REPORT TO THE DEVELOPMENT CONTROL AND REGULATORY BOARD 13TH FEBRUARY 2003

PROPOSED DEFINITIVE MAP MODIFICATION ORDER

ADDITION OF A BYWAY OPEN TO ALL TRAFFIC KIRBY BELLARS TO SYSONBY

REPORT OF THE CHIEF EXECUTIVE

PART A

PURPOSE

1. The purpose of this report is to seek the Regulatory 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 add a byway to the Definitive Map from Kirkby Bellars to Sysonby as shown on the plan attached to this report.

Reason for Recommendation

3. Given the historical evidence which has been provided, it would appear to offer solid evidence that a byway does exist and should therefore be added to the Definitive Map.

Circulation under Sensitive Issues Procedure

4. Dr. M. O'Callaghan CC Mr. B. Chapman AEA, CC

Officer to Contact

5. Mrs. Pauline Hoyes, Chief Executive’s Department, Tel 0116 265 6019.

PART B

Background

6. An application has been received from Leicestershire Footpath Association for a public right of way to be added to the Definitive Map 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.

Considerations

8. In considering this application members have to consider two questions.

(a) Is there a public highway over the route claimed? This depends on interpreting the available historic maps and any other evidence to decide if there was a physical feature on the ground that is referred to in reliable and independent sources as open to the public use and not just a private access or road.

(b) If there is a highway, of what classification or status are any public rights? That is, is it a footpath, bridleway or going even beyond that, a byway open to all traffic? When it comes to evaluating the legal nature of routes such as this it is often difficult to be sure about the past level of vehicular use that was taking place, particularly when the modern condition of the route appears to be unacceptable for any such use, especially given the multitude of various vehicles in existence in the 20th or 21st centuries, as compared to the classic period of turnpike roads such as horse drawn carriages. However, the legal definition of Byways in Section 66 of the Wildlife and Countryside Act 1981 is that these are "a highway over which the public have a right of way for vehicular and all other kinds of traffic, but which is used by the public mainly for the purpose for which footpaths and bridleways are so used".

Therefore, the most frequent use of such ways may have been foot or horseback but if there is evidence of vehicle use (and a horse drawn wagon or carriage is a vehicle, albeit not mechanically propelled or powered) that creates a byway.

Comments of the Director of Community Services

9. The Director of Community Services has provided the following historical evidence:-

a) Enclosure Award for Asfordby 1762

There is no surviving enclosure map but the following extract is taken from the award:

Road from Also a road from the said mentioned road where it Kirby to enters into the Lordship of Kirby Bellars a public Sysonby horse carriage and drift road north eastwards in a nearly straight line into the Lordship of Sysonby.

b) Plan of intended navigation from Leicester navigation to Melton Mowbray 1790

The route is clearly shown on this plan using the same notation as other roads (excepting the turnpike road which is shown with solid lines). (Separately circulated as Historical Evidence Document No. 1)

c) W. King's map of Belvoir and Surrounds 1804-6

The route is clearly shown on this plan as a public carriage road (this map has a key which differentiates between Turn Pike Roads, Public Carriage Roads and Public Bridle Roads). A photographic copy of the Map can be produced in evidence but unfortunately it cannot be clearly photocopied.

d) Greenwood's map of Leicestershire 1826

The route is clearly shown on this plan as a cross road (this map does differentiate between Turn Pike Roads, Cross Roads and Bridle Roads). (Separately circulated as Historical Evidence Document No. 2)

e) Syston Peterborough Branch Railway (Midland Railway Co.) 1844

On this plan the route out of Kirby Bellars is numbered 32 and described in the book of reference as "Public Highway and Wharf". On the plan the route is marked, "proposed diversion of road". Another route is also shown crossing the navigation, is numbered 40 and labelled, "To Sysonby". In the book of reference this is also described as, "Public Highway". (Separately circulated as Historical Evidence Document No. 3) f) Sysonby Tithe Map 1845

