Cornwall Council
Report to: A Delegated Powers Decision to be made by the Natural Environment Manager
Date: 14 February 2017
Title: Application for a Modification Order to add a Bridleway, together with an upgrade of Footpath 19 to Bridleway at Cost-is-lost, St Allen CP
Portfolio Holder(s) Environment
Divisions Affected Ladock, St Clement & St Erme
Relevant Overview And Scrutiny Committee: Scrutiny Management Committee
Key Decision: N Approval and Y clearance obtained:
Urgent Decision: N Implementation 28 /02/2017 Date:
Author: Jon Rowell Role: Countryside Access Records Officer
Contact: 01872 326684 / jarowell@cornwall.gov.uk
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Recommendations:
• That an Order be made under Section 53(2)(b) of the Wildlife and Countryside Act 1981 to modify the Definitive Map and Statement by upgrading Footpath 19 St Allen to Restricted Byway together with the addition of a Restricted Byway from existing Footpath 19 St Allen to Bridleway 1 St Allen.
• That the Order be confirmed by Cornwall Council as an unopposed Order if no objections or representations are received to the Order; or, if objections or representations to the Order are received that they be submitted by Cornwall Council to the Secretary of State with a request that the Order be confirmed.
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EXECUTIVE SUMMARY
• The purpose of this report is to consider an application to modify the Definitive Map and Statement by upgrading Footpath 19 St Allen to Bridleway together with the addition of a Bridleway from existing Footpath 19 St Allen to Bridleway 1 St Allen. The claimed route is shown as A-B-C and D-E on the plan at APPENDIX A-1 to this report and section A-B-C is known locally as ‘Soloman’s Lane’.
• In determining the application, officers have examined documentary evidence, particularly the tithe records and incremental value duty records. It is considered that these records indicate that, on the balance of probabilities, presumed dedication of the way as a vehicular highway has occurred at common law and that a vehicular highway subsists over the claimed route.
• Because the Natural Environment & Rural Communities Act 2006 extinguished rights for mechanically propelled vehicles unless the claimed route qualifies under one or more exceptions in the Act, it is only possible to record it on the definitive map as a Restricted Byway. The claimed route does not qualify under any of the exceptions listed in the Act.
• Furthermore, the available evidence indicates that there has been sufficient use on foot of those sections of way shown as B-C and D- E on the report map sufficient to give rise to the presumption that a Public Footpath has been established under section 31 of the Highways Act 1980. Section A-B of the claimed route is already recorded on the Definitive Map and Statement as a footpath.
• More limited evidence of use of the way on horseback is not considered to be sufficient to give rise to the presumption that a Public Bridleway has been established by long user under section 31 of the highways Act 1980.
• One landowner claims to have maintained locked gates and told users who asked that the way was private, but failed to provide details to show dates when this happened, or where the gates that were locked were. None of the 27 witnesses mentioned coming across a locked gate, or being told that the way was private, so there is no evidence available to indicate that landowners had taken sufficient overt action to demonstrate to users that they did not intend to dedicate a right of way over sections A-C and D-E of the claimed route.
• It is therefore further considered that the available evidence shows that part of the claimed route has also been dedicated as a right of way on foot by virtue of Presumed Dedication at statute. The evidence shows that sections B-C and D-E have been used as of right by the public for a period of 20 years prior to 2013 when the
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public’s right to use the way was brought into question by the erection of an earth bund in accordance with section 31 of the Highways Act 1980.
• In conclusion the report recommends that an Order be made under section 53(2)(b) of the Wildlife and Countryside Act 1981to add the claimed way to the definitive map and statement and a footpath already shown on the definitive map ought to be shown as a highway of a different status on the basis of the occurrence of two events. Firstly, that the available evidence shows that a Restricted Byway is reasonably alleged to subsist along sections B-C and D-E and secondly, that the available evidence shows that a Restricted Byway subsists on the balance of probabilities along section A-B. It also recommends that the Council confirms the Order if it is unopposed or asks the Secretary of State to confirm it if it is opposed.
