Agenda item

To decide whether public footpath rights are recognised over the route shown on DrawingNo. 3/1/20/H48 and whether a Map Modification Order under sections 53 and 57 of the Wildlife and Countryside Act 1981 should be made to modify the Definitive Map and Statement.

Details of the arrangements for public speaking on this item are appended.

Resolved that:

(i)                 Public Footpath rights are recognised over the route shown between points A – B – C – D - E on Drg. No. 3/1/20/H48 and that a MMO under sections 53 and 57 of the Wildlife and Countryside Act 1981 be made to modify the Definitive Map and Statement. The route will be known as Public Footpath No. 604, Haslemere.

(ii)               If objections are maintained to such an order, it will be submitted to the Secretary of State for Environment, Food and Rural Affairs for determination.

Reason

The evidence submitted in support of the application is considered sufficient to establish that public footpath rights are reasonably alleged to subsist, having been acquired under both statutory presumed dedication (under s.31(6) of the Highways Act 1980) and common law. It is considered that landowners have not taken sufficient actions to demonstrate their lack of intention to dedicate public footpath rights during the relevant period. A MMO to modify the DMS by the addition of a public footpath as described above should be made under s. 53 of the WCA 1981.

The Chairman explained that members of the committee had been given the opportunity to familiarise themselves with the location at a site visit.  Members were reminded that their decision should be based on the published report and not on representations made separately to them.

Mrs N Barton made a statement to the effect that, in her actions as local county councillor with respect to this item, she did not believe that she had prejudiced her position in considering the report; however, she would withdraw from the meeting for this item.

Registered speakers were invited to address the committee for three minutes each, as follows:

Supporters

·         Mr M Weston stated that, in terms of the criteria that use must have been without force, secrecy or permission, he had used the path for 30 years, often in the past with his children.  He understood that Lloyds Bank welcomed and supported use of the path, to the extent that it had installed a lamp to enable 24-hour use.  He added that the path offered a useful route for pedestrians.

·         Mr R Manville stated that, on his appointment as manager of Lloyds Bank in 1969, the path was in regular use and it was irrefutable that it had been in use for at least 45 years; on his retirement in 1984 bollards had only been provided to prevent the path being obstructed.  Mr Manville had never been asked, during his employment as manager, to close a gate on one day each year, as there was no gate to lock.  Access through the car park was open at all times.

·         Mr C Scholfield stated that he had used the path almost daily for over 25 years.  He noted that the alternative route via College Hill brought parents and children into close proximity with vehicles.

·         Mrs S Farley had owned a nursery school in College Hill between 1970 and 1994 and the path had been used regularly with the children, e.g. when accessing a coach parked adjacent to the Town Hall for outings.  She had not encountered any restriction to use of the path either during this period or during her subsequent continued residence in College Hill until 2006.

·         Mr P Bagshaw stated that he had lived in Hill Road for 30 years and found the path a better walking route to the High Street than the alternative roads.  During this period he had walked along the path almost every day and had never encountered any sign or impediment to his passage.

Objector

·         Mr H Robbie stated that he is a Chartered Surveyor and, with Mr P Warner, owns the land on which they erected the fence.  He said that the committee’s role is not to consider the availability of the Lloyds Bank car park, the relative merits of the path as opposed to College Hill or to query motivations, but to consider whether anyone seeing the signs erected could understand the land to be private.  He has submitted statutory declarations to the effect that the land has been private since the early 1980s.  Mr Robbie referred to the guidance on Map Modification Orders (Annex B of the report) and quoted the statement that “although 20 years’ uninterrupted use by the public establishes a presumption that the way has been dedicated to the public, this can be contradicted by evidence showing that the landowner did not intend to dedicate public rights during that time.”  Mr Robbie  contended that notices to the effect that the land is private can imply the owners’ intent not to dedicate public rights; the report accepts that signs have been in place since the 1980s and the evidence of people who did not see the notice  to the effect that the land is private should not be relied upon.

Applicant

·         Mr R Serman, a Chartered Land Agent and Surveyor, responded to the points made by the objector.  He stated that there is no doubt that the path had been in use for many years and new evidence has recently become available that reinforces this.  He understood that the signs in place relate to the Lloyds Bank car park and are not visible to pedestrians walking up the path from the town centre.  The bank has always made clear that the path is open at all times and Mr Serman has seen photographs in which a stile is in place.  He believed that the bank had been asked to pay a substantially increased charge.

The Senior Countryside Access Officer referred the committee to the statutory guidance at Annex B of the report and reminded members that they must not give weight to factors such as the suitability of the path.

The chairman put the recommendations to the vote and both were approved with eleven votes in favour, none against and no abstentions.

Resolved that:

(i)                 Public Footpath rights are recognised over the route shown between points A – B – C – D - E on Drg. No. 3/1/20/H48 and that a MMO under sections 53 and 57 of the Wildlife and Countryside Act 1981 be made to modify the Definitive Map and Statement. The route will be known as Public Footpath No. 604, Haslemere.

(ii)               If objections are maintained to such an order, it will be submitted to the Secretary of State for Environment, Food and Rural Affairs for determination.

Reason

The evidence submitted in support of the application is considered sufficient to establish that public footpath rights are reasonably alleged to subsist, having been acquired under both statutory presumed dedication (under s.31(6) of the Highways Act 1980) and common law. It is considered that landowners have not taken sufficient actions to demonstrate their lack of intention to dedicate public footpath rights during the relevant period. A MMO to modify the DMS by the addition of a public footpath as described above should be made under s. 53 of the WCA 1981.

[Mr P Martin and Ms D Le Gal joined the meeting at the conclusion of this item.]