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COMMONS AND RIGHTS OF WAY COMMITTEE 23 MARCH 2006 AGENDA ITEM:
APPLICATION FOR A MODIFICATION ORDER FOR AN ADDITIONAL LENGTH OF PUBLIC FOOTPATH
BETWEEN HILCOTE DRIVE AND RISSINGTON ROAD, PARISH OF BOURTON ON THE WATER
JOINT REPORT OF THE EXECUTIVE DIRECTOR: ENVIRONMENT AND
THE HEAD OF LEGAL AND DEMOCRATIC SERVICES 1. PURPOSE OF REPORT
To consider the following application: Nature of Application: Additional Footpath Parish: Bourton on the Water Name of Applicant: Mr R Sandoe Date of Application: 12 March 2004
2. RECOMMENDATION
That a Modification Order be made to add the length of claimed footpath to the Definitive Map.
3. RESOURCE IMPLICATIONS
Average staff cost in taking an application to the Panel- £2,000. Cost of advertising Order in the local press, which has to be done twice, varies between £75 - £300 per notice. In addition, the County Council is responsible for meeting the costs of any Public Inquiry associated with the application. If the application were successful, the path would become maintainable at the public expense.
4. SUSTAINABILITY IMPLICATIONS
No sustainability implications have been identified.
5. STATUTORY AUTHORITY
Section 53 of the Wildlife and Countryside Act 1981 imposes a duty on the County Council, as surveying authority, to keep the Definitive Map and Statement under continuous review and to modify it in consequence of the occurrence of an ‘event’ specified in sub section [3]. Any person may make an application to the authority for a Definitive Map Modification Order on the occurrence of an ‘event’ under
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section 53 [3] [b] or [c]. The County Council is obliged to determine any such application that satisfies the required submission criteria in accordance with schedule 14 of the Act.
6. DEPARTMENTAL CONTACT
Andrew Houldey, Modification Orders Officer, Definitive Map Unit, Public Rights of Way Section, Environment Department. Telephone Gloucester (01452) 425522 E-mail: [email protected] Janet Smith, Senior Lawyer, County Legal Services. Telephone Gloucester (01452) 425095 E-mail: [email protected]
REPORT 7. DESCRIPTION OF PATH 7.1 A location map at scale 1:10,000 is attached (numbered 7 A) showing the
position of the claimed footpath at Bourton on the Water. The claimed path is approximately miles south-east of the centre of the town. The area of interest lies within Ordnance Survey Grid Square SP 1719
7.2 A large-scale map of the Hilcote Drive area at 1: 1,000 scale is attached
(numbered B). This map shows the claimed path by a broken black line between points A and B. The claimed path runs from the Rissington Road at point A in a generally southerly direction to connect with the county road known as Hilcote Drive, at point B. Rissington Road is a county maintained road, numbered 3/140. The western part of Hilcote Drive, to which the claimed route adjoins, is publicly maintainable, and is numbered 45503 in the county road records. It was adopted on 1 November 1967. The eastern arm of Hilcote Drive is an unadopted private road.
7.3 The path runs between the properties known as Hilcote and 2 Hilcote Drive. It is
enclosed by two chain link fences between the two properties. There appear to have been pedestrian accesses off the claimed path to the gardens of Hilcote and 2 Hilcote Drive, but the path was obstructed to the point whereby it was not possible to undertake a proper survey of the claimed path.
7.4 The site was visited on 28 August 2003. The Hilcote Drive end (point B) was
blocked off with three wooden rails and green wire mesh. The route had the appearance of an alley way between two hedges and was very narrow, approximately 1 metre in width. The Rissington Road end (point A) was totally blocked by a length of raffia type screening and could barely be seen. On the other side of the Rissington Road, the kerb has been dropped on the footway opposite to the point where the path exits on the Rissington Road. There were no signs saying anything about preventing people from using the path or to suggest that it was a path.
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7.5 Mrs Ann Powell, the landowner, described the path in a letter to Cotswold District Council on 19 June 2003, objecting to a planning application. She stated “many years ago someone (unknown to local residents) laid paving slabs along it. These have not been maintained in the 9 years that I have lived at number 2. Consequently, they are becoming increasingly uneven and will deteriorate further. The end of the path slopes suddenly downwards to the Rissington Road, where the path ends abruptly at the roadside. In wet weather the last yard is normally a quagmire. Recently, someone unknown to the residents has dumped hardcore in the area. It is assumed that the developer has done this to influence the decision. It is doubtful that he will be intending to maintain this once the properties have been sold”.
7.6 The total length of the claimed path is approximately 40 metres. 8. BACKGROUND
8.1 In late June or early July 2003, Mrs Powell, one of the landowners, met Andrew Houldey, Modification Orders Officer, at Shire Hall, Gloucester. She wished to check the Definitive Map of Public Rights of Way and the County Road Records to see whether the path was a right of way.
8.2 Mr and Mrs Powell had until recently believed that the path, which runs adjacent
to their property, was outside of their ownership and was presumably owned by the Council. On examining their deeds and those of their neighbour, they found that the path was partly within their property and partly within their neighbour’s property. The Powells now claim that the whole of the path lies within their property.
8.3 She was concerned about any public liability issues that may arise about people
using a path that ran over their property that was not a public footpath and asked whether it would be possible to block off the path specifically to prevent any future claim for damages.
8.4 It was pointed out to Mrs Powell that it would be permissible for her to block the
route as it was not a definitive public right of way, but she was warned that if she did block up the path then there was every possibility that a claim could come in for a Modification Order to add the path to the Definitive Map on the basis of use. She was unconcerned by this, as if successful any maintenance (and hence any potential claim for damages) would be the responsibility of the County Council.
8.5 The claimed path was marked on a planning application (to which Mr and Mrs
Powell (and other local residents) objected in June 2003) as a pedestrian access for redevelopment of the adjacent property known as The Willows. The enquiry by the adjacent landowner as to whether the claimed route carried public rights was made shortly afterwards.
8.6 The path was presumably blocked off by the Powells in July 2003 as Mr George
Sloggett of Nethercote Cottage, Rissington Road contacted the Cotswold Divisional Highway Surveyors on 22 July 2003 stating that he had been using this
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footpath opposite his house for the past 43 years, and that one of his neighbours, Mr Huw Powell, had decided it was his and had chained it off, meaning that it was impassable. His call was referred to the Gloucestershire County Council Public Rights of Way Section and he was sent details on how to apply for a Definitive Map Modification Order on 7 August 2003. He replied on 18 August 2003, enclosing a public path evidence form that he had completed. Application forms and public path evidence forms for completion by users of the claimed path were forwarded to Mr Sloggett on 26 August 2003.
8.7 Mr R J Sandoe rang on 7 November 2003 requesting application forms to add
the path to the definitive map. It was explained that the forms had previously been sent out to another potential applicant. Application forms and public path evidence forms were sent to Mr Sandoe on the same day.
9. APPLICATION
9.1 An application was made on 10 March 2004 by Mr R Sandoe of 46 Roman Way, Bourton on the Water for a length of footpath to be added connecting Hilcote Drive and Rissington Road, Bourton on the Water.
9.2 A total of five completed public path evidence forms were submitted in support of
the application. These were completed by Peter Barker, Benjamin Dudfield, Raymond Fardon, Brian Fathers and William Oakey. An additional public path user form had earlier been submitted by George Sloggett on 18 August 2003. Further public path evidence forms were subsequently submitted by Audrey Warne and E S Field in May 2005. A summary of these eight evidence forms is attached (numbered ….C).
9.3 Mr Powell queried the application map by letter dated 12 March 2004. It was
confirmed that the definitive public footpath HBW 29 crossed the eastern arm of Hilcote Drive (which is a private road) and terminated on the Rissington Road. He was concerned that the map implied that the claimed route could facilitate use of path HBW 29.
9.4 Mr Powell then queried whether the applicant was acting as a private individual
or in his capacity as a parish councillor. He wrote on 2 April 2004 “…When I received the application I called the chair of the Parish Council Footpath Committee to whom I had originally turned for advice. I found she was unaware of Councillor Sandoe’s actions. Although I did not ask her directly I took the fact that she was unaware of the application to mean that he was not acting in his capacity as a member of the Parish Council Footpaths Committee or councillor. In later conversations with my neighbour it became apparent that when my neighbour had spoken to Councillor Sandoe on this matter he had left her with the clear impression that he was acting as part of his council duties. I was confused and wrote to the Parish Clerk for clarification…” He enclosed a letter that he had received from the Parish Council, which stated: “Further to your letter dated 22 March 2004 concerning the above [application for a modification order], I can confirm that the form you received from Councillor Sandoe was not in his capacity as Parish Councillor but as a private individual”.
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10. LANDOWNERS’ EVIDENCE
Mr and Mrs Powell, 2 Hilcote Drive, Bourton on the Water Mr Powell has made the following comments in response to the evidence:
User evidence and usage:
10.1.1 People using the path are observable from our gardens, kitchen and dining room. People going to and from the path are observable from our gardens, living room and study. I work 30 hours a week and for the last 5 years my wife has worked 18 hours a week, prior to which she was a housewife. We are keen gardeners, I am the neighbourhood watch coordinator for the western end of Hilcote Drive and key holder for three properties in the road. Our children are now 10 and 12 and we have spent many days in and around our garden since moving here in 1994. I like to think I am alert to strangers and observant.
10.1.2 I do not contest the evidence of Mr Barker. I remember many occasions when
he used the disputed path when delivering the post. 10.1.3 I am astonished by the user evidence provided by Mr Oakey. I have known Mr
Oakey for 10 years and have visited his house several times in the last few years where I spoke with him and his grandson. We first investigated the ownership of the disputed path as a result of the grandson’s business associate’s development plans for the “Willows”, Hilcote Drive [see below]. At the time I was one of a group of local residents opposing his business associate’s plans to build 6 houses on that a plot.
10.1.4 In July 2003 I called on Mr Oakey to explain my position regarding the disputed
access and advised him that I would be closing it. He did not raise any objection and told me that he had not used the path for several years. I dispute his claimed recent usage very strongly. I note that Mr Oakey claims to have used the land to walk to and from the same point in the middle of a privately owned field up to 4 times a week for 20 years before Hilcote Drive was constructed; and for nearly 60 years before he came to live in Bourton. All of the user evidence shows the claimed right of way leading to what was originally a point in a field; where it abruptly ends. If this disputed way had predated Hilcote Drive, then surely it would have lead to something or connected with some other path.
10.1.5 I have only seen Mr Oakey use the disputed path twice in the 10 years I have
lived here. I recall greeting him on the path and remarking that we didn’t often see him down our end of the road. He agreed, saying he very rarely used the disputed path. My wife has never seen him use the disputed path. Also, when members of the Ramblers’ Association called to examine the path, they mentioned a conversation with one of our neighbours. She had informed them that he (Mr. Oakey) always uses his car. It would be good if they have reported this.
10.1.6 I am 100% confident that since 1994 Mr Oakey has not been using the
disputed pathway as described in his evidence. Mr Oakey is asking us to believe
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that for over 50 years before moving to Bourton he travelled from a neighbouring village to walk up a path 3 or 4 times a week to what was for the first 20 years only some point in a privately owned field. Furthermore, as stated above, Mr Oakey in July 2003 told me he had not used the disputed path for several years.
10.1.7 There is an existing Public Footpath which leads from the Rissington Road
across the eastern end of Hilcote Drive to the open countryside. I note that Mr Oakey states that the current vehicular access to Hilcote Drive from the Rissington Road is where the original farm entrance was located. I would not dispute this; but I wonder what possible purpose could have been served by this claimed fourth access to the original field.
10.1.8 Mr Oakey also makes claims regarding his knowledge of the utilities under the
disputed path”. Copies of the maps showing utilities in the area, none of which lay under the claimed path, were supplied by Mr Powell; Gloucestershire County Council were anyway aware of any apparatus.
10.1.9 “In the last 4 years Mr Fardon and Mr Sloggett also claim usage. I do not
know Mr Fardon by sight; but it is not unreasonable that he might have used the disputed path once every couple of months without me being aware of him.
10.1.10 I strongly dispute the user evidence of Mr Sloggett. I would not deny that he
has used the disputed path, but I suggest his use is no more than a few times a year at most during the last decade. I would not wish to disagree with the evidence provided by Mr Sloggett that he and other users were using the disputed path without the knowledge of the owners of the land. Indeed until I measured the plot and compared it to the dimensions on the conveyance, I would have agreed that the land was not part of this plot. Having spoken with previous owners of this property it seems I and my wife are the only people to have measured the plot and defined the boundary.
