Regulatory Committee
Meeting to be held on 17th March 2011
Electoral Division affected:
Farington.
Wildlife and Countryside Act 1981
Claimed Public Footpath from St Clements Avenue to Bristol Avenue,
Farington, South Ribble Borough
Claim No. 804/508
(Annex ‘A’ refers)
Contact for further information: Mrs R J Paulson, 01772 532459, Environment
Directorate. ros.paulson@lancashire.gov.uk
Saleha Khalid, 01772 533427, County Secretary and Solicitors Group,
Saleha.khalid@lancashire.gov.uk
Executive Summary
The claim for a public footpath from between Nos 56 and 58 St Clements Avenue to
a point on Bristol Avenue between 33 Bristol Avenue and Clifton Parade, Farington,
to be added to the Definitive Map and Statement of Public Rights of Way, in
accordance with Claim No. 804/508.
Recommendation
That the Claim for a public footpath from between Nos 56 and 58 St Clements
Avenue to on Bristol Avenue a point between 33 Bristol Avenue and Clifton Parade,
Farington, to be added to the Definitive Map and Statement of Public Rights of Way,
in accordance with Claim No. 804/508, be accepted.
i.
That an Order be made pursuant to Section 53 (2) (b) and Section 53 (3) (c)
(i) of the Wildlife and Countryside Act 1981 to add to the Definitive Map and
Statement of Public Rights of Way a footpath from a point between 56 and 58
St Clements Avenue, (Grid Reference SD 5517 2329) for a distance of
approximately 75 metres to a point on Bristol Avenue between 33 Bristol
Avenue and Clifton Parade, Bristol Avenue, Farington, South Ribble Borough
(Grid Reference SD 5516 2322) shown between Points A and H on the plan.
ii.
That, being satisfied that the higher test for confirming the said Order can be
satisfied, the said Order be promoted to confirmation if necessary by sending
it to the Secretary of State.
Background
A claim has been received for a footpath extending from a point between 56 and 58
St Clements Avenue, Farington, to a point between 33 Bristol Avenue and Clifton
Parade, Bristol Avenue, a distance of approximately 75 metres, and shown between
points A-B-C-D-E-F-G-H on the attached plan, (Grid Reference SD 5517 2329 to
Grid Reference SD 5516 2322), to be added to the Definitive Map and Statement of
Public Rights of Way.
Consultations
Borough Council
South Ribble Borough Council has been consulted however, no response has been
received; it is therefore assumed the Council has no comments to make.
Parish Council
Farington Parish Council has been consulted and states that it aware of local
residents concern about the illegal closure of the path and has no objection to this
footpath claim being accepted.
Claimant/Landowners/Supporters/Objectors
The evidence submitted by the claimant/landowners/supporters/objectors and
observations on those comments is included in ‘Advice – County Secretary and
Solicitor’s Observations’.
Advice
Environment Director’s Observations
Points annotated on the attached plan (Plan No. 508A).
Grid Reference
Description
Point A
SD 5517 2329
Junction of claimed route and St Clements Avenue.
Point B
SD 5516 2327
Point adjacent to street lighting column on claimed
route.
Point C
SD 5516 2325
Point where claimed route exits the enclosed
passageway and meets the car park at the rear of the
Spar shop.
Point D
SD 5516 2325
Point at the north-west corner of the car park to the
rear of the Spar shop.
Point E
SD 5516 2324
Point on claimed route adjacent to the northerly end
of the private step structure.
Point F
SD 5516 2323
Metal gate and post adjacent to the southern end of
the private step structure and the gate post.
Point G
SD 5516 2323
Point on claimed route adjacent to the footway at the
front of the Spar shop.
Point H
SD 5516 2322
Junction of claimed route and Bristol Avenue.
Description of Route
A site inspection was carried out on 17 February 2011.
The claimed route commences at point A, at a point on St Clements Avenue,
between 56 and 58 St Clements Avenue.
At point A, a wooden fence has been erected preventing access to the route. The
width at this point measures 1.6 metres between the wooden garden fence panels
that form the boundary to the properties either side of the route. At point B there is a
Local Authority maintained street lighting column with a South Ribble Borough
Council 'No dog fouling' signpost attached.
At point C, a wooden fence has been erected preventing access to the route in the
direction of point B. The width at this point is 1.3 metres between the wooden garden
fence panels that form the boundaries to the rear of the garden of 58 St Clements
Avenue and an enclosed private parcel of land that lies to the west of the route.
