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FORMAL APPLICATION TO ADD A PUBLIC FOOTPATH ON ROUTES KNOWN AS

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					                                Committee and Date            Item           Paper
                                Rights Of Way Committee

                                15th January 2007

                                2.15 pm                       6.4 E
                                                              Public


FORMAL APPLICATION TO ADD A PUBLIC FOOTPATH ON ROUTES
KNOWN AS SUTTON ROAD, AND DOG KENNEL LANE, IN THE PARISH
OF CLAVERLEY


 Responsible            Lucy McFarlane, Map Review Officer
 Officers
 e-mail:  lucy.mcfarlane@shropshire-     Tel: 01743                    Fax 01743 255001
          cc.gov.uk                      255058



Summary

      An application has been lodged which seeks to alter the Definitive Map of
      Public Rights of Way. This report outlines the application and recommends
      an appropriate response.

Recommendation

It is recommended that an order is published to add the claimed routes, Sutton Road
and Dog Kennel Lane, in the Parish of Claverley.

                              LEGAL FRAMEWORK

Formal Applications to amend the Definitive Map are considered under the
provisions of Sections 53 of the Wildlife and Countryside Act 1981. This Act places a
duty on the Council to consider evidence on these applications and to make a
decision thereon.

If the applicant is unhappy with the County Council’s decision, they have a right of
appeal to the Department of the Environment, Food and Rural Affairs (DEFRA) who
may accept the grounds of appeal and direct the County Council to publish an Order
or to reject the application. The Council’s existing policy is scrutinised on each
appeal; in the main, it has been robust enough to satisfy DEFRA on the reasons for
the Council’s decisions.

Formal Application to add a footpath in the Parish of Claverley

On 11th December 2006 a Formal application was submitted by the British Horse
Society to add routes known as Sutton Road and Dog Kennel Lane to the Definitive
Map. On 27th March the Rights of Way Committee gave authority to investigate the
issue as a priority as it fulfilled the criteria required under County Council policy. (See
location map and plan of claimed routes at Appendix A.)

Background

Under the general review of Claverley Parish, undertaken in 1992, a route
subsequently referred to as Sutton Road was claimed as a public right of way. After
examination of all available evidence the County Council made the decision to
publish an order to add a public footpath (See maps attached at Appendix B.) A
modification order was published in 1997, part of a multiple order for the Parish of
Claverley. Objections were received to the order from the landowners who believed
the route was not public and from the British Horse Society who believed that higher
rights existed. The matter was brought before an Inspector at a public inquiry held
on 28th-31st March 2000.

At the start of this inquiry the British Horse Society made a legal submission relating
to Sutton Road, which caused that part of the order to be adjourned to a rescheduled
Inquiry held on 9th-12th May 2000. During this adjournment Mr Colin Seymour
served the County Council with a notice under Section 56 of the Highways Act 1980,
maintaining that Sutton Mill Lane , including Sutton Road, was a highway
maintainable at public expense and as such should be shown on the List of Streets
and /or the Definitive map. After taking legal advice it was concluded that the
Section 56 notice did not supersede the Public Inquiry procedure and that the two
could run in parallel. This meant that the County Council would await the final
determination of the Inquiry before addressing the s56 notice.

The Inquiry was well attended and the Inspector examined the evidence before him
concluding that public rights did not exist along Sutton Road. He therefore deleted
this route from the general order.

As the general order had been modified to reflect this deletion, objection to this
modification could be lodged on the discovery of new evidence. The County
Council, on discovering new evidence, objected to the modification as public rights
were believed to exist. (See County Councils statement attached at Appendix D).
This stance was also supported by Colin Seymour and the British Horse Society
(BHS) and others. A second public inquiry was arranged and the s56 notice was
adjourned ‘sine die’ at the magistrates court awaiting final determination of the order.

The second inquiry, held on 19th-22nd and 28th March 2002, was again well attended
with the same Inspector examining the new evidence before him. After further
deliberation he came to the same conclusion, i.e. that public rights did not exist along
Sutton Road and confirmed his deletion of that specific route from the general order.

The only avenue then available to anyone wanting to pursue the modification order
would have been to appeal to the High Court on the basis that the Inspector had
erred in law in reaching his decision. Following legal advice officers did not feel that
this could be substantiated. No other party submitted an appeal therefore the route
was not added to the definitive map.

