Agenda item

Report by the Director of Law and Assurance.

 

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

 

DMMO 6/18 Definitive Map Modification Order Application to modify the Definitive Map and Statement for Chichester to upgrade FP 157 to a restricted byway from Point A to B and to add a bridleway from Point B to C, in the parish of Yapton.

 

DMMO 6/18 - Definitive Map Modification Order Application to modify the Definitive Map and Statement for Chichester to upgrade FP 157 to a restricted byway from Point A to B and to add a bridleway from Point B to C, in the Parish of Yapton.

 

23.1   The Committee considered a report by the Director of Law and Assurance.  The report was introduced by Georgia Hickland, Trainee Legal Executive, who outlined the proposals and the key points.

 

23.2   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 route Point A to Point B, Tack Lee Lane or bridleway status on route Point B to Point C, which cannot be reasonably alleged to subsist.  The northern part of Point A to Point B is a short stretch serving an adjoining housing estate.  Tack Lee Lane is a cul-de-sac and lies within the ownership of Mr Langmead.  It is not a public carriageway or a through route.  It was historically access to fields called Tack Lee, part of which is owned by Mr Langmead.  The southern part of route Point A to Point B is access to their private land only.  Route Point A to Point B is not shown on the Adcock Highways Classification 1890.  Route Point B to C is claimed on a non-existent route over private land and there is no user or documentary evidence of a bridleway.  Where Point C joins Drove Lane, in looking at the maps for DMMO 5/18 as well the Inclosure Map and award for the parish to the south, this shows the path continuing southwards as a footpath over the footbridge and on to 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.

 

23.3   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.  The Committee report largely ignores the historic contextual evidence, prior to accurate mapping in the 18^th century, that includes information about the route’s juxtaposition to Yapton centre and the church and the links to Drove Lane.  This route crosses the Portsmouth to Arundel Canal by yet another stone bridge in Yapton.  The deposit plans for turnpikes, canals and railways provides strong evidence of public versus private status.  In the Book of Reference, Tack Lee Lane is shown with no owner.  A line was crossed by the canal at point number 10 on the 1815 Deposit Plan and was considered a public road with no owner cited, so no compensation was paid nor could be payable.  That the stone bridge was built in this way is significantly in support of Tack Lee Lane being a public road at the time.  Para 7.7 of the Committee report notes a black mark on the Railway, Canal and Rivers Record 1815, compared with the canal plan drawing and Book of Reference and the BHS evidence at figure 15, page 25 of their evidence, the line cannot be seen and so there was no gate.  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 vast discovered evidence has not really been evaluated.  The Committee is asked to confirm the orders to allow a planning inspector to reconsider all evidence and objections.

 

23.4   Julie Robinson, the applicant and representing the British Horse Society, spoke in support of the application.  The report omits various pieces of crucial evidence including the Consultant Archaeologist’s report which confirmed it probably was a long distance drove route between Felpham and the Weald.  Droving and the attractiveness of it being a route for horses or leading packhorses from Yapton Lane could only mean likelihood of its existence and higher public rights that would have at least bridleway status.  The historic name, South Street, is indicative of a public road, not a private road leading to a few fields.  Point A is the historic centre of Yapton with the church opposite and access to the only route north, Yapton Lane.  Route Point A to B to C is, on the balance of probabilities, the original connection between Yapton and the coast.  The Portsmouth to Arundel Canal Act proposition identifies no owner, as per other public roads.  This is also the case with the Yapton Tithe Map, which shows a route of some importance.  The multi-manor and intermixed landholding in Yapton, together with lack of evidence of private easements makes it likely that Tack Lee Lane (South Street) was a public road.  Regarding Point B to Point C, the report makes no mention of the evidence and analysis that the vast majority of the dot and dash line routes shown on the Tithe Map were later recorded on the Definitive Map, which should conclude that the route was a public way or footpath or had bridleway status.  In para. 7.17 regarding the Finance Act 2010 and in relation to Point A to Point B, the report leaves out the word ‘strong’ before “possibility it was considered a public highway …”.  There is a steady stream of positive evidence in favour of the application.  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, bearing in mind past times when the horse was the main mode of transport.

 

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

 

The applicant’s evidence

 

Points raised – Clarification was sought regarding concerns raised by Mrs Robinson and Mr Brown that all evidence submitted by the applicant had not been properly interrogated. 

 

Response – A copious amount of evidence was supplied by the applicant.  Para. 5.2 of the Committee report noted that it has not been possible to reference all of it, but that it has all been taken into account.   

