Agenda item

Report by the Director of Law and Assurance.

 

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

 

DMMO 11/18 - To upgrade parts of public footpaths 165 and 166 to bridleway and to add new lengths of bridleway in the parishes of Yapton, Climping and Middleton-on-Sea

DMMO 11/18 To upgrade parts of public footpaths 165 and 166 to bridleway and to add new lengths of bridleway in the parishes of Yapton, Climping and Middleton-on-Sea

 

11.1   The Committee considered a report by the Director of Law and Assurance, as amended by the Agenda Update Sheet (copies appended to the signed copy of the minutes).  The report was introduced by Georgia Hickland, Trainee Legal Executive, who outlined the proposals, key points and amendments and advised that the approximate location of Park Farm, as noted in the Committee report, was marked on the plan on the Committee presentation.

 

11.2   Miss Amanda Wood, local resident, horse owner and rider, spoke in objection to the application.  The claimed route [F to G] cuts a diagonal line across her land including a private driveway, outbuildings and pony paddocks.  The route was only ever a footpath.  It was formally diverted away from the property by the local authority in 1954.  The diverted footpath, marked on all OS maps, is clearly indicated on Ancton Lane pointing along Kingsmead Road and Sunnymead Close.  It would not be lawful to rescind an official diversion.  The claimed route would be disruptive to the business.  Lost grazing would mean pony owners being forced to find other facilities.  Horse riders could be a danger to users of her static caravan site, who access the site along the private driveway.  It would increase security concerns and may impact on her insurance premiums.  The rest of the proposed route is unsuitable as a bridleway without considerable upgrading and expense.  The footpath through the woods is too narrow and trees protected by TPOs may need to be felled.  Crossing the busy A259 is dangerous and would require an underpass.  The whole route does not link to anywhere of interest to a horse rider.  Mark Weston, Director of Access, British Horse Society via email on 30 November 2018 states the BHS has not chosento support this claimed route.

 

11.3   Mr Jonathan Cheal, Solicitor at Mogers Drewett, representing Mr D W Langmead as owner of the route between the parish boundary and point D, and also Mrs S M Abbot, the owner of the central section of the route from the parish boundary northwards to point C, spoke in objection to the application.  Reference is only to points C to D and Mr Cheal does not represent nor speak for any of the owners of the rest of the route.  The evidence is insufficient to demonstrate that public bridleway rights have come into being between point C and D, which is privately owned; the definitive route is public footpath and the applicant has failed to supply proof of a higher status, based on the historic documents available.  There is no real evidence that the route has become a bridleway, whether by creation or dedication.  There is no inclosure evidence to demonstrate bridleway status and no Tithe evidence - the Climping Tithe Map does not show the route at all.  The Yeakell & Gardner Map shows a faint dotted line approximating to the route, but the Map’s prospectus stated that private routes were shown and also footpath routes.  The old OS Map and Greenwood show a route going as far as Park Farm but no further. OS Maps tended to show what was on the ground, without indication of status.  Greenwood also portrayed private routes.  It was claimed as a footpath in the parish survey prior to the first definitive map. 

 

11.4   The clerk to the Committee read out a statement in objection to the application from Shelley Towse, local resident [F to G].  This bridleway would have a negative impact on the yard where she keeps her horse, as it would go through paddocks and mean a loss of grazing.  With a shortage of local stable yards it could result in horses having to be sold.  The claimed bridleway would not be safe as it is currently not wide enough for a horse let alone a horse and member of the public passing in opposite directions.  The path would need to be widened considerably and resurfaced.  The bridge, which has steps, is not bike or horse friendly.   The claimed route leads to the A259 which is not a safe road to cross on foot or horseback; it would need an underpass.  This application would be of no benefit to riders.

 

11.5   Miss Amanda Wood read out a statement in objection to the application from Christine Chamberlain, Arun District resident and horse and pony owner, one of which resides on the land in question [F to G].  Mrs Chamberlain has been party to this land and the local area since the late 1960s and at no time has been aware of a bridle path nor would ever have had a reason to use it or cross over the fields in this way.  There is a question as to whether it was ever such a right of way, looking back over the years.  There is no direct access to the beach unless you were to ride via Yapton Road and through the village.  The A259 is treacherous at the best of times.  The claimed route is a most impractical suggestion.  The population of horse riders in the vicinity has diminished over the years.  None of the remaining local riders would ever consider attempting a journey on horseback to a beach, which since the new sea defences, is not ideal, and also the times of day available to ride have now been restricted.

