Statement of Case Documents Required by Planning Inspectorate

Information Classification: CONTROLLED

Cornwall Council Environment Service – Countryside Access Team Statement of Case Documents required by Planning Inspectorate

The Planning Inspectorate Rights of Way Section 3G Hawk Wing Temple Quay House 2 The Square Temple Quay Bristol BS1 6PN

Statement of Case in respect of:

The Cornwall Council (Addition of Restricted Byway from Road U6177 at Mawgan-in-Pydar School to Road U6177 at Lanvean in the Parish of St Mawgan-in-Pydar) Modification Order 2017

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Planning Inspectorate ref: ROW/3230685

The Cornwall Council (Addition of Restricted Byway from road U6177 at Mawgan-in-Pydar School to road U6177 at Lanvean in the Parish of St Mawgan-in-Pydar) Modification Order 2017

Statement of Case

Introduction

1. An application was received on 15 August 2011 to modify the definitive map and statement by adding a byway open to all traffic from the ford by St Mawgan-in-Pydar CP School (OSGR: SW 8734/6591) to Lanvean Farm (OSGR: SW 8734 6591) in St Mawgan-in-Pydar CP. The application was supported by 101 Public Rights of Way evidence forms. Cornwall Council subsequently determined to make an Order in consequence of the application on 6 September 2017. The Order was made on 21 November 2017.

2. The resulting Order added to the definitive map a length of restricted byway in the Parish of St Mawgan-in-Pydar, shown as route A-C on the Order map attached in Appendix A.

3. In making the Order, the Council had regard to the duty as expressed in Paragraph (2) of Section 53 of the 1981 Act:

(a) as soon as reasonably practicable after the commencement date, by order make such modifications to the definitive map and statement as appear to them to be requisite in consequence of the occurrence, before that date, of any of the event specified in subsection (3); and (b) as from that date, keep the map and statement under continuous review and as soon as practicable after the occurrence on or after that date, of any of those events, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event.

4. The abovementioned Order was made under section 53(2)(b) because of the occurrence of an event as set out in section 53(3)(c)(i) of the 1981 Act being an event whereby:

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“…the discovery by the authority of evidence which – when considered with all other evidence available to them shows – that a right of way which is not shown in the definitive map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way such that the land over which the right subsists is a public path, a restricted byway or, subject to section 54A, a byway open to all traffic…”.

5. When considering whether to make an Order under the Wildlife and Countryside Act 1981 Section 53(2)(b) the Council had to be satisfied that an event under section 53(3)(c)(i) of the 1981 Act had occurred. The Council had to decide whether the available evidence shows that a right of way subsists or is reasonably alleged to subsist over the sections of claimed way shown as route A-C on the Order map (the “reasonable allegation” test).

6. The Council made the above Order and at the end of a statutory period for representations and objections, the Order was subject to three outstanding objections. The Council was therefore unable to confirm the Order as an unopposed Order and submitted the opposed Order and the objections to the Planning Inspectorate with a request that the Secretary of State for Environment Food and Rural Affairs confirms the Order.

7. When considering whether to confirm an Order made as a result of the occurrence of an event under Section 53(3)(c)(i) of the 1981 Act the Secretary of State has to decide whether the available evidence shows, on the balance of probabilities, that the Order should be confirmed. This requirement is set out in paragraph 6(1)(a) of Schedule 15 to the 1981 Act.

Grounds for confirming the Order

8. In determining to make the Order the Council was satisfied that an event had occurred under Section 53(3)(c)(i) of the Wildlife and Countryside Act 1981. Namely, that the available evidence showed the Order route between A-C could be reasonably alleged to subsist as a highway because it had been dedicated at common law as a public carriageway.

9. Section 67 of the Natural Environment and Rural Communities Act 2006 extinguished all existing public rights of way for mechanically propelled vehicles unless the way qualified under one or more exceptions. In the event the claimed routes do not qualify as excepted ways, subsection

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70(1) of the NERC Act 2006 provided for ways to be recorded as restricted byways in the definitive map and statement. In this instance, because the Council considered none of the five exceptions in subsection 67(2) were met, an Order was made to amend the definitive map and statement by adding a section of restricted byway from A-C.

