Meeting documents
HTM/11/21
Public Rights of Way Committee
11 November 2011
Schedule 14 Application
Deletion of Public Footpaths No. 8 Northleigh, No. 3 Farway, No. 6 Colyton and No. 10 Southleigh
Joint Report of the County Solicitor and Head of Highways and Traffic Management
Recommendation: It is recommended that no Modification Order be made in respect of the application to delete the footpaths shown between points A B C D and E F G H on drawing number ED/PROW/06/187.
1. Summary
This report relates to a Schedule 14 application, made on behalf of the landowners, to delete footpaths recorded on the Definitive Map in the parishes of Northleigh, Farway, Colyton and Southleigh following a Public Inquiry in 2008. I t is considered that the evidence provided is not sufficient to show that the routes were recorded wrongly following the Public Inquiry and it is, therefore, recommended that no Order be made to delete the footpaths from the Definitive Map and Statement, as applied for.
2. Background to the Application
The routes had been the subject of an informal claim on behalf of the Ramblers made during the Definitive Map Review process for the parish of Colyton between 1989 and 1992. The claim was not included in a report on the review of the parish to the then Public Rights of Way Sub-Committee in 1992 and deferred to a future meeting owing to the need for advice on aspects of the historical documentary evidence involved.
A formal Schedule 14 application for the addition of the routes was submitted in 1997 as part of the general review process for the parish of Northleigh, but withdrawn in favour of an application involving all of the parishes affected. A report on that application, investigated separately from any individual parish review and recommending not to make an Order to add the routes, was considered by this Committee in 2004, which members accepted and resolved that no Order should be made. An appeal by the applicant to the Government Office against that decision was successful and in June 2005 the County Council was directed by the Secretary of State to make a Modification Order adding the routes to the Definitive Map, on the basis of a report by an Inspector.
The direction to make the Order was reported to this Committee in September 2005. Members resolved then that clarification on aspects relating to the Inspector's report recommending acceptance of the appeal should be sought from the Government Office and reported back to a future meeting of the Committee. Following correspondence with the Government Office and legal advice, the matter was reported again to this Committee in November 2006, when Members resolved that the Secretary of State's direction should be accepted and to make the Order as directed.
The footpaths were added to the Definitive Map and Statement by a Modification Order made in December 2006, which received objections and resulted in a public inquiry held in May and August 2008 for consideration of the evidence by an Inspector on behalf of the Secretary of State. The Order was confirmed in September 2008 and the Inspector's decision letter is included below as an Appendix to this report.
An application to delete the footpaths, dated 31 March 2010, was submitted with a large bundle of evidence and made on behalf of a group representing the owners of the land affected. The footpaths are as shown between points A B C D and E F G H on drawing number ED/PROW/06/187.
A consultation on the application took place in July 2011, with the following responses:
County Councillor Mrs Randall Johnston - no comment;
East Devon District Council - no comment;
Northleigh Parish Council - no comment;
Colyton Parish Council - support the deletion;
Farway Parish Council - no comment;
Southleigh Parish Council - no comment;
Byways and Bridleways Trust - no comment;
Devon Green Lanes Group - object to deletion;
Country Landowners' Association - no comment;
National Farmers' Union - no comment;
Open Spaces Society - no comment;
Ramblers' Association - do not believe that the evidence meets the test for deletion.
Responses were received from other individuals, either as local residents on their own behalf or representing amenity groups, who did not support the application and expressed a range of concerns about the proposed deletion of a recorded footpath if it was successful.
Copies of the application and its accompanying documents, with the correspondence from the consultations and other relevant material, have been made available in the Members' Lounge for inspection.
3. Matters for Consideration Basis of Claim
Section 53 (5) of The Wildlife and Countryside Act 1981 enables any person to apply to the County Council as surveying authority for an Order to modify the Definitive Map. The procedure is set out under Schedule 14 of the Act.
