WCA 678 Report

Information Classification: PUBLIC Cornwall Council Report to: A Delegated Powers Decision to be made by the Natural Environment Manager Date: 26 April 2021 Application for a Modification Order to Add Title: Restricted Byways at Albany Farm & Wheal Butson Farm in St Agnes CP [WCA 678 & 677] Portfolio Holder(s) Rob Nolan, Environment & Public Protection Divisions Affected St Agnes Relevant Overview And Scrutiny Committee: Scrutiny Management Committee Key Decision: N Approval and clearance Y obtained: Urgent Decision: N Implementation Date: 07 June 2021 Author: Emma Walker Role: Natural Environment Records Officer Contact: 0300 1234 202 [email protected] Information Classification: PUBLIC Cornwall Council 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 Restricted Byway at Albany Farm together with the addition of a Restricted Byway at Wheal Butson Farm in the parish of St Agnes. • That the Order be confirmed by Cornwall Council as an unopposed Order if no objections or representations are received to the Order; 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. Information Classification: PUBLIC Cornwall Council EXECUTIVE SUMMARY • The purpose of this report is to consider two applications to modify the Definitive Map and Statement. The first [WCA 678] is for the addition of a Restricted Byway from County Road CO297 to County Road B327 at Albany Farm in the parish of St Agnes. The claimed route to be added is shown as A to C on the report map set out in APPENDIX A. • The second application [WCA 677] is for the addition of a Restricted Byway from the alleged Restricted Byway also considered in this report at Ordnance Survey Grid Reference (OSGR) Grid SW 7271/4879 to County Road U6073 at Wheal Butson Farm in the parish of St Agnes. The claimed route to be added is shown as B to E on the report map set out in APPENDIX A. • In determining the applications, the Council has examined documentary evidence, particularly the District Valuation records emerging from the Finance Act 1910, supported by the tithe survey and other small-scale Ordnance Survey maps. It is considered that together these documents indicate that, on the balance of probabilities, presumed dedication of the way as a vehicular highway has occurred at common law and that a vehicular highway subsists over the claimed routes between sections A to C and B to E on the report map. • Because the Natural Environment & Rural Communities Act 2006 extinguished rights for mechanically propelled vehicles unless the claimed route qualifies under one or more exceptions in the 2006 Act and no evidence was produced to show an exemption applied it is only possible to record it on the definitive map as a Restricted Byway. The claimed routes do not qualify under any of the exceptions listed in the Act. • The report recommends that an Order be made under section 53(2)(b) of the Wildlife and Countryside Act 1981 to add the claimed route to the Definitive Map and Statement on the basis of the occurrence of an event. Namely, that the available evidence shows that a Restricted Byway is reasonably alleged to subsist over the claimed routes between sections A to C and B to E on the report map. • 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. Information Classification: PUBLIC Cornwall Council 1. APPLICATION DETAILS 1.1. The purpose of this report is to consider an application [WCA 678] to modify the Definitive Map and Statement by the addition of a Restricted Byway at Albany Farm in the Parish of St Agnes. 1.2. Further, this report also considers an application [WCA 677] to modify the Definitive Map and Statement by the addition of a Restricted Byway at Wheal Butson Farm in the Parish of St Agnes. 1.3. The routes of the alleged Restricted Byways are shown on the report map between A to C and B to E set out at APPENDIX A. 1.4. On 3 June 2019, on behalf of The British Horse Society submitted an application [WCA 678] to modify the Definitive Map and Statement under Section 53 of the Wildlife and Countryside Act 1981 by adding a Restricted Byway from County Road CO297 near Hurlingbarrow to County Road B327 at Albany Farm. 1.5. The application was supported by documentary evidence, but no evidence of contemporary use was provided. 1.6. The applicant 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 the Land as shown in APPENDIX B. 1.7. On 3 June 2019, on behalf of The British Horse Society submitted an application [WCA 677] to modify the Definitive Map and Statement under Section 53 of the Wildlife and Countryside Act 1981 by adding a Restricted Byway from an alleged restricted Byway also considered in this report at OSGR Grid SW 7271/4879 to County Road U6073 at Wheal Butson Farm. 1.8. The application was supported by documentary evidence, but no evidence of contemporary use was provided. 1.9. The applicant 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 Applications on the Land as shown in APPENDIX B. Information Classification: PUBLIC Cornwall Council 2. EVIDENCE SUBMITTED IN RELATION TO THE APPLICATION 2.1. Evidence from the Applicant Documents supplied in support of the applications are set out at APPENDIX C. These are as follows: • Copies of the Ordnance Survey Maps (one inch, 25 inch and 6 inch) • Record sheets of the District Valuation maps from the Finance Act 1910 held at The National Archives • Tithe survey records • Land registry inspire maps. • The applicant also submitted photographs of the entrances to both applications and the exit to application WCA 677, along with aerial photography of part of the route in application WCA 677. Land Registry inspire Maps The Inspire maps from Land Registry show the routes in the present day are excluded from registered plots, similar to other streets in the area. Actions taken by serving notice on the land and consultations with adjacent landowners and interested parties has been unable to identify evidence which shows ownership of the routes. In considering similar unrecorded ownership, the Inspector for the Tregony and Cuby Order Decision (ROW/ 3181626) stated the following, ‘I note that the land crossed by the Order routes is unregistered. The route exists as a separate banked and hedged area outside of the registered land on either side. I agree with the Ramblers that this is suggestive of an ancient public highway’. The content of remaining documents submitted by the applicant are discussed in detail under ‘Documentary Evidence’ below. 2.2. Evidence from Landowners Recent map searches conducted with Land Registry included in Appendix B show that there is no registered title for all of the claimed routes, which is why the Council required and gave permission to the applicant to serve notice on the land impersonally. The routes shown to be absent are similar to the streets in the area. The Council identified a number of adjacent landowners or occupiers to the application routes and invited them through a consultation on 05 February 2021 to complete a Landowner/Occupier Evidence Form and/or submit Information Classification: PUBLIC Cornwall Council comments in regard to the applications. The adjacent landowner evidence is set out at Appendix D which were received from: • • • • • • • owns land to the of the route B to E on the report map and provided Land Registry records. In a later telephone conversation, refers to the route from B–D on the report map as ‘Treehanger Lane’. During the consultation period, the contacted the Council in support of the application routes. The own land along the south of the application routes shown as A to D on the report map. The provided partial copies of Title deeds demonstrating their assumed private rights to use the lanes for farming connected activities. The Title deeds state that; ‘access to and egress from the farm is achieved along unmade unadopted lanes on the said plan. The said lanes have been used and ours and his respective tenants and licensees since the year 1930 as of right without the consent of any person and without interruption and without payment of any kind to any person… The said use has been to pass and repass along the said lanes by day or by night with or without vehicles or any description and with or without animals for all purposes connected with the farm’. Members of the allege that the lane was blocked at point A on the report map in 2018 by the owners of . The provided statements to the Council from the following individuals in support of their claims. , refers to the track running from A to C on the report map as ‘Hospital Lane’ and has used the lane as a through road for access by horse and cart and for driving animals, the earliest date identified is 1904. Subsequent purchases of land on either side Information Classification: PUBLIC Cornwall Council of the proposed route by his up until the late 1980’s has meant the lanes are used for cattle movements and farm work.

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