Regulatory Committee
Meeting to be held on 7 March 2012
Electoral Division affected:
Nelson South
Wildlife and Countryside Act 1981
Claimed Public Footpath from Public Footpath No. 56 to Public Footpath No.
24 Nelson, Pendle Borough
Claim No. 804/513
(Annex ‘A’ refers)
Contact for further information:
Jayne Elliot, 07917 836626, Environment Directorate,
jayne.elliott@lancashire.gov.uk
Charlotte Ripley, 01772 533427 County Secretary and Solicitor's Group
charlotte.ripley@lancashire.gov.uk
Executive Summary
The claim for a public footpath from Public Footpath No. 56 to Public Footpath No.
24 Nelson, Pendle Borough, to be added to the Definitive Map and Statement of
Public Rights of Way, in accordance with Claim No. 804/513.
Recommendation
i. That the Claim for a public footpath from Public Footpath No. 56 to Public
Footpath No. 24 Nelson to be added to the Definitive Map and Statement of
Public Rights of Way, in accordance with Claim No. 804/513, be accepted;
ii. That an Order be made pursuant to Section 53(2)(b) and Section53(3)(c)(i) of
the Wildlife and Countryside Act 1981 to add to the Definitive Map and
Statement of Public Rights of Way a public footpath from Public Footpath No.
56 (Grid Reference SD 8755 3635) for a distance of approximately 930
metres to Public Footpath No. 24 Nelson (Grid Reference SD 8844 3628) and
shown between Points A and G on the Committee plan;
iii. That a further report be presented as to whether the higher test for confirming
the said Order can be satisfied once the period for submitting objections and
representations to the Order has expired.
Background
A claim has been received for a footpath extending from a point on Public Footpath
No. 56 Nelson to a point on Public Footpath No. 24 Nelson, a distance of
approximately 930 metres, and shown between points A - G on the attached plan, to
be added to the Definitive Map and Statement of Public Rights of Way.
Consultations
Pendle District Council
Pendle Borough Council has been consulted and a response has been received
from the Countryside Access Officer who explains he has been aware of this
footpath for a number of years in his capacity as the Council's Countryside Access
Officer. He explains he has used the route on one occasion three or four years ago
to complete a circuit walk to return to his vehicle after inspecting other footpaths
without obtaining the landowners' permission. He believed the route was a public
right of way and he saw no stiles or gates along the footpath.
He explains, after having received a large number of calls from the public who had
used the route for many years and after having questioned their usage, he is
convinced the route has been used by people as of right and without interruption for
a full period of 20 years. Mr Partridge has provided the County Council with copies of
email correspondence from the public and community groups to highlight the public's
disappointment at the closure of the route.
He explains the width of the footpath is probably much wider than the notional width
of a trodden route. He explains people who have used the route have enjoyed the
footpath for wider amenity rights rather than simply passing and repassing. He
explains evidence for wider amenity rights has been included by two user forms
considered below. It is emphasised that the wider amenity rights should be protected
with the path being given a width of 8 metres.
The Borough Council has previously owned part of the land where the claimed route
runs and have information from that time which is referred to in the section of this
Report below which sets out consideration of documentary evidence.
Parish Council
There is no parish council for the area.
Executive Director for the Environment's Observations
Site Inspection
Points annotated on the attached plan.
Point A
Grid
Reference
SD 8755 3635
Point B
8770 3629
Point C
Point D
Point E
8773 3627
8779 3627
8798 3627
Description
Junction of claimed route with Public Footpath no. 56
Nelson
Boundary wall (not maintained) between 2 different
landowners
Start of stone wall running adjacent to claimed route
Claimed route crossed by drainage channel
Claimed route crosses fence line
Point F
8834 3632
Point G
8844 3628
Claimed route leaves recently constructed access
track
Junction of claimed route with Public Footpath no. 24
Nelson
Description of Route:
An initial site visit was carried out on 7 October 2011. Access along the claimed
route was prevented by fencing at point A and point G. It was therefore necessary to
contact the owners of the land to request permission to access the land so that the
claimed route could be properly inspected. A further site inspection was carried out
on 2 November 2011 accompanied by Mr John Preston, Mrs Carole Ormerod, Mr
David Ormerod and Mr Peter Rutkowski.
Since the erection of fencing across the claimed route at point A and point G access
along the claimed route has been prevented. There is evidence of some damage to
fencing at point A and point G but this has been repaired to prevent access. Signs at
both ends of the claimed route state that the land is private and at point G signs also
indicate that dogs run free across the land.
The claimed public footpath extends between two existing public footpaths along the
bottom of a secluded valley adjacent to Catlow Brook. Public Footpath nos. 56 and
24 Nelson both appear to be well used and well signposted.
The claimed route leaves Public Footpath no. 56 Nelson approximately 35 metres
north of its junction with Public Footpath nos. 5 and 8 Briercliffe.
Access onto the claimed route is prevented at point A by a substantial post and wire
fence. Signs have been erected close to point A indicating that the land is private. It
is not possible to climb over the fence without difficulty and there are no gates, gaps
or stiles allowing access.
Beyond the fence at point A the claimed route extends in an east south easterly
direction across rough grassland planted with young coniferous trees. A relatively
new looking sign has been positioned on the claimed route and is visible from Public
Footpath no. 56 Nelson stating 'Keep Out, Private Plantation'.