10.1.11 I have discussed the claimed usage with Mr Lane who owned this property
until 1994. When I said that Mr Oakey had claimed to have been using the disputed path 3 times a week since 1930 he expressed some incredulity. He observed that this was inconsistent with what he had seen whilst he had lived here. Mr Lane remarked that Mr Oakey had only come to live here in recent years and that even then he only used the disputed footpath very occasionally. When I told him what Mr Sloggett was claiming, he laughed. Mr Lane said that whilst he had often seen Mr Sloggett working in his garden; he had not seen him using the path in the 8 or 9 years he was in residence.
10.1.12 Despite Bourton being visited by hundreds of thousands of people and there
being many guidebooks, I have not seen the disputed path being included in any of the books recommending walks around the village. There have been a few occasions when ramblers from the village have mistaken the disputed path for the official footpath at the eastern end of Hilcote Drive. We have sometimes assisted them by redirecting them back to the Rissington Road so that they could rejoin the route of their walk. We did not feel we were doing them any disservice by this action, as the disputed path only leads back to the Rissington Road. The eastern end of Hilcote Drive is a private road. The public footpath leading to the
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fields crosses that end of Hilcote Drive but can only be accessed legally from the Rissington Road. Residents have erected a ‘Private Road’ sign near the junction to discourage trespassers.
10.1.13 I suggest that the use by those who have chosen to claim a right of way
amounts to no more than ‘several times a year’ between 1993 and 2003. All of the users are believed to be known personally by Mr Oakey.
10.1.14 In the Planning Inspectorate’s notes for consistency it is stated that there are
no “hard and fast” rules regarding sufficiency of user evidence. However, attention is drawn to a case where 5 statements of user evidence were considered to be insufficient; even though the evidence was not contested.
Dyson J in Dorset 1999 did not question that the Inspector had found the evidence contained in five user statements insufficient to satisfy the statutory test, even though the truth of what was contained in them had been accepted. I suggest that although this disputed path is in a built up environment, considerably less user evidence has been presented in this case. Utilities
10.2.1 Mr Oakey claims that the utilities to the estate lie under the disputed right of way. The fact that this is presented as evidence of use seems to imply that this can be used to decide if the disputed path was intended to be open to public access. Therefore I am obliged to address the issue. This claim has been investigated…
10.2.2 Service pipes to 2, Hilcote Drive seem to run in the vicinity of the disputed
pathway but I cannot confirm if they lie underneath or alongside. Water ‘stop cocks’ near the Rissington Road end of disputed path seem to indicate that this the limit to which public access extends and that any land between that point and the house was intended to be private.
Physical characteristics
10.3.1 The Planning Inspectorate draw the attention of inspectors to the physical characteristics of any way presumed to be dedicated. It is stated: In some circumstances the physical characteristics of a way can prevent a highway coming into existence through deemed or inferred dedication. In their guidance for consistency published in January 2004 attention is drawn to:
In Thornhill v Weeks 1914, Astbury J observed that: it seems impossible that a lady who resided there would at once start dedicating a way through her stable yard … In trying to form an opinion whether an intention to dedicate has existed, one must have some regard to the locality through which the alleged path goes. The fact that it goes through the stable yard [close to the house] is strong enough to raise a presumption against an intention to dedicate.
10.3.2 As Mr Fathers notes in his user evidence the disputed path is very intrusive. The land presumed to be dedicated is so close to the property that users might stretch out their arm and touch the wall of the property. Surely it is the intention of
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the inspectorate to suggest that a presumption of dedication is unsafe if a route is so close to a property that it is within touching distance.
10.3.3 Unless users are to ignore the Private Road sign at the eastern end of Hilcote
Drive, the claimed right of way will only permit users from the Rissington Road to access the western end of Hilcote Drive and to return to the Rissington Road. If it is proposed that this new route is to facilitate access along Hilcote Drive to join the existing footpath to the fields, then it will condone users disregarding the Private Road sign at the eastern end of Hilcote Drive. It is suggested that owners of the Private road are consulted before any decision that might support such a route is approved. History of the path
10.4.1 All the houses in this part of Hilcote Drive stand on plots bought from the builder L W Hill. The first house built was the Willows [now demolished] followed by Hilcote and this property…
10.4.2 ….The conveyance [for the Willows], dated 1951, makes no reference to the
disputed path although it does show the official footpath across the eastern end of Hilcote Drive. A copy of the Abstract of title of L W Hill [shows]… that there is no evidence of the claimed path…
10.4.3 If the disputed path was intended to have been dedicated as a footpath then it
seems likely that it would have been included on the original definitive map statement.
10.4.4 As we have only lived here since 1994 we had no knowledge of how the path
came to be. I sought the advice of Mr R Delderfield of Windrush View, Hilcote Drive . He explained that the path was made up by the estate developer L W Hill as a temporary measure so that occupants of the first houses might be saved from having to cross his very muddy building work to access the road junction. It is his opinion that the disputed path was for the temporary benefit of the residents of Hilcote Drive and not intended to become a public footpath. (….D). Mr Sambell, the first owner of this property, has also stated to me that he did not recall there being a right of way in existence prior to the disputed path. It was his understanding that the disputed path was intended for the use of residents of Hilcote Drive and not as a public Right of Way. He did not recall anyone other than residents of Hilcote Drive regularly using the disputed path. Mr Sambell was resident of Bourton before Hilcote Drive was built.
10.4.5 When Mr Hill made up the path the land upon which it stands had already been
sold so it is not possible that he could have dedicated it to public use as he was not the owner.
10.4.6 If it was intended in the 1960s that this disputed footpath was to become a
public footpath then it seems likely that it would have been adopted when the western end of Hilcote Drive was adopted on 1 November 1967. The fact that it was not seems to indicate that there was no intention to dedicate it at that time.
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10.4.7 It is claimed that the route of the disputed path leads to what is no more than some point in a field until Hilcote Drive was constructed some 20 years after the first claimed use. I note that Mr Sloggett claims no personal knowledge of the path before 1960 and I am left wondering if he is simply repeating evidence of others who claim use.
Intention to dedicate
10.5.1 Background Taken from: http://www.ramblers.org.uk/footpaths/misc/existence_of_rights.htmParliament decided that the public would be better served if a set period of public use was defined in law for claims of presumed dedication. Under Section 31 of the Highways Act 1980 if a way is enjoyed by the public for twenty years or more, as of right and without interruption, 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 period of twenty years is calculated retrospectively from the date when the right of the public to use the way was brought into question. Claims based on user evidence tend to be made under this Act, but common law claims can still be made if the evidence of use is less than 20 years.
10.5.2 Had I known that the disputed path crossed this plot either I would not have purchased it, or I would have closed it without delay when I moved here in 1994. We discussed responsibility for the disputed path with our solicitor at the time and he was given assurances by the vendor’s solicitor that there was none. Our solicitor registered the plot with the disputed path shown outside and I was content that I had no responsibility towards the land. I now realise that as a result, the registered plot dimensions are substantially less than those referred to in the conveyance. The common misunderstanding that the land was ‘unowned’ is supported by user evidence of Mr Sloggett. I suggest that as I was unaware of ownership of the land this is clear evidence that I had no intention to dedicate it.
10.5.3 In 2003 Mr Oakey’s grandson’s business associate purchased the plot the
other side of the Hilcote Drive and presented plans to demolish the bungalow erecting a detached house and terrace of five cottages on the land. In the plans for the proposed new development, the disputed path seemed to be shown as 6 feet wide – over 3 feet wider than it has ever been. It was described as providing pedestrian and disabled access to the Rissington Road. We were very concerned that the path could be increased in width. If this happened the path could extend up to and beyond our garage wall which was constructed by the estate developer L W Hill. We asked our building society (who hold our Deeds) to confirm the extent of our plot with the initial aim of preventing expansion of the pathway. However, when we measured our current plot and compared it to the size of the plot conveyed by L W Hill, we found that it was 6’ too narrow. Only if the disputed path were our land would the dimensions of the plot agree with the dimensions given on the conveyance. We were very alarmed and sought the advice of our Parish Councillor. We were particularly concerned because we had already complained to the District Council that the disputed path was dangerous. Now it appeared we might be held liable for any accident involving its use.
10.5.4 We consulted Mr Gray of the County Highways department and met with Mr
Hawkins the District Council Footpaths Officer. Acting on their advice we advised
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residents of Hilcote Drive of our intention and with the assistance of neighbours from Hilcote and Pemberton we closed the path without delay. We discussed this matter with the previous owner Mr A Lane. He stated that he had never measured the plot to compare it to the dimensions written on the conveyance. Mr Lane stated that he had found the path intrusive and that he had at no time intended to dedicate it. In fact, he would have closed the path without delay had he known it crossed his land. He had also contacted the council to complain that the path was unsafe. When Mr Lane complained to the council about the unsafe nature of the disputed path, he was advised that it was not a public footpath and assumed that it was unconveyed land presumably belonging to the estate of Mr Hill who constructed the estate. I had also written to the planning authority to express my concerns regarding the adequacy, lack of maintenance and safety of the disputed path. I suggest that in our modern litigious society it would be highly unlikely that if two successive occupiers of 2, Hilcote Drive were aware of their ownership of the land they would do nothing more than complain to the council about the safety of a path.
10.5.5 On 9 and 12 November 2004 I met with Mr Sambell the original owner of this
property. He confirmed that he too was unaware that the disputed path crossed his land. Mr Sambell had never measured his plot and compared it to the dimensions shown on the conveyance; he was therefore unaware of the discrepancy which we have identified. Mr Sambell did not know that the minimum width of his plot would only correspond with that shown on the conveyance if the disputed path lay within the boundary of the land conveyed to him for use as garden. It seems that Mr Sambell and subsequent owners have been under the belief that the path was on ground additional to their land. Therefore, they were unaware that those using the disputed path were actually using land they had bought from Mr Hill as part of their garden. If the plans of Mr Oakey’s grandson’s business associate’s had not given us reason to question the size of this plot; it is unlikely we would have ever measured the garden and discovered the mistake; unless we were sued.
Case Law
10.5.6 Considerable case law relates to the requirement of the landowner to be aware and to agree to the use of their land as a footpath if dedication can be presumed:
10.5.7 In Mills v Silver [1991] Ch 271, this court reiterated the basic principles
underlying the prescriptive acquisition of such rights, laid down in Sturges v Bridgman (1879) 11 Ch D 852 by Thesiger LJ at p 863: "Consent or acquiescence of the owner of the servient tenement lies at the root of prescription, and of the fiction of a lost grant, and hence the acts of user, which go to the proof of either the one or the other, must be, in the language of the civil law, nec vi, nec clam, nec precario; for a man cannot as a general rule, be said to consent to or acquiesce in the acquisition by his neighbour of an easement through an enjoyment of which he has no knowledge, actual or constructive, or which he contests and endeavours to interrupt, or which he temporarily licences."
10.5.8 Stirling LJ said at page 574 of Diment [below]:
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“I think that Dalton v Angus establishes that there must be some knowledge or means of knowledge on the part of the person against whom the right is claimed."
10.5.9 In Union Lighterage Co. v London Graving Dock Co. [1902] 2 Ch. Romer LJ said at page 570 (taken from Diment [below]):
"... on principle, it appears to me that a prescriptive right to an easement over a man's land should only be acquired when the enjoyment has been open - that is to say, of such a character that an ordinary owner of the land, diligent in the protection of his interests, would have, or must be taken to have, a reasonable opportunity of becoming aware of that enjoyment."
10.5.10 The same principle was stated by Lindley LJ in Hollins v Verney (1884) 13 QBD 304, at p 315: The planning inspectorate draws particular attention to this case in their [consistency guidelines]:
No user can be sufficient which does not raise a reasonable inference of such a continuous enjoyment and that no actual user can be sufficient to satisfy the statute ... unless the user is enough to carry to the mind of a reasonable person (owner, etc.) the fact that a continuous right of enjoyment is being asserted and ought to be resisted.....
10.5.11 In one case an easement was refused because the landowner was not aware of the user even though his agent was aware but did not inform him of it.
