Agenda item

Report by the Director of Law and Assurance.

 

The Committee is asked to consider and determine the following application:

 

DMMO 5/18 Definitive Map Modification Order Application to modify the Definitive Map and Statement for Chichester to upgrade FP 155, Drove Lane to a restricted byway from Point A to B, upgrade to a bridleway from Point B to C and to add a restricted byway from Point B to D, in the parish of Yapton.

 

DMMO 5/18 - Definitive Map Modification Order Application to modify the Definitive Map and Statement for Chichester to upgrade FP 155, Drove Lane to a restricted byway from Point A to B, upgrade to a bridleway from Point B to C and to add a restricted byway from Point B to D, in the parish of Yapton.

 

22.1   The Committee considered a report by the Director of Law and Assurance, as amended by the Agenda Update Sheet and also by Agenda Update Sheet No. 2 (copies appended to the signed copy of the minutes).  The report was introduced by Georgia Hickland, Trainee Legal Executive, who outlined the proposals and the key points.

 

22.2   Jonathan Cheal, Solicitor at Mogers Drewett, representing Mr D W Langmead, the landowner, spoke in objection to the application.  Evidence is insufficient to demonstrate historic public carriageway status on Path 1 and Path 3 or bridleway status on Path 2.  Neither restricted byway nor bridleway status has been established.  Drove Lane lies within a long established farm tenancy.  The whole route is privately owned and maintained.  None of the archival evidence proves public status.  There is none on the Inclosure Award evidence and Tithe evidence does not prove public status.  The Finance Act 1910 map shows the whole route included within the hereditaments.  The handover map is not available.  WSCC road records classified Drove Lane as non-maintained, under private lane.  The parish survey and the Definitive Map process consistently show the Drove Lane, Point A to Point B to Point C, as a footpath only.  Adcock Highways Classification 1890, which is a list of public highways in each parish, shows 9 routes in Yapton but not Drove Lane.  Drove Lane is an old route shown on old maps, but evidence of existence is not necessarily evidence of public status, e.g. the Greenwood map included private and public routes, but it does not prove public status.  Neither public vehicular status nor bridleway status have been established.  The bridge over the rife is narrow and marked FB, for foot bridge.  The Inclosure Map and award for the parish to the south shows the path continuing southwards as a footpath over the footbridge and on towards the neighbouring parish still as a footpath: this shows consistency between parishes and it is virtually inconceivable that it was ever a through route public carriage way.

 

22.3   Paul Brown, representing the Open Spaces Society, spoke in support of the application.  The objective for safe routes and the limited opportunities for walking, cycling and horse riding are noted in the West Sussex Rights of Way Management Plan 2018-28.  Para. 6.14 of the Committee report regarding Felpham Inclosure Award 1826 confuses carriageway status when the application is for a bridleway.  The name of Drove Lane stems from historical evidence of droving.  Para. 7.5 fails to confirm that a public footpath does not contain the right to drive livestock, which is indicative of public bridleway rights.  Para. 6.12 regarding the 1815 Deposit Plans for the Portsmouth and Arundel Canal mistakenly expects the level of public use to be revealed by the plan.  The provision of a substantial bridge not a swing bridge is good evidence that it was expected to carry a large amount of traffic.  No owner is shown in the Book of Reference, which is strong evidence that it was considered to be a public road at the time.  The Deposit Plan shows a line, probably a barrier, at the junction with the main road, but gates are quite common on drove roads and bridle roads: the Highways Act 1835 specified that such gates should be a minimum width of 10 feet.  The assessment is not in accordance with Judge Pollock who stated in 1866 that “…evidence should not be treated as links in a chain, but as strands of a rope, acknowledging that direct evidence before mapping will usually be impossible to find and the jury must draw inferences from circumstantial evidence”.  It is believed the route was wrongly registered in the Definitive Map and Statement (DMS) under the National Parks and Access to the Countryside Act 1949.  The discovered evidence is substantial.  The orders should be made to allow a planning inspector to reconsider all evidence and objections.