This did not however deal with the s56 notice that was still current. This was further
complicated by an additional submission by Colin Seymour of two more s56 notices,

Contact: Lucy McFarlane, Map Review Officer on 01743 255058                             2

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one for the southern end of Sutton Road and another for a new route (subsequently
referred to as Dog Kennel Lane- see maps attached at Appendix C). This route has
not been subject of investigation at either inquiry. The route has been called Dog
Kennel Lane by the claimant on the basis of the deduction from the tithe map about
fields abutting this route. Both these routes were claimed as highways maintainable
at public expense, at public road status. Negotiations had been ongoing with the
landowners who indicated that they were prepared to dedicate part of the routes in
question.

On 9th March 2004, Lodders Solicitors, wished to clarify that although Mr and Mrs
Kempsey, one of the landowners concerned, offered to dedicate a footpath this was
conditional on the Council agreeing not to investigate any further claims made under
the Wildlife and Countryside Act 1981 in respect of any other route through Sutton
Farm. It was not possible for the County Council to enter an agreement under such
terms as anyone can submit a claim to amend the Definitive Map under the
provisions of the Wildlife and Countryside Act 1981.

The matter was then brought before the Committee on 24th March 2004 when the
officer recommendation was to publish an order to add the claimed routes, Sutton
Road and Dog Kennel Lane, as public footpaths. The Committee decided to
overrule the officer’s recommendation and advised that officers negotiate for the
claimed routes to be dedicated as footpaths through a section 25 Highways Act
Creation Agreement. They requested a special meeting to be held within one month
to review the situation.

After the Committee decision the landowners were approached but they were not
minded to dedicate all (or part) of their land in their ownership as public rights of way
to the County Council unless certain conditions were accepted. When it became
apparent that no progress had been made towards the dedication of the routes it
was agreed, in consultation with the Chair and Vice-Chair, that an extraordinary
meeting of the Rights of Way Committee should not be convened.

In May 2004 the Cothams, the other landowners affected, responded to a letter of
29th March 2004 to state they did not agree that the route on Sutton Mill Farm was a
public footpath. They believe that any admission by the County Council to a public
footpath on Sutton Mill Drive without further evidence would contravene their Human
Rights. Also, any clearance of the middle section for pedestrian use would only be
considered after a Badger Licence has been obtained.

In June 2004 Claire Porter, Head of Legal and Democratic Services, urged Mr
Kempsey to reconsider dedication by means of a Creation Agreement of all or part of
the routes within his ownership as the Council’s officers were keen to work with him
to achieve a solution.

Later in June 2004, in a fax, Lodders Solicitors believed that their clients were
prepared to dedicate the central section of the claimed route as public footpaths.

In a fuller written reply Lodders Solicitors believed that Mr Kempsey and Mr Cotham
were prepared to dedicate the central section of routes to create a link between FPs
57, 60 and 62 but did not accept that the new evidence established that the ends of
the routes were highways.

Contact: Lucy McFarlane, Map Review Officer on 01743 255058                            3

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In July 2004 Creation Agreements were sent to Lodders Solicitors which where
acknowledged and the solicitors reported that instructions were being sought from
the landowners. The agreements were never returned.

With respect to the s56 notices (after receiving Counsels advice and consideration of
the further historical evidence that has been produced) the Council responded in
accordance with its statutory duty by admitting that footpath rights exist along the
original route on 8th May 2004 with the addition of Dog Kennel Lane on 24th
November 2004.

In September the County Council solicitor contacted the landowner’s solicitors to try
and ascertain their client’s willingness to dedicate the routes. Despite another
request for a response no firm reply was received and the solicitor reported, on 24th
November, that no instructions had been received from his clients re: creation
agreements.

Site Meeting 6th December 2004

A site meeting was held on 6th December when Miranda McLaven, County Council
Solicitor and Council Officer Karen Wilson held extensive discussions with Mrs
Kempsey, then Mr Kempsey. The Kempseys were prepared to dedicate the central
sections of the claimed route as footpaths to join FPs 57 and 62. They accepted that
there was good evidence for these sections but did not accept that the remainder of
the long drive and Sutton Mill Lane were public rights of way. It was agreed that this
would not resolve the matter.

If the County Council had published an order for the remaining sections there would
be objections from the landowners. A diversion of the dedicated route was
discussed and it was pointed out that the County Council could not guarantee a
successful diversion. The lengthy discussion was reported by the Officers who
‘found no obvious mutually acceptable way forward.’

As a result of the current application Mr Kempsey’s letter of 19th March 2007 sets out
the current situation (See Landholder Consultation).

Papers relating to the background information detailed above are attached at
Appendix D.