Vice-Chancellor Pennycuick: Diment v Foot [1974] 1 WLR at 1427 in which the Vice-Chancellor found the general proposition that the presumption arising from long user of an alleged right of way - that the owner of the alleged servient land had knowledge or means of knowledge of such user - did not extend to the owner's agents and since the plaintiff had no actual knowledge of the relevant user" etc. etc. in that particular case there was no easement.
10.5.12 In Davies v Du Paver [1953] 1 QB 184, which concerned a private right, Morris
LJ said, at p 210: "Before Mr Davies could establish a claim based on prescription the evidence would have to show that the owner of the servient tenement had knowledge of what was happening, or as an ordinary owner must be taken to have had reasonable opportunity of knowledge, and that, having power to prevent it, he did not intervene."
10.5.13 The widely accepted principle that for dedication to be effective the user must
be recognised, 'nec vi, nec clam and nec precario', does not seem to be satisfied here. Successive owners of this property have mistakenly believed that the disputed path ran on land additional to their plot, not across their land as we have discovered. We believed that by employing a surveyor and a solicitor we had taken reasonable steps to investigate title. Our solicitor undertook all the usual searches and enquiries. The answers from the previous owners confirm that they were not aware of their ownership of the disputed path. This information had been passed on erroneously by each previous owner.
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10.5.14 The case law would seem to indicate that dedication can only be safely
presumed when the landowner is fully aware that his land is being used and chooses not to prevent it. In this case we were advised that the disputed path lay outside the boundary of our plot. As a result we had no knowledge of any right or obligation to prevent the use if we wished to prevent the claimed dedication. As soon as we discovered the mistake we took immediate steps to close the path.
10.5.15 If the Rights of Way Panel accept that either ourselves or any of our
predecessors in title in the last 20 years had no intention to dedicate then the following case law seems to apply [taken from Planning Inspectorate Consistency Guidelines]
In Billson Sullivan J did not accept a submission that for the proviso in s31 to operate at all there must be evidence that there was no intention to dedicate for the whole of the 20-year period. He considered that the words ‘during that period,’ were not to be equated with ‘throughout that period’ and that if there is sufficient evidence that for, say, 5 or 10 years during that period a landowner had no intention to dedicate, that would defeat a claim of dedication under s31(1).
10.5.16 Further relevant matters include:
In Applegarth v Secretary of State for the Environment Transport and the Regions (Administrative Court 2001) Highway-Presumption of dedication-Definitive Map-Claimant bringing private right of way claim over road-Modification order-Confirmation by the Inspector-Relevance of evidence-Private versus public-Wildlife and Countryside Act 1981 s 53- Highway Act 1980 s 31. The claim was that the Inspector erred in taking account of evidence after 1st inquiry. The private right was recorded in conveyance and was incompatible with the subsequent creation of public right. As to the presumption of dedication an unknown owner could not be presumed to have had an intention to dedicate. Held that only an owner was capable of dedicating, therefore only the evidence of an owner as to the intention to dedicate was relevant. Appeal dismissed. http://www.countrysiderightsassociation.co.uk/nonflash/law/subtext5.htm
10.5.17 At page 26 of “Rights of way. A guide to law and practice.” by Paul Clayden
and John Trevelyan 1983, Open Spaces Society Ramblers Association, it is stated “As mentioned above a presumption of dedication cannot arise where there is no person capable of dedicating. The general rule is that only a freeholder of land can dedicate.”
10.5.18 The planning inspectorate also advises on the issue of dedication under
common law. Paragraph 5.34 of [the Planning Inspectorate’s Consistency Guidelines advises:] Attention is drawn to where a claim for dedication is brought at common law, the burden of proving the owner’s intentions remains with the claimant. For the reasons given by Scott LJ in Jones v Bates 1938, this is a heavy burden and, in practice, even quite a formidable body of evidence may not suffice. However, should it be asserted in rebuttal that there was no one who could have dedicated
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the way, the burden of proof on this issue would rest with the asserting party (Halsbury, above, refers).
10.5.19 Here previous owners of the land have not been aware of their ownership and
could not, therefore, have had any intention to dedicate it. 10.5.20 The Planning Inspectorate also offers advice concerning how long hidden
evidence relating to Rights of Way can be used when discovered many years later [in Planning Inspectorate Advice Note 7]. In the Mayhew case, the challenge was to the confirmation by the Secretary of State of an order under section 53 to reclassify three ways shown in a definitive map as footpaths as BOATS. The documentary evidence that was relied upon for the order had been in the surveying authority’s archives as far back as 1952 when the ways were originally classified as footpaths, but had not been previously considered by the authority. The order was challenged, first, on the basis that the evidence relied upon did not come within section 53(3)(c) of the 1981 Act. It had to have been fresh evidence previously unavailable to the authority in order to be “discovered”. This argument was rejected. The judge, Potts J, adopted parts of the judgment in R v Secretary of State for the Environment ex parte Simms and Burrows where it was said that: “the word ‘discovery’ suggests the finding of some information which was previously unknown, and which may result in a previously mistaken decision being corrected”. In addition, Potts J adopted the following passage from Simms and Burrows: “In particular I am satisfied that section 53(3)(c), with its use of the word “discovery”, embraces the situation where a mistaken decision has been made and its correction becomes possible because of the discovery of information which may or may not have existed at the time of the definitive map”. In the court’s view in Mayhew, the meaning of “to discover” is to find out or become aware. The phrase connotes a mental process of the discoverer applying their mind to something previously unknown to them.
10.5.21 In this case we have in a similar manner acted upon information that has lain
un-noticed for many years. On discovering this information we acted without delay to correct a mistake. We have clearly demonstrated that we had no intention to dedicate.
10.5.22 I trust the Rights of Way Panel will agree that the conditions required to
satisfy the test of whether there was an intention to dedicate cannot be met in a circumstance like this; where landowners are not aware that their land is being used. In my action to close the path I was assisted by two other residents in stopping it up. Two former owners have also denied any intention to dedicate, stating that at no time were they aware that their land was being used.
Parish Council
10.6.1 I understand that the application was discussed at the PC meeting with the applicant Mr Sandoe present in his capacity as a councillor. I am advised that he did not declare his interest in this matter until, when asked for his opinion, he
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made it clear that as the applicant his support for the matter needed no further comment.
[Conclusion] 10.7.1 We hope that when the Rights of Way Panel consider the volume and reliability
of the user evidence, the physical characteristics of the land claimed to be dedicated and the evidence supporting the fact that we were unaware of the user they will reject this application”.
Land Held in Trust or Mortgaged
10.8.1 On 7 January 2005 Mr Powell raised the issue of a mortgage holder’s capacity to dedicate, referring the officers to the following extract from the Planning Inspectorate’s rights of way consistency guidelines:
Land held in Trust or Mortgaged “Halsbury gives useful guidance; Volume 21 para 73 states: Where the
mortgagor (borrower) is still in possession of the mortgaged land it would seem that the mortgagee’s (lender’s) assent to a dedication is necessary, and that a dedication cannot be inferred from user unless the mortgagee can be shown or presumed to have had knowledge of it. Trustees of land held on trust for sale generally have power to dedicate on their own provided that no incompatibility is introduced (Halsbury Vol.21 para 74 refers). For leaseholds and copyholds the consent of both landlord and lessee or copyholder would usually be required for dedication. However, Inspectors should always check the detailed wording and provisions of the trust or mortgage document pertaining to the case before them, in case there are specific requirements for enabling powers. A public body can in general create a right of way, provided that the public use would not be incompatible with the purpose of the body.”
Comments on additional evidence, 3 June 2005
10.9.1 Mr Powell wrote to respond to additional user evidence on 3 June 2005. He questioned whether the procedure that allowed additional evidence forms to be submitted over a 7 month period and the attendant delay in processing this application contravened his right to a fair trial under Article 6 of the European Convention on human rights: “The applicant and his supporters have already enjoyed sufficient opportunity to make their case. I suggest that if you admit these new evidence reports it will be in breach of the Human Rights Act 1998. Therefore I request that you respect my human rights and reject this new evidence”. [The response of the County Council to the issue of Human Rights is attached at ….E]
10.9.2 “…On the subject of the most recent evidence, I certainly make no secret of my
opposition to what I perceived as over-development of the Willows site in Hilcote Drive, as evidenced from an article in the Gloucestershire Echo dated 9 July 2003 and a letter signed by all bar two households of the original Hilcote estate. The two households who did not sign were Mr Oakey’s, who declined; and the owners of ‘The Galens’ and ‘Pemberton’ who were not in residence…
10.9.3 When I received your letter of 11 May 2005 I contacted Ms Warne to clarify
what she had observed on the signs she reported marking the footpath she used. I asked where she had seen the signs and what they had said. She told me that
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the way she had used had ‘Public Footpath’ signs at each end. I suggested she might be mistaken but she insisted she was not; and said that her walking companion would be submitting independent evidence to corroborate their observation that the way they used was without doubt marked with public footpath signs. I believe that E S Field is the companion she referred to and indeed, as Ms Warne promised, E S Field’s evidence does confirm that the path they walked was signed. The disputed path has not been signed in any way. If they had been using the claimed path as shown on the map from the Rissington Road to access the fields behind Hilcote Drive then the first sign they would have encountered would have been ‘Private Road’ but this is at the junction between Hilcote Drive and the Rissington Road nearly 100 m from the end of the disputed path. There have been no signs showing the disputed path as either public or private.
10.9.4 I can confirm E S Field’s suspicions that the disputed path has been blocked
off for nearly 2 years and is now overgrown. However, no green netting has ever been used at the Rissington Road end. I appreciate this would be difficult to see at the moment but relatively easy when the path was first closed. There is a public footpath to the fields across the other end of Hilcote Drive and it is marked as described but it has not apparently been blocked. I believe Ms Warne and E S Field have confused the official public path which crosses the other end of Hilcote Drive with the disputed path. This path has not been blocked off and is still open to public use.
10.9.5 Nothing could ever convince me that the evidence of Mr Sloggett and Mr Oakey
is anything other than a gross exaggeration in the first case and a fabrication in the second…. In the case of the statements of Ms Warne and E S Field the description of the use of green netting and the unshakeable conviction that the path they used was clearly marked with public footpath signs leads me to conclude that the evidence is unreliable… The evidence of Ms Warne and E S Field is obviously the result of collusion and contains serious inconsistencies that I cannot believe that they used the path as described”.
10.9.6 Mr Powell then drew the Authority’s attention to the Planning Inspectorate’s
Advice Note 19 which relates to the requirement for statutory bodies to have regard for particular areas of the 1998 Human Rights Act, namely Article 8 the Right for Respect for Private and Family Life and Article 1: Protection of Property.
Additional Submission of 2 August 2005
10.10.1 Mr Powell drew the authority’s attention to the Cotswold District Council
planning files, concerning the construction of the Hilcote Estate. He noted “It seems that the matter of creating a pedestrian access between Hilcote Drive and the Rissington road was the subject of much discussion between 1949 and 1952”.
10.10.2 Mr Powell enclosed a letter to you from my predecessor in title, a Mr Lane
who reported that whilst Mr Oakey only used the path occasionally after moving to Hilcote Drive in 1989 he was not observed using it prior to that date. Mr Lane
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also states that he did not observe Mr Slogget use the path at all throughout the 9 years he lived here.
10.10.3 Mr Powell states “The files held by the planning authority show the line of the
new path to be created was finally agreed in 1952 by which time Mr Hill the developer had sold the plots through which the path was to pass. Mr Sterry had previously constructed an illegal private access. This access was not on the same line as the currently disputed path but joined the Rissington Road at the other corner of his garden closest to the village. Mr Sterry attended planning meetings to resolve the problem. As part of this solution Mr Sterry had agreed to provide some garden to construct a public footpath. [Mr Slogget has submitted evidence that Mr Sterry still lives in the village and believed the path was not on his land. Mr Sterry died several years ago and his central role in the development of this path is well documented.]
10.10.4 By the summer of 1952 Mr Hill has built the path and The County Surveyor
wrote to the County Planning Officer to point out that at a previous site meeting it was decided that Mr Sterry would make planning application for the path.
10.10.5 [Document 1] Mr Hill’s planning application applies for permission to change
the use of land from garden to pedestrian pathway and says he is constructing a new footpath.
10.10.6 [Document 2] Mr Oakey has submitted user evidence that he was using the
disputed path almost daily during this period prior to its construction. The contemporaneous records directly contradict the evidence of Mr Oakey who would have us believe that by 1952 a well trodden path had already been in existence for over 20 years.
