Content

This ODR is to determine an application
received for an Order to be made under Section 53 of the Wildlife
and Countryside Act 1981 to modify the Definitive Map (DM) and
Statement by the upgrading of public footpath nos 110007 and 110008 to restricted byway and
adding a new section of a restricted byway in the parish of Castle
Carrock and Geltsdale and the upgrading of public footpath no
112007 to restricted byway in the parish of Carlatton and Cumrew as
shown on the map at Appendix 1. 
 

Reasons for the decision

In determining these applications our role is
to consider whether or not the available relevant evidence
(including any evidence submitted by objectors) supports the claim
made to add a restricted byway in the application and whether it is
at least reasonable to allege that the right of way subsists.
Modifications require us to look back to discover what has happened
in the past, establish the facts and apply the relevant legal tests
to decide whether or not a right of way exists, and to what status.
All the relevant available evidence must be considered before
making a decision. Only the facts can be considered and whether the
legal grounds for an order are met. The evidence must be considered
in isolation to all other factors such as local history,
desirability or otherwise, personalities involved, Council policy,
and whether it provides new opportunities for users or creates
difficulties for landowners (or ourselves) and so on.
 
The Council’s determination on the
documentary evidence is summarised as follows.  All Points referred to are as shown on the map at
Appendix 1:-
  

·      
Christopher and John Greenwood’s map of Cumberland –
the applicant states that “Most of the route is shown in
the manner of a cross road not a Footpath”. 
 
This map shows the sections of path subject to
the application with the exception of that passing through Nixon
Head, denoted C-D. 
 
The description of a crossroad has generally
been held to mean a public bridle or carriage road. However, the
recording of a way as a crossroad on a map or other document may
not be proof that the way was a public highway or enjoyed a
particular status at that time. It may only be an indication of
what the author believed (or, where the contents had been copied
from elsewhere that he accepted what the previous author
believed).   This interpretation
was cited in the planning inspector’s decision in the recent
Hayton Woods case ref ROW/3296708.
 
The parish council’s submission (see
Appendix 4) also includes a copy of an 1830 Greenwoods map which
“shows only an eastern, fellside route (“cross
road”) but no road to Nixon Head or Roughet Hill and no road
of any sort between Brackenthwaite and Roughet
Hill.”  These missing sections are
denoted as C-D and D-E-F-G-H-I-J
 

·      
Extract from Bacon’s map of Cumberland c1890s – the
applicant states that “Part of the route is shown in the
manner as surrounding roads (no key)”.
 
The quality of cartography in comparison with
other contemporary maps is extremely poor with numerous
questionable inclusions and omissions. 
Coupled with the low resolution of the extract submitted as
evidence, it is very difficult to discern which sections of the
claimed route are depicted.  And without
a key, it is not clear what the map seeks to represent.
 
Regardless, the claimed route is incomplete
with only one side of the southern loop depicted, and it is
difficult to discern which side that might be.  Additionally, northwards of point B looks to
differ from the claimed route with the map showing a more
north-south alignment, indicating that the terminus is at Garth
Foot and not Garth Head (point A).
 
 

·      
Extract from Bell’s road map of Cumberland 1892 – the
applicant states that “Route is shown as a District Road
as indicated in the Title.  The map is
produced by the County Surveyor and
Bridgemaster”. 
 
This map does not show section A-B or C-L-J
but supports section B-C, C-D, D-G (as stated above this is a UCR)
and G-J.
 
George Joseph Bell was County Surveyor and
Bridgemaster of Cumberland and in 1892 a road map prepared by him
was published showing the main roads in different colours and the
district roads in black also the position of county bridges.
 
Bell’s 1892 map is often cited as
evidence of the existence and status of roads; it being presumed
that district roads were public roads and so their depiction on the
map is evidence of public rights of way over such
roads.  However, the use of the term
‘district road’ was to indicate which roads were not
his responsibility.  He was responsible
for the maintenance of main roads and bridges and was not concerned
whether district roads had public or private rights over
them.  Again, this interpretation was
cited in the planning inspector’s decision in the recent
Hayton Woods case ref ROW/3296708.
 

