To submit the report of the Head of Environment Department.
LOCAL MEMBER: Councillor Louise Hughes
Minutes:
Submitted - the Head of the
Environment Department's report stemming from an application to register on the
Public Rights of Way Definitive Map a public footpath in the Community of
Arthog.
The Chair noted that a late letter had been received from
Barmouth Town Council complaining that they as a Council had not had an
opportunity to submit observations on the application. In response, the Environment Department
Manager explained that the land in question was within the boundaries of Arthog
Community Council and therefore there was no necessity to contact any other
Community/Town Council on this matter.
The Environment Department Manager expanded on the
application's legal background together with the evidence to support the
application and he focused on the path between A and B on the application
plan. The application had been submitted
based upon and in the context of Section 53 of the Wildlife and Countryside Act
1981. When considering such applications it was necessary to look at the
evidence for and against the application, and in this context based on the act
referred to above together with the Highways Act 1980. Having looked at the evidence to register
on the grounds of use, and specifically as the public had walked the path
unhindered, continuously over a period of more than twenty years, they had to
be certain that the landowners had given a right and permission for the
use. The information for and against
the application was looked at and the key factor was the existence of signage
and what those signs stated. Reference
was made to Section 31(3) of the Act, namely:
“Where the owner of
the land over which any such way as aforesaid passes-
(a)
Has erected in such manner as to be visible to persons using the way a
notice inconsistent with the dedication of the way as a highway; and
(b)
Has maintained the notice after the 1st January 1934, or any later date on
which it was erected,
the notice, in the
absence of proof of a contrary intention, is sufficient evidence to negative
the intention to dedicate the way as a highway”.
That is, that signage had been erected on the site that was
contrary to the claim that a public right existed. By doing this consideration had to be given to
an ordinary member of the public's understanding of what was on the sign
together with the landowners' aim.
Reference was also made to factors that were irrelevant to
the application e.g. was the path pleasant with vistas from it. Therefore, the only matter that could be
considered was if public rights of way existed.
Attention was drawn to the path's historical background and
the development of Mawddach Crescent and the surrounding area.
In terms of the evidence to support the application,
reference was made to a summary of over 100 statements made by individuals who
stated that they used the path. Full
summaries can be seen in Appendix 4 and 4.2 of the report. In addition to the late observations forms,
there was information of how frequent the path was used.
In the context of the evidence to the contrary, reference
was made to Appendix 8 of the report, where there were statements from owners /
former owners stating the reasons to not use the path with specific reference
to the erected signs:
·
'Private Road' sign at the
eastern end of the Crescent that had been there for decades; (Appendix 10)
·
'Mawddach Crescent Private
Road' sign at the western end of the Crescent erected around 1999 (Appendix
11)
·
'Private' sign asking persons
to please use public footpath to the rear of the Crescent houses; (Appendix 12)
·
'Private' sign painted on
brick wall (Appendix 15) the photograph indicated how the sign looked circa
2005.
It was emphasised that consideration had to be given to the periods when
the rights were claimed and in this case two periods were recorded. It was considered:
·
that the sign in Appendix
12 was erected around 2006 and therefore the relevant period of 20 years for
the purposes of Section 31, of the Highways Act 1980 was 1986-2006.
·
evidence of a former
resident stating that the private sign painted on the brick wall dated back to
1962 (period between 1942 and 1962)
It was considered that the signs gave basis to the claim that there was no
intention to permit public use of the path in front of the houses and in
considering the conclusions that two long periods of 20 years where there was a
combination of signs in existence and therefore contrary to the existence of a
public right of way. The officers’
recommendation was to refuse the application to register the path on the
Definitive Map.
During the ensuing discussion, individual Members asked
questions and the following points were highlighted:
(i)
clarification was
requested regarding the wording of the Act that noted an use period of 20 years
without interruption or barrier
(ii) in response, the Environment Department Manager explained that evidence had
to be considered be that the existence of a sign with a specific purpose,
notice of any type, challenging individuals to not pass by, and in this case
evidence was submitted from the owners' point of view that signs had been
erected.
(iii) The Senior Solicitor elaborated on the legal side and noted that this was
not a planning application before them, however, the Committee was requested to
consider the evidential matters regarding the use of the path taking into
consideration its use over two periods of time, and based on the information
submitted. Attention was drawn to paragraph
8.2 of the report that stated "Displaying notices on a way is regarded as
an effective method of rebutting deemed dedication. Sub-section 3 of section 31 HA 1980 provides
that the erection and maintenance of a notice will, in the absence of proof of contrary
intention, be sufficient evidence to negative the intention to dedicate the way
as a highway". It was added that
the Committee had a quasi-judicial role that meant considering the evidence on
a test of probability.
(iv) A member referred to two cases in 2010 in the high court that were relevant
to the application before the committee.