10.10.7 Mr Hill describes himself as owner of the garden but had already sold the
plots through which this path was to pass and County Council officers anticipate Mr Sterry to have made the planning application to change his garden to form a new path. Hilcote is now registered land and the Land Registry records show that, despite previous agreements, Mr Sterry did not surrender any of his garden.
10.10.8 A scale drawing of the agreed line of the proposed new path is held on file by
the district council. It shows the agreed planned position 6 feet to the north of the position it was constructed by Mr Hill. On that scale plan the area of the disputed path lies within the boundary of Mr Sambel’s garden. Dimensions of this plot to the south are 6 feet less than those in the original conveyance. The only way to interpret these facts is that the path was constructed on the land owned by Mr Sambel not in the agreed position on garden owned by Mr Hill [As was stated on the planning application] or owned by Mr Sterry [as had been agreed at the site meeting].
10.10.9 The protracted discussions recorded on file show that Mr Sambel has not
been involved in any way. My conversations with Mr Sambel and Mr Slogget’s user evidence are that Mr Sambel believed the path was not on his land. Mr Hill acting in the privileged position of developer appears to have misled Mr Sambel and Council Officers to believe that the path lay outside his garden. Even after
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the path was constructed Mr Sambel was not involved as Mr Hill advises the county planning department that in his opinion (although he had made the planning application) the cost of the pedestrian access should be borne by Mr Sterry. [ Document 3] Despite the County Council expecting the costs to be borne by Mr Hill, and Mr Hill suggesting they are Mr Sterry’s responsibility it is evident from filed plans and conveyance documents that the garden used to make the path was not owned by Mr Sterry or Mr Hill. Mr Dudfield is Mr Sterry’s successor in title and the status of his ‘user evidence’ needs to be viewed accordingly. If Mr Dudfield was aware that his predecessor in title had agreed to provide garden for a path and that no transfer had taken place then perhaps Mr Dudfield should have believed he owned of the path; unless he was aware that it had been constructed on Mr Sambel’s garden.
10.10.10 There can be no doubt that by constructing the path and by submitting a
planning application Mr Hill intended that path was to permanently deprive Mr Sambel and his successors in title of some of the garden.
10.10.11 It seems clear that the actions leading to the construction of the disputed
path in its current position in 1952 amount to theft as defined by the Theft Act 1968. The planning file contains a scale drawing constructed specifically for the purpose of identifying the route of the proposed new path. Both the position of the proposed path and the dimensions on our conveyance show that our garden has been narrowed to accommodate the now disputed path between our house and the edge of this plot. Filed records, user evidence and our own discussions with Mr Sambel are all entirely consistent on the fact that Mr Sambel was deceived and thus his garden stolen. There is no evidence of Mr Sambel or any subsequent owner of this property before us being aware of this theft and tolerating and acquiescing to the use of the land. As soon as we discovered what had taken place we closed the disputed path.
10.10.12 If further proof were required that the path was not constructed in
accordance with the plan or on land owned by Mr Hill or Mr Sterry then it comes in the form of maps of the estate Mr Hill used in conveyances after 1952.. These maps show the path in the position Mr Hill agreed with the council, not as it is on the ground.
10.10.13 [Document 4] Significantly Mr Sambel’s conveyance does not show the
position of the path in respect to this house so he was denied the easy opportunity to detect what Mr Hill had done to his garden.
10.10.14 The Theft Act applies equally to both intentional and reckless actions that
result in a person being permanently deprived of their garden so it does not matter if Hill intended to deprive Mr Sambell of his land or not. However by stating that they were expecting a planning application to have been made by Mr Sterry it seems that the County Council recognised that garden needed to be transferred from Mr Sterry in order to construct the proposed path in the position agreed with the authority. Although Land Registry records show no transfer of garden from Sterry to Hill has taken place Mr Hill described himself as owner of ‘the garden’ in his planning application for the construction of the path. It is clear from the description of the land as garden that it was no longer development land
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as described in previous applications for works on the estate. It is not clear why the County Council did not require proof of title when approving this application.
10.10.15 Planning applications, scale plans and conveyance documents all support
the fact that this footpath didn’t just come about in an unplanned manner; it was deliberately constructed without the knowledge or permission of the landowner. Its construction severed part of the garden apparently dedicating it as a footpath. Perhaps at the time the Country Council was unaware of this and acted in good faith, not realising it was failing to prevent a theft, but now that this evidence is uncovered I believe the authority has a duty to rectify matters.
10.10.16 When Mr Hill built the path on this garden without the knowledge of Mr
Sambel he set in action a chain of events which resulted in successive owners being similarly deceived. The path has only come about as a result of this deception and not as a result of any intention on the part of any owner to dedicate the garden upon which it stands. The user has not been as a result of the owner’s acquiescence or tolerance of the user as is required by the act; it has been as a result of a deception. This disputed path has come about as a result of the actions of Mr Hill and Mr Sterry and the deception of its rightful owners.
10.10.17 I hope the Commons and Rights of Way Panel will see that even if user
evidence had been honest there would no amount of use of property appropriated by deception which could ever be enough to justify depriving the owner of the right to the peaceful enjoyment of that property. In this case the majority of the user evidence can be seen to be ‘inaccurate’ and the owner of the land a victim of deception with no intent to dedicate.
10.10.18 In summary:
A considerable fraction of the user evidence seems considerably more at variance to contemporaneous records than might reasonably be expected of a simple mistake. The disputed path is not on the line of the planned path agreed with the County Council and is outside of the boundary of the garden of Mr Sterry or Mr Hill. Mr Sambel was a victim of a deception and the severance of approximately 6 feet of his garden to make a boundary hedge and path seems to be covered by the Theft Act 1968. The disputed path seems to have been dedicated by Mr Hill and Mr Sterry. As neither were owners of the land they had no right to do so.
As all user evidence was only made possible as a result of a deception of the landowners it is not reliable to show the landowners’ tolerance or acquiescence of the use. Comments made in my previous letters remain relevant.
Mr and Mrs Wilson, Hilcote, Hilcote Drive, Bourton on the Water
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10.11.1 Mr and Mrs Wilson wrote concerning this application on 17 November 2004, outlining the boundaries of their property (which excluded the claimed route). They commented: “On purchasing our property in 1993, we were aware of the occasional use of the footpath by other residents of Hilcote Drive. We did not seek to clarify details pertaining to the footpath, assuming it was under the auspices of the local council. In 2003 our neighbours, Mr and Mrs Powell, questioned the ownership of the land covered by the footpath. It had come to light that measurements stated in the deeds of their property indicated that the path was included in their plot. In view of the insurance liabilities associated with such ownership, they took the decision to close the footpath. We had no objection to them doing this”.
10.11.2 They wrote on 25 May 2005:
“We write with reference to the latest evidence forms submitted in support of the above application, from Audrey Warne and E S Field. Although the evidence submitted prior to these was not without embellishment, we declined to comment formally to your department in order to preserve amicable relations with all our neighbours.
10.11.3 However, the evidence from Audrey Warne and E S Field includes (very similar) factually incorrect statements that we feel we must contest. To our knowledge and belief, since we moved to our property in August 1993, there has never been any sign at either end of the path marking it as a “footpath” or “public footpath”. We wonder if both Audrey Warne and E S Field could have made a mistake in confusing the path in question with the clearly marked public footpath at the other end of Hilcote Drive?
10.11.4 We would add that, in our view, the path was rarely used by non-residents of
Hilcote Drive, and that the consequences of closing it would have a very limited effect on very few people”.
11. DOCUMENTARY EVIDENCE
11.1 The County Archivist has examined sources in the Gloucestershire County Record Office to see if this footpath is marked in any way and has identified other sources which might be useful in establishing the existence of a path along this route. These sources have then been checked by the Modification Orders Officer.
11.2 The County Archivist replied as follows: “On this occasion I felt that I would
condense my findings into a letter rather than producing a full memo as usual. The reason for this is that it is clear that, even at the time of the Provisional Map (K687/3/14), the area in question was not developed and there is no evidence of the existence of Hilcote Drive. As the intention of the claimed path is presumably to link the Road and Drive, I did not check the usual full range of earlier sources, except to have a look at the Ordnance Survey maps of 1884 and 1922 (sheet 29.13). At those dates the claimed route would have ran through the centre of a field, but there is no evidence of its existence on either map.
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11.3 Instead I concentrated on the two possibly relevant items held which dated from
a period later than the Provisional Map. A general correspondence file of the District Council concerning footpaths in the 1950-75 period (DA 23/132/24) was checked, but was not obviously relevant. Neither directly relevant was another District Clerk’s file concerning the diversion of a footpath in 1963 (DA 23/132/38). However, this file did include a map that illustrated the area in question and showed the existence of Hilcote Drive at the time. It did not however show the claimed route. I was unable to identify any relevant material held here of a more recent date than 1963”.
Planning Documents
11.4 A search was made of planning documents held by Cotswold District Council concerning the laying out of the Hilcote Estate and the claimed path.
(A) Application for Residential Development, Approved, Decision Dated 2
September 1949 [File Number CD 392]
1. Planning order made 2 September 1949 Renewal of permission for building plots made by Mr Hill on 5 July 1949 was conditional on “a 4’6” pedestrian footpath shall be provided, running between plot number 13 and plot number 14 [Hilcote and 2 Hilcote Drive] and giving access from the car turning space to the public highway…in order to provide adequate means of pedestrian access to the east end of the site”
(B) Application for a Bungalow, Approved, Decision Dated 3 March 1951 [File Number CD 392]
1. Application for Planning Permission by L W Hill, dated 22 January 1951 Agent was Mr L W Hill, applicant was Mr H Sambell, Bourton on the Water, who is described as a prospective purchaser. Application was for construction of new dwelling. Permission had been granted for the layout of the estate in 1939. (not copied) Permission granted 3rd March 1951
2. Plan for proposed bungalow, 26 January 1951 Plan dated 26 January 1951, submitted by Mr Hill entitled “Proposed Bungalow at Rissington Road, Bourton on the Water…for Mr H Sambell” Scale 1/8” to 1 foot” Plans include a plan showing the layout of the plots and a path between the two properties, to a scale of 1:500 [although not to scale].
(C) Application for Access, Approved, Decision Dated 6 September 1952 [File Number CD 392]
1. Letter from County Planning Officer to Mr Hill, 1 February 1950 “I thank you for your letter of 25th January and look forward to receiving the plan you mention, showing the new boundary of Mr Sterry’s land and the proposed position of the public footpath”.
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2. Application for Planning Permission by L W Hill (Bourton) Ltd, dated 7th July 1952 Applicant described as owner, application was for a “pedestrian access to bungalow” presently used as garden. Includes map on tracing paper (….H) on which the area of the path where it crosses the verge of Rissington Road is marked in red, which is dated on the front July 1952 and stamped 25 July 1952
3. Letter from E C Boyce, County Surveyor’s Office to the County Planning Officer dated 14th August 1952 Construction of pedestrian access at Bourton on the Water for Messrs L W Hill (Bourton) Ltd) “With reference to the above application, it is understood that permission to layout this estate was granted on the 2nd September 1949, including a pedestrian access from the cul de sac road to the Bourton on the Water – Rissington Classified road. A footpath access had been made by or for Mr Sterrey, but was a private access and not available to the general public to link the estate road with the County road. At a meeting on the site on the 16th February 1952, at which the Chairman of the Planning Sub-Committee was present, it was decided that a Mr Sterrey would make application for approval to the footpath from the cul de sac to the County road and that application would include the closing of the private access to Mr Sterrey’s bungalow. Mr Sterrey agreed to close his present access. An inspection reveals that the new access has already been constructed, which includes work on the highway and that the private access has not been closed. The work, therefore, is unauthorised and I have written as per separate letter pointing out that the concrete work in close proximity to the carriageway is a source of danger and I have asked the Builder to remove such unauthorised work from the highway. I have no objections to the application for a footpath and pedestrian access and recommend the following conditions:- (1) that the work on the highway be carried out to the satisfaction of the Highway
Authority (2) that the existing pedestrian access at the northern corner of Mr Sterrey’s plot
shall be closed by constructing an earth bank of equal height and similar formation to the bank adjoining the access and that suitable hedging be planted on the top of the bank so that the hedge formation is continuous and completely closes the access
I should point out that the footpath has been completed and concreted between the estate road and the County road. Although there is a length of nearly 50 yards, the footpath has been constructed of inadequate width to permit of say two prams being able to pass. A width of 6ft is required by the Ministry of Local Government and Planning Circular No.19. It is not known whether you have agreed to any less width. With regard to the maintenance of the path, I think it should be pointed out to the developers that construction is not such that I could recommend the path to be
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taken over by the County Council for future maintenance. The banks and verges would involve an unreasonable amount of maintenance. If, however, the path is laid 6ft width, I would be prepared to supervise the work so that from a constructional point of view there would be no objection to taking the path over, but there would still be the matter of principle as to whether such a path should be taken over and this, if application were made, would have to be referred to my Committee for a decision”.
