Archived decisions

Appendix 3

Objection by Graham Plumbe FRICS on behalf of Tylney Investments Ltd

2) Legal Framework

Paragraphs 2.1 and 2.2 are correctly stated, but they omit two important legal principles.

(i) The presumption of regularity. This arises where the validity of an act done by a public authority depends on the existence of a state of facts which cannot, with the passage of time, be proved. The presumption is that the statutory authority has acted lawfully and in accordance with its duty.

(ii) In law a diversion order works by stopping up one right of way (with reservations in some cases) and creating another of equivalent status to the one stopped up. Diversion is not simply a matter of transferring a right, because the right attaches to a piece of land that cannot be moved.

3) Summary of issues to be decided

The Report is incorrect. When making a DMMO, the authority must proceed under the relevant provision and apply the correct test if the order is to be valid. In this case, the proposed order relates in its entirety to ways that are already on the Definitive Map and so fall to be decided under s53(3)(c)(ii). The error appears in the statement of law at Appx 1, top box, and at Appx 2 para 1.1. The way is on the Definitive Map and the test of reasonable allegation does not apply. The distinction is important as HCC found to its cost in the case of Todd & Bradley v SoSEFRA in 2004. If the Committee were to proceed with an order relating to the playing field section (C-D-E) then s53(3)(c)(i) would be relevant and reliance could in that context alone be placed on reasonable allegation.

4) Recommendations

The recommendations omit the need to rescind also the determination made on 30 November 2000 to make a bridleway over the whole route. This was reached on the basis of "conclusive evidence that public bridleway rights exist on the route A-B [now B-C-D-F] on the attached map". Apart from being a different route, the assertion of conclusive evidence has since been shown and admitted to be incorrect, so the decision clearly cannot stand. Nowhere in the Report is there any mention of what should happen to a decision that bridleway rights attached to a route of very different description, based on a legal error.

The proposed width of 5.0 metres between points A-B is not necessarily accepted as Tylney has been given very little opportunity to check the correct measurement. No width was stated in the 2000 decision and release of a draft of the present report gave a window of only a few days.

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Main Report

4) Description of the route

The Report is incorrect. At line 6 it should read "... across several fairways and into the car park of the Optrex Business Park (point C). The route of the old bridleway then exits the eastern boundary of the Business Park before running diagonally across two fields ....". A map produced by HCC for the proposed diversion order in 2005 shows this clearly and an extract centred on point C is attached to this report. It is unclear why the map now before the Committee has obscured this important detail and why it has been omitted from the text.

5) Background to the claim

Tylney does not accept a number of assertions and omissions in this section.

(i) The critical statements at 5.2 that "the major landowner would not confirm the exact route of the new bridleway across its land and has now challenged the Council's interpretation of one piece of documentary evidence" and at 5.5 "Tylney ... have failed to facilitate the diversion by providing written consent" are uncalled for. All three owners were induced into a provisional diversion agreement in 2005 as the result of the 2000 decision. Tylney felt that something was wrong and took advice which was that there had been a major error by officers. That was confirmed by a joint opinion obtained in 2006 from arguably the best rights of way legal team in the country - George Laurence QC and Ross Crail (Junior Counsel). The misconception was drawn to officers' attention straightaway but HCC has not been prepared at any stage to acknowledge that error. There is no need to provide case law (5.3) to reach a decision on residual rights, given reliable legal advice based on elementary interpretation of documentary evidence and the application of well established legal principles. That advice was unequivocal in saying that (i) any right of way across the playing field had been extinguished, (ii) that the concept of a residual bridleway shorn of footpath rights (the basis of the report to Committee in 2000) was a concept unknown in law, and (iii) the 1953 diversion carried footpath rights only. Counsel concluded by saying that any attempt by HCC to add the route back to the playing field would be unlawful and vulnerable to injunctive restraint. The general misconception by HCC as to residual rights following diversion is identified at Appx 2 para 3.4.

The Committee is frequently asked in any case to make decisions which cannot be based on "absolute certainty". The test in rights of way matters is the balance of probabilities. References to this issue throughout the Report are consistently ambiguous. Indeed, 5.7 (i) and (ii) suggest that officers believe that the extinguished rights still exist. The Committee needs to know the status of this section before considering options relating to the route as a whole. Tribunals will also need to know when considering an application for diversion or creation.