The claimed route continues for approximately 160 metres in a general east south
easterly direction across the field to the north of Catlow Brook to point B. On the
opposite side of the brook, close to point B is Pig Hole Mill, owned and occupied by
the current owner of the field over which the claimed route passes between point A
and point B. It is possible to view this section of the claimed route from Pig Hole Mill.
Between point A and point B a narrow worn track is visible on the ground indicating
that there is regular pedestrian use. The landowners present at the time of the
inspection made reference to the fact that they used the 'route' regularly –
sometimes 4 or more times a day to check their boundary fences, carry out work on
the land and to watch and monitor the wildlife. They also pointed out that the worn
track formed part of an established badger run and pointed out that it continued to a
point in the fence line where it appeared that the badgers gained access under the
fence.
At Point B the claimed route crosses a boundary line (not maintained) and drops
down into a wooded area. There is no physical restriction to access at point B
although a sign has been erected in a tree close to point B stating 'No access
through Catlow Bottoms, private land' a second sign states 'Caution, dogs running
free'.
From point B the claimed route continues in a more south easterly direction through
an area of mature beech trees towards the brook and to the corner of a stone wall at
point C. It then continues bounded by stone walls on either side which have broken
down in places to point D where it is crossed by a stone drain.
From point D the claimed route continues in an easterly direction along the bottom of
the valley. A narrow worn track is visible throughout the full length. To the north and
south of the claimed route the valley rises steeply and the slopes are wooded.
At point E the claimed route crosses an old stone wall/fence line. The claimed route
passes through a gap in the wall/fence and there is evidence that barbed wire has
been cut and twisted back on itself to provide access at this point.
The claimants submitted two photographs of a stile that they claimed existed at this
location as part of their application. The first dated circa 1997 and the second dated
2002. Since that time the 'stile' has been removed and part of the stone wall has
been rebuilt. Some wooden fencing remains and access along the claimed route is
possible through the gap with evidence of recent pedestrian use.
Beyond point E the claimed route continues in an easterly direction along the bottom
of the valley. A pedestrian track is visible that corresponds to the claimed route.
The claimed route passes two wildlife viewing stations that have been erected by the
landowners for their private use. It crosses rough grassland, not currently used for
grazing with areas of woodland to the north.
The claimed route continues towards point F and rises gradually uphill as the land
below it falls steeply down to the brook. It follows, for a short distance, a track that
has been cut into the hillside by the current landowners. At point F the claimed route
leaves the track to pass through an area of woodland and descends gradually back
down to the valley floor. This section of the claimed route is more overgrown and
less obvious than the rest of the route. On the approach to point G the claimed route
gets more overgrown and there is no visible route on the ground.
At point G the claimed route meets Public Footpath no. 24 Nelson but access to it is
prevented by a substantial post and wire fence. Signs exist, visible from Public
Footpath no. 24 stating that the land is private and warning that dogs roamed free on
the land.
No one was seen using or attempting to use the claimed route during either site
inspection. The isolated and sheltered nature of the location mean that it is
impossible to view the majority of the claimed route from the surrounding area. The
sheltered valley is home to a significant and established badger set and deer and
hares were seen during the second site inspection.
There is no evidence that the public can currently gain access onto the claimed route
suggesting that the current evidence of use was mainly down to use by the
landowners, people invited onto the land with their agreement and possibly by the
resident wildlife. No livestock (sheep, cattle or horses) currently graze the land
crossed by the claimed route.
Map and Documentary evidence considered
A variety of maps, plans and other documents were examined to see when the
claimed route came into being and to try to determine what its status might be.
Document Title
Date
Yates’ Map
of Lancashire
1786
Brief description of document & nature of
evidence
Small scale commercial map. Such maps were on
sale to the public and hence to be of use to their
customers the routes shown had to be available for
the public to use. However, they were privately
produced without a known system of consultation
or checking. Limitations of scale also limited the
routes that could be shown.
Observations
The claimed route is not shown on Yates' Map
(although Catlow Brook is evident). The scale of
the map and purpose for which it was produced
would make it unlikely that it would have been
shown.
Investigating Officer's
comments
Greenwood’s Map of
Lancashire
No inference can be drawn.
1818
Greenwood's map of 1818 is a small scale
commercial map.
Observations
The claimed route is not shown on Greenwoods'
Map (although Catlow Brook is evident). The scale
of the map and purpose for which it was produced
would make it unlikely that it would have been
shown.
Investigating Officer's
comments
Stockdale's Map
No inference can be drawn.
Observations
1818
Stockdale's Map of 1818 is another small scale
commercial map.
The claimed route is not shown on Stockdale's Map
(although Catlow Brook is evident). The scale of
the map and purpose for which it was produced
would make it unlikely that it would have been
shown.
Investigating Officer's
comments
Hennet's Map of
Lancashire
No inference can be drawn.
1830
Small scale commercial map.
Observations
The area of land through which the claimed route
passes is shown as woodland but the claimed route
is not shown. The scale of the map and purpose for
which it was produced would make it unlikely that it
would have been shown.
Investigating Officer's
comments
Tithe Map and Tithe
Award or
Apportionment
No inference can be drawn.
1849
Maps and other documents were produced under
the Tithe Commutation Act of 1836 to record land
capable of producing a crop and what each
landowner should pay in lieu of tithes to the church.
