Agenda item

This report seeks to assist the Executive Member in determining whether or not to make a Definitive Map Modification Order (DMMO) to add this route to the Definitive Map, as a Public Footpath.

RESOLVED:      i) That having considered the available evidence the Executive Member agrees that the alleged public rights do not exist and resolves to refuse the application to modify the Definitive Map.

ii)  That the applicant be advised of their right of appeal.

REASON:                  Taking the evidence as a whole there is not a prima facie case in favour (i.e. there is a reasonable allegation) of the establishment of public footpath rights over the application route

Consideration was given to a report which had been prepared to assist the Executive Member in determining whether or not to make a Definitive Map Modification Order (DMMO) to add the route to the Definitive Map, as shown on Plan 1 page 40 of the report, as a Public Footpath.

The Definitive Map Officer confirmed that evidence had been obtained of 20 years usage of the path and that the period of use was between 1946 and 1966. She pointed out that there could be some discrepancies on the map and explained that for some people it was difficult to show accurately on a map a route that you have used when you were unfamiliar with maps. Therefore variations of the route claimed would not be unusual and would not necessarily imply that different routes had been used.

She went onto refer to evidence provided in relation to the bridges and explained her belief that use of the route between the period of 1946 to 1966 had used the Old Drawbridge which had been located to the north of the existing Bailey Bridge.

Representations were made by Ian Carstairs, as a landowner who claimed he had not been served with a notice as a person affected by the route of the path. He expressed concern at some of the evidence detailed in the report and he referred to witness statements, which indicated that the path lay along the course of the bed of the River Derwent.  He referred to the suggested course of the path and to the post and wire fence obstructions.

Richard Watson, made representations on behalf of the Carstairs Countryside Trust who also referred to discrepancies in the report in relation to the history of events and to the map. He referred to the photographic evidence and to procedural flaws in that correct procedures had not been followed and he pointed out that the application should fall on this point alone. He also pointed out that a public right of way had to have a highway link at each end and this path did not.

Representations were received from Ernest Smith of Sutton on Derwent, who gave evidence as a regular user of the path both by him and his relatives. He went onto refer to a number of footpaths that had been lost in the Parish.

The Definitive Map Officer confirmed that evidence showed that the line of the route ran along the top of the flood bank. She further explained that it was not, she believed, the intention that the route claimed would follow the actual river bed, therefore there was not requirement to serve notice upon Mr Carstairs as he was not an affected landowner. However, the evidence received was subject to interpretation. The Officer confirmed that no mention had been made of additional landowners when the original notices had been served. She stated that the alleged path connected Ings Bridge to Storwood the majority of the route being within the boundary of the City of York Council. However a small section of the route commencing from the Council boundary eastwards to a point south of New Farm lay within the boundary of the East Riding of Yorkshire County Council and connected with a county maintained road.

The Executive Member confirmed that this was a complex issue and that there was little documentary evidence to support the making of the order, with most being very old and anecdotal. He also pointed out that further evidence had indicated that the required processes had not been fully complied with by the Council and that whatever the decision those that were aggrieved would have the right of further recourse.

Consideration was then given to the following options:

Option A:  If, having considered all of the available evidence, and in the absence of any evidence to the contrary the Executive Member decides there is sufficient evidence to raise a reasonable allegation in support of the existence of public footpath rights:

a)     under common law based upon user between 1920 and 1966

b)     under the provisions of Section 31 of the Highways Act between 1946 and 1966

that the alleged public rights do exist, the Executive Member should resolve that:

a)   The Director of City Strategy be authorised to instruct the Head of Legal Services to make a Definitive Map Modification Order to add a public footpath, along the route A – B on Plan 1 attached to this report, to the Definitive Map;

b)   If no objections are received, or any objections that are received, are subsequently withdrawn, the Head of Legal Services be authorised to confirm the Order made in accordance with (a) above; or

c)  If any objections are received, and not subsequently withdrawn, the Order be passed to the Secretary of State for confirmation.

d) The East Riding of Yorkshire Council be invited to make a corresponding Order for the section of the route within their area.

Option B: If, having considered all of the available evidence, the Executive Member may decide that the alleged public rights do not exist, the Executive Member should resolve that:

a)       The application to modify the Definitive Map be refused.

The applicant be advised of their right to appeal.

RESOLVED:      i) That having considered the available evidence the Executive Member agrees that the alleged public rights do not exist and resolves to refuse the application to modify the Definitive Map. ^1.

ii)  That the applicant be advised of their right of appeal.

REASON:                  Taking the evidence as a whole there is not a prima facie case in favour (i.e. there is a reasonable allegation) of the establishment of public footpath rights over the application route