4. Application for Planning by Messrs L W Hill (Bourton) Ltd concerning Hillcote Building Estate, described as “Pedestrian access, to link Estate Road with Rissington Road, dated 6 September 1952 Conditions attached to consent: (a) that the work on the highway be carried out to the satisfaction of the Highway
Authority (b) that the existing pedestrian access at the northern corner of Mr Sterry’s plot
shall be closed by constructing an earth bank of equal height and similar formation to the bank adjoining the access, and that suitable hedging be planted on the top of the bank so that the hedge formation is continuous and completely closes the access.
(c) That the applicant shall erect a handgate to open inwards, at the point where the proposed footpath joins the public highway
The reasons for the Council’s decision to grant permission for the development, subject to compliance with the conditions hereinbefore specified are: (a) the (sic) ensure that the proposed work shall not prove dangerous to users of the highway (b) to ensure that pedestrian access to this estate shall be confined to one public access (c) to prevent cattle gaining access to the planning site
5. Letter from Mr Hill of L W Hill (Bourton) Ltd to Mr Wersnip of
Gloucestershire County Planning Department dated 9th September 1952 Re: Planning Reference no. CD 392(b) Pedestrian Access, Hillcote Estate “Many thanks for your communication of the 6th instant. As this access is contrary to the original layout and, in my opinion, not required, I think you must look to Mr Sterrey to pay for any work, as this was caused by his former illegal entrance.”
12. OTHER OBSERVATIONS 12.1 Bourton on the Water Parish Council
J R Nicholson, Clerk to Bourton on the Water Parish Council, replied by letter dated 11 November 2004: “Further to your letter dated 6 October 2004, the contents of which were discussed at the latest meeting of Council. Based on the information contained in your letter and the accompanying sketch plan Council wishes to support the application”.
12.2 Cotswold District Council
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Malcolm Watt, Heritage Manager at Cotswold District Council, was consulted by letter dated 6 October 2004. Receipt of the letter was acknowledged on 11 October 2004. No further response was made.
12.3 County Councillor
Councillor Charles Gillams, the County Councillor for Bourton, which includes Bourton on the Water Parish, was contacted by letter regarding this application on 6 October 2004 but has not as yet responded to this consultation.
12.4 Ramblers’ Association
The North Cotswolds Group Footpath Secretary Mrs Elizabeth Bell responded by e-mail dated 22 October 2004: “We have been to investigate this path today. After careful consideration we have decided that [it] would be of very little use to the Ramblers’ Association walkers if it were cleared and made into a public right of way. We vaguely recall that about 12 years ago we may have walked along it once. The only reason R.A. walkers might wish to use it when walking from Bourton on the Water is to gain access to HBW 29 but this is easier from the Rissington Road. When walking from B to A on your map there is a dangerous exit point on to a very busy road, with hardly any grass verge. In particular, any physically handicapped person would not feel safe meeting the road at point A. Walking from A to B there are likely to be vehicles emerging from any of the houses in the cul de sac so that it is not a safe place to exit. There would also be the problem of keeping the path clear, cutting the hedges and repairing the ground. We spoke to the owner of the land, and two other passing residents but the conversations did not alter our view that we would not use the path if it were opened up. We would walk down Hilcote Drive and Rissington Road, on the pavement”.
12.5 Open Spaces Society
Gerry Stewart, the Open Spaces Society Local Correspondent for the Cotswolds was consulted by letter dated 6 October 2004. No response has been received.
12.6 County Divisional Surveyor
The County Divisional Surveyor was consulted with regard to maintenance of the path; they did not have any information on this matter.
13. APPLICANT 13.1 The applicant, Mr Sandoe, was given the opportunity to comment on the
landowners’ evidence on 27 February 2006. He replied by telephone on 28 February 2006 to say that the landowners had more or less admitted that the path was public, for example by saying that Mr Oakey had used the path several times a year between 1993 and 2003.
13.2 He was also concerned by the comment from Mr Powell that “all users are
known personally to Mr Oakey”, which makes it sound like he was Mr Oakey’s lackey. He wished to point out that as applicant he had collected the evidence himself with any help from anyone else.
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14. LEGAL COMMENTS AND CONCLUSIONS 14.1 Section 53 (3) (c) (i) of the Wildlife and Countryside Act, 1981 relates to the
discovery by the Authority of evidence that shows that a right of way that is not shown on the map and statement subsists, or is reasonably alleged to subsist, over land in the area to which the map relates.
14.2 Section 31(1) of the Highways Act 1980 states that where a way over any land,
other than a way of such character that use of it by the public could not give rise at Common Law to any presumption of dedication, has been actually 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 period of 20 years in sub-section (1) is to be calculated retrospectively from the date when the right of the public to use the way is brought into question through an overt act by the landowner which makes it clear to the public that their right is being challenged. The twenty years usage must furthermore be “without interruption” and the requirements of Section 31 will not be met if “there is sufficient evidence that there was no intention during that period to dedicate it”.
14.3 Section 31 (9) of the Highways Act 1980 says that nothing in this Section
operates to prevent the dedication of a way as a highway being presumed on proof of user for any less period than 20 years. Paragraph 12 of Annex B of the Department of Environment Circular 2/93 states that before making an order the surveying authority must be satisfied that the evidence shows on the balance of probability that a right of way of a particular description exists.
14.4 Thus to fulfil the requirements of Section 31 of the Highways Act, we need to
determine whether: (a) the way was of such character that use could give rise to a presumption
of dedication under common law (b) there has been use, as of right, by the public over twenty years (c) that the right of the public has been brought into question by an overt act
by the landowner (from which time the twenty years is calculated retrospectively)
(d) such use has been without interruption (e) there is sufficient evidence that there was no intention during that period
to dedicate it
14.5 Mr Powell questions whether the character of the path was such that it could not be dedicated, on two grounds,
(a) firstly that it was so close to the dwelling house that it was incapable of being dedicated
(b) that the path could not be dedicated without the knowledge of the mortgage provider
14.6 Mr Powell draws our attention to the case Thornhill v Weeks, which concerns an
easement through a stable yard. In Thornhill v Weeks 1914, Astbury J observed that: it seems impossible that a lady who resided there would at once
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start dedicating a way through her stable yard … In trying to form an opinion whether an intention to dedicate has existed, one must have some regard to the locality through which the alleged path goes. The fact that it goes through the stable yard [close to the house] is strong enough to raise a presumption against an intention to dedicate. The difference between the situation in Thornhill v Weeks and the current claim is that, unlike the position with a stable yard, this path is enclosed, follows a defined route, was laid out as a public footway and is contemporary with the estate dwellings that it serves. There is even a dropped kerb off the footway on the opposite side of the public highway which it adjoins.
14.7 Mr Powell raised the question of a mortgage holder’s capacity to dedicate. The
fact of ownership is not relevant, use raises statutory presumption of dedication. Under Section 31 of the Highways Act 1980 (or long user at Common Law) we do not need to enquire into the landowner’s intentions or who they are. As long as there is a person or body capable of dedicating, then the presumption of dedication arises if the statutory conditions are met. The presumption does not arise only in cases where the owner for all or part of the period does not have the capacity to dedicate, for example a lessee on his own. A lessee cannot dedicate without a freehold owner, however dedication can be implied from long user. The same principle would apply to a mortgagee.
14.8 We now need to consider whether there has been a full 20 years use by the
public and, in order to do this, we have to firstly ascertain whether there has been an overt act on the part of the landowner to bring it home to users that their right is being challenged. The 20 years use, for the purposes of Section 31, is to be dated retrospectively from this date of challenge. There is no fixed method by which the public’s right is brought into question, though one (the erection of a notice) is expressly referred to in Section 31. The words “or otherwise” in Section 31(2) leave the matter at large. The methods can range from a notice on site denying the public the existence of a right of way, the locking of a gate or seeking a declaration that there is no highway over the land in question. Whatever means are employed, it should be sufficient “to make it likely that some of the users are made aware that the owner has challenged their right to use the way as a highway… The persons to whom the challenge has to be brought home are the users of the way.” Mr Powell, who asserts that he owns the land over which the claimed path runs, blocked off the path at both ends in July 2003 with the intention of preventing public use of the claimed route. This has been taken as the action that brought the right of the public to use the path into question. The relevant 20-year period is therefore 1983 to 2003.
14.9 There is however some doubt as to whether Mr Powell is in fact the owner of
the land over which the claimed route runs. The path is shown on the Land Registry filed plan as outside the boundaries of both Hilcote and 2 Hilcote Drive. The path has been in physical existence since c.1952; since that time neither of the adjoining property owners have asserted that they own this land until Mr Powell first made this claim in 2003. Mr Powell’s claim to title is based on a comparison that he has made between his conveyance and a measurement of the plot that he has made of his garden, from which he states that the plot is 6 foot narrower than that shown on the conveyance. The claimed path is
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approximately 3-4 foot in width. It is not known whether the claimed path is shown on Mr Powell’s conveyance. Later conveyance plans for the estate do show the claimed path as a physical feature; they are insufficiently accurate to be considered as scale plans. The relative position of the property boundaries and also the dwelling houses at Hilcote and 2 Hilcote Drive is not shown accurately and the block plan of the bungalow at 2 Hilcote Drive is not shown as it was actually laid out. Furthermore, the turning circle at the end of the cul de sac is shown differently on the conveyance plans to how it was actually constructed. It remains uncertain as to who owns the title of this section of the land; it may remain with L W Hill (Builders) Ltd or their successors.
14.10 We hence have to consider, that if Mr Powell is not the landowner, whether the
bringing into question can be by someone other than the landowner. The Planning Inspectorate take the view that it is not necessary for it to be the landowner who brings into question the right of the public to use the way. The date of calling into question is simply the date when, as the result of some action, the public’s entitlement to use the way was put in issue. There are no words in Section 31(2) of the 1980 Highways Act confining this action to be by or on behalf of the landowner. It simply sets the date from “…when the right of the public to use the way is brought into question.” This view is confirmed by Applegarth v Secretary of State for the Environment, Transport and the Regions (2001) in which it was stated that anybody with an interest could bring into question the right of people to use the path and this needn’t necessarily be the landowner. The burden lies on whoever needs to rebut the presumption to show that the owner of the path had not intended to dedicate the path as a public highway. Whilst in practical terms, the bringing into question will be by or on behalf of the landowner, it does not have to be so.
14.11 The 20 years use must be as of right, that is without force, secrecy or
permission. It is not questioned that use of the path has been open and without force. Mr Powell contends that had he known that the path was within his property he would have closed it sooner, but he does not argue that he prevented public use of the path between 1994 when he purchased the property and its closure in July 2003. It does, however appear that use of the path has in two cases not been as of right, in that use was with deemed permission.
14.12 In total, eight user evidence forms were completed by people who have used
the claimed route. The user evidence forms are summarised in attachment …..C. User evidence goes back to 1930, although it should be noted (see below) that building on the estate commenced c.1949, and it appears that the path came into existence between 1949 and 1952. It is possible that the route follows the course of an earlier path that predates the estate, but there is no Ordnance Survey mapping for the 1930s that could confirm this.
14.13 Use by Mr Barker, who was a postman who used the path to make his
deliveries, is not as of right and can be discounted. Mr Fathers’ use seems to have been solely to deliver medicine and we can thus discount his evidence. Mr Fardon, who has used the path on foot or bicycle since 1953, states that he was usually delivering notices of organisations, but not wholly, and hence we can consider his evidence. Mr Dudfield is a former resident of Hilcote, and
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describes using the path for work and pleasure between 1960 and 1993. Mr Oakey states that he has used the path on foot, from home to village, for shopping and entertainment, from 1930 to present. As is noted in the paragraph above, the estate was built from 1949 onwards and the path as a physical feature came into between 1949 and 1952, as part of the development. Mr Sloggett notes use between 1960 and present. We thus have four path users, who have used the path as of right over a twenty-year period. In addition, there has been more recent use by Audrey Warne, on foot, rambling, between 2000 and 2003, and by Mr E S Field, between 2001 and 2003, who was walking between Hilcote Drive and Rissington Road for leisure.
