Page 49 Agenda Item 8

REPORT TO THE DEVELOPMENT CONTROL AND REGULATORY BOARD – 12TH AUGUST 2004

PROPOSED DEFINITIVE MODIFICATION ORDER

UPGRADING OF PARTS OF PUBLIC FOOTPATHS Y98 AND Y99 TO PUBLIC BRIDLEWAY BETWEEN MISTERTON AND WALCOTE

REPORT OF THE CHIEF EXECUTIVE

PART A

PURPOSE

1. The purpose of this report is to seek the Board's approval of the above- mentioned proposal.

Recommendation

2. It is recommended that an Order be made under the provisions of Section 53 of the Wildlife and Countryside Act 1981, the effect of which will be to upgrade parts of footpaths Y98 and Y99 to bridleway between Misterton and Walcote, as shown on the plan attached to this report.

Reason for Recommendation

3. Given the user and historical evidence which has been provided, it would appear to offer solid evidence that parts of public footpaths Y98 and Y99 should be upgraded to public bridleway on the Definitive Map of Public Rights of Way for Leicestershire.

Circulation under Sensitive Issues Procedure

4. Mr. I.M. Morris CC.

Officer to Contact

5. Mr. Gary Jackson, Chief Executive's Department, Tel 0116 2656159. Page 50

PART B

Background

6. An application has been received from Mr. M.A.C. and Mrs. C.V. Perry of Thornhill Stud, Walcote to upgrade parts of footpaths Y98 and Y99 to bridleway, as shown on the plan attached to this report.

7. The application is being processed under the provisions of Section 53 of the Wildlife and Countryside Act 1981.

Legal Considerations

8. As this application partly relies on a claim of user over a period of 20 years, it raises the question of Section 31 of the Highways Act 1980. This states:-

(1) 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 a 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.

(2) 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, whether by a notice such as is mentioned in subsection (3) below or otherwise.

(3) Where the owner of the land over which any such way as aforesaid passes:-

(a) has erected in such manner as to be visible to persons using the way a notice inconsistent with the dedication of the way as a highway, and

(b) has maintained the notice after the 1st January 1934, or any later date on which it was created.

the notice, in the absence of proof of a contrary intention, is sufficient evidence to negate the intention to dedicate the way as a highway.

9. Therefore if the application and any other evidence shows there to have been uninterrupted, unchallenged use over a period of at least 20 years on a route which can be identified with some certainty and such use is of a kind which in itself amounts in law to a right of user (as opposed to a mere licence or being invited onto the land) then the law assumes that there is an implied dedication by the owner of the land of a right of way. Page 51

This implied dedication can be rebutted if the owner can show that there was no intention to so dedicate the land as a right of way.

10. A landowner can do this by producing evidence that users were successfully challenged or asked to leave the land. A landowner can also obstruct the route to prevent public use of it and this will be sufficient to prevent the route becoming a right of way if done for that purpose. The interruption need only be of a brief period. Section 31 also allows a landowner to rebut any claim of a right of way by erecting prominent signs which clearly indicate that there is no right of way and that the land is not subject to any such user right.

11. The Board therefore has to determine if the usage claimed by the applicants or others is sufficient in itself to establish an implied dedication under the provisions of Section 31 of the Highways Act 1980. If so then consider if the landowner has successfully rebutted any such implied dedication.

User Evidence in Support of the Application (User Evidence Document No. 1)

12. 11 statements of user evidence have been lodged in support of the application.

Copies of the User Evidence Document is available for inspection in the Members' Rooms and the Members' Library.

Historical Evidence

13. The Director of Community Services has provided the following historical evidence in connection with the relevant parts of footpaths Y98 and Y99.

(a) John Prior's Map of Leicestershire 1777 (Historical Evidence Document No. 2)

The map's key differentiates between two types of highway, these being Turnpike Roads, shown by solid parallel lines and showing the positions of mile posts, and Cross Roads, shown by broken parallel lines.

The whole of the route between Misterton and Walcote is shown as a Cross Road. The map does not show lesser highways such as bridleways and footpaths.

(b) Cary's Map of Leicestershire 1794 (Historical Evidence Document No. 3)

On this map Turn Pike Roads are shown by solid parallel lines with one line slightly thicker than the other and with numbered mile posts. The more major Cross Roads are shown by solid parallel Page 52

lines of equal thickness and minor Cross Roads are shown by broken parallel lines.