He quoted as follows from one of the cases (Andrew Nicholls, Queen's
Counsellor) "... I consider that the notice had an uncertain meaning and
that the public would normally interpret the word road as signifying a way for
vehicles ...... the word access only
should in my view be taken to grant consent for the use of the lane by vehicles
only for the purpose of accessing the properties that it served.” He also quoted from the second case, namely
Patterson v. The Secretary of State for Environment, Food and Rural Affairs by
the Honourable Justice Scales “..... that virtually all rights of way are over
private land and that a simple sign private does not clearly indicate that
there is no public right of way over a marked footpath”
(v) In response to the above, the Solicitor drew the Committee's attention to
paragraph 3.8 and quoted from the 'Godmanchester' case that was legal and
current and takes priority over other cases, when the House of Lords quoted
that 'intention' meant what the relevant audience, namely the users of the way,
would reasonably have understood the landlord's intention to be". The Senior Solicitor added that it would be a
matter for the Committee to balance the evidence but this case had been
referred to the highest court in the land and therefore carried substantial
weight. It would be a matter for the
Committee to consider if the signs expressed robust evidence from the viewpoint
of the owners and if they:
·
referred to the use of rights
of way of individuals; or
·
for vehicle use.
(vi) The Local Member noted that the application had historical
arguments and she had visited the Crescent on several occasions as a Councillor
but she had not met anyone, having said that she had spoken with one resident
and had received an e-mail from another. The Community Council discussed the
path a few years ago when she had stated her wish for the path in front of the
Crescent to be kept open. She felt very sad that the matter had come to this with
so much quarrelling and had created an heated situation between the public and
residents of the Crescent. She confirmed
that she had walked the path several times and that no one had challenged her. The path offered spectacular views and it was
recognised as a place where artists came to take advantage of the view, and she
was aware at one time in the past that the residents of the Crescent offered
tea / cakes to visitors who travelled along the path. She was aware that
families had walked the path without interruption for decades. She was
concerned that if the path closed, how could it be controlled and this would
cause further ill-feeling. She was of
the opinion that users were unlikely to leave litter or cause damage. She
suggested that if the Committee could not reach a decision that it might be an
idea to visit the site to see the situation for themselves.
(vii) In response, a Member disagreed with the
suggestion to conduct a site visit as a view was not a consideration for the
application. There was disagreement with
the comment made by the officer that a landowner had to give a right and
permission for a person to traverse his land, and he was of the opinion that if
any owner decided not to prevent this then a right was given. In the case before them, it was necessary to
interpret if the owners had tried to prevent people walking along the path. In
his opinion the sign stating 'Private Road' was interpreted as to prevent
vehicles and the sign in Appendix 12 did not prevent people from passing along
the path but asked individuals kindly to walk along the back. He was further of the opinion that the sign
was not clear enough to prevent people walking along the path and that this was
the only evidence that tried to prevent this. In addition, attention was drawn
that there were long periods of evidence when the public continued to traverse
along the path. Therefore, he felt that
the argument fell in favour of the public for the path to be used as there was
insufficient robust evidence to the contrary.
(viii) It was proposed and seconded to refuse the
officers' recommendation and to permit the right of way based on
·
the use of the path
between 1942 and 1962, and that insufficient evidence existed of any action to
prevent walkers
·
that the 'private road'
sign was a vehicular sign and did not prevent the public from traversing the
way
(ix) The following points were noted in favour of
the proposal to approve:
· That a 20 year use had been proven
as there was evidence from individuals of using the path in 1912 and for
generations by local people
· It was considered that the residents
had offered teas etc as a sign of welcome and that the argument could be
strengthened that the sign referred to vehicles
· Attention was drawn to the letter
from an individual who installed the gate and cattle grid and his statement
that installing these did not mean that the way was closed for users but rather
to prevent livestock.
· It could be argued that individuals
would not have seen the sign (Appendix 12) as it could only be seen from one
end of the way.
(x) It was
asked if the National Park had permitted the signs, bearing in mind that it was
an area of natural beauty.
(xi) In response, the Senior Solicitor explained that
the above comment was not relevant to the application
(xii) If the majority of the
houses in the Crescent were holiday homes it was asked how it could be proven that the owners of those houses had
prevented the path from being used
(xiii) If a Public Inquiry
were to take place by any of the parties in question, it was asked for
assurance that the inquiry should take place locally.
An unanimous vote was taken on the proposal to refuse the
officers’ recommendation and to approve the application to register the path on
the Definitive Map.
RESOLVED: To approve the application to add the
public footpath to the Council's Definitive Map and Statement as shown by A-B
on the plan provided in Appendix 1 of the report on the following grounds:
·
That the path had been
used by walkers over a period of twenty years between 1942 up to 1962; and
·
That the signs for that
period, from the evidence submitted, were not sufficiently (legally) effective
to prevent the assumption that the highway had been dedicated under section 31
(1) Highways Act 1980, and
·
Specifically that the
sign 'Private Road' seen on the photographs in the report referred to vehicles
only, and it was not intended to prevent walkers from using the plot.
Supporting documents: