Tw250506pra Dmr Parish of Morchard Bishop

EEC/06/45/HQ Public Rights of Way Committee 13 June 2006

Definitive Map Review 1997-2006 Parish of Morchard Bishop

Report of the Director Environment, Economy and Culture

Please note that the following recommendation is subject to consideration and determination by the Committee before taking effect.

Recommendation: It is recommended that no Modification Order be made to modify the Definitive Map and Statement to add a public footpath (proposal 17 – Polson Hill to Footpath No. 14, Morchard Bishop) between points A – B as shown on drawing number ED/PROW/06/07.

1. Background

Previously reports have been presented concerning 15 other proposals arising out of the Definitive Map Review in the Parish of Morchard Bishop, whilst a 16th proposal was confirmed via a dedication agreement with the landowner. The report examines an additional proposal raised by the Parish Council in Autumn 2005 and discussed in Appendix 1.

2. Conclusion

It is recommended that no Modification Order is made in respect of Proposal 17 to record a public footpath from Polson Hill to Footpath No. 14, Morchard Bishop.

3. Reasons for Recommendation/Alternative Options Considered

To progress the parish by parish review of the Definitive Map in Mid Devon.

Edward Chorlton

Electoral Division: Newton St Cyres and Sandford

Local Government Act 1972

List of Background Papers

Contact for enquiries: Mike Jenkins

Room No: ABG

Tel No: 01392 383240

Background Paper Date File Ref.

Correspondence file 1996-2006 DMR/MB/TW

tw250506pra sc/dmr morchard bishop 3 hq 020606

Appendix I To EEC/06/45/HQ

Background to the Proposal

A. Basis of Claims

Common Law presumes that at some time in the past the landowner dedicated the way to the public either expressly, the evidence of the dedication having since been lost, or by implication, by making no objection to the use of the way by the public.

The Highways Act 1980, Section 31 (1) 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 actually been 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.

The Wildlife and Countryside Act 1981, Section 53[3] [c] [i] enables the Definitive Map and Statement to be modified if the County Council discovers evidence which, when considered with all other relevant evidence available to it, shows that:

(i) a right of way not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, …….and; (ii) ..any other particulars contained in the Map and Statement require modification.

The Wildlife and Countryside Act 1981, Section 56[1] states that the Definitive Map and Statement shall be conclusive evidence as to the particulars contained therein but without prejudice to any question whether the public had at that date any right of way other than those rights.

1. Proposal 17: Footpath from Polson Hill to Footpath No. 14

Addition of a public footpath from the county road known as Polson Hill to Footpath No. 14, Morchard Bishop, in the village of Morchard Bishop as shown on drawing number ED/PROW/06/07.

Recommendation: It is recommended that no Modification Order be made to add this route to the Definitive Map and Statement as a Public Footpath.

1.1 Background

The Parish review had been re-opened in the parish in May 2003 with the publication of a proposals map showing 15 possible suggestions for changes to the Definitive Map in the parish. All 15 proposals have been considered at previous Committee meetings.

At the P3 (Parish Paths Partnership) committee meeting of 1 September 2003, it was reported that a landowner had put up a ‘Private Road’ sign on the drive from Polson Hill to Higher Parks. At the next meeting the P3 co-ordinator advised that there was user evidence in respect of the pathway and enquiries were continuing.

At the Parish Council meeting on 6 June 2005, the parish council approved additional research being completed for an additional 4 routes as part of the parish Definitive Map Review.

In December 2005 the Parish Council, via the Parish P3 co-ordinator, submitted a list of documentary evidence and some user evidence forms in respect of a possible further addition to the Morchard Bishop Definitive Map. This was for the addition of a public footpath from Polson Hill by the garage, along the private road leading to The Parks to join Footpath No. 14, part of the Two Moors Way walking trail.

