Item 4

North York Moors National Park Authority Access and Rights of Way Panel

21 February 2013

Proposed Definitive Map Modification Order, The Green, Cold Kirby Addition of New Bridleway: Cleveland Way National Trail,

1. Purpose of the Report

1.1 To set out the circumstances relating to a proposed Definitive Map Modification Order in respect of a claimed bridleway, part of the Cleveland Way National Trail in light of objections having been received.

1.2 To seek Members’ approval to make a Definitive Map Modification Order and if objections remain un-withdrawn to submit the matter to the Secretary of State for determination.

2. Legal Introduction

2.1 The National Park Officer has delegated responsibility to authorise the making of a definitive map modification order under section 53(3)(c) of the Wildlife and Countryside Act 1981 unless a statutory consultee objects to the proposal.

2.2 In this case, the relevant test under S53 (c) that the Access and Rights of Way Panel needs to consider is:

(i) ”that a public right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates

2.3 The level of proof required in order to show that a right of way subsists, is the balance of probabilities i.e. it is more likely to subsist than not.

2.4 If an order is made and any remaining objections are not withdrawn, the matter would probably be resolved by a public inquiry at which an inspector must weigh up whether on the balance of probabilities a public bridleway subsists over the claimed route.

2.5 It would therefore be appropriate for Members to be aware of these considerations in reaching their decision. "Members should note that whilst the Inspector must base his decision upon an assessment of the evidence on the balance of probabilities, the test for assessing whether a right of way is reasonably alleged to subsist is lower than that. To make an order Members must be satisfied that looking at the case reasonably an Inspector may reject the objector’s claims. If it is possible after a reasonable assessment of all of the evidence that an Inspector may reject the objectors case then the order should be made."

3. Background

3.1 The Cleveland Way established in 1969 is one of Britain’s premier National Trails. The National Park Authority (NPA) makes a significant contribution towards its management and through a programme of continuous improvement strives to maintain a top quality route.

Proposed Definitive Map Modification Order, Cleveland Way The Green, Cold Kirby /1 Quality Standards for National Trails are currently under review, but the latest version, published by the Countryside Agency in 2004 includes the expectation that the route will follow legally defined rights of way Appendix 2. The NPA has therefore been working towards this goal and this section of path at Cold Kirby is the latest to be addressed.

3.2 A site inspection on 12 May 2010 showed the claimed bridleway to commence on the unclassified road U13/2 Low Field Lane near the eastern, lower end of Main Street in the village of Cold Kirby (as shown Point A on the plan at Appendix 1) and proceed in a generally easterly direction down a grass slope to the north of The Old School House for approximately 64 metres to cross a spring and continue down a valley with water running in open channels to both the north and the south of the path. The northern channel feeds a field water trough before disappearing underground and the southern channel continues further east before it too goes underground where the path turns south to climb back out of the valley bottom and swing south-east to climb more steeply through ash trees to re-join Low Field Lane. The route was designated as part of the Cleveland Way by the Countryside Commission in 1969 and has been promoted for long-distance walking ever since. It is a total distance of 267 metres.

3.3 A further inspection on 18 October 2012 after a particularly wet year and very recent flooding in the Vale of Mowbray found capacity of the northern water channel to be restricted by vegetation and some water was flowing down the path for a short distance below the spring. Water was also coming out onto the path below the water trough and yet more was flowing down the northern field below the trough. The path surface appeared to be sound below the water, with bedrock clearly visible in places. The water continued to the lowest corner of the route where it ponded to a depth of approximately 20 cm over a distance of about 5 metres. Beyond this the way was free from surface water.

Photographs taken on 12 May 2010 and 18 October 2012 will be presented at the meeting.

3.4 Low Field Lane continues generally east from Point C as an un-metalled road on North Yorkshire County Council’s List of Streets for approximately 980 metres. Only public footpath rights are recorded beyond this point and so for public use by pedal cycle or on horse-back Low Field Lane is only a cul-de-sac.

4. Ownership

4.1 Despite extensive research, it has not been possible to identify an owner of most of the land crossed by the route: between points A and B on the plan Appendix 1. Notices of the proposed addition to the definitive map of the way as a bridleway were therefore posted on site addressed to the owner/occupier of the land. Appendix 3 They were erected on 14 August 2012 and maintained until their removal on 15 November 2012.