The route in question is shown by solid parallel lines as a more major Cross Road.

(c) Cary's Map of Leicestershire 1801 (Historical Evidence Document No. 4)

On this map all roads are shown by solid parallel lines, with Turn Pike Roads differentiated from Cross Roads by being coloured brown with wider lines and showing the positions of mile posts.

The route in question is shown as a Cross Road.

(d) Cary's Map of Leicestershire 1811 (Historical Evidence Document No. 5)

The route in question is shown as a Cross Road.

(e) Smith's Map of the County of Leicester 1804 (Historical Evidence Document No. 6)

The map's key differentiates between two types of highway, these being Turnpike Roads, shown by solid parallel lines with one line slightly thicker than the other and having the positions of mile posts marked, and Cross Roads shown by thinner solid parallel lines.

The route in question is shown as a Cross Road.

(f) Greenwood's Map of the County of Leicester 1825 (Published 1830) (Historical Evidence Document No. 7)

This map's key differentiates between four types of highway, these being Turnpike Roads, shown by solid parallel lines with one line slightly thicker than the other and having the positions of mile posts marked, more major Cross Roads shown by thinner solid parallel lines, minor Cross Roads shown by parallel broken lines and Bridle Roads shown by short dashes with cross bars at intervals.

The route in question is shown as a more major Cross Road, partly lined on both sides by trees.

(g) Murry's Map of Leicestershire 1831 (Historical Evidence Document No. 8)

In this map's key highways are divided into two types. These are Turn Pike Roads and Bye Roads. The legend used to represent Bye Roads is the same as that used on previous maps to represent Cross Roads. The route in question is shown as a Bye Road.

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(h) Walker's Maps of Leicestershire 1836 & 1860 (Historical Evidence Document Nos. 9 & 10)

There are no keys on the maps, but the depiction of roads appears to follow the same convention as that used on previous maps. The route in question is shown as two solid parallel lines. Some other roads are shown with broken parallel lines. This would suggest that the route was considered a Cross or Bye Road.

(i) Teesdale's Map of Leicestershire 1840 (Historical Evidence Document No. 11)

This map's key identifies Mail Coach Roads as two parallel lines, one slightly thicker than the other, with a row of dots down the middle. It identifies Turn Pike Roads with two parallel lines, one slightly thicker than the other, but without the dots. Finally Bye Roads are identified by two parallel lines of equal thickness.

The route in question is shown as a Bye Road.

(j) Collin's Map of Leicestershire 1860 (Historical Evidence Document No. 12)

As with Teesdale's Map this map's clearly drawn key differentiates between Coach Mail Roads, Turn Pike Roads and Bye Roads.

The route in question is shown as a Bye Road.

(k) Bacon's Map of Leicester & Rutland 1880 (Historical Evidence Document No. 13)

On this map Main Roads are shown by two parallel continuous lines and Cross Roads are shown by thinner parallel lines.

The route in question is shown as a Cross Road.

(l) Bacon's County Map & Guide for Cyclists and Tourists Leicestershire and Rutland 1900 (Historical Evidence Document No. 14)

This edition of Bacon's Map is very similar in appearance to the previous map apart from its key. On this map Main Roads are once more shown by two parallel continuous lines. However, lesser roads are now termed “Other Roads” and are shown by thinner parallel lines.

The route in question is shown as an Other Road.

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(m) Bartholomew's Royal Atlas of England & Wales 1898 (Historical Evidence Document No. 15)

On this map the route would appear to be drawn as a Cross Road or Bye Road, in the same manner as previous maps.

(n) Bartholomew's Map of England & Wales – Birmingham and Leicester 1920 (Historical Evidence Document No. 16)

Bartholomew's 20th Century maps generally differentiate between six different types of route. These are:-

• First Class Roads, shown by two closely spaced parallel lines and shaded red • Through Routes shown by more widely spaced continuous parallel lines shaded red • Secondary Routes (Good) shown by widely spaced parallel lines shaded with red dashes • Indifferent Routes (Passable) shown by parallel lines, or single lines shaded with red dots • Inferior Routes (not recommended for cyclists) shown by parallel lines or single lines and not coloured. • Footpaths and Bridleways shown by a single dashed line.

On this map the route is not too distinct, but it would appear to be shown as an Inferior Route.

(o) Stanford & Mann's Motoring, Cycling & Touring Map – 30 Miles Around Birmingham (Circa 1905) (Historical Evidence Document No. 17)

On this map two types of road are shown. These are Main Roads which are shown by coloured parallel lines and other Roads which are not.

The route in question appears as an Other Road.

(p) First Edition 1 inch to the Mile Ordnance Survey Map 1835 (Historical Evidence Document No. 18)

The route in question is shown as an enclosed route in the Lordship of Misterton continuing to Walcote as a field edge route.

(q) First Edition 26 inch to the Mile Ordnance Survey Map 1888 (Historical Evidence Document No. 19)

On this map the route is shown as an enclosed lane labelled O.S. Parcel No. 200 and lined by trees on either side, from Dale Spinney to O.S. Parcel No. 207, where it is shown to continue to Misterton as a field edge track. Page 55

(r) Second Edition 26 inch to the Mile Ordnance Survey Map 1904 (Historical Evidence Document No. 20)

On this map the route is shown as an enclosed lane, labelled O.S. Parcel No. 200 from Dale Spinney to O.S. Parcel No. 207, where once more it is shown to continue to Misterton as a field edge track.

(s) Walcote in Misterton Enclosure Award 1797 (Historical Evidence Document No. 21)

The Commissioners given the task of drafting this Enclosure Award, were granted leave to proceed with the Enclosure by Private Act of Parliament in 1796. The Enclosure Award and Map were subsequently placed on record in 1797.

The Enclosure Award clearly sets out and apportions the route in question “As and for and to be used as a Carriage Road by any Person or Persons in going to or from the Church of Misterton aforesaid but for no other purpose And to be also used as a public Horse and Footway or Road”.

The route is clearly illustrated on the Enclosure Map for part of its length, but is not specifically identified as having a particular status. However, neither are any of the village Streets nor country lanes on the map so identified.

(t) Tithe Map & Award

Tithe maps and awards were originally given Parliamentary approval by the Commutation of Tithes Act of 1836, and the convention for indicating the various different types of roads on tithe maps was standardised in the following year by Parliamentary Paper 1837 XLI. This document established the convention that any routes considered to be Public Roads should be coloured terracotta on the tithe maps in which they were included.

There does not appear to be a Tithe Map for Misterton & Walcote.

(u) Lutterworth Rural District Council Local Government Act Schedule 1929 (Historical Evidence Document No. 22)

One of the purposes of the 1929 Act was to enable the transfer of highway maintenance responsibilities from district councils to county councils.

In 1929 the now defunct Lutterworth Rural District Council prepared a Schedule of the routes maintained by that Authority and passed this Schedule on to Leicestershire County Council, so that it could take over responsibility for the future maintenance of such routes. Page 56

In this schedule the road through Misterton Park is labelled 55 and is described as “Misterton Park” and as having a length of .52 miles with a waterbound granite surface.

At the other end of the alleged bridleway Chapel Lane is described as being part of “Village Streets, Walcote” with a length of .9 miles and waterbound granite surface. Both these roads are coloured yellow on the plan accompanying the Schedule.

The route in question which links the two aforementioned roads is not shown on the map nor included in the Schedule.

(v) Misterton Parish Council Survey 1951 – National Parks & Access to the Countryside Act 1949 (Historical Evidence Document No. 23)

The Parish Council's Survey Map shows the route in question as a footpath by being coloured purple and by being labelled F.P. In the accompanying written survey the route is described as a “field footpath”.

(w) Definitive Maps 1952, 1957 and 1980 (Historical Evidence Documents No. 24, 25 and 26)

The route in question is shown on the 1952 and 1957 maps as a footpath and also on the abandoned review map of 1980. It is also described in all three statements to these maps as a footpath.

Copies of the Historical Evidence Documents are available for inspection in the Members' Rooms and the Members' Library.

Site Survey (Survey Document No. 27)

14. The relevant parts of footpaths Y98 and Y99 were surveyed on 20th June 2002 and a survey plan together with photographs produced.

Copies of the Survey Document are available for inspection in the Members' Rooms and the Members' Library.

