Rights of Way Committee Agenda Item No. 10

23 February 2010

Ashurst, and : Application for a Definitive Map Modification Order (Application No: 4/08) to add to the Definitive Map and Statement for a network of footpaths from Chates Footbridge to Eatons Farm Footbridge and Bines Bridge, via Merrions Weir Footbridge.

Report by the Head of Legal and Democratic Services

Executive summary

The application, made under the provisions of Section 53 of the Wildlife and Countryside Act 1981, seeks to modify the Definitive Map and Statement for Chanctonbury and Horsham by adding a network of footpaths from Chates Footbridge to Eatons Farm Footbridge and Bines Bridge, via Merrions Weir Footbridge. Path X runs from points A-B-C on the report plan, Path Y runs from points C-D on the report plan and Path Z runs from points C-E-F on the report plan.

All evidence in respect of this claim is available for inspection in the Member’s Room prior to the meeting.

Conclusion

1. The application is based on evidence of use and 56 witness evidence forms were submitted in support of the claim, testifying to use between 1946 and 2008.

2. The County Council has undertaken its own archive research. It is concluded that there is insufficient archive evidence to support the claimed route as having public highway status. In the absence of conclusive archive evidence the claim is considered under Section 31 Highways Act 1980.

3. For the purpose of considering the claim based on the evidence of use, the event which brought the public right to use the way into question was the construction of replacement footbridges at Chates Dam and Merrions Weir in approximately 2004. The relevant 20 year period of continuous use considered for the purposes of this application is therefore 1984 - 2004. The evidence of actual use shows that members of the public are using the route on foot only.

4. In relation to Path X, there is sufficient evidence to show that on the balance of probabilities the relevant tests under Section 53 of the Wildlife and Countryside Act have been met.

5. In relation to Path Y and Path Z, the evidence provided to dispute the claim conflicts with the evidence of use submitted with the application. It is considered that on the balance of the available evidence, it can be reasonably alleged that the relevant tests under Section 53 of the Wildlife and Countryside Act have been met.

Recommendation

(i) Path X

That a Definitive Map Modification Order, under Section 53 (2) in consequence of an event specified in sub-section 53 (3) (c) (i) of the Wildlife and Countryside Act 1981, to add a footpath at Chates Dam and Merrions Weir (between points A-B-C on the report plan) be made.

(ii) Path Y

That a Definitive Map Modification Order, under Section 53 (2) in consequence of an event specified in sub-section 53 (3) (c) (i) of the Wildlife and Countryside Act 1981, to add a footpath from Merrions Weir to Bines Bridge (between points C-D on the report plan), be made.

(iii) Path Z

That a Definitive Map Modification Order, under Section 53 (2) in consequence of an event specified in sub-section 53 (3) (c) (i) of the Wildlife and Countryside Act 1981, to add a footpath from Merrions Weir to Eatons Farm (between points C-E-F on the report plan), be made.

1. Character and features of the route

1.1 The site was visited on 17th March 2009. The photographs taken during this site visit will be displayed at the Committee meeting.

1.2 The claimed routes are marked on the plan attached to this report and is identified in three separate sections for ease of reference:

The section from the eastern branch of the , across Chates Dam footbridge and Merrions Weir footbridge is shown running between points A-B-C and is referred to as path X in the report.

The section running northwards from Merrions Weir Footbridge towards Bines Bridge is shown running between the points C-D and is referred to as path Y in the report.

The section from the western bank of the western branch of the river Adur, at Merrions Weir, southwards to Eatons Farm footbridge is shown running between points C-E-F and is referred to as path Z in the report.

Path X

1.3 Starting at point ‘A’, at its junction with footpath no. 3200 the claimed path crosses the eastern branch of the river Adur via Chates Footbridge. The width of the gateway onto the footbridge is approximately 0.9 metres and this was padlocked shut at the time of the site visit. The footbridge is approximately 1.2 metres wide and was undergoing repair at the time of the site visit. There is no gate at the western end of the footbridge.

The claimed route then turns in a southerly direction towards a fork in the river Adur. The path runs along the riverside embankment at a height of approximately 1 metre above the river bank with a useable width of approximately 3 metres. The path has a surface of soil and grass and is well-drained.

1.4 At point ‘B’ the claimed route turns in a generally northwest direction towards Merrions Weir footbridge and continues along the riverside embankment. After approximately 50 metres the route turns in a westerly direction and crosses Merrions Weir footbridge, which appears to have undergone recent repairs.