·      
Extract from Ordnance Survey First Edition 25 inch maps and Book of
 Reference – The applicant states
that “Route is clearly shown as a double pecked
line.  From N end the route successively
passes Old quarries, a Mill Dam and 4 Lime Kilns, suggesting that
wheeled vehicles and horses used the route.  The route has several benchmarks and many spot
heights”.  “The route is
labelled just N of Tottergill Farm as Occupation Road 407
(p47)”.
 
This map depicts the whole route subject to
the application by closely spaced parallel lines, either solid or
pecked.  This is standard cartograpic
symbology (still in use today) and merely indicates how the route
was bounded at the time of survey ie whether fenced, hedged, walled
or open to the side(s).
 
The purpose of Ordnance Survey maps is to
depict the physical features present on the ground, and benchmarks
and spot heights are surveying tools/markers. Whilst the majority
are located along, or close to, routes with public access, their
presence does not indicate or confirm any specific legal
status.  On this particular map,
benchmarks and spot heights are denoted sporadically along some of
the claimed route, however they are not present on sections A-B or
C-L-J.
 
The first edition 25” to 1 mile maps
were accompanied by a Book of Reference. This book listed all the
plot numbers referenced on the map, with a description of their use
at the time of the survey. In this case, plot 407 refers to a short
section of 150 metres in length immediately to the east of
Tottergill Farm which is listed as ‘occupation road’
but this is not evidence of public or private rights.  No other section of the claimed route has a
distinct plot number indicated on either map or Book of
Reference.
 
More often than not an occupation road was
purely for the use of the landowners that had fields alongside
it.  You will note that plot 388 is
listed as “public road (parish)”, thus illustrating a
distinct difference between public and occupational (private)
usage.
 
The reference to quarries, Mill Dam and Lime
Kilns merely denotes physical features present on the ground, and
again does not imply public use by wheeled vehicles. Each farm
along the fellside would have its own lime kilns for their own
private use and as laid out in the Inclosure Award (see below),
access to the quarry was limited to those detailed in the award
only and not to the general public.
 
The Mill Dam created a store of water to
supply the private water mill at Tottergill Farm via the mill race
indicated on the map.  Again, it’s
inclusion represents a distinctive physical feature, and does not
indicate public access rights by any means.
         

·      
Extract from Ordnance Survey 2nd Edition 25 inch – the
applicant states “See comments for First
Edition.  Also, near Roughet Hill Farm
the route passes 2 Footpaths which are much narrower and labelled
F.P., suggesting that this route was not a Footpath”.
 
Once again, this map does not include sections
A-B or C-L-J as shown on the map at Appendix 1 and it could be
argued that as the routes subject to the application were not
labelled, they did not hold any public status, and simply depict
the physical presence of a track.
 

·      
Extract from Ordnance Survey 1 inch revised new series 1892-1908
– the applicant states “Route is shown as an
Unmetalled Road, clearly not in the manner of a
Footpath”
         
Again, this map does not show sections A-B or
C-L-J and is merely identifying a track, and its surface treatment,
that is physically present on the ground.  This map also shows a similar unmetalled road
through Tottergill which does not form part of the claim.
 

·      
Copy of a Manorial Map 19th C SPC19/39 – the applicant states
“the route from Garth Head to Brackenthwaite is shown as a
double pecked line in the same manner as nearby
Bridleways”.
 
Manorial Maps were produced for various
reasons at the behest of the lords and ladies of the manor and were
kept with their private documents. Such maps may have been drawn up
to illustrate a specific aspect of the manor, and without knowing
what this particular map was intended to depict, the suggestion
that it denotes any public right(s) is questionable.
 
The applicant refers to “nearby
bridleways” although none are shown on the map extract
submitted, as such this assertion cannot be substantiated by
comparison. 
 