Site description

From point A on the plan the original order route follows a bordered stoned/tarmaced
access track to Sutton Farm with a width of 3-4 metres in a general north westerly
direction. At the farm buildings the route continues in a general northerly direction as
an earth/stoned track past buildings to point B on the plan. Here the route splits,
continuing eastward along the claimed Dog Kennel Lane as a stoned access track to
farm buildings with a width of 4-5 metres following a general easterly direction to the
County Road at point D, near Ludstone. The Sutton Road claim continues in a
general west north westerly direction along a sunken hedged track, of varying width
and overgrown in places to then turn on a general northerly direction where it widens
to 5-6 metres before entering Sutton Mill farmyard. Here the route crosses the

Contact: Lucy McFarlane, Map Review Officer on 01743 255058                           4

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concrete yard and follows the farm tarmac access track out to the County road near
Hopstone at point C. (See map at Appendix A)

Original Parish Claim

Under the National Parks and Access to the Countryside Act 1949 Claverley Parish
Council did not claim Sutton Road or Dog Kennel Lane as a public right of way. Two
public footpaths (FP57 and 60) were however claimed which terminated on the
route.

Formal Application Consultations 2007

Bridgnorth District Council in a letter dated 6th November 2007 reported that
having consulted the local ward members the Council have no comments to make.

Claverley Parish Council in a letter dated 27th November 2007 reports that the
matter was discussed at their November meeting. Claverley Parish Council does not
have any further evidence to put forward regarding the application to add a public
footpath along routes known as Sutton Road and Dog Kennel Lane.

Ramblers Association has been consulted but no response has been received.

Open Spaces Society has been consulted but no response has been received.

British Horse Society in a letter dated 26th November 2007 fully supports the
application to add as a footpath the route A to B Sutton Mill Lane and also C to D
Dog Kennel lane. If successful FP57 and FP60 will both have a continuation and no
longer be dead end footpaths.

Landowner Consultation

Mr Richard Kempsey, Sutton Farm, Claverley in a letter dated 19th March 2007
has made the following points;

1. The council officers had obligations to thoroughly research the evidence. It
appears the officers failed in their duty as the new evidence, the Wolverhampton and
Bridgnorth Light Railway Deposited Plan was available in the County Records office
at the time of both public inquiries.

2. Under the Wildlife and Countryside Act 1981 the procedures are laid down allow
for a second enquiry. It should now only be possible for anyone to pursue a
modification order by claiming that the inspector erred in law in reaching his decision.

3. Formal applications have come from the British Horse Society and Colin
Seymour. Section 56 notices have been misused to usurp the proper legal
processes laid down in the Wildlife and Countryside Act 1981.

4. After the s 56 repair order notice the Countryside Access Team recommended to
the Rights of Way Committee that modification orders were published to add routes
to the definitive map as footpaths. The Committee resolved that no orders should be
published and that further discussions be undertaken with the landowners. Yet the

Contact: Lucy McFarlane, Map Review Officer on 01743 255058                           5

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officers admitted in May 2004 that the claimed routes were footpaths maintainable at
public expense. This was at a court hearing where the landowners had no right of
access or representation. The new evidence that was cited had not been tested by
an inquiry process. This decision was not taken democratically.

5. The background to the 14th March Committee states that ‘negotiations were
unsuccessful. No proper negotiations have been undertaken.

6. As landowners we are still waiting for Council officers to negotiate a fair
settlement. As part of the settlement we are willing to dedicate a route linking the
original routes sought by the County Council. The Council have to give us
assurances that if we dedicate these routes we cannot be subjected to a claim for
higher rights.

 This Council’s full response to this letter is attached at Appendix E.

Mr and Mrs J Cotham, Sutton Mill Farm, Claverley have been consulted but no
response has been received. Their interests have been represented by;

Mr R Cotham, Sutton Mill Farm, Claverley

On 20th June 2007 Mr Cotham visited the Countryside Access team offices at
Shirehall to discuss the historical evidence that had been submitted by the applicant.
He set out his interpretation of the historical evidence which he believes invalidates
the support the applicant believes it gives to the case for the addition of a public
footpath.

In particular he points out that the Parish records of the road maintenance budget
refer to several routes which are private today therefore work was carried out on
private roads. Also, the Tithe map indicates that several pieces of land would have
been owned by people of the name of Smith. The reported nuisance could therefore
have occurred in a location other than at Sutton Farm.