This map shows the area before the railway was built. The eastern end of the route is shown on the Map and is coloured terracotta, the same as other public roads in the area. (Separately circulated as Historical Evidence Document No. 4) g) J.C. Walker's Map of Leicestershire 1860

The route is shown on this map in the same way as other minor carriage roads. (Separately circulated as Historical Evidence No. 5) h) Midland Railway Company deviation, Nottingham to Saxby 1872

This plan shows the road at its eastern end and the proposed diversion over the railway. The route is described in the book of reference as a public highway under the care of the Highway Board for the District of Melton Mowbray. (Separately circulated as Historical Evidence Document No. 6) i) First Edition 1 inch Ordnance Survey Map 1884

The route is shown on this map using the same notation as other minor highways, however, the Ordnance Survey does not indicate status. (Separately circulated as Historical Evidence Document No. 7) j) First Edition 25" Ordnance Survey Map 1884

This map shows the route but again no status is indicated. (Separately circulated as Historical Evidence Document No. 8) k) Altered Apportionment to Sysonby Tithe 1888

This map shows the north eastern end of the route as affected by the building of the railway. The route is coloured terracotta as other public roads in the area. (Separately circulated as Historical Evidence Document No. 9) l) Local Government Act 1929

The route is coloured green on this map as an unscheduled county road and is numbered as part of route "81". A number of gates are marked along the length of the route. Unfortunately there is no surviving schedule attached to the map. (Separately circulated as Historical Evidence Document No. 10)

m) Asfordby Parish Statement 1951

The route was described in the Parish Return as a cart road which, "leads on to Sysonby Grange". The route was not shown on the first Definitive Map as it was believed to be sufficiently recorded as a County Road. (Separately circulated as Historical Evidence Document No. 11)

n) Frisby on the Wreake Parish Statement 1951

The western end of the route is described in two parts by Frisby Parish. Washdyke Lane is described as a bridleway, starting from the railway bridge and ending at the bridge over the River. A second bridleway is described starting at eastern end of the bridge over the River and ending at the Bridge over the Dry Canal-Parish Boundary (continuing to Asfordby Hill - now shown as byway H32). Again these routes were omitted from the first Definitive Map in the belief that they were sufficiently recorded as a County Road. (Separately circulated as Historical Evidence Document No. 12)

Site Survey February 1999

10. From the Kirby Bellars end, approximately the first 150 metres is a metalled highway known as Washdyke Lane. At the River Wreake the route is gated with a stile adjacent and is signposted as a bridleway. The route was stone as far as the bridge over the dry canal bed (approximately 250 metres) but this section has recently been ploughed out forcing people to use the canal bed. The remainder of the route to Sysonby Grange Farm (derelict) is across arable fields. At the farm, the route is obstructed by barns, an alternative route to the south of the farm has been established. Beyond the farm are two more arable fields, separated by a stream now crossed by a ford, although the remains of a brick bridge could be seen. The route then crosses an area of railway sidings before turning once again on to a metalled highway (obstructed by security gates) known as Sysonby Grange Lane. (Separately circulated as Site Survey Document No. 13)

Consultations

11. No objection has been received from the following:

Melton Borough Council Railtrack Midlands

12. The following organisations have also been consulted but no reply has been received.

Endurance GB Loughborough and District CHA Rambling Club Auto Cycle Union Cyclists Touring Club British Driving Society The British Horse Society East Midlands Trial Riders Fellowship Mr. and Mrs. Simpson, Riverside Farm, Sysonby Mr. A. Lomas, New Farm House, Eye Kettleby (Landowner)

13. The following organisations have been consulted and support the proposal:

Asfordby Parish Council - Fully supports the proposal.

Leicestershire & Rutland Bridleways Association - Welcomes the proposal to restore this lost route to the map and holds further map evidence.

The Leicestershire and Rutland Land Rover Club - Welcomes both reclassification of RUPP H32 (now Byway H32) and the addition of the Byway now under consideration. They report that the routes have been used by vehicles on the following dates:-

5/5/1966 - Three vehicles 6/6/1997 - Three vehicles 1/5/1999 - Three vehicles

Leicestershire Footpath Association - Pleased with the proposal and welcome the recognition of this route and eventual inclusion on the Definitive Map.

