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: andrew.houldey@gloucestershire.gov.uk

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.

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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

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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. People who used to live in the house next door have a surveyor’s statement from 1970 saying that the path was used by the public 3. The path is tarmaced 4. Gates lead out from neighbouring properties on to the path. These gates have likely been there for over 100 years and are the same as the fences alongside the railway. 5. Maps show that there was a row of cottages, next to my home, called “The Row” that had a path running outside and joined the path in question. 6. There is a street lamp fixed to a post next to the path 7. The garden of the house that the land belongs to is fenced off from the path 8. The path was most probably owned by the railway and sold off in the 1960s. However, if this is the case then no-one in that time until now has blocked the path off”.

4 8.4 Grove Road, formerly known as Grove Engine Green Road, was taken into public maintenance under the unadopted roads programme in 1955-56. The map accompanying the List of Streets shows the maintained highway extending west to point A. However, Forestry Commission records show the dedicated highway terminating at the parking area just to the east of point A. Their records show an easement over Forestry Commission land extending west to point A and then over the pedestrian crossing across the railway. It appears that the discrepancy is between the County Road Records and the Forestry Commission records of ownership, and that the whole of the claimed route falls outside Crown Land, and hence is not subject to the special laws affecting the Statutory Forest of Dean. The effect of these laws with regard to claims for rights of way is summarised in section 14 Legal Comments and Conclusion.

8.5 If there be a gap between the start of the claimed route at point A and the end of the maintained highway, then the claim can still be considered as it connects with a public highway (Pillowell Road) at its southern end, and the northern terminus of the path is Crown Land over which there is controlled permissive public access, regulated by the Forestry Commission’s bylaws. There has since 1938 been a policy of allowing the public the right to roam on foot over Forestry Commission land.

9. APPLICATION

9.1 An application was made on 20 August 2004 by Mr James Lee, Clerk to West Dean Parish Council. The claim was for an additional length of public footpath connecting Grove Road and Pillowell Road at Whitecroft in the parish of West Dean. Notice was served on the landowners affected by the application: Mr and Mrs Jenkins, 3 Midland Cottage, Whitecroft, Lydney, Gloucestershire and the Dean Forest Railway Society c/o Mr P C I Adams, 2 Woodcote Green, Calthorpe Park, Fleet, Hampshire GU51 4EY. The Dean Forest Railway subsequently confirmed that they did not own any part of the path.

9.2 The section of the claimed route between points B and C is owned by Miss Michelle Owen; the section A to B has no known owner, although two properties are accessed by this part of the route, one of which maintains this section of the path.

9.3 The Forestry Commission confirmed that they own a short section of the claimed path close to point A., although this appears to be immediately to the east of point A and hence does not affect the claim.

9.4 A total of twenty-seven public path evidence forms were submitted in support of the application. In addition, six other individuals completed public path evidence forms alleging use of the claimed route which were submitted independently. A summary of these 33 evidence forms is attached (numbered …..C).

9.5 The application was acknowledged as duly made on 5 October 2004.

5 9.6 A petition in support of the application, signed by 253 people, was received from Christian Horton on 14 September 2004. Mr Horton notes in his covering letter “We understand the petition holds no legal weight, however we hope that it gives you some indication of the public feeling surrounding this issue”. A copy of this petition is annexed at ….J.

10. LANDOWNERS

Miss M Owen, 3 Midland Cottages, Whitecroft

10.1 Miss Owen wrote on 21 August 2004: “I am writing to you about the footpath from Grove Road to Pillowell Road. The footpath concerned is owned by myself and my partner Mr Jenkins, please find enclosed a copy of the deeds [a copy of the Land Registry entry] which outlines all that we own in red. Our solicitor did this when we purchased the property on the 6th August 2004. May I also draw your attention to the fact that before we purchased the property we made many enquiries, one of which was with the Highways Department at Shire Hall. I was told that the footpath was not on the definitive map and therefore we were within our rights to close it off to the public. It is for this reason that we went ahead with the purchase and put up the gates when we moved in.

10.2 Ever since this moment we have had nothing but trouble from local people and so far there have been two incidents, which we have had to report to the police. These are the kind of people who will be walking through our property on a day- to-day basis and as we have children within our care we do not feel safe and secure.

