Agenda Item: Meeting: Development Management Committee Date: 18 November 2009 Subject: The determination of an application made under Section 53 of the Wildlife and Countryside Act 1981 to add a number of footpaths to the Definitive Map and Statement in the parishes of Brogborough and Ridgmont Report of: Roy Waterfield - Assistant Director of Leisure and Cultural, Adult and Community Learning Summary: The report seeks a resolution from the committee to either approve or refuse an application to modify the Definitive Map and Statement by the addition of a number of public footpaths in the parish of Brogborough. The report examines the historic documentary evidence upon which a committee resolution should be based. Contact Officer: Adam Maciejewski - Definitive Map Officer - Countryside Access Service 0300 300 6530 x44069 Public/Exempt: Public Wards Affected: Cranfield and Woburn & Harlington Function of: Council RECOMMENDATIONS: 1. The Development Management Committee is requested to: (a) Approve the Bedfordshire Rights of Way Association’s application made under Section 53(5) of the Wildlife and Countryside Act 1981 to add a number of alleged public footpaths to the Definitive Map and Statement in the parishes of Brogborough and Ridgmont on the ground that there is insufficient evidence to oppose a reasonable allegation that the alleged public rights of way subsist; and consequently, (b) Approve the making of a Definitive Map Modification Order under the provisions of Section 53(2)(b) of the Wildlife and Countryside Act 1981, consequent of events under Section 53(3)(c)(i) of that Act, namely, the discovery of evidence which, when considered with all other relevant evidence available, shows 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 which the map relates …”. The Modification Order will add footpaths to the Definitive Map between points: A - B; C - D; and E - X - F in the parish of Brogborough and between points F - H and F - G in the parish of Ridgmont. The footpaths to have a width of 1.8 metres. 1/9 Heading 1 - Introduction 1. In September 2005 the Bedfordshire Rights of Way Association (hereafter “BRoWA”) applied under Section 53(5) of the Wildlife and Countryside Act 1981 (hereafter “the 1981 Act”) to have the Definitive Map and Statement modified by the addition of a number of footpaths in the parishes of Brogborough and Ridgmont. 2. The evidence supplied by BRoWA consisted of an extract from the 1883 1st edition of the Ordnance Survey 25”:1 mile map which shows a number of tracks, some of which are currently recorded as public rights of way (line C-B- E on the plan at Appendix 1) and some of which are not and a copy of the Definitive Statement for Lidlington Footpath No. 18. One of the alleged footpaths passes through a tunnel under the embankment for the Bedford - Bletchley railway line at point X. This tunnel was filled in by British Rail in 1989. 3. The routes alleged to subsist by BRoWA are all rural in nature. The sections A-B and C-D on the plan at Appendix 1 cross arable fields. The sections B-E-X and G-F-H run around the edges of arable fields - section B-E-X being on a grassed farm track. The section B-C runs along what appears to be an abandoned farm track through an area of mature tree planting. The section between point F and to just north of point X encompasses the embankment and double track of the Bedford to Bletchley railway line. Heading 2 - Legal and Policy Considerations 4. Central Bedfordshire Council, as the surveying authority, has a statutory duty under Section 53 of the Wildlife and Countryside Act 1981 to maintain a public record of public rights of way. This is known as the Definitive Map and Statement. The Council also has a duty to make such modifications as are required to keep the Map and Statement up-to-date and accurate. 5. Section 53(5) of the Wildlife and Countryside Act 1981 allows any person to apply to Central Bedfordshire Council to modify the Definitive Map and Statement by order if they believe it to be wrong. The relevant legislation and case law is detailed in Appendix A. 6. When an application is submitted, the Council has a statutory duty to investigate the matter, taking into account all relevant evidence - not just that supplied by the applicant - when coming to its decision. If the evidence shows on the balance of probability, or on a reasonable allegation - which is a far more lenient appraisal of the evidence, that a public right of way is not shown on the Definitive Map this error should be corrected by the making of a Definitive Map Modification Order. 