Agenda item

To consider an application for a Map Modification Order to add an alleged public Byway Open to All Traffic (BOAT) to the Surrey County Council Definitive Map and Statement.

The Committee received a report which requested that Members consider an application for a Map Modification Order to add a public byway open to all traffic along Esher Park Avenue, Esher, to the Surrey County Council Definitive Map Statement (DMS).

The Countryside Access Officer, Daniel Williams, outlined the process for considering the application and stated that the County Council had a duty under Section 53 of the Wildlife and Countryside Act (1981) to modify the DMS if it discovered evidence to support such a change. The officer also outlined the legal framework for considering such applications, as detailed in the report.

It was explained that, following consideration of all available evidence, the Countryside Access Officer was recommending to the Local Committee that public restricted byway rights be recognised on Esher Park Avenue and that the DMS be modified accordingly.

Mr Paul Hamill of Esher Park Avenue had registered to speak against the application and addressed the Local Committee. During his representation he made the following points:

·         The Officer’s report had identified the existing gates on Esher Park Avenue as a possible obstruction to the proposed restricted byway rights to pass on foot. Should the recommendations of the report be approved, Esher Park Avenue would be forced to adopt alternative ways to manage the flow of vehicles, possibly employing guards to turn away vehicles. This would likely cause tension within the community and, as such, it is felt that agreeing the Officer’s recommendations would not be in the public interest;

·         It would be cheaper and more sensible to maintain the status quo by turning down the application. This would also help avoid an expensive and lengthy appeal process for all parties;

·         As a half-way house the Committee may wish to impose a restricted byway which recognised the existing gates. This would allow public footpath rights whilst allowing Esher Park Avenue to manage the vehicle flow in the way it currently does;

·         A sign indicating that Esher Park Avenue was a private road had been in place since at least 1933. There were no undermining factors as the sign was in a purely residential road and could not be said to be ambiguous;

·         In a letter to an Esher Park Avenue resident in 1993, Lord Denning had stated that the gates and notices were sufficient to establish Esher Park Avenue as a private road and not a public highway.

Speaking on behalf of the applicant, Mr David Steeds addressed the Local Committee to speak in support of the application. He stated:

·         He was pleased that the Officer’s report concluded that in 1992 there was a deemed full vehicular highway along Esher Park Avenue. This clearly indicated that there had been more motorised traffic than pedestrians or bikes along Esher Park Avenue;

·         Nothing has changed since 1992 and motor vehicle use has in fact increased in the ensuring years. This usage has never previously been challenged;

·         In our opinion, Esher Park Avenue falls within the exception in s.67(2)(a) of the Natural Environment and Rural Communities Act (2006). In addition, it may also fall within the exceptions in s67(2)(d) and (e). We therefore believe that a full BOAT exists along the whole length of Esher Park Avenue;

·         We are content to compromise, with Esher Park Avenue to continue with gates at either end, provided that one always remains open and that traffic remains free to use the road. The road serves as an important link between communities in Esher and Claygate.

The Countryside Access Officer addressed the Committee to outline his findings, as detailed in the report.

Following queries from Members of the Committee, he clarified the following points:

·         If the application was granted, the land would remain the responsibility of the legal land owners;

·         If the Local Committee accepted the application and agreed the Officer’s recommendations, the matter could still be reconsidered at a public enquiry. This was a very common practice but completely dependent on whether any objections were raised;

·         As set out in the Wildlife and Countryside Act (1981) it was not possible for the Local Committee to consider a compromise, even in cases where both parties were in agreement. The Local Committee had a duty to consider the application based purely on the evidence submitted. It was equally not possible for the application to be withdrawn, as the evidence had already been collected and the Local Committee therefore had a duty to consider it;

·         It was very difficult to estimate the cost of any future public enquiry and this is not something that the Local Committee was permitted to take into account when considering the application;

·         If the Local Committee agreed to modify the DMS, there was an automatic right of appeal should an objection be received. If the Local Committee did not make an order, the applicant could instigate an appeal, although the process was slightly different.

Following discussion, the Local Committee voted 8 to 7 against agreeing the Officer’s recommendations.

RESOLVED: That:

      i.        the officer recommendations as detailed in the report not be agreed;

     ii.        the Definitive Map and Statement (DMS) remain unaltered.