Section 53 (3)(c) of The Wildlife and Countryside Act 1981 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:
(iii) that there is no public right of way over land shown in the map and statement as a highway of any description
In a Court of Appeal judgment on the case of Trevelyan v the Secretary of State for the Environment, Transport and the Regions in 2001 ("Trevelyan") it was held that there was an initial presumption that a route was correctly recorded, there having been evidence of it carrying public rights when it was put on the map. In determining whether or not to delete a right of way the initial presumption must be that the right of way exists. The standard of proof required to demonstrate that it does not exist is the 'balance of probabilities' and evidence of some substance that was 'clear and cogent' must be put in the balance to outweigh the initial presumption that it does exist. In the absence of evidence to the contrary, it should be assumed that the procedures were followed properly in recording the route in the first instance.
The latest DEFRA guidance in Circular 1/09 sets out that the evidence needed to delete a public right of way will need to fulfil certain stringent requirements, which are that:
the evidence must be new an Order to remove a right of way cannot be based simply on the re-examination of evidence known at the time it was recorded on the Definitive Map;
the evidence must be of sufficient substance to displace the presumption that the Definitive Map is correct; and
the evidence must be cogent.
In an application to delete a public right of way, it will be for those who contend that there is no right of way to prove that the Definitive Map requires amendment due to the discovery of evidence, which when considered with all other relevant evidence clearly shows that the right of way should be deleted. It is not for the authority to demonstrate that the map reflects the true rights, but for the applicant to show that the Definitive Map and Statement should be modified to delete the way.
4. The Application and Supporting Evidence
The application to delete the footpaths was submitted with evidence said to have been discovered since the public inquiry in 2008 and therefore not seen by the Inspector in reaching his decision to confirm the Order. The new evidence is in four main subject areas, which are dealt with individually below, but submitted with the assumption that it should be examined in conjunction with the evidence already presented for consideration by the Inspector at the inquiry. In addition, it is suggested that the Inspector made errors in his legal understanding of several matters in reaching his decision to confirm the Order as a result of the inquiry.
5. Exeter, Dorchester, Weymouth Junction Coast Railway 1845 Deposited Plans and Book of Reference
The Plans and Book of Reference were prepared and deposited in 1845 for a proposed railway line between Exeter and Weymouth that was never built. The plans show the proposed line following the valley of the River Coly through the four parishes in East Devon towards Dorset, with the boundaries for any possible variation in the line on either side as the 'limits of deviation'.
The land and features within those limits and just beyond are recorded, particularly for any possible engineering works needed for construction of the railway line and other measures that may have been needed for crossing public or private roads and rights of way, including bridges and level crossings, or to stop them up or divert them. Information about the land was recorded in a Book of Reference relating to its number in the plans, with a description and details of its owners and occupiers.
The applicants consider that because there is nothing shown in the plans and no reference to any footpath for the numbered plots crossed by the Order routes it is very strong evidence that they did not exist at that date, when considered with details of other roads and footpaths recorded in plots elsewhere within the boundaries of the limits. However, the footpath routes run parallel with the proposed railway line and are mainly beyond the limits of deviation to the north in Northleigh, Farway and Colyton parishes between points A B C and in Southleigh parish between points E F G, or otherwise only just within them in places.
Where recorded elsewhere within the limits, roads and footpaths appear to be mainly those identified as running across the possible line if built and potentially needing to be crossed rather than parallel to it and just being present within the land. However, what is now the minor road from Stubbing Cross leading to Stubbing Bridge at point E is not recorded and the River Coly is not identified in all numbered plots of adjoining land. Equally, other footpaths are recorded in individual plots and not in adjoining fields, with one highlighted by the applicants which could only refer to a section of the Order route leading to point D.
Elsewhere and much more significantly, a bridge is shown crossing the river at point B on the route which, although outside the limits and not needing to be recorded, provides contradictory evidence that could otherwise be used in support of the path's existence. Overall, these records do not provide any substantive evidence against the existence of the paths as claimed by the applicants.
6. Rights of Way Act 1932 and Survey of 1934
The applicants refer generally to the Parliamentary and legislative background of procedures resulting from the Rights of Way Act 1932, in connection with evidence considered at the public inquiry. It was related to a comment by the Rural District Council on the Parish Council's survey form for the route from the process for drawing up the Definitive Map. No substantive and specific new evidence was submitted in support, and it is considered to be an attempt to re-visit the interpretation of evidence already considered at the public inquiry.
