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Comments on Parish Council Appeal 1
Suffolk County Council?s comments on Parish Council Appeal 1 Document - 221203.
The following are the County Council?s comments on the parish council?s grounds of appeal. The same paragraph numbering has been used. Where there is no comment against the paragraph number, it may be assumed that the County Council does not wish to make any observation.
1. The question of how Beaconsfield Road fits into the local traffic infrastructure is completely irrelevant to its status and the investigation under the Wildlife and Countryside Act 1981.
2. Any person who accessed property along Beaconsfield Road could well have been using a private right. Even if Beaconsfield Road was being used as part of a through route to holiday homes or elsewhere, the safety implications cannot make any difference to the evidential investigation into the status.
3. The County Council has only anecdotal evidence of the existence of the net sheds and use by vehicles to reach them. This is not considered sufficient to show dedication has take place. It is also not clear whether the net sheds were used by all members of the public, or whether use in accessing them was only private use.
5. A one-way system and other similar issues can make no difference to the evidential investigation into the status of Beaconsfield Road.
6. The County Council agrees that FP15 runs along the line of Beaconsfield Road. This is significant because it means the provisions of Section 34 of the Road Traffic Act 1988 apply.
7. The public access allowed on Beach Road seems to be permitted, as opposed to as of right.
8. The cost of making up Beaconsfield Road is irrelevant to its status.
12. The County Council agrees that the written evidence of people who are no longer available to give their evidence in person can still be taken into account. However, it must be of less value than evidence given in person, simply because it cannot be cross-examined.
13. Mrs Knight?s form does refer to use by lorries for transporting nets and other fishing gear. Again, it is not clear if this use constitutes public or private use. Furthermore, it is a recollection of use by other people and therefore cannot carry as much weight as evidence of use by the signatory.
14. Although Mr. Saywack has recollections going back to 1934 (i.e. his use on foot), his own vehicular use was confined to the year 1993. The County Council does not believe there is anything in that form which says that he remembers vehicular use in 1934. Mr Bird also recollects the net sheds, and similar comments apply as in paragraphs 3 and 13. Although he said it was always a through road, that doe necessarily mean it was a through public road. The recollections of both Mrs Wake and Mrs Abel post-date the recording of Beaconsfield Road as FP15, and therefore all their recollections relate only to the use which would have been unlawful (unless there was for example a private right), there being no ancient evidence of public vehicular rights on this route.
20. It is not the County Council?s normal practice to send copies of standard letters to landowners to the parish council. The Parish Councils normally receive separate letters in their capacity as a local authority. In this case the parish council received a letter about the start of investigations in their capacity as applicant. The County council believes that all interested parties were given the opportunity to present their evidence. Only three of the adjacent landowners responded.
21-22. The three responses received were reported to the Sub-Committee. However the responses did not contain relevant evidence, and no weight was attached to their responses.
23. These are all issues, which make no difference to the status of Beaconsfield Road.
24. Benefit to the community is not a factor which can be taken into account under the 1981 Act.
26. The County Council believes that access to the property was likely to have been in pursuance of private rather than public rights.
27. There is no evidence that the right of way mentioned in the Indenture was public as opposed to private.
28. The parish council as applicant and the adjoining landowners were contacted in August 2001 and advised that officers? preliminary conclusion was that the claim ought to be rejected. However this does make any difference to the evidential situation.
30. The traffic plan has become confused with the investigation into the evidence relating to the status of Beaconsfield Road. Although the traffic plan clearly includes Beaconsfield Road, it cannot have any impact on the assessment of the evidence.
31-33. This is irrelevant to the assessment of the evidence.
35. The County Council cannot explain why the Parish Council did not receive the draft report in 2001: it was definitely sent. Officers are also surprised to read this comment. In spite of protracted correspondence and repeated phone calls in the last few months, this is the first time that it has been drawn to the attention of officers in Legal Services that the Parish Council did not receive the 2001 draft report. It does help to explain why there has been some irritation, but in fact it makes no difference to the evidence.
41. Mr Knights gives evidence of use going back only to 1970. By that time the route was already recorded on the definitive map as FP15 and any use with a motor vehicle would have been an offence, unless Mr. Knights had lawful authority (e.g. a private right) to use the route. As rights cannot be acquired through the commission of an offence, Mr. Knight?s evidence is of no weight.
42. It is not disputed that vehicular traffic did use Beaconsfield Road up to the time the bollards were put in place. However the County Council maintains that this did not give rise to a public right, as the use was probably either an offence or in pursuance of a private right. Neither option can give rise to a public right. The information given to Mrs Brown by Waveney District Council and described at paragraph 23 of her evidence form may well have been given in good faith, but was not accurate. It may be that the Council officer was not aware that Beaconsfield Road is recorded as FP15.
43. Mr Randall?s use is not disputed but as before it is not accepted that it has contributed to the acquisition of a public right.
45. This comment ignores the effect of Section 34 of the Road Traffic Act 1988. The effect of this Section has been explained to the Parish Council on several occasions but the Parish Council continues to refer to use by vehicles after the early 1950?s i.e. the date on which FP15 was first recorded on the definitive map.
46. See comment for paragraph 45
47. It is accepted that the letter of the 19th August 2003 is perhaps not as clear as should have been. The letter should have referred to direct evidence of use by signatories, which goes back to 1964. The evidence referred to in paragraphs 13 and 14 of the Parish Council?s grounds of appeal is no more hearsay or anecdotal: of paragraph 3 of this document.
48. This is agreed. The County council cannot take into account the Parish Councils motives for wanting Beaconsfield Road to be a one-way vehicular road, however laudable they are. The County Council must abide by the provisions of the 1981 Act.
50. The fact that no one has been prosecuted does not alter the status of the route. It is merely a reflection on the practice of the local police, which is not a matter for the County Council to comment on.
51-60. These reasons are totally irrelevant to be consideration of the status under the 1981 Act.
61. The County Council may well be regarded as ?unbending? in this case, but the legislation makes it quite clear that evidence is the only criterion which may be taken into account. There are theoretically other mechanisms available for creating a vehicular highway along Beaconsfield Road, but that is not a matter which can be considered in this appeal.
63. The County Council maintains that the Secretary of State is not entitled to take a realistic view. The decision must be based entirely on the evidence.
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