The County Council has a duty under Section 53 of the Wildlife and Countryside Act 1981 (WCA1981) to modify the Definitive Map and Statement (DMS) if it discovers evidence which can be reasonably alleged to support a modification. An application has been received for a Map Modification Order (MMO) to add a public footpath between Littleheath Lane and Water Lane, Cobham, Esher.
It is considered that the evidence is sufficient to show that the landowner had no intention to dedicate a right of way over the claimed route. The recommendation of officers is that no order to modify the DMS should be made.
Declarations of Interest: Mary Lewis declared a non-pecuniary interest as a local resident and local member. She declared that she has also used the path and that her evidence is mentioned in the report. As a result she would not vote on the matter but was permitted to speak.
Officers attending: Catherine Valiant, Countryside Access Officer
Petitions, Public Questions/Statements:
Alice Pearson-Thorne spoke in support of the application and made the following points:
· Alice spoke on behalf of her mother who is resident at 30 Water Lane which backs on to the footpath and is the only rear access to the property. It has been the Pearson family home since 1962.
· Her mother Marion has walked the path complete path twice a day most days until it was blocked in 2015 a total of 53 years.
· The full family walked the path in the 60s, 70s and 80s for a variety of reasons and was never made aware that they could not use the path until it was blocked in 2015.
Joanna Rutherford spoke in support of the application and made the following points:
· She has used the path since 1994 and was not challenged until December 2014.
· The claimed path is shown on many early historic maps with a designation of path indicating use by the public.
Jeremy Taylor spoke in support of the application and made the following points:
· A resident of Mill Hedge Close where he has lived for around 25 years. He and his wife were also a resident of the area before that time and have walked the path in the 70s and 80s for recreation to visit friends and local shops as well as more recently. He has never been challenged.
Kathryn Ross spoke in objection to the application and made the following points:
· Her husband and herself have lived at Hazel Glen, 24 Water Lane since 1995, points F, G and H shown on the plans are within their land.
· She is confident that there is key evidence of a lack of intention to dedicate. There is evidence that landowners have erected gates and private signs along the route
· She agrees with the evidence of Mrs Turk given long after she left the area.
· The user evidence of users is less consistent, ignoring a sign or climbing over a gate does not evidence permission to use the route.
· She was clear that she had approached anyone she saw crossing her land from 1995 to make it clear that it was private property.
The applicant Patrina Hutchings took the opportunity to respond to the objections raised. She made the following points:
· She has been a resident of the area for 30 years and a user of the path.
· It was unclear why the original recommendation to approve the route was changed in the subsequent reports without further evidence.
· It is clear from user evidence that this path has been used regularly and that the signs were introduced after 2015 and there had been no challenge before this time.
The Countryside Access Officer presented the report, including the following points
· The land A-B is registered as common land and cannot be designated as a right of way and therefore the route under consideration is between B and L.
· She outlined the evidence outlined in the report and the basis on which the recommendation is based.
· If the evidence of the placing of signs on the route is accepted as demonstrating a lack of intention to dedicate then a 20 year period of unchallenged use cannot be established.
· This is a finely balanced case with differences in the views of users and between users and landowners, although this is often the case and it is a matter for the Committee to weigh up the evidence. She asked the Committee to accept her recommendation.
Member discussion –key points
The divisional member stated that as shown on the map this is a network of historic paths giving access to Littleheath which is common land. She has lived in the area for 32 years and has regularly used the path and was never aware of any restrictions.
The Chairman asked for further information on why the recommendation of the Countryside Access Officer had changed since the report was first presented to Committee. She responded that she had re-read the case law following the deferment of the report and felt this caused her to change her view of the evidence.
The ‘Diggers’ who had previously been based on the common were referred to as an indication that the path had been used for open access in the past.
The path is shown on historic maps back to the late eighteen hundreds. The Countryside Access Officer explained that a path showing on a map does not provide proof of a public right of way as they just provide evidence of a route on the ground as they may still cross private land.
The point of challenge was deemed to be at 2013 as that was the time at which a gate and sign were installed. Officers had not been able to determine a 20 year period prior to that time when there was no restriction as the date when the signs at D and E were installed could not be established.
The definitive map was first established in Surrey in 1958.
Members felt that there was not sufficient clear evidence that the signs referred to had been present and visible within a 20 year period between 1958 and 2013.
Resolved that ( by 13 votes AGAINST and 2 ABSTENTIONS):
The recommendation of the officer, that no public footpath should be recorded over the claimed route, should be rejected on the grounds that the notices at D and E were not sufficient to demonstrate a lack of intention to dedicate on the part of the landowner.
It was therefore Resolved by (14 votes FOR and 1 ABSTENTION) that:
It is reasonable to allege that by virtue of the use by the public on foot, public footpath rights have been acquired over part of the claimed route under section 31 of the Highways Act 1990. A Definitive Map Modification Order should, therefore, be made to record the route between B and L as shown on the plan, in Annex A of the report, on the Definitive Map and Statement for Surrey as Public Footpath No.96 Esher.
Reasons: The Committee considered that the evidence submitted in support of the application is sufficient to reasonably allege that public footpath rights subsist over the claimed route, having been acquired by virtue of use by the public on foot under statutory deemed dedication (under s.31(6) of the Highways Act 1980).”