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Commons and Rights of Way Committee

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Commons and Rights of Way Committee COMMONS AND RIGHTS OF WAY COMMITTEE 4 October 2019 AGENDA ITEM: APPLICATION FOR A MODIFICATION ODER TO ADD A LENGTH OF PUBLIC FOOTPATH CONNECTING MOUNT PLEASANT & VAN DER BREEN STREET, BISLEY, GLOUCESTERSHIRE REPORT OF THE LEAD COMMISSIONER COMMUNITIES & INFRASTRUCTURE 1. PURPOSE OF REPORT To consider application; 573/11/29(14) Nature of Application: The addition of a length of public footpath connecting Mount Pleasant and Van der Breen Street, Bisley. Parish: Bisley-with-Lypiatt Name of Applicant: Bisley-with-Lypiatt Parish Council Date of Application: 20 May 2018 Landowner: Unregistered Witness Evidence forms: Total of 14 PPEFs submitted by 14 individuals. 2. RECOMMENDATIONS OF THE CASE OFFICER That an Order be made to add the claimed footpath to the legal record of public rights of way on the basis of the evidence supplied. 3. RESOURCE IMPLICATIONS Average staff cost in taking an application to the Committee- £5,000. Cost of advertising Order in the local press, which has to be done twice, is approximately £500 per notice. In addition, the County Council is responsible for meeting the costs of any Public Inquiry associated with the application. If the application were successful, the path would become maintainable at the public expense. 4. SUSTAINABILITY & EQUALITY IMPLICATIONS No sustainability implications have been identified. 5. DEPARTMENTAL CONTACT Jaci Harris, Asset Data Officer (Definitive Map), Highway Authority. Telephone Gloucester (01452) 328981 E-mail: [email protected] 6. STATUTORY AUTHORITY Section 53 of the Wildlife and Countryside Act 1981 imposes a duty on the County Council, as surveying authority, to keep the Definitive Map and Statement under continuous review and to modify it in consequence of the occurrence of an ‘event’ specified in sub section [3]. Any person may make an application to the authority for a Definitive Map Modification Order on the occurrence of an ‘event’ under section 53(3) (b) or (c). The County Council is obliged to determine any such application that satisfies the required submission criteria in accordance with schedule 14 of the Act. Section 53(3)(c)(i) relates to the discovery by the Authority of evidence that shows that a right of way that is not shown on the map and statement subsists, or is reasonably alleged to subsist, over land in the area to which the map relates. HIGHWAYS ACT 1980 - Section 31: Dedication of a way as highway presumed after public use of 20 years. a) Where a way over any land…has been actually 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. b) The period of 20 years…is to be calculated retrospectively from the date when the right of the public to use the way is brought into question, whether by a notice…or otherwise. PRESUMED DEDICATION AT COMMON LAW Use of a way by the public without secrecy, force or permission of the landowner may give rise to an inference that the landowner intended to dedicate the way as a highway appropriate to that use, unless there is sufficient evidence to the contrary. Unlike dedication under S.31 Highways Act 1980, there is no automatic presumption of dedication after 20 years of public use, and the burden of proving that the inference arises lies on the claimant. There is no minimum period of use, and the amount of user which is sufficient to imply the intention to dedicate will vary according to the particular circumstances of the case. Any inference rests on the assumption that the landowner knew of and acquiesced in public use. REPORT 7. BACKGROUND A location map at scale 1:5,000 is attached (JH1) showing the location of the path in the Parish of Bisley, Stroud District. It is found within Ordnance Survey Grid Square SO9006. 