Agenda Item No.
Committee:
Regulatory
Planning and Highways Sub-Committee
Date:
21 December 2005
Report By:
Director of Law and Performance Management and Director of
Transport and Environment
Title of Report:
Claimed Public Footpaths and Bridleway at Chelwood Common,
Danehill, East Sussex
Purpose of Report:
To consider whether public footpath and bridleway rights exist
under Section 53(5) of the Wildlife and Countryside Act 1981 for
Orders modifying the County Council's Definitive Map and
Statement of Public Rights of Way
_____________________________________________________________________
SUMMARY OF RECOMMENDATION
To refuse the applications for Orders to add Public Footpaths and a Public Bridleway to
the Definitive Map and Statement.
____________________________________________________________________
1.
Introduction
1.1
An application has been received by the County Council to make an order modifying its
definitive map and statement for Wealden by adding three public footpaths. Two of the
claimed footpaths run between School Lane, Danehill and public footpath Danehill 38. The
third claimed footpath runs between School Lane and Tanyard Lane. Danehill Parish Council
submitted the application on 6 November 1995. In addition Mrs C White of Primrose Lodge,
Duddleswell, made an application for part of public footpath Danehill 38 (shown between
points I and P on Plan One) to be upgraded to a public bridleway. This application was made
on 19 March 1998.
1.2
The claimed public footpaths and bridleway (‘the claimed routes’) are shown between
points A and C and I and N on the attached plan 1. The land has three separate owners,
Mrs F Webb of Burnt House Farm, School Lane; Mr Stephenson and Ms Bath of Chelwood
Clump; and Mr and Mrs de Rivaz of Little Bridge House. This is illustrated on plan two. A
small section at the north-western end of the claimed routes adjoining School Lane (points A
and C) is highway land.
1.3
The land over which all the claimed routes run is registered as Common Land under
the Commons Register Act 1965. There were no rights of public access registered over any of
the Common Land between 1965 and 2004. However, on 19 September 2004 the
Countryside and Rights of Way Act 2000 gave the public the right of access to registered
Common Land, with certain caveats such as being excluded from land within 20 metres of a
dwelling.
2.
Background to the Application
2.1
The area over which the claimed routes run has been subject to a previous application
for a public footpath. A summary of the background to the matter is set out below. All of the
related correspondence and documents can be found in the file of evidence.
2.2
On 9 November 1990 Mr Martin Wickens made an application to the County Council to
add a public footpath to the definitive map and statement, (hereafter referred to as the
‘previous (1990) application’). The route of the claimed footpath was between School Lane
and existing public footpath Danehill 38. It followed the same line as the brown route of the
current application at each end but differed over the middle section.
2.3
On 25 November 1993 the East Sussex County Council Highways Management SubCommittee refused the application. It was decided that there was insufficient evidence of
continuous public use of the whole route as not all of it had been in existence on the ground
for many years. In addition Mr and Mrs de Rivaz had challenged those people who they had
seen on the part of the path that was in existence. The committee report noted that in April
1991 there were other tracks evident on the ground after the rights of way officer noted in his
site inspection report from that date that ‘it seems evident that a good deal of wandering takes
place’. Some of these other tracks correspond to the routes claimed under the current
application.
2.4
Mr Wickens appealed to the Secretary of State but the appeal was dismissed. The
appeal decision letter mentioned that people wandered over all of the Common and that there
were other routes apart from the one claimed. It also concluded that the landowners
challenged users of the route ‘well before 1990’ and that the ‘private’ sign (at Point C on Plan
One) also indicated an intention not to dedicate a public right of way. The full committee report
dated 25 November 1993 and the Secretary of State’s decision letter dated 29 December
1994 is included in the file of evidence.
2.5
In March 1995 a permissive bridleway, fenced both sides, was established by Mr de
Rivaz, Mrs Webb and Mr and Mrs Church (former landowners of Chelwood Clump) in
conjunction with East Sussex County Council. It remains in use to the present day and the line
of it is illustrated on Plan One.
2.6
In November 1995 Danehill Parish Council made an application for three public
footpaths, the route of one of which partly coincides with the previous claimed footpath (refer
to 2.2 above). The 1993 Committee report had mentioned the presence of other tracks in the
area, some of which correspond with the new routes claimed. The application was
accompanied by 104 new user evidence forms. Although the 1993 Committee report
concluded that ‘there is no evidence that a public right of way has been dedicated in the
vicinity of the claimed public footpath’, the Council has a statutory duty to investigate the new
evidence.
2.7
In March 1998 Mrs C White submitted an application for a public bridleway along part
of existing public footpath Danehill 38. She stated that as a result of studying the footpath
application it was considered that the yellow route carried bridleway rights with the route
continuing along part of Danehill 38 to Tanyard Lane. The line of the claimed public bridleway
is illustrated on Plan One.
2.8
Between 1998 and 2000 the landowners, the Parish Council and East Sussex County
Council were involved in ongoing negotiations to resolve the matter by means of an agreement
whereby two licensed routes, a footpath and bridleway, were provided on the condition that no
further rights of way claims were made. However the terms of the agreement were never
settled and the applications remained in the queue of similar matters awaiting determination.
3.