·      
Copy of sales documents DMBS/3/7 and DBS/6/1/89 – the
applicant states that “There are 2 sets of Sales documents
for Roughet Hill Estate from 1792 and 1872.  Both shown this part of the route as a double
pecked line and it is described as a ‘Road’ in both
Keys, suggesting it was more substantial than a
Footpath”.
 
Whilst two distinct sales documents are
mentioned only one map was submitted, and without the document that
accompanies the map, its context cannot be substantiated.
 
Regardless, the map only refers to the section
from Point G southwards to the edge of the landholding for Roughet
Hill (approximately 190 metres) and does not provide proof of any
public rights. 
 

·      
Extracts from Castle Carrock Inclosure Award and plan 805
CA/C/3/220 – the applicant states that “A
“Publick Freestone Quarry” is shown on the route near
the N end, which must have needed access by horse and wheeled
vehicles”. “On P12 of the Award this route I described:
“there be one other Occupation Road twenty seven feet wide
exclusive of ditches leading from the last mentioned road and
extending from thence to a place called Brackenthwaite” (from
M to 2 on the Plan).  On P48 of the
Award there is mentioned a “Public Watering place for cattle
and all other purposes for the use of the proprietors of allotments
at Brackenthwaite at a certain place called Spout Well marked
2.0”.  This suggests that the
route is higher status than Footpath”.
         
The Inclosure Award identifies the east
section of the application route (Points A-B-C-J-K-L) from Garth
Head to Brackenthwaite as an “occupation
road”.  The usual definition for
such a feature is being for the benefit of the occupiers of
adjoining properties and not the general public.
 
There is no road shown on the western section
of the application route (D-J) between Roughet Hill and
Brackenthwaite.
 
Whilst the word “publick” is used,
only the category of persons identified in the text were awarded
use of the quarry and roads leading to it rather than the public at
large.  In this case the Lord or
Lord’s Lady or Ladies of the Manor and Barony.
 
A representative of the parish council visited
the Council’s archives to view the Inclosure
Award.  The evidence submitted by the
parish council (see Appendix 4) goes into detail about the specific
wording of the award, and the distinctions between the widths of
“public carriage roads” and “occupation
road” as well as the references to “public watering
places” and “publick freestone quarries” and
summarises as follows:-
 
“The enclosure award of 1805 cleared the
decks and set out public and private rights of way over the
enclosed land.  It seems clear to the
parish council that the access down the fellside from Garth Head to
Brackenthwaite was a private road with access only for those living
by it and visitors, personal and trade (the enclosure award
describes it as an “occupation road”; its width as
required by the enclosure award, as against that required by the
award for a public road; description in the award.”
 
The Council agrees with this summary.
 

·      
The physical appearance and location of the route - the applicant
states that “the route is wide, largely well surfaced and
often raised or sunken relative to the surrounding ground; All
gateways are wide and most have sandstone stoops indicating that a
wide gate was fitted; These features suggest that the route was
used for wheeled vehicles”.
 
The physical state of the route was assessed
during the survey for this claim, and thus can only serve as a
snapshot of the present physical state. 
In general, the sections where the width is clearly defined on the
ground (see section 2.3 above) is generally 2.4 metres
wide.  The short asphalt surfaced
section of existing public highway (D-G) is slightly wider at
approx. 3 metres wide.  All of which
would suggest use could have been by horse or wheeled traffic, but
not whether that use was specifically public or private.
 
As described previously the claimed route is a
mix of path surfaces ranging from very good asphalt (approx. 8% by
length), old stone surface (approx. 7%), modern stone surface
(approx. 19%) good grass/natural (approx. 55%), through to poor,
wet and indistinct natural surface (approx.10%). As stated by the
applicant, much of the route is raised, sunken, as well as benched
relative to the surrounding land but this would be common practice
to construct a useable route by minimising gradients and crossfalls
where possible and necessary.  Again, it
suggests construction for horse or wheeled traffic, but not whether
that purpose was specifically public or private.
 
The survey found that the route is gated
throughout, with a few having additional pedestrian access provided
to the side. Of the 19 gates recorded during the survey only one
might be considered as historically original in that both stone
stoops are in place, defining a clear width gap of 2.2
metres. 
 
There are three other gates with only one
stone stoop presently in place, thus creating clear widths of 2,
2.7 and 3.0 metres.  On the assumption
that they may originally had a counterpart stone stoop of similar
dimensions then the available widths would have been substantially
narrower, say approximately 1.6, 2.3, and 2.6 metres respectively.
However, this assumes that the stoops have simply been removed and
the gap between the walls remains unchanged.  All the wall ends exhibit signs of being rebuilt
near the gateway, so it is equally conceivable that the stoops were
removed to create the wider openings present today.
 
Another ‘gateway’ exists as an
open gap in a stone wall with two very old wooden posts defining a
narrow gap of approximately 1.3 metres. 
All other gates on the route are either located in drystone walls,
with either ‘modern’ wooden posts, or are within fence
lines.
 
Due to obvious changes and improvements over
time to better serve the land managers’ needs, the present
boundary crossings cannot offer indisputable evidence as to the
width of the gateways at the time of the submitted historical
evidence.  As such, the claimant’s
assertion that, “All gateways are wide and most have
sandstone stoops indicating that a wide gate was fitted; These
features suggest that the route was used for wheeled
vehicles” is an incorrect assumption founded on present
observation and not any provable historical fact.
 
In summary, the documents submitted as
evidence, when compared, are contradictory and the clear
inconsistency of mapping between the Bacon, Bell and Greenwood maps
fails to demonstrate that all of the claimed route may have been in
regular use by the public.  This is
especially so considering the relatively short time span between
publication of the oldest and most recent of the three maps.
 
The more detailed OS maps serve to record the
landscape in far greater detail than the above, and very much of
that fabric such as roads, tracks, field boundaries and buildings
are still present and viewable today. 
However, these maps only recorded the physical presence and offer
no distinction between public and private usage, and what level of
usage there might have been.
 
Other maps submitted, such as those for sale
and manorial purposes, were created for specific reasons and
without any supporting evidence being provided for what their
purpose may have been, any assertion that they demonstrate a public
use merely by their inclusions can be dismissed as conjecture.
 
Finally, the assertion that the present
surfacing and boundary crossings suggest that the route was used by
wheeled traffic, whilst no doubt historically correct, is based on
recent observations.  Most
infrastructure exhibits sign of improvement over time which mostly
reflects changes deemed necessary by contemporary management
requirements, such as widening (or narrowing) gates and changes in
surface, which is especially true on a working
landscape.  Again, the mere presence of
a surface or a gate does not in itself denote public usage, be it
historical or more recent. 
         
As this decision is concerned with a possible
unrecorded vehicular route, it is necessary to have regard to the
provisions of Section 67 of the Natural Environment and Rural
Communities Act 2006 (2006 Act) which extinguished public rights of
way for mechanically propelled vehicles, subject to certain
exceptions.  None of the exceptions
apply here.  Therefore, if any rights
for mechanically propelled vehicles had been established along the
application route, then they would have been extinguished as a
result of the 2006 Act.
 
Therefore, considering the evidence submitted
and that produced by the objectors, the Council is of the opinion
that the documentary evidence that has been presented does not
establish that a public restricted byway is reasonably alleged to
subsist between points E-F nor does it show that on the balance of
probabilities that the sections of public footpath 110007, 110008
and 112007 as shown A-B-C-D-E, F-G-H-I, C-L-K and I-J-K should be
upgraded to a restricted byway (as shown on the plan at Appendix
1).
 

Alternative options considered

The options considered are:-
 
a.       Not to make the
Order, or
b.       To make the Order as
requested.
 
The Council has a duty to investigate an
application, to consider all relevant evidence available to it, and
then to reach a conclusion.  It must,
therefore, evaluate the application. 
All the evidence must be weighed in the balance and any relevant
legal principles applied to it.
 
Given the evidence that has been submitted,
the Council has reached the conclusion as discussed above in
paragraph 3.6 of this report and has recommended that the
Definitive Map (DM) and Statement is not modified in accordance
with the application and the order is not made.