4.2 The claimed bridleway lies within a wider area of Registered Common Land within the village as shown on the plan Appendix 4. The Commons Registration Authority, North Yorkshire County Council confirms that there are no common rights registered and that there is no landowner recorded. Appendix 5

4.3 The south-eastern section of the way between Points B and C appears to belong to the nearby Coronation Farm whose owner and occupier, Mr Jones, has been consulted and who opposes the proposal: see paragraph 7.3 below.

Proposed Definitive Map Modification Order, Cleveland Way The Green, Cold Kirby /2 5. Initial Investigations

5.1 A site inspection by the Head of Recreation and Access Officer on 12 May 2010 confirmed the way to have the appearance of a public right of way. It is not in itself enclosed, but passes between what appear to be ancient, walled enclosures and forms a convenient link across a long bend in Low Field Lane.

5.2 Signage associated with the Cleveland Way was in place:

• At Point A; old wooden finger post with a single yellow footpath waymark arrow pointing east and a National Trail acorn. The single finger pointing east read “Cleveland Way Rievaulx 3 ½ miles” (photo…003) • Near point B: newer wooden finger post “Cleveland Way” with acorn logo on arms pointing north and south-east along the claimed bridleway (photo…008) • At Point C: newer wooden finger post “Cleveland Way” with acorn logo on arms pointing north-west onto the claimed bridleway and east along Low Field Lane (photo…010)

From the absence of tall grasses, the section A-B appeared to have been maintained by mowing.

On a subsequent inspection on 18 October 2012 the ground was much softer and there were clear footprints showing evidence of pedestrian use, but no sign of use by horses, bicycles or vehicles was evident.

5.3 Looking at the documents associated with the 1965 North Riding Definitive Map reveals that in 1952 the way in the parish of Cold Kirby was claimed to be a public bridleway with the reason being “Public Usage”. It appears as though this was not recorded on the definitive map at the time because the then highway records had this section, rather than the longer, more sustainable route around the curve of Low Field Lane shown as the highway maintainable at public expense.

6. Consultations

6.1 Informal consultation to obtain the views of statutory consultees and other interested parties began on 27 July 2012 with the letter and plan at Appendix 6.

7. Observations of Consultees

7.1 The Ramblers’ Appendix 7, British Horse Society, Byways and Bridleways Trust, Open Spaces Society and Ryedale Bridleways Group Appendix 8 support the application. No objections were received from statutory undertakers, Natural England or local councils. No reply was received from the Cyclists’ Touring Club or from Ryedale Walkers are Welcome Group.

7.2 Cold Kirby is unique amongst communities in the National Park in that it has neither a Parish Council, nor a Parish Meeting, so an offer from the Secretary of the Village Hall committee to let local people know about the proposal was welcomed. Notice of the proposal also appeared on site for three months.

7.3 The owner of part of the land crossed by the way, Mr Jones, having received a direct consultation letter commented in a telephone conversation with the Head of Recreation and Access on 3 August 2012:

Proposed Definitive Map Modification Order, Cleveland Way The Green, Cold Kirby /3 • The route is very wet so he does not even take a quad bike along it when it’s like that, but does take a pasture topper through once a year to keep on top of the rubbish that grows up • No local riders use it and as a bridleway it would be of no benefit to the community • He does not want cyclists or horses on there – why would they use it if they can go round by the road? • Concern that increased use would make the surface worse for walkers and that opening it up would encourage illegal 4x4 and quad users • He sees no reason to change anything.

7.4 On 22 October Mr Jones made additional comments in a telephone conversation with the Head of Recreation and Access:

• Overhanging branches block the way to horses so they cannot be using it • The village has to put up with a lot – people parking badly and blocking gateways – don’t want more people coming in to use this bridleway • It does not want a bridleway because mountain bikes and horses would use it and make the surface worse for walkers.

