lovely island. Please do not leave litter or pick the flowers”. Three or four years after buying the hotel they also put a notice at Herring Cove, for insurance purposes, warning of dangerous cliffs because someone had fallen off and been killed. Mr Porter thought it possibly said “no right of way” but he cannot remember the exact wording. He said they put it there on the instructions of their insurance company to cover themselves and did not intend it to deter walkers.

The Heritage Coast Service approached them to do work on the island and would then call each year. The Heritage Coast Service put in steps and maintained the fences.

9. Rebuttal Evidence

The current landowners, Burgh Island Ltd (Mr Tony Orchard and Ms Deborah Clark) strongly object to the Parish Council’s application to have the footpaths recorded. Their full response is included in the background papers to this report and is summarised below.

Burgh Island Ltd purchased the island from Mr & Mrs Porter on 1 October 2001. They state that they were unaware of the s.14 application when they purchased the property, marketed as a “private island”. They refer to the letter dated 12 June 1999 from Bigbury Parish Council to Mr Porter as evidence that they Parish Council believed the paths to be permissive and open with the goodwill of the owner.

They state that several “private” and “island closed” notices were placed on the island or mainland slipway from late 2001 to make clear the status of Burgh Island as private property. Photographs and copies of such notices (undated) are attached with their response. They state that they and their staff will swear affidavits in evidence.

In late March 2005, following their successful appeal against inclusion of the island under open access mapping, the landowner posted laminated notices on the claimed path, previously diverted by the Coast & Countryside Service. These notices read “no right of way” and “please use the zigzag path”. Photographs are attached in the background papers to this report. The landowners replaced these notices with metal signs in early 2006 as the paper laminated signs were often ripped down.

In November 2005 Burgh Island Ltd deposited a map and statement under section 31(6) of the Highways Act 1980 indicating that they only regarded the existing Footpath No, 10 as a public right of way.

The landowners challenge the user evidence submitted in support of the Parish Council's application and have included analysis of 164 user evidence forms. For example, they discount those users who said that they had express permission to use the paths and those who had not used the paths for a period of 20 years prior to an assumed challenge in 2005, when notices were erected on the claimed circular route. The landowners calculate that only forty-six of the 164 user evidence forms that they analysed cannot be eliminated through this process. They emphasise that these remain by default, through giving too little information.

With regards to the claimed paths, the landowners state that the user evidence forms show that there has always been uncertainty about the routes of the paths. In addition that there is no active use of the lower section of path C-D, it being overgrown, and that a new paths links to the summit from point B.

10. Discussion

Bigbury Parish Council based their application largely on historical reference of public use of the island with supporting evidence from local users. The parish council were aware that the routes were not legally recorded and were concerned that access may be prevented in the future when they learnt that the island was up for sale.

There does not appear to have been any event prior to making the application which had the effect of challenging public use of the paths. In the absence of such an event the application itself is to be considered as calling into question the public’s right to use the claimed paths for the purposes of deemed dedication under the Highways Act 1980, the date of ‘calling into question’ being the application date of July 1999 (Section 31, 7A and 7B of the Highways Act 1980 as inserted by the Natural Environment and Rural Communities Act 2006).

Considerable user evidence submitted shows regular, consistent and apparent uninterrupted use of the sections A-B-X-C-E-G-F-H-I and C-D for the twenty year period prior to 1999; and this use is considered to be adequate to satisfy the requirements of section 31 of the Highways Act 1980. Use appears to be 'as of right', that is 'without force, secrecy or permission'. The landowners’ view that each user must have at least twenty years usage of a route before dedication can be presumed is incorrect. The law simply states that the route has to have been enjoyed by the public as of right and without interruption for a full period of twenty years.

Section I-B of the claimed path however, did not physically exist until late 1989 when the hotel fence was reinforced for stock-control purposes and moved approximately 30 metres to the west at the base. A path which originally followed the hotel boundary fence along the line I-J was effectively diverted. In their letter accompanying the s.14 application, Bigbury Parish Council acknowledged that this section of their claim was a more recent path.