The maps are usually detailed large scale maps of
a parish and while they were not produced
specifically to show roads or public rights of way,
the maps do show roads quite accurately and can
provide useful supporting evidence (in conjunction
with the written tithe award) and additional
information from which the status of ways may be
inferred. The Tithe Map for Great and Little
Marsden was produced in 1849.
Observations
The claimed route is not shown on the map. The
route now recorded as Public Footpath no. 56
Nelson is shown as an enclosed track with a field
boundary crossing the start of the claimed route at
point A. It is not possible to determine whether a
gate or stile would have existed at this point. The
claimed route crosses further field boundaries at
points C, D and E.
There is no reference to the existence of the
claimed route in the written Tithe Award.
Investigating Officer's
comments
Finance Act 1910
Map
The claimed route probably did not exist in 1849.
Observations
1910
The comprehensive survey carried out for the
Finance Act 1910, later repealed, was for the
purposes of land valuation not recording public
rights of way but can often provide very good
evidence.
There is no reference to the existence of the
claimed route and no deductions for the existence
of a public right of way across any of the plots of
land through which the claimed route past.
Investigating Officer's
comments
Inclosure
Act
Award and Maps
The claimed route probably did not exist in 1910.
Observations
No Inclosure Map or Award was available to view at
the Lancashire Records Office.
Investigating Officer's
comments
No inference can be drawn.
Ordnance Survey
maps
The Ordnance Survey (OS) has produced
topographic maps at different scales (historically
one inch to one mile, six inches to one mile and
1:2500 scale which is approximately 25 inches to
one mile). Ordnance Survey mapping began in
Lancashire in the late 1830s with the 6-inch maps
being published in the 1840s. The large scale 25inch maps which were first published in the 1890s
provide good evidence of the position of routes at
the time of survey and of the position of buildings
and other structures. They generally do not provide
evidence of the legal status of routes, and carry a
disclaimer that the depiction of a path or track is no
evidence of the existence of a public right of way.
6 Inch OS map
Observations
Inclosure Awards are legal documents made under
private acts of Parliament or general acts (post
1801) for reforming medieval farming practices, and
also enabled new rights of way layouts in a parish
to be made. They can provide conclusive evidence
of status.
1848
The earliest Ordnance Survey 6 inch map for this
area.
The claimed route is not shown. The route now
recorded as Public Footpath No. 56 appears to
follow an enclosed track. A dashed line is shown
across the claimed route at point B which could
indicate a boundary. The claimed route is crossed
by 3 further lines between points C and D which
could indicate walls or buildings. Limekilns are
shown to exist close to the claimed route between
point D and point E and the claimed route is
crossed by a field boundary at point E. The
existence of a further limekiln is marked on the map
between point E and point F. The route
corresponding to Public Footpath no. 24 Nelson is
visible as an unenclosed track on the map.
Investigating Officer's
comments
25 Inch OS map
The claimed route did not exist on the ground in
1848.
1893
The First Edition 25 inch map is at the larger scale
showing the area in more detail.
Observations
The claimed route is not shown. The route
corresponding to Public Footpath No. 56 Nelson is
shown to follow an unenclosed track (double
pecked line). The claimed route appears to be
crossed by two solid lines – most likely to be fences
or walls – between points C and D. It is also
crossed by a field boundary at point E. The route
now recorded as Public Footpath no. 24 Nelson is
visible as an unenclosed track on the map.
Investigating Officer's
comments
The claimed route did not exist on the ground at the
time of the survey prior to 1893.
25 inch OS map
1912
Further edition of the 25 inch map.
Observations
The claimed route is not shown. Boundary walls or
fences cross the route at points C, D and E and it is
not possible to determine from the map whether a
gate or stile may have existed as a means of
passing through them.
Investigating Officer's
comments
The claimed route did not exist on the ground at the
time of the survey prior to 1912.
25 Inch OS map
1931
Further edition of 25 inch map (Resurveyed 1891
and revised 1929).
Observations
The claimed route is not shown. The route now
recorded as Public Footpath no. 56 Nelson is
shown as an unenclosed track. The claimed route
appears to be crossed by walls or fences close to
point C and point D and it appears that between
these two points it ran through a thin strip of
enclosed woodland parallel to the river from which
there was access to a footbridge onto the south
side of the brook. The claimed route is crossed by
further boundary fences or walls mid way between
point D and point E and at point E. The route now
recorded as Public Footpath no. 24 Nelson is
visible as an unenclosed track.
Investigating Officer's
comments
The claimed route did not exist on the ground at the
time of the survey for in 1891 and probably also in
1929.
25 Inch OS map
1962
Further edition of 25 inch map revised in 1961.
Observations
The claimed route is not shown. It appears to be
crossed by field boundaries at point B, point D, 60
metres east of point E and at point E.
Investigating Officer's
comments
The claimed route did not exist on the ground in
1961.
6 Inch OS map
1955
The Ordnance Survey base map for the Definitive
Map, First Review, was published in 1955
(although the date of revision was before 1930) at a
scale of 6 inches to 1 mile. This map is probably
based on the same survey as the 1931 25-inch
map.
Observations
The Ordnance Survey 1:10560 (6 inches to 1 mile)
sheet SD 83NE was published in 1955 with the
area of the claimed route having been revised
before 1930. The claimed route is not shown on the
map. The claimed route appears to be crossed by
boundary walls or fences at points C and D, mid
way between point D and E and at point E.