1. BACKGROUND
1.1. The purpose of this report is to consider an application to modify the Definitive Map and Statement by upgrading Footpath 19 St Allen to Bridleway together with the addition of a Bridleway from existing Footpath 19 St Allen to Bridleway 1 St Allen, a route known locally as ‘Soloman’s Lane’.
1.2. The route of the alleged Bridleway is shown on the Map set out at APPENDIX A.
1.3. On 12th December 2013 of The Ramblers Association and of the British Horse Society submitted a joint application to modify the Definitive Map and Statement under Section 53 of the Wildlife and Countryside Act 1981 by upgrading Footpath 19 St Allen to Bridleway at Cost-is-Lost (shown as Route A-B on the attached map in APPENDIX A) and adding a Bridleway between Cost-is-Lost and Zelah Lane (shown as Routes B-C and D- E on the attached map in APPENDIX A).
1.4. The application was supported by 27 Public Rights of Way evidence forms. Additionally Witnesses 7 and 19 submitted documentary evidence in support of the claim.
1.5. Use of the way on horseback was claimed for varying periods between 1977 and 2013 and on foot between 1936 and 2013.
1.6. The applicants certified that the requirements of Paragraph 2 of Schedule 14 of the Wildlife and Countryside Act 1981 have been complied with by serving Notice of the Application on the Land and also every owner and occupier of the land. A list of owners/occupiers is set out at APPENDIX B.
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1.7. Photographs illustrating the route, showing its physical condition and including a description of the topography of the way provided by the applicant are set out at APPENDIX C.
2. EVIDENCE OF USE IN SUPPORT OF THE APPLICATION
2.1. Forms of Evidence
2.1.1. A total of 27 copies of written Forms of Evidence were submitted by users of the way to support the application.
2.1.2. Copies of these Forms of Evidence, showing the claimed frequency of use are set out in APPENDIX D-1.
2.1.3. The witnesses have not been interviewed, but information has been taken from the Forms of Evidence which have been signed by each witness to the effect that "I hereby certify that to the best of my knowledge and belief the facts that I have stated are true" accompanied by annexed maps detailing the precise routes, which have also been signed.
2.2. Bar Chart of Claimed Use
2.2.1. A bar chart summarising the use claimed by witnesses is set out at APPENDIX D-2. In respect of use of the alleged route on horseback the bar charts show 9 people claimed to have used the route for varying lengths of time. Although no individual witness had used the route for an entire 20 years, 4 had used it for more than 10 years and the combined use on horseback covers a period in excess of 20 years
2.2.2. In regard to use of the way on foot, 22 people claimed to have used it for varying lengths of time with 11 having used it for a period in excess of 20 years.
2.2.3. Use of the way on foot and horseback has continued at least up until the time evidence forms were submitted with the application in 2013. A total of 3 witnesses (12, 13 & 14) have claimed use exclusively outside the period of 20 years prior to the date of the DMMO application, so their evidence may not be relevant.
2.3. Permissive & Private Use
Where witnesses identify they have used the alleged route with the permission of the landowner, or in exercise of a private right their evidence cannot be used in support of the claimed public right. Among the 29 witnesses no use has been by permission, or in exercise of a private right.
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2.4. Frequency of Use
In order to be satisfied about whether there has been sufficient use of the way by the public, it is necessary to consider not only the number of users but also how often witnesses claim to have used the paths. APPENDIX D-1 shows of the 27 witnesses 3 (12, 13 & 18) claim to have used it on an approximately weekly basis while another 3 witnesses (19, 20 & 22) claim to have used it more frequently than that, up to twice a week, or more often. A further 4 witnesses (1, 5, 10 & 23) have used it at least once in every two weeks, while the rest have used it less frequently. It is worth noting that although the witnesses (19, 20 & 22) who used the way most frequently were also those who claimed use of the route on horseback, use for equestrian purposes was considerably less frequent than use on foot. Taken together with the evidence of the numbers of witnesses, use on foot is substantial and continuous, while use on horseback is continuous, but less substantial.
