Agenda item

Report by the Director of Law and Assurance.

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

Definitive Map Modification Order No 1.19 – The addition of a Footpath from footpath 2704-1 and bridleway 2714 crossing Mouse Lane past Charlton Court Farm to footpath 2713 in the Parish of Steyning CP to the definitive map for Chanctonbury.

Definitive Map Modification Order No 1.19 – The addition of a Footpath from footpath 2704-1 and bridleway 2714 crossing Mouse Lane past Charlton Court Farm to footpath 2713 in the Parish of Steyning CP to the definitive map for Chanctonbury

25.1   The Committee considered a report by the Director of Law and Assurance concerning a Definitive Map Modification Order (DMMO)
No 1.19 – The addition of a Footpath from footpath 2704-1 and bridleway 2714 crossing Mouse Lane past Charlton Court Farm to footpath 2713 in the Parish of Steyning CP to the definitive map for Chanctonbury.

25.2   This application had been received on 27 February 2019 and was made by Steyning Parish Council to add a new footpath in the parish of Steyning CP.  The Chairman informed the Committee that he had made a site visit in respect of this order and introduced Charlotte Nash, Legal Assistant to present the report. 

25.3   In presenting the report, Charlotte Nash, Legal Assistant, updated that the public way user evidence was from ten users, rather than eleven, attesting to frequent use of the claimed route “as of right” during the relevant period because one of the eleven users was found to also be an occupier.  Members were informed that the establishment of a permissive path in 2009 was the act which brought use by the public into question and therefore the relevant 20 year period, taken back retrospectively from this date, was 1989 to 2009.   It was further explained that letters found in the County Council’s path/parish files and from the landowner indicate use of the claimed route may have been withdrawn from the public in the 1990’s but it was not clear as to whether the interruption was to use on foot or on horseback. In addition, while the letters indicate the route was used by the public, it was unclear if use was “as of right” and tolerated by the landowner or with permission.  The user evidence from ten users attested to frequent use of the claimed route “as of right” during the relevant period. It was stated that while there was some evidence of an intention not to dedicate on the part of the landowner, it was not considered that this would defeat the claim, given there was no firm evidence that the landowner communicated an intention not to dedicate the claimed route or that use was interrupted by the landowner.

25.4   The Committee was further informed that where an applicant for a DMMO produces credible evidence of actual enjoyment of a way as a public right of way over a full period of 20 years, but there is a conflict of apparently credible evidence from the landowner in relation to one or other issues arising under Section 31 of the 1980 Act, then the allegation that the right of way has been reasonably alleged to subsist is used. It was concluded that the reasonable user would have believed they were using the claimed route “as of right” during the relevant period.  Therefore, it could be reasonably alleged that the claimed route subsists and meets the relevant statutory tests set out in Section 31 Highways Act 1980 on the lower test of a reasonable allegation.  It was noted that the application was made under Section 53 (3) (c)(i) Wildlife and Countryside Act 1980 (WCA), being the discovery by the County Council of evidence which shows that a right of way which is not shown in the Definitive Map and Statement subsists or is reasonably alleged to subsist over land.

25.5   Mr Richard Goring, landowner, spoke in objection to the application. The landowner, tenant farmer and adjoining landowners contest the evidence, arguing that the claimed route had only been used with permission and prior to a permissive path being established in 2009 and that public use of the route was not permitted.  In general, the landowners were supportive of access and have encouraged public use over large areas of the estate.  There are already a number of permissive paths and open areas that members of the public are able to freely use on an informal basis.  Mr Goring objected to informal routes on the land being gifted under Rights of Way, although he was happy to grant permission for users to use the estate, but felt a demand by Steyning Parish Council was not necessary.  A plea was put forward that Steyning Parish Council approach the landowner directly in these type of matters because it is preferable that informal discussions take place so that friendly agreement, with trust between the estate and the public, could be reached.  One area of concern was the amount of money the estate had to spend on making accessible, public routes safe to use, e.g. the cost of  felling dead Ash Trees, the closure of public rights of way for maintenance, and the need to encourage cattle grazing to encourage chalk grassland as a rare habitat which requires the management of public access.  A permanent right of way would prevent flexibility of use.  There are also concerns that other areas of the estate where the public had been permitted use may now become permanent.  In view of this, if the application was agreed there would be a need to reassess 6.3km of permissive paths around Steyning which are heavily used and decide if closure would be necessary due to safety concerns and other issues.

25.6   Mrs Gill Muncey, an interested party, spoke in support of the application, as a former Steyning Parish Councillor and resident in the area for some thirty years.  Mrs Muncey advised that she has used this path for thirty years and has not seen any signage to deter public use nor has she ever been interrupted in use.  There were many public users using the path by Charlton Court Farm due to the fact that footpath 2713 does not connect with any other route.  Charlton Court Farm pathway provides a circular route which connects to many other bridleways. Item 7 of the report detailing other evidence, including letters from residents dated 1990, 1991 and 1994, demonstrated that the footpath was used as of right from 1989 to 2009.

25.7   A statement was read out on behalf of Mrs Chris Young, Vice Chair of Steyning Parish Council (Steyning Parish Council being the applicant).  Mrs Young has lived in Mouse Lane since 1985 and has walked extensively in the Countryside several times a week, frequently using the Charlton Court Farm footpath.  Mrs Young has often met other walkers using the footpath which connects walkers to the South Downs and during this time had never been challenged in her use of the path.  Open green spaces are needed for health and this pathway provides circular walks linking to existing public rights of way on either side.

25.8   During the debate the Committee made the points as noted below. Clarification was provided by Officers, where applicable:

·        The Committee accepted the evidence that the path had been used during the period 1989 to 2009 as of right with no evidence that signage had been in place to prevent use.  It was acknowledged that there was evidence of signage from 2009 onwards but this was outside of the relevant time period.

·        The Committee, whilst understanding Mr Goring’s objection, were minded to accept the Officer’s legal advice because it seemed impossible to not agree that public use ‘as of right’ had been demonstrated.  The Committee could not find any genuine reason to refuse the application and Officer advice was that the Committee were constrained to the legal tests that had been applied in their decision making.

25.9   In respect of DMMO 1.19 the recommendation was put to the Committee and approved by a majority.

25.10  Resolved – that a definitive map modification order to add a footpath from footpath 2704-1 and Bridleway 2714 crossing Mouse Lane past Charlton Court Farm to footpath 2713 in the Parish of Steyning CP for the Definitive Map for Chanctonbury be made.