I-B could not therefore have been used for a twenty year period before the application was made in 1999 and cannot therefore satisfy the requirements of statutory dedication under the Highways Act 1980. A shorter period of use can however be considered for implied dedication under common law. Given the wealth of user evidence since 1989, it is considered that on the balance of probabilities common law dedication of the route has taken place.

Documentary evidence shows that the island was considered to have been used freely by the public from at least the early 1900s. Historical references do not provide evidence of defined routes although it is clear that the public were visiting the island for recreation from the early part of the 1900s and in particular climbing to the summit. The surface of the island is eroded relatively easily. Much of the island would have been covered with vegetation so worn paths would have developed with increased use.

Aerial photographs show that well defined routes had developed by at least 1959 along sections A-B-X-C-E-G-F-H-I and C-D of the claimed routes and also along I-J, G-D-H and K- X. Mrs Waugh from her first visit in 1961 assumed the paths to be public. As landowner she was aware of and acquiesced in public use. In his evidence Mr Porter states that he realised people had always used the routes and that it did not occur to him to stop them. The only notices he placed on any of the used routes was a warning at Herring Cove, which may also have indicated no right of way. Mr Porter states that he put it there for insurance purposes only. Few users were aware of it, other than a warning of dangerous cliffs, and due to its position facing seaward it would not have been obvious to most people using the paths.

When the hotel boundary fence was repositioned in 1989, most users were unaware of the subtle change and continued to walk a path along the boundary fence, albeit in a different location. The original route is still shown on current OS large-scale mapping, which hasn’t been revised to show the more recent worn paths. The public appear to have accepted the route on its altered alignment and have continued to use it despite later attempts by the Coast & Countryside Service to encourage use of the zigzag route.

The evidence points to longstanding use of the claimed routes as a whole from 1989 and for the most part since at least 1959, although use of the lower part of C-D has tailed off in the last few years due to the development of new routes by the Coast and Countryside Service. It also shows longstanding use of routes G-D-H, I-J and K-X since at least 1959, although use of I-J ceased after 1989 when it was moved to the current alignment as claimed by the parish council. The volume of use overall is substantial and that use was as of right and without permission. The current landowners believe that parish minutes and correspondence concerning the application suggest that use of the routes was with the landowners’ permission or goodwill. However this is not supported by the evidence of two previous landowners. Knowing of the use of a way and not doing anything about it is not inconsistent with use as of right. With the exception of previous employees, only three other users claim to have been given permission to use the routes. One of these owns a property on the island.

The current landowners state that they have, since purchasing the island in 2001, consistently placed notices on the island or mainland indicating that the paths were not public, with the exception of the recorded path to Herring Cove. They have also made a s.31(6) deposit indicating that there were no other public rights of way over the island. Prior to 2001 however, there is insufficient evidence that landowners had no intention that the routes be dedicated as footpaths. Indeed previous landowners were aware of and acquiesced in, or actually encouraged use of the paths. Mr Porter was happy for South Devon Coast & Countryside Service to undertake maintenance and enhancement works at public expense.

11. Conclusion

In excess of one hundred user evidence forms have been received in respect the claimed and additional routes, used in combination with each other. On the basis of evidence received and on the balance of probabilities it is considered that rights of way not shown on the map and statement subsist or are reasonably alleged to subsist on the basis of both common law and statutory dedication. It is therefore recommended that a Modification order be made to add to the definitive map the routes A-B-X-C-E-G-F-H-I-B, C-D, G-D-H, I-J and K-X as shown on plan no. ED/PROW/06/136. It is noted that the route I-J is no longer available on the ground, having been diverted along the line I-B-A. Therefore, if the alternative section I-B-A is confirmed, it is further recommended that the route I-J be extinguished on the grounds that it is not needed.

12. Reasons for Recommendation/Alternative Options Considered

To determine the Schedule 14 application to record rights of way on Burgh Island and consider other potential claims.

Edward Chorlton

Electoral Division: Yealmpton

Local Government Act 1972

List of Background Papers

Contact for enquiries: Mike Jenkins

Room No: ABG, Lucombe House

Tel No: (01392) 383240

Background Paper Date File Ref.

Correspondence file. 1988-to date DMR/Bigbury

hb191006pra sc/burgh island 4 hq 031106