HIW/20/6 Public Rights of Way Committee 5 March 2020 Definitive Map Review Parish of Hockworthy Report of the Chief Officer for Highways, Infrastructure Development and Waste Please note that the following recommendation is subject to consideration and determination by the committee before taking effect. Recommendation: It is recommended that no Modification Order be made in respect of Proposal 1. 1. Introduction The report examines the one proposal for change arising out of the Definitive Map Review in the Parish of Hockworthy (within Borden Gate Parish Council) in Mid Devon. 2. Background The original parish survey under s. 27 of the National Parks and Access to the Countryside Act 1949, completed in September 1950, initially proposed four routes for inclusion as public rights of way. After review by Tiverton Rural District Council and Devon County Council and the inclusion of a footpath connecting to Somerset; two footpaths and three bridleways were published on the draft definitive map in 15th April 1958. These five routes were subsequently recorded on the conclusive Definitive Map for Tiverton Rural District Council published on the 9th June 1964. The Devon County Council county wide reviews of the Definitive Map under s.33 of the 1949 Act, commenced in 1968 and 1977 but were not completed. In the 1968 review Hockworthy parish proposed that Bridleway No. 3, Hockworthy should be continued down Redgate Lane to Durley, Beer Down Cottage and out to Wood End. In the 1977 review the parish proposed the addition of path from top of Redgate Lane to Beerdown Cottage. The Limited Special Review of Roads Used as Public Paths (RUPPS), also carried out in the 1970s, did not affect this parish. The following Order affecting the Definitive Map for Hockworthy has been made and confirmed since 1964: Tiverton District Council Hockworthy Footpath No. 2, Public Path Diversion Order 1974. A Legal Event Modification Order will be made for this change under delegated powers in due course. The current Definitive Map Review was opened with a parish public meeting held at the Borden Gate Parish Council meeting in July 2018. Some user evidence was received following the meeting. The addition of a public bridleway along Redgate Lane was included as proposal 1 in the current Definitive Map Review for the parish. The other two parishes within Borden Gate Parish Council (formed in 1974 as a collection of the Hockworthy, Huntsham and Clayhanger Parish Meetings) had no proposals for change and reports on those two parishes were presented to the Devon County Council’s Public Rights of Way Committee in March 2019. 3. Proposals Please refer to the appendix to this report. 4. Consultations General consultations have been carried out with the following results in respect of the proposals considered in this report. County Councillor R Radford - no response Mid Devon District Council - no response Borden Gate Parish Council - response received Uplowman Parish Council - response received Country Landowners' Association - no response National Farmers' Union - no response British Horse Society - no response Ramblers' Association - response received Trail Riders' Fellowship/ACU - no response Devon Green Lanes Group - no response British Driving Society - no response Cycle UK - no response 5. Financial Considerations Financial implications are not a relevant consideration to be taken into account under the provision of the Wildlife and Countryside Act 1981. The Authority’s costs associated with Modification Orders, including Schedule 14 appeals, the making of Orders and subsequent determinations, are met from the general public rights of way budget in fulfilling our statutory duties. 6. Legal Considerations The implications/consequences of the recommendation(s) have been taken into account in the preparation of the report. 7. Risk Management Considerations No risks have been identified. 8. Equality, Environmental Impact (including Climate Change) and Public Health Considerations Equality, environmental impact (including climate change) and public health implications have, where appropriate under the provisions of the relevant legislation, been taken into account in the preparation of the report. 9. Conclusion It is recommended that no Modification Order be made in respect of Proposal 1. Should any further valid claim with sufficient evidence be made within the next six months it would seem reasonable for it to be determined promptly rather than deferred. 10. Reasons for Recommendations To undertake the County Council’s statutory duty under the Wildlife & Countryside Act 1981 to keep the Definitive Map and Statement under continuous review and to progress the parish by parish review in the Mid Devon District Council area. Meg Booth Chief Officer for Highways, Infrastructure Development and Waste Electoral Division: Willand & Uffculme Local Government Act 1972: List of Background Papers Contact for enquiries: Tania Weeks Room No: ABG Lucombe House Tel No: 01392 382833 Background Paper Date File Ref. DMR/Correspondence File 2018 to date DMR/Borden Gate - Hockworthy tw070220pra sc/cr/DMR Parish of Hockworthy 034 260220 Appendix I To HIW/20/6 A. Basis of Claim The Highways Act 1980, Section 31(1) states that where a way over any land, other than a way of such a 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 20 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. Common Law presumes that at some time in the past the landowner dedicated the way to the public either expressly, the evidence of the dedication having since been lost, or by implication, by making no objection to the use of the way by the public. The Highways Act 1980, Section 32 states that 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 document, 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. The Wildlife and Countryside Act 1981, Section 53(3)(c) enables the Definitive Map to be modified if the County Council discovers evidence which, when considered with all other relevant evidence available to it, shows that: (i) a right of way not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates. (ii) 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. (iii) there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification. The Wildlife and Countryside Act 1981, Section 56(1) states that the Definitive Map and Statement shall be conclusive evidence as to the particulars contained therein, but without prejudice to any question whether the public had at that date any right of way other than those rights. The Wildlife and Countryside Act 1981, Section 53(5) enables any person to apply to the surveying authority for an order to modify the Definitive Map. The procedure is set out under WCA 1981 Schedule 14. Section 69 of the Natural Environment and Rural Communities Act 2006 (NERC) amended the Highways Act 1980, to clarify that a Schedule 14 application for a Definitive Map Modification Order is, of itself, sufficient to bring a right of way into question for the purposes of Section 31(2) of the Highways Act 1980, from the date that it was made. 1. Proposal 1 – Addition of a Public Bridleway along Redgate Lane from the county road south of Dare’s Down in Hockworthy parish to the county road at Wood End in Uplowman parish, between points A – B – C – D – E as shown on drawing number HIW/PROW/19/58. Recommendation: It is recommended that no Modification Order be made in respect of Proposal 1. 1.1 Background 1.1.1 A bridleway along Redgate Lane was claimed by Hockworthy Parish Council in both the Devon County Council uncompleted reviews of 1968 and 1977. No user evidence forms or other evidence was submitted at that time. The addition of a bridleway along the route had not been raised by Uplowman Parish Council during their Definitive Map Review in 2017/2018. 1.1.2 After the opening meeting some limited user evidence was received, and some documentary evidence discovered. This, together with the parish’s previous wish in both 1968 and 1977 to have the route recorded, was sufficient for the addition of a bridleway to be included in the current review as Proposal 1 for Hockworthy parish. 1.2 Description of the Route 1.2.1 The route starts at the county road running between Chimney Down at point A (ST0244 1894), south of Dare’s Down and opposite the western end of Bridleway No. 3 Hockworthy. The route proceeds westwards along a hedged lane called Redgate Lane past point B (ST0173 1888), at the entrance to Redwoods Farm. After point B the lane narrows and then becomes a very overgrown and sunken lane, continuing westerly to point C (ST0138 1888). From point C the route turns sharply southwards and continues along another section of overgrown sunken lane.