Cornwall Council Report to: A Delegated Powers Decision to be made by the Natural Environment Manager Date: 15 August 2018 Title: Application for a Modification Order to add a Footpath from the Road A30 to Footpath 59 Penzance at Trembath, Madron CP [WCA 533] Portfolio Holder(s) Sue James, Environment & Public Protection Divisions Affected St Buryan Relevant Overview And Scrutiny Committee: Scrutiny Management Committee Key Decision: N Approval and Y clearance obtained: Urgent Decision: N Implementation 15/08/2018 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 the addition of a Footpath from the A30 to Footpath 59 Penzance at Trembath in the parish of Madron. • That the Order be confirmed by Cornwall Council as an unopposed Order if no objections or representations are received to the Order, or any objection received is subsequently withdrawn; or, if objections or representations to the Order are received that they be submitted by Cornwall Council to the Secretary of State with a request that the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 was to consider an application to modify the Definitive Map and Statement by the addition of a Footpath from the A30 to Footpath 59 Penzance at Trembath in Madron CP. The claimed route is shown as A-B on the plan at APPENDIX A-1 to this report. • The available evidence of use of the way on foot is considered to be sufficient to give rise to the presumption that a Public Footpath has been established under section 31 of the Highways Act 1980. • In determining the application, the Council has also examined documentary evidence. While these records are useful in indicating the path existed as a physical entity, on their own they fail to provide sufficient evidence about whether the path was public, but are supportive of the decision the Council has reached to add a right of way to the definitive map. • 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 on the basis of the occurrence of an event. • 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. Cornwall Council 1. APPLICATION DETAILS 1.1. The purpose of this report is to consider an application to modify the Definitive Map and Statement by the addition of a Footpath from the A30 to Footpath 59 Penzance at Trembath in Madron CP. 1.2. The route of the alleged Bridleway is shown on the Map between A-B set out at APPENDIX A-1. 1.3. On 3 January 2006 on behalf of the Penwith Access & Rights of Way Forum submitted an application to modify the Definitive Map and Statement under Section 53 of the Wildlife and Countryside Act 1981 by adding a Footpath at Trembath in Madron CP from the A30 to the footbridge at the parish boundary between Madron and Penzance, thereby providing a link from Footpath 13 Madron to Footpath 59 Penzance. 1.4. A letter accompanying the application, set out at APPENDIX A-2, explains the delay in submission and why the application form is dated 13 September 2005. 1.5. The application was supported by 10 User Evidence Forms which were completed in 2005. A further User Evidence Form was received in 2018. 1.6. Use of the way on foot was claimed by all 11 witnesses for varying periods between 1934 and 2018. 1.7. The applicant first certified that the requirements of Paragraph 2 of Schedule 14 of the Wildlife and Countryside Act 1981 had been complied with by serving Notice of the Application on every owner and occupier of the land on 19 November 2005. 1.8. In the absence of a response to a consultation with landowners in 2009 the Council requested and authorised the applicant to serve notice on the Land by impersonal means. A second certificate of service of notice was supplied by the applicant in 2016. 1.9. Due to the time elapsed between receipt of the application and Cornwall Council on appeal to the Secretary of State under Schedule 14 being directed to reach a determination in 2018 when the case reached its turn for processing the authority undertook a Land Registry search and consulted with landowners again. 1.10. A list of owners/occupiers consulted at these various dates is set out at APPENDIX B. 1.11. A description of the topography of the way arising from a survey conducted by a Council officer is set out at APPENDIX C. Photographs Cornwall Council of the route produced in 2008 illustrate its physical condition at that time. 2. CONTEMPORARY EVIDENCE OF USE 2.1. Why we consider this evidence important Evidence in the form of questionnaires completed by users is generally provided to establish use by the public. Owners of the land are then invited to complete and submit a questionnaire deliberately designed to elicit evidence of actions they have taken to demonstrate their intentions not to dedicate a right of way. Evidence of use may be submitted in support of historical evidence showing a right of way subsists, although where no documentary evidence of a route is discovered, a public right of way can still be established if members of the public can demonstrate they have used a path ‘as of right’ without interruption for a period of 20 years. ‘As of right’ means any public use of a route is required to have been: • without force (i.e., not breaking a lock on a gate, or cutting down a fence to access the route) • without secrecy (i.e., so as to make the landowners aware that the route was being used) • without permission (i.e., not having the permission of the landowner). Legislation requires evidence of 20 years use ending at a ‘date of challenge’ (Section 31 of the Highways Act 1980). The ‘date of challenge’ is the point at which the right of the public to use the route is brought into question e.g., by a landowner erecting a notice, or locking a gate. Where there is no evidence that public use has been challenged, Section 31(7B) of the Highways Act 1980 specifies that the date the application was made should be used as the end of the 20 year period. Where a landowner can produce evidence to show that they have taken steps to prevent public rights accruing over a way, a right will not have been dedicated. Such action must be overt, apply to the way being claimed and be capable of making the public aware of the landowner’s intentions. They can include erecting and maintaining notices on site stating that the route is not public or that it is used with permission; by installing and locking gates; or by telling people seen using the route that it is not public, etc. Section 31(6) of the Highways Act 1980 (following on from the Rights of Way Act 1932) also allows landowners to deposit a statement and map with the relevant highway authority identifying existing public rights of way across their land, indicating their intention not to dedicate any further rights, which upon lodging a declaration is sufficient proof that no additional ways have since been dedicated. Landowner statements of this type do not act retrospectively and Cornwall Council therefore have no effect on rights that may pre-exist the date of the initial deposit. A right of way can also be established at common law. The common law presumption is that land has been dedicated as a highway if it has been used by the public as of right and without interruption. The land does not have to be used for a defined length of time. However, it must have been used for long enough to justify an inference that the freehold owner intended to dedicate the way as a highway. It is possible, although unusual, that dedication at common law can be presumed on the basis of less than 20 years use. The common law presumption can be rebutted by demonstrating that the landowner had no intention of dedicating the land to the public. The common law principles of dedication are expressly preserved and, if the statutory provision cannot be used, a claim may be made under common law. 2.2. Summary of Evidence Forms of Evidence are set out at APPENDIX D-1. Below is a summary of witnesses who have used the alleged way as a public footpath. Years of Challenge URN Frequency Comments Use to Use 1 1975-2002 4-6/Year No Signposted as a footpath 2 1981-2003 4/Year No Footpath sign at the start 3 1974-2004 1/Year No near A30 Footpath sign at A30 4 1978-2004 2/Year No near entrance at Trewidden Until recently a sign at A30 saying Public 5 1967-2005 10-12/Year No Footpath Trevadoe/Has spoken to owner & wife whilst using the path 6 1978-2001 4-5/Year No Footpath sign Owner greeted walkers & 7 1945-2004 3-4/Year No chatted/Signpost at junction with A30 Have seen Mr Legrice in yard tending his horse/ 8 1950-2005 6-8/Year No Sign public footpath from Trewidden to Trevadoe Cornwall Council Metal CCC sign till 2004 9 1985-2005 5-12/Year No Footpath to Trevadoe Always been used with the occupiers fully aware/ Father farmed at Lower 10 1934-1964 100+/Year No Trembath from 1930-64.