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Copy Inspectors Report 31.01.06
COPY INSPECTORS REPORT RE BEACONSFIELD ROAD dated 31st January 2006. By Brian C Drury JP, MA, MEd. An Inspector appointed by the Secretary of State for Environment, Food and Rural Affairs. ------------------------------------------------------------------------------------------------------------------- Order Ref: FPS/V3500/7/7268. · This order, dated 11 March 2005, is made under section 53(2) of the Wildlife and Countryside Act 1981 (? the 1981 Act?) and is known as the Suffolk County Council (Parish of Kessingland) Modification Order 2005. · On 25 November 2005, Suffolk County Council (?the Council?) submitted the opposed Order for confirmation to the Secretary of State for Environment, Food and Rural Affairs. · The Order proposes to recognise as Byway Open to All Traffic (?BOAT?) part of Footpath 15 in the Parish of Kessingland and to alter the Definitive Statement concerning that Footpath to reflect reclassification of part of it, as shown on the Order Map and detailed in the Schedule. Summary of Decision; I confirm the Order. --------------------------------------------------------------------------------------------------------------------- Preliminary Matters. 1. The Order refers to events specified in s53 (3)(c)(ii) and (iii) of the Wildlife and Countryside Act 1981. In 1993, some residents of properties adjacent to the Order route, after consultation with the appropriate Council Officer, erected bollards across it, to stop public vehicular ? but not pedestrian ? use of what they considered to be a private road. In 1994, the Kessingland Parish Council submitted an application claiming BOAT rights along Footpath 15 (? FP15?). Despite modifications to the application during its consideration, the application was rejected. The Parish Council appealed to the Secretary of State and the Secretary of State directed that an Order be made relating to a section of FP15 running westwards from the junction of Beaconsfield Road with Green Lane. The present Order is the result of that direction. 2. The Order attracted 5 objections relating to safety and suitability of the route to be used as a BOAT. These are matters that cannot be taken into consideration under set criteria for determining an Order of this type. Consequently, the Council requested that the Secretary of State dealt with the order using her powers under paragraph 7(2A) of Schedule 15 to the Act (as amended by paragraph 11(5) of Schedule 5 to the Countryside and Rights of Way Act 2000). 3. The objectors were subsequently informed that the Secretary of State was minded to follow such a procedure and they were invited to make representations on that intention or to revise or withdraw their objections. There were two responses; one of them was from a party who, although having contacted the Council in 2003 and 2004, is not recorded by the Council as having made a formal objection to the Order when published in 2005. I have examined the objections and later response and am satisfied that the concerns raised, whilst understandable, are irrelevant to the criteria that have to be applied. The Order is therefore being processed as previously requested. This means it is now being determined on the basis of the papers on file Main Issue. 4. The basic issue is whether, on the balance of probabilities, the evidence is sufficient to justify recognising the Order route as a BOAT under s31 of the Highways Act 1980 (?the 1980 Act?), bearing in mind the definition of a BOAT in section 66 of the 1981 Act, namely that it is ? a highway over which the public have the right of way for vehicular and all other kinds of traffic, but which is used by the public mainly for the purpose for which footpaths and bridleways are so used ? Reasons. The original Definitive Map and Statement. 5. From map evidence, it seems that the way on which the Order route forms part came into existence about the first decade of the twentieth century. When the preliminary work was being done that led to the first Definitive Map, the Parish Council claimed the Order route as part of a footpath that had been used as a right of way by the public for many years, it was described in the survey as a cart track. It seems likely that this description reflected its appearance rather that its status, as the objections to the Draft Map do not indicate a dispute about the particular public rights it carried, Furthermore, a 1960 report by the Parish Council (which may have been part of the first review of the Definitive Map) simply comments on the erection of a nameplate stating ? Beaconsfield Road?. I therefore conclude that there are no grounds for believing that the Order route was recorded as part of a public footpath in error. If it carries BOAT status, it has been acquired since that time. I turn now to consider to evidence for such a possibility. Section 31, Highways Act 1980. The date on which the right of the public to use the way in a vehicle was called into question. 