Legal Position
3.1
The applications have been made under Section 53 of the Wildlife and Countryside
Act 1981 which requires the authority to keep the definitive map and statement of public
rights of way up to date and amend it where necessary. Section 31 of the Highways Act
1980 states that a highway can be created if there is 20 years uninterrupted use of it by the
public. The onus falls on the landowner to show that he/she did not intend to dedicate it as a
public right of way. This can be by means of notices, verbal challenges, locked gates,
barriers or depositions with the Highways Authority. A path may also be deemed to have
become a public right of way under common law over a shorter period of time if the
landowner has acquiesced to the public use.
3.2
A decision must be based on a consideration of all available evidence. It is a question
of whether or not public rights exist or can be reasonably alleged to exist. It is not about the
desirability or suitability of having a public right of way.
4.
Description of the Claimed Public Footpaths
4.1
A site inspection was carried out by a Rights of Way Officer on 3 August 1995 and
photographs were taken. These can be found in the File of Evidence. The description below
refers to how the claimed routes were found on that date.
4.2
Between points A and B on the yellow route there was a defined path on the ground
down a slight bank which showed signs of use by horses. It appeared that this section had not
been used for some months.
4.3
Between points K, O and P the yellow route was so overgrown that it was unusable
and no trace of a path existed on the ground. The permissive bridleway (shown in green on
Plan One and the plan accompanying the site report) had been constructed close to the yellow
route. Whilst setting out the permissive route it was noted that there was a further well defined
path almost parallel to the yellow route and this is shown in red on the site report plan.
However at the date of the site inspection this was becoming overgrown and indistinct. (NB
this path has not been claimed as a public right of way).
4.4
The brown route between points C, B and D on the plan follows the drive to Burnt
House Farm which is a wide tarmac track. Between points D and J there were visible signs of
a path although it was becoming overgrown. On the south side of the permissive path there
was no sign of the brown route but it became more visible between L, M and N. There was an
access gate onto this section from Little Bridge Cottage.
4.5
The pink route between D and E also followed the drive to Burnt House Farm where it
crossed a small grass area to point F. There were no signs of use across this area. Between
points F and G the claimed footpath was very overgrown.
4.6
Between G and H the pink route had obviously not been used for many years as it was
very overgrown.
4.7
The final section of the pink route between H and I follows the drive to Chelwood
Clump.
5.
Description of the Claimed Public Bridleway
5.1
A site inspection was carried out on 25 November 2005 and photographs were taken.
These can be found in the File of Evidence.
5.2
The claimed public bridleway runs from Tanyard Lane and there are two posts
indicating that the route is a public footpath and permissive bridleway. There are also house
signs for Cherry Tree Cottage and Redwood Lodge as the route is their access.
5.3
The route proceeds slightly downhill in a generally south-westerly direction for 144
metres to point P on Plan One. This is the extent of the route claimed as a public bridleway.
The permissive bridleway continues in a north-westerly direction and Public Footpath
Danehill 38 continues to the south-west through a wooden staggered barrier that prevents
vehicles and horses proceeding beyond this point.
5.4
The alleged public bridleway is hard surfaced with stone chippings and is
approximately 2.5 metres wide throughout.
6.
Consultations
6.1
The Ramblers’ Association supports the claim for the public footpaths but can offer no
supporting evidence.
6.2
Wealden District Council has no evidence to support or rebut the applications.
6.3
English Nature has no views on the status of the routes.
6.4
Councillor Reid, as local member, was involved in the negotiations for the proposed
licensed route with Mr de Rivaz and Mrs Webb and is aware of the current applications.
7.
Historical Research
7.1
Historical research has been carried out on the area of the claimed routes. This is
summarised in the table below.
Document
Summary of Evidence
Inclosure Award
There is no inclosure award for the
area
R Budgen 1724
Claimed routes not shown
P. Overton and T. Bowles 1740
Claimed routes not shown
John Carry Sussex Map 1787
Claimed routes not shown
Gardner and Gream 1795
Claimed routes not shown
Greenwoods Map of Sussex 1825
Claimed routes not shown
1841 Fletching Tithe Map
Claimed routes not identifiable
County Series Map Epoch One Shows track between School Lane and
1863-1894
Little Bridge House, part of which
corresponds to southern end of brown
route.
Also shows part of pink route between
B and G.
Shows public footpath
Danehill 38.
County Series Map Epoch Three
Shows track corresponding to route
1909 – 1912
claimed in previous (1990) application
(i.e. north and south sections of brown
route) which appears to be access to
Little Bridge House and Cottage.
Shows tracks between A-B and C-B.
Shows part of pink route between B-G.
Ordnance Survey 1/2500
Shows track corresponding to route
1876 edition
claimed in previous (1990) application
(i.e. north and south sections of brown
route) which appears to be access to
Little Bridge House and Cottage.
Also shows part of pink route between
D and G.
Shows Public Footpath 38.
Ordnance Survey 1/2500
As 1876 but also shows tracks
1899, 1909 and 1955 editions
between A-B; C-B; B-D.
Railway Maps and deposits
Area of claimed routes not shown
Document
Summary of Evidence
Quarter Sessions Orders
Claimed routes not mentioned
Rural District Council Map 1935 Not shown as public paths admitted by
(produced under 1932 Rights of Way owner
Act)
Ramblers Association Survey 1950 Claimed footpaths not mentioned in
and Parish Survey 1952
surveys
Public Footpath Danehill 38 shown
Current Definitive Map
Shows track corresponding to route
claimed in previous (1990) application
(i.e. north and south sections of brown
route) and pink route, but not as
definitive paths.