(ii) Repeated requests for reasons for rejecting Counsel's opinion have been refused. At a meeting with HCC in March 2008 the Assistant Head of the Countryside Service (Mr Andrew Smith) was asked for these reasons but he "refused to be drawn". Mr Ian Austin as legal adviser and Mr Piper as rights of way officer remained silent. Subsequent requests to Mr Austin were dismissed on the grounds of "breach of privilege" which is wrong legally. A request under the FOIA (corrected to EIR) was refused on the grounds of confidentiality

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and has been referred to the Ombudsman. It has repeatedly been pointed out that any recommendation to the Committee on this subject, or any legal process to implement a through bridleway route, would be dependent on this information.

(iii) There is a conspicuous omission of any reference in the Report to the Optrex land, of resolving the problem of a bridleway across part of a business park and of removing the obstructing fence.

(iv) The impact of HCC's misconception would have been far greater on Tylney than on Optrex or RPC. Even if mitigated by the proposed diversion, the position then would be:

RPC - a loss of fringe land, and manageable risk from cricket balls, in exchange for removal of a right of way across the centre of the playing field

Optrex - loss of a strip of pasture in exchange for removal of the right of way altogether from the business park with major security and parking benefits

Tylney - The terms of the defective 2000 decision led Tylney to believe that it had no option but to agree the alternative route proposed. It offered a minor improvement in public safety, but Members need to study the layout of the course to understand how serious the risk would still have been. As far as Tylney was concerned, the proposal offered very little mitigation of the major problems associated with a bridleway across a golf course.

(v) To promote its objective of creating a through bridleway route, officers met RPC (and J P Winkworth Ltd?) in about August 2007 to discuss the potential of a creation order imposing a bridleway on Tylney land (The Avenue). This was without informing or consulting Tylney to whose attention it came by chance as a result of a parish newsletter inviting public support for a creation order. The newsletter contained misinformation about bridleway rights and even the existence of a pedestrian route from Newnham. That invalidates any letters written as a consequence.

(vi) Given that other owners had clearly been misinformed, meetings with both RPC and J P Winkworth Ltd were invited to discuss the problem rationally. Both invitations were rejected in the light of HCC's information given to them privately. It remains the desire of Tylney to discuss these matters with both parish councils and with J P Winkworth Ltd.

(vii) Tylney's position in all this has been clearly stated on 28 Jan 2009 in these terms:

"The essence of this case is whether a sufficient case has been made out to satisfy statutory criteria for exercising compulsory powers to create a new through bridleway. That means balancing a range of local factors against general policy considerations. When we have the necessary material, my client will seek guidance from Counsel as to whether HCC has achieved the necessary justification. If advised that it has, then a negotiated settlement on C-G-H would be addressed. If not, the initiative will be resisted, and any other option will in any case be strenuously opposed. Meanwhile, I would welcome a detailed response to this letter so that Counsel can be comprehensively briefed as to HCC's position."

Officers declined to provide the information and proceeded to the present position. In the absence of co-operation it cannot claim to have "exhausted the possibilities" (5.10).

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(viii) Tylney has co-operated throughout by commenting on various options and providing information. That co-operation has not been matched. Reference at 5.4 to Tylney's "strong aversion to any route that utilised The Avenue" is misleading. Very good reasons have been given for not using this part of the route, a proposal which simply shifts RPC's problem even more onto Tylney. An equally important part of the objection however is that use of this exit necessarily involves a route across the most vulnerable part of the golf course. Even if an order gives rise to a cul-de-sac, creation of a through route would escalate the amount of horse and bicycle traffic out of all proportion. The suggestion of extinguishment of a cul-de-sac route, if that were to be the outcome, is a sensible option given the balance of utility to the public set against public risk and management/value problems.

(ix) The Report says (1.2) that "the Council has to fall back on the definitive map modification process". The true (unstated) reason for that is that all options considered were based on diversion of the footpath as a bridleway without first establishing the higher right over any part of the route, thus bypassing the whole 1981 Act procedure. The lawfulness of that was questioned and officers have been unable to provide legal authority. The order now recommended to Committee is the result.

(x) The Report at 5.7 states that cycle access is a driving factor. Officers stated in writing that HCC was not relying on this factor.

(xi) The Report at 5.8 refers to policy matters. Tylney has always recognised the merits of a positive access policy but asked HCC at the March 2008 meeting to set out an assessment of the balance of public interest against inherent problems in this case. Mr Smith promised to supply this but it has not been forthcoming in spite of several reminders and promises.

(xii) Responses from the Parish Councils are at Report 5.9. Both are based on misinformation as to the possible existence of rights over the playing field. Newnham PC in fact identified its support of a bridleway running through Tylney Hall - not across the golf course.

As to RPC:

(a) a meeting to discuss options and reasons was rejected following the visit from HCC.

(b) RPC diverted the original footpath route off its own land with the co-operation of Tylney. It now seeks to impose on Tylney a route across the golf course and along the Tylney private access drive carrying horses and bicycles without apparent regard to the consequences.

(c) The newsletter to locals in October (?) 2007 carried serious misinformation.

(d) In 1952/3 the suggestion arose that bridleway rights existed. RPC expressly withdrew any claim to that effect (see Report page 14).

There is a conspicuous absence of reference to the position of J P Winkworth Ltd.

6) Documentary evidence

6.1 This representation is not burdened with comments on the documentary evidence. That will happen later, if and when necessary.

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6) Options

6.3 The statutory duty on Surveying Authorities is to review the Definitive Map when evidence is discovered. It is not a matter of expediency. Where that leads to uncertainty (as expressed repeatedly as HCC's view in this case) and the Committee has already decided that bridleway rights exist across the Business Park and the playing field, it must on any view be reasonable to allege under s53(3)(c)(i) that rights exist, in order to set in train the processes under the Act drawn specifically to resolve such questions. The alternative is for the Committee to resolve immediately that such rights do not exist, as advised by Counsel.

7) Consultations

7.1 The options set out on page 6 have not been previously been put direct to Tylney. A copy of a letter being sent to other parties was supplied, but the options were in different sequence and therefore carried different numbering. Any responses need to be examined for confusion in this respect.

7.2 Nowhere in the Report is there any mention of the position of J P Winkworth Ltd.

8) Conclusion

(i) For the reason set out at 6.3 above, Tylney believes that the Committee should follow Option 2 as a matter of statutory duty. Officers have made clear that the ultimate objective is to create a through bridleway route between Newnham and Rotherwick and this is very largely affected by the rights or otherwise on C-D-E. As can be seen from the objections below, rights over A-B-C relate closely to the legal position over the northern section. For that reason it was proposed to officers that a composite order be recommended so that the route and the evidence could be considered sensibly as a whole. Regrettably, officers refused to do so, and the s53(5) application followed as a result. It is now even more sensible to consider the whole situation as one process.

(ii) Tylney has a wish to resolve this whole issue on a rational and legally correct basis. That calls for a responsible approach and must start with presentation of a convincing justification for a through route taking all factors into account.

(iii) As that approach has been rejected, Tylney objects to the making of the order.

Objections

1. The description of the south route (A-B-C) route fails to record its correct termination.

2. s53(3)(c) of the 1981 Act applies to this case and requires discovery of evidence. In Mayhew v. Secretary of State for the Environment (1992) 65 P&CR 344, Potts J said "the `event' in section 53(3)(c) is concerned with the finding out of some information which was not known to the surveying authority when the earlier definitive map was prepared". The 1898 diversion application was considered by HCC in the original preparation of the Definitive Map in 1952/3 but was known about too late to be registered. However, the map was

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reviewed again in 1958 and again in 1964. The full evidence has been available to HCC throughout and is not new.

3. Leading Counsel advised that, apart from the clear wording of the 1953 diversion order, the presumption of regularity (see Legal framework above) would apply. The advice was that ".... by application of the principle omnia praesumuntur rite esse acta, the very fact that the 1952 Diversion Order was made on the footing that the A-B-C route [now C-D-E] was then a footpath gives rise to an evidential presumption that it was indeed by that time no more than a footpath. Such a presumption is of course rebuttable by evidence, but the burden of proving that the 1952Diversion Order was made in error rests on those who so claim, and to succeed they would have positively to show that no event extinctive of bridle rights over the A-B-C route had occurred during that period." In short, the onus is on HCC to prove that C-D-E had not reverted to footpath status by 1953. That, as Counsel points out, would necessitate an exhaustive search of the magistrates' court records, which in turn must be sufficiently comprehensive to provide conclusive proof that no stopping up of equestrian rights occurred between 1899 and 1952. That has not happened.

The ouster provisions in the 1949 made it impossible later to challenge the validity of the 1953 order and no error has been proved. Counsel was consulted as to the impact on the rest of the route and advised that, if legally C-D-E must be regarded as having been correctly diverted as a footpath, the inference can be drawn that the same status applies to section A-B-C.

4. Officers have advised the Committee on the basis of the wrong legal test - see 3), page 1.

5. Consultation has been flawed for the reasons given at 7) above.

6. There is no direct evidence of bridleway status attaching to section A-B. As this issue is inferential only, account must be taken of other objections.