Access was not available along the length A-B-C at the time of the site inspection. It
was not, therefore possible to measure the width of the section A-B-C.
Between C-D, the route crosses land that has been marked as parking spaces and is
open for a width of approximately 7 metres, between the rear garden fence and a
concrete step structure, providing private access to a door at the rear of the Spar
shop.
The length D-E is bounded on the western side by the boundary fence of 33 Bristol
Avenue and is unbounded by fences or buildings on the eastern side.
At point E the available width is restricted to a width of 4 metres by the boundary
fence of 33 Bristol Avenue and a structure attached to the side of the Spar shop,
providing a private steeped access to properties above the shops.
At point F a 2 metre high metal gate has been erected. It was open, hinged on a
gatepost located at the western side of point F at the time of the site inspection but a
metal post on the eastern side of point F suggests that it can be locked preventing
access to the route in a northerly direction beyond point F.
From point F there is an available width of 4 metres, being bounded by the boundary
fence of 33 Bristol Avenue and the private footway that provides access to the step
structure leading to the properties above the shops at Clifton Parade.
Between point G and point H the route runs along the shared access road leading to
the rear of Clifton Parade, a public pedestrian access to the front of the shops and
vehicular access to the parking area that is located to the front of the parade of
shops, including an approximately 4 metre length of footway that is located to the
side of 33 Bristol Avenue.
The surface of the route between points A-B-C consists of a partially eroded
bitumous surface, with moss and weeds growing through the surface and at the
edges. The surface of the route between points C-D-E-F-G-H consists of a newly laid
bituminous surface.
The route commences at point A and runs 20m SW to point B, 15m SSE to point C,
10m WSW to point D, 10m SSE to point E, 10m SSE to point F, 5m SSE to point G
then 10m SSE to terminate at point H. (All distances, in metres, and compass
directions are approximate). Total distance is 75 metres.
At the time of the site inspection there were no signs to suggest that the route is not
available for public use but as described, fences at points A and C prevent access at
all times and the metal gate at point F suggests that access is prevented along the
length F-E-D-C at certain times; perhaps at night or when the Spar shop is closed.
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
Yates’ Map of
Lancashire
DATE
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 scale of the map means that the claimed route, if it did
exist at the time, is not shown.
Investigating Officer’s
comments
No inference can be drawn.
Greenwood’s Map of
Lancashire
1818
Greenwood's map of 1818 is a small scale commercial map.
Observations
The scale of the map means that the claimed route, if it did
exist at the time, is not shown.
Investigating Officer’s
comments
Hennet's Map of
Lancashire
No inference can be drawn.
1830
Small scale commercial map.
Observations
The scale of the map means that the claimed route, if it did
exist at the time, is not shown.
Investigating Officer’s
comments
No inference can be drawn.
DOCUMENT TITLE
Tithe Map and Tithe
Award or
Apportionment
DATE
Investigating Officer’s
comments
Finance Act 1910
Map
BRIEF DESCRIPTION OF DOCUMENT & NATURE OF EVIDENCE
The tithe map was produced around 1844, the time of survey
of the earliest 6" Ordnance Survey map available at the
Lancashire Record Office (see below). As the OS map shows
the area was undeveloped agricultural land the tithe map was
not examined.
No inference can be drawn.
The comprehensive survey carried out for the Finance Act
1910, later repealed, was for the purposes of land valuation
and not recording public rights of way. However the maps can
often provide very good evidence.
Maps, valuation books and field books produced under the
requirements of the 1910 Finance Act are sometimes
examined. The Act required all land in private ownership to be
recorded so that it could be valued and the owner taxed on any
incremental value if the land was subsequently sold. The maps
show land divided into parcels on which tax was levied, and
accompanying valuation books provide details of the value of
each parcel of land, along with the name of the owner and
tenant (where applicable).
An owner of land could claim a reduction in tax if his land was
crossed by a public right of way and this can be found in the
relevant valuation book. However, the exact route of the right
of way was not recorded in the book or on the accompanying
map. Where only one path was shown by the Ordnance
Survey through the landholding, it is likely that the path shown
is the one referred to, but we cannot be certain. In the case
where many paths are shown, it is not possible to know which
path or paths the valuation book entry refers to. It should also
be noted that if no reduction was claimed this does not
necessarily mean that no right of way existed.
Observations
The Finance Act maps and valuation books were not examined
as the area was undeveloped agricultural land in the early part
of the 20th century.
Investigating Officer’s
comments
Canal, turnpike and
railway plans
No inference can be drawn.