10.3 If you proceed with this application we have no choice but to seek legal advice and where necessary legal action. The only way that we will ever compromise is if the front of the path is re-routed through the land at the front of our property that belongs to the Post Office. The reason for suggesting this is because when I asked the lady who owns the Post Office “would you like it if people were walking through your property?” she replied “Yes, I wouldn’t mind and I certainly wouldn’t be doing what you are doing”…

10.4 In response, the County Council noted (by letter dated 5 October 2004) that the Definitive Map is only conclusive as to the information it contains, without prejudice to the existence of any other rights which may exist. Hence, the information given by the Highways Department was correct in that as the path was not recorded on the Definitive Map then the owner was quite within his (or her) rights to close the path. It was further explained how Modification Orders were the means by which unrecorded paths may be added to the Definitive Map if there was evidence of their use. It was noted that the application was supported by 33 public path evidence forms and that the County Council had a duty under Section 53 of the Wildlife and Countryside Act 1981 to accept and determine any such application provided that it is correctly made and accompanied by evidence. The procedure by which such claims are determined was explained and information forwarded to Miss Owen on the Definitive Map, Modification Orders and on documentary evidence.

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10.5 Miss Owen responded by a letter received on 13 October 2004. “Thank you for your letter dated 5th October 2004. Please could you let me know what stage the Modification Order is at and how long it will take before a decision is made. The reason I am asking is because my partner and I are currently trying to purchase the land out to the front of our property which is owned by the Post Office at present so that we can re-route the footpath to go straight forward instead of going in front of our house. The only problem with this is that the Dean Forest Railway is saying the footpath in question belongs to them. If you refer back to the letter I sent on the 21st August you will see that the footpath is legally registered to us and cannot possibly belong to anybody else as I have sought legal advice about this.

10.6 As you can see we are trying to cooperate but people keep putting obstacles in our way. If you can assist us in any way it would be much appreciated by us and the locals. This way we have our privacy, the locals have their footpath, the Post Office have their trade and money from the sale of the land and the railway would have a path on our side of the tracks which they say they legally need to open up the railway. Our next step is to contact the Dean Forest Railways solicitors and send a copy of our Land Registry to them and try to come to a compromise. If we cannot re-route the path we will be objecting to it being added to the definitive map…”

10.7 Miss Owen wrote to the County Council on 15 February 2005: “Further to my letter dated 18th September 2004, we have now successfully negotiated with the Post Office to buy the land out to the front of our property so that we can redirect the footpath to go straight ahead. Mr James Lee (Clerk to the Parish Council) sent me a letter 2nd November 2004 saying that he had submitted our ideas to the council for consideration at their meeting on 27th October 2004. He said that the Parish Council was willing to support the principle of re-alignment of the footpath and we needed an agreement from the Post Office and the County Council. I need to have this plan agreed for definite before we purchase the land….” The landowner enclosed a map showing the land which she intended to purchase and outlined where she proposed to re-align the footpath.

10.8 The County Council wrote to West Dean Parish Council (the applicants) and Miss Owen (the landowner) on 15 March 2005 proposing that the matter be resolved by the publishing of a Public Path Order that would add the path to the Definitive Map but on the realigned route. This would benefit both path users and the landowner. Miss Owen was advised to contact Bob Hawking within the County Council, the officer responsible for Public Path Orders.

10.9 By October 2005 no response had been received from the landowner, and as both the applicants and Mr Horton were keen that this matter be resolved it was decided to resume consultations with a view to presenting the Modification Order claim to the Commons and Rights of Way Committee. It would of course still be possible at a later stage to divert any path that were added to the Definitive Map by Modification Order to the alignment proposed by the landowner.

7 10.10 Miss Owen was given an opportunity to comment upon the evidence collected in support of this application on 2 February 2005. No response was received. She was given a further opportunity on 31 October 2005. No response has been received.

Christian Horton, The Cottage, Grove Road, Whitecroft

10.11 The Cottage, Grove Road, adjoins the claimed route between points A and B. Vehicular access is by way of Grove Road and then the claimed route between points A and B.

