REGULATORY BOARD COMMONS AND RIGHTS OF WAY PANEL 18 SEPTEMBER 2003

AGENDA ITEM: 6 APPLICATION FOR A MODIFICATION ORDER FOR AN ADDITIONAL LENGTH

OF BRIDLEWAY BETWEEN BRIMSCOOMBE WOOD AND SCRUBBETT'S LANE, SOUTH OF CONYGRE WOOD, NEWINGTON BAGPATH

PARISHES OF KINGSCOTE AND OZLEWORTH

JOINT REPORT OF THE EXECUTIVE DIRECTOR: ENVIRONMENT AND THE HEAD OF LEGAL AND DEMOCRATIC SERVICES

1. PURPOSE OF REPORT

To consider the following application: Nature of Application: Additional bridleway Parishes: Kingscote and Ozleworth Name of Applicants: Ben Harford and John Huntley Date of Application: 7 May 2002

2. RECOMMENDATION

That a Modification Order be made to add the length of claimed bridleway to the Definitive Map.

3. RESOURCE IMPLICATIONS

Average staff cost in taking an application to the Panel- £2,000. Cost of advertising Order in the local press, which has to be done twice, varies between £75 - £300 per notice. In addition, the County Council is responsible for meeting the costs of any Public Inquiry associated with the application. If the application were successful, the path would become maintainable at the public expense.

4. SUSTAINABILITY IMPLICATIONS

No sustainability implications have been identified.

5. STATUTORY AUTHORITY

Section 53 of the Wildlife. and Countryside Act 1981 imposes a duty on the County Council, as surveying authority, to keep the Definitive Map and Statement under continuous review and to modify it in consequence of the occurrence of an `event' specified in sub section [3]. Any person may make an application to the authority

for a Definitive Map Modification Order on the occurrence of an `event' under section 53 [3] [b] or [c]. The County Council is obliged to determine any such application that satisfies the required submission criteria in accordance with schedule 14 of the Act.

6. DEPARTMENTAL CONTACT

Mr Andrew Houldey, Highway Records Section, Network Improvement Unit, Environment Department. Telephone Gloucester (01452) 425522 E-mail: ahouldey@gloucestershire.gov.uk Janet Smith, Senior Lawyer, County Legal Services. Telephone Gloucester (01452) 425095 E-mail: Janet.Smith@gloucestershire.gov.uk

REPORT 7. DESCRIPTION OF PATH 7.1 A location map is attached (numbered. 6..A) showing the position of the claimed

path at Newington Bagpath. The hamlet of Newington Bagpath is approximately 3 miles east of the town of Wotton under Edge, and lies within the parish of Kingscote. The claimed footpath runs from the County Highway 51455 known as Scrubbett's Lane in a generally westerly direction to connect with bridleway NKS 31. The path lies mostly within the parish of Kingscote but partially within the parish of Ozleworth. Newington Bagpath was a separate parish until 1935 when it was added to Kingscote parish. The area of interest lies within Ordnance Survey Grid Square ST 8093.

7.2 A large scale map of the Conygre Wood- Scrubbett's Lane area at 1: 2500 scale is

attached (numbered. (6.B). This map shows the claimed path by a solid black line from point A through points B, C and D to point E.

7.3 The claimed bridleway leaves road 51455 at point A at Ordnance Survey Grid

Reference ST 808933. At the time of inspection (17 May 2002), the path passed through a closed and padlocked metal field gate at point A. The path runs in a westerly direction between a stone wall on the north and a fenced off area of animal pens on the south for approximately 43 metres to a second gate at point B that gives access to this agricultural yard. The path then continues in a westerly direction for approximately 31 metres to another gate beside a small stone barn or stock shed at point C. The path then runs across open pasture land from point C to point D (a distance of approximately 300 metres) and then to a metal farm gate at point E (a distance of approximately 250 metres), where it joins with public bridleway NKS 31. Ordnance Survey maps and user evidence indicate that there had formerly been another gate at point D, where the claimed path crossed a field boundary depicted on the Ordnance Survey editions of 1923 and 1978. The total length of the claimed path is 640 metres.

7.4 Although the claimed path is marked on Ordnance Survey maps as a physical

feature, the line of the path is undefined on the ground, running over permanent

pasture land from the western end through to the agricultural building and old rickyard at ST 8076 9329. It is claimed by the applicants that a hard stone track exists under the surface, and this contention is supported by aerial photographs on which the claimed path appears to show as a physical feature. There is some evidence of slope grading at the western end of the claimed path between points D and E, although the landowners assert that this is part of a hunt jump. The claimed path is partially surfaced with stone and suitable for vehicular use from the barn and old rickyard at point C to the junction with Scrubbett's Lane at point A.

