Agenda item - Application for a Definitive Map Modification Order, The Paddock, Roedean

Report of the Executive Lead Strategy, Governance & Law

1)            That the Committee does not approve the application for a Definitive Map Modification Order on the basis that it has not been found that, on the balance of probabilities, a right of way over the Claimed Route subsists or can reasonably be alleged to subsist.

 

2)            That the Committee recommends that, given the complexity of the case and the legal position, that the matter be referred by the Roedean Residents Association to the Secretary of State for Environment, Food and Rural Affairs

81.1      The Committee considered a report of the Executive Lead, Strategy, Governance & Law that set out the result of the Council’s consideration of an application for a Definitive Map Modification Order for The Paddock, Roedean submitted by the Roedean Residents Association.

 

81.2      Councillor Miller asked for a clear definition on “interruption” and clarification on how the Southern Water works met that test.

 

81.3      The Lawyer stated that the route was inaccessible when the Southern Water works were being carried out which did qualify as an interruption if the route could not be used because of obstruction. The Lawyer added that signs were also displayed during the work that demonstrated no intention on behalf of the landowner to dedicate the route as a right of way.

 

81.4      Councillor Miller noted that a Planning Inspectors report relating to footpath closures during the foot and mouth outbreak had not found interruption to exist in that case even through permanent closure. Councillor Miller asked why neither consideration nor photographs had been provided for the steps on neither the south east side of The Paddock nor photos of the gates backing on to The Paddock had been given.

 

81.5      The Lawyer noted that The Paddock had been closed for 18 months during the Southern Water works that may be a longer period of time than the closures relating to foot and mouth. The Lawyer referred to the photos taken in 2006 on page 268 of the agenda that showed the south east corner and steps.

 

81.6      Councillor Janio asked if the signs displayed during the Southern Water interruption stated that the site was closed.

 

81.7      The Deputy Head of Law stated that the signs put up by Southern Water and the licence submitted by Southern Water and issued by the Council led to the conclusion that the 18 months work did constitute an interruption in accordance with Section 31 of the Highways Act.

 

81.8      Councillor Janio asked for clarification on whether the signs stated that access was denied or if they stated that Southern Water was undertaking work.

 

81.9      Councillor Theobald asked what the process would have been should the site had already been designated as a Right of Way before the Southern Water works and the site had needed to be accessed for engineering work.

 

81.10   The Lawyer stated that if the site had already been a claimed route then Southern Water would need to have obtained a permit to carry out the work. Instead, a licence was required as the site was deemed to be on private land. 

 

81.11   Councillor Miller asked why the initiation of ‘the clock’ in 2012 had not started earlier for example when the planning application was submitted which indicated it was a path.

 

81.12   The Lawyer clarified that under the Highways Act, the 20 years was taken from the date of challenge and the date of challenge was taken to be when the signs were erected stating that it was not a Right of Way.

 

81.13   Councillor Deane asked if the land was not designated or recognised as a Right of Way and was continued to be used, whether the Council undertake prosecution against residents.

 

81.14   The Lawyer stated that the Council, as landowner, currently provided permissive use for residents to use the land.

 

81.15   Councillor Deane asked if that permission was ever likely to be withdrawn.

 

81.16   The Deputy Head of Law stated that the determination of the Committee should be based upon the evidence available of whether a Right of Way on the land could reasonably or alleged to subsist rather than future plans for the land

 

81.17   Councillor Wares asked if it was known when and why the steps in the south east corner of The Paddock had been put there for.

 

81.18   The Lawyer stated the report from Earthship Biotecture Limited detailed what was on the site and that only referenced a footpath on the western boundary with no other footpath mentioned. With reference to the placement of the steps and the date they were built, the Deputy Head of Law stated that the Council had no evidence about those steps and therefore could not make an informed decision. However, the evidence that the steps exist did not support that as a specific, claimed route.

 

81.19   Councillor Wares stated the assessment to be made was on the information available and Members could infer that the presence of the steps could mean that there was a footpath around the boundary of the site.

 

81.20   The Deputy Head of Law commented that the steps were one part of the evidence put forward and the report set out many other pieces of evidence and a conclusion had been made on the whole.

 

81.21   Councillor Janio asked hypothetically that if the route had been used for a very long time, the fact that Southern Water works had required a licence meant that Members were compelled to support the recommendations.

 

81.22   The Lawyer stated that hypothetically speaking that would be the case however, that was one factor of the evidence and from that evidence no footpath could be claimed to exist from Ordnance Survey maps until 2013 when Cityclean had begun mowing the route.

