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Agenda item

Mere Path No. 78 - Definitive Map and Statement Modification Order 2019

To consider six objections and three representations of support to The Wiltshire Council Mere Path No.78 Definitive Map and Statement Modification Order 2019 made under Section 53 of the Wildlife and Countryside Act 1981.

 

Officer recommendation:

 

that the Order be forwarded to the Secretary of State for Environment, Food and Rural Affairs (SoSEFRA) for determination with Wiltshire Council taking a neutral stance.

Minutes:

 

Public participation

Graham Sams spoke in objection to the recommendation.

Mrs Seward spoke in objection to the recommendation.

Adrienne Howell spoke in objection to the recommendation

Clive Hazzard spoke on behalf of the Mere Town Council

 

Due to his declared interest, Cllr George Jeans removed himself from the committee table to sit with the public.

 

Craig Harlow, Definitive Map Officer presented the Wiltshire Council Mere Path No.78 Definitive Map and Statement Modification Order 2019 made under Section 53 of the Wildlife and Countryside Act 198, as detailed in his report attached to the agenda.

 

He noted that on 24 April 2018 Wiltshire Council received an application for an Order to record a public footpath over land north of The Square, Mere in the parish of Mere.

 

The claimed route led from The Square, Mere north through an archway and across a private car park to North Street, Mere, having a length of approximately 57 metres.

 

This application was supported by 26 representations, with 21 meeting the criteria as valid claims.

 

The iron gates depicted were still in place, however the wooden gates were no longer in place. Photographs of the wooden gates in place during 2006/7 and 2009 were shown to Committee.

 

The statements of use were in conflict with the evidence given by the landowner, who had stated that the gates were closed and padlocked during some periods, but was unsure of exact dates of some of those occurrences.

 

A letter was sent to users asking for their awareness pre- 1970s, asking for any knowledge of locked gates. At that stage some evidence was withdrawn and other statements were changed to reflect lesser use than was originally stated.

 

Officers believed that the gate was blocked during 2007, which would alter the continual 20-year period of use.

 

As objections have been received to the Modification Order it must now be referred to the Secretary of State for a public enquiry.

 

The Officer recommendation was that the Order should be determined by SoSEFRA with Wiltshire Council taking a neutral stance.

 

The options available to the Committee were provided in the report.

 

The Officer drew attention to the late correspondence which was circulated at the meeting, as supplement 1, which detailed a photograph showing the gates open in 1928, and an email from a business owner in Mere stating the continual use of the path during 2007.

 

The Committee then had the opportunity to ask technical questions of the Officer, where it was clarified that the time of continual use looked for was a period of 20 years and the application for a Modificaiton Order had been made by a Member of the Public where the test was a lower test - ‘reasonable allegation’ – however the test to confirm the Order was a higher test being the ‘balance of probabilities’.  Due to conflicts in the evidence submitted to the Council, the Order must be referred to the Secretary of State.

 

The report mentioned that there were three routes from the square to North Street, it was noted that of the other two routes available, the road to the west did not have a pavement and that to the east had a barrier, with a limited width, which brought difficulties for users with pushchairs.

 

Members of the public then had the opportunity to state their case as detailed above. Some of the main points included that the gate had recently been locked and only some local residents had a key. Access was now restricted and other routes were considered dangerous due to the use of heavy farm machinery along the road, which had no pavement for pedestrians.

 

The members of the public speaking at the Committee as long-time residents declared that they had never known a period when the route had been restricted.

 

Mere Town Council had considered the Order at its meeting on 13th May, where it agreed to support the Modification Order.

 

Cllr Tony Deane read a statement from Cllr George Jeans.

 

The main points were that the walkway was not unlike many seen in other towns and villages, where a gap was seen as a safer or quicker option.

 

There had been other walkways in Mere that had started to develop, but had been completely extinguished by the land owners.

 

Having lived in Mere for 67 years, Cllr Jeans had no memory of being approached by owners or users regarding any problems with this route and he had been involved with many of the planning applications for the old Walton site.

 

Cllr Jeans was approached by a resident in late 2017 about the locking of the gate. A form to seek local views was circulated and replies were included in the report. After receiving communication from numerous people objecting to the locking of the gates, ClIr Jeans approached Wiltshire Rights of Way department, who informed him that an official form was required.

 

He supplied one to the previous owner of the land the arch was situated on.  He had considered locking the gates when he owned the land, however his tenant at the time wanted them left open.  Due to strong opposition, he did not make any efforts to stop the public access.

 

Previous owners have stated that the gates were not locked for periods of time.

Previous employees of the nursery confirm that access had always been available.

 

As a child he remembers a stamp machine in the alley and a post room further along. Waltons was a large retailer and many used this gate and other entrances.

 

Cllr Jeans’ statement recalled several occasions when people remembered the arch was open and in use.

 

He felt that an Inspector would have a complex task to decide if Mere Path 78 should be on the definitive map or not. At an inquiry the landowners would almost certainly have a barrister and other test cases may well be referred to that have complex or even unexpected judgements. 

 

The facts of this case from the user’s side need to be professionally presented to an Inspector. Those using the route would have no expertise without a barrister and would probably in some cases be intimidated without equal defence.

 

The photographs produced by Lipscombe Developments for the period of their and Mr Bob Finan’s ownership show gates and doors, however I ask, would they been sufficiently blocked to stop the path being deemed public, if you the committee consider no based on the arguments given to me as read out, plus other information given to you, I hope you will support this path.

 

Cllr Deane asked the committee to put the statement forward with the support of the committee, rather than the officer recommendation that it go forward with a neutral stance.

 

Cllr Westmoreland reminded the Committee that when asked to determine these matters, desired need, and health and safety were not relevant considerations.

 

Cllr Westmoreland moved the motion in support of Officer Recommendation. This was seconded by Cllr Richard Britton.

 

A discussion then ensued where it was noted that going to the Inspector, would give the opportunity for both sides to put their case forward whether legally represented or not.

 

The Officer confirmed that the gate did not have to remain open during investigation as there were no public rights recorded.

 

The Officer confirmed that he had considered all of the evidence as it had been received, and due to the conflicts was unable to make a judgement so the matter would be forwarded to the Secretary of State with the Council taking a neutral stance.

 

The Inspectors were used to dealing with Applicants not represented by Counsel and if the evidence was strong Counsel would not necessary.

 

The Committee had no powers to cross examine the evidence from either party.

 

Looking ahead to the hearing, if the Council went away from Officer’s recommendation it would make it harder to put the Councils case, whereas if the Council remains neutral , the Officer would be able to attend the public inquiry  and answer any questions from the Inspector.

 

The Committee then voted on the motion to put the Order forward with a neutral stance.

 

Resolved:

 

That “The Wiltshire Council Mere Path No.78 Definitive Map and Statement Modification Order 2019” should be determined by SoSEFRA with Wiltshire Council taking a neutral stance

 

Supporting documents: