Agenda Item 8

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. Page 53 (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.

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