There are gates on both the eastern and western bank of the river. The gate on the eastern bank of the river has a width of approximately 1 metre and was locked shut at the time of the site visit. The footbridge also has a width of approximately 1 metre and a metal surface with handrails to each side. The gate on the western bank of the river was not locked at the time of the site visit.

Path Y

1.5 From point ‘C’ the claimed path has a useable width of approximately 3 metres. The path runs northwards along the riverside embankment towards Bines Bridge. After approximately 10 metres the path is obstructed by a metal field gate, with an opening of approximately 2.6 metres. Attached to this gate is a notice, of apparently recent origin, which reads ‘PRIVATE LAND No access without permission’. The fencing alongside the gate runs down to the river’s edge and there is a low stile at the level of the riverbank.

1.6 The claimed route continues along the embankment with a useable width of approximately 2.5 metres and a well drained grassy surface. The surface of the path is lightly worn, with no obvious footprints. The fields are laid to pasture, but on the day of the site visit there were no livestock present in the fields. The outlook is generally open, with fields fenced, but no fencing running alongside the river. There are occasional trees at field boundaries, which appear to be mature oaks. A number of drainage channels cross under the claimed route and enter the river via sluice gates.

1.7 After approximately 135 metres, there is a second field gate with fencing down to the river. The gate has an opening of approximately 2.7 metres and is padlocked shut. A notice of apparently recent origin is displayed on this gate, which reads ‘Private No public right of way’ and ‘No access without permission’.

1.8 Beyond the gate the path continues along the embankment with a useable width of approximately 2.5 metres and a surface in a similarly good condition; grass and well drained. After approximately 520 metres there is the remains of a gateway, with a width of 3.4 metres and fencing down to the river.

1.9 The claimed path continues in a generally north-west direction towards Bines Bridge and then turns in a westerly direction after approximately 230 metres as it approaches the highway B2135. There is a further field gate approximately 5 metres from the highway with an opening of approximately 3.6 metres. This gate is padlocked shut and there is a notice on the northern side of the gate, of apparently recent origin, which reads ‘PRIVATE LAND No access without permission’. There is a stile immediately adjacent to the gate which gives access to an area separated from the highway by a timber barrier and fencing, with a further stile crossing onto the highway (Point ‘D’).

Path Z

1.10 From point ‘C’ at Merrions Weir footbridge, the claimed path runs in a generally south easterly direction for approximately 90 metres towards a fork in the river Adur (Point ‘E’). The width of the path showing apparent use is 0.5 metres, although the total useable width along the embankment is approximately 2.5 metres. The path then turns in a generally south westerly direction towards Eatons Bridge. The land is laid to pasture, with no livestock present at the date of the site visit.

1.11 After approximately 160 metres, there is a stile over a section of broken fencing, with two field gates to either side, each with an approximate width of 3.6 metres. The path continues to run along the embankment for approximately 240 metres in a south westerly direction until it reaches another two field gates, tied shut, with fencing down to the river bank on the eastern side and to a sluice channel on the western side. The gates each have an approximate width of 3.7 metres.

1.12 The claimed path continues along the embankment with little evidence of recent use. At approximately 75 metres from the end of the claimed route there is a further field gate, tied shut with rope, which has a width of approximately 3.6 metres. There are clearly defined vehicle track-marks and footprints to either side of this gate.

1.13 The claimed route ends at its intersection with footpath nos. 2520 and 3202 at Eatons Farm footbridge (Point ‘F’). The path has a width of approximately 3 metres with evidence of recent use in the form of footprints and general surface wear.

2. Land ownership

2.1 A Land Registry Search undertaken by West County Council shows that the land over which the claimed paths run is registered under the following names:

2.2 Path X

Title number WSX312202 is registered under the names of Michael Philip Nash and Gillian Mary Nash of Brighthams Farm, Bines Road, , Horsham, RH13 8EQ This landownership is shown coloured green on the land ownership plan;

2.3 Path Y and Northern Part of Path Z

Title number WSX288796 is registered under the names of Alan David Llewhellin Griffiths and Janice Elizabeth Griffiths of Merrion Farm, , Partridge Green, Horsham, West Sussex RH13 8EH This landownership is shown coloured blue on the land ownership plan; and

2.4 Southern Part of Path Z

Title number WSX313133 is registered (from 02/06/09) under the names of Mr. David Stephen Delaval Smail and Ms Debbie Smith of Eatons Farm, The Village, Ashurst, , West Sussex BN44 3AP. This landownership is shown coloured red on the land ownership plan. (The previous owners were Graham Martin Sullivan and Kerry Frances Sullivan).

