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Comments on Appeal 2
Suffolk County Councils comments on Appeal 2 ? 260204
I enclose comments on the Parish Council?s observations.
5. I can only repeat that questions of desirability in the context of the Traffic Management Plan are totally irrelevant to the consideration of the evidence as to what public rights exist.
6. Action under Section 34 of the Road Traffic Act 1988 is a matter for the Police. I confirm that Section 31 of the Highways Act 1980 was repealed by the 1988 Act and is still in force.
8. The making up was in the context of private street works. The County Council would not have been considering this procedure if the route had been regarded as a public road.
9. Any use by vehicles in the period 1986-93, unless in pursuance of a private right, is likely to be unlawful, and as such cannot give rise to a presumption of dedication.
13. It is accepted that any evidence may be considered, but the County Council has to evaluate evidence.
20. The County Council did write to all the residents. As previously stated only three replied.
24. I can only repeat that benefit to the community is not a relevant factor.
26/27. There must be evidence of rights having been public before their exercise can lead to presumption of dedication. As the Parish Council has admitted that it is not known whether the rights were public or private that is clearly insufficient to make a modification order.
30-33. The Traffic Plan and local safety issues are not relevant to the consideration of evidence.
35/36. The County Council refutes moist strongly the suggestion that it is telling lies. It is acknowledged that on or around the dates quoted the Parish Council asked for more time to consider the draft report sent out in 2003. However at no time was it ever mentioned that the report sent out in 2001 had not been received by the parish council. In any event as previously explained that does not make any difference to the evidence.
41. Mr Knight?s evidence cannot be evidence of use of as right as it appears he may have been committing an offence. No evidence has been produced to show that Mr. Knight?s was using a lawful public right.
42. Whether or not Mrs Brown knew about Section 31 is irrelevant. There was therefore no pint in researching her account of events.
45/47. Evidence of use in vehicles is only likely to lead to presumption of dedication only if that use took place before 1930 certainly or the 1950?s possibly. The evidence relating to this period is very limited and the County Council does not consider it sufficient to show that dedication had taken place. It has repeatedly been explained that Section 31 of the 1980 Act has to be seen in the context of Section 34 of the 1988 Act and that if the use has been unlawful, it cannot give rise to dedication.
48. The County Council does not accept that legislation can be set aside. The County Council never takes into account the motives of any person or body who claims a public right of way. Motives do not affect the evidence.
50. I can only repeat that it is not appropriate for the County Council to comment on the actions of the local police. If the Parish Council wants to now why the Police did not prosecute, it is suggested that an approach be made direct to the Chief Constable.
51-60. The County council understands the fears and anxieties of the local community about access. They are matters which deserve consideration, but they cannot be considered under the evidential tests of the 1981 Act.
61. Highways can be created through dedication. Land can be compulsory purchased and a highway constructed. These are two examples of possible methods of creating a highway and it is not the remit of this correspondence to comment on the merits or otherwise of either process. That is more properly a matter for the County Council Director of Environment and Transport through the Local Traffic Plan.
63. The County council maintains that the Secretary of State is not entitled to take a realistic view. The decision must be based on an assessment of the evidence , not what the local residents and the community want.
Jane Stevenson
Suffolk County Council; Resource Management.
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