7. Landownership and Occupancy Records
The applicants provided details of the historical ownership and occupancy of the land and properties on the Order routes in support of their view that, as the properties formed part of settled or entailed estates in the past and had been tenanted, there was nobody with the capacity to dedicate a public right of way for an inference of dedication under common law. Although not completely new evidence, as it was obvious at the inquiry that the land must have been owned and occupied by somebody, the only new element is the details of it having been held and occupied at various times in the past under strict settlement and tenanted.
Quotes from sections in Halsbury's Laws were highlighted, referring to the inability of leaseholders and limited holders to dedicate land as a public highway. However, there is a later reference from the same source which states that for the purposes of dedication of land to the public for those purposes, a tenant for life under the Settled Lands Act of 1925 is in the same position as if he were an absolute owner. A schedule in that Act contains retrospective amendments applying to earlier Settled Lands Acts of 1882 to 1890. The applicants have submitted counsel's advice on this aspect, as have the Ramblers' Association, which oppose this application. It does appear to be the case that from 1882 a tenant for life under a strict settlement would have been capable of dedicating a public right of way.
8. Irregularities of Finance Act 1910 operation in East Devon
The applicants have not submitted any substantive new evidence relating to the interpretation of Finance Act material considered by the Inspector at the public inquiry in support of their assertion that there were irregularities in the operation of its procedures in East Devon.
9. Discussion and Conclusion
The applicants have submitted several items of what they say is new evidence in support of their application to delete the footpaths. However, there is little that can be considered as strictly new in the sense of not having been considered at the public inquiry . The only items of new evidence not considered by the Inspector at the inquiry are the documentation for the Deposited Railway Plans and more substantial details relating to ownership and occupancy records from property deeds. On closer examination, neither is considered sufficiently cogent or compelling to support the view that the routes should not have been recorded on the Definitive Map and Statement by the Modification Order as made and confirmed by the Inspector through the public inquiry procedures.
Other evidence submitted is considered not to be new and appears to be more a re examination of the evidence already presented to the Inspector at the inquiry. Although the evidence submitted is required to be examined with all other available evidence, it would need to be new as well as substantial and sufficiently compelling to justify revisiting the Inspector's interpretation of the evidence already considered at the inquiry . Similarly, the question of whether the Inspector erred in law, or misdirected himself, is a matter that should have been made in a legal challenge by an application to the High Court following confirmation of the Modification Order after the public inquiry.
The evidence submitted with the application is considered not to be sufficient to meet the requirements of the test for deletion, on the balance of probabilities. That is in accordance with the requirements set out in current guidance and the Trevelyan judgment, which is relevant even though concerning in that case the original procedures for recording routes on the Definitive Map and Statement rather than later additions. Accordingly, it is recommended that no Modification Order be made to delete the public footpaths recorded on the Definitive Map and Statement as a result of the Inspector's decision at the public inquiry.
10. Reasons for Recommendation/Alternative Options Considered
To determine the Schedule 14 application for deleting recorded public rights of way in the Parishes of Northleigh, Farway, Colyton and Southleigh.
11. Legal Considerations
The implications/consequences of the recommendation have been taken into account in preparing the report.
12. Carbon Impact Considerations
There are no considerations.
13. Equality Considerations
There are no implications.
14. Sustainability Considerations
There are no implications.
15. Risk Management Consideration
There are no implications.
Jan Shadbolt
County Solicitor
Lester Willmington
Head of Highways and Traffic Management
Electoral Division: Honiton St Michael's
Local Government Act 1972: List of Background Papers
Contact for enquiries: Nick Steenman-Clark
Room No. ABG, Lucombe House
Tel No: (01392) 382856
| Background Paper | Date | File Reference | |
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| Correspondence File | 2010 to date | DMR/NOR/Sch14 File | |
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nc270911pra
sc/cr/northleigh farway colyton southleigh
03 hq 281011
Appendix
To HTM/11/21
Inspector's decision letter