Investigating Officer's
comments
The claimed route did not exist on the ground circa
1930.
6 inch OS map
1967
Further edition of the 6 inch map revised in 1961
and published in 1967
Observations
The claimed route is not shown. It crosses
boundaries at points B, D, midway between point D
and point E and at point E.
Investigating Officer's
comments
The claimed route did not exist on the ground in
1961.
Aerial Photographs
1945
Aerial photographs can show the existence of
paths and tracks, especially across open areas,
and changes to buildings and field boundaries for
example. Sometimes it is not possible to enlarge
the photos and retain their clarity, and there can
also be problems with trees and shadows
obscuring relevant features.
The earliest set of aerial photographs available was
taken just after the Second World War in about
1945 and can be viewed on GIS. The clarity is
generally very variable.
Observations
The route now recorded as Public Footpath no. 56
Nelson can be clearly seen but between point A
and point B the claimed route is not visible on the
ground. Between point B-C-D it is not possible to
see whether the claimed route existed on the
ground due to tree cover. A letter from Mr Peter
Rutkowski submitted as part of the landowners'
evidence makes reference to a number of small
wooden buildings that existed at the time that the
photograph was taken between points B–E. These
buildings could not be identified on the photograph
due to tree cover. Between points E-F-G there is
some intermittent tree cover but if the claimed route
had existed as a worn track on the ground it is
likely that it would have been possible to see the
route on the photograph. A short section of track
from midway between point f and point G is visible
along the route of the claimed path to point G and it
is possible to identify the stone bridge now forming
part of Public Footpath no. 24 Nelson, and close to
point G.
Investigating Officer's
comments
The claimed route did not exist on the ground
between point A-B or between point E-F-G, with the
exception of approximately 45 metres on the
approach to point G. The remainder of the route
could not be seen due to tree coverage suggesting
that the claimed route did not exist in the 1940s.
Aerial photograph
Observations
1960s The black and white aerial photograph taken in the
1960's and available to view on GIS.
The claimed route does not exist on the ground
between points A-B. At point B there appears to be
a gap in the tree line on the claimed route but
beyond that it is not possible to determine whether
the claimed route existed between points B-C-D-E
due to tree cover. At point E a boundary wall is
visible and appears to cross the claimed route.
There is no evidence that a gap or gate existed but
it is not possible to determine whether a stile would
have existed in the wall. A short section of track
appears to exist between points E-F that
corresponds to the claimed route but beyond that
tree coverage and shadows on the photograph
mean that it is not possible to determine whether
the remainder of the claimed route exists.
Investigating Officer's
comments
Aerial photograph
Part of the claimed route existed on the ground
between point E-F. The claimed route did not exist
on the ground between point A-B and the
remainder of the route was obscured by tree
coverage making it impossible to determine
whether the route existed or not.
2000
Colour aerial photographs viewed on GIS
Observations
Between points A–B the claimed route did not exist
on the ground. At point B there appeared to be a
gap in the trees in the boundary wall corresponding
to the point at which the claimed route crosses the
boundary. Between points C-D it is not possible to
see whether the claimed route existed due to tree
cover. Between point D-E a track is visible on the
ground that corresponds to the claimed route. The
field boundary crossing the claimed route at point E
is visible but it is not possible to determine whether
a stile or gate existed. Between point E-F it was
possible to see part of the claimed route on the
ground although it was partially obscured by tree
cover and between point F-G it was not possible to
determine whether the claimed route existed or not
due to tree cover.
Investigating Officer's
comments
The claimed route did not exist on the ground
between point A-B. It existed on the ground
between point D-E and appeared to exist between
point E-F, although this was partially obscured by
tree cover. The remainder of the route between
points B-C-D and F-G where not visible due to tree
cover.
Aerial photograph
Observations
2010
Colour aerial photograph taken in 2010 and viewed
on GIS.
This photograph was taken in the winter meaning
that the route was less obscured by tree cover. A
track was clearly visible on the ground between
point A and point B. It was not possible to see
whether the claimed route existed between points
B-C-D due to tree cover. Between points D-E-F
there is some tree cover but it is still possible to
pick out the line of the claimed route on the ground.
Between point F – point G it was not possible to
see whether the route existed due to tree cover. It
was noted that several other routes could be seen
on the aerial photograph traversing the valley,
some of which linked to the claimed route.
Investigating Officer's
comments
Other photographs
The claimed route existed on the ground between
point A-B and point D-E-F. The remainder of the
route could not be seen due to tree coverage.
30th
May
2009
Google aerial photograph submitted by the
claimants as part of their supporting evidence.
The date the image was captured (May 2009) has
not been verified with Google.
Observations
Aerial photographs submitted by the applicant who
has marked the claimed route using a series of red
arrows.
The claimed route can be seen on the ground
between point A and point B. From point B through
to point D it is not possible to see the claimed route
due to tree cover. From point D it is possible to
follow a track that follows closely to the claimed
route to point F where it again becomes obscured
by tree coverage for a short distance before it is
possible to pick up the route through to point G.
Investigating Officer's
comments
It is possible to identify the majority of the claimed
route from the aerial photograph apart from short
sections obscured by tree cover. A number of other
paths appear to exist across the land – many of
which link to the claimed route. The route marked
by red arrows does not follow exactly the line
shown on the Committee plan and confirmed by the
applicants as being the claimed route and it is not
possible to determine whether the tracks were
formed by pedestrian use, wild or farm animals or
vehicles.
