Agenda item

This report considers an application for a Map Modification Order (MMO) to add a public restricted byway to the Surrey County Council Definitive Map and Statement (DMS) along Turners Lane and part of Burhill Road, Walton and Weybridge.

 

The Chairman, Margaret Hicks, declared that she had been consulted on the issue in this report, had attended a presentation by Burhill Estates and had also had contact with the applicant.

 

Before introducing the speakers for this item, the Chairman explained how the item would run and added that the Committee had received training on ROW items and that a site visit had taken place.

 

Rodney Whittaker spoke in favour of the application. He explained he was speaking as an Elmbridge resident and on behalf of the Ramblers Association.  The agreement of the recommendation and the addition of the route to the definitive map would guarantee for the future the access for walkers/cyclists/horse riders, which they have already been able to use freely for many years.

 

He continued that it is the limitation of the right which is in question, but that he agrees with the officer’s report that no exception to the 2006 Act applies.

 

He emphasised that this decision only applies to public rights, not private rights, but that he believed a number of the small enterprises along the lane had been misled into thinking the making of this order would affect their private rights such that their businesses could not be accessed by motor vehicles, which is needed.

 

He said he hoped the committee would assure them that the making of this order would have no impact on their private rights.

 

He ended by saying it is the duty of the local committee to make the order if the evidence on the balance of probabilities supports it, which Rodney Whittaker believed it does.

 

The next speaker was Colin Mayes, Chief Executive of Burhill, who was concerned about the recommendations of the report.  He explained that the road had been open to the public and people had been driving on it for many years and since 2006 when the legislation came into force.

 

The only difference in his view and that of the officer is as to whether the rights were extinguished by NERC 2006 Act.

 

He added he had sent a summary of his reasons to the Committee Members on 3 December.

 

He explained that the majority of the owners of properties along the lane don’t have any private rights on paper, so they would have to prove they do, otherwise they would be committing a criminal offence each time they drive down Turners Lane.

 

It is not enough for one ROW officer in 2015 to say that SCC will turn a blind eye to the public driving down the road.  It is not good creating such uncertainty and could have an adverse affect on the businesses.

 

He ended by asking the Committee to recognise the public right to drive down Turners Lane.

 

 

The next speaker was Tony Pidgley speaking on behalf his Uncle, Victor Pidgley, himself and his family, who confirmed he owns a property along the route.  He explained he didn’t want to argue this issue from a legal position, but said that this is an issue about people and the community accessing the lane by vehicle.  He had started his business over 50 years ago and had been accessing it by vehicle 7 days per week, sometimes 10 to 12 times a day.  His Uncle’s business which has been operating since 1960s using lorries and machines is also based there.  Many other families have also used the lane to access properties and adjacent fields for leisure and equestrian purposes.  There are also other properties which are let on a commercial basis. 

 

He added that Turners Lane is not made up so it is not easy to walk along in the winter when it is dark and wet.

 

He ended by asking the Committee to protect the community right to use the lane to access their properties and businesses.

 

 

Coral Davies was the next to speak and she explained that she kept horses on the lane along with 6 others and had rented the yard on the west for 25 years. Since 1985 she and her daughter had been driving up and down Turners Lane and the people who keep horses need to use vehicles for numerous reasons including to carry kit, to use horse boxes, for people to give and attend riding lessons, to have feed delivered and for vets to visit. She said if it becomes a restricted public byway then it will be a criminal offence for the public to drive on the lane and the public need to be clear they can access it without any confusion.  She asked that the Committee vote for it to be recognised as a public road.

 

Paul Barnes, the Property and Asset Manager for the Burhill Group was the next speaker.  He said he wished to respond to some of the points made by Rodney Whittaker.  He does not believe that this is a section 67/5 situation and the public rights to drive along Turners Lane were not extinguished by the 2006 Act.  In addition there is no court decision to support ‘what private rights that are reasonably necessary’ means.  He added that it would not be good for SCC Members to vote for a public restricted byway knowing that their authority is going to turn a blind eye to the implications of its responsibilities as a highway authority.  There was concern that if people think they may be committing a criminal offence then they may be put off using the road, which could have a negative effect on businesses.  Paul Barnes ended by asking for responsible decision making from the Committee.

 

 

 

The applicant, Doug Williams, then spoke, explaining he had lived on Burwood Road opposite Turners Lane since 1971. In 2011 he had seen a barrier being erected, but it was removed the following day.  After further attempts to restrict access he decided to make the application in order to safeguard public access to this greenbelt, biodiverse area.

 

He added that he supports the officer, who had carried out the legal analysis and Rodney Whittaker and urges the LC to agree the recommendation.

 

Dan Williams, the Countryside Access Officer, introduced the report explaining SCC has a duty to modify the map if there is sufficient evidence to support the modification.   The process here is to register the right.  SCC considers the roads in question are private roads, over which the nature and extent of rights is unknown at the current time.