7.1 The Definitive Map Modification Order (“DMMO”) application, made by Bisley Parish Council on 20 May 2018, included Form 1 and an accompanying plan of the path drawn at 1:1250 scale. The claimed route is drawn in orange marker. Form 3 was also supplied, dated 2 July 2018, certifying that the application had been served upon; Mr R. Smith, Cartref, Bisley, Mr L. Nicholas, The Nest, Bisley Mr M. Conisbee-Smith, Oakleigh Cottage, Bisley Mrs D Entwistle, Woodside, The Roundabouts, Stroud Mrs C Bulcock, Kimberley Cottage, High St, Bisley Mrs A FrenchHomeland, Van der Breen St, Bisley 7.2 As the track is unregistered, Form 2; Notice to Owners and Occupiers was posted along the path also. 8. DESCRIPTION OF CLAIMED PATH (“PATH”) 8.1 No historical indication has been found of a name for the claimed highway. The path runs for a length of 68m across unregistered land connecting Mount Pleasant (C200 road) and Van der Breen Street (41329 road). Mount Pleasant is a single track lane which forms one of the main arteries through the village and is thus extremely well used by motor vehicles. The claimed path provides pedestrians with an almost direct connection across Mount Pleasant to Public Footpath MBL170 and onto George Street and the main village. In the other direction, it provides a direct connection from the village via Mount Pleasant to King George V playing field along Van Der Breen Street. 8.2 A plan at a scale of 1:1250 is attached (JH2) on which the claimed path (“path”) is marked A-B. The path was inspected by me on 3 July 2019. 8.3 The path starts at its junction with Mount Pleasant Street at a point marked A on the plan at Ordnance Survey Grid Reference (“OSGR”) SO 9049/ 0603. At this point there is a safety barrier in the form of a chicane made up of 3 sections of tubular metal fencing. As a point of interest there is a similar construction across the road at the junction of Mount Pleasant with Public Footpath MBL170. The claimed path is bounded on each side by stone walls along its length. For the first 27m, the path has a tarmac surface with a width of 1.2m (Google maps suggests that in 2009, this section of path had a grass unmade surface). The semi-detached properties, Cartref and The Nest abut the path but whereas Cartref fronts onto Mount Pleasant, The Nest fronts onto the path. Opposite The Nest, there is a small gate leading to a private garden in the ownership of The Nest. A manhole cover and a separate drain cover are set into the surface indicating the presence of utilities running under the path. The path continues as an unmade grass and earth track with a varying width of 1- 2m to its junction with Van der Breen Street, marked B on the plan at OSGR SO 9055/ 0604. Photos are held as (JH3). 9 DOCUMENTARY EVIDENCE 9.1 Under Section 32 of the Highways Act 1980, when 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 in 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. 9.2 Ordnance Survey Pen and Ink 2”:1 mile drawing No. OSD172; Cheltenham - 1811 – Robert Dawson (British Library online) The British Library holds 351 of the original preliminary drawings made by the Board of Ordnance Surveyors at the Tower of London between the 1780s and 1840. The collection includes maps drawn by Robert Dawson, whose work set the style for British military map making. The path is not shown. Pen and Ink OS drawing 1811 9.3 Commercial Map Makers of Gloucestershire; Bryant Map 1824 - 1.45 inches: 1mile. Ref: CW/G912GLO1824 & Greenwood Map 1824 - 1inch: 1mile. Ref: CW/912GRE1824, both of Gloucestershire Archives Andrew Bryant and Christopher Greenwood’s Maps of Gloucestershire, both dated 1824, were drawn from original surveys. Their depiction is much more accurate (like an Ordnance Survey map) rather than being schematic. This may be due to survey equipment (theodolites) becoming commercially available in the 1790s. The “explanation” (or legend) on Bryant’s Map lists “Turnpike and Mail Roads”, “Good Cross or Driving Roads” and “Lanes & Bridleways” whereas Greenwood identified turnpike roads and cross roads. Neither purported to show footpaths. Bryant and Greenwood’s maps were sold to members of the public and cost 3-4 guineas. The commercial nature of the map means that routes shown are likely to be public unless there is strong contemporary evidence which shows that routes are private. As public roads prior to 1835 were maintainable by the parish, it is likely that routes shown are now publicly maintainable. The path is not shown on either map. Bryant 1824 Greenwood 1824 9.4 ‘Reprint of the first edition of the one – inch Ordnance Survey of England and Wales – 1828’; Sheet 69; ‘Cirencester & Swindon’ These maps were produced by engineers and draughtsman of the Board of Ordnance in the Tower of London at the reduced scales of one inch to one mile taken from the pen and ink drawings of the surveyors as described in paragraph 9.2 of this report. The path is not shown.
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