2.5. Inconsistencies
2.5.1. Despite describing the route claimed clearly on their user evidence forms, two witnesses (8 & 10) did not mark the map accompanying their statement to illustrate the route they had used and their evidence should carry less weight as a consequence.
2.5.2. The maps of fourteen witnesses do not show that they have used the route between points D-E on the report map. However, among those that do include this section use has been both frequent and ranged over a period in excess of 20 years.
2.6. Additional Evidence In Support Of Application
Further evidence in the form of reference to historical and written documents has been submitted by two witnesses (7 &19) in support of the application by users. Details are set out at APPENDIX D-3 and the relevant evidence from this supplementary material discussed in the Documentary Evidence section below.
3. LANDOWNER EVIDENCE
3.1. With the identity of all affected landowners provided by the applicant, a letter of consultation, inviting the identified landowners to confirm they were the owner, or occupier of the land over which the alleged ways run and also requesting that they complete a Landowner/Occupier Evidence Form and/or submit comments in regard to the application was sent to each of the persons certified by the applicants to be an owner and/or occupier of the land in February 2014.
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3.2. Responses in the form of completed Landowner/Occupier Evidence Forms can be found in APPENDIX E-1, which also contains copies of letters written in response to the application from landowners directly affected by the claim.
3.3. The landowners and/or occupiers have not been interviewed. The information has been taken from the Landowner/Occupier Evidence Forms which have been signed by each landowner/occupier to the effect that "I hereby certify that to the best of my knowledge and belief the facts that I have stated are true".
4. DOCUMENTARY EVIDENCE
4.1. Small-scale Historical Maps
Extracts from the Thomas Martyn map (1748/1749) and Greenwood Map (1826/1827) are set out at APPENDIX F-1 and F-2 respectively. Because the scale of the maps is relatively small it is not possible to identify historical routes marked with any degree of accuracy, or identify routes within proximity of the claimed way.
4.2. Tithe Map
4.2.1. Around the early 1840's the majority of parishes were surveyed by Tithe Commissioners. They produced detailed, large scale parish maps and accompanying schedules, which identified titheable lands, but not highways, or their status. The Tithe Map cannot be used as definitive evidence of public rights, but the maps do mark roads quite accurately, and taken in conjunction with the schedule, can provide useful supporting evidence. Tithes were not payable on public highways, and these are sometimes shown in a special colouring on the map. Where the evidence from the tithe record is uncertain it can only be used in support of, or conjunction with, other more compelling evidence of the public nature of the way.
4.2.2. An extract from the Tithe Map and Tithe Apportionment Register for the Parish of Perranzabuloe is set out at in APPENDIX F-3. The claimed way between A-B on the report map follows a clearly defined track between plots and though not coloured its character is no different in terms of its depiction to other highways in the vicinity which are now designated carriageways on the list of streets. It is unclear whether a related apportionment number 1573 includes, or excludes the lane in question.
4.2.3. Extracts from the Tithe Map and Tithe Apportionment Register for the Parish of St Allen is also set out at in APPENDIX F-3. The claimed route between B-C on the report map follows a clearly defined lane bounded by adjacent fields on both sides on the tithe map without a coloured wash but depicted no differently from other highways to which it links at this location that are now classified as
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roads on the list of streets except in respect of it being ascribed an apportionment number 681.
4.2.4. The claimed route between D-E on the report map also follows a clearly defined lane bounded by fields and buildings on the tithe map and is shown no differently from other highways at this location now designated roads except in respect of it being identified by an apportionment number 141.
4.2.5. Under the Name and Description of Land and Premises: 1573 is shown as a plantation; 681 is described as Waste and Road; and 141 is described similarly as Roads and Waste.
