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 Bridleways 17 (Part), 35 and Crabb’s Barn Lane, Beaminster to record them as Byways 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 – subsequently adopted by the Trail Riders Fellowship - an investigation was carried out to upgrade to a byway open to all traffic Bridleways 17 (Part), 35 and Crabb’s Barn Lane, Beaminster. 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 in its current condition, as a grassy field-edge path between points A-C, a stone track between points C-F, and then a tarmac route from points F-I.

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 of the documentary evidence was the Beaminster lnclosure Award of 1809, which contained a plan showing a route which corresponded to Crabb's Barn Lane, between points C and E on plan 18/13. The Award described this way as 'one other public carriage road and highway

30 feet wide'. This was considered to be evidence of a way carrying public vehicular rights over this length of the claimed byway. However, the value of the lnclosure Award in providing evidence of public status was confined to that length of the claimed route that was awarded by it, with there being no other plan contained in the lnclosure Award. That said, the remaining lengths of the claimed byway, between points A, B and C, and between E, F, G, H and I, were marked on the Award Map as ‘public highway to Hooke’ which is evidence that that part of the route was already considered to be public highway at the time of the Inclosure Award.

Part of the claimed route was shown on the Tithe Map as excluded from paying a tithe which is indicative of public highway status; highways often being excluded from tithes.  However, the route between E and I was not excluded from tithe.  The Tithe Map evidence is less strong than the Inclosure Award but supports the existence of vehicular rights.

In addition to the documentary evidence, the report contains 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, these forms were considered to fulfil the requirement of 20 or more years use by the public before the application, as of right and without interruption or secrecy, prior to the date that public rights were first brought into question. The objectors stated that they had taken steps to stop use, but none of the user evidence confirmed that.

Officers therefore concluded that there had been a presumed dedication of the route under section 31 of 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 claimed route including of Bridleways 17 (Part), 35 and Crabb’s Barn Lane, Beaminster, as shown in the report, should be recorded as a BOAT.

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 (NERC 2006). Questions had 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.

Other objections referred to actions taken to prevent or discourage use of the way by the public with motor vehicles, but there was no evidence to show from the user evidence forms that they had experienced any acts that would give the impression that they should not be using the route. Questions had also been raised with regard to the landowner's intention and capacity to dedicate the way as a vehicular highway.

In particular, officers confirmed that the documentary evidence was considered to be strong and was supported by the user evidence, which 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 that the route between

Point A and Point I on Drawing 18/13, should be recorded as a byway open to all traffic.

The Committee heard from those wishing to address the Committee. Bill Dupont considered that there was no right for use of the route by motorcyclists, with the route being signed "to Langdon" as a no through route. He said whenever a motorcyclist had been seen, they were turned away and he had two witness’s statements that challenges had been made to those using the route and that, on that basis, the application should be refused. He also would have appreciated notification of when officers made their site visit to the area to have had the opportunity to have met with them.

Jonathan Cheal made a statement on behalf of George Streatfield, one of the trustees who owned the land crossed by A-C.  He did not know of any public vehicular use.  He had seen footprint and hoof prints on the claimed route but never any vehicle tracks.  The Estate had a policy to challenge unauthorised use and farm managers were instructed to do so.

Jonathan Cheal considered that there was no compelling evidence to give the impression that the route was BOAT and, on that basis, there was good reason that the application should be refused. He asserted that the UCR status did not necessarily indicate public rights and that the mixture of recorded statuses (bridleway and UCR) was more likely to indicate the route was not a public carriageway. Moreover, the provisions of the NERC Act 2006 would have extinguished any previous rights for the route to be used by mechanically propelled vehicles because the user evidence forms were submitted after the required date of the Act. He was of the view that consideration of the application should be deferred pending an application to the Supreme Court to clarify its Order in relation to the application.

Philip Golding objected to the application considering it to not be valid and that given that there were multiple classifications throughout the route, which would imply that those section were in different ownerships, this would indicate that it was highly improbable that a BOAT could exist along the whole length. He also argued that using the route for that purpose would be of little benefit as acceptable alternative routes existed which could be used.

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. For clarification, he said that the Trail Riders Fellowship had used the route between 1973 and 2006 and ceased only when the NERC Act came into force pending determination of the route’s status. He confirmed that in his experience use of the route had never been challenged. He was confident that the evidence showed that the route should be recorded as a BOAT given the activities which had taken place and particularly from the historic documentary evidence which had identified such use and that the application satisfied the provisions of the NERC Act 2006.

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 including about use as of right, the mix of recorded statuses, the frequency of use, the effect of locked gates and the wording of signs.

Officers also confirmed that both documentary evidence and user evidence – either on an individual basis or in combination - should be taken into consideration in coming to their decision and that if either one or the other, or indeed both, provided compelling evidence in the minds of members, then this should be used as the basis for their decision.

The Committee assessed the evidence presented by officers.  They considered that the documentary evidence showed that a BOAT should be recorded between C and I.  However, they did not consider the documentary evidence showed the existence of vehicular rights between A-C.  They did not consider that the user evidence was sufficient to demonstrate that vehicular rights had been dedicated.  On being put to the vote the Committee agreed that an order should be made on that basis.