TRANSPORT DECISION - DEFINITIVE MAP MODIFICATION ORDER DETERMINATION

Application to be determined – 202303 Kexby Wilson’s Plantation.

DMMO application to record a public bridleway between A and B on the maps below
Evidence supporting the application	Evidence not supporting the application
The route is depicted as ‘Lanes and Bridle Ways’ in Bryant’s 1829 map but is not shown on any other commercial maps that CYC have access to. These maps were available to the public for a fee suggesting these routes may have been public in the opinion of the mapmaker.	The 1905 Sales Particulars for the Scoreby estate states ‘There is not a public road or public footpath over the estate.’ There is no evidence to show these particulars were subject to external scrutiny and, on the same estate, several public rights of way were claimed and subsequently recorded on the definitive map.
OS maps show the physical existence of a route matching the application route on the following maps: 1854 6 inch, 1858 one inch, 1893 25 inch, 1898 one inch, 1906 one inch, 1910 25 inch, 1911 6-inch, 1923 half inch, 1924 one inch, 1930 half inch, 1943 one inch, 1946 2 ½ inch, 1947 one inch, 1952 6 inch and 1958 1:10000 scale OS maps. At the time of their publication, half inch and one-inch maps would have been widely used by travellers because they were of a small enough scale to be a convenient usable size whilst still maintaining detail and wide geographical coverage.	In the valuation books created under the 1910 Finance Act there is no deduction of site value stated in the column for ‘Public rights of way or user’ and in the observations section there is no indication that the surveyor was aware of the claimed route crossing the land.
The map key for the half inch and one inch OS maps depicts the application route as an unfenced road in 1858, an unfenced unmetalled road on the 1898 and 1906 editions. These maps had no line style for depicting bridleways. In 1924 the route is depicted as an unfenced road but in 1930 it is depicted in the line style used for bridleways and footpaths. On the 1946 OS map it is depicted as a ‘other road’ and in 1947 the route is depicted again as an unfenced road.	The route was recorded at two stages during the preparation of the East Riding County Council definitive map but was not included in the first or current definitive maps.
Road classification was introduced in 1920s and the 1923 Ministry of Transport map was produced shortly after with Class 1 and 2 roads added to an OS map overlay. In this map the application route is depicted as a ‘bridle or footpath’	The route is not shown on any OS maps (available to CYC) after 1958 which may indicate that it was no longer obvious on the ground to surveyors. This is reinforced by absence of the route on aerial imagery available to the council which covers 2002-2020.
The route is described in 1951 walking schedules used during the preparation of the definitive map as a ‘sand cart road only’ that was believed to be public from evidence of older inhabitants or villagers.
DMO Comment on the evidence as a whole
Under section 53 of the Wildlife and Countryside Act 1981, before an application for a DMMO can be determined there must have been what the Act calls “a discovery of evidence”. This means a piece of evidence must come to the council’s attention that was not considered during the creation of the definitive map or subsequently. Once discovery has occurred the council is then required to review all the available evidence even if it has been previously examined. The route was claimed during the initial parish surveys carried out in 1950 and 1951 and appears on the maps and record sheets prepared during that process. For some reason, despite being in the parish survey, it was not included on the draft definitive map issued by East Riding County Council (ERCC). It was, however, included on the second draft of the ERCC definitive map (also known as the provisional map). During the consultations done at this stage, objections were received by ERCC. Consequently, the route was not included in the first definitive map issued by ERCC in 1968. During the 1970s and 1980s all the objections received at the draft and provisional map stages were considered and dealt with by the Secretary of State and the relevant highway authority (ERCC up to 1974 and then North Yorkshire County Council). The result of that process was that this route was still not included on the current definitive map when that was issued in 2018. Therefore, as this route has clearly been considered by the relevant highway authority, the question is whether any discovery has taken place. Examination of the ERCC records relating to the creation of the definitive map show that, for the application route, commercial maps like Bryant’s 1829 map were not previously consulted. Therefore, in the absence of any records showing that this evidence had already been considered the council can accept that “a discovery of evidence” has taken place and that the application is duly made. In the 1905 ‘Instructions to OS surveyors’ paths leading to ‘any well-defined object of use or interest’ and that ‘were in obvious use by the public’ should be shown. The application route is shown pre and post 1905 suggesting that, in the opinion of the OS surveyors, it was in use by the public, perhaps to travel to a public place. Further, the half inch and one-inch maps were widely publicly available showing the route for on them for multiple decades suggesting there had been no outcry from land owners to have the routes removed from OS maps. Commercial maps by individual mapmakers, such as Bryant’s, were produced based on customer interest and financial subscriptions which generated the revenue enabling the maps to be produced. Consequently, these maps were aimed at a wealthier clientele and were not as widely available or regulated as OS maps. The representation of the route on OS maps and on Bryant’s 1829 map as an unmetalled or unfenced road could imply that the application route was capable of supporting more substantial traffic, such as horse and carts, thereby giving rise to higher rights than footpath status. The description of the route as a ‘sand cart road only’ in the walking schedules was written as a physical descriptor referring to the metalling of the route. Taking the OS and Bryant’s map into consideration it is reasonable to allege that public bridleway rights may subsist over the application route. The map evidence contrasts with the 1905 sales particulars which advertises that the estate had no public footpaths or public roads crossing it. Nevertheless, it must be noted that only 45 years later in 1950 several public rights of way on the same estate were claimed for inclusion on the definitive map and did not attract any objections. The valuation books for the 1910 Finance Act do not reference or include the application route. Nevertheless, it is important to bear two points in mind. First, this process sought to gather information for land taxation rather than identifying public highway rights. Second, the duty was only payable on the increase in land value over its base value as agricultural land. Therefore, the presence of a public right of way would have only had minimal impact on the land value and the landowners could have decided not to declare any routes, especially in light of the earlier declarations made in the 1905 estate sales particulars. Although the route is not included in the Finance Act 1910 documents or shown on OS maps after 1958, this absence cannot necessarily be taken as evidence refuting the route’s presence or status. In conclusion, the 1829 Bryant’s map constitutes a discovery of evidence as required by S53(3) of the Wildlife and Countryside Act 1981. Bryant’s map and the OS maps together constitute sufficient evidence to meet the statutory test under S53(3) of the Wildlife and Countryside Act 1981 to make an order to record the route as a public bridleway. However, the evidence currently available is not sufficient, on the balance of probabilities, to allow the order to be confirmed.
Consultation responses
The British Horse society responded to the consultation supporting the application. Two people at adjacent properties to the route objected to the application on safety and wildlife grounds. As representatives for the landowners Savills responded asking for the supporting evidence to be sent to them and submitted an initial objection to the application. The Parish council responded asking to be sent the evidence submitted with the application and later submitted a formal objection. The Ramblers did not respond to the consultation.

