Meeting documents
HTM/11/18
Public Rights of Way Committee
11 November 2011
Definitive Map Review 2011-2012
Parish of Newton and Noss (Part 1)
Report of the Head of Highways and Traffic Management
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Recommendations: It is recommended that:
Modification Orders be made to modify the Definitive Map and Statement by:
(i) varying the particulars of the Definitive Map in respect of Footpath No. 28 (suggestion 1) by adding the section of footpath between points A D C and deleting the section shown between points A B C, as shown on drawing number EEC/PROW/11/39;
(ii) varying the particulars of the Definitive Map in respect of Footpath No. 36 (suggestion 2) by adding the section of footpath between points E F, as shown on drawing number EEC/PROW/11/42;
(iii) varying the particulars of the Definitive Map in respect of Footpath No. 21 (suggestion 3) by adding the section of footpath between the points M N, as shown on drawing number EEC/PROW/11/44;
(iv) varying the particulars of the Definitive Map in respect of Footpath No. 16 (suggestion 4) by adding the footpath between the points U V and deleting the footpath between points S T, as shown on drawing number EEC/PROW/11/46;
(v) adding a public footpath (suggestion 6) between points A1 B1, as shown on drawing number EEC/PROW/11/45;
(vi) adding a public footpath (suggestion 8) between the points E1 F1, as shown on drawing number EEC/PROW/11/43;
(vii) adding a public footpath (suggestion 9) between the points G1 H1, as shown on drawing number EEC/PROW/11/43.
1. Summary
This report examines seven suggestions arising from Definitive Map Review in the Parish of Newton and Noss in the District of South Hams. The remaining fourteen suggestions will be referred to a subsequent Committee meeting.
2. Background
The original survey under s. 27 of the National Parks and Access to the Countryside Act 1949 revealed 31 footpaths and 1 bridleway in Newton and Noss, which were recorded on the Definitive Map and Statement, published December 1961 with a relevant date of 11 October 1954.
The review of the Definitive Map, under s. 33 of the 1949 Act, which commenced in the late 1960s but was never completed, produced a number of proposals for change to the Definitive Map at that time, three of which are discussed in this report.
The Limited Special Review of RUPPs, carried out in the 1970s, did not affect the parish.
The following Agreements and Orders have been made:
Stopping-up of Highways (Devon) (No. 1) Order 1956 in respect of Footpath No. 1, Newton & Noss.
Creation Agreement 1956 for alternative route of Footpath No. 1, Newton & Noss.
Creation Agreement 1971 in respect of Footpath No. 40, Newton & Noss (SWCP).
South Hams District Council (Footpath No. 28, Newton & Noss) Public Path Diversion Order 1988.
Devon County Council (Footpath No. 18, Newton & Noss) Definitive Map Modification Order 1989.
Devon County Council (Footpath No. 41, Newton & Noss) Definitive Map Modification Order 1990.
Devon County Council (Footpath No. 11, Newton & Noss) Public Path Diversion Order 1990.
Devon County Council (Footpath No. 4, Newton & Noss) Public Path Diversion Order 1992.
Legal Event Modification Orders will be made for these amendments in due course.
3. Review
The current Review began in January 2011 with a public meeting held in the WI Community Hall in Newton Ferrers. Sixteen routes proposed for addition to the Definitive Map were put forward by Newton and Noss Parish Council, and a number of other anomalies were picked up during inspections of existing paths in the parish. A full public consultation was carried out in April 2011, on 21 suggestions for modifying the Definitive Map and Statement.
The responses from councils and user/landowner groups were as follows:
County Councillor William Mumford - endorses suggested modifications
South Hams District Council - does not support suggestion 21
Newton & Noss Parish Council - support all the suggestions
British Horse Society - no comment
Byways and Bridleways Trust - no comment
Devon Green Lanes Group - no comment
Country Landowners' Association - no comment
National Farmers' Union - no comment
Open Spaces Society - no comment
Ramblers - no comment
Trail Riders' Fellowship - no comment
4. Conclusion
It is recommended that Orders be made in respect of suggestions 1, 2, 3, 4, 6, 8 and 9.
A report on the remaining fourteen suggestions will be referred to a subsequent Committee meeting.
Should any further valid claim be made in the next six months it would seem sensible for it to be determined promptly rather than deferred.
5. Financial Considerations
There are no implications.
6. Sustainability Considerations
There are no implications.
7. Carbon Impact Considerations
There are no implications.
8. Equality Considerations
There are no implications.
9. Legal Considerations
The implications/consequences of the recommendation have been taken into account in the preparing of the report.
10. Risk Management Considerations
There are no implications.
11. Reasons for Recommendation/Alternate Options Considered
To progress the parish by parish review of the Definitive Map in the South Hams district area.
Lester Willmington
Head of Highways and Traffic Management
Electoral Division: Yealmpton
Local Government Act 1972: List of Background Papers
Contact for enquiries: Mike Jenkins
Room No: ABG, Lucombe House
Tel No: (01392) 383240
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| Correspondence File | 2010 to date | DMR/Newton and Noss | |
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Appendix I
To HTM/11/18
Background
A. Basis of Claims
The Wildlife and Countryside Act 1981, Section 53 (5) enables any person to apply to the surveying authority for an order to modify the Definitive Map. The procedure is set out under WCA 1981 Schedule 14.
Common Law presumes that at some time in the past the landowner dedicated the way to the public either expressly, the evidence of the dedication having since been lost, or by implication, by making no objection to the use of the way by the public.
The Highways Act 1980, Section 31 (1) states that where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has actually been enjoyed by the public as of right and without interruption for a full period of 20 years, the way is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.
The Highways Act 1980, Section 32 states that a court or other tribunal, before determining whether a way has or has not been dedicated as a highway, or the date on which such dedication, if any, took place, shall take into consideration any map, plan, or history of the locality or other relevant document which is tendered in evidence, and shall give such weight thereto as the court or tribunal considers justified by the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or compiled, and the custody in which it has been kept and from which it is produced.
The Wildlife and Countryside Act 1981, Section 53[3] [c] enables the Definitive Map and Statement to be modified if the County Council discovers evidence which, when considered with all other relevant evidence available to it, shows:
(i) that a right of way not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates.