3. Consultations

3.1 Before making a Definitive Map Modification Order, the County Council is obliged to consult the relevant District or Borough and Parish Councils. Consultations have also been carried out with other interested bodies. In considering the result of the consultations, Members of the Committee are requested to bear in mind that, when determining this application they can only take into account evidence which demonstrates whether or not the tests in section 53 have been satisfied. Members are requested to refer to Section 5 of ‘The Guide to the Law for the Right of Way Committee’.

The consultation responses are as follows:

3.2 Council No response received.

3.3 Ashurst Parish Council does not support the application for the following reasons:

“…There are notices on both weirs informing that there is no public access without permission, there are also the same notices on some locked gates on the property of Merrion Farm…

…The length and condition of the grass on the river bank does not support the claim of regular pedestrians…

…As far as the Parish Council is aware there is not and has never been a public footpath along this route…”

The Parish Council also makes the following points which are not issues relevant to the consideration of this claim and may be properly disregarded:

“…An alternative path already exists from Eaton’s Bridge to Bines Bridge which crosses through Merrion Farm and across Bines Common to Bines Bridge…

…Over the past few years swans have been nesting on the stretch of river near to Bines Bridge, where fishing is also permitted. Regular walkers, especially with dogs will most certainly have a detrimental impact on the wildlife…”.

3.4 Henfield Parish Council supports the application, although it is acknowledged that “…there may be some issues regarding support from the Environment Agency...”

The Clerk writes that the matter “…has been considered in some detail...” and submits a copy of the report made by Henfield Parish Councillor Tony Rickard to the Parish Council. The Clerk also submits an aerial photograph showing Chates and Merrions Bridge.

3.5 West Grinstead Parish Council considered the application and the Clerk writes that Members questioned whether people had actually been walking across the weirs for many years, due to the difficulty of so doing. The Members also had the following concerns about the application, although these issues are not relevant to the consideration of the claim and may be properly disregarded:

that the proposed footpaths involve traversing the two weirs that have been closed for 15 years due to their dangerous condition;

that if the footpaths were to be opened, then the weirs would have to be upgraded by the Environment Agency which may be at a ‘very significant’ cost to the taxpayer; and

that another footpath to enable the public to walk down both sides of the river would seem unnecessary, since there are already many footpaths in the area.

3.6 The Ramblers’ Association supports this application. The Local Footpath Secretary for the area writes that “…there is evidence of current use...” and describes “…a line of shorter grass…” leading from two stiles at the junction of the claimed path with the B2135 towards the river Adur.

The Secretary also writes that “…there is a notice on the adjoining gate reading “Private Land” and “No access without permission”. She reports that the “crossings” at Chates Dam and Merrions Weir are “…closed to the public by padlocked gates…”.

The Secretary writes that on the day of her visit she observed two people walking along the section of the claimed path between the branch in the river Adur and Eatons Farm footbridge (where the path joins footpaths nos. 2520 and 3202).

3.7 No consultation replies were received from any of the other amenity societies.

3.8 The County Council’s Access Ranger for the area was also consulted and has advised that the claimed route “…has been used for many years…” and that “…The Environment Agency have already refused locals permission to access the weir, which is locked…”

3.9 The Chanctonbury County Local Committee was consulted and a response was received from Committee Member Mr. Derek Deedman, Councillor for Castle.

Mr. Deedman writes that “…this looks a reasonable proposal…”, Mr. Deedman had no other comments on the application.

4. Evidence submitted in support of the application

4.1 The application to add to the Definitive Map and Statement for Chanctonbury and Horsham a network of footpaths from Chates Dam footbridge to Eatons Farm footbridge and to Bines Bridge, via Merrions Weir footbridge in the Parishes of Ashurst, Henfield and West Grinstead was submitted by Mr. Nicholas Parrott of Ameys Cottage, Stonepit Lane, Henfield, West Sussex BN5 9QU on 2nd July 2008.

4.2 The application was supported by 56 public evidence forms. 8 of these public evidence forms were marked with incomplete routes, small sections of routes or did not contain any dates and so have not been used when assessing the evidence. Further, 6 of the witnesses claim to be exercising a private or legal right and therefore their evidence must be disregarded. The analysis of the paths, therefore, is based on 42 of the public evidence forms. The user evidence is from 1946 to 2008 on foot and the claim is for a public footpath.

