FPS/P2935/7/37M

FPS/P2935/7/37M (final decision)
17 December 2015
FPS/P2935/7/37 (interim decision)
4 March 2015
Mrs Sue Arnott
Map evidence, presumption of through route, presumption of extinguishment.

After a hearing on 16 September 2014, Mrs Arnott determined an order to add to the definitive map and statement for Northumberland a restricted byway, a little under a mile and a half in length. Strictly, about 30 yards of this length was not an addition, but rather a modification of part of a longer bridleway, which made a ‘dog-leg’ at the crossing point of the claimed restricted byway. The whole of the restricted byway has no known name, but the extreme northern end is set out in an inclosure award as ‘Whiteleyshield Road’ (a public carriage road) and the applicant for the order used this as a road name throughout.

This order confirmation comes at the end of a long and somewhat tortuous road. In the summer of 2005 the Trail Riders Fellowship lodged an application to add a byway open to all traffic, and this application was caught by the cut-off date in the Natural Environment and Rural Communities Act 2006, meaning that the road could be recorded as no more than a restricted byway. Nevertheless, the TRF continued to support the application. The application, and the order for a restricted byway subsequently made by Northumberland County Council, sought to add Whiteleyshield Road north of the existing bridleway, and also to modify the restricted byway the length of bridleway from the junction with the restricted byway, east to the nearby motor road. The southern section of claimed restricted byway (C-A on the recent order plan) did not feature in this order.

Between the order being made and its determination by Inspector Heidi Cruickshank (by written representations, FPS/P2935/7/4, decision letter of 28 March 2011) the order-making authority changed its stance and asked that the order be confirmed, but as a bridleway, not as a restricted byway. Mrs Cruickshank did not consider that request: she found the order to be so defective in its drafting that she held it incapable of confirmation, and beyond her powers of modification.

Mrs Cruickshank had earlier invited the comments of the parties about this technical deficiency. The TRF suggested that the order was valid as regards the restricted byway to be added, but conceded Mrs Cruickshank’s point about the bridleway to be modified, adding, “I respectfully ask the Inspector please to confirm B-C as a restricted byway, and if he or she is minded not to confirm A-B to say clearly that this is because of an administrative defect in the order, rather than on evidential grounds.This is important as regards ‘discovery of evidence’ issues in the making of a new order.” The Inspector took this point, stating at [14], “As I consider the order as made is incapable of confirmation I have not gone on to consider the evidential matters and submissions and I have not carried out a site visit.” Tick off 5 years and go back to square one.

The TRF stood out at this point and the case was taken-up afresh by Alan Kind. Mr Kind realised that the claimed historical route did not join what is now the sealed motor road via the existing bridleway, rather it crossed that bridleway, climbed a steep bank, and made a junction with the motor road a few hundred yards further south. Not wanting to leave the rejected order to the OMA to remake at some point, Mr Kind submitted a fresh application, this time simply adding a restricted byway, and not affecting the bridleway at all beyond crossing it (which, of course, raises the issue of modifying the bridleway at the crossing place only).

This time the OMA made the order so as to add a restricted byway (not the bridleway for which it had previously contended) but placed the section south of the bridleway on a meandering line different from the nearby, straighter line, as claimed in the application.

Coalcleugh pics 8 2011 rs 003

The photograph above is taken from the existing bridleway, and the ‘claimed line’ is the holloway to the top left, just below the armco barrier, and the order line is the more curvaceous holloway centre and right.

Mr Kind’s case was founded on the line of road shown in the inclosure award plan (but outside the areas to be inclosed) and the direct, straight, linear continuity of this holloway with the motor road above, heading straight to the county boundary. The OMA’s case was based on the order route’s being shown clearly in early large-scale Ordnance maps, bolstered (as it turned out later) by being shown as ‘old road’ in the turnpike plan, which was later in date than the inclosure plan. Mr Kind also argued for a slightly amended line just to the north of the existing bridleway, taking the road further from the house known as Sunnyside.

At the hearing on 16 September 2014 conducted by Inspector Sue Arnott, the primary case against the order was made by Mrs Liz Sobell on behalf of the the main landowner, and the shooting rights holder, and Mr C Tomkins, owner of Sunnyside, objected as regards the route of the claimed road. He said that the ‘curving’ order route C-A appears on the ground to be more like a mining feature than a road. Alan Kind agreed with this assessment.

Mrs Sobell submitted a copy of a deposited 1825 plan of a proposed turnpike road, and the 1826 Act authorising this (and other) turnpikes. This plan showed the turnpike road much as the sealed motor road is now, and had some other sections of road (including part of the order route) shown but coloured differently as ‘old road’ in the plan key. The 1826 Act empowered the turnpike trustees to stop-up ‘useless and unnecessary’ roads.

Mrs Sobell and Mr Kind put in long and detailed submissions on the proper construction of the turnpike plans and Act, and in her interim decision letter of 4 March 2015, Mrs Arnott concluded (her emphasis), [78] “… it seems to me there could have been no reason not to extend the same powers to the Trustees under the 1826 Act in relation to all the branches of the proposed turnpike as well as the main subject road between Branch End and Cows Hill. [79] On that basis, taking a more liberal interpretation of the 1826 Act, I would be prepared to accept that those parts of ‘present old road’ shown on the 1825 Plan as not forming part of the new turnpike road and likely to qualify as ‘useless and unnecessary’ were subsequently stopped up by the Trustees if later evidence points to this being the most likely conclusion, even in the absence of express documentary proof.”

On this basis, Mrs Arnott proposed to confirm the northern part of the order (subject to the minor alteration at Sunnyside mentioned above), but deleted the southern part C-A from the order. The proposed alignment modification meant that the order and modification had to be readvertised, and Alan Kind objected on the Paragraph 7 ground that Mrs Arnott had misdirected herself as to the law in the context of what she could properly ‘presume’ about the actions of the turnpike commissioners. Central to this objection was that f the commissioners had stopped-up this ‘old road’ at Sunnyside, then in so doing they had cut a hundred yards out of (what is now) the existing bridleway, which was and is a deep holloway running right up to the county boundary, and beyond into Alston Moor. Could they have had a power to do this and, if they did, for what rational reason would they stop-up this wholly different road?

Mr Kind argued the then-recent decision in Andrews #2. particularly the caution that should be exercised in construing old statutes. Mrs Arnott states at [19] (and this is a view that must be applicable to many other orders?) “In short, prior to considering the Turnpike Act of 1824, I concluded at paragraph [58] that since the Order route is the only possible extension of the awarded Whiteleyshield Road, on a balance of probability, it would likewise have been a full vehicular highway. That conclusion has not changed.”

Mrs Arnott considers the various points made by Mr Kind regarding the absence of any evidence that the turnpike commissioners closed any parts of ‘old road’, and she ends with the de facto closure of part of what is now the existing bridleway. At [34], “Even if I am right to deduce that the brown road at Coalcleugh shown on the 1825 plan was intended to depict a section rendered ‘useless and unnecessary’, I recognise there is still no evidence before me that the Trustees made an order to stop up the unnecessary road. [35] Having considered these submissions, and re-examined the historical evidence before me, it must follow that my finding at paragraph [99], that the balance tipped towards the conclusion the southern section of the Order route (A-C-D) was formally closed to the public by the Trustees, cannot be sustained.”

The Inspector then revisits the alignment of the southern part, but here sticks with her preference for the order route over the inclosure (continuation) route. The proposal to delete this section from the order is reversed, and the order is confirmed as made, with the section near Sunnyside modified as to alignment. [Ends]