Agenda item

Report by the Director of Law and Assurance.

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

DMMO 10/20 – Definitive Map Modification Order application to add a restricted byway to the Definitive Map and Statement for Cuckfield Rural linking Birchgrove Lane and School Lane in the parish of Horsted Keynes

DMMO 10/20 – Definitive Map Modification Order application to add a restricted byway to the Definitive Map and Statement for Cuckfield Rural linking Birchgrove Lane and School Lane in the parish of Horsted Keynes

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

28.2   Mr Chris Smith, representing the Open Spaces Society, the applicant, spoke in support of the application.  Historical evidence is important because common law provides that once a route is a public highway - including public footpaths and bridleways - it remains a highway forever, unless there is a Court or other Order stopping it up or diverting it, and no evidence has been found or provided that this has occurred for this route.  The historical evidence for this route is very strong.  Land shown in white on the Inland Revenue Finance Act 1910 map was exempt from tax and was mainly owned by a rating authority.  Where a white road joins others, which is the case with this route, it is almost certainly owned by a highway authority with public rights of access because otherwise there would be no reason for a local authority to own it. The 1930s Handover map shows the application route as a highway that was publicly maintainable.  This map, which was provided by East Grinstead Rural District Council to the County Council, was used to identify the responsibility for maintained public highways; the application route is shown on the map.  It would have been scrupulously checked at the time.  No opposing historic evidence has been submitted.  It is only necessary, at this stage, to show that someone could reasonably argue that the route is a right of way.  R v Secretary of State for the Environment ex parte Riley [1989] stated that an Order must be made if a reasonable person, having considered all the relevant evidence, could reasonably allege a right of way subsisted.

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

State of the proposed route

Point raised – The proposed route is through woodland, leading to an old house that was once a school.  Part of the route can be accessed, although with difficulty, and it is very muddy.  In its current state it is not suitable for a byway.  All it does is cut off a corner where two other paths join.  It would require a certain amount of work to bring the route back into use.

Response – Concerns regarding the state of the path cannot be taken into account when determining the application.  Should the application be approved and the Order confirmed the County Council would then be responsible for restoring the route to a passable condition and thence maintaining it.

Definition of a restricted byway

Points raised – Clarification was sought regarding the definition of a restricted byway and who can use such a route.

Response –A restricted byway is a highway over which the public have a right of way on foot, on horseback or leading a horse, with or without a right to drive animals and in a vehicle other than a mechanically propelled vehicle, thereby giving a right of way for pedal cyclists and drivers of horse drawn vehicles.

Historical evidence

Points raised – All the historical evidence is comprehensive and clear.  Of particular note is the Handover map, which is interesting and significant.  It was noted that no evidence of use had been submitted.

Response – The application is based on archive evidence only.

28.4   The substantive recommendation was proposed by Cllr Montyn and seconded by Cllr Ali, and voted on by the Committee and approved by a majority.

28.5   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 restricted byway to the Definitive Map and Statement for Cuckfield Rural between School Lane and Birchgrove Lane be made.

28.6   The Committee recessed at 10.54 am to await the advertised start time of the Agenda Item 5.

28.7   The Committee reconvened at 11.48 am.