11.6   Mr Paul Brown, representing the Open Spaces Society, spoke in support of the application.  The landowner deposit, noted in para. 5.1.11 of the Committee report is irrelevant to an archive evidence DMMO application.  The applicant’s evidence, Appendix 1 (ACA/MD 2345), refers to a 1564 Sherriff’s Court ruling where three individuals were indicted for closing up a gate on the route through the former Ford Park, which was described as being part of a longer road from Felpham to Madehurst.  This was not properly explored in the Committee report and in para. 4.2 it states that ‘it is not possible to determine the exact route.’  This evidence should not be denigrated on the basis of a “feature”, i.e. a gate, which is shown on the Yapton Tithe Map on Cinders Lane as bridleways commonly had gates.  The claimed route is supported by 1838 Tithe Maps evidence and the 1872 Boundary Remarks Book, which show the same route is congruent with the 1564 indictment.  In 1989 Wessex Archaeology stated that “Parish territorial boundaries often follow pre-existing landscape features such as roads, tracks and streams. Most parish boundaries were probably established by 1200”.  In R v Exall, 1866, Judge Pollock said that circumstantial evidence is to be considered not as the links of a chain but… “like the case of a rope composed of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength.”  Page 40 of Rights of Way, A Guide to Law and Practice by Riddall and Trevelyn states that “relatively few highways can be shown to have been expressly dedicated. The great majority have been accepted as being public since beyond memory”.

 

11.7   Mrs Julie Robinson, the applicant, spoke in support of the application.  The points raised by Mr Brown regarding the 1564 Sherriff of West Sussex’s indictment were reiterated.  There would not have been a meaningless deviation off to the east through Ford Park (shown on later maps as Park Farm), but it makes perfect sense when seen as a route to Ancton.  The claimed route is one and the same and is still in existence, whilst the rest of the road to Madehurst became the B2132.  Historically, land was an open and shared environment and would have been criss-crossed by bridleways used by pack horses and people on horseback.  Rights of Way Law, 1896, by Sir Robert Hunter covers the definition of a bridleway and how, before good roads became commonplace, most transportation was effected by means of pack-horses, it notes that many of the oldest tracks are pack-horse ways and that such ways tended to either develop into cart ways, or to degenerate into footpaths.  It also describes the common loss of bridleways by landowners obstructing them, or disputing there was a right for horses whilst that for foot passengers was admitted, showing the widespread diminution of bridleways to only footpath status during the 19^th century.  Later OS mapping shows the coastal plain, in particular, to be practically devoid of bridleways and this should be taken with a very large pinch of salt.  There is evidence of some sort of higher status public route on historic County maps, supporting it being the same route as the one in the Sherriff Court indictment.  Not being shown on the Climping Tithe Map is not evidence against and a bridleway would not have affected the productivity of the land and its liability to tithe.  Para. 4.6 of the Committee report misunderstands the applicant’s comment about an easement - the legal definition of a highway is merely a right of the public over land, so the sale of Cinders Lane is irrelevant.  The Finance Act 1910 evidence shows a higher status as public highway.  Para. 4.13 of the Committee report misrepresents the supplied evidence regarding how the route fits the description of a highway from Felpham to Madehurst, describing this as speculative. 

 

11.8   In response to points made by speakers, the Senior Solicitor clarified the following:

 

·       In relation to the diversion of the footpath referred to by Miss Woods, footpath rights were stopped up, but it is likely any higher rights were not.  It is right that the claimed historic route should be considered based on archive mapping and whether it meets the relevant tests.

 

·       Section 31(6) deposits, that could negate a claim based on user evidence (para. 6.11 of the Committee report), are not relevant to an archive only based claim.

 

11.9   During the debate the Committee raised the points below and a response or clarification was provided by the Senior Solicitor and the Chairman, where applicable, as follows:

 

The difficulties of historic archive evidence claims

 

Points raised – With archive evidence based applications it is extremely difficult to come to a definitive view because evidence is not up to modern standards of substantive evidence.  Much has to be inferred.  In this case it may be inferred that an historic bridleway existed but it is very difficult to show exactly the alignment of the route, an example being the 1564 Sheriff’s Court indictment evidence.

 

Response – With the 1564 evidence, no plan was available.  The evidence of the claimed route, referred to as a “Queen’s highway used by pedestrians and horsemen”, is speculative.

 

Amount of historic evidence required

 

Point raised – How much historic evidence is required in order to make a decision?

