Regulatory Committee
Meeting to be held on 30th October 2013
Electoral Division affected:
Morecambe West
Stance on Confirmation
Definitive Map Modification Order No. 4 2012 Claimed Public Footpath from a
point on Essington Avenue to Schola Green Lane, Morecambe, Lancaster City
(Appendices A, B and C refer)
Contact for further information: Megan Brindle, 01772 533427, County Secretary and
Solicitors Group, Megan.Brindle@lancashire.gov.uk
Executive Summary
A decision on an Appeal made under Section 53 and Schedule 14 of The Wildlife
and Countryside Act 1981 against the refusal to make a Definitive Map Modification
from the Secretary of State for Environment, Food and Rural Affairs directed the
Order Making Authority to make the Order. The Order was made and objections and
representations to the Order received. The Order Making Authority's stance is now
to be decided as to whether it supports, objects or takes a neutral stance as regards
confirmation.
Recommendation
1.
That all relevant evidence, including the Secretary of State for Environment,
Food and Rural Affairs decision to uphold the Appeal, additional evidence
submitted, objections and representations received post making the Order
dated 29 February 2012, be considered.
2.
That, the Order be submitted to the Secretary of State for formal
determination and the Order Making Authority, not being satisfied on balance
that the higher test for confirming can be satisfied shall notify the Secretary of
State that it does not actively support the Order and to adopt a "neutral
stance" as regards confirmation.
Background and Advice
At its meeting on the 21st April 2009, the Regulatory Committee considered a report
(see Appendix 'A') and resolved that the claim for a public footpath from Essington
Avenue to Schola Green Lane, in Morecambe, Lancaster City, be not accepted. The
applicant appealed against this refusal to the Secretary of State.
The Secretary of State for Environment, Food and Rural Affairs, having taken all the
representations before her into account, concluded that, on the balance of
probabilities, the evidence was sufficient to reasonably allege the existence of a
public right of way on foot over the appeal route. The Appeal was allowed and the
Secretary of State therefore, directed that an Order be made (see Appendix 'B' for a
copy of the full decision).
At its meeting on the 18th May 2011, the Regulatory Committee considered a further
report (set out at Appendix C) noting the Secretary of State for Environment, Food
and Rural Affairs decision that the Order Making Authority was directed to make the
Order and resolved that a further report be presented to a future meeting once the
Order was made and advertised to consider any further evidence received, in order
that the Order Making Authority's stance as regards confirmation could be decided.
It is advised that an Order has been made as directed by the Secretary of State.
Objections and representations have been received and together with additional
evidence submitted during the Appeal process, it is now to be considered, as to
whether or not the balance of evidence is sufficient for confirmation of the Order and
whether the Order Making Authority should promote the Order, object to its own
Order or take a neutral stance.
County Secretary and Solicitor's Observations
Additional evidence Submitted during the appeal process
The applicant, objector and a supporter submitted further submissions/ evidence
during the Appeal process in addition to evidence already submitted and considered
at Regulatory Committee 21 April 2009 as documented below.
Applicant
1) 6 user evidence forms: Indicating knowledge of the route for 30-39 years (1), 2029 years (3), and 1-9 years (2). The forms indicate use of the route on foot for 3039 years (1), 20-29 years (3), and 1-9 years (2). All evidence of use forms were
accompanied with individual maps depicting the route. The route has been mainly
used to access the children’s playground, to walk the dog or to visit family and
friends. Frequency of use varies from several times a week to more than twice a
day. None of the users wherever stopped and turned back 4 users refer to a fence
appearing in April 2009.
2) One user, in addition to their user evidence form also provided an additional
statement.
3) Paper highlighting the ambiguity of evidence from Grounds Manager of Lancaster
City Council.
4) E-mail from Karen Fay Residents for Access 1 May 2009 to Mr Mark Davies, LCC
and his reply 13 May 2009 regarding cost of repairs and documentary evidence of
previous change.
5) Lancaster City Council Ground Maintenance Sweeping and Litter Picking Work
Schedule.
6) Correspondence from Morecambe and Heysham Borough Council 1968 and
Lancaster City Council 1999.
7) Photographic evidence of No Golf Balls sign.
8) Witness Statement of Mr Ken Nash, 26 Essington Avenue, Morecambe, LA4 4PA
9) Photographic proof that the entrance was never sealed off and/or continued
across Point A.