6. The erection of the bollards in 1993 with the express intention of preventing public vehicular use clearly called public BOAT rights into question. Hence, it is necessary to examine the use of the Order route in the preceding 20 years from 1993 Whether there has been public vehicular use of the way as of right. 7, In view of the history of the case, I think it would be helpful to give a legal context to the way in which I view the evidence of public vehicular use. The judgement in Bakewell Management Ltd v Brandwood [2004] UKHL 14 (?the Bakewell case?) established that, if dedication of a vehicular way by a landowner could lawfully be made, then dedications could also be presumed through long use where that use satisfied the provisions of S31 (1) of the Highways Act 1980: it also established that, provided a public nuisance was not caused by such use, whether it occurred before or after 1930 was irrelevant, as use with lawful authority is not prohibited by s34(1) of the Road Traffic Act 1988. This judgement, which reinterpreted the legislation and so overtook the guidance derived from earlier cases, came after the Council rejected the original application and after the substantive exchange of correspondence in the appeal process had taken place. The earlier judgements no doubt shaped aspects of the Councils analysis at those times of the user evidence. My consideration of the evidence of vehicular use by the public will take the Bakewell case into account. Since it would have been lawful for the residents and owners of Beaconsfield Road to authorise vehicular users, in my view there is no reason why public vehicular rights cannot be presumed to have been lawfully granted. 8. In the user evidence, I can find no indication that anyone was ever stopped from using a vehicle along the Order route prior to the erection of the bollards, even though it is clear that there was sufficient vehicular traffic for some residents to go to the expense of erecting bollards to stop it. Similarly, there is no evidence that such usage during the relevant 20 year period was other than open, without force and without permission, specific or implied. 9. I therefore find that the claimed vehicular use of the Order route by the public was of right. Whether there has been uninterrupted use as of right for 20 years. 10. The user evidence indicates public vehicular use of the Order route for an uninterrupted period between 1973 and 1993 (and for some it for many years previous). Evidence of use of the Order route itself (which is but a portion of the route originally claimed) is not affected by the fact that the building of a housing estate in the early 1980s to the north of Beaconsfield Road led to a choice of way to the west of the Order route. Whether there is sufficient evidence of a lack of intention to dedicate public vehicular rights during the 20 year period. 11. There is no evidence until the bollards were erected in 1993 that the owners of the land expressed any clear and positive intention not to dedicate public vehicular rights. Consequently, I find that during the relevant 20 year period there was insufficient evidence to defeat a presumption of the dedication of public vehicular rights along the Order route. Documentary evidence. 12. Various property deeds and related documents support the existence of private rights of access to properties along the Order route, but they do not prevent the acquisition of public rights through usage. Private and public rights can ? and often do ? coexist. Section 66 of the 1980 Act. 13. It is clear from the evidence as a whole that the Order route has long been widely used by dog walkers, by children going to from Kessingland primary School and to the bus stop, by people going to the beach, and also by cyclists. Despite my finding that there is sufficient evidence of public vehicular use of the Order route as of right during the relevant 20 year period for the claim to succeed, the narrow width and rough surface of the route satisfies me that vehicular use was probably less that other types of use. I therefore find that public use of the Order route fits the definition of a BOAT. Other issues, 14. I appreciate the genuine concern and strength of feeling that some of those living close to the Order route have concerning the suitability of the Order route to carry public vehicular traffic and the safety issues involved. However, under the relevant legislation these are not matters that bear on whether public BOAT rights can be deemed to exist. I therefore am unable to give these concerns any weight. Overall Conclusions 15. All told, having regard to all information before me, on the balance of probabilities I conclude that the requirements of Section 31 of the 1980 Act have been met and, having regard to section 66 of the 1981 Act, it is appropriate to recognise the Order route as a BOAT. Formal Decision 16. I confirm the Order. Brian C. Drury Inspector.
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