7.5 On 24 October Mr Jones rang back to relay some additional information:

• Morris Almond has original sales particulars relating to the sale of part of the Hambleton estate in 1939 sold by the Trustees of Edward Dodgson in 1975. The road was an estate track providing access to water stock. It was marked on the Sales Particulars map as a footpath. • Local farmer Mr Bainbridge and his own family too used to go that way to save running along the road with spade-lugged wheels when these were fitted to their tractors, but no other vehicles used the way. Mr Jones provided a contact name for the Cumbrian solicitors who dealt with the Trustees of Edward Dodgson, but subsequent enquiries drew a blank.

A reply Appendix 9 was sent on 29 October.

7.6 Comment – It is difficult to respond without seeing the documents referred to, but it is likely that the Sales Particulars included an estate plan based on the Ordnance Survey 1:2500 series which shows the route annotated FP – see para. 11.3 below.

7.7 Other owners of property in Cold Kirby found out about the proposal from the village hall Secretary, from the site notices, or by word of mouth and responded in various ways:

7.8 Mr Wright objected by e-mail on 18 September 2012 (Appendix 10) stating that the way is only ridden once in a blue moon – not regularly. He too was concerned about mountain bikes damaging the path surface and about more visitors coming to park in Cold Kirby and blocking essential access to premises. A reply Appendix 11 was sent on 29 October.

7.9 Mrs Ashbridge objected by letter dated 18 September 2012 (Appendix 12) stating:

• most horse-riders use the loop road, so there is no point in diverting them. • The way is very wet and boggy so if used by bicycles and horses the ground would become churned up. • The area is one of the focal points of the village and should not be disturbed.

Proposed Definitive Map Modification Order, Cleveland Way The Green, Cold Kirby /4 A reply Appendix 13 was sent on 29 October

7.10 Mr and Mrs Walker objected by e-mail on 18 September 2012 (Appendix 14) stating

• The path is unsuitable for horses as, due to the springs, the ground is wet • Horse use would damage the surface making it difficult and unpleasant to walk. • The eastern leg is steep and slippery when wet. Horses would make this worse. • The path is well used by people on foot • Bridleway designation would attract cyclists and require significant maintenance • The road loop provides a perfectly good route for bikes and horses, so it is pointless to incur extra maintenance liabilities by having the way as a bridleway. • This is not good use of the NPA’s scarce resources

A reply Appendix 15 was sent on 29 October

7.11 Mr and Mrs Bainbridge objected by letter dated 28 November (Appendix 16) stating

• they see no point of this bridleway • only one family in the village uses it with horses- to walk them down to a field they rent • the northern ditch is not working well, so the ground is waterlogged and would be chewed up if horses came to use it more • they do not want to look out onto a quagmire

A reply Appendix 17 was sent on 3 December.

8. Site Meeting on 28 November 2012

8.1 In view of the level of local concern about the proposed bridleway a meeting was held in the village hall to discuss the issues and to see respective features along the route. The Head of Recreation and Access and the Senior Ranger (West) attended for the NPA, and Katie Morgan for Ryedale Bridleways Group. Concerns were raised by residents about the wet condition of the way, about potential surface damage making it worse for walkers and about more people driving into Cold Kirby and causing more access conflicts. Some local residents attending the meeting supported the proposal, one saying she used to take her horse that way. A photograph was presented of a view of Cold Kirby looking west along the path towards the village main street. It was thought to be from the 1930s and showed a poor house on the western side of the way where only derelict walls now remain No formal minutes were taken but the head of Recreation and Access was told by landowner, Mr Bainbridge of White Cross Farm that the way east from the Green used to provide access to two fields to the north. The first access, through a gap in the stone wall has now been fenced across and a water trough installed which has had the effect of raising the level of the upstream flow to such an extent that it overspills south onto the path. He explained that this was never the case whilst the field access was there as water could just run freely through the gateway when the levels were high. This field access became redundant after the removal of the stone wall dividing the two fields.