Definitive Map
records
The National Parks and Access to the Countryside
Act 1949 required the County Council to prepare a
Definitive Map and Statement of Public Rights of
Way.
Records were searched in the Lancashire Records
Office to find any correspondence concerning the
preparation of the Definitive Map in the early
1950s.
Parish survey map
19501952
The initial survey of public rights of way was carried
out by the parish council in those areas formerly
comprising a rural district council area and by an
urban district or municipal borough council in their
respective areas. Following completion of the
survey the maps and schedules were submitted to
the County Council. In the case of municipal
boroughs and urban districts the map and schedule
produced, was used, without alteration, as the Draft
Map and Statement. In the case of parish council
survey maps, the information contained therein was
reproduced by the County Council on maps
covering the whole of a rural district council area.
Observations
Nelson Urban District Council produced a map that
was used, without alteration as the Draft Map and
did not show the claimed route as a public right of
way.
Draft Map
The preliminary survey work was carried out in
Lancashire from the early 1950s. An accompanying
description was usually written for each path. In this
area it was undertaken by Nelson Urban District
Council who produced a map of routes they
believed to be public drawn onto a 6-inch Ordnance
Survey map. It was given a “relevant date” (1st
January 1953) and notice was published that the
draft map had been prepared. The Draft Map was
placed on deposit for a minimum period of 4
months on 1st January 1955 for the public, including
landowners, to inspect them and report any
omissions or other mistakes. Hearings were held
into some of these objections, and
recommendations made to accept or reject them on
the evidence presented.
Observations
The claimed route was not shown on the Draft Map
of Public Rights of Way. In this instance, there were
no formal objections or other comments about the
omission of the claimed route.
Provisional Map
Once all these representations were resolved, the
amended Draft Map became the Provisional Map
which was published in 1960, and was available for
28 days for inspection. At this stage, only
landowners, lessees and tenants could apply for
amendments to the map, but the public could not.
Objections by this stage had to be made to the
Crown Court.
Observations
The claimed route is not shown on the Provisional
Map of Public Rights of Way. In this instance no
objections to the omission of the path were made.
The First Definitive
Map and Statement
The Provisional Map, as amended, was published
as the Definitive Map in 1962.
Observations
The claimed route was not shown on the First
Definitive Map and Statement of Public Rights of
Way.
Revised Definitive
Map of Public Rights
of Way (First Review)
Legislation required that the Definitive Map be
reviewed, and legal changes such as diversion
orders, extinguishment orders and creation orders
be incorporated into a Definitive Map First Review.
On 25th April 1975 (except in small areas of the
County) the Revised Definitive Map of Public Rights
of Way (First Review) was published. No further
reviews of the Definitive Map have been carried
out. However, since the coming into operation of
the Wildlife and Countryside Act 1981, the
Definitive Map has been subject to a continuous
review process
Observations
The claimed route is not shown on the Revised
Definitive Map and Statement of Public Rights of
Way (First Review).
Investigating Officer's
comments
The claimed route was not considered to be a
public right of way in the 1950s nor to have become
a public right of way by the 1960s.
Statutory deposit
and declaration
made under section
31(6) Highways Act
1980
The owner of land may at any time deposit with the
County Council a map and statement indicating
what (if any) ways over the land he admits to
having been dedicated as highways. A statutory
declaration may then be made by that landowner or
by his successors in title within ten years from the
date of the deposit (or within ten years from the
date on which any previous declaration was last
lodged) affording protection to a landowner against
a claim being made for a public right of way on the
basis of future use (always provided that there is no
other evidence of an intention to dedicate a public
right of way).
Depositing a map, statement and declaration does
not take away any rights which have already been
established through past use. However, depositing
the documents will immediately fix a point at which
any unacknowledged rights are brought into
question. The onus will then be on anyone claiming
that a right of way exists to demonstrate that it has
already been established. Under deemed statutory
dedication the 20 year period would thus be
counted back from the date of the declaration (or
from any earlier act that effectively brought the
status of the route into question).
Observations
A map, statement and statutory declaration were
deposited with the County Council on 6th July 2010
covering part of the claimed route between points
A-B on the Committee plan. There are no statutory
deposits, maps or plans covering the remainder of
the claimed route nor for any time prior to 2010.
Investigating Officer's
comments
There are no statutory deposits covering the period
of time during which it is claimed that the route
became a public right of way.
Conveyance of land
at Catlow Bottoms
Observations
1978
A copy of a conveyance for the sale of land owned
by Pendle Borough Council to Mr and Mrs Cannon
of Catlow Fold Farm, Nelson dated 1978 and
related correspondence.
The conveyance detailed the sale of a plot of land
through which part of the claimed route (between
point D and point E) passes. The conveyance
reserves to the vendor (Pendle Borough Council)
and its successors in title the right to provide a
public footpath along a line shown by a green
broken line on the plan that accompanies the
conveyance.
The green line marked on the plan differs slightly
from that of the claimed route but it is very close to
the claimed route and in places is identical.
It is unusual for the vendor to retain a right to
provide a public footpath along a specific route
especially as the vendor was the Borough Council
who, as landowners would have had the ability to
create a public footpath whilst the land was in their
ownership and who have the power under sections
25 & 26 of the Highways Act 1980 to create a
public footpath across land not in their ownership.