1.2 Description of the Route

The proposed path starts from the county road known as Polson Hill, by the garage and proceeds west along the private road/lane past several houses including the house known as The Parks. It then passes through a field gate to the access track leading to Higher Parks, the outbuildings of Higher Parks and agricultural fields, where it joins the route of Footpath No. 14, Morchard Bishop.

The lane is the access (vehicular and pedestrian) to eight properties along its length, has an uneven tarmaced surface to Parks Farm before becoming a ‘crush and run’ hardcore surface at the west end. The route is approx 130 metres long.

1.3 Documentary Evidence

OS Map 1 st Edition 1809 1 inch to a mile On this small scale map an indication of a lane joining the main road from Morchard Road to the village centre is visible. A building in the vicinity of the later Parks Farm buildings is named ‘Lodge’.

Greenwood’s Map 1827 The route is not shown on this small scale map.

Morchard Bishop Tithe Map 1840 The route is shown on the tithe map as a defined lane as it exists today and was numbered 1270 and described as a lane in the apportionment, state of cultivation road. The lane ends abutting a large field. The Tithe Map also indicates that there were a number of different occupiers with property or land adjoining the route.

OS Map 1st Edition 1889 25 inch to a mile The lane is shown defined for the two ends but the section in the middle is not separated from the building labelled ‘Lodge’ which may indicate the lane was not differentiated from the yard. This part and the west end of the lane are included in the apportionment for Lodge numbered 751 area 0.448 acres. Similarly the east end is included under the apportionment for Icicle Cottage number 748 area .552 acres. A solid lane at the west end is believed to denote a gate into the 19 acre field, whilst a dashed line at the east end and about half way along is believed to indicate a change in surface or apportionment boundary.

OS Map 1946 1" to a mile Sheet No. 175 Okehampton This map was submitted in support of the claimed route by the Parish Council, advising that this showed the proposed route linking into Footpath No. 14 as a continuation through to week 1 Middlecott Lane. The key included, shows the depiction of the proposed route and continuation to week as "Minor Roads in towns, Drives and Unmettaled Roads".

This confirms that on this edition Roads and Drives were shown in a similar manner, whether they were public or private. The map indicating the physical characteristics rather than status of the route.

OS Map Post War A Edition 1:2,500 1971 No line is shown across the lane’s junction with the county road. Lodge is now called The Parks and the modern agricultural sheds are shown (constructed since 1946). The house, outbuildings and west end of lane are recorded under one apportionment number 8,629 1.05 acres. Icicle Cottage has been renamed Poundfield and no apportionment number has been given to this and other small parcels of property and land on this mapping. A gate appears to still be shown at the west end and the large 19 acre field of the 1800s has been divided into two and a small strip of land formed west of The Parks outbuildings.

Bartholomew’s Maps On the 1924 Sheet 35 half inch to a mile map of North Devon appears to show the lane continuing south west across the fields along the present route of Footpath No. 14 and then Footpath No 12 to Middlecott Lane at Woodgate. The key describes the uncoloured routes as inferior and not recommended. It is considered that Bartholomew’s maps were marketed at cyclists and motorists and there may have been a through route for cyclists using the lower section of Middlecott Lane and then the route of Footpaths No. 12 and 14. This route at that time would have which followed a hedged lane and headland track for most of the way, possibly giving the impression in 1924 of a higher status route than just footpath and a route useable by cyclists.

Finance Act 1910 The east section of the route is excluded from the adjoining hereditaments, but as these include 5 separately recorded properties indicating occupation by different parties, this is not considered significant. The western end of the route appears to be wholly within hereditament number 245, the property and garden known as ‘Lodge’. When the maps were prepared it would appear that this property may have only comprised the house and garden, rather than the farm it later became, as the hereditament number is 245 and not pt 245, as in the block of fields to the west.

The land to the south of this west section of the lane is also recorded under a different hereditament no 29 and it would also appear that this field and the adjoining no 50 are also separately occupied.