10. The Council also determined that, if the Order was opposed, then it should be submitted to the Planning Inspectorate on behalf of Secretary of State for confirmation. In making this decision, the Council confirmed that it was satisfied that the “balance of probabilities” test for A-C had been met. No evidence has been submitted to the Council since the decision to make the Order which has caused the Council to amend that opinion.

Dedication at Common Law

11. Section 32 of the Highways Act 1980 sets out 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.

12. As part of the process of determining this matter Cornwall Council has undertaken extensive documentary research. In this case Cornwall Council has placed particular weight on evidence found in the incremental value duty records of the Finance Act 1910 supported by evidence from the tithe survey (c1840). Copies of these documents can be found in Appendix B.

13. Finance Act records point to the fact that the claimed route was considered to be a public highway, because it was excluded from the surrounding hereditaments on the valuation map.

14. This is supported by evidence contained on the tithe records. Whilst there are some differences in the Diocesan copy of the tithe map where the addition of brace symbols appears to make an association between the lane and parcels of land adjacent to it, both the Parish and Tithe Commissioners copies of the tithe map show the claimed route between A-C followed a clearly defined track bounded by adjacent field plots on both sides without an apportionment number, so depicted no differently from other highways to which it links at this location that are now designated as carriageways on the list of streets.

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15. It is therefore considered that documentary sources provide evidence of the reputation of a way of such a character that gives rise at common law to the presumption of dedication and that on the balance of probabilities, the whole of the claimed route (A-C) was dedicated as a public carriageway at an unknown date in the past. No evidence has been discovered which indicates that public rights along the way have subsequently been stopped up.

Dedication under Section 31 Highways Act 1980

16. The Council’s report also evaluated evidence of recent use of the claimed way by mechanically propelled vehicle submitted in support of the application to modify the definitive map and statement. It concluded that this evidence indicated that a highway of restricted byway status was reasonably alleged to subsist over route A-C on the Order map. This also satisfies the test for an ‘event’ in section Section 53(3)(c)(i) of the Wildlife and Countryside Act 1981.

Enjoyment By the Public

17. The first part of section 31(1) of the Highways Act 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 been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway …..

18. Attributes that convey the characteristics of a route sufficient to define it as a ‘highway’ include a determination that it is open to the public at large, the public use must be as of right, that right is primarily for passage, and the right of passage must follow a defined route. In considering the extent to which these key criteria are met the evidence is evaluated under two broad headings:

i) The Nature of the Way

a) In determining to make the Order and submit the opposed Order to the Secretary of State for confirmation, the Council gives specific consideration to the nature of the ways. Evidence from historical maps and aerial photographs show the way described followed a clearly defined track and was not over an area where the public has wandered at large. This documentary evidence can be found at Appendix C to this Statement.

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b) The user evidence indicated that the way had been enjoyed by vehicles mainly for various general purposes mostly for accessing the village amenities, or driving to the school, but also for recreation. c) The character of the way has to be such that use of it would give rise at common law to a presumption of dedication. Therefore it could not be land to which members of the public are prevented from gaining access by statute. There is no known statute that prevents members of the public from having access to the land. d) It is also submitted that the physical characteristics of the way is such that a right of way could be established. In this instance the available evidence indicates that the way followed a clearly defined lane, used by motorised vehicles and bounded on both sides. ii) The Nature of the Use