The Ramblers Association - Fully support the view that the evidence clearly indicates that the route has public vehicular rights and should be shown on the Definitive Map as a byway.

Byways and Bridleway Trust - Agrees that the evidence of public vehicular status is plainly very strong. The road is a pre-1835 publicly repairable vehicular highway (and as such should be shown in the 'list of streets').

14. Mr. A. Houghton the previous landowner, was consulted at the time of the application. In his response it would appear that he did recognise that an old road had existed. In his reply he stated that some of the hedges along the old road had been removed making the track difficult to define and that the old bridge over the brook had long been washed away and the course of the old road now goes straight through the middle of his grain drier at Sysonby. He also states that to his certain knowledge very few people had used this route recently as the road is under cultivation with arable crops and suggested an alternative route along the riverside. At no point in this letter does he rebut the claim that a road did exist.

15. David Wilson Homes Limited purchased land from Mr. Houghton on 12th April, 1999. In their evidence submitted objecting to the proposal they state that having spoken to Mr. Houghton he confirmed that he had not known the proposed route to be used by or seen vehicular rights of way being exercised over the land.

16. The Divisional Engineer - Northern Division was consulted with regard to the highway maintenance implications. She acknowledges that the route may have been recorded historically as a byway but has the following concerns and reservations.

"a) The route is currently not suitable/passable to vehicular traffic. I would be concerned that there would be pressure exerted upon the Highway Authority to adequately re-establish and maintain the route so that it is useable by vehicles. Given current funding resources available, I would not be in a position to do so for the foreseeable future.

b) There is a County Council owned bridge structure on the route identified. The level of structural maintenance that would be required to ensure that it is adequate to safely cater for vehicular traffic is much higher than for pedestrians and other users. I understand that the majority of foot and horse-mounted users that currently use this part of the route bypass the bridge by utilising the dry canal bed. This is not such a viable alternative for vehicles.

c) The route passes through a derelict farmyard. There would ideally need to be a risk assessment undertaken of the potential risk to users, and young people in particular, or re-establishing the route to ensure that there are no unsecured/dangerous buildings adjacent to the route.

d) The route does appear to be used at present, at least in part, by walkers and horse riders. It could therefore provide a safe route for pedestrians, horse riders and cyclists away from busy roads. This may be undermined by virtue of its use by vehicles that could create a hazard to those vulnerable users.

e) Vehicles using this unmetalled route may affect the ability of other users to pass over it safely, particularly in wet weather. This would have a maintenance cost implication attached in keeping the route safe for those more vulnerable users.

f) The re-establishment of such lanes can create a problem with use by itinerants, as has been found to be the case of the green lanes south of Sewstern."

The Divisional Engineer would prefer the route be re-established as a bridleway. The Divisional Engineer is however aware that there is already a byway in the area and that there are also proposals for a countryside park in the vicinity. It is suggested the park could have implications for the route and whether the route would be more suitable as a bridleway.

It is suggested that a better alignment for the route would be along the river bank avoiding the derelict farmyard and the use of the bridge structure.

Objections

17. Severn Trent Water Authority own land affected by the proposal and have written in objecting to the byway. They state that there is no physical feature on the ground which defines the route as it purports to traverse their land and no mention was made in the conveyance of 10th November, 1967 in which Melton Urban District Council acquired the relevant portion of land. Furthermore there are earthworks and locked gates of longstanding which obstruct the route suggesting that there has been no historical use since the date of acquisition.

18. Benefice of Melton Mowbray were consulted due to them owning land adjacent to the alleged route and a response was received from the Team Rector. Whilst he is in favour of opening historic public rights of way, he is of the opinion that to promulgate this route would lead to a rat run for people trying to avoid the town centre congestion in Melton which would destroy the current quietness and beauty.

