Agenda item

Report by the Director of Law and Assurance.

To consider and determine the following application:

Henfield: Application for a Definitive Map Modification Order (Application No: 1/17) to add to the Definitive Map and Statement a public footpath along Dagbrook Lane

Henfield: Application for a Definitive Map Modification Order (Application No: 1/17) to add to the Definitive Map and Statement a public footpath along Dagbrook Lane

16.1   The Committee considered a report by the Director of Law and Assurance, amended by the Agenda Update Sheet, concerning an application to add to the Definitive Map and Statement a public footpath along Dagbrook Lane (copy appended to the signed version of the minutes).  Charlotte Nash, Legal Assistant, introduced the report.  It is considered that the legal tests for making the order have not been met.  For the avoidance of doubt the Council is required to consider whether the applicant has shown that on the balance of probability a right of way subsists, or that it is reasonably alleged to subsist.

16.2   Mr Mark Elsam, owner of Brookside Farm, spoke in objection to the application.  The route is an ‘occupation road’ linking Brookside, Pokerlea and Rye Farms; this is supported by archive maps.  Brookside Farm, including Dagbrook Lane which is part of the farm, has been owned by the Elsam family since 1940.  The proposed route is an important woodland wildlife corridor.  There are historical and ongoing problems with uncontrolled dogs causing a detrimental impact on wildlife and if the proposed route is allowed then even more people will roam off the route as well as on it causing even more harm.  The family has always sought to stop trespassing.  There have been many incidences of fencing being cut, locks damaged and gates propped open all over the farm.  Signs have been put up and repeatedly illicitly removed for years.  Suggestions that the family has not opposed trespassing over the years are untrue.  The family objects to the proposal in the strongest possible terms.

16.3   Mrs Hilary Pierce, an interested party, spoke in support of the application.  ‘Occupation road’ cannot equate to private access only; maps demonstrate the majority of the 24 occupation roads in Henfield, shown on the Henfield Tithe apportionment, now have rights of access of various highway statuses.  Early map evidence does suggest public access rights for the whole length of Dagbrook Lane, which is shown as a road on the first one inch OS map and the OS Survey Book of Reference and it is also shown on the Finance Act Map in 1910 which almost always supports public vehicular rights.  It is probable that routes like this, that join two other roads, are for use by the public.  The Committee should be sure that evidence provided of ownership of the route along Dagbrook Lane is sound because it has no registered owner.  The public have probably used the whole lane for centuries.  Good ‘User Evidence’ has been supplied with the application.

16.4   During the debate the Committee raised the points below.  Clarification was provided by Officers, where applicable:

·         Ownership of the proposed route along Dagbrook Lane was queried.  At the invitation of the Committee, Mr Elsam reiterated his ownership.

·         It is clearly evidenced that the Elsam family has continually tried to restrict access and that notices have been repeatedly removed.

·         The impact of harm to wildlife was acknowledged, but the Committee noted that this is not material to the application.

·         The proposed route does not lead to a place of public interest or a special view point and whilst at point C it does lead to a connecting path, that path is a permissive track used with permission and not ‘as of right’.

·         The conflict over the interpretation of archival evidence was acknowledged but the Committee noted that whilst the path is listed on several maps as an ‘occupation road’, as stated in the report, “none of the maps identified are produced for the purpose of confirming highway status”.  The meaning of ‘occupation road’ is a matter of interpretation but this is understood to be a term used to describe a road laid out for the benefit of occupiers of adjoining properties and not a public highway. 

·         The archive evidence considered as part of this application was not strong enough on its own to recommend an order be made and, therefore, the evidence of use submitted under S.31 Highways Act 1980 has been considered.  Officers concluded that while there is a conflict of evidence, given the account of locked gates and notices on site, as well as a user’s account of obtaining permission to use Dagbrook Lane, it is reasonable to conclude that the land owner has throughout time attempted to prevent the public using the route and that use of the route has not been shown to be ‘as of right’.

16.5.  The recommendation was proposed by Mr Patel and seconded by Mr Quinn, and was put to the Committee and approved unanimously.

16.6   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 footpath from FP 2563 and then east along Dagbrook Lane to an unmarked track in Henfield be not made.