(ii) that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description; or
(iii) that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification.
The Wildlife and Countryside Act 1981, Section 56[1] states that the Definitive Map and Statement shall be conclusive evidence as to the particulars contained therein but without prejudice to any question whether the public had at that date any right of way other than those rights.
Suggestion 1: Footpath No. 28 Amendment of the Definitive Map to show the footpath as it is described by the Definitive Statement
Amendment of the Definitive Map to show the footpath running through the grounds of Warren Cottage, as described in the Definitive Statement, and as shown on drawing number EEC/PROW/11/39 between points A-D-C, instead of between points A-B-C as currently recorded on the Map.
Recommendation: That a Modification Order be made to correct the Definitive Map in respect of Footpath No. 28 by adding to it the section A D C and deleting from it the section A B - C.
1. Background
In the original parish submissions for the Definitive Map in 1950 Footpath No. 28 was shown and described as following the line of the Marine Drive (also known as Nine Mile Drive), a carriage drive built by Edward Baring, the 1st Lord Revelstoke, in the late 19th Century. The Definitive Statement in respect of Footpath No. 28 describes the footpath as running through the gates of a property known as Warren Cottage, following the 'road'. However, the Definitive Map shows Footpath No. 28 deviating from the line of the carriage drive to skirt around the grounds of the cottage.
2. Description of the Route
The route as described in the Definitive Statement starts at point A as shown on drawing number EEC/PROW/11/39 and follows a level route along the line of the old carriage drive through a field gate, passing in front of Warren Cottage at point D and then through a second field gate to point C. The route currently shown on the Definitive Map however follows a narrow path cut into the slope around the boundary of the cottage between points A-B-C. This route is also available and signed as an alternative path.
3. Documentary Evidence
3.1 Ordnance Survey Maps
The 1st Edition 25" OS map, published 1895, shows the carriage drive passing in front of Warren Cottage. Solid lines at the boundary of the cottage grounds could indicate gates.
The 2nd Edition 25", published 1904-06, similarly shows the carriage drive passing adjacent to the cottage. No gates are indicated.
The 1:2,500 A Edition post-war OS mapping, published 1950, now shows a path below and adjacent to the carriage drive. Solid lines indicate gates across the drive at the boundary of the cottage grounds as before.
3.2 Definitive Map Survey Newton and Noss Parish Council Submission
The parish council submission for Footpath No. 28 describes the path as 'The Marine Drive' and 'Coastal Foot Path'. The survey map has been clearly marked to show the route following the drive through the grounds of Warren Cottage.
Grounds for believing the path to be public were given as "uninterrupted use". The Parish Council did not consider it likely that the path would be disputed.
On receipt of the parish submission by the County Council, the divisional surveyor reported that the path had been walked on 6 March 1953 and described it as "originally a private drive on the Membland Estate" and that the public had used it for a number of years and are not stopped. A full description of the path is given, which then subsequently forms the Definitive Statement. The divisional surveyor also described the route as a Road Used as a Public Path, although it was subsequently recorded as a public footpath as claimed by the parish council.
3.3 Definitive Statement
The Definitive Statement describes the path as following the metalled road, which was originally a Private Road to Membland Hall, for its entire length. The relevant section in the vicinity of Warren Cottage is described as follows:
.....continues parallel with the coast to Warren Cottages where the road passes through two field gates, each marked "Private".
3.4 Earlier Uncompleted Reviews of Definitive Map
In July 1968, Newton and Noss Parish Council wrote to the clerk of Devon County Council to report complaints received from pedestrians using the path at Warren Cottage, who had been told that it was private and that they should take the lower path. It is clear from the letter that this was not the first time the matter had been raised with the County Council. The letter referred to a site meeting with the Council on 9 October 1967 and a report which stated that the notices on Warren Cottage gates constitute an obstruction.
A letter from a parishioner, Mrs Collins, was enclosed detailing how, when using the 'main pathway' they had been told it was a private drive and to take the rough path that had been made down under. She stated that she had been born and brought up in the parish and had taken the same walk many times but suddenly finds the path barred. Mrs Collins went on to describe how, at the time of her walk, two ladies had to take a pram off its wheels and struggle along the narrow pathway then put the pram back together again.
In response, the Parish Council were advised by the County Council that the Definitive Map was not entirely clear about the route of the path in the vicinity of Warren Cottage and to raise the matter at the forthcoming review of the Definitive Map.
In 1969, the Parish Council surveyed and submitted to the County Council a schedule of additions or amendments to the Definitive Map for the Review of the Map, as required under section 33 of the National Parks and Access to the Countryside Act 1949 and section 31 of the Countryside Act 1968. Footpath No. 28 is listed as wrongly shown on the Map and described as follows:
At Warren Cottage path continues to follow metalled drive as in its entire length passing between two white gates marked "Private" as described in the statement. Map shows path passing to south of the boundary of Warren Cottage.
The Review was put on hold however, while the Limited Special Review of RUPPs was carried out in the 1970s, and not then completed.
In 1974 the Parish Council wrote to the County Council regarding the length of time the review was taking and asked that immediate attention be given to the clarification of Footpath No. 28, where it passes Warren Cottage.
3.5 Newton and Noss Parish Council Minutes and Files - 1937 to date
The alignment of Footpath No. 28 at Warren Cottage has been raised on numerous occasions at the meetings of Newton and Noss Parish Council and in council correspondence. Copies of relevant minutes and correspondence are included in the background papers to this report.
The first instance was in March 1937 concerning the 'Path, Membland Drive' at Warren Cottages and a reported diversion. It was noted that the matter be left to the Parish Council. There is no further information about the reported diversion or what action was taken by the parish council.
Later, in 1964, discussion of Footpath No. 28 largely concerns the question of whether public vehicular rights exist over the route.
In October 1967 the parish council minutes report on a recent meeting on site with the County Council concerning the status of the route and obstructions. Notes in parish files suggest that the gates at Warren Cottage had been locked and notices erected directing walkers to use an alternative path around the property. A report of the meeting stated that it was agreed in principle by County officials that there was a right of way between the gates of Warren Cottage, in accordance with the written description, and that the notices on the gates constituted an obstruction. Subsequent minutes show that the question of vehicular rights over the route and obstructions in the vicinity of Warren Cottage remained a significant issue over the years, with the parish council consistently pressing for the Definitive Map to be amended to show Footpath No. 28 passing through the gates, regardless of what decision was made in respect of vehicular rights.
In November 1979 the parish council wrote to the National Trust, the then owners, requesting that notices be posted at Warren Cottage to make it apparent to strangers that the footpath runs through the gates of Warren Cottage. The National Trust replied to say that they had diverted the path two years previously to run below and outside the boundary of the cottage. When the parish council replied that no legal diversion had taken place, the Trust stated that there had been a misunderstanding of the word 'diverted'. They had not done away with the "legal right of way" through Warren Cottage grounds but had created an additional right around the fringe by way of permissive rights. This was again acknowledged by the Trust in 1983 when a new lease was agreed.
In December 1985 it is reported that parishioners had again been told that the footpath led though private land between the gates and that the detour must be used. Subsequent minutes and correspondence shows that a lessee of Warren Cottage was again disputing that a right of way existed through the grounds of the property, on the basis that it was not shown on the Definitive Map.
In June 1988, it is reported that a letter dated 29 March 1951 from Mr Pitts, Lord of the Manor of Noss Mayo, had been discovered in parish files. In the letter Mr Pitts stated that he had dedicated to the public all his rights and interests along the drive from Eastern Lodge to Ferry Cottage. He also refers to the dedication having been deposited with the County Council. Parish Council Minutes and correspondence show that the National Trust subsequently accepted that the definitive line follows the original Revelstoke Drive through the grounds of Warren Cottage, and that this would be made clear to prospective lessees.
Later minutes refer to the occasional misleading sign and the unsuitability of the alternative route for wheelchair access.
3.6 File Correspondence
The County Council correspondence file, associated with the earlier uncompleted reviews of the Definitive Map, contains a great deal of correspondence with the parish council and National Trust concerning the status of Footpath No. 28 in general and its alignment past Warren Cottage.
In May 1988 Newton and Noss Parish Council enclosed a copy of the letter from Mr Pitts as referred to above. The parish council submitted details from conveyances which described Mr Pitts' interests in the Marine Drive as "full right and liberty", "by day or by night and for all purposes with or without horses, carts, carriages, motorcars and other vehicles to go, pass or re-pass along, over and upon the road or drive".
The assistant county solicitor subsequently wrote to the National Trust in October 1988 advising the Trust that, although the Council did not have the original letter, it is clear that it was intended the whole of the Membland Marine Drive, including the portion within the grounds of Warren Cottage should be a public right of way. He added that this had been accepted in the past by the National Trust.
4. Rebuttal Evidence
No rebuttal evidence has been received.
5. Discussion
There is no provision in statute for deciding whether, in the case of conflict, the map or statement takes precedence. In R (Norfolk CC) v Secretary of State for the Environment, Food and Rural Affairs (2005) it was said that in the event of a discrepancy between the map and statement, the matter was to be determined by reference to the evidence presented, with neither the map nor statement having precedence with regard to the weight to be attached to the information on each.
The Definitive Statement clearly describes the footpath as passing through the gates at Warren Cottage, following the Membland carriage drive for its entire length. This is consistent with the original parish council submission. Since they were first made aware of the discrepancy Newton and Noss Parish Council have consistently contended that Footpath No. 28 followed the carriage drive and that the Definitive Map was therefore incorrect.
Contemporaneous mapping suggests that there may have been an alternative route available on the ground by 1950. There is also evidence that private notices were in place on the gates at Warren Cottage in 1953, as evidenced by the Definitive Statement. However, there is no report of the public being prevented from using the path through the grounds of Warren Cottage or told to use an alternative path until 1967.
Whilst it is clear that occupants of Warren Cottage have, at various times, attempted to discourage users of the way from passing through the grounds and have created an alternative path for walkers, this has generally been as a result of the uncertainty caused by the conflict between the Map and Statement. The coast path is signed along the drive, through the gates of Warren Cottage. The alternative route is signed as such by the National Trust and remains available.
Documentary evidence shows that the landowner expressly dedicated to the public a right of way along the drive in 1951. Continued use of the route by the public is evidence that there has been acceptance of the path by the public as a public footpath. It has previously been contended that the dedication was for use on foot, horse and in vehicles. However, the parish council has not made a claim for higher status than footpath and no evidence of use to support acceptance of higher rights has been received.
6. Conclusion
The evidence available supports the parish council's view that the Definitive Map was incorrectly drawn and that the correct line of Footpath No. 28 is as described by the Definitive Statement. It is therefore recommended that a Modification Order be made to correct the Definitive Map in respect of Footpath No. 28 by adding to it the section A-D-C, and deleting from it A-B-C, as shown on drawing number EEC/PROW/11/39, in accordance with the Definitive Statement, and if there are no objections to the Order, or if such objections are subsequently withdrawn, that it be confirmed.
Suggestion 2: Footpath No. 36 amendment of the Definitive Map to show the footpath as it is described by the Definitive Statement
Amendment of the Definitive Map to show the footpath joining the county road, Passage Road, near Ferry Cottage, as described in the Definitive Statement and as shown between points E F on drawing number EEC/PROW/11/42.
Recommendation: That a Modification Order be made to amend the Definitive Map in respect of Footpath No. 36 by adding to it the section E F.
1. Background
During the course of the course of the current review, existing paths in the parish were checked and the line of Footpath No. 36 as shown on the Definitive Map was found not to connect with the county road Passage Road, near Ferry Cottage, as described by the Definitive Statement. The Definitive Map shows the footpath starting some 65 metres further west, near the property known as Ferryman's Cottage.
2. Definitive Statement
The Definitive Statement for Footpath No. 36 is as follows:
The path is a Footpath. It starts from the end of the County Road near Ferry Cottage and continues through Passage Wood to its junction with Path No. 28.
3. Documentary Evidence
3.1 Definitive Map Survey Newton and Noss Parish Council Submission
The original parish council submission map shows the route commencing near Ferry Cottage. The map is annotated to show 'UCR to Ferry'.
3.2 Highway Records
The county road is shown on earlier and current highway records as extending approximately 12 metres southwest of Ferry Cottage. The section E F is marked on the current highway records as a footpath.
4. Rebuttal Evidence
No rebuttal evidence has been received.
5. Discussion
There is no provision in statute for deciding whether, in the case of conflict, the map or statement takes precedence. However, where a route does not appear on the definitive map, the fact that it is included on the statement could be adduced as evidence in support for a modification order to add the route to the definitive map.
The description given in the Definitive Statement is precise regarding the junction of this footpath at the County Road and it appears that there was simply a drafting error with regard to omitting the small section between Ferry and Ferryman's Cottage from the Definitive Map itself.
6. Conclusion
It is recommended therefore, that a Modification Order be made to amend the Definitive Map in respect of Footpath No. 36 by adding to it the section E F, as shown on drawing number EEC/PROW/11/42, in accordance with the Definitive Statement, and if there are no objections to the Order, or if such objections are subsequently withdrawn, that it be confirmed.
Suggestion 3: Footpath No. 21 amendment of the Definitive Map to show the footpath as it is described in the Definitive Statement
Amendment of the Definitive Map to show the footpath joining Stoke Road, opposite Bridgend Quay, as described in the Definitive Statement and as shown between points M N on drawing number EEC/PROW/11/44.
Recommendation: That a Modification Order be made to amend the Definitive Map in respect of Footpath No. 21 by adding to it the section M - N.
1. Background
During the course of the course of the current review, existing paths in the parish were checked and the line of Footpath No. 21 as shown on the Definitive Map was found not to connect with the county road Stoke Road, as described by the Definitive Statement. The Definitive Map shows the footpath terminating approximately 20 metres short of Stoke Road.
2. Definitive Statement
The Definitive Statement for Footpath No. 21 is as follows (the relevant part relating to its termination is shown underlined):
The path is a Footpath. It starts at Stoke Road (County Road No. 76) adjacent to Rowden Farm, through a field gate and proceeds across a pasture field Ord. No. 158, over a wooden stile and across arable field Ord. No. 117a, over wooden stile and across pasture field Ord. No. 109a, through a field gate and across pasture field Ord. No. 74 to a field gate leading onto a private Accommodation Road (not repairable by the inhabitants at large) and finally rejoins the Stoke Road.
3. Documentary Evidence
3.1 Definitive Map Survey Newton and Noss Parish Council Submission
The original parish council submission describes the route as Leaving Stoke Road opposite Rowden Farm to Bridgend. However, the short section (M N) from the property known as Three Corners to the road opposite Bridgend Quay has been omitted from the submission map.
3.2 Highway Records
The section M N is not marked on the earlier or current highway records as a county road.
4. Rebuttal Evidence
No rebuttal evidence has been received.
5. Discussion
There is no provision in statute for deciding whether, in the case of conflict, the map or statement takes precedence. However, where a route does not appear on the definitive map, the fact that it is included on the statement could be adduced as evidence in support for a modification order to add the route to the definitive map.
The description given in the Definitive Statement is precise regarding the junction of this footpath at the County Road and it appears that there was simply a drafting error with regard to omitting a small section of the private accommodation road from Three Corners to the road opposite Bridgend Quay from the parish submission map and the Definitive Map itself.
6. Conclusion
It is recommended therefore, that a Modification Order be made to amend the Definitive Map in respect of Footpath No. 21 by adding to it the section M N, as shown on drawing number EEC/PROW/11/44, in accordance with the Definitive Statement.
Suggestion 4: Footpath No. 16 amendment of the Definitive Map to show the footpath as it is described in the Definitive Statement.
Amendment of the Definitive Map to show the footpath, known as Yealm Steps, between the points U V, as shown on drawing number EEC/PROW/11/46, in accordance with the Definitive Statement, instead of between points S T as currently recorded on the Map, and if there are no objections to the Order, or if such objections are subsequently withdrawn, that it be confirmed.
Recommendation: That a Modification Order be made to correct the Definitive Map in respect of Footpath No. 16 by adding to it the section U V and deleting from it the section S T.
1. Background
In 1998, in the course of submitting a planning application for a new Harbour Master's office at the base of the steps, known as Yealm Steps, a check by the architects involved revealed that they were not recorded on the Definitive Map, although were regarded as a public right of way by the Newton and Noss Parish Council and included in the parish guide book as Footpath No. 16. The Public Rights of Way Officer at the time confirmed that the steps were recorded on the Definitive Map and Statement as Footpath No. 16. The anomaly was not picked up at this time.
In 2004 when considering maintenance of the steps, a further enquiry by the DCC Local Service Officer, John Halliday brought it to the attention of the Public Rights of Way section that the Definitive Map identified a different flight of steps as Footpath No. 16 and that the map was incorrect.
2. Description of the Route
The route considered to be Footpath No. 16 starts at Yealm Road opposite the Yealm Hotel, (point U), and proceeds down a flight of stone steps, with an iron railing, to a public quay (point V). It is signed as a public footpath. The route as shown on the Definitive Map starts at a point approximately 25 metres further northwest (point S) at a dilapidated wooden gate and proceeds down a flight of stone and wooden steps to a jetty (point T).
3. Definitive Statement
The Definitive Statement for Footpath No. 16 is as follows:
The path is a footpath. It starts at Yealm Road (unclassified County Road) opposite "River Yealm Hotel" and proceeds down thirty-six stone steps to the landing stage.
4. Documentary Evidence
4.1 Ordnance Survey Mapping
The 1st Edition 25" OS map, published 1895, shows both flights of steps.
The 2nd Edition 25", published 1904-06, similarly shows both flights of steps. The steps consistent with S T are shown leading to a pier.
The 1:2,500 A Edition post-war OS mapping, published 1951-52, also indicate a landing place at the base of the steps U V.
4.2 Definitive Map Survey Newton and Noss Parish Council Submission
The original parish council submission map shows the route U V. The parish council described the route as steps in stonework and as leading to landing stage. The county surveyor has noted "who owns the landing stage" and, in answer, "Parish Council own landing stage.