Mr Cotham stated that he would be prepared to dedicate a footpath to provide a link
between FP60 and FP57 but he would not be prepared to dedicate that part of the
claimed route which runs from Sutton Mill Farm to the County Road. Mr Cotham
also believes that his neighbour Mr Kempsey would also consider dedicating his part
of this section of the claimed route.

Although the County Council are willing and have entered into discussions previously
into the possibility of a creation agreement no further formal offers have been
forthcoming.

Evidence in support of the Application

Historical Evidence submitted by applicant 2007

Calendar of Deeds 1082 Indenture March 20th 1613

This Indenture relates to land in the ‘Manor Township or hamlet of Sutton situate
lying and being in the parish of Claverley in the said County of Salop’. Within the

Contact: Lucy McFarlane, Map Review Officer on 01743 255058                            6

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document land and buildings are mentioned including water corn mills and ‘all
highways gates wainways horseways and footways leading to and from the said
mills in by and through the said premises and every part thereof’. Sutton was a
small township within Claverley with no other watercourse significant enough to
support water mills. The reference is likely to refer to Sutton Road and Sutton Mill
Lane.

Plan of the Township of Ludstone 1753 reduced and copied 1817
This describes the footpath ‘Footway from Sutton to Ludstone’ This is a public
footpath (FP63) Claverley today running along a similar line but only runs between
Ludstone and the public road. Its continuation to Sutton would be likely to follow
what is now Dog Kennel lane which is shown as a pecked line path on historical
(1883) OS maps.

Survey of Sutton Township 1812
This is a survey of Townships giving acreages and a monetary value for each entry.
A foldyard is mentioned at both properties believed to be Sutton Farm and Sutton
Mill and each is recorded as having a road adjoining for which nothing is charged.

Highway Maintenance Entries from Vestry Records 1826-1852
Twenty Three entries of road maintenance work being undertaken in Township of
Sutton. These include;

16th February 1846 ‘Sutton Road by mill’
25th November 1846 ‘for drain piping Sutton Road’
14th January 1848 ‘a bridge near Sutton Mill’

Sale Documents of an Estate situate at Sutton and Claverley
A plan of the land for sale which included Sutton Mill shows the claimed route
running between Sutton Mill and Sutton Farm and extending south eastwards and
annotated ‘to Claverley’. The lane is unnumbered and does not appear to be
included in the sale.

Claverley Vestry Minutes

22nd September 1849 states:
That at Mr Peamans’s (New Inn) the soakage from the pigsty and also the soakage
from Mrs Smiths’s Foldyards (Sutton) both running onto the Public Road are
nuisances’ Mrs Smith farmed at Sutton Farm. A fold yard is described adjoining a
road in the aforementioned Survey of Sutton Township 1812. The road described as
a public road is the same as the one described in the 1847 sale document.

Wolverhampton and Bridgnorth Light Railway 1896

The large scale map showing the line of the proposed railway shows the claimed
routes as bordered lanes. The lane between Sutton Mill and Sutton Farm is
numbered 29 and described’ Occupation Road and Public Footpath’ Dog Kennel
Lane is numbered 32 and is also described ‘Occupation Road and Public Footpath’.
For both routes the owners are recorded as Henry Cavendish Cavendish and
Bridgnorth Rural District Council.


Contact: Lucy McFarlane, Map Review Officer on 01743 255058                            7

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Claverley Parish Council Minutes
4th August 1899
An entry which indicates that the Parish Council discussed the plans of the
Wolverhampton and Bridgnorth Light Railway 1896 and they were found to be
acceptable.

Shropshire County Council Section 56 responses
Notices under Highways Act 1980 which record the County Council admitting that
the claimed routes are footpaths maintainable at public expense.

Shropshire County Council Definitive Map
The applicant points out that two footpaths recorded on the definitive map (FP57 and
FP60) end on the claimed route. FP63 ends on a public highway opposite the outlet
of Dog Kennel Lane. The applicant believes that these unrecorded routes must have
been the intended outlet of these footpaths and it must have been assumed at the
time they were claimed to possess public rights.

Legal Test

Under the provisions of the Wildlife and Countryside Act 1981 applications can be
made to add routes to the Definitive map and Statement. In order to add a route to
the map evidence has to be discovered either in the form of user evidence or
historical documentation. Under the provisions of the Section 31 Highways Act 1980
a route can be deemed to have been dedicated if it has been used as of right for a
period of 20 years without interruption, unless there is sufficient evidence that there
was no intention during that period to dedicate it. In some instances usage can be for
a lesser period under common law. Historical evidence can also be sufficient to
warrant an addition to the definitive map. If it can be proven that a route was a public
highway pre-1835 then the maxim ‘once a highway always a highway’ can apply.
Earlier evidence can be re-considered when additional new evidence has been
discovered. All the information can then be considered together when investigating a
new formal application. The decision is then made, on the balance on probabilities,
whether a public right of way exists or not.