4.3. The Finance Act 1910
4.3.1. A survey was carried out by the Valuation Department of the Inland Revenue under the Finance Act 1910. The task of the valuers was to provide information for tax purposes, to plot and record every piece of land, give every land holding a number, and provide ownership and occupation details for valuation purposes. Their concern with rights of way was in order to assess tax relief. In assessing the value of the land, deduction was made inter alia for “the amount by which the gross value would be diminished if sold subject to any public rights of way”. In view of the financial implications, many landowners would have been anxious to ensure that public highways were correctly recorded on the plans and all rights of way properly identified in the Field Book. Indeed as such deductions allowed for the existence of public rights of way, the valuations required by the Finance Act 1910 can be highly relevant where highway status is in issue.
4.3.2. The fact almost all individual pieces of land in private ownership were recorded (identified by coloured boundaries) enables one to deduce valuable information about the existence of untaxed public roads which were generally excluded from the parcels of private land. But this does not mean that it should be assumed that roads included, or part included, in a hereditament were not to be subject to carriageway rights. However, if a lane or track was excluded from the taxable landholdings, it is likely that it was considered to be a public road at the time.
4.3.3. Extracts from the valuation map are provided at APPENDIX F-4(i). The section of claimed way at Zelah Lane Farm shown as D-E on the attached report map is uncoloured road on the inland revenue map which points strongly to the conclusion that the route enjoyed vehicular rights and was recognised as a carriageway at the time.
4.3.4. With a blue boundary line crossing the claimed way it is less clear whether the part of the route shown as A-C on the attached report map is uncoloured or not. To accurately deduce if the road is
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incorporated in the surrounding hereditaments, or deliberately excluded from them, requires calculation. If the size of the individual parcels (fields only) added together equates to the area which the Forms 37 identify as being subject to tax, this confirms the road exempt and therefore not part of the hereditament.
4.3.5. Forms 37 for the relevant hereditament numbers affected 236 and 26 are set out at APPENDIX F-4(ii).
4.3.6. The calculations establishing that the road is uncoloured and therefore excluded from the respective hereditaments are set out at APPENDIX F-4(iii). This indicates that the route in its entirety benefitted from public access and was recognised as a carriageway at the time.
4.4. Ordnance Survey Maps
4.4.1. It is well established that Ordnance Survey maps do not provide evidence of the status of a right of way, but merely record the physical features at the time of survey. They are however very useful in confirming the existence of a way at a particular date and the type of use along the way.
4.4.2. Ordnance Survey maps including: the OS 25 inch County Series of England and Wales 1880 & 1907 editions (approx 1:2500 metric equivalent); OS Six-inch maps of England and Wales 1888 & 1908 editions; smaller scale maps such as OS 1:25,000 maps of Great Britain 1951 edition; OS One-inch to the mile England and Wales Revised New Series 1895, New Popular Edition 1946 and the 7th Series 1961 without exception identify the entire route as a road with solid boundary lines.
4.4.3. The claimed route also appears on Bartholomew’s Half Inch Maps of England & Wales Cornwall Sheet 1903. While alongside Ordnance Survey maps other commercial maps say little about the reputation of a route enjoyed by the public, they can provide useful corroborating evidence of the existence of a way over time. Indeed, although the sheets produced by Bartholomew carry a disclaimer to the effect that the ‘representation of a road or footpath is no evidence of the existence of a right of way’, they also state that ‘the uncoloured roads are inferior and not to be recommended to cyclists’. Given that these maps were produced expressly for cycling purposes, where a route is defined it is likely to have been at least accessible by bike.
4.4.4. Extracts from Ordnance Survey and Bartholomew’s maps at various scales incorporating the claimed way are set out in APPENDIX F-5.
4.5. Definitive Maps
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4.5.1. In the early 1950s Parish Councils were asked to carry out a survey of all the public rights of way with an accompanying descriptive Statement describing the relevant features and the termination points of each way.
