Meeting documents

To consider a report by the Service Director for Environment, Infrastructure and Economy.

The Committee considered a report by the Service Director Environment, Infrastructure and Economy on the determination of an application to modify the Definitive Map and Statement of Rights of Way to upgrade Bridleway 8 (part), Cheselbourne and Bridleway 18, Dewlish to record it as a Byway Open to All Traffic (BOAT), following a recent Supreme Court ruling. It was confirmed that the Committee was being asked to revisit a decision to refuse five applications for BOATs taken on 7 October 2010, following a Judicial Review and subsequent Supreme Court ruling.

Officers confirmed that in response to an application by the Friends of Dorset

Rights of Way (FoDRoW) - subsequently adopted by the Trail Riders Fellowship (TRF) - an investigation was carried out to upgrade to a byway open to all traffic the route from Doles Hill Plantation running eastwards to Chebbard Gate, recorded on the definitive map as Bridleway 8 (part), Cheselbourne and Bridleway 18, Dewlish. The Committee were now being asked to consider the evidence relating to the status of the claimed route. The Committee also needed to determine whether the applications had been made in accordance with the statutory requirements in order to determine whether rights for mechanically propelled vehicles had been extinguished.

 With the aid of a visual presentation, and in taking into account the provisions of the Update Sheet made available to members prior to the meeting and appended to these minutes, the basis for the application was explained and what it entailed. Photographs and plans were shown to the Committee by way of illustration. This showed the claimed route and the points between which it ran as it currently appeared; primarily a grassy route following field edges and running between hedges for part of its length.

The documentary and user evidence contained in the report was referred to in detail and how this was applied in the officer’s reasoning for coming to the recommendation they had. The weight to be given to the user and documentary evidence was explained. The Committee’s attention was drawn to what they were being asked to take into consideration in coming to their decision.

Officers confirmed that the most substantial part of the documentary evidence was the Cheselborne Inclosure Award of 1844, which showed an awarded public carriageway between points A-B-C-D on Drawing ref 18/11. This was evidence of a way carrying public vehicular rights over this length of the claimed byway. Further evidence indicated that the remainder of the route, between points D-E, was a pre-existing public route unaffected by the Inclosure process. Officers drew attention to the objectors’ assertion that the route had been laid out on the ground in accordance with the Award and pointed the Committee to the Report where this issues was considered.  Officers went on to explain that there are other documents suggesting that the claimed route carried vehicular rights such as the Dewlish Enclosure Award and the Dewlish Tithe Map which showed the route continuing D-E.

In addition to this evidence, the report contained an analysis of the user evidence that had been submitted in support of the application for the modification order. There was evidence of use by the public with vehicles, predominantly motorcycles, contained in the user evidence forms that were submitted following the submission of the application. Taken together, the user evidence showed 20 or more years use by the public, as of right, without secrecy and without interruption, prior to the date that public rights were first brought into question. Moreover, the evidence submitted and/or discovered, suggested that the landowners had taken no effective steps to prevent the public from using the way with mechanically propelled vehicles.

Officers therefore concluded that there had been a presumed dedication of the route under section 31of the Highways Act 1980 and officers also concluded that the use of the route was sufficient for an implied dedication of public vehicular rights under Common Law.

Officers reported that the available evidence showed that, on balance, a BOAT subsisted or was reasonably alleged to subsist. Consequently, they were satisfied that the route of bridleway 8, Cheselbourne and Bridleway 18, Dewlish, as shown in the report, should be recorded as a BOAT, as described in the report.

As to the consultation on the application, an objection had been received from the Green Lanes Protection Group, and from the landowner's solicitor, who were of the view that the application was not made in accordance with the necessary provisions of the Wildlife and Countryside Act 1981. If this was so, public vehicular rights would have been extinguished by the effect of the Natural Environment and Rural Communities Act 2006. Questions have been raised about whether the evidence submitted with the application was sufficient, particularly when in the form of extracts of documents. Officers' view was that the application had been made in accordance with the necessary requirements and that if the Committee decided otherwise but that the evidence showed the existence of vehicular rights the route should be recorded as a Restricted Byway. Other objections of particular relevance referred to actions taken to prevent or discourage use of the way and whether the necessary dimensions of the route that was awarded by the Cheselbourne lnclosure Award accorded with the Award. Officers were satisfied that all the necessary requirements had been complied with.

In particular, officers confirmed that the documentary evidence was considered to be strong. Further, the user evidence was considered to be sufficient to fulfil the requirement of 20 or more years use by the public to demonstrate a deemed dedication under Section 31 of the Highways Act 1980. On that basis, officers had come to their recommendation.

The Committee heard from those wishing to address the Committee. Chris Wiles (TRF) strongly advocated the upgrade of the route to a BOAT given the compelling documentary and user evidence available and which officers had thoroughly analysed in coming to their recommendation. He was confident that the evidence showed that the route should be recorded as a BOAT from the historic documentary evidence and the user evidence with no users saying their use had been challenged.

The County Councillor for Three Valleys was of the opinion that the route was not suitable to be considered a BOAT as it served little practical access purpose and would be a route to nowhere as it connected to a restricted byway. Moreover she had walked the route since about 1990 and seen no evidence that it had ever been used by motorised vehicles. She thought that the reason why user evidence purported to never having been challenged was that it was so isolated as being little opportunity for this to be the case. Whilst she agreed that the route had higher rights than a bridleway, there was no reason to believe this extended to motorised vehicles, given there was a perfectly serviceable metalled alternative route nearby. She felt if the evidences was accepted the route should be recorded as a restricted byway.

The Committee were then provided with the opportunity to ask questions of the

officer’s presentation and officer’s provided clarification in respect of the points raised

as necessary. Clarification was provided by officers as to how the evidence had been assessed, what had been taken into consideration in doing this and the way in which this had been done. Members were satisfied with the responses received in their more meaningful understanding of what the application entailed.

The Committee assessed the evidence presented by officers, taking into account the detail of the application in the report and hearing what those making submissions had said. The Committee concluded that when put to the vote the application should be approved and an order made to record a BOAT on the basis of the recommendation contained in the officer’s report.

Resolved

1) That the application be accepted, and an Order made to modify the Definitive Map and Statement of Rights of Way to upgrade part of Bridleway 8 (part), Cheselbourne and Bridleway 18, Dewlish from Doles Hill Plantation to Chebbard Gate as shown A – B – C – D – E on Drawing 18/11 as a Byway open to all traffic and

2) That if the Order is unopposed, or if any objections are withdrawn, it be confirmed by the County Council/Dorset Council without further reference to this Committee.

Reasons for Decisions

1)The available evidence submitted and/or discovered demonstrates that on balance a highway shown on the definitive map and statement ought to be shown as a highway of a different status; and

2) Lack of objection to an order may be taken as acceptance that the byway open to all traffic does in fact subsist as described and if so the order should be confirmed.

Decisions on applications for definitive map modification orders ensured that changes to the network of public rights of way comply with the legal requirements and supports the Corporate Plan 2017-19 Outcomes Framework:

People in Dorset are Healthy:

• To help and encourage people to adopt healthy lifestyles and lead active lives

• We will work hard to ensure our natural assets are well managed, accessible and promoted.