Inspectors Report to The Secretary of St

This appeal is made under Schedule 14 Paragraph 4 subsection 1 of the Wildlife and Countryside Act 1981. Refered to as the 1981 Act.

The appeal is made by Kessingland Parish Council against the decision of Suffolk County Council not to make an Order under Section 53 subsection2 of that Act.

The application Reference HO7/10R/252/4 dated 14 February 1994 was refused by notice dated 4 September 2003

The appeal claims that an Order ought to be made under Section 53 of the 1981 Act modifying the definitive Map and Statement to show Beaconsfield Road / Footpath 15 as a Byway Open to All Traffic from its junction with Wash lane to its junction with Green Lane in Kessingland.

1.         I have been appointed to report to the Secretary of State for Environment, Food and Rural Affairs on the above named appeal made in accordance with Paragraph 4 of Schedule 14 to the 1981 Act.

2.         The evidence in this case is mainly based on user although some research has been undertaken by Suffolk County Council into the available mapping sources and some further evidence in the form of property documents has been submitted by the appellants. I have not visited the site but I am satisfied that I can make a recommendation without the need to do so.

3.         The report consists of the material points made in the submissions, an assessment of the evidence against the relevant criteria and my conclusions and recommendation.

4.         The appellant is Kessingland Parish Council. The original application was made on behalf of the Parish Council by Mrs Patricia Fountain, the clerk at the time. The current clerk who was also the clerk at the time of the appeal is Mrs Lesley Beevor.

Description of the Route.

5.         The subject of the application and the appeal is a route running west to east between Wash Lane and Green Lane in Kessingland. A map is attached at Appendix A of this report to assist in its identification. For just over half of its length running west from its junction with Green Lane, points B to C on map it is an unmade road and follows the line of Footpath 15 Kessingland as recorded on the Definitive Map and Statement. It is fronted by a number of individual residential properties and runs alongside one or two other residential properties with frontages to adjoining roads. In front of the properties 4 and 6 Beaconsfield Road the appeal route diverges from the route of Footpath 15 and follows a slight curving roughly parallel route to the north of the footpath to meet Wash Lane, points A to B on map. This section of Beaconsfield Road is surfaced and forms the access to a newer residential development. It is itself fronted by some of the properties on this development.

6.         The western end of the Footpath 15 which diverges from Beaconsfield Road continues more or less due west in a direct line to also meet Wash Lane. This section of the footpath, points B to D is not subject of the appeal.

7.         Wash Lane and Green Lane both run roughly north to south and each joins Church Lane at a distance from each other which roughly equates to the length of the appeal route. Thus a rectangular block is formed with the appeal route on the north side, Wash Lane to the west Green lane to the east and Church Lane to the south.

The Case for the Appellant

The material points are:

8.         The issue of Beaconsfield Road and its role in the local traffic infrastructure has been the subject of ongoing debate for many years.

9.         The route has been used in both directions by everybody residents and holidaymakers alike to avoid a dangerous junction between Green lane and Church Road. It has been used since the early 1900s when it was known as Tar Hill. Fishing nets were brought to the net sheds which were situated on the route for repair and retarring. The nets were delivered by horse and cart and later by lorries.

10.            Problems of traffic on Beaconsfield Road first became the cause of official concern in 1986. The Parish Council were aware of increasing road safety risks and carried out its own surveys and monitoring. The details of this work were sent to the County Council as part of the Local Traffic Plan. There was support for a one way system to include Beaconsfield Road. However the plan has not yet been finalised and the one way system was never implemented as the cost of making up the road would have fallen to the adjoining residents.

11.        In June 1993 the residents at the eastern end of Beaconsfield Road erected bollards to prevent vehicular use of the road as a through route and notices indicating that the road was private. The bollards did not affect access on foot. The Parish Council were concerned at this development and so began to collect evidence of its use in vehicles by the public. A claim to add the route to the Definitive Map and Statement as a Byway Open to All Traffic, was submitted in February 1994 accompanied by 10 user evidence forms. Of these original witnesses five people are now deceased and one has moved away.

12.        The forms show that there is a recollection of the Beaconsfield Road having been used by vehicles including horses and carts since at least 1920. Witnesses are able to give personal evidence of use in vehicles since 1965.

13.        There was a six year delay before the application was investigated. In August 2000 letters were sent by the County Council to the residents of Beaconsfield Road and to the original witnesses. The responses from the residents give no historical detail but only refer to issues of road safety. The Parish Council disputes the claims made by the residents that the traffic travelled too fast along Beaconsfield Road. The route is only wide enough for one way traffic and is not long enough for vehicles to have reached any speed. In any case there are important safety issues that affect the whole community in respect of the dangerous junction of Green Lane. The action of the residents in erecting the bollards exacerbates that danger as it removes the ability to avoid the junction.

14.        A draft report on the application was prepared by the County Council in 2000 but was never received by the Parish Council. When the second draft was issued in June 2003 the Parish Council became aware that the County Council did not consider that there was sufficient evidence to substantiate the claim. As a consequence the Parish Council gathered more evidence and 14 additional user evidence forms were submitted in August 2003.

