WCA 485 Report 7 October 2016

CORNWALL COUNCIL Jon James, Natural Environment Manager as a Report to: delegated decision for Paul Masters, Director of the Economy, Enterprise and Environment Date: 7 October 2016 Wildlife & Countryside Act 1981 Title: The Definitive Map and Statement of Public Rights of way for Cornwall Proposed Addition of a section of Footpath from Footpath No.2 in Tregony CP to the County Road U6098 in Cuby CP) Portfolio Joyce Duffin CC, Environment & Heritage Holder(s) Divisions Affected Probus, Tregony and Grampound Relevant Overview And Scrutiny Committee: Relevant Portfolio Advisory Committee (Cabinet (executive) decisions): Key Decision: N Approval and clearance Y / N obtained: Urgent Decision: N Implementation Date: Date of decision If Key Decision - N If not on Forward Plan – N/A on Forward Plan? Procedure 15 or 16 used? Appropriate pre-decision notification given where an N/A executive Decision? Author: Steve Dyer Role: Countryside Access Records Officer Contact: E-mail: [email protected] - 1 - CORNWALL COUNCIL Recommendations: That an Order be made under Section 53(2)(b) of the Wildlife and Countryside Act 1981: • i) to add a section of Restricted Byway in Cuby CP from the County Road U6098 to Footpath No.2 in Tregony (section A-B) at the Cuby and Tregony parish boundary; • ii) to upgrade a section of existing Footpath No.2 Tregony to Restricted Byway from the junction of the existing Footpath No. 2 with Byway No. 4 Tregony to the junction of existing Footpath no. 2 with the proposed Restricted Byway described at iii) below (section C- D-E-F-G); • iii) to add a section of Restricted Byway from existing Footpath No.2 Tregony to County Road A3078 at the settlement of Reskivers in the parish of Tregony (section G-H) 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 the Order be submitted to the Planning Inspectorate with a request that it be confirmed by the Secretary of State. 1. APPLICATION 1.1 An application was received on the 18 June 2003 from Mr Richard Pascoe for a Definitive Map Modification Order (DMMO) to be made under Section 53 of the Wildlife and Countryside Act 1981, to add a section of Footpath from Footpath No.2 Tregony at the Tregony – Cuby parish boundary to County Road U6098 in Cuby CP. 1.2 The applicant had taken steps to identify the title owner or occupier by contacting adjoining landowners, local inhabitants, officers of the church, the post office and the Tregony Parish Council committee and chairman. However he had been unable to serve Notice of the Application on every owner and occupier of the land. 1.3 On 6 February 2006 the applicant served notice on any unknown landowners by affixing a Notice to some conspicuous object or objects on the land to any owners or occupiers for a requisite period of 42 days. 1.4 The applicant has completed to the Council’s satisfaction the function of serving notice of the application on all owners and occupiers affected by the proposal. 1.5 The application was acknowledged by Cornwall County Council as a valid application made under schedule 14 of the WCA 81 Act and added to the modification order register on 9 February 2006. - 2 - CORNWALL COUNCIL 1.6 The claimed route is shown between Points (A–B- E) on the Application Plan from the County Road U6098 in Cuby CP to Footpath No.2 Tregony at a point where the Tregony and Cuby parish boundaries are in moiety at APPENDIX A (page 20 of this report). However, as a consequence of the discovery of evidence during the preparation of a report on the application, the scope of this report has been extended to include two supplementary ways, details of which are set out below (also shown on the plan at APPENDIX A). i) A section of existing Footpath No.2 from its junction with Byway No. 4 to its junction with the route described at ii) below (section C-D- E-F-G on the Application Plan). ii) A route between existing Footpath No.2 Tregony and Road A3078 at the settlement of Reskivers (section G-H on the Application Plan). 1.8 A report on the physical condition and the topography of the claimed way (A–B–E) was prepared following a site inspection on 15 April 2008. This report is included at APPENDIX B1 (pages 21 to 34). 1.9 A further topographical survey was undertaken on 11 October 2014 to examine the topography of the supplementary sections of way being considered as part of this report. A report on this survey is included at APPENDIX B2 (pages 35 to 66). 2. RELEVANT LEGISLATION 2.1 This application has been made under Section 53 of the Wildlife and Countryside Act 1981, which requires Cornwall Council to keep the Definitive Map and Statement under continuous review. 2.2 Furthermore Section 53(2)(b) requires Cornwall Council to “keep the map and statement under continuous review and as soon as reasonably practical after the occurrence, …… of any of those events, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event.” 2. 3 Section 53(3)(b) describes one event as, “… the expiration, in relation to any way in the area to which the map relates, of any period such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path or restricted byway”. 2.4 Subsection 53(3) (c) describes another event as, “the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows – (i) … that a 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 - 3 - CORNWALL COUNCIL which the map relates, being a right of way such that the land over which the right subsists is a public path, a restricted byway or, subject to section 54A, a byway open to all traffic” 2.5 Section 32 of the Highways Act 1980 relating to evidence of dedication of a way as a highway states, “ A court or other tribunal, before determining whether a way has or has not been dedicated as a highway, or the date on which such dedication, if any, took place, shall take into consideration any map, plan or history of the locality or other relevant document which is tendered in evidence, and shall give such weight thereto as the court or tribunal considers justified by the circumstances, including the antiquity of the tendered documents, the status of the person by whom and the purpose for which it was made or compiled, and the custody in which it has been kept and from which it is produced”. 2.6 Section 31 (1) of the Highways Act 1980 provides that, “… Where a way over 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 actually been enjoyed by the public as of right and without interruption for a full period of twenty 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”. 2.7 Section 31 (2) states, “… the period of twenty years referred to in subsection (1) above is to be calculated retrospectively from the date when the right of the public to use the way is brought into question whether by a notice or otherwise”. 2.8 Section 31 (3) states, “… Where the owner of the land over which any such way as aforesaid passes - (a) … has erected in such manner as to be visible by persons using the way a notice inconsistent with the dedication of the way as a highway; and (b) … has maintained the notice after the 1st January 1934, or any later date on which it was erected, the notice, in the absence of proof of a contrary intention, is sufficient evidence to negative the intention to dedicate the way as a highway. 2.9 For a public highway to become established at common law there must have been dedication by the landowner and acceptance by the public. It is necessary to show either that the landowner accepted the use that was being made of the route or for the use to be so great that the landowners must have known and taken no action. A deemed dedication may be inferred from a landowners’ inaction against the public’s use. In prescribing the nature of the use required for an inference of dedication to be drawn, the same principles were applied as in the case of a claim that a private right of way had been dedicated; namely the use had been without force, without secrecy and without permission. 2.10 Natural Environment and Rural Communities Act 2006 (NERCA 06) - 4 - CORNWALL COUNCIL Section 67 of NERCA ‘06 had the effect of extinguishing, from 02 May 2006, all public rights of way for mechanically propelled vehicles which were not shown in a definitive map and statement or were shown in a definitive map and statement as a footpath, bridleway or restricted byway, subject to certain exceptions. One such exception was an application for a DMMO to add a BOAT to the definitive map and statement made in the prescribed form prior to the relevant date for the purposed of section 67(3) of NERCA 06 [20 January 2005].

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