4.5.2. Extracts of the Parish Survey, Draft Provisional and 1st Edition of the Definitive Map for the parishes of St Allen and Perranzabuloe are set out at APPENDIX F-6. They show that while the section of claimed route to be upgraded from footpath to bridleway, formerly in Perranzabuloe, was originally recorded by that parish council as a Cart Road used as a Footpath (CRF) and similarly the claimed way to be added at Zelah Lane Farm on the defined track between D-E linking to Bridleway 1 St Allen was also formerly recorded as CRF the route between the two has never been recorded on the definitive map, nor it appears from the history of the definitive map was there any proposal for including it at any stage.
4.5.3. In the absence of evidence regarding how St Allen Parish Council compiled their parish survey, it is only possible to speculate why the claimed route was not originally included. It is suggested that as a consequence of its physical characteristics the parish thought the lane to be part of the network of roads already maintainable at the public expense and therefore did not need to be added to the map.
4.5.4. In adding a CRF to their survey, Perranzabuloe Parish Council considered the situation differently. By recording section A-B of the claimed route they assumed that St Allen Parish Council would include that part of the route in the adjoining parish on the definitive map, so the path would continue across the parish boundary at the time. It was never their intention to include a dead end path on the definitive map, a fact made apparent in the schedule that accompanied the parish survey which indicated the path extended into the parish of St Allen as far as the ‘Zelah Trunk Road’ which is what they identified the ultimate destination of the path to be.
4.6. Aerial Photographs
4.6.1. Although unable to infer information about the status of a way aerial photographs can sometimes provide useful topographical detail on the existence, character and delineation of tracks..
4.6.2. Extracts of relevant aerial photos from c1946, 2000 and 2005 are set out at APPENDIX F-7.
4.6.3. The aerial photographic record confirms the alleged way was a distinct highway from 1946 and appears to be of sufficient width to accommodate vehicles.
5. CONSULTATIONS
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5.1. Consultations with the local councils, the prescribed organisations, statutory undertakers and other bodies were carried out on 19 January 2017.
5.2. Responses to the consultation were received from: St Allen Parish Council; The Ramblers; SW Water and BT Openreach. Copies of their comments can be found in APPENDIX G-1.
6. ANALYSIS
6.1. Date That Public Rights Were Brought Into Question
6.1.1. To establish that a right of way subsists under Section 31 of the Highways Act 1980, it is necessary to determine a date that public rights were brought into question so that a period of 20 years immediately prior to this date can be calculated over which public use of the way can be shown to have occurred.
6.1.2. Although one affected landowner claims to have periodically kept locked gates for farming practices and has told people the way is private, they have not provided evidence of specific instances, or dates when this has occurred.
6.1.3. User evidence submitted in support of the application makes no mention of any challenge by landowners by way of, for instance, erecting physical barriers, verbal restraint or warning notices, until several people mentioned that an earth bank obstructed the way in 2013.
6.1.4. A modification order application submitted in 2013 appears to have been prompted by the way being obstructed in that year. In the absence of direct demonstrable action having been taken by a landowner to challenge public rights until that point 2013 has to be taken as the date upon which public rights were brought into question.
6.1.5. The relevant period of use by members of the public, as of right and without interruption, to establish public rights by presumed dedication under Section 31 of the Highways Act 1980 is therefore 20 or more years prior to the date when rights were called into question in 2013.
6.2. User Evidence
6.2.1. The number of evidence forms (27) submitted by witnesses claiming use of the alleged way on foot is significant. The extent and regularity that witnesses claim to have used the lane over the whole 20 year relevant period is also considerable.
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6.2.2. The number of users on horseback (9) is less substantial, riders also used the way much less frequently and no single witness used it for an uninterrupted period of the whole 20 years. On average 7 witnesses only used the lane once every two months and the two witnesses who used it more frequently, approximately once every two weeks only did so for short periods of time. Witness 22 claimed to use the way 30 times per year for 8 years and Witness 27, 20 times per year for 2 years.
6.2.3. Supporting evidence provided in support of use of the way focuses exclusively on use by walkers. According to Witnesses 7, 19 & 21 the claimed route was included in the Land’s End Trail, an unofficial long distance route developed in 1986 which became an e-book in 2008. It was also referenced in a book ‘The Celtic Way’ by Valerie Saunders. Several witnesses remember the claimed route as a short-cut which locals used to go to school and church (Witness 8, 10 & 13). It was also included in a nature study walk that witnesses recall taking while pupils at Zelah School (Witness 10 & 13).