10) A further response from the Applicant commenting on LCC paper, no additional
evidence, appendices labelled differently.
11) A further response from the Applicant commenting on LCC's paper looking at 'as
of right' in view of the recent case law. Further papers received 3rd March and 23rd
June 2010 in respect of the decision of Supreme Court in R (Lewis) V Redcar and
Cleveland BC.
Objector
1) Deeds of the houses built in the 1960's showing there was covenant confirming
fence to be maintained for ever and also confirm the official access to Schola
Green Lane field is via Carleton Street.
2) Consultation papers following high levels of anti social behaviour and criminal
damage via the claimed access on Essington Avenue. Lancaster City Council legal
advice, corporate strategies policy and Lancaster City Council's decision making
process.
3) Evidence from Lancaster City Council and residents living on Essington Avenue
regarding uninterrupted access from Essington Avenue onto the field between
1988 - 2008.
4) Submission on issue of damage to boundary fence and ranch style fence.
5) Photo of official access at Schola Green.
6) Reference to historic maps aleardy condiered by LCC and worn grass at Schola
Green lane entrance and not on any other part of claimed route.
7) Photo in respect of claimed access never been maintained by Lancaster City
Council or ramped to reduce the 14 inch drop onto the field.
8) Regulatory Committee previous rights of way application over the same land from
an entrance on Osborne Grove was rejected in 2005.
Supporting objection
Letter received from MP Geraldine Smith who supports the opposition of Mrs Carol
Craig dated 22nd July 2009.
Appeal decision – Secretary of State for Environment, Food and Rural Affairs
An Inspector was appointed to report to the Secretary of State on the Appeal by
Residents FOR Access against the decision of Lancashire County Council not to
make an order to modify their Definitive Map and Statement by adding a public right of
way on foot from Essington Avenue to Schola Green Lane (A to B on the Order Plan)
and issued a report recommending that the appeal be allowed. The Secretary of
State, having considered the appeal, considered that the lower test had been satisfied
and that the Order should be made. The Inspector's full decision is at Appendix B. The
Inspector's decision considered all submissions and an assessment of all evidence
submitted, including 'additional information during the appeal process'.
In the assessment of evidence the Inspector considers there is three possible periods
during which a presumption of dedication of a public right of way may arise: 19741994, 1982-2002 and 1988-2008. The Inspector found that user evidence for 1974 1994 was sufficient to reasonably allege the existence of a public right of way and that
there was no suggestion there were blockages at point A during this 20 year period. In
respect of the other two twenty year periods (1982-2002 and 1988-2008), the
Inspector notes the evidence of the Cleansing and Grounds Manager was not
incontrovertible and as it stands lacks corroboration.
On the issue of the lease, the Inspector concluded that there seems to be no dispute
that the land does form a recreation ground and has done so since being set out as
such in the mid-1960s. However, the Inspector notes that no formal lease has been
produced in evidence and with the terms being uncertain it is not incontrovertible
evidence that should inevitably defeat the claim.
Additional information after Order making
The applicant, City Council, supporter and objectors submitted further evidence after
the Order was made 29 February 2012.
Representation by the City Council
Lancaster City Council confirm that the City Council occupies the playing field on
"user rights" and has done since local government reorganisation in 1974, when the
deeds for the land were transferred to the water authority. They submit a letter
confirming this to the landowner United Utilities. United Utilities have not disputed this.
Further Objections to the Order
1) The Objector "Residents Against Access" submitted an objection based on three
key reasons comprising a paper providing a detailed summary of the objection, 60
individual signed objection statements to the three reasons for objection and 8
appendices some of which have already been submitted including: building plans,
Deeds, Lancaster City Council letter and email confirming no right of way, aerials
photos dated 1988/2006, photo of Essington fence dated 1990 by the presence of
a gasometer later demolished, letter from Lancaster CC regarding signage,
Lancaster CC regarding costs of fence repair and replacement.
2) A letter of objection received from Mr D J Leeming 1st May 2012. Mr Leeming lives
next to the entrance to the field and provides flat deeds from 1966 to present day
which show there has never been a right of way of use from point A at Essington
Avenue. He attaches a building plans which show the fence is in situ and the fence
belonged to the owner of Schola Green Lane field, at the time was the Abattoir
who sold it to the Water Board, now United Utilities Water are letting it off to
Lancaster City Council at a pepper corn rent who maintain the field by cutting the
grass in the summer. On his building plans there is no access.