 

Response – The maxim of ‘once a highway, always a highway’ applies.  A view should be taken on the whole evidence.

 

User evidence, including pedestrians and horse-riders

 

Points raised – What evidence of use by pedestrians is there and what would be the likely use by horse-riders?

 

Response – This is not a user-based application, so no evidence of use was provided.  The question of suitability of use by bridleway users would not be relevant to the determination of the application.

 

B to C: development of land on this route and footpath

 

Points raised – In reference to points B to C on the claimed route, the Committee report states there is outline planning permission [off Cinders Lane].  It is noted that the estate is now built with a diagonal path, which does not follow the claimed route, through to the northern boundary of the estate ending in a close board fence at the allotments; there is no path on the ground through the allotments to point B.  Up to date information should have been included in the Committee report.  It was queried whether it would it be possible to upgrade the footpath, as it exists now on the ground, to a bridleway.

 

Response – At the time of the application in 2018, there were two outline planning permissions in place, off Cinders Lane.  Since then the land has been developed and housing has been built and the “existing building” referred to in 5.2.2 (i) of the Committee report is no longer there.  Only the claimed route can be considered by the Committee.  If the Committee agreed that the archive evidence is sufficient to prove the claimed route, it could be added as a bridleway.  This is irrespective of any development that now exists and if a bridleway were to ‘be made’ and it passed through an existing building then the property owner would need to apply for a diversion under the Highways Act; or the County Council could do so ‘in the interests of the public’.

 

D to E and F to G: safety

 

Points raised – Crossing the A259 at this point would be dangerous.  The condition of Grevatt’s Bridge is unsuitable for bridleway use.  The concerns raised by Miss Wood regarding the dangers of riding through paddocks occupied by other horses were understood.

 

Response – Safety is not a consideration that can be taken into account.  The application must be considered only on the archival evidence against the relevant legal tests.

 

F to Sunnymead Close: condition of the route

 

Point raised – Whilst suitability of the route cannot be considered, it was noted that from point F southward to Sunnymead Close the route on the ground is extremely overgrown.

 

Response – None required.

 

Decision based on archival evidence against the relevant legal tests under the Wildlife and Countryside Act 1981

 

Points raised – Any comments in the report and discussions regarding the current situation on the ground are irrelevant.  The Committee should not be distracted by this because it risks the decision being overturned by the Planning Inspector.

 

Response – The application is supported by historic documentary evidence and can only be considered on this basis.  Sometimes the implications of the legislation are not fully understood by consultees.  However, it would be remiss if the Committee report [and minutes of the Committee meeting] did not accurately record all comments made by consultees and interested parties.  Where comments are not relevant to the determination of the application, this is made clear.  Committee members do, of course, become aware of contextual information, including observation during site visits, but the Committee must be clear that the decision should only be made in accordance with the legislation and on the archival evidence weighed against the relevant legal tests.  An explanation of the appeals process should the recommendation to not make be approved and the involvement of the Planning Inspectorate was also provided.

 

B to C and D to E: evidence of a footpath, rather than a bridleway

 

Points raised – In reference to B to C and D to E, if there is no historic evidence of a bridleway but evidence of the existence of a footpath, would it be reasonable to propose an amendment that concludes that footpath rights existed?  Officers were asked whether they could direct the Committee or advise members whether or not to take such an amendment forward.  Additionally, if this application were to be refused would this mean any future application for footpath status could not be made?

 

Response – Should the Committee decide that there is sufficient archival evidence then it could be concluded that a footpath was ‘reasonably alleged to subsist’.  However, the application under consideration is for the addition of a bridleway at points B to C and D to E.  As such, the evidence has only been considered and tested by officers on that basis.  The conclusion is that sections B to C and D to E do not meet the ‘reasonably alleged to subsist’ test.  The Committee was advised that because of this any decision to make a DMMO to add B to C and D to E as footpath could be open to challenge.  If this application for bridleway status were refused it would not preclude a future application for footpath status following the discovery of evidence.

 

11.10The substantive recommendations, as set out, were proposed by Cllr Patel and seconded by Cllr Atkins and voted upon by the Committee and approved by a majority.

 

11.11Resolved:-

 

(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 public footpath 166 to a bridleway between points A to B and C to D on the application plan 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 public footpath 165 to a bridleway between points E to F on the application plan 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 bridleway between points B to C, D to E and F to G on the application plan be not made.

 

11.12 The Committee recessed at 11.33 a.m. and reconvened at 11.41 a.m.