4.3 Newton Ferrers, Newton & Noss Parish Council and Plympton St Mary Rural District Council Minutes
Parish and Rural District Council Minutes make numerous references to the steps leading to the landing stage near the Yealm Hotel.
Between 1906 and 1909 the Newton Ferrers parish council and RDC minutes frequently report on the destruction of a flight of public steps leading to a landing stage below the Yealm Hotel. They were reported to have been destroyed by the South Hams Light Railway Company during the commencement of works for a proposed railway line. The Company was instructed by the RDC to repair the same. It is noted that with the steps destroyed the only landing place available is at a private pier, and it can be assumed this refers to the pier shown on the OS mapping to the west of the hotel.
In September 1954, the minutes of the RDC Harbour Committee confirmed that the steps to the east of the Yealm Hotel Pier were in the ownership of the parish council.
5. Rebuttal Evidence
No rebuttal evidence has been received.
6. Discussion
The documentary evidence available, in conjunction with contemporaneous mapping and the physical description of the route, indicates that the correct alignment of Footpath No. 16 is U V and that the recording of S T on the Definitive Map is a simple drafting error.
7. Conclusion
It is recommended therefore, that a Modification Order be made to amend the Definitive Map in respect of Footpath No. 16 by adding to it a footpath between the points U V and deleting S T, as shown on drawing number EEC/PROW/11/46, and if there are no objections to the Order, or if such objections are subsequently withdrawn, that it be confirmed.
Suggestion 6: Addition of a public footpath from the end of Riverside Road East
Addition of a public footpath between points A1 B1, as shown on drawing number EEC/PROW/11/45, from the eastern end of Riverside Road East, Newton Ferrers, to Footpath No. 1.
Recommendation: That a Modification Order be made to add a public footpath to the Definitive Map between points A1 B1.
1. Background
During the course of the current review existing paths in the parish were checked and it was noted that a short section of footpath linking Riverside Road East to Footpath No. 1 was not recorded on the Definitive Map and Statement.
2. Description of Route
The route starts at Riverside Road East at point A1, as shown on drawing number EEC/PROW/11/45, adjacent to the property known as The End of The Strand. It proceeds generally eastwards then east north eastwards along a surfaced pathway parallel to Newton Creek to join Footpath No. 1 at point B1, adjacent to the property known as Kissing Gate.
3. Highway Records
The route is recorded on the County Council's record of highways maintainable at public expense ('List of Streets'), as a continuation of Riverside Road East. Footpath No. 1 is also recorded on the highway records.
4. Response to Consultation
The owner of the property 'End of The Strand' adjacent to the route, was consulted on the proposal to record the route on the Definitive Map. In his response he requested clarification on ownership and maintenance liability of the route and whether his rights would be affected by the designation. Correspondence is included in the background papers to this report.
5. Discussion
The route is a surfaced urban route, in daily use, indistinguishable from its continuation as Footpath No. 1. It is only suitable for use as a footpath, being too narrow for vehicles. A sign erected by the County Council prohibits use on bicycle. The List of Streets confirms that it is a public highway, maintainable at public expense, but it does not indicate the nature of the public rights it carries (other than that at least a public right of way on foot exists). Adding it to the Definitive Map and Statement will therefore clarify its status as a public right of way on foot, in keeping with its use and physical nature. This will not affect any existing rights the adjoining property owner may have.
6. Conclusion
It is recommended therefore, that a Modification Order be made to add a footpath to the Definitive Map between points A1 B1, as shown on drawing number EEC/PROW/11/45, and if there are no objections to the Order, or if such objections are subsequently withdrawn, that it be confirmed.
Suggestion 8: Addition of a public footpath from Riverside West to the Foreshore
Addition of a public footpath between points E1 F1, as shown on drawing number EEC/PROW/11/43, from the county road Riverside Road West, opposite Vine Cottage, to the foreshore, opposite Elm Tree Cottage.
Recommendation: That a Modification Order be made to add a public footpath to the Definitive Map and Statement between points E1 F1.
1. Background
The route has been put forward by Newton and Noss Parish Council for addition to the Definitive Map and Statement. It is one of a number of routes in the parish which are considered to be unrecorded public rights of way and which are publicised in the parish footpath guide as non-definitive paths. It is identified as Parish Path C - Vine Cottage.
2. Description of the Route
The route starts at Riverside Road West at point E1 on the plan, opposite a property known as Vine Cottage, and proceeds southwestwards along a short surfaced pathway and down several stone steps to the foreshore at point F1. It is approximately 12 metres long and 1 2 metres wide.
3. Documentary Evidence
3.1 Definitive Map Survey Newton and Noss Parish Council Submission
The original parish council submission for Footpath No. 19, completed in 1950, describes the route as leading from Riverside Road West and as a narrow path from roadway to beach. The entrance to the path is described as opposite house known as Vine Cottage and with steps leading to beach. This clearly describes the route E1 - F1.
The accompanying submission map however shows a different route, leading from Riverside Road East down a wide slipway to the foreshore.
The comments on the submission by Devon County Council' Divisional Surveyor in 1953, describe the route as a very short path leading from Riverside Road East to the foreshore. This is consistent with the route marked on the parish council's submission map, not the route E1 F1.
3.2 Definitive Map and Statement Footpath No. 19, Newton and Noss
The Definitive Map for Footpath No. 19 shows the route as marked on the parish council submission map, leading southeastwards from Riverside Road East down a slipway to the foreshore.
The Definitive Statement describes the route as follows:
The path is a Footpath. It starts at a very short path from Riverside Road East (unclassified County (leading to the foreshore.
This is the description as provided by the Divisional Surveyor in 1953, in response to the parish council's submission.
3.3 Ordnance Survey Maps
The 1st Edition 25" OS map, published 1895, shows a physical feature consistent with the route E1 F1 near the property Elm Tree Cottage. It would appear to be bounded on all sides by solid lines. The map indicates a landing place to the east and a quay to the west.
The 2nd Edition 25", published 1904-06, also shows the feature. The adjacent landing place and quay are not marked.
The 1:2,500 A Edition post-war OS mapping, published 1950, now shows the route with an open junction to the county road Riverside Road West. The route is bounded by solid lines to the adjacent property. It is indicated as a slipway.
