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Commons and Rights of Way Committee 10 December 2019

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Commons and Rights of Way Committee 10 December 2019 COMMONS AND RIGHTS OF WAY COMMITTEE 10 DECEMBER 2019 APPLICATION FOR A MODIFICATION ORDER FOR ADDITIONAL LENGTHS OF PUBLIC FOOTPATH AT BOWNACE WOODS, STINCHCOMBE PARISH, GLOUCESTERSHIRE REPORT OF THE LEAD COMMISSIONER COMMUNITIES & INFRASTRUCTURE 1. PURPOSE OF REPORT To consider application; 573/11/210(2) Nature of Application: Additional lengths of public footpath across Bownace Wood Parish: Stinchcombe Name of Applicant: Mrs M E Larroucau Date of Application: 15 June 2007 Landowner: Mr & Mrs P S Pridmore, Melksham Court, Stinchcombe Witness Evidence forms: 4 PPEFs submitted by 4 individuals. 2. RECOMMENDATIONS OF THE CASE OFFICER That no Order be made to add the ways claimed between points A-B & C-D to the legal record of public rights of way due to insufficient evidence. 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 7.1 A location map at scale 1:10,000 is attached (JH1) showing the position of Bownace Wood, Stinchcombe, through which the claimed paths pass. The wood is located approximately one mile west of the town of Dursley (as the crow flies). The area of interest lies within Ordnance Survey Grid Square ST 7398. 7.2 Land Registry records that Mr P S Pridmore has owned the land over which the majority of the claimed paths run since September 2011 under Titles GR166450 & GR190241. When considering the 20 year statutory qualifying period against which the user evidence in support of this application will be analysed, we need to note the predecessors in title to this land; Molyneux Engineering owned the land between the years 1983 and 2004 when it was sold to Mr & Mrs Gatt, who owned the land until its re-possession in 2010 and sale in 2011 to Mr & Mrs Pridmore. There are 2 small areas of land affected by this application which are in the ownership of the Stinchcombe Hill Recreation Ground Trust, registered by Land Registry under Titles GR114976 & GR314756. 7.3 The Definitive Map Modification Order (“DMMO”) application, submitted by Mrs Larroucau on 15 June 2007, included Form 1 and an accompanying plan at 1:2500 scale on which the path is drawn in blue crayon. Form 3 was also supplied, of the same date, certifying that the application had been served upon Mr Gatt, Melksham Court, The Street, Stinchcombe and the Stinchcombe Hill Recreation Ground Trust, c/o Penley’s Solicitors. 7.4 This report will show under sub heading 11; User Evidence, that Mrs Larroucau withdrew her application on 15 October 2015. Subsequently, 11 of the 15 Public Path Evidence Forms (“PPEFs”), including the applicant’s, were also withdrawn. Following an investigation of the remaining evidence and a consultation of user groups and statutory consultees, a report was submitted to the Internal Officers Panel on 30 October 2015 to consider whether there was sufficient evidence for us as the Surveying Authority to process the application as a GCC instigated application. The remaining evidence was considered insufficient to take this application forward and it was therefore abandoned as a ‘live’ application on 2 November 2015. 7.5 Following a recent review of applications considered by the Internal Officer’s Panel, it was felt that this application, due to its reliance on user evidence, should be submitted for ‘official’ determination by the Commons and Rights of Way Committee. 8 DESCRIPTION OF CLAIMED PATH (“PATH”) 8.1 The application concerns two claimed footpaths; A-B & C-D, within Bownace Wood in the Parish of Stinchcombe. A plan at 1:2,500 scale showing the 2 claimed paths is held (JH2). 8.2 The route of the claimed path A-B starts at a point marked A at its junction with Public Bridleway CST35 at Ordnance Survey Grid Reference (OSGR) ST7382/ 9886. The path winds its way through Bownace Wood in a generally south westerly direction for approximately 696m to a point marked B at its junction with Public Footpath CST36 at OSGR ST7353/ 9847. 8.3 The route of the claimed path C-D starts at a point marked C at OSGR ST7370/ 9854 at its junction with the claimed path A-B. It continues in a generally southerly direction for approximately 77m to a point marked D at OSGR ST7371/ 9848 at its junction with Public Footpaths CST36 & CST37 & the boundary with Stinchcombe Hill Golf Club. 8.4 Photographs are attached of the routes (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. OSD171; Stroud -1825 – E. Crocker (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 1825 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. Bryant’s map lists “Turnpike and Mail Roads”, “Good Cross or Driving Roads” and “Lanes & Bridleways” and Greenwood identified turnpike roads and cross roads. Neither purported to show footpaths. The commercial nature of the maps means that routes shown are usually public and publicly maintainable, unless there is strong contemporary evidence which shows that routes are private. 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 68; ‘Bristol’ 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. OS 1828 9.5 Stinchcombe Tithe Map 1839 (13.3inches to 1 mile) Glos Archives ref: GDR/T1/171 Although not produced to record public rights of way, Tithe Maps provide important evidence as to the physical existence of such paths.
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