DCC Statement of Case
THE COUNTY COUNCIL OF DURHAM PUBLIC RIGHTS OF WAY DCC STATEMENT OF CASE Addition of Public Footpath 167, (Ladley Burn), Wolsingham DMMO Application 3/20/152
1 Objection against Modification Order for Ladley Burn, Footpath 167 Wolsingham. Referral to Secretary of State under Schedule 15 Wildlife and Countryside Act 1981 Statement of Case of Durham County Council 30th August 2023 The County Council of Durham Addition of Public Footpath No. 167 (Ladley Burn), Wolsingham Parish Definitive Map Modification Order No 4 2022 Order Making Authority Durham County Council Statutory Provisions for Making Order Date Order Made Wildlife and Countryside act 1981 – S53(3)(c)(i) 16 September 2022 Publication Period 23rd September 2022 – 4 th November 2022 Applicant Details Wolsingham Parish Council Landowner/s Details Mr G Te-Lintelo
Objector details 1) Robin Carr Associates on behalf of Mr TeLintelo 2) Alan Kind
Local Councillor/s Details Councillor A Savory 2 Councillor J Shuttleworth
Parish/Town Council Details Sarah-Ann Baxter (Formerly Gordon Dobson)
User Groups and Organisations British Horse Society (General Access and Local representatives)/ The Ramblers Association (Weardale)/ The Open Spaces Society(Teesdale and Weardale)/ Byways and Bridleways Trust Contents Page Number
1.0 Background to the Order 3 2.0 Description of Site 4 3.0 Legal Framework 4 & 5 4.0 Grounds for making the Order 5 & 6 6.0 Response to Objections and case for Confirmation 6 & 7 7.0 Conclusions 7 & 8 Appendices Appendix A Definitive Map Modification Order Application Forms Appendix B Location Map Appendix C Site Photographs Appendix D Application Form Ds & Witness Statements (WS) Appendix E Pre Consultation Objection Response to Notification Form B Appendix F Consultation Letters and Emails Appendix G Post Consultation Responses - Objections Appendix H Durham County Council (DCC) Rebuttal Statement Appendix I Post Consultation Responses - Support Appendix J Highways Committee (HC) Report and Minutes Appendix K Order, Press & Site Notices & Plan, & Notifications Appendix L Order Objections
The County Council of Durham Addition of Public Footpath No. 167, Wolsingham Parish Definitive Map Modification Order No 4 2022 1.0 Background to the Order
1.1 In September 2020 Durham County Council, received a user evidence based Definitive Map Modification Order application (Appendix A) which sought to add a public footpath, to the north of Thornhope Beck, Wolsingham and which connects to the public highway at both ends, PRoW 87 and PRoW 81, to the Definitive Map and Statement, Appendix B and C.
1.2 The applicant, at the time the application was submitted, was Mr G Dobson, Clerk of Wolsingham Parish Council.
1.3 A total of 31 individuals submitted user evidence. Of the 31 users that submitted evidence 16 have the required 20 years or more use and 11 of the 16 provided witness statements, Appendix D.
1.4 Prior to the formal consultations, an informal objection was received from the representative of an affected landowner, Appendix E.
1.5 Formal consultations were carried out in with landowners/occupiers, local Councillors, the Parish Council, and, user groups and organisations, Appendix F.
1.6 The consultations resulted in; a representation of objection from a representative on behalf of a landowner (Appendix G) to which Durham County Council provided rebuttal statements (Appendix H), and, two letters of support, Appendix I.
1.7 On 24th May 2022 approval to the making of an Order was given by a meeting of the Council's Highways Committee, the Committee Report and Minutes are found in Appendix J.
1.8 The Order was made on 16th September 2022 with a publication period from the 23rd September 2022 to 4th November 2022. Copies of the Notice were posted on site, and maintained during this period, appeared in the local press and we sent to interested parties. The Notice, Order and Plans are found in Appendix K.
1.9 Following the posting of notices on site and in the local press, one letter of objection was received during the publication period from an affected landowner’s representative, and one letter of objection to the wording of the schedule. The letters of objection can be found in Appendix L.
Description of Site
2.1 The alleged path is c.450m in length and leaves PRoW 87 heading in a westerly direction across pasture/meadow field to a stone wall. The stone wall currently has a field gate, and a ladder stile which was still in place in June 2021. The path continues in a westerly direction, crosses more pasture/meadow field, and passes a small private wooden bridge which spans Thornhope Beck to the south, before intersecting with what was a wire boundary fence orientated north-south, which had a stile at the southern end nearest Thornhope Beck. Continuing from the wire fence in a westerly direction, crossing more pasture/meadow field, the path joins PRoW 81 near to the stepping stones which span Thornhope Beck further upstream. The surface of the alleged path is predominantly earth and grass. A location plan is found in Appendix K and photographs of the route can be in Appendix C.
2.2 It was noted that the approximate length of the path in the Committee report was stipulated at circa 250 metres. This measurement is incorrect and was amended to circa 450 metres in the Order Statement, Appendix K.
2.3 The route passes over privately owned plots of land which were purchased by the former landowner in the early 1960s. The former landowner knew of the path, assumed it was already a PRoW, and so it remained open for use. Two stiles and way markers were installed along the route at various points in time prior to the land changing hands. One stile was installed, in the north-south fence midway along the route, by the former landowner himself. It is not known who was responsible for installing the way markers along the route. The former landowner did not take steps to prevent public use of the path at any time during their ownership and the land was sold to the current owner in 2016. The path, along with the stiles and field gate, remained in use by the public until April 2020. The way markers also remained in place and visible until April 2020. The new owner removed the stile midway and erected notices stating that it was not a PRoW which challenged the use of the path.
3.0 Legal Framework
3.1 Under the provisions of Section 53 of the Wildlife and Countryside Act 1981, the County Council as Surveying Authority has a duty to keep the Definitive Map and Statement under review and is required to make a Modification Order under Section 53(3)(c)(i) on the discovery by the authority of evidence which, when considered with all other relevant evidence available to them, shows that a right of way subsists or is reasonably alleged to subsist.
3.2 The Highways Act 1980, Section 31 states that, in the absence of contrary intention, a way may be ‘deemed to have been dedicated as a highway’ where ‘it has been actually enjoyed by the public as of right and without interruption for a full period of twenty years’, that period to be calculated retrospectively from the date when the right of public use was brought into question. As of right means without force, without secrecy and without permission. The use must be sufficient for a landowner to understand that rights are being asserted.
3.3 The Human Rights Act is of relevance. Whilst article 1 to the first protocol (peaceful enjoyment of property) and article 8 (right to respect for family, private life and home) are engaged, it is important to note that these rights are qualified, not absolute, which means that they can be interfered with in so far as such interference is in accordance with domestic law and is necessary in a democratic society for the protection of the rights and freedoms of others. It is considered that any interference occasioned by the making of a Modification Order is both in accordance with domestic law (the Wildlife and Countryside Act 1981) and is in the public interest as it is necessary in a democratic society for the protection of the rights and freedoms of others, namely the public who wish to use the way.
3.4 The Council has a duty arising from Section 149 of the Equality Act 2010 to have due regard to the need to achieve the following objectives: (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. It is not considered that the assessment of this application raises any specific Public Sector Equality duty matters.
3.5 Objections to the Modification Order which are not withdrawn necessitate referral to the Secretary of State, for confirmation.
4.0 Grounds for making the Order
4.1 A total of 31 individuals submitted user evidence. Out of the 31 users that submitted evidence 16 have the required 20 years or more use and 11 provided witness statements. The information provided by those that submitted user evidence is consistent in their account of the landscape and features associated with the path as well as the route taken and indicates that use has been by the wider community/public at large for leisure purposes.
4.2 There is no evidence over the relevant period of use that the route has ever been obstructed, that any user has ever been prevented from using it or of the landowner
doing anything to prevent a public footpath coming into being such as the erection of signage or periodic closure of the path. Accordingly, on the face of it, the use is as of right.