14.14 Mr Powell has questioned whether Ms Warne and E S Field were not confusing
the claimed route with the public footpath to the east. He also questions the reliability of their evidence on the basis of their description of the use of green netting to obstruct the path “and the unshakeable conviction that the path they used was clearly marked by footpath signs”. The description of the path and the map accompanying their evidence form make it clear that they are referring to the claimed route. It is also to be noted that when the path was inspected on 19 April 2004, it was obstructed at its southern end by green mesh fencing and on the north by green raffia type screening, which broadly accord with the witnesses’ description of green netting. No other witnesses make any reference to a footpath sign off the Rissington Road.
14.15 There is no statutory minimum level of user required for the purpose, and the
matter does not seem to have been tested in the courts. However it is clear that there has to be a sufficient level of use for the landowner to have been aware of it, and to have had the opportunity to resist it if he chose. In Hollins v Verney (1884) it was said that: No user can be sufficient which does not raise a reasonable inference of such a continuous enjoyment and that no actual use can be sufficient to satisfy the statute…unless the user is enough to carry to the mind of a reasonable person (owner, etc) the fact that a continuous right of enjoyment is being asserted and ought to be resisted…It follows that use of a way is less cogent evidence of dedication if the landowner is non-resident- at any rate, if the owner had no agent on the spot- than if he is resident. If the landowner did not know that the way was being used, no inference can be drawn from his non-interference.
14.16 Use of the way should also have been by a sufficient number of people to show
that it was use by the public, that is the people as a whole, or the community in general, and this may well vary from case to case. Very often the quantity of valid user evidence is less important in meeting these sufficiency tests than the quality (i.e. its cogency, honesty, accuracy, credibility and consistency with other evidence).
14.17 It was held in Mann v Brodie (1885) that the number of users must be as might
reasonably have been expected, if the way had been unquestionably a public highway. Watson J said: If twenty witnesses had merely repeated the statements made by the six old men who gave evidence, that would not have strengthened the respondents’ case. On the other hand the testimony of a smaller number of witnesses each speaking to persons using and occasions of
27
use other than those observed by these six witnesses, might have been a very material addition to the evidence. Arguably therefore, the evidence contained in a few forms may be as cogent- or more cogent- evidence than that in many. However, Dyson J in Dorset 1999 did not question that the Inspector had found the evidence contained in five user statements insufficient to satisfy the statutory test, even though the truth of what was contained in them had been accepted.
14.18 The path performs a purely local function of providing access from the western
part of the Hilcote Estate to the Rissington Road and thence to the centre of Bourton. The eastern part of Hilcote Drive is private and unadopted, and this private part would have to be crossed to gain access to the public footpath which leads south to the reservoirs, and for which there is a separate entrance on to the Rissington Road. Essentially, this path provides a short cut to half of a cul de sac estate, and is arguably of benefit to a maximum of ten properties; for the remainder of Hilcote Drive, access is more convenient and safer from the tarmaced Hilcote Drive itself.
14.19 This is borne out by the comments of Mr Sambell, the former owner of 2 Hilcote
Drive, reported to Mr Powell, that he “did not recall anyone other than residents of Hilcote Drive regularly using the disputed path”. The present owners of Hilcote, Mr and Mrs Wilson commented in their submission of 17 November 2004 that “On purchasing our property in 1993, we were aware of the occasional use of the footpath by other residents of Hilcote Drive. We did not seek to clarify details pertaining to the footpath, assuming it was under the auspices of the local council”. In their further submission of 25 May 2005 they state that “…in our view, the path was rarely used by non-residents of Hilcote Drive, and that the consequences of closing it would have a very limited effect on very few people”. Mr and Mrs Powell, in their Landowner Evidence Form (signed 30 November 2004), in reply to the question “Have you seen, or been aware of, members of the public using this way? they reply “Yes. Our neighbours and friends have been using the disputed footpath”. These comments by the current and a previous landowner do confirm that the path has been used, primarily by residents of Hilcote Drive.
14.20 As use of the path is limited to that of a local link to a small estate, we should
not expect a large amount of user evidence even though the path is on the edge of a large village. It would also appear from the comments of the witnesses that the residents of Hilcote Drive were reluctant to give evidence in support of the claimed path, as they felt that this would assist the planning application for the development of The Willows into six or more residential properties and that furthermore they felt that the path might compromise the security of their properties.
14.21 We now need to consider whether the twenty-year period has been without
interruption. “An interruption” has been defined as “an actual and physical stopping of the public’s enjoyment” (Mersham Manor Ltd v Couldson Urban DC [1937]) as opposed to an act which merely challenges the public’s right. It is not a mere absence in the continuity of use. Moreover, such interruption must be with the intention to prevent public use. It is not sufficient if the interruption is
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for some other purpose. There is no evidence that the public’s enjoyment of the route has been interrupted during the twenty-year period.
14.22 The current landowner argues that as previous landowners had not been aware
that they owned the land over which the claimed path runs they could not therefore have had any intention to dedicate the path.
14.23 The elements for creation under common law are that there is user, which is as
of right, and that this use raises a statutory presumption of dedication. The fact of use and the acquiescence of the landowner lead to dedication (through user and acceptance). The presumption of dedication arises from the landowner’s inaction, not the belief of the users.
14.24 In R v Petrie (1855), the evidence showed that a street had been laid out and
de facto used as a highway for six or eight years, when the defendants obstructed and partially inclosed it for more than sixteen years; the jury were directed that they might infer a dedication from the evidence of the user, and the Court of Queen’s Bench upheld the direction. In this instance, a path has been laid out as an enclosed and surfaced pedestrian footway, as a condition to planning permission for developing the estate to which it leads and used as a highway for more than forty years, without challenge or interruption.
14.25 The question of whether the land is owned by Mr Powell or the estate of L W
Hill (Builders) Ltd is irrelevant to a consideration of whether the path has been dedicated as a public highway. The presumption from user must arise from use as of right and the length of time of user varies with the circumstances. Pratt and Mackenzie’s Law of Highways states that “The presumption arising from long uninterrupted user of way by the public is so strong as to dispense with all inquiry into the actual intention of the owner of the soil and it is not even material to enquire who the owner of the soil was”.
14.26 R v East Mark (1848) Lord Denman said “The law… has led the courts into
unimportant inquiries as to there being an intention to dedicate a road to the public. It seems to me that if… there has been a long user as a public road, I am not at liberty to inquire into the question whether there was such an intention or not… If persons have found a road used as public, and have built a town by it, are we to enter into the question of whether it was intended to dedicate the road or not? On the contrary I think that the mere fact of the enjoyment of a public road, for a great length of time, ought to be perfectly conclusive of such an intention, and it is immaterial to inquire in whom the soil was vested as owner”.
14.27 Coleridge, J said in R v Petrie (1855) “I take the principle to be that when there
is satisfactory evidence of such a user of the road, as to time, manner, and circumstances, as would lead to the inference that there was a dedication by the owner of the fee, if it was shown who he was, it is not necessary to inquire who the individual was from whom the dedication, necessarily inferred from such a user, first proceeded. It must frequently happen that a prosecutor is in entire ignorance of the state of the title to lands over which a right of way exists. All that he knows, and all that can reasonably be asked to prove, is that the right
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has been enjoyed by the public; if he does give satisfactory evidence of a sufficient user, the proper inference is that there was a dedication from a person who could dedicate”.
14.28 Williams, J in Dawes v Hawkins (1860) “The law is clear that if there has been a
public uninterrupted user of a road for such a length of time as to satisfy the jury that the owner of the soil, whoever he might be, intended to dedicate it to the public, this is sufficient to prove the existence of a highway, though it cannot be ascertained who the owner of it has been during the time the road has been used by the public”.
14.29 The longer that such use goes on, the stronger is the presumption of dedication
and the better the case. In this case we have forty years of uninterrupted user since time as the way was constructed and laid out for public use c.1952.
14.30 The case law cited by Mr Powell is not directly relevant to the issue of capacity
to dedicate a public highway. He cites the cases of Mills v Silver, Union Lighterage v London Graving Dock Company, Diment v Foot, Davies v Du Paver (10.5.6 to 10.5.14). These cases relate to the claiming of an easement.
14.31 Mr Powell refers to the Billson case at 10.5.15. The point made by Justice
Sullivan in Billson concerning evidence of a lack of intention to dedicate during the twenty-year period has been further examined in the recent Godmanchester case. Concerning the claim period the words during that period were not to equated with throughout that period, and that if there is sufficient evidence of an act by the landowner during that period that clearly showed that he had no intention to dedicate, then that would defeat a claim for dedication under Section 31(1) of the Highways Act 1980. In this case there appears to be no evidence whatsoever that either of the adjacent landowners had taken any action prior to July 2003 (when Mr Powell obstructed the claimed route) which could in any way be construed as showing a lack of intention on the part of the landowners to dedicate.
14.32 Under Section 32 of the Highways Act 1980, when 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 in 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 documentary evidence does not assist us in this case. The origins of the route as a physical feature are connected with the laying out of the Hilcote Estate, from 1949 onwards. The planning documents held by Cotswold District Council allow us to effectively date the construction of the path.
14.33 Although evidence of use of the path dates back in one case to 1930, when the
land over which the claimed route runs was farmland, the path appears to have been laid out between 1949 and 1953.
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14.34 Planning permission was granted to lay out and construct dwelling houses on the Hilcote Estate to a local builder Mr L W Hill in 1939; the advent of the Second World War delayed construction, and Mr Hill applied in July 1949 for a renewal of permission for building plots. This renewal of permission was made by planning order dated 2 September 1949, on the condition that
“a 4’6” pedestrian footpath shall be provided, running between plot number 13 and plot number 14 [Hilcote and 2 Hilcote Drive] and giving access from the car turning space to the public highway…in order to provide adequate means of pedestrian access to the east end of the site”
14.35 Mr R C Delderfield noted in his letter of 20 November 2004, which formed
enclosure 4 to Mr Powell’s response of 30 November 2004 “When only a few houses had been constructed I and my wife regularly visited [her aunt who bought Windrush View, Hilcote Drive] a year after it was built. I remember that before the road was made up the disputed path was made by the builder of this estate, L W Hill, as a temporary facility for the first residents of the development. He constructed it in response to their complaints about the inconvenience of having to cross his building site to access the Rissington Road at the road junction”.
14.36 An application for planning permission for a new dwelling (the current 2 Hilcote
Drive) was made on 22 January 1951. The form of application lists the agent as Mr L W Hill, and the applicant as Mr H Sambell, Bourton on the Water, who is described as a prospective purchaser. Accompanying the application was a plan showing the elevations of the proposed dwellings and also a plan showing the layout of the plots and a path between the two properties (Hilcote and 2 Hilcote Drive), to a scale of 1:500. The plan is entitled “Proposed Bungalow at Rissington Road, Bourton on the Water…for Mr H Sambell”. Permission for the construction of what is now 2 Hilcote Drive was granted on 3rd March 1951.
14.37 The Land Registry entry for 2 Hilcote Drive, includes within the Charges
Register, reference to “a conveyance of the land in this title and other land dated 5 April 1951 made between (1) Leonard William Hill (Vendor) and (2) Harold Henry Sambell (Purchaser). The Land Registry entry for Hilcote, refers to conveyances between (1) Leonard William Hill and (2) Oscar Henry Sterrey, made on 10 May 1949 and 30 June 1950. Mr Hill may have retained land to construct the pedestrian access between Hilcote Drive and the Rissington Road.
14.38 A further application was made for an access between Hilcote and 2 Hilcote
Drive by Mr Hill in 1952; this relates to the pedestrian footpath which was to be provided by Mr Hill as a condition of renewing permission to develop the Hilcote Estate building plots made by the planning order of 2 September 1949. This followed a site meeting held on 16 February 1952 and some correspondence between Mr Hill and the County Planning Officer concerning the path and an illegal private access to Rissington Road made by Mr Sterrey.
14.39 On 1 February 1950, the County Planning Officer wrote to Mr Hill:
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“I thank you for your letter of 25th January and look forward to receiving the plan you mention, showing the new boundary of Mr Sterry’s land and the proposed position of the public footpath”.