3.4 Earlier Uncompleted Reviews of Definitive Map
In 1969, the Parish Council surveyed and submitted to the County Council a schedule of additions or amendments to the Definitive Map for the Review of the Map, as required under section 33 of the National Parks and Access to the Countryside Act 1949 and section 31 of the Countryside Act 1968. The list of paths to be added to the Definitive Map included the route identified as path C. It is described as follows:
A very short path from Riverside Road West opposite Vine Cottage to the beach.
In April 1978 Newton and Noss Parish Council again put forward a list of paths to be added to the Definitive Map, including the route identified as path C. A completed user evidence form accompanied the proposal.
3.5 Newton Ferrers Parish Council Minutes
In August 1899 the Newton Ferrers Parish Council reported on the bad state of the landing slip near Elm Cottage as being both difficult and dangerous for women and children and it was resolved that the Rural District Council be contacted to that effect.
In November 1899 it was resolved that the works committee be requested to put in repair the steps near Elm Cottage.
3.6 Newton and Noss Parish Council Minutes
In September 1950 the Parish Council considered the list of public rights of way to be submitted in respect of the Definitive Map Survey. The list was considered and the approved list recorded. The entry for Footpath 19 reads:
From Riverside Road West End from roadway to beach.
In April 1955, under the heading Schedule of Rights of Way, reference was made to the deposited map and schedule and a path which some councillors felt should have been included. It was agreed that the council would enquire with the County Council as to the position in the event of an omission.
In July 1955, again under the same heading, it was reported with regard to forms which had been completed in respect of the path and steps between the front gardens of Elm Tree Cottage and Vine Cottage and agreed that this was already scheduled as part of path no. 19 and that no action would be necessary.
In February 1989, under the heading steps near Vine Cottage, it was agreed that an estimate be obtained for work to make good the steps.
In March 1989 it was agreed to get another estimate and to ask the Harbour Authority to make a contribution.
In September 2000, it was noted that the footpath, Parish Path C Vine Cottage, led to the foreshore and that there was no public access across the quay (adjacent).
3.7 Parish Council Correspondence File
In May 1955 Newton and Noss Parish Council wrote to the County Council to enquire what action the parish council should take if it should appear that a right of way had been overlooked and omitted from the draft map and statement.
In response they were advised to ask three or four reliable witnesses to give evidence of their use and complete forms accordingly.
Three evidence forms, completed in respect of this route are held on parish files. A note affixed to the forms states that they are not required see Minutes July 22/55.
4. User Evidence
Newton and Noss Parish Council submitted ten user evidence forms in respect of the route in response to the current review. One user evidence form was submitted in 1978 as part of the earlier review and three were completed in 1955 following the paths omission from the draft map. In total fourteen forms are considered.
The earliest use is from 1915 and it continues to the present day. Where specified the frequency of use varies from twice a year to daily. Others have stated that they have used the route many, numerous times or often. Most state that they have used the route for pleasure, for getting to and from boats or for walking on the foreshore. Others have commented that it has been used by fishermen for generations. Use is summarised in the chart below.
5. Landowner Evidence
The land crossed by the route is not registered with the District Land Registry but it abuts the front garden and private quay of Vine Cottage.
One evidence form completed in 1955 was by the then owner of Vine Cottage, Mr Hereford. He believed the path to be a public right of way. A user evidence form has also been completed by the grandson of the Herefords, Mr Gateley. He comments that his grandparents were aware the path was used by the public and that they only politely objected if boats were tied to their quay without permission. He thinks it is probably owned by the parish. Another evidence form has been completed by a previous owner, Mrs Styring, who states that she always assumed it was a public right of way.
No response has been received from the current owner of Vine Cottage.
6. Rebuttal Evidence
No rebuttal evidence has been received.
7. Discussion
The description given by Newton and Noss for the inclusion of Path No. 19 on the Definitive Map is clearly the route E1 F1, leading from Riverside Road West. The survey map shows a different route, from Riverside Road East, and it is this route which was ultimately recorded on the Definitive Map as Footpath No. 19. It is not clear whether the Parish Council marked the path on their submission map in error, or whether they intended to include both paths but that somehow they were mixed up and one submission made for both. The Divisional Surveyor described the Riverside Road East route, most likely as a result of the parish survey map, and this description was then adopted as the Definitive Statement.
The parish council observed that the Vine Cottage route had been omitted from the draft map and statement but they did not object to the inclusion of the path recorded as Footpath No. 19. In realising that the Vine Cottage path had been omitted the parish council attempted to have it included and gathered user evidence to support their claim. However, they then believed it had been included as part of Path No. 19 and took no further action. Footpath No. 19, as recorded on the Definitive Map and Statement, is known locally as Big Slip and it is a well established public right of way, used on both foot and by vehicles launching and retrieving boats.
User evidence, considered in conjunction with documentary evidence, demonstrates frequent, uninterrupted use by the public since at least the early 1900s. The evidence also shows that the owners of the adjoining property, Vine Cottage, considered it to be a public right of way. They did not claim ownership and did not make any attempt to prevent public use, other than to establish that the adjoining quay was private.
It is considered that sufficient evidence exists to show that a public right of way not presently shown on the Definitive Map and Statement subsists or is reasonably alleged to subsist.
8. Conclusion
It is recommended therefore, that a Modification Order be made to add a footpath to the Definitive Map between points E1 F1, as shown on drawing number EEC/PROW/11/43, and if there are no objections to the Order, or if such objections are subsequently withdrawn, that it be confirmed.
Suggestion 9: Addition of a public footpath from Creekside Road to Noss Hard
Addition of a public footpath between points G1 H1, as shown on drawing number EEC/PROW/11/43, from the county road Creekside Road, adjacent to the property Tidal Waters, to the common land known as Noss Hard.
Recommendation: That a Modification Order be made to add a public footpath to the Definitive Map and Statement between points G1 H1.
1. Background
The route has been put forward by Newton and Noss Parish Council for addition to the Definitive Map and Statement. It is one of a number of routes in the parish which are considered to be unrecorded public rights of way and which are publicised in the parish footpath guide as non-definitive paths. It is identified as Parish Path E Tidal Waters.
2. Description of the Route
The route starts at point G1, as shown on drawing number EEC/PROW/11/43, on Creekside Road in Noss Mayo. It proceeds northwestwards along a defined, surfaced pathway adjacent to the property known as Tidal Waters and across a bridge over a leat to the registered common land, Noss Hard at point H1. It is approximately 17 metres long and approximately 1 1.5 metres wide. A telegraph pole is located on the path, near its eastern end, and this restricts the width at that point.
3. Documentary Evidence
3.1 Ordnance Survey Maps
The 1st Edition 25" OS map, published 1895, shows the route open to the road at the eastern end. A solid line across the western end to the hard may indicate a barrier, such as a wall, fence or gate.
The 2nd Edition 25", published 1904-06, shows the route open at both ends.
The 1:2,500 A Edition post-war OS mapping, published 1950, again shows the route open at both ends.
3.2 Newton and Noss Parish Council Minutes
The status of the route was first raised in the parish council minutes in 1962.
In February 1962 it was reported that construction work was being undertaken near a right of way at the Beach Head, Noss Mayo, causing an obstruction. It was agreed that the RDC be notified. At the subsequent meeting in March the clerk was instructed to communicate with Mr Moss.
In May 1962 the clerk was further instructed to instruct Mr Moss to keep the right of way clear and unobstructed, emphasising that it had been enjoyed by the public for a minimum of fifty years, during which time the Highway Authority has re-surfaced it several times.
In June 1962 it was resolved that the parish clerk send copies of correspondence between the parish council and Mr Moss to the RDC for their comment and opinion. Also, that the clerk write to DCC requesting the inclusion of the right of way when the next review takes place.
The matter was again raised in 1965. In September of that year it was agreed to write to Mr Moss requesting his assurance that the notice he was displaying referred to the land being private and not an attempt to prevent the public from using the right of way. The clerk was also to ascertain the position for signposting rights of way not on Definitive Map.
In October 1965 the clerk was instructed to assure DCC that the council could provide ample evidence that the right of way had existed for over twenty years and requested it be signposted.
In November 1965 the minutes refer to a notice stating that the path was private and requests be made to the RDC seeking its removal. It was also noted that the public right of way had existed for numerous years, the Highway Authority forty years ago having bridged the leat between the Beach Head and the commencement of the right of way.
Subsequent minutes continue to report of the issue of the notice and several requests to the RDC and DCC for guidance. In July 1966 it was reported that the clerk would forward some eight completed questionnaires to DCC.
In January 1967 the parish council resolved to object to a planning application in respect of an extension to a workshop at Tidal Waters on the grounds that it might interfere with access to the right of way. In February it was resolved to pursue legal action through the RDC for obstruction of the path. Subsequent minutes through 1967 and 1968 show that the obstruction was continuing and that the matter had been taken up by the RDC.
In November 1968 it was reported that a hearing had been held and that Mr Moss intended to appeal against the decision. In April 1969, re Tidal Waters it was reported that although the verdict had been in favour of the RDC notices had been put back on the gates. Subsequent minutes indicate that a further appeal by Mr Moss was pending. The minutes of March 1970 report that the case at Tidal Waters had been finally concluded, very satisfactorily from the parish council's point of view.
Later minutes refer to maintenance issues.
In 1988 the owner was reported to have pared overhanging vegetation.
Between 1996 and 1997 it is reported that the Heritage Coast Service would tarmac the path to prevent further erosion. In October 1997 however it was reported that contractors had been unable to surface the path as Mr Moss had objected. In December the parish council resolved that the path should added to the Definitive Map. Further minutes show that attempts were made to find records of the High Court Appeal.
In July 2000, it was reported that a small amount of tarmac had been laid by DCC in the interests of public safety. Mr Moss had again objected as it had been done without his permission. It was reported that a meeting had been held with Mr Danning, the representative of Mr Moss.
In September 2000 it was reported that Mr Danning had proposed 'iron hoop' barriers at the road end of the path, and that these would protect pedestrians. It was resolved not to proceed further until the legal status and responsibilities had been established.
3.3 Plympton St Mary Rural District Council
In December 1967 it was reported that the Plympton St Mary RDC Works Committee considered action to be taken regarding complaints of an alleged obstruction to an alleged public right of way adjacent to Tidal Waters.
In March 1968 it was reported that Counsel's Opinion had been obtained regarding the matter, which advised that proceedings should be taken but that prior thereto the landowner should be asked to remove the obstructions. It was recommended that the owner be requested to remove the obstructions and if he did not do so proceedings be instituted for a prosecution under section 121 of the Highways Act 1959.
In November 1968, at a meeting of the Special Purposes and Establishment Committee it was reported that at the Magistrate's Court Hearing, adjourned from October, the Council's case against Mr Moss have been found proven and he had been fined 10.
It was subsequently reported at the November meeting of the Council that Mr Moss had applied to Quarter Sessions against the Magistrate's decision.
In January 1969 it was reported that the appeal to Quarter Session had been adjourned until March.
In March 1969 it was reported that the Hearing of the Appeal has been resumed and concluded on 7 March and judgement reserved until 11 April.
In June 1969 it was reported that Mr Moss's solicitors had applied to Quarter Sessions for a stay in execution of the Order of costs.
In February 1970 it was reported that the appeal by Mr Moss to the High Court had been heard at short notice. The appeal had been dismissed and costs awarded to the Council.
3.4 Magistrate's Court Petty Sessional Division of Plympton Court Register 1968
The Court Register for 11 November 1968 records that Mr Trevor Moss was found guilty of wilful obstruction of the free passage of a highway under section 121 of the Highways Act 1959 and fined 10. The case had been brought by Plympton St Mary Rural District Council.
The Register also records that at Devon Quarter Sessions on 11 April 1969 an appeal by Mr Moss was dismissed.
3.5 County of Devon Quarter Sessions
The Quarter Sessions register records the case of the appeal by Mr Moss against the Magistrate's Court decision. It shows that the appeal was heard on 9 and 10 January 1969 and adjourned until 7 March. The judgement was then adjourned until 11 April when the appeal was dismissed, the adjudication of the Magistrate's Court confirmed and Mr Moss ordered to pay the full costs of the RDC.
