Agenda item

To consider an application, made under Section 53 of the Wildlife and Countryside Act 1981, to add a Footpath to the definitive map and statement of public rights of way in the parish of Whiteparish, (The Drove).

Public Participation

Sheila Cook spoke in objection to the Application.

Graham Peacop spoke in objection to the Application.

Christine Davies spoke in objection to the Application.

Attention was drawn to the information contained in Agenda Supplement 1 which included late correspondence from the Applicant with a response by the Officer. Also, the notification of the withdrawal of support by a neighbour for non-evidential reasons.

The Senior Definitive Map Officer, Janice Green, presented the Application under Section 53 of the Wildlife and Countryside Act 1981 to add a footpath to the Definitive Map and Statement of Public Rights of Way, between Common Road and Footpath no.6 Whiteparish, “The Drove”, based on user evidence and some historical evidence.

As set out in the report and noted during the presentation, submissions in objection and support had been received, as detailed in para 8 of the report.

The Officer explained that where an Order received objections which had not been withdrawn, the Order must be forwarded to the Secretary of State for determination. The Order had come to Committee to make a recommendation to be attached to the Order when it was presented to the Secretary of State.

The Secretary of State would determine the Order by:

•        Written representations;

•        Holding a local hearing; or

•        Holding a local public inquiry, to be presided over by an Inspector appointed on behalf of the Secretary of State, at which witnesses on both sides will give oral evidence and be cross-examined on their evidence.

Based on the evidence, the Inspector appointed on behalf of the Secretary of State would determine whether the Order was:

•        Confirmed;

•        Confirmed with modification/s; or

•        Not confirmed.

The Committee was asked to consider the objections and representations received and the evidence as a whole, in order to determine whether or not Wiltshire Council continued to support the making of the Order under Section 53(2) of the Wildlife and Countryside Act 1981.

The Officer set out the options available, these were:

(i) Members may resolve that Wiltshire Council continues to support the making of the Order, based on consideration of the available evidence, in which case the Committee should recommend that the Order be confirmed without modification;

(ii) Members may resolve that Wiltshire Council continues to support the

making of the Order with modification, based on consideration of the available evidence, in which case the Committee should recommend that the Order be confirmed with modification;

(iii) Members may resolve that Wiltshire Council no longer supports the making of the Order, based on consideration of the available evidence, in which case the Committee should recommend that the Order is not confirmed with clear evidential reasons given for this resolution;

(iv) Members may resolve to take a neutral stance, if the Committee considers on consideration of the available evidence that a Wiltshire Council recommendation cannot be attached to the Order when it is forwarded to the Secretary of State for determination.

The Officer explained the tests for Making and Confirmation of an Order and that it was appropriate to make the Order based on a reasonable allegation, however, in this case, upon the making of the Order, no additional evidence to support the addition of the route had been submitted and additional evidence had been submitted in objection to the Order, particularly with reference to:

•        The presence of a two strand wire fence across the width of the way, at the south-west turn, which may have brought public use of the way into question at an earlier date; prevented use and/or affected qualifying user “as of right” from 1979.

•        The junction with Footpath no.6 at the southern end of the Order route.

It was considered that where there was conflict in the evidence and the evidence was finely balanced in the balance of probabilities test to be applied at the confirmation of the Order, it was not possible for Wiltshire Council, as the Surveying Authority, to reach a recommendation to be attached to the Order when it was forwarded to the Secretary of State for determination.

Members had no technical questions to ask of the Officer.

Members of the public as detailed above, then had the opportunity to speak on

the application.

Some of the main points included a statement from a family member of a 4^th generation of farmers who had lived in the village for many years, noting that the Drove was not a footpath and had never been one, adding that their relative who had had lived in the Cottage Farm Bungalow between 1988 – 2006 would have prevented anyone attempting to use the path without permission.

During the 1983 – 2003 timeframe, cows were grazing in the field next to the Drove and there was an established fence in place to prevent them escaping on to Common Road.

The route was not linear and there was no access at one end or connection to path no. 6. The landowners only gave permission to residents of six specific dwellings, which backed on to the Drove, however those residents were not able to turn right as that would have been against the permissions of the landowner.

To link the Drove to footpath no. 6 would require clearance of vegetation, which was felt should act as evidence that the Drove had never connected to footpath no. 6.

As the Division Member, for Whiteparish was not in attendance, Cllr Hocking moved the motion in line with the Officer recommendation. This was seconded by Cllr Oliver.

The Chairman sought clarity on the options available to the Committee and that the Committee was not determining the Order, but the Wiltshire Council recommendation of a neutral stance, which would then accompany the Order when it was presented to the Secretary of State for decision.

The Committee discussed the application, the main points included agreement that it may be difficult to establish how the path had been used historically during the user period in question and so supported a neutral stance.

The Committee then voted on the motion to support the Officer recommendation.

It was;

Resolved:

That “The Wiltshire Council Whiteparish Path no.42 Definitive Map and

Statement Modification Order 2022” be forwarded to the Secretary of State with a neutral stance from Wiltshire Council regarding the determination of the order, as it is not possible for Wiltshire Council to reach a decision where the evidence is finely balanced in the balance of probabilities test and may only be resolved by witnesses giving evidence and being cross-examined on their evidence at a public inquiry.