4.3 The user evidence that was submitted in support of the application was thoroughly investigated. Out of the 31 individuals that submitted user evidence and 11 provided witness statements: all users have indicated that they used the route for recreational purposes; 16 have indicated that they have used the route for 20 or more years and for recreational purposes. The former landowner and the wife of a former tenant farmer also submitted user evidence forms and a witness statements, which we note must be discounted. However, it is also important to note that the former landowner admitted in their witness statement that they assumed, during their ownership, that the path in question was already a Public Right of Way, and, that they continued to use the route for recreational purposes after they sold the land and that at no point did they prevent the public from using the route or erected any kind of signs that indicated that the route was permissive in nature.
4.4 The 16 users that submitted evidence of 20 or more years use is more than adequate to substantiate use of the path as of right for over the relevant period of time to warrant the recommendation of having the alleged footpath added to the Definitive Map and Statement.
4.5 The objector’s case rests on the belief that use of the path, over the relevant period, was by permission and therefore not as of right, which is in direction contradiction to that stated by the former landowner. It is also said that such permission was extended in part by the objector following his ownership from 2016, however, no notices informing the public that the route was permissive were erected until May 2020. The two documents that were put forward in support of his case, namely the minutes of the Wolsingham Parish Council’s meeting of 14 June 2016, and, an extract from the Wolsingham Wayfarers’ website relating to maintenance of footpaths from January 2015 – January 2016, can be found in Appendix E.
4.6 It was considered, after examining all the available evidence, that the route under investigation meets the legal test as per section 31 of the Highways Act 1980 and 53(3)(c)(i) of the Wildlife and Countryside Act 1981. It is therefore submitted that the grounds for making the Order are satisfied.
5.0 Response to Objections and case for Confirmation
5.1 The order received two letters of objections. First, from the landowners representative on their behalf, and the second, from Mr A Kind. THE COUNTY COUNCIL OF DURHAM PUBLIC RIGHTS OF WAY DCC STATEMENT OF CASE Addition of Public Footpath 167, (Ladley Burn), Wolsingham DMMO Application 3/20/152 7
5.2 The first objection letter, see Appendix L, was submitted on behalf of the landowner by their representative. It circulates around the same objections that were submitted prior to and during the formal consultation period. No new issues are raised.
5.3 The objections made regarding the extracts mentioning the word permissive, have been done so by those who have no legal capacity to assign a status to a footpath and, therefore, have not been afforded any weight. There is no evidence that the landowner took any steps to bring the alleged permissive nature of the route to the attention of the public at any time throughout the relevant period of use.
5.4 The user evidence that was submitted is substantial and consistent. It demonstrates that the path has been used frequently and over a long period of time without interruption by the public at large. Additionally, given the information provided in the witness statement submitted by the former landowner, who owned the land from the 1963 to 2016 (50 years), where he 1) stated that when he purchased the land he believed it was already a public right of way and 2) that he didn’t at any time take any actions to prevent the use of it by the public is strong evidence in itself. Additionally, whether permission was sought or not from the previous landowner, furniture and official PRoW way markers were installed, which in conjunction with the former landowners statements and actions, facilitated the use of the path by the public and there is no evidence of any actions by or on behalf of the landowner to bring the issue of permission to the attention of the public. The former landowner’s beliefs regarding the status of the path and actions, or lack thereof, to prevent use by the public over a period of 50 years has culminated in sufficient and substantial evidence of use of the path by the wider community, and as a result meets the legal test of a footpath arising as of right by presumed dedication.
5.5 The second objection was received by Mr A Kind. The objection was not to the route itself being added to the Definitive Map and Statement, but to the wording and identification of furniture contained in the Order Schedule. A copy of the objection can be found in Appendix L. Whilst this issue was not raised by the Objector when the application was considered by the Committee, there is insufficient evidence that the stile in question has been in existence at the commencement of the relevant user period such that it ought to be considered a legal limitation and reflected as such in the description of the footpath to be added.
6.0 Conclusion
6.1 In conclusion Durham County Council as Order Making Authority believes that the Order meets the statutory criteria and that the objector's grounds for objection have been considered and are not substantive. The Council considers that the tests for making and confirming the Modification Order have been satisfied, and duly requests that the Order be confirmed without modifications. Alternatively, should an Inspector consider that any modifications to the Order are required, then the Order Making Authority invites the Inspector to confirm the Order subject to any such modifications considered appropriate.