He suggests that virtually all the historical evidence relates to time before the advent of motor vehicles and that there are plenty of good made up roads in the area and requests that the route be re-designated as a bridleway.

19. Mr. A. Coombe a landowner affected by the proposal has the following comments to make

• The route crosses the middle of his 21 acre field and would give access to at least two adjoining landowners. His concern is the potential for both his own and neighbours stock straying. This raises concern on both health and security aspects with the increased risk of spreading infectious diseases.

• He would not want gates on the byway as these could be left open, potentially endangering animals.

• He is unable to see the logic as it would only provide a cross country road from the A6006 at Sysonby Road to a junction with a second cross country road also going to the A6006. The cost of implementing the proposal would be disproportional to any benefit to prospective users.

• His preferred route would be along the river not through his field.

20. David Wilson Homes Limited now own land which would be affected by the proposed byway and have submitted an Archaeological and Historical Appraisal and is summarised below. (Copies of the appraisal can be viewed in the Members Rooms.) The extent of their land runs eastwards from the Parish boundary with Asfordby to just before the railway bridge at Sysonby Grange Lane. After examination of the Council's evidence they conclude that it does not confirm any public status on the route crossing their land.

Prior to their purchase of the land it had formed part of the Houghton Estate purchased from the Earl of Besborough in 1912. The deeds of these transactions did not record any public road in the vicinity.

Examination of aerial photographs from 1944 to 1992 show that although a track existed within the Houghton estate on the approximate alignment of the proposed byway it did not extend beyond the estate's boundaries and was probably used for normal agricultural purposes related to Sysonby Grange Farm. Since at least 1971 the route has not even been shown on Ordnance Survey maps which suggests that by this time it had ceased to be a significant feature on the ground.

They conclude that there may be evidence to suggest that a public road existed along Sysonby Grange Lane, over the railway bridge and running for 170 metres westwards to the eastern boundary of their land. Also that it is possible that a route from Washdyke Lane to footpath H31 and byway H32 exists. Beyond this, they suggest that there is no evidence that a public route continues north eastwards towards Sysonby Grange.

21. Frisby Parish Council have taken note of the strength of local feeling against the proposal and fully supports the views expressed in the petition (detailed in paragraph 22 below).

Petitions

22. A petition signed by 200 residents or visitors to Kirby Bellars was presented to the Development Control and Regulatory Board on 12th September, 2002.

The main points upon which the petitioners' objection is based are as follows:-

a) We are aware that it may be argued that the proposal is merely the opening of a historical byway which had fallen into disuse. However in historic times the only vehicular traffic would have been horse drawn.

b) Opening Main Street, Kirby Bellars to through traffic would render it dangerous, given it is narrow, and normally used only by residents, churchgoers and visitors. Furthermore, Washdyke Lane is even narrower and used principally by walkers and the 3 properties located on the lane.

c) It is recognised by the Police that through vehicular access increases the risk of crime.

d) Four Wheel Drive vehicles and motor bikes which would use the proposed byway would be noisy and polluting, and lead to the degradation of the Wreake Valley. This is recognised as an "Area of Particularly Attractive Countryside" in the Leicestershire Structure Plan. Use by recreational vehicles of a byway in Oxfordshire, namely The Ridgeway, made a once attractive footpath and bridleway so rutted that it became unusable to walkers and horse riders.

We would welcome the opening of an official footpath and bridleway as this would enhance people's peaceful enjoyment of the local countryside and wildlife.

23. A further petition has been received representing every household on Sysonby Grange Lane. They are also in support of the route being designated a bridleway.

Their concerns are that a byway would encourage unwanted levels of traffic and misuse by 4 wheeled drive vehicles and motor cyclists. They currently suffer from a motorcycle problem, using the land to get to and ride on wasteland at the bottom of the lane. If they had access to a byway, making a potential round circuit , it would be used as a race track and encourage greater usage by all the wrong users.

They can see no real benefit as there are perfectly good and accessible roads in existence and hope that common sense will prevail and a re-classification to bridleway be made.