4.3 Path X

All 42 witnesses claimed on their public evidence forms to use Path X. 41 of the 42 users claim to use Path X in conjunction with either one or both of the other claimed paths. The remaining 1 user claims to use Path X on its own. 14 of the 42 witnesses claim to use all three paths.

4.4 22 of the 42 witnesses do recall the existence of stiles and gates along the claimed route. Of these, 10 mention stiles and gates, 3 recall stiles only and 2 recall gates only. 4 witnesses mention field gates and fencing along the riverbank, while 6 witnesses limit their comments to stiles and gates at the footbridges. Mr. Stephen Love (who claims use from 1976 to 2006) records farm gates along the river bank and safety barriers by the bridge. Of the 6 witnesses who report stiles and/or gates at the footbridges, 4 witnesses claim no obstructions until recent years. Mr.T. Hickling (who claims use from 1983 until the footbridges were closed) records that the footbridges had “…simple moveable bars – not locked/barbed wire…”. Mrs. Pauline White (who claims use from 1983 to 2007) reports that formerly the bridges were not gated, with “…posts only to stop cattle straying across, now padlocked gates…”. Mr Raymond White (who claims use from 1983 to 2007) records that “…gates have been erected either side of both footbridges to prevent access within the last 3 years…”.

4.5 Path Y

Of the 42 witnesses, 24 claimed on their public evidence forms to use Path Y. 10 of the 42 witnesses claim to have used the route from Chates Dam Bridge to Bines Bridge, which is Path X and Path Y. The remaining 14 witnesses claim use in conjunction with both Path X and Path Z. There is no evidence of any use of Path Y on its own.

4.6 Path Z

Of the 42 witnesses, 31 claimed on their public evidence forms to use Path Z. 17 of the 42 witnesses claim to have used the route from Chates Dam Footbridge to Eatons Farm footbridge, which is Path X and Path Z. The remaining 14 witnesses claim use in conjunction with both Path X and Path Z. There is no evidence of any use of Path Z on its own.

4.7 General Evidence None of the witnesses recalled any notices along the claimed routes prohibiting use prior to 2004. 23 of the 42 witnesses report that there have never been any deliberate obstructions along the claimed route and 11 out of 42 witnesses cannot recall any obstructions or did not record any obstructions on their witness evidence forms. None of the witnesses describe any other form of obstruction to the claimed path. Mr. David Cosham (who claims use from 1972 – 2004) describes two standard five bar gates which he marks on the plan attached to his witness form at a short distance north of Merrions Weir footbridge on the western side of the river Adur and at a point further north towards Bines Bridge.

5. Evidence submitted by adjoining landowners

5.1 Requisitions for Information and consultation requests were sent out to all the landowners identified at paragraph 2.1 above The representations made by the landowners are set out below.

5.2 A Requisition for Information and consultation request was also sent to The Area Manager, The Environment Agency, Saxon House, Little High Street, , West Sussex BN11 1DH in relation to the footbridges at Chates Dam and Merrions Weir. No reply has been received.

5.3 Path X

Representations from Michael Philip Nash and Gillian Mary Nash of Brighthams Farm, Bines Road, Partridge Green, Horsham, West Sussex RH13 8EQ.

Mr. and Mrs. Nash are the owners of Brightmans Farm, having held this interest in the land since 1982. The Path X crosses the land owned by Mr. and Mrs. Nash between Chates Dam footbridge and Merrions Weir footbridge. Mr. Nash states that his family “…are long established Dairy farmers, who have farmed the area in question since 1924 and have run a dairy unit since 1954.” They do not consider the claimed route to be a public right of way and would not be willing to dedicate a public right of way along the way. Mr. Nash writes that “… when we purchased the land in 1982 it was clearly stated on the deed plans that there was no public right of way.”

Part of the way is visible from Brightmans Farm and Mr. Nash records that he has not seen members of the public using the way, although in 2002 he instructed an employee to turn back a ‘person unknown’. Mr. Nash strongly disputes use of the way by the applicant and other members of the public and writes that his neighbours at Bines Farm and Bines Farmhouse, who also have clear views of the proposed route, support his assertions.

He has not given permission to anyone to use the way, which he describes as a “…challenging climb across …a dangerous area.”, due to the dangers of the river when in full flood. There are no stiles on their land, although there are locked gates at the river crossings.