6.3. Landowner Evidence
6.3.1. While the owner of the section of the lane between A-B on the report map currently recorded as public footpath opposes its upgrade to bridleway and has no knowledge of use of the lane on horseback, their completed Landowner Evidence Form contains no evidence of action taken to prevent bridleway rights accruing along this section of the claimed route
6.3.2. The owners of the section of lane shown between B-C on the report map and who live in the farm adjacent to the section of lane shown between D-E on the report map indicate that they have maintained locked gates at times to suit farming operations, have stopped and turned back people using the lane and have told anyone who has asked that the lane is private. However, the owners then offer a contradictory reason to explain why they have not erected notices, because they have not seen the lane being used. They also report that three separate gates blocked the lane when they took control 25 years previously, but do not say whether the gates were locked. They add that the lane has not been maintained and is largely impassable and except for private reasons, more specifically shooting rabbits, that they have never given anyone permission to use the track.
6.3.3. None of the 27 witness statements mentioned seeing any signs or notices intended to alert them to the landowner’s intention not to dedicate a right of way. There are no reports of obstructions in the form of locked gates until the earth bank appeared in 2013 which prompted the modification order application. No witness reports having been stopped from using the way. Indeed several users (Witness 19, 22, 23, 24 & 26) all mention encounters with
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landowners over time and even having spoken to them, but do not say that they were turned back or in any other manner dissuaded from using the way.
6.3.4. Land Registry documents set out at APPENDIX E-2 show the alleged way to be unregistered along its whole length.
6.4. Documentary Evidence
6.4.1. Historical documents show a route has existed over the claimed way from the date of the tithe map circa 1840 forward. It is later shown on Ordnance Survey maps, delineated either as a road, or as a clearly defined bounded track along its full extent following the route alleged in the application and visible on aerial photographs from 1946 onwards. The definitive map record indicates that section A-B of the claimed route was claimed as a Cart Road used mainly on Foot (CRF) by Perranzabuloe Parish Council in the 1950s and was subsequently recorded as a CRF on the definitive map for Truro Rural District when this was published. The path is currently recorded in the definitive map and statement as a footpath.
6.4.2. The claimed route is depicted no differently on the tithe map to other routes in the area that are now roads maintainable at public expense. Some sections of the route were given an apportionment number, and the record identifies these sections as road and waste.
6.4.3. In 1910 the claimed route was shown either as uncoloured road on the inland-revenue maps, or can be shown by means of a calculation not to have been included in any taxable portion of a hereditament meaning it was omitted from any valuation for tax purposes.
6.4.4. The evidence from and Inland Revenue maps supported in part by the tithe record indicates that the claimed route was a vehicular highway which formed part of the network of vehicular highways in the local area.
6.5. Consultations
6.5.1. St Allen Parish Council indicated that Footpath 19 St Allen between points A-B on the report map is not maintained by the parish because it does not lead to anywhere. They also state that the remaining route being claimed is an access lane for Zelah Lane Farm and there are no public access rights over it. However, they do not supply any evidence to support their contention.
6.5.2. The relevant local County Councilor consulted over the application in 2017 made no comment.
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6.5.3. Among prescribed organisations which responded to the preliminary consultation The Ramblers identified the tithe map and apportionment and Finance Act 1910 maps as providing strong evidence that the route should be recorded as a restricted byway.
6.5.4. While returning their consultation proforma documents SW Water and BT Openreach had no comment to make.
7. CONCLUSIONS
7.1. In deciding whether to make an Order under Section 53(2)(b) of the Wildlife and Countryside Act 1981 it is necessary to consider whether an ‘event’ has taken place which would require the authority to make the Order. In this report the ‘event’ that has been considered is under Section 53(3)(c)(i) of the Wildlife and Countryside Act 1981namely the discovery of evidence which shows that a right of way which is not shown on the definitive map is reasonably alleged to subsist along the line of routes B-C and D-E on the report map. A further ‘event’ that has also been considered is under Section 53(3)(c)(ii) of the Wildlife and Countryside Act 1981 namely the discovery of evidence that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description over the route shown as A-B on the report map. The ‘events’ will have taken place if it can be demonstrated that the evidence shows that public rights have been shown to exist:
• under Section 31 of the Highways Act 1980. • at Common Law by showing that the landowner at some time in the past dedicated the way to the public either expressly, the evidence of the dedication having been lost, or by implication making no objection to use by the public of the way. • having regard to Section 32 of the Highways Act 1980 which states that a court, or other tribunal, before determining whether a way has, or has not been dedicated as a highway shall take into consideration any map, plan or history of the locality or other relevant document tendered in evidence.
7.2. For the purposes of Section 31 of the Highways Act 1980, it is considered that public use on horseback and on foot was brought into question by an earth bank obstructing the claimed way in 2013.
7.3. The available evidence of use by the public of the route on horseback between A-B-C and D-E on the report map for a 20 year period prior to the right being brought into question was insufficient to show the way has been dedicated as a public bridleway.
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7.4. Evidence of use of the route on foot between points B-C and D-E on the report map is sufficient to show the way has been used as of right for the relevant 20 year period before rights were brought into question.
7.5. No relevant evidence was produced that demonstrated a lack of intention to dedicate a right of way on the part of a landowner during the relevant 20 year period prior to the right being brought into question.
7.6. The records from the Finance Act 1910 supported by the tithe survey are pertinent to the question of whether the claimed route has been dedicated as a highway at common law. In the tithe records, the way is identified as ’road and waste’ while the Finance Act records points to the fact that the claimed route was considered to be a public highway, because it was excluded from the surrounding hereditaments on the valuation map. It is therefore considered that the documentary evidence indicates that, on the balance of probabilities, the whole of the claimed route (A-B-C and D-E) was dedicated as a public carriageway at an unknown date in the past. No evidence has been discovered which indicates that public rights along the way have subsequently been stopped up.
7.7. Section 67 of the Natural Environment and Rural Communities Act 2006 extinguished all existing public rights of way for mechanically propelled vehicles unless the way qualified under one or more exceptions. The claimed route does not qualify as an excepted way. Subsection 70(1) of the NERC Act 2006 provided for ways to be recorded as restricted byways in the definitive map and statement on the basis of documentary evidence or evidence of a qualifying period of use by vehicles. In this instance, because none of the five exceptions in subsection 67(2) are met, the claimed route should be recorded on the definitive map as a restricted byway.
7.8. Having considered and weighed up the available relevant evidence for the accrual of public rights, balanced against the evidence provided by landowners and consultees, it is concluded that public vehicular rights exist over the claimed route and that the Council should make a Definitive Map Modification Order to reflect this.
7.9. The evidence set out in this report indicates that a restricted byway is reasonably alleged to subsist over routes B-C and D-E on the report map and a restricted byway exists on the balance of probabilities over route A-B. This satisfies the tests for ‘events’ in section 53(3)(c)(i) and Section 53(3)(c)(ii) of the Wildlife and Countryside Act 1981 respectively.
7.10. The evidence set out in this report also indicates that a footpath is reasonably alleged to subsist over routes B-C and D-E on the report
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map. This also satisfies the test for an ‘event’ in section Section 53(3)(c)(i) of the Wildlife and Countryside Act 1981.
7.11. It is therefore considered that the Council should make a Definitive Map Modification Order to upgrade section A-B of the claimed route from Footpath to Restricted Byway and to add sections B-C and D-E to the definitive map and statement for the former district area of Carrick as Restricted Byways. It is considered that if the Order made by the Council is unopposed, it should be confirmed by the Council and if the Order is opposed, it should be forwarded to the Secretary of State with a request that it be confirmed.