Meeting documents

HCW/13/71

Public Rights of Way Committee

20 November 2013

Schedule 14 Application

Deletion of Public Footpaths No. 8 Northleigh, No. 3 Farway, No. 6 Colyton and No. 10 Southleigh part 2

Joint report of the County Solicitor and Head of Highways, Capital Development and Waste

Recommendation: It is recommended that members note the direction on behalf of the Secretary of State to make a Modification Order following a successful appeal 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 and give authorisation for a Modification Order to be made to delete Footpaths No. 8 Northleigh, No. 3 Farway, No. 6 Colyton and No. 10 Southleigh.

1. Introduction Summary

This report concerns a Schedule 14 application to delete footpaths recorded on the Definitive Map in the parishes of Northleigh, Farway, Colyton and Southleigh as the result of a public inquiry in 2008. A report on investigation of the evidence supporting the application was considered by this Committee in November 2011, with a decision not to make a Modification Order deleting the footpaths. An appeal to the Planning Inspectorate against that decision has been allowed and the County Council has been directed to make an Order for deletion of the footpaths.

2. Discussion Background to the Application and Appeal

A report on an earlier application for the routes to be added to the Definitive Map, recommending not to make an Order adding the routes, was considered by the Committee in May 2004. Members accepted the recommendation and resolved that no Order should be made. An appeal by the applicant 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 on behalf of the Secretary of State.

The direction to make the Order was reported to this Committee in September 2005 and following correspondence with the Government Office and legal advice, the matter was reported again to the Committee in November 2006. Members resolved that the Secretary of State's direction should be accepted and authorised the Order to be made as directed.

The footpaths were added to the Definitive Map and Statement by a Modification Order made in December 2006. The Order 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. Following the inquiry, the Order adding the footpaths was confirmed by that Inspector in September 2008.

An application to delete the footpaths, made on behalf of a group representing the owners of the land affected, was submitted in March 2010. It was supported by a large bundle of evidence, including details relating to historical ownership and occupancy records from property deeds, 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 was submitted with the assumption that it should be examined in conjunction with the evidence already considered by the Inspector at the inquiry. In addition, it was suggested that the Inspector had made errors in his legal understanding of several matters in reaching his decision to confirm the Order as a result of the inquiry.

A report on the application was considered by the Committee in November 2011, with a recommendation that no Order should be made as the evidence was considered not sufficient to meet the test for deletion. The recommendation was accepted by members, who resolved that no Order to delete the footpaths should be made.

An appeal by the applicants against the Committee's decision was made to the Planning Inspectorate in January 2012 and dismissed by an Inspector's decision in May 2012. The applicants challenged that decision by judicial review in the High Court, leading to it being quashed by a Consent Order in August 2012. The appeal was referred back to the Secretary of State for re-determination by another Inspector and a second decision was made in December 2012 dismissing the appeal again. That decision was also challenged by a further application for judicial review, which led to it being quashed in April 2013 by Consent Order as well, with the appeal referred back to the Secretary of State again for a second re determination.

A third Inspector's decision was made in June 2013 allowing the appeal. That Inspector agreed with the applicants about the new evidence submitted with the application, when considered with the evidence examined by the Inspector at the public inquiry in 2008, together with all other available evidence. The latest Inspector's decision was that it showed, on the balance of probabilities, that public rights of way did not exist on the routes in December 2006, the relevant date of the Modification Order adding them to the Definitive Map. The decision means that the County Council has been directed by the Secretary of State to make an Order deleting the footpaths. A copy of the Inspector's decision is included as an Appendix to this report.

3. Conclusion and Recommendation

In line with the Inspector's decision the County Council is required to make a Modification Order deleting the footpaths as directed. Accordingly, it is recommended that members note the direction on behalf of the Secretary of State to make a Modification Order following a successful appeal in respect of the application to delete the footpaths and give authorisation for the Modification Order to be made to delete the footpaths.

4. Financial Considerations

Financial implications are not a relevant consideration to be taken into account under the provision of the Wildlife and Countryside Act 1981. The Authority's costs associated with Modification Orders, including Schedule 14 appeals, the making of Orders and subsequent determinations, are met from the general public rights of way budget in fulfilling our statutory duties.

5. Sustainability Considerations

There are no implications.

6. Carbon Impact Considerations

There are no implications.

7. Equality Considerations

There are no considerations.

8. Legal Considerations

The implications/consequences of the recommendation have been taken into account in preparing the report. It is likely that the matter will go to a public inquiry, where all of those matters will be considered further.

9. Risk Management Consideration

There are no implications.

10. Public Health Impact

There are no implications.

11. Options/Alternatives

No options for any alternative recommendation are available for consideration.

12. Reasons for Recommendation/Alternative Options Considered

The County Council has been directed on behalf of the Secretary of State for Environment and Rural Affairs to make an Order following a successful appeal against the Committee's decision in November 2011.

Jan Shadbolt

County Solicitor

David Whitton

Head of Highways, Capital Development and Waste

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, County Hall, Exeter, EX2 4QD

Tel No: (01392) 382856

Background Paper	Date	File Ref.
Correspondence file	2010 to date	DMR/NOR/Sch14file

ns241013prw

sc/cr/deletion of public footpaths northleigh farway colyton southleigh

03 hq 111113

Appendix I

To HCW/13/71

Appeal re-determination Inspector's decision: