COMMONS AND RIGHTS OF WAY COMMITTEE 30 JANUARY 2007 AGENDA ITEM: APPLICATION FOR A MODIFICATION ORDER TO RECLASSIFY ROADS USED AS A PUBLIC PATH (RUPP) NDM 2 AND NDM 6 TO BYWAYS OPEN TO ALL TRAFFIC (BOATs) PARISH OF DIDMARTON JOINT REPORT OF THE GROUP DIRECTOR: ENVIRONMENT AND THE HEAD OF LEGAL AND DEMOCRATIC SERVICES 1. PURPOSE OF REPORT To consider the following application: Nature of Application: Reclassify Roads Used as Public Paths NDM 2 and NDM 6 to Byways Open to All Traffic Parish: Didmarton Name of Applicant: Kevin Biddlecombe, on behalf of the Trail Riders’ Fellowship Date of Application: 19 January 2005 2. RECOMMENDATION That the Restricted Byways (formerly Roads Used as Public Paths (RUPPs)) NDM 2 and NDM 6 be reclassified as byways open to all traffic (BOATs) 3. RESOURCE IMPLICATIONS Average staff cost in taking an application to the Panel- £2,000. Cost of advertising Order in the local press, which has to be done twice, varies between £75 - £300 per notice. In addition, the County Council is responsible for meeting the costs of any Public Inquiry associated with the application. If the application were successful, the path would become maintainable at the public expense. 4. SUSTAINABILITY IMPLICATIONS No sustainability implications have been identified. 5. STATUTORY AUTHORITY Section 53 of the Wildlife and Countryside Act 1981 imposes a duty on the County Council, as surveying authority, to keep the Definitive Map and 1 Statement under continuous review and to modify it in consequence of the occurrence of an ‘event’ specified in sub section (3). Any person may make an application to the authority for a Definitive Map Modification Order on the occurrence of an ‘event’ under section 53 (3) (b) or (c). The County Council is obliged to determine any such application that satisfies the required submission criteria in accordance with schedule 14 of the Act. 6. DEPARTMENTAL CONTACT Andrew Houldey, Modification Orders Officer, Definitive Map Unit, Public Rights of Way Section, Environment Department. Telephone Gloucester (01452) 425522 E-mail: [email protected] Janet Smith, Senior Lawyer, County Legal Services. Telephone Gloucester (01452) 425095 E-mail: [email protected] REPORT 7. DESCRIPTION OF PATH 7.1 A map at scale 1: 8,000 is attached (numbered ….A) showing the position of the claimed paths at Didmarton. The claimed paths are approximately 4½ miles south west of the town of Tetbury. The area of interest lies within Ordnance Survey Grid Squares ST 8090, ST 8190, ST 8189 and ST 8289. This map shows the claimed path NDM 2 by a broken black line with arrows between points A and B; the claimed path NDM 6 is shown by a broken black line with arrows between points C and D. The path was inspected in March 2005 and in October 2006. 7.2 The claimed byway open to all traffic runs from the main Nailsworth to Bath road (A46) at point A. When inspected in March 2005 it was signposted at point A by a metal fingerpost as a road used as a public path; in October 2006 NDM 2 was instead signposted as a restricted byway. 7.3 The path runs in a generally south-easterly direction from point A across an arable field for approximately 600 metres; the path is approximately 2.5 metres in width and unploughed. For the next 100 metres the path is bordered on the southern side by a stone wall; the width of the path is still some 2.5 metres at this point. For the next 500 metres, the path runs along a grass headland, open to the north and bounded by a stone wall on the southern side. The claimed way NDM 2 then runs along the parish boundary between Didmarton and Leighterton. It is bordered on the north by a hedge and unenclosed on the southern side. The path is then crossed by public footpaths NDM 3 and NBL 8. At this point the path passes through a farm gate, 3 metres in width, which was propped open at the time of inspection in March 2005. 2 7.4 The definitive line of the path NDM 2 follows the south side of the hedge along a grass headland for approximately 200 metres before following a course across the field to point B, which is the junction with classified road 3/279 and a private metalled road to Park Wood Farm. At the time of inspection in March 2005, it was clear that vehicular traffic had been following a course along the perimeter of the field to point B instead of diagonally across the field on the definitive line of the path. The path NDM 2 was signposted at point B with a metal finger post as a Road used as a Public Path in March 2005; this sign had been replaced by one denoting a Restricted Byway by October 2006. 