Inclosure Act
Award and Maps
The Inclosure Award for Farington was not examined.
The Authentic Map
Directory of South
Lancashire
None relevant for this area.
1934
The Authentic Map Directory of South Lancashire was edited
by James Bain FRGS and believed to have been published in
1934-35 by Geographia Ltd to show streets, railway stations,
parliamentary and administrative divisions and a classified
business directory. The introduction states that it was an
entirely new publication specially designed to meet a demand
for a large-scale detailed street map. It explains that many new
districts had been opened up and new streets and trunk roads
made and that the publishers had made every effort to
incorporate all these developments into the directory with the
assistance of the Municipal and District Surveyors.
Observations
The area is shown as undeveloped agricultural land with no
path or track corresponding to the claimed route.
Investigating Officer's
comments
The claimed route is not shown on this map.
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 25-inch 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
1848
Observations
The claimed route is not shown. The area is divided into fields
and used for agriculture.
No inference can be drawn.
Investigating Officer’s
comments
25 inch OS map
The earliest OS map examined.
c1893
First Edition published at the larger scale showing the area in
more detail was published in the 1890s.
Observations
The claimed route is not shown. The area is divided into fields
and used for agriculture.
Investigating Officer’s
comments
25 Inch OS map
No inference can be drawn.
1911
Further edition of 25 inch map published in 1911.
Observations
The claimed route is not shown. The area is divided into fields
and used for agriculture.
Investigating Officer’s
comments
25 Inch OS map
No inference can be drawn.
Observations
Investigating Officer’s
comments
1931
Further edition of the 25 inch map revised in 1928 and
published in 1931.
Part of Bristol Avenue to the west of the claimed route has
been built but there is no development eastwards. The rest of
Bristol Avenue is not shown and neither is St Clements
Avenue. This part of Farington is still agricultural land and the
claimed route is not shown.
No inference can be drawn.
25 Inch OS map
1940
Observations
Investigating Officer's
comments
6 Inch OS map
Further edition of the 25 inch map revised in 1938 and
published in 1940.
The claimed route is not shown. Houses along Highfield
Avenue to the west of the claimed route have been built, but
not St Clements Avenue or the rest of Bristol Avenue or shops.
No inference can be drawn.
1955
This map was used as the base map for the Definitive Map,
First Review, and was published in 1955 (although the date of
revision was between 1930 and 1945).
Observations
The map does not show the claimed route. It shows the area in
the same way as the 1930 25" map described above.
Investigating Officer’s
comments
25 Inch OS map
No inference can be drawn.
1965
Observations
Investigating Officer’s
comments
1:50,000 OS map
The map does not show the claimed route and shows the area
in the same way as on the 1940 25" map, namely agricultural
land.
No inference can be drawn.
1974
Observations
Investigating Officer’s
comments
1:25,000 OS
map
Observations
1988
Investigating Officer’s
comments
OS MasterMap
Observations
Further edition of the 25 inch map revised in 1963 and
published in 1965.
2011
An edition of the 1:50,000 map revised between 1971 and
1972 and published in 1974.
The Bristol Avenue/St Clements Avenue estate has been built.
Housing areas are shown as solid blocks because of the small
scale of the map. The claimed route is not shown.
No inference can be drawn because of the small scale of the
map.
An edition of the 1:25,000 map revised in 1977, 1981 and 1986
and published in 1988.
The larger scale of the map means that although the houses
are shown in blocks, gardens are individually shown as well as
cul-de-sacs. The claimed route is shown as an open route,
slightly narrower than adjacent roads. The shops on Bristol
Avenue are shown as a solid block, set back from the road
itself with open access on all sides, including the rear and the
claimed route.
The claimed route is clearly shown joining Bristol Avenue with
St Clements Avenue, and also providing access to the rear of
the parade of shops.
Electronic Ordnance Survey map used as the base map for the
Committee plan.
The map shows the whole of the claimed route as an open and
unobstructed pathway between 56 and 58 St Clements Avenue
continuing southwards to an open area behind 33 Bristol
Avenue and to the rear of the parade of shops on that road.
Access continues to be shown open and unobstructed past the
western end of block of shops onto Bristol Avenue itself.
Investigating Officer's
comments
Aerial Photographs
It can be inferred that the claimed route existed 2011
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.
Observations
The area crossed by the claimed route is shown as a field. No
path is shown crossing the land.
Investigating Officer’s
comments
Aerial photograph
The claimed route did not exist, or was not used significantly.