Does the current evidence meet the statutory test for making the order?	Yes
Will the order route be the same as the application route? (Attach a map showing the proposed order route)	Yes
What status will the route have?	Public bridleway
Officer recommended determination-	Make the order
Officer recommended stance towards confirmation-	Take a neutral stance

Equality Impact Assessment
There is a statutory requirement in accordance with s53 Wildlife and Countryside Act 1981 to investigate applications for Definitive Map Modification Orders and come to conclusions entirely on the basis of the available evidence, regardless as to whether the outcome would benefit or prejudice owners, occupiers or members of the general public, and as such it is considered that equality and diversity issues are not relevant factors which can be taken into account in the process.
Implications
Crime & Disorder	Equalities	Other
Human Resources	Legal	Highways	ü
Financial	ICT	Property

Affected Wards
All wards	Acomb		Bishopthorpe
Clifton	Copmanthorpe		Dringhouses & Woodthorpe
Fishergate	Fulford & Heslington		Guildhall
Haxby & Wigginton	Heworth		Heworth Without
Holgate	Hull Road		Huntington & New Earswick
Micklegate	Osbaldwick & Derwent	ü	Rawcliffe & Clifton Without
Rural West York	Strensall		Westfield
Wheldrake

Ward Councillor Comments
Cllr.	Mark Warters
Councillor Warters responded to the consultation asking for details of the applicants and the supporting evidence to be sent to him.
Cllr.	Martin Rowley
No formal responses were received.
Executive Member for Transport Comments
Senior Officer Comments
James Gilchrist			Director
Senior Officer Decision
Decision Date:
Decision made by:		James Gilchrist, Director Environment, Transport and Planning
Contact details:		01904 551550 rightsofway@york.gov.uk
To be implemented by:		Russell Varley, Definitive Map Officer
On completion- signed off by:				Date:
James Gilchrist
Assistant Director Transport, Highways and Environment

Officer responsible for the report:

Name:	Russell Varley	Telephone No.	01904 553691
Position:	Definitive Map Officer	e-mail	russell.varley@york.gov.uk
Team:	Transport Service