15.        One of the witnesses was informed by an officer of Waveney District Council that if the route had been used for 20 years without any notices indicating that it was private it would have already become a public highway. The Parish Council maintains that there is plenty of evidence to show that the road has been used by vehicles for an uninterrupted period of 20 years.  This is sufficient to satisfy the requirements of Section 31 of the Highways Act 1980. One witness personally used the route for 23 years prior to the bollards being erected. Another witness used the route between 1973 and 1993. The route is quoted on directional guidance obtained on the Internet. Waveney District Council confirms that the newer section of Beaconsfield Road, A to B on map, was constructed following the granting of planning permission in 1979.

16.            Historical documents in the form of property deeds and related documents confirm that the Beaconsfield Road formed part of the access to properties on or near the beach.

17.        The provisions of the Road Traffic Act 1988 in respect of the offences of driving on a public footpath are not relevant because Section 31 of the 1980 Act has not been repealed. No one has ever been prosecuted for driving along Beaconsfield Road. This surely indicates that, to the local constabulary, Beaconsfield Road was accepted as a road open to other road users.

18.            Statutory Undertakers need to do work in the area which will hindered by the presence of the bollards. The work will necessitate road closures and the bollards will prevent the use of alternative routes causing difficulties for residents of Kessingland.

19.        The County Council is being near sighted and unbending. It is necessary to take a common sense view and see how the issue affects the whole community. The Parish Council asks the Secretary of State to take a realistic view of the situation and allow the appeal.

The case for Suffolk County Council

The materials points are

20.        The appeal route is not shown on any maps until the 1906 Ordnance Survey map. At that time the original direct route ie the route of Footpath 15, was shown and not the more recent northerly alignment at the western end. On more recent editions of OS maps the route is shown with solid double lines for the majority of its length sometimes with a dashed line indicating the presence of a verge on either side. The newer more northerly route is shown with dashed lines.

21.        When the Definitive Map was first produced the Parish Council claimed a public footpath and described the route as a cart track. However this description was more likely to reflect its appearance rather than describing its status. There was never any objection to its designation. The Review process merely identified that a nameplate, Beaconsfield Road, had been erected.

22.        The 10 user evidence forms submitted by the Parish Council with the application in 1994 show use of the route on foot, bicycle and in vehicles since the 1920s. Evidence of use on foot has not been considered by the County Council during its investigation of the application because the route is already acknowledged to be a public footpath. The Parish Council originally claimed that the entire route of Footpath 15 was the subject of the application to add a BOAT to the Definitive Map. Subsequently the claim was altered to include the more northerly route fro reasons of practicality and to keep the cost of implementation down. The newer more northerly route now forming part of Beaconsfield Road is already recorded on the list of streets as a publicly maintainable highway. Its main use is vehicular.

23.        The user evidence does not make clear to which route it relates. Some witnesses acknowledge the construction of the newer route, in about 1982, but all claim vehicular use prior to that date. This suggest that the former more direct route was in use

24.        Some witnesses claim use on bicycles, two of them for over 20 years. Seven witnesses claim use in vehicles only one of them for 20 years. Two people claim use going back to before 1930 but one used the way only on foot and the other perhaps with a bicycle but not a vehicle. The County Council takes the view that advice from the Planning Inspectorate suggests vehicular rights cannot be acquired through use on bicycles.

25.            Evidence of the use of the route in connection with the net sheds is anecdotal. It is claimed that fishing nets were taken to the premises in horses and carts and later in lorries for repair and retarring but there is no evidence to corroborate this. Witnesses state that after the sheds were removed the route was used on foot to get to the beach.

26.        The landowners consider that the road is for private and trade vehicular access only. The erection of the bollards was prompted by concern about the use of the route as a shortcut by vehicles which are driven too fast or by large lorries. Beaconsfield Road is used frequently by walkers to get to the beach and by schoolchildren going to the primary school and the bus stop. The property owners consider that there are health and safety concerns that would arise if the footpath were to become a BOAT and that there would be maintenance liabilities on private owners.

27.        The property deeds and related documents produced by the appellants merely show that Beaconsfield Road was subject to private rights of access to property. These are not relevant to the County Council when investigating the existence or otherwise of public rights.

28.        The 14 more recent user evidence forms from 2003 show use by witnesses in vehicles since 1964 until the bollards were erected in 1993. This use is not disputed. The Parish Council claims in correspondence that the route of Footpath 15 lies alongside Beaconsfield Road and not along the road itself. The County Council has investigated and disagrees with that view. The Definitive Map and Statement is quite clear that the footpath route coincides with the route of the roadway.

29.        Section 34 of the RTA 1988 makes it an offence to drive a vehicle without lawful authority on a public footpath. The provisions are a re enactment of provisions originally contained in the earlier Road Traffic act 1930. Any unauthorised vehicular use of the route since its registration as a public footpath on the definitive Map and Statement is therefore unlawful unless vehicular rights can be shown to have pre existed. None of the witnesses can show actual use by vehicles prior to 1930 the date of the original RTA or 1950 the date of the definitive Map and Statement. The evidence is consequently insufficient to show that a vehicular right pre dated either date.

30.        Any vehicular use without lawful authority since 1950 is therefore considered to have been unlawful and cannot give rise to public rights. Residency would be considered to be lawful authority as would other access to property such as visits to rela