a) The ways must have been actually enjoyed – the available evidence indicates that the ways have been enjoyed by users in a mechanically propelled vehicle between 1940 and 2011. b) Use of the ways must have been by the public – the available evidence indicates that witnesses who claimed they had used the paths during the relevant period lived in St Mawgan, or other surrounding areas in St Mawgan-in-Pydar CP, as well as a proportion of witnesses who lived outside the parish in Cornwall. The distribution of users of the path indicates that use was by the public at large. c) Use of the ways must have been as of right – in other words the use of the ways must have been without force, secrecy or permission. The available evidence indicates that use of the ways had been as of right for a full 20-year period prior to the date when rights were called in question, so between 1983 and 2003. There was no evidence presented to the Council that any of the witnesses used the route with force or secrecy during the relevant period. The evidence indicated there was a limited number of witnesses who claim to have used the way in exercise of a private right, or by permission from the landowner during the relevant period and their evidence has been discounted. d) Use of the ways must have been without interruption – in other words the use of the ways by the public must have been exercisable over the entire period. The available evidence indicates that there that there has been no interruption to the use of the ways between the relevant dates.

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e) Use of the way must have been for a full period of 20 years. From the available evidence the Council was satisfied that use of the routes had covered a 20-year period as required by statute and that the frequency of use during that period was sufficient.

19. Evidence of use is comprised of 101 public path user forms. Forms completed in support of the application can be found at Appendix D to this Statement. A list of the names of witnesses who submitted evidence is provided below.

1 Ball R 52 Littlefield J

2 Banbury F 53 Lobb P

3 Barker B D 54 Malcolm L

4 Barker R D 55 Malcolm R

5 Basnett D 56 Martin L

6 Baxby E 57 McKenzie E M

7 Bishop G 58 Michell S

8 Bleasdale V 59 Old D M

9 Bowden B 60 Old R

10 Bunting C 61 Pethick/Grimes P

11 Cawley Beryl M 62 Phillips D R

12 Cawley Brendon M 63 Phillips P A

13 Cawley G 64 Plant J

14 Cawley J M 65 Prowse A

15 Cawley P 66 Prowse M

16 Cawley Richard A 67 Prowse S

17 Cawley Richard 68 Roberts J

18 Chapman Bonnie J 69 Ruff G M

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19 Chapman Beverley M 70 Ruff J

20 Chapman K 71 Rumble K A

21 Chapman Ryan G 72 Russell H

22 Chapman R 73 Salmon J

23 Chapman Ros 74 Searle E

24 Cook E 75 Spry E

25 Cook M E 76 Stanton D

26 Coombes J 77 Sterling G

27 Coombes M A 78 Sterling J

28 Corbett W 79 Sterling M

29 Craddock C 80 Sterling P

30 Cullen B A 81 Sterling V

31 Dodd S 82 Taylor D

32 Ellery A 83 Thomas S A

33 Ellery Y 84 Tooley A

34 Evans M J 85 Tremain R J

35 Evans T 86 Tremain R P

36 Fisher J P 87 Tremain V K

37 Fisher K S 88 Tyson M C

38 Gold D 89 Williams L A

39 Golding E 90 Young Jamieson

40 Harding S 91 Chapman S

41 Harvey P 92 Ellery K J

42 Head J 93 Grose J

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43 Hetherington I 94 Lister Lean A

44 Hill M 95 Lobb M

45 Hill P M 96 Schofield S A

46 Julian A 97 Taylor P C

47 Julian J 98 Revd John Graham Slee

48 Knight E 99 Revd James Whitlock

49 Knight R J 100 Ruth Trevenna

50 Lay A 101 Mark Trevenna

51 Lenthall C

20. The bar chart below shows evidence of use by mechanically propelled vehicle contained in the forms over the period indicated for the route shown as A-C on the Order Map. (Where bars are shown in red, this evidence does not contribute to the accrual of rights. The 20-year statutory period is also shown).

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21. In total 79 witnesses claimed to have used the route for varying lengths of time, although the evidence from 10 of those witnesses has been

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discounted because their use was not considered to be as of right. Of the remaining 69 witnesses, 52 claimed to have used the route by mechanically propelled vehicle in excess of 20 years with 37 having used it for the whole period between 1983 and 2003. Use of the way has continued at least up until the time evidence forms were submitted with the application in 2011. A further 10 witnesses claimed use exclusively outside the period of 20 years prior to the date rights were brought into question.

