WCA 586 Report Final

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 / [email protected] Cornwall Council 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. Cornwall Council 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 Cornwall Council 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. Cornwall Council 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. Cornwall Council 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.

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