Aerial Photographs The 1946/47 RAF photograph shows a defined lane from A to B as it exists today. Westway Cottage has been constructed on the southern boundary of the route near point A. Two outbuildings are shown within the ‘Lodge’ curtilage but no modern agriculture sheds have been built.

A photograph of Parks Farm taken in 1987 shows Parks farm house and the agricultural sheds subsequently demolished and replaced by the house Higher Parks. On this photograph, two gates on the route can be seen by the centre of the white cottage and one at the west end of the route.

The 1999 aerial photograph shows the properties and lane as it is today. The house known as Higher Parks has replaced the post war farm outbuildings in the north west corner of The Parks and Fountain Meadow has been constructed in the field south of the lane.

Morchard Bishop Parish Council Minutes No reference to the route has been found in the Parish Council minutes from 1894 to 2001. In September 2003 in the P3 minutes it was reported that a landowner had put up a ‘Private Road’ sign on the route.

At the Parish Council meeting of June 2005, the council approved the proposal that a claim for the route should be submitted to Devon County Council to be considered within the parish review.

HM Land Registry The entire length of the proposed route is registered under title no DN407718 which also includes the house and garden known as Fountain Meadow, owned by Mr & Mrs

Snell of Fountain Meadow. Parks Farm farmhouse, outbuildings and adjoining fields were owned by Mr & Mrs Bell from 1965. In June 1978 the farmhouse and some outbuildings were sold (reference 1 on the Land Registry plan) and the conveyance refers to ‘a right of way for the Purchasers and their successors in title the owners and occupiers for the time being of the property hereby conveyed and their respective servants and licensees in common with the Vendor and all other persons having a like right at all times hereafter by day or by night to pass and repass to and from the property hereby conveyed along the private road way coloured blue on the said plan with or without vehicles of any description and with or without animals for all purposes…’

In October 1998 the area of land now known as Higher Parks (number 9 on the Land Registry plan) was sold to Mr & Mrs Powell. In this transfer the land was subject to rights including at number (iii) The right (as hitherto enjoyed) in common with the Transferors and all other persons entitled thereto at all times for the purposes of access to and aggress from the property hereby transferred to pass and repass with or without motor vehicles over and along the roadway coloured brown on the plan annexed hereto…. The roadway coloured brown referred to is shown edged and numbered 2, 7 and 10 in blue on the filed plan.

The section of the lane reference number 2 was subject to further rights in April 2005 when the block of land south west of Higher Parks was sold to Miss A Bissett. The rights included at 13.2 (a) The right for the Transferee her successors in title the owners or occupiers for the time being of the Property and all persons authorised by her at all times and for all agricultural purposes to pass and repass over and along The Access Road provided…. The Access Road referred to is edged and numbered 2 in blue on the title plan.

All three of these separate Transfers of land adjoining the route indicate that the lane was privately owned and therefore it was necessary for the transferees to have a private right of access over the lane in respect of access to their properties recorded in their deeds.

The clause in the June 1978 conveyance for sale of The Parks farmhouse is also included in the Property Register under title number DN429073 for The Parks.

In the property register for Poundfield, under title number DN430521, item 5 states Notice entered in pursuance of rule 254 of the Land Registration Rules 1925 on 10 August 1994 that the registered proprietor claims that the land has the benefit of a right of way with or without animals and vehicles over the roadway tinted brown on the filed plan. The land coloured brown on the plan refers to the eastern end of the lane from Polson Hill to the western boundary of Poundfield. Although this right of way has not been granted, the proprietor would seem to have felt the lane was privately owned and was concerned enough to have the right of way specifically recorded.

1.4 User Evidence

A total of 15 user evidence forms have been received, all completed in 2005 or 2006 and the majority since the path was discussed at the Parish Council meeting in June 2005. The use covers the period from 1935 to 2006 and the level of use varies from 3-4 times a week to a couple of times a year.