9. Comment and Response

9.1 Residents’ concern about the potential deterioration of the path surface by horses and by pedal cycles is understandable, given that the way is currently predominantly used by walkers and in response, NPA staff have explained how future route management will help:

Proposed Definitive Map Modification Order, Cleveland Way The Green, Cold Kirby /5 9.2 Path Maintenance

As part of the Cleveland Way, the path already receives regular inspections to assess its condition and is mown at least twice a year. The spring water rising below the church does bring water to cross and run down the path, but this has been managed in the past by clearance of vegetation from an open ditch taking the water off to the north of the path into the wall-side beck. It is about three years since this was last done and recent inspections confirm that it is time for this to be repeated. The path appears to be firm throughout, with bedrock visible in places, so no import of aggregate or other surface work is proposed. If this regime is insufficient to prevent the lower section of path from deteriorating, then further remedial action to take water off the path may need to be implemented. If the path is recorded as a bridleway, it is anticipated that this maintenance regime will continue with little change, although the frequency of inspections will increase and overhanging ash branches on the eastern bank would be pruned for greater headroom.

At the village meeting on 28 November, Senior Ranger Simon Bassindale suggested that the NPA could supply and erect signs at each end of the way – Points A and C advising people of a wet weather alternative route round by Low Field Lane.

9.3 Likely Future Use

Low Field Lane east of Point C on the plan is only a cul-de-sac for horse-riders and for pedal cycles, so as a bridleway, the path would offer very little public appeal – forming a circular route with only the lane around the church. The loop of Low Field Lane in front of the church, with an easier gradient and reasonable verges, appears to receive little vehicular traffic, so for many riders and cyclists will remain the preferred route. It is not therefore anticipated that many more horses or bikes would be seen on the Cleveland Way than use it now.

9.4 Returning to the specific issues to be addressed in determining whether or not on the balance of probabilities the way is a bridleway, it is clear from the responses of local residents that the way is already widely accepted to be a public footpath. This is not disputed, but the question of higher rights remains. It appears as though horse-riders have occasionally used the route and that no attempt has been made to prevent them from doing so. None of the objectors has argued that bridleway rights do not exist – only that it would be detrimental to walkers if the way was to be used more frequently by horses and bicycles. This is a legitimate concern, but not a relevant factor to be taken into account when determining the status of the route

Documentary Evidence

10. Maps

10.1 These are summarised below and give a good indication of the physical existence of the route, without offering much indication of its status.

10.2 Appendix 18 Greenwood’s Map of Yorkshire dated 1817 shows a way referred to in the key as a “Cross Road” leading generally east from Cold Kirby towards Rievaulx, but the mapped alignment east of the village is poor. It more likely was intended to show the claimed bridleway, but could also have been the southern arc of Low Field Lane. The general intention appears to have been to identify Low Field Lane as either a public road or bridleway, but this map provides little evidential value in respect of the claimed bridleway.

Proposed Definitive Map Modification Order, Cleveland Way The Green, Cold Kirby /6 10.3 Appendix 19 Tithe Map of 1846 The land over which the claimed bridleway runs is shaded brown, a distinctly different colour to the sienna shading of roads and tracks. There is no route shown over the land. This area of land is shown bracketed with the parcel of land to its north and west which includes the Main Street of the village. This parcel is numbered 165, described in the 1847 tithe apportionment as “Hambleton including Inn, Kiln, Roads, Town Street and part of Common South East of the Town”. It is therefore a reasonable conclusion that the brown shaded land was common land, particularly as it is so designated today.

10.4 Appendix 20 Johnston & Bacon Road Atlas of Great Britain 1955 at a scale of three miles to one inch shows a road leading east from Cold Kirby (Low Field Lane) commencing with sections to both the north and the south of the church.

10.5 Appendix 21 Horne’s Tourist Map of Whitby and neighbourhood (undated) at a scale of half an inch to a mile also shows a road leading east from Cold Kirby (Low Field Lane) commencing with sections to both the north and the south of the church. The key denotes this not as a “motoring road”, but as an “other road”. The purpose of both these documents was to enable people unfamiliar to the area to be able to find their way around, primarily by motor car, so the inclusion of the claimed bridleway is indicative that it was at least considered to be more than a footpath.

11. Ordnance Survey Maps

11.1 Appendix 22: Ordnance Survey 1st edition scale 1:10560 published 1853 – 1857 does not show the route, but subsequent editions, (epoch 2: 1889-1895 Appendix 23 and epoch 3: 1913 -1920 Appendix 24) do have a pecked line north of the church which may indicate a path. By the publication of epoch 4: 1930-1953 Appendix 25 this pecked line, possibly indicating a path, has extended east to Low Field Lane.

