EXTRAORDINARY MEETING OF SEDLESCOMBE PARISH COUNCIL HELD ON TUESDAY 25 FEBRUARY 2014, 19:00 TO 19:45
Cllr J Vine-Hall (Chairman of the Council)
Cllr P Glew (Vice-Chairman of the Council)
Cllrs P Anson, R Chapman, R Eldridge, J Parsons, J Reynolds
Clerk/Financial Officer - Pauline J Raymond
109 APOLOGIES. Cllr Fraser (away), Cllr Lawrence (working)
110 INTERESTS IN ACCORDANCE WITH THE 2012 CODE OF CONDUCT. Cllr Vine-Hall declared his personal interest in Agenda item 114 by virtue of his advice to the main claimant concerning how to claim a right of way in accordance with information available on the County Council website. He continued to chair the meeting.
111 WRITTEN REQUESTS FOR DISPENSATION. None received.
112 PUBLIC PARTICIPATION. No public present.
113 MINUTES. RESOLVED: That the Chairman is authorised to sign the Minutes of the Meeting of the Council held on 14/01/14.
114 APPLICATION FOR MODIFICATION ORDER FOR TWO NEW FOOTPATHS FROM BREDE LANE. The Clerk gave a Powerpoint Presentation to explain the situation. A resident of Blacklands, supported by 30 others, had submitted a claim to East Sussex County Council (ESCC) that two footpaths had been omitted from the Sedlescombe Definitive Map of Rights of Way. Showing a footpath on a definitive map is irrefutable evidence that a public right of way across private land exists. The converse though is not true and the omission of a right of way does not mean there is not one across land. The public can claim a right of way and it may be allowed if it can be shown that the public has used the route and the landowner intended to dedicate it for public use.
Claimed paths. Both claimed paths run from Brede Lane, across the proposed development site at Street Farm, to join a well-used public footpath from East View to the Village.
Claimed Path A through SPC land. One path is purported to go through the boundary hedge and cross the Kickabout Area, both of which belong to the Parish Council (SPC). As landowner, SPC has been invited to comment on the claims being made. The evidence presented in the Powerpoint Presentation was restricted to claimed path A.
Claimants' Evidence. The main claimant had submitted the following in support of his claim that this is a path which the public have used as of right and which should be added to the Definitive Map of rights of way:
- A completed form confirming his use of a "clear and defined route" as shown on the map for recreational purposes over a period of 8.5 years since he moved to Sedlescombe. He says that he can see no reason why the owner would be unaware of the use and that the claimed path had been maintained "with stiles by people unknown". He confirmed he saw people using it "from time to time" and that there had been no notices saying "private" or other structures affecting use of the way. He confirmed there had been "gates or fences across the way" but that they were not locked and also that there were stiles. As "documentary evidence" he cited the "attached Land Registry document with gap in hedge". He didn't answer whether he would be willing to attend a public inquiry although several others had said they would attend if required.
- John Keeling/SPC Land Transfer Document 1996.
- Plan accompanying the Transfer BUT with the handwritten addition of the words "Gap in hedge" (NB this is not the signed and sealed version of the plan).
- Photos of three structures that the main claimant calls "stiles"; a wooden structure next to Oakhurst in Brede Lane; a wooden structure in the middle of the field on line of barbed wire fence; a wooden 3-barred fence on SPC land on the boundary of Street Farm and the Kickabout Area labelled "Stile at kick about area (gap existed in 1995 transfer)".
SPC reply to Claimants' Evidence. In reply to statements made by claimants, the Clerk produced the following evidence:
- Covenant in the John Keeling/SPC Land Transfer required SPC to erect and maintain a 1.8 metre fence along the northern boundary, without any gaps or stile and, that therefore, the previous owner was not aware of any path nor intended there to be one across this land at the time in 1996 of the transfer to SPC.
- The Plan accompanying the Transfer had been altered by inclusion of handwritten words "gap in hedge". The "gap" is irrelevant as there are other gaps in the hedge on the drawing and it is not known whether their positions were accurate or "an artist's impression". Whatever the hedge situation, the 1.8m fence behind was complete without any gaps.
- The stile at Brede Lane had been inserted in the hedgeline in December 2013/January 2014 and an extract from a 2009 Google Map clearly shows the hedgeline without any stile or even gap. Therefore, walkers could not, before December 2013/January 2014, have accessed the field from the shown position in the Brede Lane hedgeline and, therefore, could not have crossed the boundary from Street Farm into the Kickabout Area. [Cllr Chapman said that he remembered a stile or a gap in the Brede Lane hedge in the 1960s but that he had never used it himself nor had seen any documentary evidence of its existence or that it was being used by the public.]
- The lack of stile before December 2013/January 2014 was further confirmed by a Google Map dated September 2013 showing no stile in the hedge at Brede Lane, no stile in the barbed wire fence in the field and a solid hedge at the Kickabout Area.