22. The maps of 28 witnesses do not show that they used the route between points A-B. However, the written descriptions of those users who appear to have commenced their journeys at Point B on the Order map indicate they started at St Mawgan-in-Pydar CP School or road U6117 and continued to Lanvean. It is therefore considered that despite not showing it on their annotated plans, these witnesses did use the ford and therefore the whole of the investigation route.

23. Among those that did include this section on their accompanying maps, use has been both frequent and ranged over a period in excess of 20 years.

24. Frequency of use among witnesses varies, but of the 69 witnesses, 4 claimed to have used it on an approximately weekly basis while a further 5 witnesses claimed to have used it twice a week and another 7 more frequently than that. A further 10 witnesses have used it at least once in every two weeks, while the rest have used it less. However, there does appear to be a pattern to the frequency of use, with those who had used it most often, also having used the claimed route for the longest.

25. Taking the number of witnesses together with how often they used it use of the way by mechanically propelled vehicle has been demonstrated to be substantial and continuous.

Date when the Right was Brought into Question

26. Section 31(2) of the Highways Act 1980 continues:

“The period of 20 years referred to in subsection (1) above is to be calculated retrospectively from the date when the right of the public to use the way is brought into question,”

27. For the purposes of Section 31 of the Highways Act 1980, it is considered that public use on foot was brought into question by actions taken by landowners including a verbal challenge, notices erected on the route and

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a gate being locked obstructing the claimed way, which was sufficient to prompt an article in the local newspaper the Cornish Guardian and for users to petition the local authority by submitting 15 User Evidence Forms in 2003.

Evidence of a Lack of Intention to Dedicate

28. The second part of Section 31(1) of the Highways Act 1980 continues,

“……unless there is sufficient evidence that there was no intention during that period to dedicate it.”

29. Four statements submitted by the landowner report that notices were erected in 1991. However, until 2011 when 45 witnesses indicated that they had seen notices, there are many inconsistencies among users about the dates, or indeed whether there were notices at all (a statement from an adjacent landowner claims that there never were any signs). So, User Evidence Forms do not corroborate the year, or what they might have said which would have demonstrated a negative intention to dedicate a right of way at the time.

30. Permission granted to the residents to erect a sign saying “Access Only” makes no distinction between public and private access over the lane and does not suggest the Church Commissioners were an assertive landowner looking to protect private land by restricting use by the public and therefore is not sufficient evidence to show the landowner did not intend to dedicate the way.

31. Correspondence indicating that a gate was locked at certain times of the year thereby restricting access to the lane exists, but this was vague and gave no indication about when it may have occurred, although the report was contained in a letter dated June 1971 and talked about the gates having ‘vanished long since’.

32. Indeed, according to the Minute Books of St Mawgan-in-Pydar Parish Council the question of status, ownership and maintenance responsibility for the lane was a thorny and disputed matter, much debated over a considerable period till a statutory declaration was made by the Clerk of the Parish Council in his capacity as Church Warden with the express purpose of enabling Church Commissioners to claim ownership of the investigation route and include it within the title deeds of the new Rectory. However, this does not include any evidence that the Diocese took overt action to prevent use of the way and contains no indication that they

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instructed the incumbents of the Rectory to stop members of the public from using the lane.

33. Grants of easement or private rights of access regularly coexist with public rights, particularly in instances where there is uncertainty for landowners over public access by virtue of those rights being unrecorded, so it is not considered that a lack of intention to dedicate a right of way can be inferred from the existence of private rights of easement over the claimed route.

34. Insufficient evidence was therefore provided to show that the landowners did not intend to dedicate a public footpath during the period over which use has been reported 1940 to 2003. The Council therefore considers that the necessary evidence to negate the evidence of use during the relevant 20-year period has not been discovered.