Mr Sterry was the then owner of the property now known as Hilcote, where Mr and Mrs Wilson now live.
14.40 The application by L W Hill (Bourton) Ltd, dated 7th July 1952, in which the
applicant is described as the owner, was for a “pedestrian access to bungalow” presently used as garden. Included with the application was a map dated July 1952, which showed a path between Hilcote and 2 Hilcote Drive, which is marked “Foot Path”. That part of the path which crossed the verge of Rissington Road is marked in red.
14.41 Mr E C Boyce of the County Surveyor’s Department of Gloucestershire County
Council wrote to the County Planning Officer on 14 August 1952. He referred to the pedestrian access that was a condition of laying out this estate, when planning permission was granted in September 1949 and a private access that had been constructed by Mr Sterrey from the northern corner of his plot to the Rissington Road (i.e. not on the line of the claimed path). A meeting had been held on site on 16 February 1952, at which the Chairman of the Planning Sub-Committee was present, in which it was decided that Mr Sterrey would make an application “for approval to the footpath from the cul de sac to the County road” and that the application would include the closing of the private access to Mr Sterrey’s bungalow. An inspection revealed that the new access had already been constructed (by August 1952) and that Mr Sterrey’s private access (a different route) had not been closed. Mr Boyce had no objections to the application “for a footpath and pedestrian access” but considered that the concreting next to the carriageway was dangerous and should be removed by the Builder. He recommended two conditions: that the work be carried out to the satisfaction of the Highway Authority and “that existing pedestran access at the northern corner of Mr Sterrey’s plot shall be closed by constructing…” [an earth bank and providing suitable hedging so that this access was completely closed]. He then pointed out that the footpath had been completed and concreted between the estate road and the county road, but that it had been constructed of inadequate width as “a width of 6 foot is required by the Ministry of Local Government and Planning Circular No.19. It is not known whether you have agreed to any less width”. [The 1949 consent specifies a width of 4’6”]. He wished it to be pointed out to the developers that construction was not such that he could recommend the County Council to take on future maintenance unless the path was laid out to 6 foot width.
14.42 The application for what was described in the decision letter as “Pedestrian
access, to link Estate Road with Rissington Road” was approved on 6th September 1952. There were conditions attached to the consent: that the work on the highway be carried out to the satisfaction of the Highway Authority; that Mr Sterrey’s pedestrian access be blocked by an earth bund and hedging planted on top and that a handgate be erected at the point where the proposed footpath joins the public highway. The reasons for the conditions imposed by the Council include “to ensure that pedestrian access to this estate shall be confined to one public access”
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14.43 Mr Hill wrote to the Planning Department on 9 September 1952 “As this access
is contrary to the original layout and, in my opinion is not required, I think you must look to Mr Sterrey to pay for any work, as this was caused by his former illegal entrance”. As the path had already been completed, other than the provision of a hand gate, this cost presumably refers to the bund and hedging related to the blocking of Mr Sterrey’s entrance.
14.44 The points that we can draw out from the planning documents are that :
(a) planning permission for development of the estate in 1949 was conditional on the provision of a pedestrian footpath between Hilcote and 2 Hilcote Drive of 4’6” width
(b) this path does not appear to have been constructed until 1952 (c) Mr Sterrey, the then owner of Hilcote, had in the meantime constructed an
unrelated pedestrian access from the northern corner of his plot to the Rissington Road
(d) a further application was made by Mr Hill (as owner) for a pedestrian access between Hilcote and 2 Hilcote Drive in July 1952
(e) this application by Mr Hill (which was granted) was retrospective as the path had been laid out between February 1952 and August 1952
(f) that the County Council, who in 1949, had insisted that development of the estate be conditional on the provision of a pedestrian footway, were reluctant to adopt the footway as constructed in 1952, as it did not meet certain standards of construction or a minimum width of 6 foot. They also attached the condition that a hand gate should be provided where the footpath joined the public highway and stated that “pedestrian access to this estate shall be confined to one public access”
(g) The claimed route was not at the time adopted by the Highway Authority, and there was no express dedication of the claimed way as a highway
14.45 The planning history allows us to see a process whereby a field was bought by
a developer, planning permission sought for development, a path laid out as a planning condition of the development, and the individual plots built upon and sold to individual purchasers. The County Council were willing to adopt the path provided that it was widened; it does not appear that this was done.
14.46 Mr Powell states in paragraph 10.10.3 that Mr Sterry had previously constructed
an illegal private access, which “was not on the same line as the currently disputed path but joined the Rissington Road at the other corner of his garden closest to the village. Mr Sterry attended planning meetings to resolve the problem. As part of this solution Mr Sterry had agreed to provide some garden to construct a public footpath” [my italics]. The documents which are being referred to here are presumably C 1-5. No mention is made of Mr Sterrey providing any land to construct a public footpath. The correspondence relates to a site meeting, following on from which Mr Hill was instructed to block off Mr Sterrey’s illegal private entrance with a bund and hedge; Mr Hill was reluctant to pay for this as he considered that the problems had been of Mr Sterrey’s making. It is clear from the letter of Mr Boyce (of the County Council) of 14 August 1952 that the path had been constructed at some point between the site meeting on 16 February 1952 and the time of writing. Mr Boyce considered that
33
the estate path, which was a condition of the planning consent to develop the estate, was inadequate in terms of its width, and wouldn’t be adopted by the County until certain works had been done.
14.47 In paragraph 10.10.7 Mr Powell states “County Council officers anticipate Mr
Sterry to have made the planning application to change his garden to form a new path”. This is an assertion made by Mr Powell, that is not borne out by the evidence. The Boyce letter of 14 August 1952 refers to the site meeting in February where “it was decided that a Mr Sterrey would make application for approval to the footpath from the cul de sac to the County road and that application would include the closing of the private access to Mr Sterrey’s bungalow. Mr Sterrey agreed to close his present access”.
14.48 While it is not disputed that Mr Hill had already sold off the land to form both
plots, he may have retained land to construct the footway. Certainly the path was a condition of the planning permission, it is shown on the planning application submitted by Mr Hill (for Mr Sambell) to construct his bungalow, and it is also shown on the application for an access made by Mr Hill in July 1952.
14.49 In paragraph 10.10.8 Mr Powell refers to “A scale drawing of the agreed line of
the proposed new path is held on file by the District Council. It shows the agreed planned position 6 feet to the north of the position it was constructed by Mr Hill. On that scale plan the area of the disputed path lies within the boundary of Mr Sambel’s garden”. The plan (….H), although drawn to a scale of 1: 500 is not accurate, as is shown by comparison with modern mapping. Neither does it show “an agreed line”; it is a map accompanying a planning application for retrospective permission for a pedestrian footway. The map is not sufficiently accurate to be considered a scale plan. The relationship between the positions of the houses Hilcote and 2 Hilcote Drive is not surveyed accurately, and the block plan of the bungalow at 2 Hilcote Drive is not shown as it was actually laid out. Furthermore, the turning circle at the end of the cul de sac is shown differently on the plan to how it was actually constructed.
14.50 In paragraph 10.10.11 Mr Powell alleges that the path was laid out in 1952 over
Mr Sambell’s land, without his knowledge, in a different position to that shown on the conveyances, and that this deception falls within the scope of the Theft Act 1968 and invalidates the claim. Mr Powell states “The planning file contains a scale drawing constructed specifically for the purpose of identifying the route of the proposed new path…” and that the dimensions on his conveyance show that his garden has been narrowed to accommodate the path between his house and the edge of this plot. The plan to which he refers is presumably that plan submitted in support of the application to create a pedestrian pathway (….H) in 1952. The comments about scale plans in the preceding paragraph apply.
14.51 The essential facts in this case are that a path was laid out and surfaced by a
developer, and irrespective of whether it was laid out in exactly the same position as shown on a planning document that cannot be considered to be a scale drawing, it has been used for a period of over fifty years, seemingly without interruption or challenge. As outlined above, for the purposes of
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dedication of a public right of way, it is irrelevant whether the owner of the land is Mr Powell or the Estate of L W Hill. The important point is that the land was capable of being dedicated as a public highway and that such dedication can be inferred from both the user and the inaction of the landowner in preventing such use.
14.52 Mr Powell refers to the Mayhew case (10.5.20). It is unclear as to the relevance
of this case, as it is concerned with the interpretation of the phrase discovery of evidence within the context of Section 53 (3) (c) of the Wildlife and Countryside Act 1981. The court’s view in Mayhew was that the meaning of “to discover” is to find out or to become aware, and hence evidence that had previously been known to the authority could be considered when determining applications under Section 53 of the 1981 Act.
14.53 To sum up, the important points in this case are:
(a) R v Petrie- the laying out and surfacing of the path as a physical feature is important to the issue of whether a public highway has been dedicated
(b) the planning documents between 1949 and 1953 refer to the route as a pedestrian link, provided for public use, which only remained unadopted by the County Council because it had not been laid out to a sufficient width
(c) The path was laid out in 1952 as an enclosed and surfaced way; the provision of a dropped kerb on the footway alongside Rissington Road, opposite the start of the claimed route, should also be noted
(d) The path is a local link only, and hence we should expect less evidence of use
(e) whether the landowner is Mr Powell or L W Hill (Bourton) Limited’s successor in title is irrelevant to the issue of dedication. The fact of use and the acquiescence of the landowner lead to dedication (through user and acceptance). The presumption of dedication arises from the landowner’s inaction, not the belief of the users.
(f) There has been no interruption to use of the path prior to the bringing into question in July 2003; there is no evidence prior to 2003 of a lack of intention to dedicate on the part of the landowner
14.54 In consideration of the above, it is the recommendation of the officers that on
the balance of probabilities an order be made to add the claimed route to the Definitive Map of Public Rights of Way as a public footpath.
15. APPENDICES
A. Location Map 1:10,000 B. Large Scale Map of Hilcote Drive area, 1:1,000 C. Summary of Public Path Evidence Forms submitted D. Letter from Mr R Delderfield, 20 November 2004 E. Letter from Andrew Houldey, Gloucestershire County Council, to Mr Huw Powell,
regarding human rights, 21 June 2005 F. Ordnance Survey 1:2,500 map SP 1619-1719 (1978) and SP 1620-1720 (1977) G. Plan submitted with application for a bungalow for Mr H Sambell, January 1951
(based on a tracing made from the original with Cotswold District Council)
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H. Plan submitted by L W Hill, July 1952, regarding pedestrian access (based on a tracing made from the original with Cotswold District Council)
I. Map used by L W Hill for conveyances (as submitted by Mr Powell)
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APPLICATION FOR A MODIFICATION ORDER FOR AN ADDITIONAL LENGTH OF PUBLIC FOOTPATH FROM HILCOTE DRIVE TO RISSINGTON ROAD, BOURTON ON THE WATER
SUMMARY OF PUBLIC PATH EVIDENCE FORMS SUBMITTED IN 2004 and. 2005
Period of Frequency Comments
No Name Address of Witness Purpose of Use Other Remarks (by Director of
time covered of Use Environment
1 Peter Barker 6 Rissington Road, 1965-1999 Regularly On foot, access to Witness notes that path Path used by Bourton on the Water Hilcote Drive recently obstructed-boarded witness marked on entrance adjoining No.2 map. Occupation Hilcote Drive. He adds "As I given as "former am retired I no longer use postman 33%2 footpath as such, only in my years". Use not as capacity as postman as stated" of right
2 Benjamin 31 Park Farm, Bourton 1960-1993 Daily On foot, to get to Witness states "I lived at Path used by Robert on the Water work and pleasure, Hilcote Bungalow for 33 witness marked on Dudfield Hilcote Bungalow years". He does not note any map.
to Rissington Road obstructions, and under, permission states "Not required"
3 Raymond Gorse Leigh, Rissington Fifty years, Several times Foot or cycle, Witness notes that path not Path used by James Road, Bourton on the moved to a year usually delivering obstructed until recently on witness marked on Fardon Water Gorse Leigh notices of entrance end from Rissington. map.
