HCW/16/15 Public Rights of Way Committee 17 March 2016 Definitive Map Review Parish of Clayhidon (part 3) Report of the Head of Highways, Capital Development and Waste Please note that the following recommendations are subject to consideration and determination by the Committee before taking effect. Recommendation: It is recommended that: (a) a Modification Order be made to modify the Definitive Map by adding a public bridleway along Routy Lane between the points A – B as shown on drawing number HCW/PROW/14/88a (Proposal 6). (b) no Modification Order be made to modify the Definitive Map and Statement by upgrading Footpath No. 31 Clayhidon & Footpath No. 40, Hemyock to a Public Bridleway between the points A – B – C – D – E – F as shown on drawing number HCW/PROW/15/46 (Proposal 3). 1. Introduction This third report for Clayhidon parish examines the final two proposals arising from the Definitive Map Review in the parish of Clayhidon. Proposals 1 and 4 were considered at the committee in June 2015 and proposals 2 and 5 at committee in November 2015. Proposals 3 and 6 are considered in this report. 2. Background The background to the review in Clayhidon parish is as discussed in the first report of 24 June 2015. 3. Proposals Please refer to the appendix to this report. 4. Consultations A Definitive Map Review opening meeting was held in Clayhidon in May 2013 and two Definitive Map Modification Orders to correct anomalies on Footpaths No. 28 & 31, Clayhidon were reported to Committee in June 2013, published in 2013 and confirmed in March 2014. A consultation map of six proposals was published in July 2014 with the following results. County Councillor R Radford - no response to proposals Mid Devon District Council - no response to proposals Clayhidon Parish Council - response to all proposals British Horse Society - response to some proposals Country Landowners' Association - no response to proposals National Farmers' Union - no response to proposals Ramblers' Association - no objections to all proposals Trail Riders' Fellowship - no response to proposals Devon Green Lanes Group - no response to proposals Specific responses are detailed in the appendix to this report and included in the background papers. 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 and Public Health Considerations Equality, environmental impact or public health implications have, where appropriate under the provisions of the relevant legislation, been taken into account. 9. Conclusion It is recommended that a Modification Order be made to modify the Definitive Map by adding a public bridleway along Routy Lane between the points A – B as shown on drawing number HCW/PROW/14/88a (Proposal 6) and that no Modification Order be made to modify the Definitive Map and Statement by upgrading Footpath No. 31 Clayhidon & Footpath No. 40, Hemyock to a Public Bridleway between the points A – B – C – D – E – F as shown on drawing number HCW/PROW/15/46 (Proposal 3). 10. Reasons for Recommendations To undertake the County Council’s statutory duty under the Wildlife and 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 area. David Whitton Head of Highways, Capital 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 1999 to date DMR/Clayhidon tw170216pra ddm/CR/DMR Parish of Clayhidon 03 040316 Appendix I To HCW/16/15 A. Basis of Claims 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. Section 67 of the Natural Environment and Rural Communities Act 2006 (NERC) extinguishes certain rights of way for mechanically propelled vehicles except for the circumstances set out in sub-sections 2 to 8. The main exceptions are that: (a) it is a way whose main use by the public during the period of 5 years ending with commencement was use for mechanically propelled vehicles; (b) it was shown on the List of Streets; (c) it was expressly created for mechanically propelled vehicles; (d) it was created by the construction of a road intended to be used by such vehicles; (e) it was created by virtue of use by such vehicles before 1 December 1930. 1. Proposal 6: Proposed addition of a public bridleway along Routy Lane between points A – B as shown on drawing number HCW/PROW/14/88a. Recommendation: It is recommended that a Modification Order be made to add a public bridleway along Routy Lane between points A – B as shown on drawing number HCW/PROW/14/88a. 1.1 Background 1.1.1 Routy Lane was included as part of a recommended riding route in the Blackdown Hills published by the Blackdown Hills Area of Outstanding Natural Beauty in 2008 at which time it was noted that the lane had no recorded status (refer to paragraph 1.3.20). It was therefore agreed that the status would be reviewed when the Definitive Map Review opened in Clayhidon and Routy Lane was included as a consultation proposal. 1.2 Description of the Route 1.2.1 The route starts at point A on the county road just north of Newcot Cross and the southern end of Footpath No. 46, Clayhidon and proceeds generally south south eastwards along a defined and wide hedged lane. At the eastern end the route joins the county road at point B about half way between Burrow’s Farm and Whitedown Cross. 1.2.2 The surface of the lane is earth and grass with a ditch flowing along part of the lane and some trees and shrubs growing from the surface. The width of the lane is as wide as a two lane carriageway for much of the length at some 10 metres plus with the total length of the route being approximately 680 metres. Vegetation growth has restricted the useable width but there is sufficient for a walker or horse rider to pass through. The tree trunks referred to by the landowner Mr Meade (see paragraph 1.5.3) are still in place but there is room at the side for a walker or horse rider to pass by. Photographs of the route are included in the backing papers. 1.3 Documentary Evidence 1.3.1 Ordnance Survey and Other Maps The Ordnance Survey and other mapping do not provide evidence of the status of a route but can be evidence of its physical existence over a number of years. 1.3.2 Cassini Historic Maps 1809 – 1919 Sheet 181 Minehead & Brendon Hills These are reproductions of the Ordnance Survey One-inch maps enlarged and rescaled to a scale of 1:50,000 (to match current OS Land Ranger maps) published in 2007.