Public Footpath Danehill 38 shown as
definitive path.
Current Geographical Information Shows drive to Burnt House Farm (C(GIS) Map (based on Ordnance B-D-E). Pink route and parts of brown
Survey data)
route shown as unmetalled paths.
8.
Response of the Landowners to the Application
8.1
Three landowners are affected by the application. The land ownership is illustrated on
Plan 2. Mr and Mrs de Rivaz have owned Little Bridge House and the surrounding land that
includes most of the brown route and part of the yellow route since 1979. They object to the
applications and have submitted two statements dated 2 December 1995 and 18 November
2005. Mr de Rivaz believes that the findings of the County Council and the Secretary of State
in the previous (1990) application proved that there were no public rights of way in the area of
the claimed routes. The full correspondence concerning this matter is included in the file of
evidence.
8.2
Mr de Rivaz states that there were no established paths following any of the claimed
routes when he moved into Little Bridge House in 1979 and that the applicants knew that the
affected land was private.
8.3
Mr de Rivaz has considered the user evidence forms and states that those who
completed forms for the previous application ‘cannot claim credibility’. He states that only 13
new families have submitted new evidence forms. Of these, Mr de Rivaz states that four are
previous tenants or their relatives and two were employees or their relations. Mr de Rivaz’ full
comments can be found in the file of evidence. Mr de Rivaz states that although the claimed
routes were not evident on the ground for some time before the application was made in 1995,
some of the users claimed to have used them until this date.
8.4
Since 1979 Mr and Mrs de Rivaz have challenged anyone found on their property
without permission. This includes Mrs Grayer (as recalled in her statement dated 27 January
2005) and Mr Buchanon, the former owner of Cherry Tree Cottage, whose daughter was using
the land for horse jumping. The former owner of Little Bridge House, Mrs Jackson, gave
permission for horse events to be held on the Common and some of the user evidence forms
mention these events. Mrs Jackson told Mr de Rivaz that she had taken ‘legal action in
respect of trespass by the then owner of Cherry Tree Cottage’.
8.5
Mrs Nelson of Little Bridge Cottage has a written agreement with Mr de Rivaz relating
to use of his land. Part of this agreement includes permission to walk on the land.
8.6
Mr de Rivaz also states that the ‘Private Drive’ sign in place at point C on Plan One
relates to section B-D which is common to all of the claimed routes and therefore
demonstrates an intention not to dedicate any of them as a public right of way. He also points
out that this was mentioned in the Secretary of State’s appeal decision letter dated 29
December 1994, that is, ‘a notice was erected some time before 1990…which indicated that
the route was a private road’.
8.7
Mr de Rivaz has also submitted a separate statement dated 18 November 2005 in
relation to the bridleway application. He objects to the application and states that it is bound to
fail because the route claimed does not pass between two public highways. If the application
had been extended to include the yellow route the ‘Private Drive’ sign at point C would indicate
a lack of intention to dedicate. Mr de Rivaz states that there is a permissive bridleway
provided by the landowners in conjunction with East Sussex County Council and that the
applicant has not pursued the application or submitted any new evidence which affects the
findings of the previous (1990) application.
8.8
Mr Stephenson and Ms Bath have owned Chelwood Clump and the land including the
south-east section of the pink and yellow routes since March 2005. They object to the
applications and state that they were unaware of the claimed public footpaths when they
purchased the property. They also state that, to their knowledge, no-one has used the
claimed routes on their property during their ownership.
8.9
Mrs Webb has owned Burnt House Farm and the northern sections of the pink, yellow
and brown routes since 1980. She objects to the applications and states that until 1980 Burnt
House Farm was owned by Mr and Mrs Hubbard (deceased) who lived in the property for 22
years. Mrs Webb asked Mr Hubbard if many people trespassed along the drive (points C-B-DE on Plan One) and he advised her that although not many did he challenged the few that he
saw. Mrs Webb believes that Mr and Mrs Hubbard maintained a ‘Private Drive’ sign at Point C
and it was in place when she purchased the property. Mrs Webb has maintained the sign
although four of these have been removed by persons unknown.
8.10 Mrs Webb also states that the area surrounding the drive was very overgrown when
she took over the property and the pink route leading from the end of it was not visible. The
other claimed routes were not visible either and the entire area appeared much the same as it
does today in terms of undergrowth.
8.11 Mrs Webb further states that Mr and Mrs Hubbard allowed Mrs Grayer to use the field
in front of the house for grazing horses and this arrangement continued when she bought the
property. Access to the field was from School Lane via point A on the plan. Mrs Webb did not
see Mrs Grayer use the claimed routes.
8.12 Mr de Rivaz and Mrs Webb have, since 1991, lodged statutory declarations under
section 31(6) of the Highways Act 1980 with East Sussex County Council stating that apart
from public footpath Danehill 38 (on Mr de Rivaz’ land) there are no public rights of way on
their land.
9.
Response of the former Landowners to the Application
9.1
Mrs Church, who lived at Chelwood Clump between 1984 and 2005, has submitted a
letter stating that during her 21 years at the property she challenged anyone she saw walking
on her land.
10.
Response of Adjoining Landowners to the Application
10.1 Mr Keith Brooks has lived at Cherry Tree Cottage since 1997. He states that the pink
route has not been used since that date and that the yellow route is not in use either. Mr
Brooks also states that the southern end of the brown route has been in use until recently and
that he used it himself until it became overgrown. Mr Brooks has submitted an Indenture
dated 1902 relating to his property. This includes a map showing a track roughly
corresponding to the line of the brown route which also appears to be the access to Cherry
Tree Cottage and Little Bridge House and Cottage. The other claimed routes are not shown.
Mr Brooks states that until 1974 the access to Cherry Tree Cottage was from School Lane and
that the pink route may not have been used since then. Mr Brooks considers there to be
sufficient paths on the Common and does not want the pink route to be re-instated as he feels
it would affect his privacy.
10.2 Mrs Nelson has lived in Little Bridge Cottage for the last 13 years and has used the
claimed footpaths daily, especially the brown route as it leads directly onto the Common. Mrs
Nelson used to ride her horse over the Common about 30 years ago and believes that people
should be allowed to use the area.
11.
User Evidence in Support of the Public Footpath Applications
11.1 Evidence forms have been submitted by users of all three claimed footpaths and the
claimed bridleway. Tables detailing individual use are attached as Appendix One. A summary
of the relevant evidence is set out below. Seven people were asked for further information
and two of these responded by giving further statements.
Brown Route
11.2
29 people submitted user evidence forms for the brown route. The total combined
usage spans the years 1927 to 1995. Two people have used it with a vehicle and six on
horseback/bicycle. Four people state that the line of the route has altered over the years.
Reasons for Use
11.3 It appears from the evidence forms that the signatories have walked along the
claimed public footpath for a variety of reasons including dogwalking and leisure. Four people
mention use for accessing properties or fields adjoining the route. Four people state that they
used to play on the Common as children and one mentions that the Pony Club held events
there.
Verbal Challenges to Use
11.4 Six signatories mention being challenged: Mr and Mrs Davenport in 1987, Mr Emmans
in 1993 and in the 1960s Mrs Turner was told the route was not a bridleway. In addition Miss
Dixon and Mrs Grayer were also challenged when riding but are unsure of the dates when this
occurred.
Signs and Notices
11.5 It appears from the evidence forms that no one recalls having seen any notices
deterring public use of the path.
Stiles, Gates and Structures
11.6 None of the above signatories mention having seen any stiles or other structures along
the brown route.
Pink Route
11.7
37 people submitted user evidence forms for the pink route. The total combined
usage of the route spans the years 1925 to 1995. Seven signatories used the claimed public
footpath on horseback and two with a vehicle. NB- a plan attached, presumably by the
applicant, to two of the user evidence forms submitted for the yellow route but showing all
three claimed paths, notes that the pink route has been blocked by fallen trees since 1990.
Three of the signatories acknowledge this, although one gives the date as 1987, however 20
state that they have used the route beyond this date i.e. until the mid-1990s.
Reasons for Use
11.8
It appears from the evidence forms that the signatories have walked along the
pink route for a variety of reasons including dogwalking, leisure and as a short cut. Six state
that the Common was an area used for various recreational activities.
Verbal Challenges to Use
11.9 Mr Marstrand mentions being challenged by Mrs Buchanon of Cherry Tree Cottage (an
adjoining landowner). Miss Dixon was challenged by the owner of Burnt House Farm but is
unsure of the date of this. Mr R Pollard is aware that other users were challenged.
Signs and Notices
11.10 Mr D Etherton mentions a ‘Private Drive’ sign being in place ‘for a number of years’ on
the driveway near the pink route.
Stiles, Gates and Structures
11.11 None of the above signatories mention having seen any stiles or other structures along
the route.
Yellow Route
11.12 38 people submitted user evidence forms for the yellow route. The total combined
usage spans the years 1927 to 1995. 12 have used the route as a bridleway (on horse and
bicycle) and one with a vehicle. Mrs Carter and Mr Marstrand mention that the route has
changed course.
Reasons for Use
11.13 It appears from the evidence forms that the signatories have walked along the
claimed public footpath for various reasons including leisure and to access the local school. 12
people have also used it on horseback/bicycle and one with a vehicle. Five mention the
Common being used for recreational activities by children and the Pony Club. Three used the
route for access as well as through use.
Verbal Challenges to Use
11.14 Miss Harber states that she was verbally challenged in 1995. Miss Dixon was also
challenged but is unsure of the date when this occurred.
Signs and Notices
11.15 Mr Carter and Mr Pollard mention seeing a footpath sign at the School Lane end of
the path, however Mrs Carter mentions a sign deterring use at the entrance from School Lane.
Stiles, Gates and Structures
11.16 Mrs Harber and Mr and Mrs Turner mention that branches were placed across the
route. Mr and Mrs Turner do not specify a date when this occurred but Mrs Harber thinks it
may have been after the 1987 hurricane.
12.
User Evidence in Support of the Public Bridleway Application
12.1 18 people submitted user evidence forms for the claimed public bridleway.
The total
combined usage of the claimed bridleway spans the years 1953 to 1998. Mrs Collier mentions
that it was possible to vary the route taken due to the open nature of the Common.
Reasons for Use
12.2 It appears from the evidence forms that the signatories have used the
claimed public bridleway for recreational riding, to access Ashdown Forest and to avoid the
main road. Four used the route to access adjoining fields or the Common.
Verbal Challenges to Use
12.3 Four people state that they were verbally challenged while using the route - Mrs Harber
by Mrs de Rivaz, Mrs Grayer by Mr de Rivaz, Mrs Orr by a person unknown and Miss Harber
by an adjoining owner. Three people state that they have heard of others being challenged.
Signs and Notices
12.4 Mrs Grayer and Miss Grayer mention a notice stating ‘Private’ on the drive to Burnt
House Farm at School Lane.
Stiles, Gates and Structures
12.5 Six people mention that branches were placed across the route although it is not clear
when this occurred.
13.
Other Evidence in relation to the claimed public rights of way
13.1 Aerial photographs dated 1947, 1962, 1981 and 1987 were submitted at the time of the
previous (1990) application. It was noted in the consideration of that application that the brown
route was evident in the photographs. The 1947 photograph shows public footpath Danehill
38 as a clearly defined track, and there is a track which corresponds partly with the pink route
over its middle section, but other tracks are also evident. The 1962 photograph shows a track
along the line of the pink route. There are also many other tracks evident criss-crossing the
entire Common. In the 1981 and 1987 photographs the area appears much more overgrown
and fewer tracks are evident. A well worn circle is visible to the south of the area near public
footpath Danehill 38 in the 1962 photo, possibly the area used to school horses mentioned on
some user evidence forms.
14.
Rights of Appeal
14.1 If the County Council declines to grant the application, the applicant has a right of
appeal to the Secretary of State. The applicant must serve notice of appeal within 28 days
after service on them of the County Council's decision.
14.2 If the County Council grants the application and makes an Order, public notice of the
Order is given. If any objections are received within a specified period of time the matter is
referred to the Secretary of State for a decision.
15.
Conclusion
15.1 Mr de Rivaz contends that the matter of claimed public rights of way on Chelwood
Common was settled under the previous (1990) application as at that time none were found to
have been dedicated. However the Wildlife and Countryside Act 1981 states that ‘the
surveying authority shall …keep the [definitive] map and statement under continuous review’
and modify them if it discovers evidence that shows ‘that a right of way which is not shown in
the map and statement subsists or is reasonably alleged to subsist’.
Due to the 104 new user evidence forms submitted, the Council considered that it had a
statutory duty to investigate this new evidence. The Council has also carried out further
examination of historical documents relating to the new routes claimed and sought the
comments of adjoining and previous landowners.
15.2 There was found to be no documentary/historical evidence that the claimed footpaths
were considered to be public rights of way. Although parts of them are denoted on some 19th
and 20th Century maps as tracks, with some labelled ‘FP’ or ‘Path (um)’ this is not indicative
that they were public rights of way. In addition the line of the routes shown has altered over
the years. The test which must be applied to this application is whether there has been
evidence of user sufficient to raise presumption of dedication. That is, that the route has been
used by the public without interruption for 20 years. Section 31 (1) of the Highways Act 1980
provides for the presumption of dedication of a public right of way following 20 years
continuous public use. It states:
‘Where a way over any land…has actually been enjoyed by the public as of right and
without interruption for a full period of 20 years, the way is deemed to have been
dedicated as a highway unless there is sufficient evidence that there was no intention
during that period to dedicate it’.
15.3 It is difficult to ascertain a 20 year period where use of any of the claimed routes was
without challenge by a landowner, whether by means of a notice or verbally. Verbal
challenges are mentioned by some users of each route (dates are not given in all instances)
and although only four mention seeing the ‘Private Drive’ sign at School Lane (point C on Plan
One) the evidence of Mrs Webb suggests that it was in place since at least the 1960s or 70s
and possibly earlier. That part of the driveway between points B and D is common to all
routes and the sign therefore affects them all. Mrs Jackson, the former owner of Little Bridge
House, allowed use of the Common for horse events therefore some use of the area was
permissive.
15.4 There is some evidence that the Common was an area where people wandered at will,
a judgment also made by the Secretary of State in his decision dated 29 December 1994 in
relation to the previous (1990) application. 14 user evidence forms mention that the Common
was an area where children played and were taken on educational visits by the local school.
Aerial photographs, particularly those dated 1947 and 1962, show many tracks criss-crossing
the Common. Additionally, some evidence forms mention that the Common was used for
gorse and bracken collecting, stoolball games and horse training/events.
15.5 Some use of the claimed routes was for the purpose of accessing adjoining properties
or land and four users of the brown route mention this use, as do two of yellow route and one
user of the pink route. This is verified by Mr de Rivaz who states that many of the user
evidence forms were completed by tenants, employees and their relations.
15.6 Several user evidence forms mention that the brown and yellow routes deviated. Three
users of the brown route mention that the route changed course and a further evidence form
refers to it as the ‘blue route’ which was the route subject to the previous (1990) application.
Two users of the yellow route mention that it changed course. One user of the claimed
bridleway mentions that due to the open nature of the common it was possible to vary the
route taken.
15.7
There is some inconsistency with the user evidence forms. A plan attached to two
forms, apparently by the applicant, notes that the pink route was blocked by fallen trees in
1990 and although one user confirms this, two state that the route was blocked after the 1987
hurricane whilst 20 state that they used it until the mid 1990s with dates given between 1993
and 1996. The site inspection report carried out in August 1995 by a rights of way officer
concluded that the pink route was very overgrown and had not been used for many years.