Mr. Nash is concerned that a public footpath along the claimed route would “…compromise our grazing policy on the land…”. He asserts that there is already an adequate network of footpaths in the area and that the cost to The Environment Agency of carrying out the necessary safety upgrades to the footbridges is prohibitive. These issues are not relevant to the consideration of this claim and may be properly disregarded.

5.4 Path Y and Northern Part of Path Z

Representations from Alan David Llewhellin Griffiths and Janice Elizabeth Griffiths of Merrion Farm, Bines Green, Partridge Green, Horsham, West Sussex RH13 8EH.

Mr. Griffiths writes that Merrion Farm has been in the ownership of his family since 1925 and that he has lived there for 43 years. Path Y crosses his land from Bines Bridge in the north, south to Merrions Weir and Path Z crosses his land from Merrions Weir towards Eatons Farm. He asserts that the way has never been a public right of way.

Only very rarely has he seen members of the public using the way on foot and he asks them to leave; this has happened twice in the last two years.

Mr. Griffiths relates that the bank along which Path Y and Path Z runs is divided by five gates and fences. He asserts that all these gates are always locked and that only three of the fences have stiles fitted. There are signs on three of the gates saying “Private Land No Admission Without Permission”, although the investigating officer noted that these appear to be of recent origin (see paragraph 1.5 above).

Mr. Griffiths writes that the present weir at Merrions Weir footbridge was constructed in 1973. He continues, “The bridge is an integral part of the weir, housing the hydraulic mechanism for raising and lowering the weir. It is also needed for access as environment agency personnel can only drive to one side of the weir. This bridge has always had a barrier on each end although possible to climb over or under. In 2004 this barrier was removed and locked gates fitted for Health and safety reasons.”

Permission has been granted by Mr. Griffith’s family to The Henfield and District Angling Society to fish from the bank of the river Adur, during the coarse/game open season only, over approximately the last 50 years. He writes that the stiles were installed to allow ease of access to the fishermen. He has also given permission to certain family, friends and neighbours to walk along the river bank.

Mr. Griffiths mentions that no footpath is shown along the claimed route on any edition of the Ordnance Survey map or the definitive map.

Mrs. Griffiths writes that she has lived on Merrions farm since 1989 and from 1999 has run or walked along the claimed route most days throughout the year. From 1989 to 1999 she also spent long periods of time with her small children along the river bank in question. Mrs. Griffiths recalls meeting fishermen using the way during the season, but only twice does she remember meeting members of the general public.

Permission to access the river bank has been given to Steyning Young Farmers Club for social activities, including “…trialling their bath tubs for an annual local race…” and to the Girl Guides for camping. In addition, a Mssrs. Wayne and Trevor Sweep have been granted permission to metal detect since 2004. Mrs. Griffiths writes, however, that “…at no point have we welcomed everyone.”

Southern Part of Path Z

5.5 Representations from Mr. David Smail and Ms Debbie Smith of Eatons Farmhouse, Ashurst, Steyning, West Sussex BN44 3AP.

Mr Smail and Ms Smith are the owners of Eatons Farm and have held their interest in the land since May 2009. The southern section of Path Z up to its termination at point F crosses the land owned by Mr Smail and Ms Smith. The owners do not consider the claimed route to be a public right of way and confirm they have granted Mr Michael Nash a private right to use the way while he remains their tenant farmer.

Mr Smail and Ms Smith have not deposited a map and statement with the County Council under Sec 31(6), but are aware of the Sec 31(6) deposit made by the previous owner Mr Sullivan in 2008 (this is considered at para 6.11).

6. Archive and other evidence

6.1 No archival evidence was submitted to support the application. The Council carried out its own research at the County Record Office. Various maps of the area were examined, including: early maps such as those in ‘250 Years of Map Making’; a number of editions of Ordnance Survey maps; the Tithe Awards for Ashurst, Henfield and West Grinstead and District and Parish Council Records. Where possible copies have been taken and these can be examined in the evidence file.