Consideration of Points Raised in Objections to the Order

35. Three Objections were received from: Mr Gardner & Ms Walker; Mr & Mrs Rawlings; and St Mawgan-in-Pydar Parish Council. Following a period of resolution none of these were withdrawn. Outstanding letters of objection are attached at Appendix E.

36. In a letter of objection dated 10 January 2018 Mr Gardner & Ms Walker who identified that they were the owners of land over which the Order route passes objected to the confirmation of the Order on five grounds indicating that they disagreed with the argument that had been put forward by the Council in determining to make the Order. However, the objector did not put forward any new evidence that the Council had not previously considered.

37. The first ground for objection was that the interpretation of the evidence presented in the case officer's report was not the only arguable assessment to be made of the information collated and failed to include all the contradictory evidence available. In particular they were unhappy with the conduct of the authority leading up to and during the period of investigation, that no reference was made to them during this time and important information had been withheld from them directly and in the published information despite specific information requests. They were not satisfied that the principles of natural justice have been applied in the handling of the application and the manner in which conclusions have been drawn, specifically but not limited to the non-disclosure of critical evidence that appears key in the opinions formed by the case officer. The

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heavy redaction of documents and withholding of information are cause alone to request that an enquiry be held to reach a final determination of this application.

38. The second ground for objection identified inconsistencies and errors in the detail of the case officer's report. For example, it is claimed, without disclosure of the underlying evidence, that six witnesses submit a gate was locked across the lane in the winter of 2002/2003 (section 6:31). There is no other evidence presented that supports a claim that any gate existed along the lane at this time. Contradictory evidence suggests there has never been a gate that could be locked across the lane since at least the 1960s up to the time when the landowners closed a gate across the lane in 2011. This calls into question the evidence used to determine the 20-year period assessment.

39. The third ground for objection indicated that as the relevant officers of Cornwall Council are aware the matters underlying this application have become extremely controversial in the local community. It is evident to the landowners that this controversy was a deliberate part of a coordinated campaign by a number of individuals to enlist as many members of the public to submit the highest number of User Evidence Forms possible. The sheer weight of numbers does not in itself give credence to the claims being made however the case officer's report appears to take the view that it does, even to the point of dismissing inconsistencies in multiple reports/forms provided by single individuals. The objector believes a proper examination of that evidence is now warranted.

40. The fourth ground for objection reported that there were factual errors in the Schedule, Part II of the Order. It is widely accepted the access lane, being the investigation route, is as wide as it has ever been in its history. The stated minimum width in the Schedule is given as 5 metres. No average width is given. The factual truth is the minimum width of the investigation route is only 2.5 metres along a significant proportion of its length, such that the average width across the whole length could not be said to be more than 3 metres.

41. The fifth ground for objection pointed out it was with regret that the landowners feel the investigation and subsequent conclusions drawn by the authority have not been conducted in a manner which imparts confidence in the accuracy, openness and impartiality of the process. They therefore objected to the Order being confirmed by Cornwall Council and requested that the opportunity be provided for all the evidence to be fully disclosed and the opportunity for cross examination afforded by way of a

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public enquiry. They considered that only with such examination could the matter be settled to the satisfaction of all concerned.

42. The view of Cornwall Council is that the objection does not address issues that are relevant to the confirmation of the Order for the following reasons.

43. Concerning the first ground for objection Mr Gardner and Ms Walker were invited to submit a landowner evidence form and on 10 April 2012 and took that opportunity to provide a comprehensive appraisal of their knowledge of public rights of way affecting the Order route over Church Lane in St Mawgan. Requests for disclosure of the case file were made under the Freedom of Information/Environmental Information Request (FOI/EIR) on 21 March 2012, 30 April 2014 & 01 March 2017. The local authority complied with all three requests according to the guidance in the legislation. In reaching a decision to make an Order the Council considered the evidence supplied in its entirety which can be evidenced in the surveying authority’s report which along with the appendices has been published in full on the Council’s website:

https://www.cornwall.gov.uk/environment/countryside/dmmo- reports/addition-of-a-byway-at-mawgan-in-pydar-cp-wca-573-dmmo- report/