Similarly, 27 users state that they used the yellow route until 1995 but the site inspection report
carried out in August 1995 concluded that it was so overgrown that it was unusable and no
trace of it existed on the ground. The southern end of the brown route where it passes a gate
accessing Little Bridge Cottage was visible at the time of the site inspection, however the
middle section was not visible (the northern section of the route is the tarmac drive to Burnt
House Farm). However 17 people claimed to have used the brown route until 1995. It is
noted that only two of the 104 user evidence forms have plans attached to them and it is
possible that this may have caused some confusion for those completing them.
15.8
The brown route appears to have been the route most visible on the ground and in
aerial photographs. This is consistent with evidence given by Mr and Mrs de Rivaz in the
previous (1990) application and set out in the Committee report dated 25 November 1993.
This stated that the brown route was a track which existed for the servicing of the fields to the
south of Little Bridge House. It was used by Mr and Mrs de Rivaz, their tenants and others
given express permission. It was also used to access Little Bridge Cottage and Burnt House
Farm until 1985.
15.9
The application for the public bridleway over part of public footpath Danehill 38
between points I and P on Plan One can only succeed if the yellow route is found to have
bridleway rights because a public right of way must lead from one highway to another.
Although 13 people claimed to have used the yellow route on horseback and/or bicycle it is
considered that the lack of intention to dedicate the route as set out above negates the
bridleway application. There is no historical/documentary evidence that public footpath
Danehill 38 is a public bridleway.
15.10 It does not appear that the claimed routes have been dedicated under Common Law.
For this to take place, the landowners would need to have acquiesced to public use and there
is insufficient evidence of this.
15.11 On the balance of probability it is considered that the landowners, both current and
former, have demonstrated an intention not to dedicate any of the claimed public rights of way.
It is considered that neither the criteria under section 31 of the Highways Act 1980 nor
dedication under common law has been met.
16.
Formal Recommendations
16.1 It is recommended that the Planning and Highways Sub-Committee refuse the
applications to add public footpaths and a public bridleway to the definitive map and statement
over Chelwood Common as shown on the attached plan.
ANDREW OGDEN
Director of Law & Performance Management
14 December 2005
BOB WILKINS
Director of Transport and Environment
P21December-ClaimedPublicFootpath-Danehill
Contact Officer:
Local Member:
Chloë Rowling, Legal Services - ext 1748
Solicitor (Legal Services) Philip Baker
Councillor Anthony Reid
BACKGROUND DOCUMENTS
User evidence forms and statements, representations from landowners, former and adjoining
landowners, site inspection reports and accompanying photographs, consultations, historical
research, aerial photographs and documents relating to the former application. These can be
inspected in the Members’ Room.
APPENDIX ONE
User Evidence
Use for the brown, pink and yellow routes was on foot unless stated otherwise. Those who
gave further statements are marked with an asterisk.
BROWN ROUTE
Name
Period
of
and Frequency
Mr L Barnard
1960 – 1995
Mrs V Brooks
Use
Comments
twice per week
Played on Chelwood
Common when young
1962 – 1994
Never challenged
‘Very often’
Mr J Butler
1952 – 1994
‘from time to time’
Mr M Carter
1962 – 1995
13 x month as a child
4-6 x month as adult
Mrs V Carter
1948 – 1957
frequency not given
Mr D Cobby
1960 – 1980
Occasional use
Mr and Mrs Davenport
1955 – unspecified
frequency not given
Miss L Dixon*
1955 – 1995
‘most weeks’
Mr R Emmans
1956 – 1994
Once per week
Mrs S Grayer*
1971 – 1986
Several times per week
in Winter. More often in
Summer.
1986 – 1995 (part onlyused brown route to
connect
with
yellow
route).
Mrs E Lewis
1927 -1990
‘Frequently’
On foot and with a
vehicle. Route altered
due to fallen trees
On foot and bicycle.
Storm damage caused
route to deviate
States all locals used
the path
Has witnessed others
using the route.
Route ‘varied a bit
according to state of
going’.
Physically
challenged
1987
onwards.
Foot and horse and
vehicle.
Challenged
when riding by owner of
Burnt House Farm but
unsure of date. Some
use for access to Little
Bridge Cottage.
Verbally challenged in
1993 by Mr de Rivaz.
On foot and horseback.
Some use for access.
Told by Mrs de Rivaz
not to ride along route
but continued to use on
foot. Unsure of date of
challenge.
Mr D McDonnell
1955 – 1995
Mostly at weekends
Mrs P McDonnell
1955 – 1993
‘Regularly’
Ms P Marstrand
1970 – 1996
‘frequently especially at
weekends’
On foot and horseback.
Some use for access.
Route used by school
for Nature Walks
Mrs M May
c. 1928 - unspecified
frequency not given
Some use to access
Cherry Tree Cottage.
Used to play on
Common in schooldays
Miss B Messenger
1976 – 1995
frequency not given
On foot and horse
Mr C Messenger
1972 – 1995
frequency not given
Mrs D Messenger
1941 – 1995
frequency varied over
the years
Mr C Mosley
1987 – 1990
used at least 5 times
Mrs J Pollard
1974 – 1995
weekly
1960 – 1990
‘frequently’
1970 – 1995
2 - 3 times per year
States the route was
‘the blue route’
Mr R Pollard
1941-1995
Weekly
Heard of others being
challenged
Mr W Pollard
1945-1990
‘Regular’ use
1964-1995
Occasional Use
1962-1972
‘Quite a few times’
Mrs M Pollard
Mr R J Pollard
P Read
Mrs E Turner
Pony Club events held
on Common. Told way
was not a bridleway in
the 1960s
Mr M K Wickens
1974-1994
Most weekends as a
child, then occasional
Summer use
Roamed
freely
on
Common as a child.
Paths
were
well
defined.
Mr M L Wickens
1975-1994
Most weekends
during holidays
Played on the Common
as a child.
Mrs E Wood
1941 – 1985
Frequently in early years
then 20 plus times per
year
and
PINK ROUTE
Name
Period
of
and Frequency
Mr L Barnard
1960 – 1995
Use
Comments
regular use as a child
now
only
occasions
Mrs L Boase
on
odd
1980 – 1990
‘ten times’
Mr D Brooks
1950 – 1995
Daily in younger days
Weekly in later years
Mrs D Brooks
Mrs V Brooks
1933 – ?
Frequency not given
Children used area for
playing
1962 – 1994
Never challenged
‘Very often’
Mr J Butler
1952 – 1990
Frequent use
Mrs J Butler
Used on foot and with
vehicle
1956 – 1980
‘From time to time’
Mr M Carter
1962 – 1988
4/5 x month as a child
Hurricane has
obstructed path
3 x month as an adult
Mrs V Carter
1948 – not specified
‘Quite often’
Mr and Mrs Davenport
1955 – 1980s
Frequency not given
Miss L Dixon*
1955 -1995
Most Weekends
Mr D Etherton
1938 – 1995
At least six months of the
year and every Sunday
Used on foot and
horseback. School
used to access
Common and Hunter
Trials held there until
1970s. Common used
to be clearer.
Challenged near Burnt
House Farm by owners
but unsure of date.
Used on foot and
horseback. Some use
for access. Common
was used as a play
area
by
children
between 1939 – 49.
Saw Private Drive sign.
Mr I Etherton
Mrs V Etherton
1976 – 1994
Monthly
1945 – 1954 and 19681995
‘as often as possible in
summer, weather
permitting in Winter’
Mrs S Grayer*
1971 – 1987
Quite often
Mrs E Lewis
1927 – 1990
‘Many times’
Mr D McDonnell
1955 – 1995
After
school
weekends
On foot and horseback.
Some use to access
Common for stoolball
and meeting friends.
Used on foot and
horseback.
Stopped
using
when
way
became blocked with
fallen trees after 1987
hurricane.
and
Mrs P McDonnell
1955 – 1993
regularly
Mr C Marstrand
1963 – 1985
Initially 4 x year then 2 x
year
Upper section blocked
since
1990.
Challenged by Mrs
Buchanon of Cherry
Tree Cottage but can’t
remember date.
Ms P Marstrand
1970 – 1996
Frequently at weekends
1925 – 1980
infrequently
1976 – 1995
Regularly
1972-1995
Frequency not given
1953-1995
Varied frequency
Used on
horseback
Mrs M May
Miss B Messenger
Mr C Messenger
Mrs D Messenger
Mr C Mosley
Mrs J Pollard
Mr K Pollard
Mrs M Pollard
Mr RJ Pollard
Mr R Pollard
Mr W Pollard
foot
and
Common
recognised
as area accessible to
local people
1987-1993
At least 15 times
1974-1995
Weekly
1965-1995
‘Very often’
Used on
horseback
1960-1990
Frequently
1970 – 1995
2/3 x per year
1941 – 1995
Weekly
Aware of others being
challenged
1945 -1990
‘Regular’ use
foot
and
Mr P Turner
1942 -1950
‘Quite frequently’
Played everywhere on
Common in childhood
Mrs E Wickens
1925 – 1985
Once per month
Used on foot and with a
vehicle. Husband used
to collect bracken from
Common.
Mr MK Wickens
1974-1994
Most weekends as a
child, then occasional
use.
Mr M Wickens
1950-1989
50/60 x year
Mr M Wickens
1975-1994
weekends
1941-1985
‘a lot’ in early years then
20 x per year
Mrs E Wood
Used on
horseback
foot
and
YELLOW ROUTE
Name
Period
of
and Frequency
Mr L Barnard
1960 – 1995
Use
Comments
‘regularly’
Mr D Brooks
1950 – 1995
daily when young, then
weekly
Mrs D Brooks
Mrs V Brooks
1933 – not specified
frequency not given
Mentions
playing
children
1962 -1994
Never been challenged
‘very often’
Mr M Carter
1962-1995
13 x month as a child
5 x month as an adult
Mrs V Carter
1948-1992
‘Frequently’
Mr D Cobby
Also used with bicycle.
States
there
was
footpath marker at
School Lane
Also used with vehicle
and bicycle. Used to
collect
gorse
on
common. States route
has changed course.
Has
seen
notice
deterring use at School
Lane in recent years.
1960 – 1995
‘frequently’
Mr and Mrs Davenport
1955 – 1980s
frequency not given
Used on
horseback
foot
and
Miss L Dixon*
1955-1995
On foot and horseback.
Challenged while riding
by owner of Burnt
House Farm but unsure
of dates. Common was
used for Hunter Trials
until 1970s.
‘most weeks’
Mrs H Dubey
1968-1995
often in Summer, less in
Winter
Mr R Emmans
On foot and horseback.
Used Common for
Pony Club activities.
Route is used as a way
to school.
1960-1993
once per week
Mr D Etherton
1938-1995
‘every
years’
Mr I Etherton
Sunday
for
5
1976-1994
Used as
Common.