Officer Comment

Under the National Parks and Access to the Countryside Act 1949 Claverley Parish
did not claim the route running from the County Road through Sutton Farm, Sutton
Mill Farm and out to the County Road as a public right of way. However two public
footpaths which were claimed (FPs 60 and 57) terminate on the claimed route.

In 1992 a claim was submitted under the review of Claverley and the County Council
published an order to add the route as a public footpath. Objections were received
from the landowners and also the British Horse Society who believed the route
should be of a higher status. The matter was brought before a public inquiry in May
2000 when the Inspector concluded that public rights did not exist.

The County Council, on receipt of new evidence, appealed against the Inspector’s
decision. During this period Section 56 notices Highways Act 1980 were served on
the County Council. This action however was not felt to supersede, or affect, the


Contact: Lucy McFarlane, Map Review Officer on 01743 255058                           8

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Wildlife and Countryside Act 1981 procedure so a further inquiry was held in March
2002. Again the Inspector determined that the route did not possess public rights.

Further historical evidence was discovered which reinforced the evidence previously
considered. On the strength of this information, and after seeking Counsels advice,
the County Council acted in accordance with its statutory duty and, on 5th May 2004
accepted that the route in question, with a link eastwards towards Ludstone, were
footpaths maintainable at public expense. This has resolved the Section 56 issue
and at the same time Counsel advised the County Council to add the route to the
definitive map by way of a modification order.

At the Rights of Way Committee meeting of 24th March 2004 this proposal was
rejected and officers were requested to negotiate with the landowners to seek
agreement to dedicate the routes. Correspondence and a site visit have been
undertaken in an attempt to resolve the matter. Negotiations have been carried out
with the landowners both directly and through solicitors but the matter still cannot be
resolved.

The historical evidence that has been submitted with the current claim reinforces the
evidence previously considered at public Inquiry. Mr Cotham has pointed out that
the applicant’s interpretation of the documents may not be as conclusive as first
thought. However, the County Council considers that the deposited plan of the
Wolverhampton and Bridgnorth Light Railway is cogent evidence that the claimed
routes were regarded as public footpaths in 1896. This evidence has not been
considered at either of the public inquiries. This together with all the other new and
previous evidence is considered to be sufficient under the provisions of the Wildlife
and Countryside Act 1981 to add a footpath, based on historical evidence, to the
Definitive Map.

This matter has now been considered at two public inquiries but due to further
evidence being discovered the matter has not been satisfactorily resolved. The
County Council believes that this documentary evidence supports the contention that
public rights subsist along the affected routes. Negotiations with the landowners
have not been successful in achieving an alternative resolution to the matter.


List of Background Papers (This MUST be completed for all reports, but does
not include items containing exempt or confidential information)
Applications, supporting information and consultation responses.

Human Rights Act Appraisal
Any subsequent confirmation that these Rights of Way should be added to the
Definitive Map will interfere with the respective landowners Human Rights Article 8
and Article 1 of the First Protocol of the European Convention Rights but such
interference would be in accordance with the law and be in the public interest.

Environmental Appraisal
Public Rights of Way are of vital importance in the use and enjoyment of the
countryside.



Contact: Lucy McFarlane, Map Review Officer on 01743 255058                           9

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Risk Management Appraisal
Under the provisions of the Wildlife and Countryside Act 1981 the County Council
has a duty to ensure that the Definitive Map of Public Rights of Way is kept up to
date.

Community / Consultations Appraisal
Full consultations are carried out when Formal Applications are investigated, either
as priority issues or under the general Review of the Parish.

Cabinet Member
Mrs Barbara Craig (Community Services)

Local Member
Mrs M E C Winckler (Morfe)

Appendices

Appendix A - Map of the location and plan of Public Footpath Claim

Appendix B - Map and description of original Modification Order

Appendix C - Location Map of Dog Kennel Lane

Appendix D - Papers relating to history of the route since Parish Review

Appendix E – Copy letter (27.3.07) from County Council in response to Mr
Kempsey’s letter of 19th March 2007




Contact: Lucy McFarlane, Map Review Officer on 01743 255058                            10

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