The placing of the notice at the end of the lane in 2005 stating ‘Private Road No Access to Footpath’ was a very clear calling into question of the public’s use of the route as a public right of way. The twenty year period of user evidence that needs to be considered under Section 31 of the Highways Act is between 1985 and 2005. The user evidence submitted, summarised on the Chart of User Evidence (to include four user forms received on 31 May, after backing papers deadline) appears to indicate use by five-six people from 1987 to 2005. However, three of the evidence forms relating to this period need to be considered with reservation.

Mr Knight’s form indicates that he initially used the route to deliver hay and rams to Mr Bell, the farmer at The Parks using a tractor or land rover. This would be business use and going to a property on the route would have an implied private right. Mr Knight mentions using the route for walking in more recent times and using the route as a public right of way in a personal capacity would be valid user evidence.

Mrs Lovelace used to reside at Poundfield and advised of regular use of the route from her house to Footpath No. 14. Although the private rights she may have had would probably only have extended to Poundfield (about half way along the lane) from the county road at Polson Hill, it is unlikely that her neighbour would have objected to her use of the west section of the route. Mrs Lovelace does consider the route to be a public right of way and comments that ‘people came past my house to access the village from the Two Moors Way’.

Mrs Taylor records use of the route for a circular walk since 1998 to exercise dogs. Mr Snell, the registered owner of the lane, has advised that he personally gave Mrs Taylor permission to use the lane 5-6 years ago, to avoid a stile. Mrs Taylor’s use would have been with permission and not as a public right of way.

Section 31 of the Highways Act does not stipulate how many people need to use a route during the twenty years to meet the requirements of the Act, but six persons at any one time are deemed to show regular and consistent use. The use must be sufficient to show presumed dedication.

1.5 Landowner Evidence

Landowner evidence forms have been forwarded to all properties adjoining the route and responses received as follow.

Mr & Mrs Snell have resided at Fountain Meadow since 1985 when the bungalow was purchased from Mr & Mrs Bell, together with the farm buildings at Parks, agricultural land and the lane from Polson Hill to the junction with Footpath No 14. Mr Snell states that he has turned back or stopped people not known to them in the last 20 years and confirms erecting the ‘Private Road No Access to Footpath’ notice. He also refers to giving permission to use the lane to Mrs Taylor about six years ago.

Mr & Mrs Ellwood have resided at The Parks (the old Parks Farm farmhouse) since August 2003. They have noticed Mrs Taylor walking with her dog a couple of times a week and occasionally other walkers. They had spoken to two ramblers who strayed off Footpath No 14 last summer. In an additional statement they refer to horse races being held in a nearby field (as mentioned in Mr Knight’s user evidence form) until 1939.

Mr & Mrs Joy have resided at Poundfield for nearly 5 years. They do not believe the lane to be a public right of way and have not evidenced it being used as such.

N Ruggles purchased Westway Cottage 7 years ago; does not consider it to be a public right of way and is not aware of people using it as such.

Mrs M Bisset purchased the new house called Higher Parks (on the site of the old farm buildings) and 20 acres of land in February 2002. A sign was erected by the field gate at the boundary to Mrs Bisset’s land stating ‘Higher Parks PRIVATE No Through Road’. A further sign was also erected in 2005 on the other side of the gate, visible from the line of Footpath No. 14 and saying ‘Private Road No Through Road’. As the lane provided access to an additional area of land owned by Mr Snell and

rented to a local farmer, the gate was often left open and could not be locked, as the farmer or Mr Snell could have required access at any time.

In April 2005 this additional land was sold at auction and purchased by Miss Bisset. As Mrs and Miss Bisset had exclusive possession to all the land accessed via the lane, the field gate could now be locked. In her form Miss Bisset advises that she had questioned Mr Ellwood when he was using the lane, about two years ago, before learning he was a new neighbour.