1963
Black and white aerial photograph taken on 3 June 1963.
Observations
The area crossed by the claimed route is shown as a field. No
path is shown crossing the land.
Investigating Officer’s
comments
Aerial photograph
The claimed route did not exist, or was not used significantly.
1988
Colour aerial photograph taken on 15 June 1988.
Observations
The houses on St Clements Avenue and Bristol Avenue have
been built, as has the parade of shops. The claimed route can
be clearly seen between 56 and 58 St Clements Avenue
running in a southerly direction to the open area at the western
end of the shops.
Investigating Officer’s
comments
Aerial
photograph
Observations
The claimed route existed in 1988.
Investigating Officer’s
comments
Aerial photograph
2000
Colour aerial photograph taken on 16 June 2000.
The claimed route is shown from between the houses and
gardens of St Clements Avenue to the rear of the shops on
Bristol Avenue.
The claimed route existed in 1988.
2006
Aerial photograph taken on 3 November 2006.
Observations
The claimed route is clearly shown between houses and
gardens on St Clements Avenue.
Investigating Officer's
comments
The claimed route existed in 2006.
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.
Parish survey map
19501952
The initial survey of public rights of way was carried out by the
parish council and the maps and schedules were submitted to
the County Council. In the case of urban districts and municipal
boroughs the map and schedule produced, was used, without
alteration, as the Draft Map and Statement.
Observations
Draft Map
At the time of the parish survey the claimed route was in
Cuerden parish. The claimed route was not shown.
1955
The parish surveys for rural district council areas were
amalgamated into a Draft Map, in this instance at the time in
Chorley Rural District, and an accompanying description
written for each path. The maps were 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. There were no formal objections or other
comments about the omission of the claimed route
Provisional Map
Once all of the 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. No formal objections or other comments
to the omission of the claimed route were made.
The First Definitive
Map and Statement
The Provisional Map, as amended, was published as the First
Definitive Map and Statement in 1962. 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. Whilst most of
the Definitive Map for Lancashire was reviewed, the area
formally in the West Riding of Yorkshire was not.
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 with a relevant date of 1st
September 1966. 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 was not shown on the Definitive Map and
Statement of Public Rights of Way (First Review). A claim has
been submitted to add the route to the map as a public
footpath and that claim is the subject of this report.
Investigating Officer's
comments
From 1953 through to 1975 there is no indication that the
claimed route was considered to be public by the Surveying
Authority, Rural District Council and public at large due to the
extensive consultation process that lasted until 1975 when the
Definitive Map of Public Rights of Way (First Review) was
actually published. Through most of this period the area
crossed by the claimed route was undeveloped agricultural
land with the housing estate and roads not built until some time
between 1965 and 1971.
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).
Statutory deposit and
declaration made
under section 31(6)
Highways Act 1980
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
There are no Highways Act 1980 Section 31(6) deposits
lodged with the County Council for the area over which the
claimed route runs.
Investigating Officer's
comments
There is no indication by a landowner under this provision of
non-intention to dedicate a public right of way over the claimed
route.
The claimed route does not cross a biological heritage site or a site of special
scientific interest. It is not recorded as access land under the provisions of the
Countryside and Rights of Way Act 2000.
Summary
Examination of all the maps and aerial photographs show that there is no evidence
of the existence of the claimed route when the area was undeveloped agricultural
land. The path only came into being when the roads St Clements Avenue and Bristol
Avenue, and properties along them, were built between 1965 and 1971. There is no
map evidence to show that this route was ever blocked off, until recently, and no
written evidence was found relating to council maintenance of the route.
Description of the new path for inclusion in the Definitive Statement.
The following should be added to the Definitive Statement for Farington, South
Ribble Borough:
"Public Footpath 29 from its junction with St Clements Avenue, between 56 and 58
St Clements Avenue, at SD 5537 2329 running on an enclosed tarmac path in a
generally southerly direction for 35m, turning west-south-west along the edge of a
car park for 10m then south for 30m to terminate at Bristol Avenue at SD 5516 2322
between 33 Bristol Avenue and the properties of Clifton Parade. (All distances, in
metres, and compass directions are approximate). Total distance is 75 metres.
33 Bristol Avenue.[widths to be included only once the dedicated width has been
established] There are no limitations on the footpath. "
County Secretary and Solicitor’s Observations
Information from the Applicant
In support of the claim, the applicant has provided 33 standard user evidence forms
and 41 evidence of use forms which are a shorter version of the standard form
asking only specific questions which the applicant felt were relevant in this matter.