11.2 Appendix 26 David and Charles’ reprint of the first edition OS one inch map of England and Wales sheet 13 Helmsley, surveyed 1848 – 1854 was published in 1859. This enlargement shows the way to the north of the church in the same way as Low Field Lane to the south and what is now a bridleway leading north from Mount Grace Farm – just across the Green to the north of the Cleveland Way.

11.3 Appendix 27: Ordnance Survey 2nd edition scale 1: 2500 map epoch 1 (1889 – 1898)): : has the way as a double pecked line labelled as Footpath and shown as an open (un-gated) at each end. The subsequent edition: Epoch 2 (1911-1915 Appendix 28) indicates the same unfenced footpath.

11.4 Appendix 29: Ordnance Survey Popular edition scale 1:5000 map surveyed 1912- 1923, first published 1919-1926. This Cassini reprint of Map 100 Malton and Pickering shows the way as a road under 14’ wide running both to the north and the south of the church and continuing east down Low Field Lane

11.5 Appendix 30: Ordnance Survey one inch second war revision map 1940 sheet 22 Pickering and Thirsk has the way shown as a double bounded white road the same as Low Field Lane and the road up out of Cold Kirby leading to Sutton Bank. This is indicative of it being part of the local road network.

11.6 Appendix 31 The Ordnance Survey National Grid Plan SE58 published in 1958 is interesting in that it denotes Roads, then Footpaths. No bridleways are marked on this map at all. The claimed bridleway, a current bridleway leading north from the village and Low Field Lane are all shown the same: and not marked F.P. as is the way leading north-east out of Cold Kirby to Tanker Dale. This is indicative of the way being considered to be or higher status than footpath. Proposed Definitive Map Modification Order, Cleveland Way The Green, Cold Kirby /7 12. Comment

12.1 Mapping evidence indicates that there has for some considerable time been a way from the eastern end of Main Street passing to the north of the church to continue on to lands east of Cold Kirby. This is likely to have been for wheeled traffic and may possibly have been the primary route from Cold Kirby to Rievaulx. The map evidence of an historic route on the line of the claimed bridleway confirms the physical existence of the way that is still discernible today, but gives no indication as to whether it was a public highway.

13 Finance Act

13.1 Appendix 32: Part of the Reference Plan 88.8 of Property Assessments made under the Finance (1909-1910) Act shows the claimed bridleway to be excluded from valuation, as were public roads such as Low Field Lane. Exclusion from valuation means that there is a strong possibility that it was considered to be a highway, normally but not necessarily vehicular; however there may be other reasons to explain its exclusion. In this case, the fact that the way crosses registered common land with no known owner today may be the answer

14 Highway and Definitive map records

14.1 Appendix 33 Highways County Roads map circa1929: The way is clearly shown as an adopted highway No. U668, extending east through Cold Kirby and on down Low Field Lane. This evidence was taken into account when the first definitive map was prepared since it is evident that some routes on the parish survey maps were coloured yellow to indicate their status as “county roads”. Parish path Schedules were also annotated in red with the letters “CR” after reference to the maps of maintainable highways. This is strong evidence of the way having been public and probably considered at the time to be a vehicular highway.

14.2 Appendix 34. The Parish Survey Map of 1952 was compiled by the Ramblers Association for Cold Kirby Parish under requirements of the 1949 National Parks and Access to the Countryside Act as part of the preparation for publication by the County Council of the first definitive map for the North Riding of Yorkshire. The claimed bridleway way is shown as a red line numbered, 11 and this tallies with a description for Path No 11 given in the Schedule Appendix 35 This has the path status as BR – (Bridle Road) and gives the reason for regarding the path to be public as being “Public Usage”. This provides strong evidence for the existence of public bridleway rights in 1952.

14.3 Appendix 36 The Parish Survey map was subsequently annotated and the claimed way was coloured yellow and marked with the highway road reference number KE6/13. In accordance with local practice, and in line with the Highway Surveyor’s response of 19 August 1954 Appendix 37 the Schedule for path No 11 was struck through with the initials CR for County Road

14.4 Appendix 38. A letter from the County Area Surveyor to the NPA in 1989 regarding alleged encroachment onto the village green contains a plan showing what is referred to as an Unclassified County Road (UCR) U668 described as being grassed over and forming part of the Cleveland Way. The western end is however shown swinging north east to join the end of another UCR outside East Farm.