 

Definition of Droving and implications

 

Points raised – The definition of droving was raised regarding the movement on foot of livestock and people and, from this, whether higher rights could be implied.  Clarification was sought regarding whether droving on foot with dogs would be allowed on a bridleway.

 

Response – There is more than one explanation of droving, but no definitive legal definition.  The application should be determined on the whole evidence whilst considering the weight given to each piece of evidence.  It must be decided, for Point A to Point B, on the balance of probabilities whether the footpath ought to be shown as a restricted byway.  And for Point B to Point C whether a bridleway subsists or can be reasonably alleged to subsist.  Droving on foot with dogs would be allowed on a bridleway.

 

Committee Report Site Plan no. 01805

 

Points raised –  Clarification was sought regarding the route to the north of Point B on the plan.

 

Response – There is an existing footpath from Point A to Point B.

 

Tack Lee Field/s

 

Points raised – Clarification was sought regarding the location of the field referred to by Mr Cheal as Tack Lee, which Tack Lee Lane led to.

 

Response – The Chairman allowed Mr Cheal and Mrs Robinson to comment.  Mr Cheal stated that pictures of a sale plan included in the application bundle, and marked 367 and 376, show two fields at the south end of Tack Lee Lane, over to the west of Drove Lane (to north/north west of Point B).  Mrs Robinson states that the Victoria County History of Yapton states that Tack Lee Fields, south of the village, was the common open fields (strips of fields).  Officers believe that Mr Cheal referred to Lots 6 and 7, page 31 and 32 of the applicant’s statement.

 

Tack Lee Lane previously known as South Street

 

Points raised – The historical name, South Street, was discussed and clarification on the evidence of the name was sought.  South Street may infer some connectivity between settlements, so it may be reasonable to infer, given also the topography, that a route existed, but the evidence of use, including public use, must be considered.

 

Response – Evidence of the historical name of South Street is provided in para. 5.3.7 of the Committee report.

 

Point A to Point B

 

Points raised – Regarding Point A to Point B, there is some uncertainty from the evidence as to whether or not this was just for access to the Tack Lee strips of land/fields or whether it gave access to fields either side of a route that carried on towards Flansham.  The route to the common land was likely used by people and oxen and/or horses and this may infer higher use.   From the terrain as it is now and the width of the path, after the end of the urban area, it is difficult to see that it was ever anything other than a footpath.

 

Response – None required.

 

Point B to Point C

 

Points raised – There is some historical 18^th Century evidence that the route continued from Point B south to Point C.  Evidence is weak or ambiguous and evidence of the dotted line on maps is not always continuous.  If a footpath ever existed there is no evidence to determine if it was private or public and if public, the status of the route.  This feels more of a footpath between settlements. 

 

Response – The Richard Wyatt Map of 1775 was not produced for the purposes of determining the status of the routes.

 

Response by Yapton Parish Council

 

Points raised – It is noted that Yapton Parish Council supports this application, where it did not support the application DMMO 5/18.

 

Response – None required.

 

Use of farm machinery

 

Points raised – It should be clarified that the main purpose of the application is for the use by the general public for access and leisure.  Farmers will continue to use whatever farm machinery is required to access their land.

 

Response – None required.

 

23.6   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)(i) of the Wildlife and Countryside Act 1981 to add a bridleway footpath from Points B to C on the application plan be not made be made.

 

Reasons – That given the indications of a route on 18^th Century mapping, it is reasonable to allege that there was at least a footpath in existence for route Point B to Point C.

 

(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 footpath 157 to a restricted byway from Points A to B on the application plan be not made be made.

 

Reasons – That it is reasonable, on the balance of probabilities, to assess that route Point A to Point B gave access to a number of fields and that it had a wider public use that justifies restricted byway status.

 

23.7   Motion (B) regarding amendments to Recommendation (2) of the Committee report was seconded by Cllr Sharp.  The Committee voted on the amendment, which was rejected by a majority.  The motion fell.

 

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

 

23.9   Recommendation (1) of the substantive recommendation was proposed by Cllr Atkins and seconded by Cllr Duncton and voted upon by the Committee and approved by a majority.

 

23.10  Resolved -

 

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 bridleway from Points B to C on the application plan be not made.

 

23.11  Recommendation (2) of the substantive recommendation was proposed by Cllr Atkins and seconded by Cllr Duncton and voted upon by the Committee and approved by a majority.

 

23.12  Resolved -

 

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 footpath 157 to a restricted byway from Points A to B on the application plan be not made.