Report of the Director of Corporate Services
The Panel considered a report of the Director of Corporate Services regarding an application by Mrs. C. Towle for a Modification Order under Section 53 of the Wildlife and Countryside Act 1981 to add a Public Footpath running from Draycott/Cheadle Road to New Haden Road (Huntly Lane), Cheadle to the County Council’s Definitive Map and Statement of Public Rights of Way.
The report was presented verbally to take Members through the various legal, documentary and historical evidence relevant to the application. The Director also made reference to case law which dealt with the weight to be given to that evidence and gave Members guidance on the legal tests which they should apply. In applying these tests, Members were made aware that they should examine the evidence in its totality.
The Chairman then invited the County Councillor for Cheadle and Checkley County Electoral Division (the ‘Local Member’) to address the Panel. In response, he said that he noted the comments on the application which had been received from Cheadle Town Council ie (i) that Public Footpath No. 19 Cheadle Town could be used as an alternative route and (ii) that the route of the alleged path crossed over land which incorporated two air shafts, was close to the site of a quarry and comprised unstable land. In reply, the Director of Corporate Services advised the Panel that in law, both (i) and (ii) above were not material considerations to be taken into account in their determination of the application. However, the Local Member said that he wanted to ensure that the concerns of the Town Council were noted.
The Local Member also sought clarification of the user evidence which had been submitted in support of the application.
Members had regard to the appendices attached to the report including:- (i) a plan of the claimed route; (ii) a copy of the application; (iii) a copy of the accompanying User Evidence Forms; (iv) a table of usage; (v) a copy of additional evidence; (vi) a copy of historical evidence and; (v) copies of landowner responses.
In the discussion which ensued, a Member expressed his serious concerns regarding the potential health safety implications for path users in the event the Panel decided to approve the application and make a Modification Order. He therefore proposed that determination of the application be deferred pending a site visit by the Panel to gain a better understanding of the physical features on the ground and Rights of Way network in the area. Following a show of hands which indicated 2 for and 2 against the proposal, the Chairman exercised her casting vote and declared the motion lost.
Following their detailed consideration of the application, the Panel decided that from the available evidence the civil test of ‘Balance of Probabilities’ was satisfied in relation to Section 53(c)(i) of the Act ie ‘that a Right of Way which is not shown in the Map and Statement subsists owing to the user evidence which had been submitted which showed that the public had used the alleged route, as of right and without interruption, for a period of at least 20 years prior to the status of the route being brought into question and the absence of an identifiable event which brought into question the use of the path.
With regard to the lesser test of ‘Reasonable Allegation’ they decided that this was also satisfied.
RESOLVED – (a) That the report be received and noted.
(b) That the evidence submitted by the applicant and that discovered by the County Council is sufficient to show that a Public Footpath which is not shown on the Definitive Map and Statement for the District of Staffordshire Moorlands subsists along the route shown marked A to B to C to D on the plan attached at Appendix A to the report and should be added to the Definitive Map and Statement of Public Rights as Way as such.
(c) That an Order be made to add the alleged right of way shown on the plan attached at Appendix A and marked A to B to C to D on the plan to the Definitive Map and Statement of Public Rights of Way for the District of Staffordshire Moorlands as a Public Footpath.
NOTE BY CLERK: Mr. D. Brookes requested his name be recorded in the minutes as having voted against the recommendations.