7. If the Modification Order is objected to, the Council cannot confirm it but must forward it to the Secretary of State for the Environment, Food and Rural Affairs. The Secretary of State appoints an Inspector to decide whether the evidence, when weighed on the stricter evidential test of balance of probability, allows the Modification Order to be confirmed. If the evidence does not meet the stricter test the Modification Order is not confirmed. 2/9 8. The Development Management Committee under the Central Bedfordshire Council’s Constitution (Section C of Part E2 at Annex A) is the appropriate body to determine an application made under Section 53 of the 1981 Act. When determining the application, committee members should evaluate the evidence contained within the report to decide whether the alleged public right of way subsists, or can reasonably be alleged to subsist. Ancillary matters, such as the need for a path, or issues of privacy, convenience, nuisance or safety are irrelevant to the issue of whether a right of way does, or does not, exist and are things to be addressed as part of the management strategy of any path added by a Modification Order. Heading 3 - Historical Evidence 9. In addition to the documents supplied by BRoWA I have investigated historic documents contained in the County Archives (see Appendix B) and Council documents relation to the process of producing the Definitive Map (see Appendix C). BRoWA did not supply any evidence relating to public use of the alleged routes and none has emerged from my subsequent investigations. 10. The parish of Brogborough is a relatively new creation - the land formerly being predominantly part of the parish of Ridgmont with a small part of Husborne Crawley. The creation of the new parish of Brogborough occurred on 1 st April 1990 and post-dates the publication of the Definitive Map and Statement for the Former Ampthill Rural and Urban Districts. Consequently most of the documentary records for the alleged paths relate to either the original parish of Ridgmont or the neighbouring parish of Lidlington. 11. The area which is the subject of BRoWA’s application was historically designated as a “Park” and is first documented in c.1246. From the early 18 th Century the Park was owned by the Radcliffe family who subsequently sold it to the Duke of Bedford in c.1828. By c.1925 it had passed into the ownership of two brothers, GE and JT Dunscombe until being bought by a succession of brick manufacturers and currently managed by O&H Properties for Hanson - the owners of the London Brick Company. 12. In the late 18 th Century the parishes of Ridgmont and Lidlington underwent Parliamentary Inclosure. Neither the 1776 Lidlington Parliamentary Inclosure Award nor the slightly later 1797 Ridgmont Parliamentary Inclosure Award created any public rights of way over the area, see Appendix 4, which appears to have retained its protected Park environment. 13. Small scale maps such as Bryants’ 1826 Map of the County of Bedford and the slightly later Ordnance Survey 1”:1 mile map of 1834 pre-date the construction of the Bedford to Bletchley railway line and do not show any routes along the alignment of those claimed by BRoWA, see Appendix 5. 14. The Bedford to Bletchley railway line was constructed under the powers of The Bedford & Birmingham & London Railway Act 1845. There are a number of deposited documents associated with the Bill stage of the 1845 Act including five copies of deposited plans showing the route of the proposed railway and a book of reference giving information about the land over which the railway would pass. The deposited railway plans show the presence of a “ Footway ” 3/9 running approximately along the line of the alleged footpath between points G and F on Appendix 1 - with the depicted route extending further to the north- west and south-east to just beyond the depicted limits of deviation for the proposed railway. A crossing “at the level” of this footpath would require the consent of two Justices and the construction of suitable approaches by the railway company - of which there is no evidence in the Quarter Sessions records or on the later Ordnance Survey maps. One of the plans also depicts an unlabelled track which would have passed through the now blocked tunnel, see Appendix 6. As the tunnel at point X was not depicted on the deposited railway plans it is unlikely to have been planned as the alternative route for a public highway at the time the plans were drafted. 15. Between the late 19 th century and the early 20 th century the Ordnance Survey surveyed and produced three editions of a large scale 25”:1 mile map. The 1883, 1901, and 1925 1 st, 2 nd , and 3 rd editions depict a number of paths along the routes claimed by BRoWA and appear to utilise the railway tunnel at point X, see Appendices 7 and 8.