Report to the Development Control and Regulatory Board 13Th February 2003
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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.