Agenda item

To consider whether the Authority should make a Definitive Map Modification Order.

 

 

DECISION:

Contrary to the recommendation, to register the public footpath on the Definitive Map and Statement, Nefyn Harbour, Town of Nefyn – and note the date of November 2021

Reason:  Sufficient evidence of 20 year use

 

To consider whether the Authority should draw up a Definitive Map Modification Order.

 

Attention was drawn to the late observations form.

 

a)     The Access Team Leader highlighted that an application had been submitted to the Council, under Section 53 of the Wildlife and Countryside Act 1981 to register a public footpath in the town of Nefyn on the Definitive Map. The application was made on the grounds that the public had walked along this path, as if they had the right, unhindered and consistently, without concealment and without the landowner's permission over a continuous period of twenty years.

 

The application had been received from Councillor Gruffydd Williams in its amended form in November 2021. It was explained that the claimed footpath started at a junction with Public Footpath number 19 in the Town of Nefyn (point B on the Plan), and then led down a narrow, steep path with many steps, along the sandy beach; then on to the front of many residential properties and beach huts, before terminating beyond the sea wall (point E on the Plan).

 

It was explained, after receiving the application and taking legal advice, it was considered essential for the Council to refuse the application for the following reasons: -

 

·        Failure 1:  The section of the path claimed cannot be identified between points B to E on the plan on the ground and that the path did not have any discreet boundaries. It was not possible to confirm whether actual use had been made of it (either by the public or otherwise), as it did not exist in an identifiable way on the ground. Specifically, it was argued when walking, that members of the public tended to use the path claimed or any other part of the beach depending on the location of the tide. There was a requirement in law to obtain assurance of the extent of the claimed path to the degree in which it could be ensured that it was identifiable on the ground. It was considered that it was not possible to clearly identify the path on the ground and therefore this requirement could not be satisfied, and it would not be possible for anyone who objected to this application to have grounds for objection.

·        Failure 2:  It was considered that the path had been mainly used by the users or owners of the beach huts or boatowners on the beach. Specifically, the claimed path did not have a link to the highway or public rights of way network at its termination at point E. As the public, in general, never used the path, it was not possible to consider such use as a right, and consequently, it was not possible to satisfy the code of presumed dedication under section 31 (1) of the Highways Act 1980. 

 

Attention was drawn to the relevant legislative framework, highlighting the fact that the only consideration was the evidence and that factors such as public safety, desirability, suitability or need for the path could not be considered by the Authority. It was reiterated that the entire process related to deciding whether an actual public right of way had existed or not.

 

Reference was made to the evidence received, noting that a statutory minimum level of users was not required to show adequate use to lead to a presumed dedication, however, it should be used by the public or community. When considering an application of this type, the public must demonstrate that they have used the path unchallenged over a period of twenty years.

 

In order to make the case under Section 31 of the Highways Act 1980, there was a need to establish a date when the public came to use the suspected path. In this specific case, it was argued that there was no assumed introduction date. The Officers recommended refusing adding the alleged path to the definitive map.

 

a)              As Councillor Gruffydd Williams was the applicant of the application and therefore raised a prejudicial interest, he nominated Councillor Rhys Tudur to speak on behalf of the community. The following observations were presented and historical photos of the path were shown;

·        There had been a strong response to the application locally - this highlighted the interest of local residents.

·        The path was historical and it had been used for well over 20 years.

·        The traces of the path could be identified clearly and when the tide was in, there was no option but to use the path above the wall.

·        Recent photos with security gates and vegetation prevented use and therefore hid the traces of the path - the traces of walking along it were more visible in old photos

·        The path was historically used by fishermen - not just for recreational use.

·        The boundary clearly followed the houses and walls.

·        In the context of Public Policy and the County Council's Notice of use, many property-owners acknowledged the existence and use of the path as a public path. They had not prevented anyone from walking along it and they had not taken steps to prevent the public's use of it.

 

b)           The Solicitor highlighted that the path was used at high tide, but in usual circumstances, people generally walked along the beach and therefore it was not possible to restrict the use to a path only, rather for 'roaming' use. He reiterated, that if a public inquiry would be held, it was anticipated that 'roaming use' would be proved and it would be difficult to provide evidence that was contrary to this. As the evidence was vague and contrary to the code, approving was likely to lead to the risk of substantial costs to the Council.

 

ch) It was proposed and seconded to refuse the application in accordance with the recommendation.

 

c)        During the ensuing discussion, the following observations were made by members:

·      That 27 responses and photos had been received / showing, evidencing of the use

·      That there was historical use of the path; used by generations of Nefyn residents. The path was an integral part of the area's history and heritage.

·      That the 'reasonable use' turn of phrase in the order seemed to be a low threshold, as well as the balance of probability - this was a matter of opinion - there was no guarantee that a public inquiry would refuse.

·      An application had been submitted in 2018 and an amended plan in 2021; what had happened in the meantime?

·      That a noticeboard on the beach drew attention to the path.

·      It was a disgrace that the Council did not respect this historical path.

·      That a public footpath sign had been installed - the path was visible.

·      The path led to the breakwater, with the option of walking on around the headland to Morfa Nefyn.

·      That benches in memory of people's loved ones had been installed along the path.

·      That there was adequate space to walk between the houses and the wall.

·      The feelings of locals had to be respected - social media was awash with comments and feelings.

 

In response to comments that there was pressure to refuse due to the risk and costs to the Council, the Solicitor noted that he had a duty to inform them of the relevant risks. In response to a further comment regarding the possibility that the costs would not be unreasonable considering an appeal some years ago with Mawddach Crescent, it was noted again that there was a duty to highlight the relevant risks to the Committee.

 

In response to an observation that the path was in a poor condition and was dangerous, it was noted that safety was not a factor to be considered here. In response to a further comment regarding acknowledging the path by installing clear signs and giving an opportunity to Nefyn Town Council to adopt it and respect the community's wishes, it was noted that no order would prevent people from using the beach, but there was a risk here that there was no evidence highlighting the use of the path only.

 

The Solicitor reiterated that if the Council decided to create an order to register the path contrary to the recommendation, the Proposer and Seconder would be expected to defend the Committee's decision should an appeal / public inquiry be held.

 

dd)       A vote was taken on the proposal to refuse.

The proposal fell.

 

It was proposed and seconded to ask the Authority to draw up an order to register the path. It was considered that sufficient evidence had been submitted highlighting the use of the path over a period exceeding 20 years. It was also noted that the date when the amended plan was submitted (November 2021) as the date when the question had been raised.

 

RESOLVED: Contrary to the recommendation, the Authority to draw up a Definitive Map Modification Order and register the public footpath of Nefyn Harbour, Nefyn Town - noting the date when the question was raised as 20 November 2021

 

Reason:  Sufficient evidence of 20-year use