10.12 Mr Horton initially showed an interest in claiming a public right of way over this route and collected evidence in support of the application, in addition to submitting a petition in favour of the application on 14 September 2004.

10.13 He e-mailed the County Council to supply additional information on the route on 9 August 2004. His comments are summarised at section 8.3.

Paul and Sharon Watkins, The Croft, Grove Road

10.14 The Croft, Grove Road, adjoins the claimed route between points B and C. This property is accessed by way of the claimed route between points A and B.

10.15 Sharon Watkins completed a public path evidence form in support of the application in which she outlined how she had used the path since 1984, every day to walk from her home to work at Pillowell Road. Paul Watkins has signed the petition in favour of the application.

11. DOCUMENTARY EVIDENCE

The County Archivist and the Modification Orders Officer have examined sources in the Gloucestershire County Record Office to see if this path is marked in any way and to identify other documents which might be useful in establishing the existence of a right of way along this route.

11.1 Inclosure Award No award known for this area.

11.2 Tithe Map No award known for this area.

11.3 Ordnance Survey 25” to 1 mile, 1881 edition, sheet Glos 39.14 (….D) There is no evidence of a direct route between points A-B-C.

11.4 Ordnance Survey 25” to 1 mile, 1903 edition, sheet Glos 39.14 Claimed route shown between points B and C, following present course. Between B and C the claimed route is obstructed by buildings and small enclosures and there is a boundary feature at point A. There does seem to be a route between

8 points A and B but along a different alignment, immediately to the west of the building later known as “The Rank”.

11.5 Ordnance Survey 25” to 1 mile, 1922 edition, sheet Glos 39.14 (….F) On the 3rd edition map of 1922, the claimed route is shown between points B and C along the present course. Between points A and B, there is a route but along a different alignment to present.

11.6 Ordnance Survey 1” to 1 mile map, 1817 Area not shown in detail

11.7 Ordnance Survey 1:2,500 Map SO 6006-6106 and 6206-6306 (1971) (….H) Claimed route shown as a physical feature along the present course; width of path between points A and B is narrower than at present.

11.8 Bryant Map of Gloucestershire, 1824 Area not shown in detail.

11.9 Inland Revenue, maps compiled under the Finance Act 1910 (….E) Based on Ordnance Survey 25” to 1 mile c.1902 edition, marked up by Inland Revenue c.1915, and reference books and files (D2428)

The Finance Act map and accompanying schedule show that the property now known as 3 Midland Cottages and its garden, and the path between B and C, in addition to a plot of land adjoining the rear of the garden all formed part of hereditament 3014 which also included the railway line between Lydney and Parkend. The Area Book gives the occupier of hereditament 2917 as Philip R Smith, the occupier as “S & W & M Rly Joint Co” [i.e. Severn and Wye and Midland Railway Joint Company] and it is described as “Railway 10 miles 45½ chains”.

The section of path A to B is shown on the map as forming part of hereditament 2221, which also included the row of cottages later known as The Rank. In the Valuation Book, assessment numbers 2221 to 2235 were owned by Parkend Deep Navigation Colliery c/o Parkend, Lydney. 2221 was tenanted by Thomas Morse. Each of the entries was described under street, place, name and precise location of the property as “Whitecroft Row” and the estimated extent for each entry was described as 20 perches, totalling 2 acres 1 rood and 6 perches. There were no deductions for “Public Rights of Way or User”.

11.10 Maps deposited with County Planning Officer under Rights of Way Act, 1932 S1,3 (CP/D) Nothing of relevance deposited.

11.11 Parish Council File, Rights of Way Act 1932 Nothing deposited

11.12 Duplicate copies of tithe or inclosure awards None held. PC1812/265- Modern hand drawing of tithe map

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11.13 Private Estate Maps Plan of the Encroachments in Park End Walk in the Forest of Dean…referred to in the Report of the Dean Forest Commissioners made in the Year 1834 (Q/RGf 1/5) Whitecroft area shown, including the buildings later known as The Rank, The Croft, The Cottage and Whitecroft Post Office. Area immediately to the west of The Rank (including the railway) shown as Crown Land. Colour coding identifies date of encroachment. Land south and west of The Rank, which includes most of the claimed route, is shown in pink which colour identifies encroachments existing by 1787. The Rank and land immediately to the east is shown in green in depicting “Exchanges or Grants authorised by Crown”. There is a small strip of land fronting Pillowell Road that is coloured yellow, which colour depicts encroachments made subsequent to 1812. Plan of lands to east and west of Bream, 1846 (PC 412/8) Area not shown in detail. Atkinson’s Map of Forest of Dean 1847 Area of interest shown coloured pink; according to the key, pink denotes encroachment. Some buildings marked, including the Rank. “Severn and Wye Tramway” shown. Claimed route not shown, although area not shown in detail. Survey of West Dean Township, 1859 (PC 1707) Area not shown. Sopwith Map of Dean Forest c.1860 (D543) Does not depict area of interest in detail. Plan of public footpaths in West Dean parish, 1996 (MA 150) Route not shown clearly; not claimed either.

11.14 Footpath or highway diversion orders deposited with Clerk of the Peace (Q/SRh) Q/SR 1858B- checked, not relevant Q/SRh 1869- checked, not relevant

11.15 Plans of public schemes, deposited with the Clerk of Peace (Q/RUm) Not checked

11.16 District Council Clerk’s correspondence DA 25/132/7- Clerk’s correspondence file, re: forest tracks, etc., 1944-70 (four files), checked, not relevant DA 25/134/1/13- Clerk’s file concerning highways, 1920-47. Checked, not relevant. DA 25/134/1/15- Clerk’s file concerning forest tracks, 1936-48. Checked, not relevant. DA 185/2- Footpath diversion orders, 1953-6 (1 file) Checked, not relevant. DA 185/3- Footpath diversion orders, 1961-72 (1 file). Checked, not relevant.

11.17 County Council Solicitor’s correspondence (K596/25) Nothing relevant.

11.18 County Surveyor: papers relating to survey of footpaths under National Parks and Access to Countryside Act 1949 (K687)

10 K687/1/8 Original submission map and schedule Route not shown on map, nor claimed. Draft and Modified Draft Maps Route not shown on map K687/2/13 Schedule of objections to Draft Map None relevant K687/3/13 Provisional map Route shown on base map, but not claimed.

11.19 Pope, Ian; Haw, Bob and Karau, Paul: An Illustrated History of the Severn and Wye Railway Volume 1. 1983. Wild Swan Publications This book gives a history of the adjacent railway and describes how a bridleway was built alongside the railway company on behalf of the Crown, which was replaced c.1900 by the road from Parkend to Whitecroft. The bridleway was truncated in 1905 where it entered the woods north of Whitecroft and a new path provided to link it to the new road. Included are two track plans of Whitecroft, dated 1877 and 1920, which presumably are based on original plans at British Railways archives.

p.115-20: “A bridleway had been built alongside the railway between Whitecroft and Parkend in 1870. It was built by the railway company on behalf of the Crown under an agreement of 3rd May. The right of way beside the line nearer to the station took the form of a pathway alongside the running line, evidently on the site later occupied by the second line of rails. This also provided access to cottages alongside the line and resulted in frequent trespass by the locals. In August 1877 the inhabitants were instructed not to use the course of the railway for carting dung as they had over the tramroad. A memorial had in fact been sent to the Home Office asking permission to use the railway for this purpose! However, in November the company’s fears were realised when a man was killed near Whitecroft by a goods train, while he was trespassing in a state of intoxication. Another man was killed on the crossing on 6th October 1892 when he was knocked down by a goods train. The gateman had ordered him to stand back but he persisted in crossing. The verdict was accidental death, with the recommendation that the footpath gates be interlocked with the signals. The decision to double the line clearly obliged the Joint Committee to do something about the rights of way. They proposed a footpath along either side of the line but the owners of the land required were unwilling to sell ‘except at exorbitant prices’.

The company’s solicitors were instructed to see whether the railway had the power to stop the trespassing, but their investigations proved otherwise and steps were taken to secure the necessary Parliamentary authorization for compulsory purchase of the land required.

The feeling of the local people who opposed the move is reflected in this letter from the Chairman of the West Dean Urban District to the Gaveller: ‘I have personally been acquainted with it for more than a quarter of a century… More than that I have walked with more than one funeral procession… The joint company are attempting to practically abolish the right of way, or at any rate make it impractical for the people to use it as they have done hitherto. They have metalled the pathway preparatory to laying a second line of rails… they refuse to

11 open the gates which have been put up and so make it impossible for cottagers to carry goods to their houses or manure to their gardens. A funeral procession was subjected to a painful experience the other day by refusal of the railway official to open the gates in consequence of which they had to pass the coffin through the bars of the gate as best they could.’

A new road subsequently built between Whitecroft and Parkend effectively replaced the bridlepath, which the railway company later sought to close. This again raised at least some opposition, and a local newspaper in December 1902 described the new road as ‘not a wide one and in dirty weather after much traffic it would be much more pleasant for foot passengers to use the bridle road.’

The new road was provided by the Crown and local authorities in order ‘to attract more cyclists and tourists to the area’, and ultimately extended from Mierystock to Lydney when completed in 1904. It crossed the line at the existing level crossing and turned south east across the original station approach, being required by the Severn & Wye to keep to the level of the approach on either side.

The extinguishing of the committee’s liability for the bridleway was provisionally agreed with the Crown in 1896, but it was not until 1905 that they were released upon payment of £100 to the Crown. The bridleway was truncated where it entered the woods just north of Whitecroft and a new path was provided to connect it from there to the new road.”

The 1877 track plan of Whitecroft on page 116 does not show the claimed route. A 1920 track plan (….I) on the same page shows the claimed route running between point B and C, along its present course, enclosed by a double line on the western side (which presumably represents a wall) and a single line on the eastern side. Between points A and B the route appears to follow a course immediately to the west of ‘The Row’; the present course immediately adjacent to the railway is obstructed by either buildings or small enclosures. The claimed route is labelled “Footpath” as is an enclosed route on the other side of the railway tracks.

12. OTHER OBSERVATIONS

12.1 West Dean Parish Council West Dean Parish Council responded by e-mail dated 10 February 2005: “The application for the modification order was made by West Dean Parish Council supported by evidence from members of the public who had walked the route for a continuous period of twenty years or more. The Parish Council has no further comments to add to the application submitted. In answer to your enquiry about maintenance, the path has a hard surface and has not been maintained by anyone. The surface of the path is in good condition and does not require any maintenance because of the amount of use it receives…”

12.2 Forest of Dean District Council Following a letter of consultation to the District Council, Mrs J Lodge, Director of Planning and Leisure Services was consulted by letter dated 21 June 2004. No response was received.

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12.3 County Councillor Councillor Chamberlain, the County Councillor was consulted on 9 June 2004 but no response has as yet been received.

12.4 Ramblers’ Association The Forest of Dean Group Footpath Secretary Mrs Pat Williams responded by e- mail dated 5 February 2005: “…I will reply after our next committee meeting on 23 March”. No further response has been received.

12.5 Divisional Surveyor of Highways Doug Smith, Area Supervisor for the Forest Division confirmed on 23 January 2006 that although Grove Road is maintained by the County Council as a Class 4 Road, the section of the claimed route between A and B is not and has not been in public maintenance.

13. APPLICANT

13.1 West Dean Parish Council, the applicants, wrote on 2 November 2004 concerning the proposals made by Miss Owen, the landowner, to re-align the claimed path:

“…I have since received a letter from Miss Owen, the owner of 3 Midland Cottages to the effect that she is attempting to purchase land in front of her property which is owned by the Post Office so that the footpath can be re- aligned to go straight forward instead of going in front of 3 Midland Cottages.

I submitted Miss Owen’s letter to the Parish Council for consideration at their October meeting and the Council has resolved that it has no objection in principle to the re-alignment of the footpath as a public right of way provided that this does not interfere with the progress of the modification order.

There was apparently a problem in as much as the ownership of the footpath was claimed by the Dean Forest Company. However I have received a letter from the company’s solicitor confirming that the Forest of Dean Railway does not in fact have any proprietary interest in the footpath. Accordingly the Railway Company wholeheartedly supports the application for the inclusion of the footpath on the definitive map.

If you foresee any problems with any of the above, I would be most grateful if you could let me know…”

13.2 The applicants wrote on 16 March 2005 that they were in agreement with the proposals by Gloucestershire County Council to add the re-aligned path by public path order. They were not aware of anyone who would object to the realigned route being added to the Definitive Map as a public footpath.

14. LEGAL COMMENTS AND CONCLUSIONS

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14.1 Section 53 (3) (c) (i) of the Wildlife and Countryside Act, 1981 relates to the discovery by the Authority of evidence that shows that a right of way that is not shown on the map and statement subsists, or is reasonably alleged to subsist, over land in the area to which the map relates.

14.2 Section 31(1) of the Highways Act 1980 states that where a way over any land, other than a way of such character that use of it by the public could not give rise at Common Law to any presumption of dedication, has been actually 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 period of 20 years in sub-section (1) is to be calculated retrospectively from the date when the right of the public to use the way is brought into question through an overt act by the landowner which makes it clear to the public that their right is being challenged. The twenty years usage must furthermore be “without interruption” and the requirements of Section 31 will not be met if “there is sufficient evidence that there was no intention during that period to dedicate it”.

14.3 Section 31 (9) of the Highways Act 1980 says that nothing in this Section operates to prevent the dedication of a way as a highway being presumed on proof of user for any less period than 20 years. Paragraph 12 of Annex B of the Department of Environment Circular 2/93 states that before making an order the surveying authority must be satisfied that the evidence shows on the balance of probability that a right of way of a particular description exists.

14.4 To fulfil the requirements of Section 31 of the Highways Act, we need to see whether there has been a full 20 years use by the public and, in order to do this, we have to ascertain the date of challenge, that is there has to be some overt act on the part of the landowner to bring it home to users that their right is being challenged. There is no fixed method by which the public’s right is brought into question, though one (the erection of a notice) is expressly referred to in Section 31. The words “or otherwise” in Section 31(2) leave the matter at large. The methods can range from a notice on site denying the public the existence of a right of way, the locking of a gate or seeking a declaration that there is no highway over the land in question. Whatever means are employed, it should be sufficient “to make it likely that some of the users are made aware that the owner has challenged their right to use the way as a highway… The persons to whom the challenge has to be brought home are the users of the way.”

14.5 The 20-year period over which a way has to be enjoyed by the public as of right and without interruption is that before the date when the right of the public to use the way was brought into question. There has to be an overt act on the part of the landowner to bring it home to users that their right is being challenged. The current landowner erected and secured gates at point C and at a point some 45 metres south of point B, to which notices were attached stating “This footway is no longer for public use” in August 2004. This has been taken as the action that brought the right of the public to use the path into question. The relevant 20-year period is therefore 1984 to 2004.

14 14.6 The bridleway that was constructed by the railway company in 1870 and then partially diverted in 1905 does not appear to have followed the same course as the claimed route, and instead seems to have been parallel with the track bed.

14.7 Neither section (A to B or B to C) of the claimed path is shown on the 1881 large scale Ordnance Survey map. The path between points B and C came into being between 1881 and 1903; the 1903 map shows a number of small buildings and enclosures along the course of the claimed route between A and B and a boundary feature at point B. The path appears to have been laid out by the Severn and Wye Railway or their successors, the Midland Railway and Great Western Railway Joint Board. In 1915, the Finance Act map and accompanying schedule show that the property now known as 3 Midland Cottages and its garden, and the path between B and C, in addition to a plot of land adjoining the rear of the garden were all in the ownership of the railway company. The section A to B was in the ownership of Parkend Deep Navigation Colliery Company.

14.8 On the 1920 railway plan and the 1923 Ordnance Survey map, the route is shown open at point B and at point A, although the way does not follow the present course between points A and B. The 1970 Ordnance Survey 1: 2,500 mile map shows what appear to be gardens extending westwards from The Rank, almost to the railway. The claimed route is shown along roughly its current course but the path between points A and B was then similar in width to that of the section between B and C, i.e. around 2 metres.

14.9 The land between points B and C, including the claimed route, the house and garden of 3 Midland Cottages and the plot of land immediately to the north, was sold off by British Railways Board in 1966.

14.10 The property known as “The Rank” was apparently pulled down in the 1970s or 1980s; the claimed route presumably assumed its current more open aspect between points A and B at this time. Numbers 8-11 Grove Park now occupy the site of The Rank; these houses were built c.1999.

14.11 The current route has been available for use since at least 1970. Although it is marked on the railway company’s plan of 1920 as a footpath it is uncertain as to whether it was a public footpath or essentially a private path giving access to the railway line for railway employees. Under the Great Western Railway (Additional Powers) Act 1924, prescriptive rights could not be acquired over the footpath. Under the Railway Regulation Act 1840, it would be an offence to trespass on railway property and the public could be stopped from using the footpath. This legislation effectively prevents rights from being acquired until its sale in 1966.

14.12 The path falls within the area of the Statutory Forest of Dean, although only a short section of the way immediately to the east of point A and outside of the claimed route is within the ownership of the Forestry Commission. It is believed that the claim is unaffected by the specific laws relating to the Forest of Dean. The Forest of Dean was established by statute under the Dean Forest (Reafforestation Act) of 1667. 11,000 acres, being part of the wastelands of the

15 Forest of Dean, were to be inclosed and kept in severalty for the growth and preservation of timber to supply wood for the Royal Navy and for the maintenance of trade shipping. The physical inclosures were to allow the young trees to grow and to be kept free from damage by animals. The Act made it clear that any inclosure made and set out was to “remain in severalty in the actual possession of the Crown forever, freed and discharged and from all manner of right, title and pretence whatsoever …and shall be made and reputed a nursery for wood and timber only”.

14.13 The provisions of that Act were largely re-enacted in the Dean Forest (Timber) Act 1808. It would seem that there was some doubt as to whether some of the inclosures had been carried out as required and this later Act extended the inclosure provisions to the Stapledge Inclosure, Speech House Inclosure, Birch Wood Inclosure and Buck Holt Inclosure, a total of 676 acres.

14.14 Section 3 of the 1808 Act stated (as in the earlier legislation) that “the said inclosures so made and set out as aforesaid shall remain in severalty in the actual possession of the Crown, freed and discharged of and from all rights of common, and from all manner of right, titles or pretences, or privileges or claims whatsoever, during the period of the same remaining so inclosed for the growth and preservation of timber, and until the same or any part of this Act, according to the purport and true intention of the said recited Acts and of this Act, and shall be made and reputed a nursery or nurseries for wood and timber only”. Whenever the Chancellor of the Exchequer for the time being was satisfied that the woods and trees growing in any inclosure, were beyond the danger of browsing deer, cattle or other “prejudice” they were to be opened up and treated in the same way as any other part of the residue or waste of the Forest.

14.15 Both Acts continued in force until the earlier Act was repealed by the Crown Estates Act of 1961. This Act removed all previous statutory bars preventing the Crown from making grants of estates in the land.

14.16 The National Forest Park Committee (Forest of Dean) produced a report in 1938. Paragraph 8 states that “the Forest is well served by roads and tracks and is freely available to the general public. We understand that, although there is not a public right of access to the inclosures, the Forestry Commission, subject always to the need for special precautions for the protection of young plantations, have no objection to controlled access provided care is taken to shut gates and to avoid damage”. The Forestry Commission’s view is that access to the Forest is regulated and controlled by the Forestry Commission bylaws. They argue that under these circumstances it would be impossible to show an implied intention to dedicate on the part of the Crown in the Statutory Forest since that date.

14.17 Following the National Parks and Access to the Countryside Act 1949, many parishes claimed paths over Crown Land and these were subsequently transferred onto the Draft Stage of the map. The situation regarding public rights of way in the Forest of Dean was reported to the then Highways General Purposes Sub Committee on several occasions and a report was considered on 2nd October 1961. The Forestry Commission expressed the view that no rights

16 of way could be acquired over the Statutory Forest. The report states that a meeting took place in September 1961 when it was agreed that owing to the practical and legal difficulties of establishing the existence of rights of way within the meaning of the 1949 Act, no rights of way should be shown within the boundaries of the Royal Forest of Dean and because of this the draft map should remain blank.