Proposed Definitive Map Modification Order, Cleveland Way The Green, Cold Kirby /8 14.4 Comment

The Highway and Definitive Map records when taken together offer an explanation as to why the claimed bridleway failed to be recorded on the definitive map: very probably because it was at that time recorded as a road and roads were not to be recorded on this map.

14.5 Appendix 39 1965 North Riding Definitive Map has the way unrecorded as a public right of way. The base mapping circa 1927 OS has it uncoloured as other routes which are now public roads such as the extension of Low Field Lane, suggesting higher rights to exist.

14.6 Appendix 40 The current adoption record plan/List of Streets does not include any part of the claimed bridleway, but has Low Field Lane U13/2 running in a southerly arc around the church.

15. User Evidence

15.1 Pedestrian use of the route as of right is unchallenged: the Cleveland Way has been promoted for long-distance walking ever since it was designated a National Trail in 1969. The only evidence of vehicle traffic has been in relation to access to fields served by the way or by farmers with land fronting the route and is therefore considered to be private rather than public, so the only the question remaining is whether or not public bridleway rights exist.

15.2 In an e-mail supporting the proposal dated 5 October 2012 Appendix 8, Ryedale Bridleways Group refers to one local rider who used to use the way and says others also used to. It also names a rider from Kilburn, Katie Morgan, who has used it. Bridleway usage was referred to in the 1952 Parish Survey and local residents have also mentioned occasional use by horses.

15.3. Comment

Wildlife and Countryside Act procedures normally require an uninterrupted period of 20 years’ regular use of a way by the public for a right of way to arise through presumed dedication. This has not been demonstrated, but neither has a landowner been identified for the greater part of the route who would have a capacity to dedicate. The low level of use by horse-riders is however consistent with the low recreational value of the route which connects only to Low Field Lane - itself a cul-de- sac for riders who, without landowners’ permission, cannot go beyond public rights of way.

16. Action to Negate a Right of Way Arising

16.1 Enquiries have revealed that no deposit under section 31(6) of the Highways Act has been made for any of the land crossed by the claimed bridleway. No private signs have been erected, no gates appear to have been placed across the way and no evidence has come forward of anybody having been stopped from using the way.

16.2 Other than objections to the present proposal there have not been any actions that could be taken to be challenges to the public wishing to use the way on foot, horse- back or pedal cycle.

Proposed Definitive Map Modification Order, Cleveland Way The Green, Cold Kirby /9 17 Conclusion

17.1 The claimed bridleway route appears to have been used occasionally by horses, but predominantly by pedestrians for whom it forms part of a longer route promoted as the Cleveland Way National Trail.

17.2 One may speculate that this may historically have been a direct route from Cold Kirby extending east to Rievaulx and Helmsley, which has been under-recorded on the definitive map, but what is clear is that it was considered to have been a bridleway in 1952 when, but for the highway record it would have been added to the definitive map as such. Correction of the highway record at some later date left the way unrecorded and so we now have the opportunity to correct this omission.

17.3 Whilst no single document has been discovered to show conclusively that public bridleway rights exist, numerous maps have shown the way in a style more closely resembling a road than a footpath and these therefore add weight to the assertion that a public bridleway subsists.

17.3 From the evidence currently available, it appears that a public right of way exists along the loop A-B-C north of the church and that on the balance of probabilities it is a right of way on foot and on horse-back and so the way should be added to the definitive map as a public bridleway.

18. Recommendation

18.1 That Members approve the making of a Definitive Map Modification Order to add a public bridleway in Cold Kirby as shown on the Plan Appendix 1.and

18.2 if objections remain un-withdrawn to submit the matter to the Secretary of State for determination.

Contact Officer: K H Gerhardsen Head of Recreation and Access Tel: 01439 772700

Background Papers to this Document File reference

Quality Standards for National Trails in England 5050/5/08/MOD 203(e) Countryside Agency June 2004

Proposed Definitive Map Modification Order, Cleveland Way The Green, Cold Kirby /10