1.6 Rebuttal Evidence

In rebuttal to the existence of a public right of way, several letters have been received.

Mrs Bell, together with her husband, lived at Park Farm and then Fountain Meadow from 1965 to 1985 during which time the lane was in their ownership. She writes that the private road ‘was never a public footpath and we never allowed people to use it as such’ .

Mr N Snell of Rectory Gardens advises that he has lived in the village for 70 years and does not ever remember there being a footpath in the lane by the garage to Parks Farm. He understood it to be a private road.

Mr R Partridge of Blendan has lived in the village for over 60 years. He writes that he knew Mr Bell when he lived at Parks Farm and remembers Mr Bell mentioning that there was no footpath past the dwellings and farm buildings and that he ordered walkers back to the correct footpath.

Mr S Jeffery of Tatepath has advised that his family have lived and farmed at Morchard Bishop for over 50 years and have used the access to Parks Farm for over 20 years to access the fields. He states that the original lane was the access to Parks Farm buildings and land and has never been used or assumed to be a right of way.

Mr K Partridge of The Laurels has resided in Morchard Bishop for over 60 years. He has objected to the proposal but not provided any evidence of reputation.

1.7 Evaluation of Evidence

Maps of the route from 1809 to the post war provide evidence of the physical state of the route and development of the buildings in the vicinity, but do not confirm the status of the route.

The Tithe map apportionment records the route as a lane which it was/is and by 1910 when the Finance Act plans were prepared, it appears that the house ‘Lodge’ later Parks Farm, was under separate occupation to the adjoining agricultural land. The east end was excluded, as may be expected by the number of adjoining hereditaments and the west end is included within the hereditament for ‘Lodge’, showing it was under private ownership at that time.

Information held at Land Registry confirms that the whole length of the lane is registered under the title number for Fountain Meadow in the proprietorship of Mr & Mrs Snell. Private ownership doesn’t mean that the lane couldn’t be a public right of way as most Public Rights of Way do run over private land. However, the consistent inclusion of clauses referring to properties having a private right of way over the lane, in the titles for Fountain Meadow, The Parks and Poundfield indicate that the road was private and it was important for the owners of the properties accessed by the route to have a right of access recorded in their property deeds. Although it might be argued that the clauses refer to permitting use with vehicles, they do mention with or without vehicles and with or without animals.

The User evidence submitted is not considered adequate to satisfy the requirements of section 31 of the Highways Act 1980 for the period of 20 years before the calling into question by the notice at the Polson Hill end and locked gate by Higher Parks.

The presumption that the way had been dedicated to the public can be contradicted by evidence to show that the landowner never intended to dedicate the way.

The erection of the initial sign by the gate leading to Higher Parks in 2002 stating ‘Higher Parks PRIVATE No Through Road’ could be taken as a sign of lack of intention. However, as many rights of way run along private land and the sign refers to No Through Road it could be interrupted as applying to vehicles attempting to use the new access track at Higher Parks for turning and not to users on foot.

Additional evidence of a lack of intention to dedicate is provided in the letters from local residents. The evidence from Mrs Bell covering the period 1965-1985 falls outside the 20 year period but her letter and the other letters provide evidence of reputation that the route was not considered to be a public right of way during the last 60-70 years.

1.8 Conclusion

It is not considered that there is sufficient evidence to indicate that a public right of way not presently shown on the Definitive Map and Statement subsists or is reasonably alleged to subsist. User evidence has been submitted but does not show regular and consistent use of the route as a public footpath for the required number of years before the calling onto question of 2005.

The historic, documentary and user evidence considered is not sufficient to support a claim under common law that the route had been previously dedicated by the landowner prior to 1985.

It is therefore recommended that no Modification Order be made to add the route from the county road known as Polson Hill west along the lane/drive leading to Higher Parks, as shown on drawing number ED/PROW/06/07 as a public footpath to the Definitive Map and Statement for the parish of Morchard Bishop.