Further inquiries were made to Pendle Borough
Council. Files dating back to 1978 revealed that
shortly before the sale of the land had been
agreed, the Pennine Paths Preservation Society
had written to the Borough Council asking the
Council to consider creating a public footpath along
the valley to mark the Society's 50th anniversary.
The Borough Council saw this as a vital link and
reserved a right of access along the proposed route
when they sold the land to a local farmer. It
appears from correspondence that the Borough
Council intended to approach the owners of the
land either side of the plot to be sold to seek their
agreement to enter into a creation agreement to
create a public footpath along a route that was very
similar, and in places identical to the claimed route.
No further correspondence could be found on the
files to suggest that an agreement was
subsequently made and there was nothing to
indicate whether or not there was already any
public use of the claimed route.
Investigating Officer's
comments
It appears that the claimed route was not
considered to be a public footpath in 1978. There is
nothing to indicate whether or not there was
already any public use of the claimed route at that
time but the fact that the Pennine Paths
Preservation Society requested that a footpath be
created and the Borough Council acting upon that
request – and describing it as a vital link - gives a
good indication of the public desire to walk the
claimed route.
Photograph of picnic
at Catlow circa 1900
Black and white photograph submitted by the
applicant said to be taken circa 1900 and found on
the internet – http://www.briercliffesociety.co.uk.
Photograph shows people having a picnic in a
valley bottom and is titled 'Picnic at Catlow'.
Observations
The Investigating Officer was unable to match any
point on the claimed route that confirmed that the
photograph was taken on the claimed route and
there is no indication who the picnickers are, how
they got there or whether they had the permission
of the landowner to be there.
Investigating Officer's
comments
No inference can be drawn.
The land crossed by the route claimed for addition to the Definitive Map is not
recorded as access land under the provisions of the Countryside and Rights of Way
Act 2000. It is not recorded as a Site of Special Scientific interest or a biological
heritage site.
To summarise, the Investigating Officer was unable to find any documentary or map
evidence to support the existence of the claimed route. Aerial photographs dating
from the 1960's show part of the claimed route existing as a worn track but fail to
show it all, possibly due to tree cover. Correspondence and the conveyance for the
sale of a plot of land owned by Pendle Borough Council suggest that the claimed
route did not exist as a public footpath in 1978.
Description of the new path for inclusion in the Definitive Statement if Order is
to be made (and subsequently confirmed)
The following should be added to the Definitive Statement for Nelson, Pendle
Borough;
Proposed Schedule to Order
SCHEDULE
PART I
MODIFICATION OF THE DEFINITIVE MAP
DESCRIPTION OF WAY TO BE ADDED
A public footpath from a point on Public Footpath No. 56 Nelson at grid reference
SD 8755 3635, in a general easterly direction through the valley containing Catlow
Brook crossing field boundaries at SD 8770 3629 and SD 8798 3627 to join Public
Footpath No. 24 Nelson at Catlow Bottoms SD 8844 3628.
PART II
MODIFICATION OF DEFINITIVE STATEMENT
Add Statement for Nelson 239 as follows:
"From a junction with Public Footpath 56 Nelson at SD 8755 3635 in a generally
easterly direction along the valley containing Catlow Brook for a distance of 930
metres crossing an unmarked property boundary at SD 8770 3629 and a field
boundary at SD 8798 3627 to join Public Footpath No. 24 Nelson at Catlow Bottoms
SD 8844 3628.
Width: 2 metres
Limitations and Conditions: Stile at SD 8798 3627
Length: 0.93km"
County Secretary and Solicitor's Observations
User Evidence Forms
In support of the claim, the applicant has submitted sixty-two user evidence forms.
The forms indicate use of route for:
0-10 years (11)
11-20 years (6)
21-30 years (13)
31-40 years (13)
41-50 years (10)
51-60 years (4)
61-70 years (2)
One user claims the route has been used for most years, another user says it has
been used for decades and one user does not specify the number of years the route
has been used for.
The user evidence forms indicate the route has mainly been used for the purposes of
exercise, leisure walking, recreational purposes, walking the dog, picnics, bird
watching and enjoying the countryside.
The frequency of use ranges from being used as little as 2/10/100 times a year to
being used daily and 2 or 3 times per week. Some users do not specify a figure and
instead state the route has been used regularly and almost daily. All the users claim
to have used the route on foot and by no other means.
There is some discrepancy about the line the route has followed. Five users claim
the route has not always followed the same line, two users state the route has
roughly followed the same line. One user explains due to water logging there has
been a slight deviation to the route. Most of the users agree there has been a stile
along the route, some users state it is no longer present as it has been replaced by
fencing, some explain that there is both stiles and fencing present.
None of the users report any gates being locked along the route and most users
have not been prevented from using the route. However, recently some users have
been turned back by the new owner who has made it clear that the route is private.
Some users explain the net wire fencing prevents access along the route and there
is a notice stating 'private' attached to the gateway and tree. Most users explain they
have seen a notice along the route which was put up recently. One user explains
there are three notices which have been put up which state, 'no access', 'No access
to Catlow, private land', 'private plantation keep out'. Various dates have been given
for when these notices were put up. Most users agree the notices were put up
recently and have been up on site since January/February 2010. None of the users
claim to have asked for permission to use the route.
One of the users states the path is well used and clearly defined despite periods of
cattle grazing which rendered it extremely boggy in places. He explains the only time
he has known it to be closed was during the foot and mouth outbreak when the stiles
were taped over to prevent access.