Both types of forms have been evaluated as follows.
The standard user evidence forms present evidence from 33 users of the claimed
route. The users claim to have had knowledge of the route for up to 41 years and
Two users specify they have had knowledge of the route since the estate was built,
without providing a date for when this was. (It is thought to be 1969). One user has
not answered this question.
Two of the users claim to have used the route for up to 41 years, 31- 40 years (14);
21- 30 years (10), 11- 20 years (4), 0- 10 years (1)
The main purpose for using the route includes visiting family and friends, accessing
shops, bus and train stations, using the route whilst working as a postman, dog
walking and walking to school.
The frequency of use varies from being used daily, twice daily, once a week to
2/3/4/6 times a week.
All the users claim to have used the route on foot with four users also claiming to
have used the route on a bicycle. All the users agree the route has always followed
the same line. All but four users agree there has never been a gate, stile or fence
along the route. Five of the user's state that a new fence was erected which blocked
the entrance on either the 12th or 14th December 2009. Two users state they were
prevented from using the route, one was told by the owner/tenant that the land was
not a public right of way; the other user states he was prevented from using the route
after the 14th December 2009 by wooden barriers which were erected at either end.
One of the users explains he was an employee/tenant during 1968-1982 of
Hemmings Kent Ltd, who were the land owners at the time whilst he used the route.
None of the users report ever having seen any notices along the route nor had
permission ever been sought to use the route.
The second set of user forms will now be examined; these forms are a brief version
and ask limited questions in comparison to the forms examined above.
The forms indicate use of the route for up to 46 years, 41-50 years (1), 31-40 years
(17), 21-30 years (7), 11-20 years (5), 0-10 years (11), one user has not answered
the question.
The route has mainly been used for walking, visiting friends and relatives, accessing
the shops, train and bus station.
The frequency of use varies from daily, weekly and fortnightly use to 2-3 times a
week and some users only having used the route a couple of times a year.
None of the users state they have ever been stopped from using the route before the
obstruction on 14 December 2009, nor have they ever seen any notices along the
route and they have never been told by the owners/tenants or anyone in the
employment of the owners that the way was not a public right of way.
The applicant has enclosed a letter from South Ribble Borough Council which
advises that the planning application submitted for the development at Clifton Parade
did originally include a proposal to block the right of way claimed. However; when the
matter was brought to South Ribble Borough Councils attention they asked for this
provision to be removed and for the right of access to be maintained and the
applicant agreed to do this.
The applicant has also enclosed a copy of a plan attached to a conveyance for a
property on St Clements Avenue, Farington which is dated 30 April 1969. The plan
shows the site as proposed by the developer showing the enclosed footpath A – C
and houses proposed where the parade of shops now is. She explains the houses
on St Clements Avenue had only just been built by the developers Hemmings and
Kent Ltd and the land showing the marked out footpath was undeveloped at this time
and 3 to 43 Bristol Avenue were also undeveloped and sold in 1969 and developed
into the shops which became Clifton Parade. She explains when the shops were
developed the claimed footpath was marked out, tarmaced and signage was placed
along the route from St Clements to Clifton Parade as part of the estate
development.
The applicant also submits photographs of the claimed route before it was blocked
and before the carpark at the shops was resurfaced. It shows the pathway between
C-D delineated by setts in the ground.
Information from Others
One of the owners of land adjoining the claimed route is strongly opposed to the
claimed footpath and explains the closure has arisen due to a liquor license
application for shops on Clifton Parade. He believes it was a condition of the license
that the rear of the properties were made secure and the path should remain closed
if the shops project was to go ahead due to the implications for residents if it were to
remain open.
He states there has been a number of incidents on the footpath which included a
male with a firearm who was damaging cars and a sexual offence where the victim
came to his address for assistance.
Another owner of land adjoining the claimed route is also opposed to the application,
he explains the rear of Clifton Parade suffers from graffiti and if the claim was to be
accepted it would lead to further anti social behaviour in the neighbourhood. He
explains, he has had to put up with people throwing dog foul into his garden from the
footpath. He explains, the footpath is used as a short cut to Bristol Avenue only by a
few people and the route is poorly lit. He has attached some photographs of the area
showing the graffiti to highlight the problem.
Another adjoining land owner on the claimed route has also objected to the
reopening of the footpath. Her main concern was the 'SPAR' shop and the nuisance
which would be caused by the teenagers who would congregate and damage
property in the area. She explains, it was proposed at the alcohol licensing meeting
that that the footpath should be closed and gates installed at either end of the shops,
to prevent access to the back of the shops.