 

He continued that the public user evidence shows that it was mainly on foot or bicycle.  Further evidence supplied by Burhill demonstrates vehicular use, but most of the vehicular use would normally be considered as exercising a private right.  By user evidence alone it ought to be considered a public bridleway.

 

 

Many of the frontagers have private rights recorded in their deeds.

Historical evidence, however, shows that both routes have long been considered as public highways, perhaps since 1700s, and supported by evidence from 19^th and 20^th centuries, as outlined in paragraphs 2.14 to 2.33 of the report. 

 

If the Committee considers that it is a public highway, then it must consider whether vehicular rights were extinguished by NERCA 2006, as the officer deems that none of the exceptions were met.  Burhill claimed that the main lawful use was in motor vehicles, but had no data for the period 2001 to 2006, however they supported it with data from traffic surveys in 2013/14. 

 

The officer explained why Burhill’s arguments were problematic.  In the guidance to NERCA 2006 section 67(2)(a), the use must have been by the public and private use is irrelevant.  If it didn’t mean public use and the use by frontagers was relevant then there would have been no need to include 67(5), which expressly provides for private rights.  With reference to the traffic survey provided by Burhill from 2013/14, the character and use of the lane in 2014 would have been different from that of 2001-6.

 

The officer summarised that he believed that NERCA 67(1) extinguished any public rights, the exception in 67(2)(a) was not met, but 67(5) means that the private rights of landowners/guests/invitees/business attendees are not compromised and that the public restricted byway can reasonably be alleged to subsist.

 

 

Members questions/concerns included the following:

a.    Why are SCC getting involved in the issue

b.    That it is a very complicated issue to understand. The committee needs to be sure that it is not discretionary whether SCC will prosecute

c.    Are existing rights protected?

d.    Whether the application could be considered in 2 separate parts? A to C as a highway and C to D as a bridleway

e.    What are the options if the Committee don’t agree the recommendation

f.     What the difference will be for real people if it is agreed?

g.    What is the advantage of formalising the right?

h.    Why are we changing it?

 

The officer responded as follows:

a.    SCC have a duty to look at the evidence

b.    There is no example to base this on, but 67(5) states where MPV rights are extinguished, private rights are granted. 

c.    The Golf Club are a frontager so are in the same position as other frontagers

d.    It is in the power of the Committee to break the order apart

e.    The Committee could decide that no public rights exist or they could turn down the recommendation because they think it should be a public highway.  If not agreed the applicant could appeal to the Secretary of State, who might direct us to make the order.
If the Committee agrees the recommendation, it is advertised, anyone can raise objections.  If sustained the order can’t be confirmed and a public inquiry will probably follow.

f.     In practice there will be no real difference for frontagers and the public will have the legal right.

g.    The public will have a legal right to use the route on foot, horseback, bicycle and in a non- mechanically propelled vehicle so the council is protecting their public rights.

h.    Currently the public have no recorded rights. The process is about recording rights, which we believe the public already have, not creating new rights.

 

The Members asked further questions and expressed the following concerns/views:

 

a.    If we agree this recommendation are we protecting the current rights, giving them a legal basis.  If so I think this is the way to go.

b.    We must make sure there is no derogation of anyone’s rights. If so I am happy to proceed.

c.    Think the recommendation is the best level on offer

d.    Did the officer say that if you have a reasonable need you can still use the road?

e.    Not convinced, I think it should be a highway.  No point in changing.

 

The officer answered as follows:

 

a.    Yes

b.    I can only assure you on the basis of what the legislation 67/5 states.

c.    No reply required

d.    Yes the Act refers to reasonable need for access e.g. for people who live there and their guests

e.    We have a duty based on the evidence to make a decision.  We believe it was historically a full highway, but as discussed this was subject to extinguishment under NERCA 2006.  The exceptions were considered, but I don’t believe it meets any of them. Evidence shows that it is a public restricted byway.  If Members think any of the exceptions are met then they could say they think it should be a highway, but that would be outside this process to record.

 

Recommendation i) the Members voted 9 for, 3 against with 1 abstention

 

Recommendation ii) the Members voted 9 for, 3 against with 1 abstention

 

The Local Committee agreed that:

 

 

i.           Public restricted byway rights are recognised over the routes A-B-C (Turners Lane) and C-D (Burhill Road) on Drawings Nos. 3/1/78/H22 and H23 and that the application for a MMO under sections 53 and 57 of the Wildlife and Countryside Act 1981 to modify the DMS by the addition of a publicrestricted byway is approved.  The routes will be known collectively as Public Restricted Byway No. 41 (Walton and Weybridge).

ii.          A MMO should be made and advertised to implement these changes. If objections are maintained to such an order, it will be submitted to the Secretary of State for Environment, Food and Rural Affairs for confirmation