ED/06/44/HQ Public Rights of Way Committee 7 March 2006 Definitive Map Review Schedule 14 Application: Deletion and Downgrading of Bridleway No. 4, Hockworthy (part) and the Addition of a Public Footpath Report of the County Environment Director Please note that these recommendations are subject to confirmation by the Public Rights of Way Committee before taking effect. Recommendation: It is recommended that: (a) no Order be made to which the application relates; (b) the addition of a footpath between points D – B on drawing no. ED/PROW/06/18 be reconsidered if further supporting evidence is submitted during the general parish review of the Definitive Map. 1. Summary The report examines an application by Mr RM Heywood of Lea Barton, Hockworthy to delete and downgrade part of Bridleway No. 4, Hockworthy and to add a new section of public footpath as shown on plan ED/PROW/06/18. The application was submitted on 5 April 1997 and supported by seven witness statements and a plan of the Hockworthy Estate of 1953. Additional supporting evidence has been supplied by Mr and Mrs Hannaford, of Hurds Farm situated at the southern end of the bridleway. 2. Background to Application Confusion about the status of Bridleway No. 4 appears to have arisen when it was signed as a ‘Public Footpath’ in or about 1986/87 by the former Manpower Services Commission. These signs remained in place until the Autumn 1996 when correct ‘Public Bridleway’ signs were erected. This prompted several letters from one landowner, Mr Ward, in October 1996 as he believed the route to be a footpath. In a reply from Devon County Council Mr Ward was informed that the legal status was that of a bridleway and had been so recorded since the Definitive Map was complied in the 1950s. In further correspondence Mr Ward pressed for the Definitive Map Review to start in the parish which led to Mr Heywood submitting a Schedule 14 Application on 5 April 1997. Three landowners are involved with this claim. The applicant, Mr RM Heywood, owns land from the north near Bray Cottage to the start of the hedged lane C – B and the family has done so for many years; Mr and Mrs Hannaford who own the section from A - x and have done so since mid 2002; and Mr Ward owns the land x - B and has done so since December 1989. 3. Application The application submitted by Mr RM Heywood is considered below together with the additional submissions made by Mr and Mrs Hannaford. The witness statements and the Hannaford’s submissions are included in full in the backing papers and should be read in conjunction with this report. 4. Consultations The following consultations have been carried out: County Councillor Ray Radford - no reply Mid Devon District Council - no reply Borden Gate Parish Council - full support to reinstatement of bridleway British Horse Society - Strongly object to application Byways and Bridleways Trust - Strongly object to application Country Land & Business Assoc - no reply Open Spaces Society - Object to application Ramblers' Association - object to downgrading & deletion Trail Riders' Fellowship - no reply 5. Matters for Consideration The application was made under section 53(2) of the Wildlife & Countryside Act 1981 and the applicant considers that an Order should be made under section 53(3)(c)(iii) i.e. “the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows that there is no public right of way over the land shown in the map and statement as a highway of any description, or [that] any other particulars contained in the map and statement require modification ” It should be noted that in applications for deletion, the Department of the Environment circular 18/90 applies: “In a right of way, it will be for those who contend that there is no right of way to prove that the map is in error by the discovery of evidence, which when considered with all other relevant evidence clearly shows that a mistake was made when the right of way was first recorded.” “It is not for the authority to demonstrate that the map is correct, but for the applicant to show that an error was made”. “The evidence needed to remove a public right of way from such an authoritative record will need to be cogent”. In the Court of Appeal case of Trevelyan v Secretary of State for the Environment, Transport and the Regions [2001]. Lord Phillips, M.R., stated, “Where the Secretary of State or an Inspector appointed by him has to consider whether a right of way that is marked on the Definitive Map in fact exists, he must start with the initial presumption that it does. If there were no evidence which made it reasonably arguable that such a right existed, it should not have been marked on the map. In the absence of evidence to the contrary, it should be assumed that the proper procedures were followed and thus that such evidence existed. At the end of the day, when all the evidence has been considered, the standard of proof required to justify a finding that no right of way exists is no more that a balance of probabilities. But evidence of some substance must be put in the balance , if it is to outweigh the initial presumption that the right of way exists. Proof of a negative is seldom easy, and the more time that elapses, the more difficult will be the task of adducing the positive evidence that is necessary to establish that a right of way that has been, marked on a definitive map has been marked there by mistake.” 6. Preparation of the Definitive Map and Statement The original parish surveys for the Definitive Map in Hockworthy parish were undertaken in October and November 1950 by Capt. Fellows and Messrs. M Heywood, L. Redwood and S Northam. Three bridleways and one footpath were proposed which were included on the Draft Definitive Map of 1 March 1958 on the basis that the rights of way subsisted or were reasonably alleged to have subsisted. The procedure called for the Draft Map to be advertised in the local and national press and the following advertisement appeared in the Western Morning News of 15 April 1958 in the Public Notices section: “Notice is hereby given that pursuant to part IV of the National Parks and Access to the Countryside Act 1949, the Devon County Council have carried out a survey of all lands within the area of the Borough of Tiverton and the Rural District of Tiverton, in the county of Devon over which a right of way is alleged to subsist and have prepared a Draft Map and Statement showing and describing all public rights of way which in their opinion subsist or reasonably alleged to subsist on 1 st March 1958”. The notice also stated that a copy of the Draft Map and Statement could be inspected at the residence of the Parish Clerk or the Chairman of the Parish Meeting and invited objections from landowners and the public to the inclusion or omission of routes. No such objections were made to the Draft Map with regard to Bridleway No. 4. The second stage in the process was the publication of the Provisional Map and Statement when there was a further opportunity for landowners, not the public, to object to the inclusion of routes. This took place between 18 June 1963 and 16 July 1963 and again no objection was made with regard to Bridleway No. 4. The third and final stage was the publication of the Definitive Map and Statement when landowners could appeal to the High Court on the basis that any requirement of the Act had not been complied with. No such appeals were made and the Definitive Map for Hockworthy took effect with a relevant date of 1 March 1958. On the basis of the Trevelyan case the presumption that applies is that the proper procedures were followed when the Definitive Map and Statement (DMS) were being prepared, and that there was sufficient evidence existing at that time to support the inclusion of Bridleway No. 4 Hockworthy on the DMS. For this application to succeed there would, therefore, need to be clear, cogent and persuasive evidence to overturn that presumption. 7. Description of the Route Bridleway No. 4 Hockworthy starts at the county road at point A on plan no. ED/PROW/06/18 from Staple Cross to Holcombe Rogus and proceeds in a generally northerly direction across the court yard of Hurds Farm through a gate and into a double hedged lane. The bridleway continues uphill over a mud and stone track in a north easterly and then easterly direction. The easterly section is along a more even gradient following the contours. At point B the hedges end and the route continues through a gate into a field and follows the northern hedge line, then downhill through two other fields to join the county road at point C. This section of Bridleway No. 4 is approximately 1.1km in length. The remainder of Bridleway No. 4 continues across the county road to Hole Farm and then into Somerset where it also continues as a bridleway. The bridleway is currently unusable by horseriders between points A – C due to various unserviceable gates and stiles. The suggested footpath commences on Bridleway No. 1, Hockworthy at point D and proceeds north east across fields to point B where it follows the line as Bridleway No. 4 to point C. This path between points B - D is approximately 330m in length.