 

22.4   Julie Robinson, the applicant and representing the British Horse Society, spoke in support of the application.  Para. 1.3 of the Committee report omits “use with or without the right to drive animals of any description along the highway”, a footpath does not include these rights.  Para. 6 states that evidence for a drove way is ”speculative, unless supported by further evidence”, but the landowner’s consultant archaeologist’s report confirms Drove Lane is “probably part of a very ancient drove route between Felpham and the Weald”.  It was a direct route between the coast, Yapton and other communities, when the horse was the main mode of transport.  Historically, the economy of the coastal plain was based upon agriculture and it is impossible to insist farming operations were separate from the public in general.  Yapton had a complex manorial situation with intermixed land in small parcels until consolidation into large farms in the late 19th century and there must have been a lot of movement along the lane.  In the absence of evidence of private easements it must be concluded that Drove Lane had higher rights than a footpath.  Cul-de-sac roads can be included.  The Portsmouth and Canal Act proposition does not identify specific owners and is strong evidence of its likely public status.  The obvious reason the Felpham Inclosure Award 1840 set out the route the other side of Point C as a footpath was because the route had higher rights associated with the old drove route and public rights to ride or drive animals ceased because of the newly enclosed land on the Flansham side; it is questioned why no other footpath in Felpham was included.  Many rural lanes on the Definitive Map shown as bridleways or byways were never considered maintainable by the public at large, but this is irrelevant to whether it was historically a public highway.  The rights that may apply must be considered.  Consideration must be given to whether, on the balance of probabilities, this route has at any time been used by the public that would indicate a bridleway or restricted byway status, regardless of whether its use may have subsequently declined into a footpath.

 

22.5   During the debate the Committee raised the points below and a response or clarification was provided by the Legal Officers, where applicable, as follows:

 

User evidence, ‘the 20 year period’

 

Point raised – Clarification was sought on whether there was any user evidence, ‘the 20 year period’, in respect of this application and also what level of use there is.

 

Response – This application is based solely on archive evidence. 

No user evidence was submitted by the applicant.  The only information about use of the route has been provided by Mr Hocking - see section 5.2 of the Committee report.

 

Likely future use of land in the locality

 

Point raised – On the basis that land is currently being fenced off along the route, clarification was sought on likely future use of land in the locality and access that may be needed for developments.

 

Response – Possible future use of land in the locality is not relevant to the legal tests to be considered in respect of this application.

 

Definition of Droving and implications

 

Point raised – Discussion took place regarding the definition of droving and whether this implies the use of horses and/or carts as opposed to just the movement on foot of livestock and people and also whether it can be inferred that droving was between just pastures or to marketplaces, and from this, whether higher rights could be implied.  Clarification was sought regarding the earliest reference to Drove Lane. 

 

Responses – There is more than one explanation of droving, but no definitive legal definition.  Drove Lane (or variants of the name) is mentioned in a number of pieces of archival evidence and is likely to indicate the use by drovers as the practice of walking livestock from one place to another on foot and often with the aid of dogs.  It was concluded that the route would not likely have been used for the purposes of droving between marketplaces but rather for moving livestock between pastures.  The application should be determined on the whole evidence whilst considering the weight to be given to each piece of evidence.  The earliest reference is to a ‘Dro’ Lane on Richard Wyatt’s map of 1775. 

 

Topography and access

 

Points raised – To the east of Point B, topography appears to indicate that the route linked coastal areas with inland areas including Yapton, Flansham and Felpham, which declined over time in favour of the easier route at Bilsham Lane. 

 

Response – None required.  

 

Archival, historic evidence

 

Points raised – Clarification was sought regarding how far back evidence should be considered.

 

Response – Evidence is set out chronologically in the Committee report. Relying on ancient rights, evidence should be taken as a whole and decided, on the balance of probabilities in respect of the upgrade of a route and in respect of the addition of a route determined on the basis that the route subsists on the balance of probabilities, or that it can be reasonably alleged to subsist, which is a lower test.    

 

Obligations under the West Sussex Rights of Way Management Plan 2018-28

 

Points raised – Clarification was sought regarding the Council’s obligations under the Rights of Way Management Plan to improve access.

 

Response – This is not relevant to whether the archival material meets the evidential tests for the making of the orders.

 

Point A to Point B only (Path 1)

 

Points raised – The Canal Reference Book is inconsistent regarding public use.  References in two maps showing black lines across the north of the path may indicate restricted access and an impediment to rights of access, but this may just have been to control livestock.  The investment and substantial construction, in medieval times, of Weststone bridge, as well as its width that was possibly suitable for a horse and cart, enforces the view the route was well-used for agricultural purposes and movement of livestock, as well as connecting settlements.  Both purposes raise the question as to whether this indicates the route had a higher use than that of a footpath.  Clarification was sought on earliest references to Weststone bridge?  Clarification was sought regarding whether Path 1 is currently used for vehicular access, its width, surface and condition, and whether this implies restricted byway status.  It was noted that many current farmers use vehicles, such as quad bikes, to access their fields.   The Committee may wish to consider that evidence pointing to historic droving could provide sufficient evidence for Path 1 to be upgraded to a bridleway instead of the proposed restricted byway and for the proposal for Path 2 to be amended to ‘be made’.