Consultations

15. The following parties have been consulted and have made no objection:

Harborough District Council

Misterton with Walcote Parish Council The Parish Council has stated that it is of the opinion that, as many local people have memories of the path being used as a bridleway or horse road, its designation as such on the Definitive Map is appropriate.

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The Right Honourable Sir Nicholas Redmayne, Walcote Lodge, Brook Street, Walcote, Lutterworth, Leicestershire LE17 4JR (Landowner)

The Ramblers Association This Association has stated that it has considered the historic evidence and the current nature of the route concerned and would not wish to object to this proposal.

Leicestershire and Rutland Bridleways Association (Supporting Document No. 28)

Leicestershire Footpath Association This Association has stated that it has no historical evidence to advance in support of this application, although it is clear from the route claimed, the surface would adequately cope with horses using it, hence would not wish to object to the upgrading.

Sustrans Sustrans have stated that they can offer no evidence in this case other than the circumstantial that the route in question has the feel of an old road, hence would support its upgrading to a public bridleway.

English Nature Cyclists Touring Club Government Pipelines and Storage System Environment Agency Transco plc The Gas Transportation Co. Ltd. Swedia Networks UK Ltd Easynet Telecom Energies Communications Ltd Cable and Wireless UK Colt Telecommunications Tyco Telecommunications East Midlands Electricity Esso Petroleum Co. Ltd Mainline Pipelines Ltd One 2 One Orange National Grid Co. plc Independent Pipelines Ltd Quadrant Pipelines Ltd Global Crossing (UK) Ltd Severn Trent Water Ltd Hutchinson Network Services Kingston Communications

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16. The following parties have also been consulted but no reply has been received:

The Owner or Occupier Bufton Chapel Lane Walcote Lutterworth Leicestershire LE17 4JS (Landowner)

The Owner or Occupier Whisper Wood Chapel Lane Walcote Lutterworth Leicestershire LE17 4JS (Landowner)

British Telecom plc NTL Telewest Communication Consignia Vodaphone English Heritage Loughborough and District CHA Rambling Club Byways and Bridleways Trust The British Horse Society The Leicestershire and Rutland Land Rover Club Endurance GB Serco Gulf Engineering Ltd.

Objections

17. The following objection has been received:

The Right Honourable Lord Cromwell, Warren Farm, Cotesbach (Landowner) - (Objection Document No. 29)

The grounds for the objection are that the route has been previously described as a 'field edge track' and 'field footpath'. The inference presumably to be drawn from those descriptions is that no higher rights were believed to exist. However, there is an abundance of other evidence that the right of way has been used as a bridleway. Although the objection also raises concerns over any possible future claim for alleged public vehicular rights, in any event there is no credible evidence such rights exist.

It is to be noted that one of the other landowners involved has expressly indicated they have no objection to the proposed upgrading of the paths to bridleway status.

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A copy of the Objection Document is available for inspection in the Members' Rooms and the Members' Library.

Conclusions

18. The route in question is shown on many of the antique maps as a Cross Road, which would seem to suggest that it must have been used by horse-riders and possibly horse-drawn vehicles, for such antique maps do not show footpaths.

The transcription of the Walcote in Misterton Enclosure Award of 1797, would also appear to offer compelling evidence that the route in question is, in modern terms, a public bridleway.

The Enclosure is very clear and precise in that it expressly sets out and apportions the route as a Public Horse Road, Foot Road and Church Carriage Road.

Finally, the survey documents clearly show that the path has been set out to a width of approximately 20 feet and has all the physical appearance of a well-appointed bridle road.

Members have to be satisfied the evidence of actual bridleway use and the historical map and other evidence shows the status of the footpaths should be changed to a bridleway. To that extent, the evidence of past usage although limited in terms of numbers of users, does refer to periods of use exceeding 20 years and continuing up to the time the application was submitted to the County Council. There is no evidence that any present or past landowner attempted to challenge such use.

It would appear the provisions of Section 31 of the Highways Act 1980 (presumed or implied dedication) are present. The map evidence gives additional support by showing the ways had a well defined physical presence.

Therefore, the application meets the necessary statutory test set out in Section 53(3)(c)(ii) of the Wildlife and Countryside Act 1981 as a bridleway.

Equal Opportunities Implications

19. None.

Background Papers

20. Correspondence on file PTEPO/696.

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