 

81.23   Councillor Miller stated that he felt there had been a failure in the report to address how the common law test had not been met.

 

81.24   The Lawyer stated that the report did address the matter with consideration of the twenty year test under the Highways Act which encompassed the common law test. Furthermore, to qualify under the common law test, there would have to have been many more users than eleven over the twenty year period.

 

81.25   Councillor Miller asked why the private property signs were erected in 2012 if it was not until 2013 that it was understood the land was being used otherwise.

 

81.26   The Lawyer stated that the signs had been put in place due to concern about a potential village green application.

 

81.27   Referring to page 184 of the agenda, Councillor Miller stated that he was unsure why the term “identifiable” in relation to an established route had been used as this was not a term used in legislation. In addition, Councillor Miller asked if there was potential for judicial review of the decision made by the Committee by Roedean Residents Association.

 

81.28   The Lawyer clarified that the term “identifiable” referred to case law. The Lawyer added that if the recommendation was accepted as per the report, the Roedean Residents Association would be entitled to appeal to the Secretary of State and there would be a Public Inquiry.

 

81.29   Councillor Miller asked if the Roedean Residents Association had the right to judicially review the council independent of an appeal.

 

81.30   The Deputy Head of Law stated that the established rules for public administrative law would apply in that if the Roedean Residents Association felt that an unlawful, irrational decision had been made they could request a judicial review application. The Deputy Head of Law clarified that this was of low-risk to the council as there was a clear means of appealing the decision.

 

81.31   On behalf of the Conservative Group, Councillor Miller moved an motion to amend recommendation 2.1 as shown in bold italics below:

 

2.1         That the Committee does approve the application for a Definitive Map Modification Order on the basis that it has been found that, on the balance of probabilities, a right of way over the Claimed Route subsists or can reasonably be alleged to subsist. This is on the basis that on the balance of probabilities it can reasonably be alleged that a right of way over the land has been enjoyed by the public as of right and without interruption for a full period of 20 years. The documentary evidence, along with the user evidence and councillor evidence, does support the existence of the Claimed Route. There is also not sufficient evidence that there was no intention to dedicate the Claimed Route within that period.

 

81.32   Introducing the motion, Councillor Miller stated that there was a large amount of evidence that had failed to be considered specifically, the photos of the back gate, the photos the steps and no reference had been made to the user evidence that Section 31 of the Highways Act set out as a requirement. Councillor Miller noted that there was a contradiction in the statements made as the Ordnance Survey maps had been used to support the claim that no route existed yet page 236 of the agenda noted a solid line running along the eastern side and western side of The Paddock. Councillor Miller stated that he disagreed with the officer evidence and judgement and there was an identifiable route in his view.

 

81.33   Councillor Janio seconded the motion had stated he reiterated the views expressed by Councillor Miller.

 

81.34   Councillor Greenbaum stated that she was mindful of the photo provided by Councillor Miller of the gates as she was unaware they were there and she was concerned that was evidence of a physical path. Councillor Greenbaum commented that she was minded to abstain as she could not be certain of a clear conclusion based upon the physical evidence.

 

81.35   On behalf of the Labour Group, the Chair moved the following motion to add a recommendation 2.2 as shown in bold italics below:

 

2.2      That the Committee recommends that, given the complexity of the case and the legal position, that the matter be referred by the Roedean Residents Association to the Secretary of State for Environment, Food and Rural Affairs

 

81.36   Councillor Horan seconded the motion.

 

81.37   Councillor Miller asked if the committee could decline to make a decision and what would happen if the recommendation in the motion was rejected by Roedean Residents Association.

 

81.38   The Deputy Head of Law confirmed that if the motion was agreed, a Modification Order would not be made and the Residents Association could appeal directly to the Secretary of State.

 

81.39   The Chair then put the Conservative motion to the vote which failed.

 

81.40   The Chair put the Labour Group motion to the vote that passed.

 

81.41   The Chair put the recommendations as amended to the vote that passed.

 

81.42   RESOLVED-

 

1)            That the Committee does not approve the application for a Definitive Map Modification Order on the basis that it has not been found that, on the balance of probabilities, a right of way over the Claimed Route subsists or can reasonably be alleged to subsist.

 

2)            That the Committee recommends that, given the complexity of the case and the legal position, that the matter be referred by the Roedean Residents Association to the Secretary of State for Environment, Food and Rural Affairs