44. Concerning the second ground for objection the Council’s report refers to evidence contained in six witness statements that indicates use of the way was subject to challenge in 2003 by a combination of factors which included verbal challenge and the erection of notices together with a claim that a gate had been locked. As these actions were contemporaneous with the publication in a local newspaper, the Cornish Guardian, of an article submitted with Ruth Trevenna’s evidence describing how use of the way on horseback had been challenged, Cornwall Council considers that taken together 2003 was the date rights were brought into question and the press release was sufficient to bring the challenge to the attention of the public at large.

45. Concerning the third ground for objection Cornwall Council would argue that in carrying out its statutory duties as the relevant surveying authority it approaches the investigation into any claim of rights dispassionately and treats evidence from both witnesses and landowners impartially. To prevent people making false statements in modification order applications a warning highlighted on the relevant Definitive Map Modification Order page of Cornwall Council’s website makes applicants aware of the

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potential legal consequences of acting dishonestly or providing misleading claims. Where clear inconsistencies emerge in the evidence submitted these have been identified in the report.

46. Concerning the fourth ground for objection Part I of the Order schedule specifies varying width descriptions in line with the Planning Inspectorate’s ‘Advice Note 10 – Widths May 2003’ and describes a minimum and maximum width based on careful measurements taken from the Ordnance Survey Country Series Second Edition 1:2,500 Cornwall XXXII.6 (1908). Part II of the schedule reflects this.

47. Concerning the fifth ground for objection Cornwall Council accepts there are unresolved objections and therefore the Order has been submitted to the Secretary of State for determination.

48. In a letter of objection dated 10 January 2018 Mr & Mrs Rawlings, who are residents living adjacent to the investigation route objected to the Order on three grounds indicating that they disagreed with the argument that had been put forward by the Council in determining to make the Order. However, the objector did not put forward any new evidence that the Council had not previously considered.

49. The first ground for objection was that in reading the claims made in many of the documents submitted it is their view that much of what is being claimed regarding historical use of the access lane is false. Only by examination through an inquiry would they be satisfied that the truth on these claims be determined.

50. The second ground for objection identified they had been residents alongside the lane for over 60 years and prior to that, land adjacent to the lane had been in the ownership of their family since the 1920s. More particularly, they noted a claim that a gate was locked on the lane in 1983, but no such gate has ever existed. Use of the lane by the public has been challenged in all the time they have lived here, although such regular public use was not really evident until the 1980s.

51. The third ground for objection pointed out the error on the Council’s Order where it states the minimum width of the lane is 5 metres, this is nonsense as the width over much of the lane is little more than 8-10 feet.

52. The view of Cornwall Council is that the objection does not address issues that are relevant to the confirmation of the Order for the following reasons.

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53. Concerning the first ground for objection to prevent people making false statements in modification order applications a warning highlighted on the relevant Definitive Map Modification Order page of Cornwall Council’s website makes applicants aware of the potential legal consequences of acting dishonestly or providing misleading claims. Where clear inconsistencies emerge in the evidence submitted these have been identified in the Council’s report.

54. Concerning the second ground for objection while it is claimed that the public has been challenged consistently along the lane no evidence has been provided to show who was challenged, how frequently, dates when people were challenged, or the nature of that challenge. This has to be weighed against the large numbers of witnesses who do not report in their statements their use being subject to challenge of any description. Furthermore, the Council failed to identify reports of a gate being locked in 1983 in user evidence forms and therefore had not considered this.

55. Concerning the third ground for objection Part I of the Order schedule specifies varying width descriptions in line with the Planning Inspectorate’s ‘Advice Note 10 – Widths May 2003’ and describes a minimum and maximum width based on careful measurements taken from the Ordnance Survey Country Series Second Edition 1:2,500 Cornwall XXXII.6 (1908). Part II of the schedule reflects this.

56. An objection must show that the landowner had no intention of dedicating the land and had taken steps to prevent the accrual of public rights. There are various means of doing this, such as: lodging a statutory declaration with the County Council of negative intention to dedicate land under Section 31(6) of the Highways Act 1980; physical restraint in the form of locked gates, fences or barriers; verbal restraint; stopping of users of the way; erecting notices denying that public rights of way exist; allowing access by permission only; or by any other means to prevent public rights from accruing. Although the landowner provided statements challenging the accrual of rights, on balance the Council considers this contained insufficient evidence of action taken to demonstrate they had no intention of dedicating a right of way over the land.

57. In a letter of objection dated 8 January 2018 St Mawgan-in Pydar Parish Council, who were the modification order applicant indicated that whilst they welcomed the formal recognition of ‘Church Lane’ both as a footpath and bridleway based on long-standing use, recording the lane as a restricted byway would remove the ability of parishioners and others to

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lawfully continue to use Church Lane with a motor vehicle, so they objected to the Order citing two grounds which they felt shows that exemptions in the Natural Environment & Rural Communities Act 2006 had been met.

58. The first ground for demonstrating that the evidence meets the exemptions under Section 67(2) of the NERC Act 2006, more specifically (a) it is over a way whose main lawful use by the public during the period of 5 years ending with commencement was use for mechanically propelled vehicles, the Parish Council considers that presenting evidence of use by motor propelled vehicle is sufficient to show it was used predominantly by motorised traffic.

59. The second ground for demonstrating that the evidence meets the exemptions under Section 67(2) of the NERC Act 2006, more specifically (e) it was created by virtue of use by such vehicles during a period ending before 1st December 1930 the Parish Council rely on evidence from one witness who recollects her father using the lane prior to 1930 in one of the first cars to arrive in the village.

60. Concerning the first ground for exemption the only evidence Cornwall Council has been provided shows use of the way on foot and by horse riders to be greater than use by mechanically propelled vehicle. User Evidence Forms in Appendix D show that during the relevant period 52 witnesses used the route as of right by motorised vehicle compared to 72 users on foot and 32 on horseback.

61. Furthermore, of the 85 witnesses who claim to have used the route from 2001-2006 a total of 64 users (75%) did so more frequently on foot and horseback than by mechanically propelled vehicle. By comparison only 12 witnesses (14%) used it more often in a motor vehicle than as a pedestrian or rider, while a further 9 witnesses used it approximately equally on foot and in a car. This indicates the main lawful use of the way by the public in the five years preceding commencement of the NERC Act 2006 was not in mechanically propelled vehicles, so this fails to meet that exception in the legislation.

62. Concerning the second ground for exemption Cornwall Council deems this isolated example reporting use of the lane by someone else in a vehicle prior to the 1930s without additional evidence to verify the claim is also insufficient to consider an exception in the legislation has been met.

Summary

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63. In regard to the way depicted between points A-C on the Order map, Cornwall Council is satisfied its original determination that the Order be made and that the Order, if opposed, be submitted to the Secretary of State for confirmation was based on a reasonable interpretation of the available evidence and also satisfies the test laid out in Section 53 of the Wildlife and Countryside Act 1981. There was nothing that was raised in the contents of the objections to the Order that causes Cornwall Council to consider that the Order should not be confirmed.

64. The Council considers the available evidence indicates that, on the balance of probabilities public carriageway rights exist over A-B-C on the Order map. These have been established by inference of dedication at common law understanding that Section 32 of the Highways Act 1980 permits a court or tribunal to take maps, plans and other documents into account before determining whether a way has been dedicated as a highway. The Council has determined that those rights have also been dedicated at statute under Section 31 of the Highways Act 1980, the way has been actually enjoyed by the public as of right and without interruption for a full period of 20 years there being insufficient evidence to show that there was no intention during that period to dedicate it. It is therefore considered that the Order to modify the definitive map and statement by adding a section of restricted byway to the definitive map and statement should be confirmed.