Evidence proves alleged footpath was disputed many years ago.Posted: October 15, 2014
We are pleased to have successfully represented our client in its challenge to an alleged public footpath through woodland in East Sussex. Fairlight Parish Council claimed that a route had been used by the public through Knowle Wood to such an extent that a presumption of dedication had arisen.
There was significant user evidence over recent years which the County Council had relied upon both to make an Order to modify the Definitive Map and to support its case that the Order should be confirmed. At the public inquiry in September, some of those that had completed forms detailing their use, attended to give evidence which we were then able to cross examine.
One of the forms had mentioned a dispute in the 1980s which we thought was significant. The Council sought to suggest that the dispute related to an adjoining path and was not relevant to the claim.
The public inquiry presented the first opportunity to explore this comment. By then it was supported by a few items of correspondence but the arguments were still potentially tenuous. However, when we pressed the Council’s witness on the issue it emerged that the Council had looked through a file which related to the earlier dispute. They considered it was not relevant.
This rightly raised the Inspector’s eyebrows and we asked to see the file so we could make our own decision. At the end of the first day we were permitted to start reading the contents. An early start before the inquiry reconvened at 10.00 am on the second day enabled the file inspection to be completed and, not surprisingly, there was plenty to confirm our belief that the early challenge was both significant and relevant. The file contained notes and letters which referred to a section of the path, and confirmed that its status needed to be resolved.
One of the final witnesses called by the Council was the person who had made the comment in her evidence form. She was clear in her recollection that the matter had been raised and never dealt with. She had been at the heart of the Parish Council. There had been promises made by the County Council which had not been fulfilled.
Once the evidence was heard, we were able to include this new material in our closing submissions to argue that this dispute had raised the pubic right to the claimed route and that the Parish Council had been aware at that time clearly indicating that the required elements to challenge the public had been satisfied.
The argument was one of several we made but ultimately it was the argument that the Inspector accepted. In his decision letter he rejected the claim. There was simply insufficient evidence of use for 20 years before the earlier dispute to enable him to confirm the Council’s Order.
This is a significant win and one that demonstrates the importance of following every line of evidence. It also shows how careful consideration of the material and the cross examination of witnesses can elicit supportive material which might otherwise be regarded as not relevant by some of the parties to a claim.
The decision arrived on the same day as we have been instructed on a new claim in Dorset so as one case concludes, another gets under way.
We are always happy to talk to landowners throughout England and Wales facing path claims or who have existing footpaths, bridleways or byways they would like to divert or who have public path management problems. It is likely that we have already had to deal with a problem like yours! Just fill in the form and we will get back to you.