Another user explains that the planning permission for Holiday Homes has displaced
the 12 deer, they moved down to this land but due to the fencing they have been
displaced again. Many of the users are worried about the loss of ancient countryside.
On one of the forms the witness says he has seen others using the route on
horseback and on motorcycle or in vehicle.
Other Information from the Applicant
The applicant states the route is not simply a connecting route linking one area of
land with another, he explains it has served over many years as a vehicle for diverse
recreational activities such as picnicking, paddling in the river, watching wildlife and
studying plants.
The applicant has included aerial photographs which delineate the route; these have
been examined by the officers in the Environment Directorate. A picture from the
1900's illustrates a family having a picnic at Catlow, but from the picture it is not clear
whether this was taken along the claimed route.
The applicant has included photographs which he claims were taken along the
claimed route thirteen years ago. They illustrate the applicant standing next to a new
stile and fencing which was erected at the time. The applicant has pointed out that
the stile has now fallen into complete disrepair. The aerial photographs have been
examined by the officers in the Environment Directorate.
Information from others
In response to the formal consultations carried out, the Lancashire Badger Group
has responded to explain the land is important habitat for a long established clan of
badgers. The group has been involved with the development of a wildlife hide to
study badgers, birds and other species. This requires the route to be free of human
activity and would be jeopardised by a public right of way that would allow the public
close to the facility and therefore possibly disturb the wildlife being observed.
In conclusion the group feel the creation of a public right of way close to this location
would be a detriment and even a danger to badgers and possibly other established
wildlife in the location.
Information from the Landowners
Mrs Ormerod and Mr & Mrs Preston, the current owners of the land, have both
registered in writing objections to the claim. They have supplied corroborating
evidence from 2 employees of the previous landowners and members of the public
from the locality. They have supplied a petition with 53 signatories who dispute the
existence of the claimed right of way.
They object to the claim on the following grounds;
1. Access to the route has been by force and not "as of right".
A letter in support of the landowner's objection has been supplied by Mr Peter
Rutkowski who worked for both Mr Cannon and Mr Binns who owned the land from
the 1940's. He states that the land was private farmland for grazing purposes and
was entirely enclosed with either a boundary wall or stock proof fencing to keep out
trespassers and to prevent livestock from wandering. He remembers Mr Cannon
erecting electric fencing when he grazed his bulls and Mr Binns erecting gates at the
narrowest point of his land to prevent his bulls wandering up stream. He remembers
that in the late 1990's Mr Cannon had problems with people vandalising walls and
cutting through fences. He states Mr Cannon was in regular contact with Pendle
Borough Council regarding the problem who as a result erected signage showing the
correct route of the public right of way.
Mr Wiggan who worked on Catlow Fold Farm for Mr Cannon for over 45 years and
who was responsible for the construction of the fencing on the farm has provided a
letter in which he states there was definitely no stile allowing access between the two
farms. He has viewed the photograph of stile provided by the applicant and states
that the stile is actually a fencing tensioner which has been vandalised to allow
access. He remembers re-fencing a large proportion of the land around the time the
council erected the signage in the late 1990's but many of the fences were
vandalised. He states he replaced that stretch of fence on numerous occasions.
Mrs Alice Binns, the widow of Mr Binns, has provided a letter stating that the land
was used for the grazing of cattle. She states that walls and fences were vandalised
by trespassers but were repaired.
Mrs Carole Ormerod disputes the existence of the stile between Mr Cannon's and Mr
Binns' land. She argues that there was no way of getting through until 2004 when Mr
Cannon purchased Mr Binns' land and removed the fences so livestock could access
both fields. Eight letters have been supplied by members of the public who dispute
the existence of a stile and any access between the two fields until Mr Cannon
purchased Mr Binns' land.
Mrs Ormerod erected stock-proof fencing in 2009 following her purchase of the land.
Mr & Mrs Preston state that in 2010 fencing that they erected was vandalised.
If the boundary walls and fences were vandalised to allow access, the landowners
would argue that such access had been obtained by force and not "as of right".
2. Signage
In 2009 Mrs Ormerod states that she erected clear & visible signs to keep
trespassers off her land.
She comments in her letter that it had been a tradition amongst previous owners of
the land to allow picnickers to sit and play on the land by the Pack Horse Bridge.
This area was usually separated by a "Private" sign past the bridge.
Mr Peter Rutkowski recalls Mr Binns erected a warning sign fastened to a tree and
pointing in the direction of the ford which read "Beware Bull Keep Out".
Mr & Mrs Preston highlight signs erected by Pendle Borough Council on the Public
right of way which state clearly that the land is farmland and that walkers must stay
on the public footpath which they state they have been told by the Council have been
there for decades.
3. Public Access to the route denied by the actions of the Landowners
Mr Peter Rutkowski witnessed trespassers being warned off the land.
He also remembers Mr Simpson, who owned part of the land until the late 1970's
throwing sticks and stones and firing shotgun in the air to warn off trespassers.
Letters have been supplied by 2 members of the public who remember being warned
of the land by Mr Cannon.
Mrs Ormerod has confronted trespassers herself and has also contacted the Police
on several occasions since 2009 to report trespassers and have them removed from
her land.