6.2 The Early Maps and ‘250 Years of Map Making’

The following maps were examined: 1724 Budgen 1778 Yeakell and Gardner 1795 Gardner and Gream 1792 draft First edition – Ordnance Survey. 1813 Ordnance Survey 1825 Greenwood

6.3 None of these maps depict the claimed route.

6.4 West Grinstead Tithe Map, Part 3 (South) and Apportionment 1841

The Tithe Map shows land as numbered and roads as numbered and coloured. The Tithe Maps shows part of Path X as double– pecked lines running past the present position of Chates Dam footbridge on the west side of the eastern branch of the river Adur to the fork in the river Adur (parcel ‘931’), and then on to the present position of Merrions Weir footbridge on the east bank of the western branch of the river Adur (parcel ‘957’). The double-pecked lines then continue northwards towards Bines Bridge on the opposite side of the river to the claimed route. The parcel of land identified as ‘931’ is described in the apportionment as ‘Moak Bridge and River bank. Lammas Land Chargeable’, the owner/occupier is identified as ‘Moak Bridge Canal Co.’. Parcel ‘957’ is described as ‘House Wharf and Canal Lammas Land Chargeable’ under the ownership of the ‘Bay Bridge Canal Co.’.

6.5 Adur Navigation Act 47 Geo. III 1807

The Adur Navigation Act is a Public Act brought about to improve the navigation of the river Adur by vessels “…drawing three Feet Water…”. The Act gives the Trustees appointed under its provisions the “…full Power and Authority to make, set out, maintain, and keep proper Towing Paths in such places upon the Sides or near to the Said River, for the towing, haling, or drawing of Rafts, Boats, Barges…passing upon the said River…”

6.6 Ordnance Survey Maps

Various Ordnance survey maps dating from 1863-1916 were examined at the County Record Office. It is generally accepted that Ordnance Survey maps depict practically all man-made features to be found on the ground at the time the land was surveyed. The Ordnance Survey prints a disclaimer on its maps to the effect that depiction of a road is not evidence of its status. These maps, dating from 1863 -1916, all The book of reference with the 1863 edition identifies”.

6.7 Quarter Sessions Records

A search was made in the County Record Office of the Quarter Sessions Records. No record of any extinguishment of public rights over the way was found.

6.8 Definitive and Rights of Way Maps

When the Rights of Way Act 1932 came into force it enabled paths to be claimed in the same way as under section 31 of the Highways Act 1980. It also allowed landowners to deposit plans showing ways they admitted as public and to state they had no intention to dedicate other ways. In order to be able to respond to these the County Council asked local authorities to let them have details of rights of way in their areas. This information was then used to compile four maps of the county. These are not definitive maps of public rights of way and with little accompanying documentation it is not always possible to determine the status of a path shown on the map. All paths are coloured orange.

6.9 The maps showing the parishes of Ashurst, Henfield and West Grinstead show that the claimed route was not recorded as a public right of way at that time.

6.10 The Definitive Map and Statement of Public Rights of Way as it exists today has its origins in the National Parks and Access to the Countryside Act 1949. Under this legislation parish councils were asked to submit maps and statements showing those paths they believed were public rights of way and should appear on the definitive map. The claimed route was not claimed as a public right of way by Ashurst, Henfield or West Grinstead Parish Councils and it is not shown as such on the Draft, Provisional and Definitive maps.

6.11 Section 31 Deposit A search of the County Council’s rights of way records have revealed two deposits of a map and statement under Section 31(6) of the Highways Act 1980, The deposits have been made with regard to Eatons Farm, which is the southern part of Path Z. The first deposit was made in 1993 (which is during the relevant period) by Mr Timothy Lawrence Ireland and the second deposit was made in 2008 (which is outside the relevant period) by Mr Graham Martin Sullivan. The 1993 deposit did not have a subsequent statutory declaration deposited within the time limit as required by the legislation. Guidance shows that the deposit of maps and statements is one of the strongest proofs available of the existence of the rights of way shown on them. Neither deposit shows the claimed route.

6.12 The legislation for this procedure prescribes a two stage process. Firstly, the deposit requires a statement and map and secondly at any time within ten years thereafter the lodging of a statutory declaration. The purpose of the statutory declaration is to confirm that no other highways have been dedicated by the landowner since the map and statement were deposited with the authority, or if dedications have been made, to identify these new highways. It has been held that it is the statutory declaration, not the statement and map which provides the relevant evidence of intention. The role of the map and statement is two fold; to provide a date from which to reference the lack of intention to dedicate and to identify the land in respect of which the deposit is being made. In conclusion, until a statutory declaration is submitted, a Section 31 deposit cannot automatically be taken as constituting sufficient evidence of a lack of intention to dedicate any further highways over the land, other than those acknowledged in the original deposit.