7.5 The claimed path NDM 6 runs between the public road 3/279, known as Leighterton Lane, at point C, in a generally easterly direction to point D, where it meets county road 3/280. At the western end of NDM 6 there is a stone pillar, which was presumably a gatepost. The gateway here is 12 foot in width (3.6 metres). Near to this gateway was a metal farm gate, lying against the hedge and not attached to the gatepost. 7.6 The path NDM 6 is a stoned track, some 2.5 metres in width. The path is bordered by a hedge on the northern side and open on the southern side for approximately 420 metres east from point C. The remaining 150 metres of the path east to point D is bordered by a hedge on the northern side and by a stone wall on the southern side. The width between the wall and the hedge is approximately 5 metres. The path is signposted at point D by a metal finger post. In March 2005 the path was signposted at this point as a Road used as a Public Path; in October 2006 the path was instead signposted as a Restricted Byway. 7.7 The existing restricted byway NDM 2 (A to B) is approximately 1,600 metres in length. Restricted byway NDM 6 (C to D) is around 570 metres in length. 8. BACKGROUND 8.1 Following a request from Kevin Biddlecombe of the Trail Riders’ Fellowship on 10 January 2005, an information pack and the application forms were sent to him on 13 January 2005. 8.2 Section 67(1) of the 2006 Natural and Environment and Rural Communities (NERC) Act extinguishes unrecorded public rights of way for mechanically propelled vehicles, with certain exceptions that are listed in subsections 67(2) and 67(3). 8.3 Section 67(3) of the Act provides that section 67(1) does not apply to an existing right of way if “before the relevant date, an application was made under section 53(5) of the Wildlife and Countryside Act 1981 (c.69) for an order making modifications to the definitive map and statement so as to show the way as a byway open to all traffic”. The relevant date for England is 20 January 2005. This application, which was specifically for a byway open to all traffic was received on 19 January 2005 and hence the unrecorded motor vehicular rights are preserved under 67(3) and thus evidence of carriageway rights would result 3 in an order for a Byway Open to All Traffic (BOAT) rather than for a Restricted Byway. 8.4 Some of the land over which the claimed route runs historically formed part of Hawkesbury Parish. By the County of Gloucester Review Order, 1935, part of the parish of Hawkesbury was transferred to Didmarton. The section of path A to B formed part of Hawkesbury Parish until 1935; towards point B it was and is bordered on the north by the parish of Boxwell with Leighterton. The section of path C to D historically formed part of Didmarton parish ; the land immediately adjoining the northern boundary of this route until 1935 formed part of Hawkesbury parish. Both paths now fall wholly within the parish of Didmarton. 8.5 The restricted byway NDM 6 (length C to D) is also shown on the list of highways maintainable at public expense (kept under section 36(6) of the Highways Act 1980 as a Class 6 road, number 61436. This list records the ways that are maintained by Gloucestershire County Council, which are classified according to their level of maintenance. When the ways were reclassified in 1939, the ways placed in Class 6 were “unmetalled tracks, bridle roads, and public footways maintainable by the County Council, but not including those suitable for wheeled traffic”. The list of maintainable highways records the standard of maintenance and is not evidence of highway rights. 9. APPLICATION 9.1 An application dated 17January 2005 was made by Kevin Biddlecombe, representing the Trail Riders’ Fellowship. The claim was to reclassify the Roads Used as Public Paths (RUPPs) NDM 2 and NDM 6 in Didmarton as Byways Open to All Traffic (BOATs). The application was received on 19 January 2005. 9.2 Notice was served by the applicant on the following landowners or occupiers: Gloucestershire County Council, Shire Hall, Gloucester; and Thomas Victor John Hatherell of Burden Court Farm, Tresham, Wotton under Edge, Gloucestershire. 9.3 The application was acknowledged as correctly made on 28 January 2005. Permission was given for the applicant to erect signs at each end of NDM 2 and NDM 6 to give notice of the application, as it was considered that he had made reasonable inquiry to ascertain the names and addresses of the owners and occupiers of the land to which the application relates.