Mr & Mrs Preston state that they have advised people walking on the land that it was
private land and there is no public footpath and state they have called the Police on
numerous occasions to remove trespassers. They state that the previous owners Mr
& Mrs Pedler also had similar problems. They also advised people it was private
land.
The landowners would argue that asking the public to leave the field over the years
is a clear rebuttal of any presumption to dedicate any part of the route for
unrestricted public use.
4. Absence of a trodden path
Mr & Mrs Preston dispute the existence of a trodden footpath and argue that
photographs of what appear to be a footpath are animal tracks formed by badgers,
deer, hare and foxes and by the landowners themselves walking their dogs.
Mrs Ormerod has raised the objection that she is working closely with the Woodland
Trust, Deer Society and the Badger Group on conservation projects on the land
which she argues would be jeopardised by the claimed public right of way. The
Committee will, of course, be aware that such submissions, whilst of importance to
those persons making them, have no bearing on whether or not the path exists in
law.
5. Questions of credibility of user evidence
Questions have been raised about how long some of those giving evidence have
lived in the area and whether their claim to have used the route for a long period of
time is credible.
Assessment of the Evidence
The Law - See Annex 'A'
In Support of the Claim:


Evidence of use
Aerial photographs
Against Accepting the Claim:


No documentary or map evidence to support the existence of the entirety of
the claimed route.
Actions by landowners;
 Use not “as of right”
 Obstructions across route
 Signage
 Interruptions to use
Conclusion
In this matter it is claimed that a route along the brook is already a public footpath in
law such that it should be recorded on the Definitive Map and Statement.
There is no express dedication and so it is advised that the evidence is considered to
see if a dedication can, on balance, be deemed under S31 Highways Act 1980 or
inferred at Common Law from all the circumstances.
In this matter the evidence is overwhelmingly user evidence countered by evidence
of actions taken by owners or tenants of the land in question.
Considering first of all the possibility of inferring dedication at common law the
Committee will note that evidence has to point to actual intention to dedicate by
owners by them acquiescing in the public use such that from this circumstance an
intention to dedicate could be inferred. In this matter this could be difficult given the
information about the owners over time except for possibly the middle section being
owned by the Borough Council until 1979. It appears that the Council were trying to
obtain agreement for a new footpath but without result. Their willingness to recognise
a footpath on their owned section would not achieve a through route and it is
suggested that dedication of the claimed route would be difficult to prove on balance
at common law.
Considering the provisions of S31 Highways Act, the Committee will appreciate that
the protestations by present owners and actions taken since the route was called
into question are not relevant. What needs to be considered is the use in the
previous 20 years and actions by the owners during that period.
It is advised that it would appear that sufficient actions were taken by the present
owners in 2009 which called the route into question.
If it is considered that the route was effectively called into question in 2009 the period
of 1989 – 2009 is the period of use to consider. There appears on the face of it to be
sufficient evidence of use during that period but there are also references to Mr
Cannon being frustrated by vandalism and contacting Pendle Borough Council,
reference to new fencing in the late 1990s and a fence being in place at point E until
cut in 2004 when the land became owned by the same owner.
The Committee will need to consider whether such actions mean that the use of the
route cannot be said to be as of right, or effectively interrupted use or are sufficient
evidence of the lack of intention to dedicate such that the test in S31 Highways Act
cannot be satisfied. There is a balancing of the evidence.
The test for the Order to be made requires the Committee to be satisfied on balance
that a dedication can be reasonably alleged to have happened. This test was
discussed in the 1994 Bagshaw and Norton case and the court felt that where there
is a conflict of credible evidence and no incontrovertible evidence that a way cannot
be reasonably alleged to subsist, then it must be that it is reasonable to allege that
one does subsist. The Committee may consider that there is on balance credible
evidence of 20 years user throughout the relevant period and conflicting views have
been expressed regarding whether their use was as of right and not interrupted.
There is also conflicting evidence regarding whether the landowners sufficiently
demonstrated a lack of intention to dedicate the route, taking action to draw this to
the attention of users during 1989-2009.
The Committee may feel that the lower test for making an Order can be satisfied.
However, the test for confirming the Order is a higher test and it may be considered
that this is a finely balanced matter and that an opportunity, if the Order is made, is
available for further information to be provided. If it is decided that an Order be
made, it is suggested that a decision about whether the Committee feels that the
confirmation test can be satisfied in this matter be deferred until the statutory period
of time to lodge objections and other representations is ended. A further report can
then bring details of any further representations and evidence can be discussed and
the evidence more thoroughly tested and evaluated to assess whether to promote an
Order to confirmation.
Risk Management
Consideration has been given to the risk management implications associated with
this claim. The Committee is advised that the decision taken must be based solely
on the evidence contained within the report, and on the guidance contained both in
the report and within Annex 'A' (item 4) included in the Agenda Papers. Provided any
decision is taken strictly in accordance with the above then there is no significant
risks associated with the decision making process.
Alternative options to be considered


To decide that there is not even enough evidence to make an order and that
the claim be not accepted.
To be satisfied that there is sufficient evidence to be able to promote the
Order to confirmation and there be no requirement for a further report
Local Government (Access to Information) Act 1985
List of Background Papers
Paper
Date
All documents on Claim File
Ref: 804/513
Reason for inclusion in Part II, if appropriate
N/A
Contact/Directorate/Tel
Charlotte Ripley, County
Secretary and Solicitor's
Group,
01772 533427