7. Consideration of the claims

7.1 The archival evidence suggests that part of Path X broadly follows the line of a canal towpath created under the provisions of the Adur Navigation Act 1807, but there is no evidence to support its status as a public highway.

7.2 In the absence of conclusive archive evidence, the claim for the existence of a public right of way must be tested under section 31 of the Highways Act 1980. Under s.53 (3) (c) (i) of the Wildlife and Countryside Act 1981 the applicant must show that either on the balance of probability a right of way exists or, if the evidence is conflicting, that it is reasonable to allege the existence of a public right of way.

7.3 Analysis of the Paths

Upon analysis of the user evidence, it can be seen that the claimed route has three distinct paths which are able to be claimed in isolation of each other despite the fact it may have the effect of creating a cul-de-sac in each case. The law only requires a right of way to have a fixed termini and to follow a defined route. In the majority of instances the termini of public rights of way are other public rights of way, but there is no rule laid down that this needs to be the case.

The 20 year period 7.4 Under section 31 of the Highways Act 1980 use of the land has to be shown for a full period of 20 years. This relevant period needs to be established to determine the period when the land was actually enjoyed by the public ‘as of right’ and ‘without interruption’. The 20 year period is calculated retrospectively from the date when the right of the public to use the way was brought into question by notice or otherwise.

7.5 The applicant has confirmed that he was first challenged in around 2004 when the Environment Agency carried out works to Chates Dam and Merrions Weir footbridges, including erection of gates preventing access. Signs which read ‘No Right of Access’ were also erected at both footbridges.

7.6 There are notices displayed along Path Y which state ‘Private Land. No Access Without Permission’. These appear to be of recent origin and it has been confirmed by Mrs. Janice Griffiths that these were erected following notice of the application being served in 2008.

7.7 The relevant period for the purpose of this application is therefore the 20 years immediately prior to 2004; 1984 – 2004.

The House of Lords has provided guidance on the meaning of the phrase “as of right”. The Lords confirmed that this phrase means without force, secrecy or permission. While it had been thought that the users of a path had to believe they were entitled to use the route in order for their use to be “as of right”, this is no longer the case. Knowledge, ignorance or indifference as to their entitlement to use the route is irrelevant. What is important is that, looked at objectively, they appeared to be using the path as of right.

As regards “permission”, there is a distinction to be drawn between toleration and permission. A landowner may be aware of the use of a path, but choose to do nothing to prevent that use. In those circumstances, even if he later makes it clear he did not support the use of the path during the relevant period; his actions could be regarded as toleration of the use during that period. This means the use could still be regarded as being as of right. The situation would be different, however, if the landowner permitted the public to use the path, but made it clear (either expressly, e.g. by a notice, or through conduct e.g. by closing the path occasionally) that his consent could be withdrawn in the future. In that case the use would be with permission and not as of right.

7.8 Path X

40 out of 42 witnesses have used Path X between 1984 and 2004. They report to have used the way without secrecy, without force and without permission until 2004 when the footbridges at Chates Dam and Merrions Weir were closed and notices stating ‘No Public Access’ were erected at the footbridges. 32 of the witnesses claim use for the entire 20 year period and 8 claim use for between 12-19 years during the 20 year period. 17 of the users claim to use Path X once a month or less, while 22 users claim to use the path more than once a month up to either on a weekly or daily basis.

7.9 Path Y

23 out of 24 witnesses have used Path Y between 1984 and 2004. They report to have used the way without secrecy, without force and without permission until 2004 when the footbridges at Chates Dam and Merrions Weir were closed and notices stating ‘No Public Access’ were erected at the footbridges. 19 of the witnesses claim use for the entire 20 year period and 4 claim use for between 13-19 years during the 20 year period. 11 of the users claim to use Path Y once a month or less, while 12 users claim to use the path more than once a month up to either on a weekly or daily basis.

7.10 Path Z

30 out of 31 witnesses have used Path Z between 1984 and 2004. They report to have used the way without secrecy, without force and without permission until 2004 when the footbridges at Chates Dam and Merrions Weir were closed and notices stating ‘No Public Access’ were erected at the footbridges. 23 of the witnesses claim use for the entire 20 year period and 7 claim use for between 12-19 years during the 20 year period. 12 of the users claim to use Path Z once a month or less, while 18 users claim to use the path more than once a month up to either on a daily or weekly basis.