- Clear and Defined Route. Despite the claimants saying they had followed a "clear and defined route" regularly and continued to use it up to submission of their forms in January 2014, at varying intervals, some daily, some weekly etc., the 2013 Google Map showed no evidence of a track of any sort along the claimed route. One claimant spoke of being able to see a track from over the hedge.
- Three-barred wooden fence. The linking of the three-barred fence and the amended Transfer plan marked "gap in hedge" is erroneous as they are in quite different positions in the boundary between Street Farm and the Kickabout Area. Also, as stated previously, the Transfer Document required the land to be fully enclosed with a 1.8 metre fence in 1996.
- The link mentioned in the previous paragraph is also erroneous because the 3-barred fence was not there when the land was transferred to SPC in 1996 but was only installed by the Parish Council in 2009 because of ongoing vandalism problems particularly to the northern boundary fence of the Kickabout Area. The broken down fence allowed children to drag hay easily into the Kickabout Area from Street Farm through the hedge and set fire to it over three summers causing the Fire Brigade to be called out on at least one occasion. There were also concerns that horses could escape from Street Farm into the Kickabout Area because of ongoing damage to the chainlink fence from the Kickabout Area. The installation of the wooden barrier was therefore a pragmatic solution to a difficult problem that SPC had. It was never meant to be a stile to allow access to the Kickabout Area for walkers but rather to stop horses escaping and children dragging hay into the play area and setting light to it.
- 1930 OS Map. Although the main claimant did not include it in his claim for this path, he did include a 1930 Ordnance Survey Map with a highlighted track across the field from Brede Lane in his evidence of claim for the other path. However, several of the supporting claimants for this path involving SPC land did mention the 1930 OS map as being their "documentary evidence". The track on the 1930 OS Map cannot be used as a proof of a right of way because OS maps are covered with tracks which are mostly not public rights of way. OS Maps contain a statement "The representation on this map of a Road, Track or Footpath is no evidence of the existence of a right of way". The highlighted track is not on the Sedlescombe Draft Definitive Map dated 1961. [Cllr Chapman mentioned a 1920s map that shows the track and also a large building beside it.]
- Reasons for taking the route. A study of people's claimed uses of the path through the Kickabout Area reveals unexpected reasons for using the way including taking short cuts along longer routes and using the path to walk from Hurst Lane to East View Terrace as well as elderly people choosing to get through a hedge, climb a barbed wire fence, push through brambles and a chainlink fence before climbing a wooden fence in order to walk "more conveniently" through a very muddy patch to the part of the Village furthest from the shop, pub or doctors. For these people, it would obviously be more convenient to take the paved way from their front gate to the Village.
- Dog Exclusion Zone. A study of people's reasons for using the path reveals that some take the dog for a walk through the Kickabout Area. Since 2008, the Kickabout Area has been a Dog Exclusion Zone under a Rother Dog Control Order with Rother District Council and Sedlescombe Parish Council signs on display at the Area.
- Statutory Declaration On 17/05/2011, under Minute C11/12.14, and in accordance with s31(6) of the Highways Act 1980, Sedlescombe Parish Council passed a resolution re the Kickabout Area as follows:
- That Sedlescombe Parish Council has been the owner of the East View Terrace Kickabout Area since 31/01/1996.
- That there are no dedicated ways over East View Terrace Kickabout Area.
- That Sedlescombe Parish Council has no intention of dedicating public rights of way over this property.
- Planning Application RR/2014/147/P to build 18 properties on the land adjacent to Oakhurst, Blacklands, Brede Lane. SPC has opposed this planning application and did not support the applicant's suggestion that both the Kickabout Area and the footpath network would be accessed via the hedge into the Kickabout Area.
- Local knowledge. The Clerk, has known the public rights of way in detail in Sedlescombe for 45 years, 39 as Parish Clerk with a particular interest in rights of way. For 28 years, the Clerk and her husband led winter parish council footpath walks and in 1994, to celebrate the Parish Council's centenary, led a weekend of walks covering every footpath and bridleway in the parish of Sedlescombe. The Clerk worked closely with ESCC in sorting out queries about paths and in producing "Walks around Sedlescombe", which is still on sale in the Village. Throughout the last 39 years, the Clerk had never heard any suggestions that walkers are crossing the field along either of the claimed paths at Street Farm from Brede Lane to meet the footpath network to the south. The Parish Council has, over many years, maintained every public right of way in the parish and installed many stiles and gates but no-one has ever asked for stiles to be erected or maintained nor has there ever been a request for the paths to be added to the Definitive Map.
The Parish Council has three options regarding the small portion of the path that belongs to the Council ie through the Kickabout northern boundary and across the Kickabout Area:
- To dedicate a route through the Kickabout Area as a highway.
- To allow a permissive use and grant a licence to the public.
- To oppose the claim based on the evidence in hand.
It was RESOLVED: That, based on the overwhelming evidence, Sedlescombe Parish Council should oppose the claim that the public have a right to cross the northern boundary into and across the Kickabout Area and that the Clerk is authorised to complete and return the required form to East Sussex County Council.