3) A letter from Carol Craig 27th November 2012 submits additional evidence
supporting her objection. She attaches a register title that relates to a property
recently sold on the avenue. In section C2 the document refers to the covenant
(previously submitted by them) relating to the boundary fence at the end of
Essington Ave (and subject to the claimed ROW) and confirms that even in 2012
this covenant is still relevant requiring the boundary fence A-B to be maintained
forever. This supports the previously submitted evidence by them and questions
the legality of any claimed right of way.
Applicant
A letter received from Karen Fay (Applicant) 25th April 2012 she provides evidence of
when she used the route and how long she has known the route. She has also
witnessed Lancaster City Council carry out maintenance work in and around the field
on a regular rota system, she has provided a copy of the maintenance schedule which
she obtained from a council operative.
The Applicant submitted a further letter dated 6th May 2012 with a further 12 user
evidence forms and 41 statements of use.
Supporting the Order
The Ramblers Lancaster Group submit a letter confirming they support the Order.
Conclusion
The Secretary of State has concluded that the lower test of making the Order has
been satisfied, that is, a public footpath between Essington Avenue (point A) and
School Green (point B) has been reasonably alleged to subsist. The Order has been
made and objections and representations have been received in respect of
confirmation.
The matter now is whether or not the evidence in this matter is considered sufficient to
meet the higher test for confirmation of the Order and to consider what stance the
Order Marking Authority will take, that is either support, object or take a natural stance
as regards confirmation.
The possible twenty year periods for consideration are 1974-1994, 1982-2002 and
1988-2008. Additional user evidence received during the appeal procedure and post
Order making indicates that there are 13 users claiming use of the claimed route
between 1974 and 1994. It is noted that whilst this may be sufficient use during this
earlier period to make the Order, user evidence must be tested in order to assess
whether the Order can be confirmed. It is not clear whether users were accessing the
playing fields at large or whether users were walking A to B.
The obstructions of the access at point A Essington Avenue remain in conflict. The
Applicant has submitted further user evidence for all three twenty year periods
however, the objector has submitted photographic evidence of the access at
Essington Avenue being fenced in the late 1990s. In respect of the two later twenty
year periods, in addition to the evidence of the Cleansing and Grounds Manager,
there is written confirmation that the Essington Avenue access was fenced by
Lancaster City Council at a cost corroborating blocking of the access had been
effected and use may have been sufficiently interrupted and may be considered as
evidence indicating lack of intention to dedicate by the owner. In order to assess this
evidence, it will need to be tested.
The "as of right" test that is at the heart of deemed and inferred dedication continues
to be of concern and more so in view that the higher test needs to be satisfied for the
Order to be confirmed. Lancaster City Council confirms that according to their records
the City Council occupies the playing field on "user rights" since local government
reorganisation in 1974. It has been accepted that there seems to be no dispute that
the land does form a recreation ground and has done so since being set out as such
in the mid 1960s. It remains submitted, that a landowner must have a fair opportunity
to challenge use by the public and in this particular matter, as the public had access to
all the land for some considerable time, a landowner would not be in a position to
distinguish between using a route A to B and accessing the playing fields at large. On
the evidence of the City Council, use appears to be pursuant to a right and therefore
use is 'by right' as opposed to 'as of right'. The lack of any formal lease document is a
concern and the holding of the land by the City Council will need to be better
considered in view of the "as of right" test.
Taking all the information in this report into consideration, that the evidence to prove,
on the balance of probabilities, that a footpath exists on the claimed line may be
insufficient in respect of the higher test. Evidence will need to be tested to determine
material matters. Issues which concerned the Order Making Authority such that the
decision initially was not to make an Order are still live issues and Committee may like
to consider that the appropriate stance would be to not promote the Order to
confirmation nor should it Object and instead, take a neutral stance as regards
confirmation.
Alternative options to be considered
Resolve that the Order Making Authority support or oppose the Order.
Local Government (Access to Information) Act 1985
List of Background Papers
Paper
Date
Contact/Directorate/Tel
All documents on Claim File
Ref: 804/479
30th October 2013
Megan Brindle 01772 535604,
County Secretary and Solicitors
Group
Reason for inclusion in Part II, if appropriate
N/A