 

Responses – Path 1 has a reasonably wide, metalled surface with some potholes, it is understood to be used for farm machinery, access to the solar farm and also by Yapton Scouts.  This does not necessarily confer the status of restricted byway or byway open to all traffic.  None of the Natural Environment and Rural Communities Act 2006 (NERC 2006) exemptions apply in this case and any rights for mechanically propelled vehicles would have been extinguished, meaning the highest form of right possible for this route would be restricted byway.  The earliest reference to a ‘Stone’ bridge, that is roughly in the same position as Weststone bridge, is to be found in Richard Wyatt’s map of 1775.  Reference to such a bridge might suggest that it was of a higher status than a footpath, however, it does not determine if it had public or private use.  The purpose for which maps were produced should be taken into account.  In determining the evidence for Path 1 and Path 2 under the relevant tests, on the balance of probabilities, the Committee could choose to propose to upgrade Path 1: Point A to B to a bridleway rather than follow the applicant’s proposal for restricted byway and propose that Path 2: Point B to Point C ‘be made’ to enable the upgrade to bridleway.

 

Point B to Point C only (Path 2)

 

Point raised – The metalled surface of Drove Lane ends by Point B and then the surface from Point B to Point C becomes rough.  The bridge across the Rife is narrow.

 

Response – None required.

 

Point B to Point D only (Path 3)

 

Points raised – Historic evidence seems to indicate that Path 3 served only field access or access to a barn as a private route.  Clarification was sought on whether Drove Lane is the sole access to the current solar farm.

 

Response – Drove Lane appears to be the only access to the solar farm.

 

22.6   Cllr Oakley proposed the following motions:

 

(A)     In relation to Recommendation (1) of the Committee report, that this be amended as follows, for the reasons given:

 

(1)     That a Definitive Map Modification Order, under Section 53 (2) in consequence of an event specified in sub-section 53 (3)(c) (ii) of the Wildlife and Countryside Act 1981 to upgrade FP 155 to a restricted byway bridleway from Point A to B (Path 1) be not made be made.

 

Reasons – That based on overall evidence, on the balance of probabilities, use of the route was as a droving route for the movement of livestock and was of greater use than just private rights.

 

(B)     In relation to Recommendation (2) of the Committee report, that this be amended as follows, for the reasons given:

 

(2)     That a Definitive Map Modification Order, under Section 53 (2) in consequence of an event specified in sub-section 53 (3)(c) (ii) of the Wildlife and Countryside Act 1981 to upgrade FP 155 to a bridleway from Point B to C (Path 2) be not made be made.

 

Reasons – That based on overall evidence, on the balance of probabilities, use of the route was as a droving route for the movement of livestock of and was of greater use than just private rights.

 

22.7   Motion (A) regarding amendments to Recommendation (1) of the Committee report was seconded by Cllr Duncton.  The Committee voted on the amendment, which was rejected by a majority.  The motion fell.

 

22.8   Motion (B) regarding amendments to Recommendation (2) of the Committee report was withdrawn by Cllr Oakley.

 

22.9   The substantive recommendation was voted upon by the Committee and approved by a majority.

 

22.10  Resolved -

 

(1)     That a Definitive Map Modification Order, under Section 53 (2) in consequence of an event specified in sub-section 53 (3)(c) (ii) of the Wildlife and Countryside Act 1981 to upgrade FP 155 to a restricted byway from Point A to B (Path 1) be not made.

 

(2)     That a Definitive Map Modification Order, under Section 53 (2) in consequence of an event specified in sub-section 53 (3)(c) (ii) of the Wildlife and Countryside Act 1981 to upgrade FP 155 to a bridleway from Point B to C (Path 2) be not made.

 

(3)     That a Definitive Map Modification Order, under Section 53 (2) in consequence of an event specified in sub-section 53 (3)(c) (i) of the Wildlife and Countryside Act 1981, to add a restricted byway from Point B to D (Path 3) be not made.