Monthly
Mrs V Etherton
On foot, bicycle and
horseback.
‘Private
Drive’
notice
in
driveway for a number
of years.
Used by
grandparents
and
parents for access to
Cherry Tree Cottage.
access
to
1945-54 and 1968-1995
frequency not given
Mrs S Grayer*
1971-1995
very often in 1970s and
80s
Miss N Harber
1984-1995
Once per week or more
Mrs R Harber
1984-1995
Approx once per fortnight
Mrs E Lewis
1927-1991
On foot and horseback.
Branches
placed
across path after 1987
hurricane.
Daughter
and friend told not to
ride there in 1995.
1955-1995
‘After
school
weekends’
Mrs P McDonnell
On foot and horseback.
Verbally
challenged
while riding in 1995.
Used way for playing
as a child.
‘Many times’
Mr D McDonnell
On foot and horseback.
Some use for access to
Burnt House Farm.
and
1955-1993
‘Now and again’
Mr C Marstrand
1963-1995
Once per month originally
then less often
Route diverted near
Burnt House Farm due
to fallen trees (date not
given).
Ms P Marstrand
1970-1996
On foot and horseback
‘frequently’
Mrs M May
1930- 1980
‘Not very often’
Miss B Messenger
1976-?
‘regular use’
Mr C Messenger
1968-1995
‘regularly’
Mrs D Messenger
1941-1995
frequency varied over the
years
Mrs J Pollard
Common
used
by
schoolchildren
for
educational purposes.
1974-1995
Weekly
Mr K Pollard
1965-1995
On foot and horseback.
Footpath sign at School
Lane end.
‘very often’
Mrs M Pollard
1960-1990
‘Frequently’
Mr RJ Pollard
1970-1995
2-3 times per year
Mr R Pollard
1941-1995
Not challenged but
aware that others were.
Weekly
Mr W Pollard
1945-1990
‘regularly’
Mr and Mrs Turner
1942-1995
On foot and horseback.
Believe route to be a
bridleway.
Branches
pulled across path to
block access. Told not
to use in Winter ’94 as
track wet.
Quite frequently
Mrs E Wickens
1927-1985
Used as a play area by
the school
1-2 x month
Mr MK Wickens
1974-1994
most
child
Mr M Wickens
weekends
as
a
1950-1989
50-60 x year
Mr M Wickens
1974-1994
frequency not given
Mrs E Wood
1941-1985
Many times in early
years, later 20+ x year
On foot and horseback
CLAIMED PUBLIC BRIDLEWAY
Name
Period
of
and Frequency
Mrs J Bellingham
1964 – 1998
Use
100 x year
Mrs PA Collier
1975 – 1998
1 x week in Winter
less often in Summer
Ms L Davenport
1961 – 1998
Daily until 1977 then 2 or
3 times per week
Mrs MJ Davenport
1953 – 1990
Once per week
Mr P Davenport
1960 – 1998
1 – 3 x per month
Miss L Davenport
Comments
Branches and logs
were put across track
(date not stated).
Knows of others being
challenged. Also used
on foot.
Because of open
nature of the area
possible to vary route
taken. Never
challenged but heard
that the Turners Riding
School was (date not
stated).
Also used on foot. Also
used other tracks
across the Common.
Rented grazing from Mr
de Rivaz 1975-77.
Also used on foot.
Never challenged.
Also used on foot.
Rented field from
landowner in 1980.
1989 – 1998
Once per month
Miss S Davenport
1985 – 1998
Once per fortnight, more
often in Winter
Miss L Dixon*
1955 – 1998
Every month
Miss SA Drevett
1975 – 1998
100 x per year
Mrs J Gordon
1960 – 1998
2 times or more per week
as a child.
Once per week as an
adult.
Branches across route
but did not prevent use.
Also used on foot.
Hunter Trials were held
on Common and riders
schooled horses on
well worn circle.
Also used on foot.
Branches and logs
across track (date not
stated).
Also used on foot.
Used route to access
Common to play as a
child. Branches across
the track (date not
stated). Common used
for Pony Club events.
Miss L Grayer
1971 – not stated
Several times per week
Mrs SA Grayer*
1971 until permissive
bridleway established
Several times per week
Mrs R Harber
1983 – 1998
once per week
Miss N Harber
1983 – 1998
2-3 times per week
Mrs R King
1963 – 1981
Also used on foot.
Some use for access.
‘Private’ notice on
tarmac drive at School
Lane. Fallen tree
blocked route (date not
given).
Some use for access to
fields used for grazing
at Little Bridge House
and Burnt House Farm.
‘Private’ notice on drive
to Burnt House Farm.
Fallen tree in1995
blocked way.
Also used on foot.
States “entrance form
School Lane was
altered a few years
ago”. Branches across
path entrances. Told
way not public by Mrs
de Rivaz. Knows of
others being
challenged.
Large branches
blocked route at each
end. Verbally
challenged by adjoining
owner at Tanyard Lane.
Also used on foot.
Once per week
Mrs P Orr
1983 – 1998 (inc.
permissive path)
2 times per week 1983 –
1986 then weekly in
Winter
Mrs H Rawlings
Verbally challenged by
person unknown in
approx 1988
1961 – 1998
2 times per week 1961 –
1970, infrequently since
on foot
Miss J Sadler
1958 – 1983
3 times per week
Also used on foot.