A fourth adjoining landowner has telephoned and the note of his call refers to his
stating that the route was just a cut through to the houses when being built from the
builder’s compound which was where Clifton Parade now is.
County Councillor Mike Otter has also written to express his strong support for the
footpath to remain closed because the homeowners who live alongside the path
have had numerous incidents of vandalism and antisocial behaviour. He feels if the
path was to remain closed it would enhance the security for the Spar shop which
would open soon and reduce the anti social behaviour in the area by blocking off an
easy escape route. He believes that the footpath was never intended as a
throughfare but as a path to a community centre which was never built.
The managing agent for the owner of the land crossed by section C-H of the claimed
route together with the shops on Clifton Parade has contacted the Authority to advise
that there is no right of way and that there never has been a right of way across this
land.
A closed file dating back to 2003 details discussions between one of the landowners
affected by the above claim and the Authority. The landowner made enquiries about
whether the route was adopted and was told that and evidence of the route being
adopted could not be located and the records held by the authority indicated that the
route had not been formally adopted. The landowner did submit a copy of the Pre
Contract Enquiries made of the original developer in 1969 when the first purchaser of
his house was buying. The question asked was “does a public footpath run between
plots 56 and 58? If so, is any part of such footpath included in the plot to be
purchased?". The answer on behalf of the owner developer was “Yes. No part of it is
included in the sale”.
Land ownership information from the Land Registry shows section A- C not included
in any registered adjoining plots. Section C-H is within the landownership at Clifton
Parade. Their title shows the original purchase in 1969 from the same owners as the
estate, Hemmings and Kent Limited. That Company no longer exists. Hemmings and
Kent Ltd in 1969 were selling off the plot where the parade was built to another
property company but retained a right of way if itself and its successors and all
persons authorised by it to pass and repass on foot only on a line coloured brown
over the footpath leading from Bristol Avenue to St Clements. The line cloured brown
is not known.
Assessment of the Evidence
The Law - See Annex 'A'
In Support of the Claim
Section A-C is enclosed purpose built pathway not owned by adjoining residential
plots
User Evidence
Evidence of owner’s intention in 1969
Open and available until barricaded in December 2009
Against Accepting the Claim
Owner retained private right of way on route or near route
Conclusion
In this matter it is claimed that route A-F is already a public footpath in law and ought
to be recorded on the Definitive Map and Statement.
To have become a footpath it is advised that there has to have been a dedication
and acceptance.
In this matter there is no written dedication by way of a formal handing over to the
highway authority this footpath as well as the vehicular highways on the estate and
so the Committee as asked to consider whether the criteria of S31 Highways Act
1980 can be satisfied such that a dedication can be deemed to have happened or
also whether circumstances are such that a dedication can be inferred at common
law.
Considering first of all a deemed dedication it would appear that there has been
significant use of the claimed route up to its closure in 2009. S31 would require use
1989-2009 to be considered. There is no evidence of sufficient actions being taken
such that use was interrupted not sufficient evidence of landowners lack of intention
to dedicate during those years. It is suggested that use would appear to be as of
right and the criteria for S31 are capable of being satisfied such that a dedication can
be deemed to have occurred from twenty years user.
In the alternative, dedication at common law could possibly be inferred. Actual
intention to dedicate needs to be evident on balance. Here there is confirmation by
Solicitors for the owner developer in 1969 that the path certainly between 56 and 58
in a public footpath. This is followed by use acquiesced in by said owner. The same
owner owned the land crossed by section C-F and in the conveyance refers to there
being a footpath all the way from St Clements to Bristol Avenue which in the
separate replies to a purchaser is referred to as public. It is suggested that due to
acquiescence in use and documentary evidence there are on balance sufficient
circumstances from which a dedication could be inferred at common law.
In taking all the evidence into account the Committee may consider that a footpath
can be reasonably alleged to exist on the land claimed such that an Order should be
made but also that the evidence is sufficient to indicate on balance that a footpath
actually subsists such that said Order be promoted to confirmation as able to satisfy
this higher test.
Alternative options to be considered - N/A
Local Government (Access to Information) Act 1985
List of Background Papers
Paper
Contact/Directorate/Tel
All documents on Claim File
Ref: 804/508
Saleha Khalid
County Secretary and Solicitors
Group
01772 533427
Reason for inclusion in Part II, if appropriate
N/A