Evidence of no intention to dedicate

7.11 If members decide that the user has not been ‘as of right’ there is no need to consider the further statutory tests. However, if Members conclude that user has been ‘as of right’ one must then look to see if there is any evidence of ‘no intention to dedicate’ on the part of the landowner. Whether an act is sufficient will depend on the facts

7.12 Path X

In his evidence, Mr Nash stated that he has not seen members of the public using the way but, in 2002 he did instruct an employee to turn back an ‘unknown person’. This is a minimal challenge and cannot be considered as significant. The locked gates that are referred to are outside of the relevant period. It can be seen that on the balance of probabilities the relevant tests have been met.

7.13 Path Y

In his evidence, Mr Griffiths maintains that the 5 gates along the route of this claimed path have always been locked and there are signs along the route (see para 1.5 above). Mr Griffiths also confirms that he has granted permission to the Henfield and District Angling Society and certain family, friends and neighbours. This shows a sound evidence of no intention to dedicate, however it is clear that this evidence in direct conflict with the user evidence forms. It can be seen that it is reasonably alleged that the relevant tests have been met.

7.14 Path Z

The northern part of Path Z is in Mr Griffiths ownership and there are two locked gates in place. The southern part of Path Z is within the ownership of Mr Smail and Ms Smith whose interest in the land commenced outside of the relevant period. There are, however, two Section 31 Deposits (see para 6.11 for analysis) which pertain to their landownership. The Section 31 Deposit of 1993 was not supported by any statutory declarations. It can therefore be concluded that the deposit does not constitute sufficient evidence of a lack of intention to dedicate with respect to Path Z. Whilst the current owners; Mr Smail and Ms Smith are aware of the Sec 31 deposit, to date the statutory declaration requirement has not been fulfilled and whilst there is some evidence of the landowner’s state of mind, there is insufficient evidence of objective acts to demonstrate a lack of intention to dedicate a public right of way. It can be seen that it is reasonably alleged that the relevant tests have been met.

7.15 If, however, the lodging of the map and statement in 1993 were to be seen as the date when the right of the public to use the way was brought into question, the relevant 20 year period could be seen as being from 1973-1993. It is important to note that once a statement is submitted it is copied to the relevant parish council and amenity organisations and as such is information in the public domain. Looking at the 31 users for Path Z it can be seen that 9 of the witnesses claim user for the entire 20 year period and 21 users claim use for between 10-17 years. It is however the case that the landowner of the northern part of the path, Mr Griffiths, provides evidence that the two gates on this path have been locked since the 1950’s and as such this is in conflict with the user evidence. It can be seen that it is reasonably alleged that the relevant tests have been met.

8. Crime and Disorder Act Implications

The Definitive Map Modification Order process involves the application of legal tests, which means that it is not possible to give substantial weight to any effect on crime and disorder in this area.

9. Human Rights Act 1998 implications

9.1 It is unlawful for a public authority to act in any way which is incompatible with a convention right. The rights which should be considered are rights pursuant to Article 8, Article 1 and Protocol 1, and Article 6.

9.2 Article 8 protects the right to respect for private and family life including an individual’s home. This is a qualified right and there may be interference by a public authority if that authority does so with an intention of protecting the right and freedom of others.

9.3 Article 1 and Protocol 1 deal with the protection of property. Again, this is a qualified right and interference with it may take place where it is in the public’s interest to do so, subject to the conditions provided by law. Any interference, however, must be proportionate. The main body of the report identifies the extent to which there is interference with these rights and whether the interference is proportionate.

9.4 The Committee should be aware of Article 6, the focus of which (for the purpose of this Committee) is the determination of an individual’s civil rights and obligations. Article 6 provides that in the determination of these rights, an individual is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal. Article 6 has been subject to a great deal of case law. It has been decided that for rights of way matters, the decision making process as a whole, which includes the right of review by the High Court, complies with Article 6.

Tony Kershaw Head of Legal and Democratic Services

Background Papers

(a) Extract of Definitive Map and Statement for Horsham.

(b) Application (DMMO 4/08) from Mr. N. Parrott.

(c) Site Visit Photographs

(d) Consultation Replies

(e) Evidence Submitted in Support of the Application.

(f) Evidence Submitted by Interested Parties.

(g) Archival and Other Information – West Sussex County Council.

(h) Ownership Plan

Contact: Umi Filby Ext: 77194

Table 1: Summary of Information Contained In Evidence Forms Completed by the Public Location Plan – Ashurst Steyning: FP 2599