Agenda item

The Executive Member for Environment and the Director of Environment and Community Services submitted a report for Executive’s consideration.

The Council had a statutory duty to promote the modification of the Definitive Map and Statement, by way of a Definitive Map Modification Order if evidence was discovered which suggested that public rights subsisted or were reasonably alleged to subsist along the line of the route.

The Council’s Public Rights of Way Officer had looked into the history of the route and had searched for any available evidence, which would demonstrate that public rights had been shown to exist under Section 31 of the Highways Act 1980; and at Common Law by showing that the landowner, at some time in the past dedicated the way to the public either expressly, the evidence of the dedication having been lost, or by implication making no objection to use by the public of the way.

Having considered all of the available evidence, the officer was satisfied that the evidence was sufficient to satisfy the requirement under Section 53 (3)(c)(i) of the Wildlife and Countryside Act 1981.

OPTION

The Council had considered all available legal options to be able to record the route on the definitive map (see Appendix 1), and concluded that the most appropriate legal option would be a Modification Order under Section 53 of the Wildlife and Countryside Act 1981.

ORDERED

1.    The Executive Authorises the Head of Legal Services to make an order under Section 53 of the Wildlife and Countryside Act 1981, to modify the Definitive Map and Statement by adding a footpath at the Poole Hospital estate in the parish of Nunthorpe.

2.    That the Order be confirmed by Middlesbrough Council as an unopposed Order if no objections or representations are received to the Order within the statutory timescales; or, if objections or representations to the Order are received that they be submitted by Middlesbrough Council to the Secretary of State with a request that the Order be confirmed.

REASON

In most cases, it was usual for the Council to receive a claim to modify the Definitive Map from a member of the public, organisation or landowner but in some instances, the Council would also look to modify the Definitive Map where it found evidence.

Section 53 (3)(c)(i) was relevant in circumstances where the discovery by the authority (including through a third-party application), of evidence which showed that a right of way, which was not shown on the map and statement, subsisted or was reasonably alleged to subsist over land.

Thus, if a way was not shown on the Definitive Map but documentary evidence showed that a public right of way existed, or was reasonably alleged to exist, an application may have been made under this section for the path to be added to the definitive map and statement.

The s106 agreement and the Creation Agreement were supporting evidence to the question of whether the claimed route had been dedicated as a highway at common law.

It was therefore considered that the documentary evidence indicated that it was reasonably alleged the whole of the route (A-B-C-D-E-F) on the report map was dedicated as a public footpath.

Having considered all of the available evidence, the officer was satisfied that the evidence was sufficient to satisfy the requirement under Section 53 (3)(c)(i) of the Wildlife and Countryside Act 1981.

It was therefore considered that the Council should make a Definitive Map Modification Order to add the route A-B-C-D-E-F to the definitive map and statement as a Footpath.

It was considered that if the Order made by the Council was unopposed, it should be confirmed by the Council and if the Order was opposed it should be forwarded to the Secretary of State with a request that it be confirmed.