1953 organisations He states "Taken for granted Dramatic Group or was for public access" Horticultural Society
No Name Address of Witness Period of time covered
Frequency of Use Purpose of Use Other Remarks
Comments (by Director of Environment)
4 Brian G The Fourstones, Known 43 On average From Chemist shop Witness adds "declined to buy Path used by Fathers Rissington Road, years, used not more than at 1 High Street adjacent house in the early witness marked on
_ Bourton on the Water 1960-1980 six times a Bourton to various eighties considered this path map. year houses in Hilcote would be too intrusive" Drive, delivery of medicine
5 William Riverside, Hilcote 1930 present 3 or 4 times On foot, home to Under obstructions witness Path used by Oakey Drive, Bourton on the per week village, shopping, notes "Not until recently, both witness marked on
Water - entertainment ends of path barred". He adds map. "The present road into Hilcote Drive off Rissington Road used to be the farm entrance. The path from Rissington Road to Hilcote Drive has the services to this estate underneath the path".
No Name Address of Witness Period of time covered
Frequency of Use Purpose of Use Other Remarks
Comments (by Director of Environment
6 George Nethercote Cottage, Known 42 Once a On foot, visiting Witness notes that Mr Powell Path used by Sloggett. Rissington Road, years, used fortnight? friends in Hilcote of 2 Hilcote Drive gave notice witness marked on
Bourton on the Water from 1960 to Drive or on walks of his intention to close the map. present across the fields path week commencing 14-7 03 and that it was then completely sealed off the following week. He adds: "The path has always been regarded as a public path and, I am told, existed before the building of the houses in Hilcote
Drive ... The first owners of both properties, either side of the path, still live in the village and both assure me that the path was never considered to belong to either of them."
No Name Address of Witness Period of time covered
Frequency of Use - Purpose of Use Other Remarks
Comments (by Director of Environment)
7 Audrey Oxmour House, From 2000 to 20 to 30 On foot, rambling Witness notes a signs at Path used by Warne Whiteshoots Hill, 2003 times a year from Bourton to each end of path. She claims witness marked on
Bourton-on-the-Water access the the path has been blocked map. footpath from with wooden battens and Hilcote to the lake green mesh panels at the and River Dickler Rissington Road and and onto Wyck Hilcote Drive entrances and Rissington and that hedging on both sides ' Clapton of the path has grown across concealing it. Witness claims she was told by the owner of no.2 Hilcote Drive in summer 2003 that the claimed path was on his land and he intended to - block it because of his concerns over the development of `The Willows'. site, from a single dwelling to possibly 10 dwellings
No Name Address of Witness Period of time covered
Frequency of Use Purpose of Use Other Remarks
Comments (by Director of Environment)
8 E.S. Field Hunters Lodge From 2001 to About 10 Walking between Witness noticed signs at each Path used by Rissington Road 2003 times a year Hilcote Drive and end of path saying `footpath' witness marked on
Bourton-on-the-Water Rissington Road or `public footpath'. Witness map. for leisure did not notice any obstructions until path was "apparently" blocked at each end by the adjacent landowner and says this was at the time of a planning application for a multi-dwelling development at The Willows'
Windrush View 61 Hilcote Drive
Bourton on the Water GL54 2DU
Re: Definitive Map Modification Application
I have been resident of Hilcote Drive for over twenty years but my association with the development goes back to the earliest stages. When only a few houses had been constructed I and my wife regularly visited and communicated with her aunt who purchased this property a year after it was built. I remember that before the road was made up the disputed path was made by the builder of this estate, L W Hill, as a temporary facility for the first residents of the development. He constructed it in response to their complaints about the inconvenience of having to cross his building site to access the Rissington Road at the road junction.
R Delderfield Mr H D & Mrs A Powell 2 Hilcote Drive Bourton on the Water Gloucestershire GL54 2DU
Mr Houldey 01452 425522
573/11/35(4) 21 June 2005 E-Mail:
[email protected] Mr & Mrs Powell
Wildlife and Countryside Act 1981, Section 53
Application for a Modification Order for an Additional Length of Public Footpath between Rissington Road and Hilcote Drive, Parish of Bourton on the Water
I refer to your letter of 3 June 2005 concerning the above application. I am fully aware of Advice Note 19 concerning the effect of the 1998 Human Rights Act. Article 6 of the Human Rights Act concerns the right to a fair trial in matters concerning the determination of any civil rights and obligations, in addition to the hearing of criminal charges. In essence, Article 6(1) guarantees the following rights:
(1) access to a court
(2) a public hearing before an independent and impartial tribunal (3) a hearing within a reasonable time, and (4) reasons for decisions
Modification Order Applications are determined by a two-stage process, the first part of which is their consideration by the County Council's Commons and Rights of Way Committee. The decision is made by an impartial committee who will judge the application solely on the basis of the legal tests. Should the Committee decide that an Order be made, then notice is served on all interested parties. There is a period of six weeks following the publication of the order in which anyone can decide to object to the order. The Order is then referred to the Secretary of State who appoints an independent inspector to determine whether the order should be confirmed or not. The process thus allows an appeal to an independent body. By the same token, should we refuse to make an Order, the applicant has a right of appeal to the Secretary of State who may (or may not) direct the County Council to publish an Order.
In addition to a right of appeal to the Secretary of State, there is also a right to judicially review any decision that is made. Courts tend to focus on whether the decision was reached in a fair manner and whether the Local Authority applied the law correctly. They will enquire into whether the decision was reached in a fair manner and whether the Local Authority applied the law correctly. They will rarely enquire into whether the underlying facts were correct and will not examine the merits of the decision.
In broad terms there is a simple requirement that a hearing or trial is fair. This means that neither party is substantially disadvantaged in relation to the other and is sometimes referred to as "equality of arms". In the case of Definitive Map Modification Orders, this means that both parties have had an opportunity to put their case, and are not placed at a procedural disadvantage compared with the other party.
The circumstances of a particular case determine what is a reasonable time before the application is determined by the Commons and Rights of Way Committee, a body that meets only four times a year. Modification Orders are determined on the basis of evidence of whether particular rights exist or not. It should be stressed that the discovery of evidence is an on-going process, and it is important that all evidential matter that could have a bearing on their decision is available to Members so that they come to the correct conclusion. Sufficient time is allowed for each party to be able to participate in the consultation process and so that all
parties are given the opportunity to see the evidence submitted and to make comment. Should representations continue to be received by either party then there is a possibility that the determination of this application will be further delayed.
Under Article 6 of the Human Rights Act the right to a public hearing and judgement is of fundamental importance and individuals have the right to be present at hearings which determine their rights. All parties have the right to attend the Committee meeting that will determine their case and to hear the judgement. The report (with recommendations) is publicly available in advance of the meeting and the full submissions are available to the Committee members as background papers. The decision is made in public on the day, and this decision is formally communicated to all parties in writing shortly afterwards.
Article 8 of the Human Rights Act, the Right to Respect for Private and Family Life, is a qualified right, that is it to say that it may be interfered with under certain circumstances. This interference by a public authority shall be in accordance with the law and necessary for the protection of the rights and freedoms of others. In Modification Order applications we need to balance the rights of the landowner with the rights of others who claim to have used the path. The County Council has a duty under section 53 of the Wildlife and Countryside Act 1981 to consider all applications for Definitive Map Modification Orders that are duly made, provided they are supported by evidence.
Interference must, however, be proportionate and can only,take place where it is, necessary in the interests of the wider community. Article 8 provides protection for the individual against arbitrary action by the authority. Article 8(2) qualifies this right, in accordance with the law (in this case the Wildlife and Countryside Act 1981) and according to what is necessary, for the protection of the rights and freedoms of others (in this case the protection of the right to use a right of way).
Actions taken by the County Council must be with authority, necessary and proportionate to what we are seeking to achieve. You are reminded that the County Council did not instigate this application, and have a legal duty to investigate the case and to make such modifications to the Definitive Map as are necessary on the basis of evidence discovered by the Council. You are further reminded that the discovery of evidence is an ongoing process, and should we uncover relevant additional evidence relating to the use of this path then we are obliged to consider it.
You may wish to seek independent legal advice with regard to this matter.
Yours sincerely
Andrew Houldey Modification Orders Officer
APPLICATION FOR A MODIFICATION ORDER FOR AN ADDITIONAL LENGTH OF PUBLIC FOOTPATH FROM HILCOTE DRIVE TO RISSINGTON ROAD, BOURTON ON THE WATER
SUMMARY OF PUBLIC PATH EVIDENCE FORMS SUBMITTED IN 2004 and 2005
No Name Address of Witness Period of time covered
Frequency of Use Purpose of Use Other Remarks
Comments (by Director of Environment)
1 Peter Barker 6 Rissington Road, Bourton on the Water
1965-1999 Regularly On foot, access to Hilcote Drive
Witness notes that path recently obstructed- boarded entrance adjoining No.2 Hilcote Drive. He adds “As I am retired I no longer use footpath as such, only in my capacity as postman as stated”
Path used by witness marked on map. Occupation given as “former postman 33½ years”. Use not as of right
2 BenjaminRobert Dudfield
31 Park Farm, Bourton on the Water
1960-1993 Daily On foot, to get to work and pleasure, Hilcote Bungalow to Rissington Road
Witness states “I lived at Hilcote Bungalow for 33 years”. He does not note any obstructions, and under permission states “Not required”
Path used by witness marked on map.
3 RaymondJames Fardon
Gorse Leigh, Rissington Road, Bourton on the Water
Fifty years, moved to Gorse Leigh 1953
Several times a year
Foot or cycle, usually delivering notices of organisations Dramatic Group or Horticultural Society
Witness notes that path not obstructed until recently on entrance end from Rissington. He states “Taken for granted was for public access”
Path used by witness marked on map.
No Name Address of Witness Period of time covered
Frequency of Use Purpose of Use Other Remarks
Comments (by Director of Environment)
4 Brian GFathers
The Fourstones, Rissington Road, Bourton on the Water
Known 43 years, used 1960-1980
On average not more than six times a year
From Chemist shop at 1 High Street Bourton to various houses in Hilcote Drive, delivery of medicine
Witness adds “declined to buy adjacent house in the early eighties considered this path would be too intrusive”
Path used by witness marked on map.
5 William Oakey
Riverside, Hilcote Drive, Bourton on the Water
1930-present 3 or 4 times per week
On foot, home to village, shopping, entertainment
Under obstructions witness notes “Not until recently, both ends of path barred”. He adds “The present road into Hilcote Drive off Rissington Road used to be the farm entrance. The path from Rissington Road to Hilcote Drive has the services to this estate underneath the path”.
Path used by witness marked on map.
No Name Address of Witness Period of time covered
Frequency of Use Purpose of Use Other Remarks
Comments (by Director of Environment)
6 GeorgeSloggett
Nethercote Cottage, Rissington Road, Bourton on the Water
Known 42 years, used from 1960 to present
Once a fortnight?
On foot, visiting friends in Hilcote Drive or on walks across the fields
Witness notes that Mr Powell of 2 Hilcote Drive gave notice of his intention to close the path week commencing 14-7-03 and that it was then completely sealed off the following week. He adds: “The path has always been regarded as a public path and, I am told, existed before the building of the houses in Hilcote Drive…The first owners of both properties, either side of the path, still live in the village and both assure me that the path was never considered to belong to either of them.”
Path used by witness marked on map.
No Name Address of Witness Period of time covered
Frequency of Use Purpose of Use Other Remarks
Comments (by Director of Environment)
7 Audrey Warne
Oxmour House, Whiteshoots Hill, Bourton-on-the-Water
From 2000 to 2003
20 to 30 times a year
On foot, rambling from Bourton to access the footpath from Hilcote to the lake and River Dickler and onto Wyck Rissington and Clapton
Witness notes a signs at each end of path. She claims the path has been blocked with wooden battens and green mesh panels at the Rissington Road and Hilcote Drive entrances and that hedging on both sides of the path has grown across concealing it. Witness claims she was told by the owner of no.2 Hilcote Drive in summer 2003 that the claimed path was on his land and he intended to block it because of his concerns over the development of ‘The Willows’ site, from a single dwelling to possibly 10 dwellings
Path used by witness marked on map.
No Name Address of Witness Period of time covered
Frequency of Use Purpose of Use Other Remarks
Comments (by Director of Environment)
8 E.S. Field Hunters Lodge Rissington Road Bourton-on-the-Water
From 2001 to 2003
About 10 times a year
Walking between Hilcote Drive and Rissington Road for leisure
Witness noticed signs at each end of path saying ‘footpath’ or ‘public footpath’. Witness did not notice any obstructions until path was “apparently” blocked at each end by the adjacent landowner and says this was at the time of a planning application for a multi-dwelling development at ‘The Willows’
Path used by witness marked on map.
