COMMONS AND RIGHTS OF WAY COMMITTEE 31 JANUARY 2006 AGENDA ITEM: APPLICATION FOR A MODIFICATION ORDER FOR AN ADDITIONAL LENGTH OF PUBLIC FOOTPATH GROVE ROAD TO PILLOWELL ROAD, WHITECROFT, PARISH OF WEST DEAN JOINT REPORT OF THE EXECUTIVE DIRECTOR: ENVIRONMENT AND COMMUNITY AND THE HEAD OF LEGAL AND DEMOCRATIC SERVICES 1. PURPOSE OF REPORT To consider the following application: Nature of Application: Additional Footpath Parish: West Dean Name of Applicant: West Dean Parish Council Date of Application: 12 May 2004 2. RECOMMENDATION That a Modification Order be made to add a length of public footpath to the Definitive Map of Public Rights of Way. 3. RESOURCE IMPLICATIONS Average staff cost in taking an application to the Panel- £2,000. Cost of advertising Order in the local press, which has to be done twice, varies between £75 - £300 per notice. In addition, the County Council is responsible for meeting the costs of any Public Inquiry associated with the application. If the application were successful, the path would become maintainable at the public expense. 4. SUSTAINABILITY IMPLICATIONS No sustainability implications have been identified. 5. STATUTORY AUTHORITY Section 53 of the Wildlife and Countryside Act 1981 imposes a duty on the County Council, as surveying authority, to keep the Definitive Map and Statement under continuous review and to modify it in consequence of the occurrence of an ‘event’ specified in sub section [3]. Any person may make an application to the authority for a Definitive Map Modification Order on the occurrence of an ‘event’ under section 53 [3] [b] or [c]. The County Council is 1 obliged to determine any such application that satisfies the required submission criteria in accordance with schedule 14 of the Act. 6. DEPARTMENTAL CONTACT Andrew Houldey, Modification Orders Officer, Definitive Map Unit, Public Rights of Way Section, Environment Department. Telephone Gloucester (01452) 425522 E-mail: [email protected] Janet Smith, Senior Lawyer, County Legal Services. Telephone Gloucester (01452) 425095 E-mail: [email protected] REPORT 7. DESCRIPTION OF PATH 7.1 A location map at scale 1:10,000 is attached (numbered ….A) showing the position of the claimed footpath which runs from Grove Road to Pillowell Road at Whitecroft. The claimed path is approximately 2¼ miles north north-west of the town of Lydney. The area of interest lies within Ordnance Survey Grid Squares SO 6106 and 6206 7.2 A large-scale map of the Whitecroft area at 1: 1,250 scale is attached (numbered ….B). This map shows the claimed path by a broken black line between points A, B and C. The claimed footpath runs from the county maintained road number 43019 known as Grove Road in a generally southerly and then south-easterly direction to point C where it joins the county maintained road known as Pillowell Road. 7.3 The path was inspected on 10 August 2004, on 6 April 2005 and on 10 January 2006. The first section of the path (A to B on map ….B) forms a continuation of Grove Road. This part of the claimed route is partially surfaced with stone and chippings and varies in width between 2.4 metres at point A, widening to 3.4 metres where the path opens out to give vehicular access to two dwelling houses, just to the north of point B. These properties are The Croft, and The Cottage, which is the house between The Croft and 11 Grove Park. Although numbers 9,10 and 11 Grove Park border the claimed route between points A and B they do not have any access off it. 7.4 Between points A and B the claimed route is bordered on its western side by the Dean Forest Railway. The path is separated from the railway by a post and rail fence and then by a fence on top of a stone wall and then by a higher stone wall. There is a pedestrian crossing over the railway adjoining the claimed route between points A and B, with hand gates at either side and a notice forbidding trespass on the railway. This crossing connects with (a non- definitive) path that runs along the other side of the railway north from the Pillowell Road level crossing into the woods towards Parkend. 2 7.5 The section of path between points A and B is not registered, but it has been maintained for the last 30 years by the owners of The Cottage, Grove Road. Both The Cottage and The Croft have a vehicular right of access along this section of the path. 7.6 From point B southwards, the path is bordered by the gardens of The Croft and 3 Midland Cottages on the eastern side, from which it is separated by a metal railing fence. Comparison with similar railings on the western boundary of the railway indicates that the railway company probably constructed this fence. There are five gates forming part of this fence, two of which lead into the garden of The Croft, one appears to have led into the plot of land to the south of The Croft and two of which give access to the garden of 3 Midland Cottages. 7.7 Shortly to the south of point B there was a gate, which was closed and secured at the time of inspection in August 2004. It was apparent that a notice had been attached to the fence, as remains of the tape and the plastic wallet in which it had been placed were still extant; the notice was no longer in position. According to local witnesses, the sign here was erected at the same time as the one at point C and had the same wording. The gate near point B had been removed by January 2006. 7.8 After approximately 45 metres from point B the path turns to the south-east; this section of path is enclosed by a high brick wall and then a shed or barn on the western side and is separated from the garden of 3 Midland Cottages to the east by a continuation of the railing fence. The path runs in a south-easterly direction for approximately 50 metres before turning sharply to the east and then to the south, running immediately adjacent to the house known as 3 Midland Cottages before joining the county maintained road number 3/2 known as Pillowell Road at point C. 7.9 Between points B and C, the path is partly illuminated by a street light, which is attached to an existing telegraph pole that is situated within the garden of 3 Midland Cottages. George Surman of Street Lighting in the Environment Department at Gloucestershire County Council stated that he believed that the light had been erected by the Rural District Council, prior to the handover of street lighting functions to the County Council as part of local government reorganisation in 1974. In March 2005 his contractors were refused access to the garden by Miss Owen when they went to inspect the light. She claimed that she would be weakening her case against the route being a public right of way if she allowed them access. 7.10 Between points B and C the path is tarmaced, with the exception of the dog leg section immediately in front of the house at point C, where the path is paved. At point C the path is separated from the Pillowell Road by a garden gate. Attached to this gate in August 2004 was a sign, the wording of which had been partially obliterated by recent heavy rain, that on close inspection read: This footway is no longer for public use Sorry for any inconvenience 3 The owner of 3 Midland Cottages erected this sign and the one to the south of point B on 7th August 2004. The gate at point C was closed but openable when the path was inspected in April 2005 and January 2006. 7.11 The claimed path is approximately 180 metres in total length. 8. BACKGROUND 8.1 Christian Horton of The Cottage, Grove Road, Whitecroft contacted the Rights of Way Section on 2 July 2004 to ask for information on claiming a path between Grove Road and Pillowell Road at Whitecroft which he was worried would be closed off as a result of a neighbouring property being sold. He was sent information on how to apply for a Definitive Map Modification Order on 6 July 2004. 8.2 Jim Lee, the Clerk to West Dean Parish Council contacted the Rights of Way Section on 9 July 2004 to make a claim for the same path, which the householder was apparently about to close off. In a further letter dated 22 July 2004 he stated that “The Parish Council understands that the owner of a property adjoining the footpath is seeking to acquire the title of part of the land in order to block the footpath” and he wished to make a claim for the path to be added to the Definitive Map. Information on the process and an application pack were forwarded on 22 July 2004. He was informed in the accompanying letter that Mr Horton had also shown an interest in claiming this same path and it was suggested that they might wish to coordinate their collection of evidence. 8.3 Christian Horton e-mailed the Rights of Way Section on 9 August 2004 to point out the following: 1. “I have a signed declaration witnessed by a solicitor, from the lady who previously owned the house I live in, stating that she had always had access to the path 2.