24. A letter has been received from the Charnwood U3A Walking Group with 19 signatures objecting to the proposal. Again they support the creation of a bridleway or footpath but strongly object to the proposed byway. They feel that if the byway is open to all traffic and used by motor cyclists etc, that it would disturb the tranquillity of this splendid corner of rural Leicestershire.

25. A further 23 individual letters objecting to the addition of a byway to the Definitive Map have been received from local people. Their main concerns are as follows:-

• Increase in traffic on roads that are unsuitable.

• Increase in noise levels and pollution.

• Encourage under-aged bikers, already using Sysonby Grange Lane as a scramble track.

• Already adequate road links.

• Destroy the peaceful nature of an attractive landscape with its variety of flora and fauna.

• Disturb the peace and tranquillity of the area.

• Use by off road vehicles would churn up any non-tarmacked surfaces making conditions difficult for pedestrians and horses.

• Mud would be deposited on highways by vehicles leaving the byway.

• The lane and bridge does not have the capacity to cope with vehicles, being built for pedestrians and horse drawn vehicles only.

• Would pose problems and additional expense if the construction of an outer ring road and the establishment of a Country Park goes ahead as a condition for permission to develop a new village on land at the old Melton airfield.

• Provide access to land for illegal camping.

• Increase in the risk of accidents and security in Kirby Bellars which is at present a small quiet village with no through roads.

It is to be noted that the majority of letters received infer that they would not have any objection to the route being opened up as a bridleway or footpath.

Conclusions

26. It is clear that the route in question on the ground can be identified as the same shown on the various maps of the county referred to in this Report. These maps are from cartographers with a repute in this county for accuracy and historical relevance. The descriptions given to the route are associated with highways and not mere private carriageways or occupation roads, provided for access to fields etc.

27. The 1929 Local Government (District Council to County Council handover records) refer to this route as an unclassified road.

28. It is generally accepted by those consulted in this matter, including the objectors, that this is a route with highway rights over it for the public to enjoy; the real issue in dispute is whether those rights are restricted to footpath or bridleway rights (and the consensus is that a bridleway is an appropriate minimum status) or byway rights.

29. The objectors essentially rely on the condition of the route as suggesting it was not available for use in vehicles and this subsequently leads them to challenge that such rights could, in all sensibility, have ever existed.

30. It can be easily understood that opening up this route to vehicle traffic (which could only be very restricted in terms of the type of vehicle that could be driven along it) seems unnecessary. However, the County Council has a legal duty to show on the Definitive Map any public right of way that lawfully exists and to apportion to it its correct and proper status, even though this is derived from its archaic past rather than any sensible appraisal of its current suitability or benefit.

31. Therefore, although the historic evidence clearly shows this as a vehicle byway for the purposes of the Wildlife and Countryside Act 1981, your officers are concerned that if recognised as a byway action would have to be taken to ameliorate the adverse environmental impact of any such use. With that objective officers are satisfied that although there is a need in the long term to preserve some form of byway status over a section of this route, to ensure suitable links are provided with the existing byway H32, that the substantial remaining length of the route, between the junction with H32 to Sysonby Grange Lane (at the sewage works) could be considered as a downgrading proposal under Section 116 of the Highways Act 1980 by retaining a bridleway. In that way, the County Council would meet its statutory duty under the Wildlife and Countryside Act 1981 and also have regard to the needs of the public and the environment. However, any such future proposal to downgrade the route depends on the outcome of the statutory procedures under Section 116 and there can be no guarantee that any such proposal would be achieved.

32. It will, however, be necessary should the route be ultimately added to the Definitive Map to consider the minimum works that will be required to make it safe for the public to use. Those works, whether removing obstructions or upgrading the surface of the route, are envisaged at this time as a priority to secure and promote footpath and bridleway use, and recognising that at a time of restricted funding for highway maintenance it is not a priority in terms of enhancing this route for vehicles.

Equal Opportunities Implications

33. None.

Background Papers

34. Correspondence on file PTEPO/400.

ph542mk