14.18 Notwithstanding this agreement, it appears that on the publication of the provisional map some footpaths were erroneously shown within the statutory forest. The Forestry Commission applied to the County Court for declarations under Section 31 of the 1949 Act to confirm that no public rights of way existed. The County Council sought Counsel’s opinion on the matter. From the instructions to Counsel, it appears that the County Council’s view at this stage was that by not showing ways on the map it was not acknowledging that they did not exist, only that they could not be shown. It was the Council’s view that Section 3 of the 1808 Act would have the effect of suspending rights during inclosure, that is, the aim was to protect the growing timber rather than to eradicate any rights of way. The County Council also sought advice on the effect of the 1938 report. It was accepted that after that date it would be difficult to establish a right of way since members of the public should be aware that tracks were open to them on a permissive basis only.

14.19 Counsel’s opinion was received in March 1978. Counsel considered that the fact that the Forestry Commission permitted access from 1938 would not affect any accrued right to pass and repass over an established highway. In other words use by licence would not affect any established right of way and would not have the effect of extinguishing something already dedicated. In his view the two Acts do not eradicate any rights that already exist. Inclosure means inclosure in the physical sense. In his view when the land is reopened, any public right of way, if it could be shown to have previously been established, would revive or could be dedicated or presumed from subsequent user.

14.20 In total, 33 user evidence forms were completed by witnesses who have used the claimed route. It is not essential for the path or way to have been used for the full period of 20 years by the same persons; the period may accrue as a result of use by different persons for shorter periods. Nor does it matter that the use is not continuous in the sense that it may not have occurred everyday.

14.21 Use of the path has been frequent and over a long period of time. Of the 33 witnesses, 10 have used the path for 60 years or more, 7 for between 40 and 59 years and 12 more for a period of 20-39 years. In total there are 17 witnesses who have used the route throughout the whole period of 38 years since the land over which the claimed route runs was sold off by the British Railway Board in 1966.

14.22 Use of the way should also have been by a sufficient number of people to show that it was use by the public, that is the people as a whole, or the community in general, and this may well vary from case to case. Very often the quantity of valid user evidence is less important in meeting these sufficiency tests than the quality (i.e. its cogency, honesty, accuracy, credibility and consistency with

17 other evidence). It is clear that use has been frequent and over a long period of time. Use has been by a broad section of the local community, rather than by, for example by members of one family, the employees of one firm or the tenants of a single landowner.

14.23 The twenty years’ use must be “without interruption” and this must be proved by the claimant. “An interruption” has been defined as “an actual and physical stopping of the public’s enjoyment” (Mersham Manor Ltd v Couldson Urban DC [1937]) as opposed to an act which merely challenges the public’s right. It is not a mere absence in the continuity of use. Moreover, such interruption must be with the intention to prevent public use. It is not sufficient if the interruption is for some other purpose. There is no evidence that use of the path has been interrupted within the meaning of Section 31 of the 1980 Highways Act.

14.24 No rights were acquired over the path before 1966 when the British Railways Board disposed of the property. Since then the route would appear to have been enjoyed by the public, as of right, for a full and continuous period of 20 years. In the opinion of the Officers, all of the requirements of Section 31 of the Highways Act 1980 have been fulfilled and a public right of way has been established by presumed dedication.

15. APPENDICES A. Location Map 1:10,000 B. Map of Grove Road to Pillowell Road, Whitecroft 1: 1,250 C. Summary of Public Path Evidence Forms submitted D. Ordnance Survey 25” to 1 mile map, 1st edition, Glos 39.14, 1881 E. Inland Revenue map, c.1915; base map is 1903 25” to 1 mile Glos 39.14 and extract from Valuation Book F. Ordnance Survey 25” to 1 mile map, 3rd edition, Glos 39.14, 1923 G. Ordnance Survey 6” to 1 mile map, SO 60 NW, 1955, enlarged to 1: 2,500 scale H. Ordnance Survey 1: 2,500, SO 6006-6106 and SO 6206-6306 (1971) I. Railway track layout plan, 1920, based on original plan in British Rail archives J. Petition submitted in support of the application

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