3.6 Newspaper Reports
Several newspaper clippings relating to the court case are held on parish council files. They report on the first day of the Hearings at Plympton Magistrate's Court and at Exeter Quarter Sessions.
It was reported that Mr Moss's Q.C. questioned the parish council about why they did not report the omission from the draft map. In response a parish councillor was reported as saying it was a short one and they never considered it as a path. That it was in common usage and the council had maintained the path.
The articles give accounts of user evidence, as far back as the 1890s. Witnesses describe using the route to get to the shops, chapel, Sunday school, the bake house, the Globe Inn or to the creek side. A couple of users were reported as having said that the RDC put tarmac on the path when they did the road.
Witnesses for the Rural District Council were reported as saying that there was no documentary evidence to say whether or not it was a public right of way, but that as it was such a small job there probably would be no record of any 'macadamisation'.
3.7 Earlier Uncompleted Reviews of Definitive Map
In 1969, the Parish Council surveyed and submitted to the County Council a schedule of additions or amendments to the Definitive Map for the Review of the Map, as required under section 33 of the National Parks and Access to the Countryside Act 1949 and section 31 of the Countryside Act 1968. The list of paths to be added to the Definitive Map included the route identified as path E. It is described as follows:
Leaves the County Road opposite Methodist Chapel between southern end of old Methodist school room, now private house Tidal Waters, and boundary of The Cottage garden, passing along the southern wall of Tidal Waters across a County Council bridge over the leat and onto the beach at the head of the creek, now used as a car park.
In September 1970, Mr Trevor Moss wrote to the County Council to enquire whether any additional paths in the district, particularly Newton and Noss Parish, had been recommended for inclusion on the Definitive Map under the review. When advised that additional paths had been recommended by Newton and Noss Parish Council, Mr Moss wrote to object to the inclusion on the impending draft map of any public right of way across his property at Tidal Waters. He added that he reserved the right to take steps through a Chancery Action for the recommended right of way to be omitted on the grounds that it is not and has never been a public right of way. He was advised that any objections in respect of alterations to the definitive map should be made when the draft review map is placed on deposit, which would be at some time in the future.
In February 1974, the clerk to Newton and Noss Parish Council wrote to the County Council regarding the speed of the review. They requested that immediate attention be given to the clarification of public rights of way at Tidal Waters.
In April 1978 Newton and Noss Parish Council again put forward a list of paths to be added to the Definitive Map, including this route, identified as path E. A completed user evidence form accompanied the proposal.
In February 1979, Mr Moss again wrote to the County Council objecting to the proposed inclusion on the Definitive Map of the path at Tidal Waters.
4. User Evidence
Newton and Noss Parish Council submitted seven user evidence forms in support of their proposal for the addition of this path. No further forms were received during the consultation but public use of the route has been observed on site. The user evidence is summarised in the chart below.
The user evidence forms demonstrate regular use of the route by the public since 1950. Five have used of the route prior to 1970 and they refer to the dispute in the 1960s, when notices were erected and the landowner attempted to close the path. Since then they report no notices or obstructions. All have used the route on foot, with one person stating that they have also used it on a motorbike or bicycle.
5. Landowner/Rebuttal Evidence
The owner of the land crossed by the route, Tidal Waters Partnership, was consulted as part of the review process. They completed a Landowner Evidence Form in response. Tidal Waters Partnership has owned the land for the last five years. In response to the question whether they believe the way to be public they have replied no and stated that they believe it to be private, part of Tidal Waters, but they accept public use as long as it does not affect their statutory rights. In response to the question whether they have told anyone using the way that it is not public they state that it may have come up in discussions with neighbours but do not want to stop access for public. They have observed members of the public using the path on a daily basis.
Newton and Noss Parish Council own the Hard and have also observed daily use of the path.
6. Discussion
Map evidence shows that the route has physically existed since at least the late 1800s. Accounts suggest that the parish did not think to include it on the definitive map because it was such a short path.
The status of the route appears to have first been raised in 1962 when it was reported to have been obstructed by Mr Moss. The Parish and Rural District Council Minutes show that a protracted dispute followed, culminating in legal action being taken by the RDC against Mr Moss for his wilful obstruction of the highway. The RDC would not have taken legal action lightly, particularly for an unrecorded route. This indicates that they considered the evidence in support of the route being a public right of way was very strong.
Before the case for wilful obstruction of a highway could be proved, the Magistrate needed to be satisfied that the route was a public highway. The newspaper articles, while not a complete record of the court proceedings, report that witnesses gave evidence of use on foot, for a period covering eighty years, and that these witnesses were subjected to cross-examination by the landowner's legal representative, as were representatives from the parish and rural district councils. In finding Mr Moss guilty of wilful obstruction of the highway, the Magistrate was therefore satisfied that the evidence available was sufficient to prove a public right of way existed over the route.
The Magistrate's judgement was upheld at Exeter Quarter Sessions and Mr Moss's appeal dismissed. The parish and RDC minutes suggest that Mr Moss tried to appeal to High Court but that the appeal was dismissed. No record of a High Court Appeal Hearing has been discovered in court records. As it is necessary to apply for permission to appeal to a higher court, it is possible that the parish and RDC minutes refer to an application to appeal by Mr Moss having been dismissed, rather than an Appeal Hearing. However, the outcome was that the adjudication of the Magistrate's Court was confirmed.
Mr Moss continued to dispute the existence of the right of way in correspondence with the County Council during the 1970s and objected to improvement works in 1997 and 2000. The path was cleared of obstructions and notices, following the court case, and the path has been used by the public since then without interruption.
The court records show that a public right of way can be presumed to have been dedicated at some time in the past prior to 1962 and use by the public, then and now, is evidence that there has been acceptance of the path by the public as a public footpath.
It is therefore considered that sufficient evidence exists to show that a public right of way not presently shown on the Definitive Map and Statement subsists or is reasonably alleged to subsist.
7. Conclusion
It is recommended therefore, that a Modification Order be made to add a footpath to the Definitive Map between points G1 H1, as shown on drawing number EEC/PROW/11/43, and if there are no objections to the Order, or if such objections are subsequently withdrawn, that it be confirmed.