Agenda item

Report of the Deputy Chief Executive (Place)

The Committee considered a report of the Deputy Chief Executive (Place) which reported on an application to record a public footpath from Ten Shilling Drive to Guinea Close.

The City Council received an application from the Ramblers Association dated 24 September, 2006, for a public footpath to be recorded on the Definitive Map and Statement from Ten Shilling Drive to Guinea Close. The application was made under Section 53 of the Wildlife and Countryside Act 1981. 

In 2018 the route was obstructed by two freeholders. The Council wrote to both freeholders requesting that they remove the obstructions and they complied. Earlier this year, the route was again obstructed and as a result, the Council started investigating whether a Definitive Map Modification Order (DMMO) should be made.

The claimed route runs from Guinea Close to the rear and east of No. 2 Guinea Close, it continues south to the east of Nos. 31, 29, 27 and 25 meeting Ten Shilling Drive at the entrance to the E-On site. The length of the route is approximately 129 meters and is bordered on the eastern side by a mature hedge and on the western side by fences separating the claimed route from the neighbouring gardens. The width of the route if 7 meters. The route is currently obstructed where the path meets Ten Shilling Drive by fencing and hard standing for motor vehicles which expands over the line of the route. The claimed  route was indicated as a bold dashed line marked A-B-C-D on a map appended to the report.

Section 53(2)(b) of the Wildlife and Countryside Act 1981 requires that the Council shall keep the Definitive Map and Statement under continuous review and make such modifications to the Map and Statement as appear requisite in consequence of the occurrence of certain events.

One such event (section 53(3)(c)(i)) requires modification of the map by the addition of a right of way.

  “(c) the discovery by the authority of evidence which (when considered

  with all other relevant evidence available to them) shows :-

(i)  That a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates…..”

The evidence can consist of either documentary/historical evidence or user evidence or a combination of this evidence. All of the evidence must be evaluated and weighed so that a conclusion can be reached as to whether, on the balance of probabilities’ the alleged rights subsist or are reasonably alleged to subsist. Any other issues, such as safety, security, suitability, desirability or the effects on property or the environment, are not a consideration or relevant in determining the decision.

The Highways Act 1980 states that the public must have used the way without interruption and as of right; that is without force, secrecy or permission. Section 31(2) states that “the 20 years is to be calculated retrospectively from the date when the right of the public to use the way is brought into question”.

A route can be presumed to have been dedicated under Section 31(1) of the Highways Act if a route has been used by the public for 20 or more years. When calculating the 20 year period, there must be  a clear event that made the public realise that their rights are being challenged; referred to as calling into question. Events that can call a route into question include blocking the route, a notice, telling people not to use the route or submitting a definitive map modification Order to the Council.

In this case there are a number of events that could be regarded as a calling into question; the application submitted by the Rambler’s Association in 2006, the obstruction of the route in 2017 and the obstruction of the route in 2019.

Having considered all evidence and callings into question, it was recommended that the calling into question date would be 1986 using the DMMO application as this was the first calling into question and therefore is considered by officers to be the most appropriate date.

The report provided information on the results of the consultation undertaken and a detailed analysis of the evidence which included amongst other information, planning history, sale of land by the City Council, restrictive covenant, historic mapping evidence. 

The report concluded that mapping evidence clearly showed that the route has been recorded as a physical feature since 1880 through to today. The recording of a route on an OS map does not in itself represent highway rights nor does it demonstrate that the route was private.

The resident’s solicitor submitted that the actions of the Council as land owner demonstrated that the route was not highway at the time of the sale. However, this assertion was not supported by any evidence, none of the actions by the land owner can be interpreted as an intention not to dedicate.

The objectors failed to demonstrate an intention not to dedicate the route prior to the DMMO application.

There was enough evidence on the balance of probabilities to say that the route in question is a public right of way with the status of a public footpath.

The Committee considered a petition bearing 239 signatures (219 on line signatures and 20 paper petition) sponsored by Councillor M Lapsa. Unfortunately, Councillor Lapsa was unable to attend the meeting and had nominated Councillor A Andrews to speak on his behalf. Councillor Andrews and the petition spokesperson attended the meeting and spoke in respect of the petition. A local resident also attended the meeting and spoke on behalf of the objectors. The petition detail was read out by the Committee’s Legal Officer.

RESOLVED that the Committee do not authorise the City Solicitor to make the necessary Definitive Map Modification Order for the route from Ten Shilling Drive to Guinea Close in the City of Coventry as shown in Appendix A, pursuant to Section 53 of the Wildlife and Countryside Act 1981, to be recorded as public footpaths.

(Note: Councillor Skinner did not vote on this application as he had declared an interest and left the room during the consideration of this item.)