8. BACKGROUND 8.1 The whole length of the claimed path runs across property belonging to David and

Fionna Cardale of Lower Cranmore, Shipton Moyne, Gloucestershire. They purchased the land in 2000 from Mr Sage, the then owner of Scrubbett's Farm.

8.2 The land crossed by the claimed path was associated with Ozleworth Park from at

least the late eighteenth century until 1947. When the Ozleworth Estate was sold in 1947, the land was purchased by the sitting tenant of Scrubbett's Farm, Mr Sage. The Sages had been tenants since 1934.

8.3 The land seems to have been in agricultural use from the eighteenth century until

it was incorporated into the planned landscape of Ozleworth Park by Sir John Rolt around 1865. To the north of the claimed path public bridleway NOZ 2 /NKS 31 joins Scrubbett's Lane close to the property now known as Brock Hill House, but formerly as the Lodge. This building, initialled and dated "JR: 1865", was built as a new East Lodge for Ozleworth Park. At this time a new drive to Ozleworth Park was laid out, following the course of an existing track, which is now marked by the course of bridleway NOZ 2 / NKS 31.

8.4 Before 1849, Conygre Wood extended further to the south, over land now crossed

by the claimed path. According to map evidence the southern outline was reduced between 1849 and 1882, although the mature trees now lying outside the wood would, on the evidence of the 1882 Ordnance Survey map, seem to have been retained as a parkland feature. The claimed path may have come into existence as a physical feature during this period, perhaps as a secondary eastern approach to Ozleworth Park. It is also possible that the path originated as a farm track leading to the barn and rickyard that adjoin Scrubbetts Lane, allowing movement of hay, straw and animals to and from the barns on either side of Scrubbett's Lane to Bagpath Down. The claimed path is shown as a track on the 1902, 1920 and 1970s Ordnance Survey large scale maps.

8.5 The portion of land over which the claimed path runs has been subject to an

Environmentally Sensitive Area agreement with DEFRA as Improved Permanent Grassland since 1994. Before the farm was divided up and sold to different buyers in 2000, the land subject to the claim was permanent pasture used for suckling beef cattle and formerly for pig rearing.

8.6 An application was made to Cotswold District Council in May 2002 by the present

landowners, the Cardales, to build a country house, at a point between D and E,

roughly on the course of the claimed path. This application was made under Planning Policy Guidance Note 7- the Countryside, Environmental Quality and Social Development (1997) in which the Government published a set of criteria to encourage the creation of individual country houses in their own landscape setting. The application was refused as was a revised application in July 2003. A local public inquiry to hear the appeal against the first application is scheduled for January 2004. This application for a Palladian villa has been controversial locally and has led to public meetings and the setting up of a website opposing the proposal.

8.7 Although this planning application is not a factor that should be considered by

Panel Members, they should be aware of it as much reference is made to the application by both parties in their submissions concerning this path. In addition, the mistaken belief that claiming a public right of way across the site of the proposed country house would somehow delay or prevent the granting of planning permission seems to have been the original spur for this Modification Order application, details of which appeared on the Cotswolds Against the Country House Explosion website.

9. APPLICATION 9.1 On 1 May 2002 an application was made jointly by Mr Reuben Harford of Ashcroft

House, Kingscote and Mr John Huntley of Boxwell Court, Boxwell, Gloucestershire for a length of bridleway to added to the Definitive Map. This claimed path runs westerly from Scrubbett's Lane to connect with bridleway NOZ 2. Notice was served on the landowner affected by the application Mr David Cardale of Lower Cranmore, Shipton Moyne. The application was found not to be duly made as the claimed route was not marked on the map accompanying the application form. The forms were returned to the applicant for re-submission. The application was resubmitted correctly on 3 May 2002 and acknowledged by Highway Records on 7 May 2002.

9.2 A total of 18 public path evidence forms completed by 20 witnesses (two jointly by

husband and wife) were submitted by the applicant in support of the application. A summary of these public path evidence forms is attached (numbered .(6..C) Three further public path evidence forms were submitted on 20 April 2003. In the meantime, Rowland Blackwell, one of the original witnesses withdrew his evidence on 31 March 2003 stating "in a previous letter I confused the proposed footpath with the existing [bridleway] NKS 31 ". His comments should be disregarded.

9.3 Following the receipt of notice of application for a Modification Order on 1 May

2002, the gates at either end of the claimed path were padlocked by the landowner within two days. Subsequent to this action by the landowner, the gate closest to Scrubbett's Lane (point A) was taken off its hinges, bent and thrown to the ground by some person unknown. The combination locks on the gates at points B and D were also superglued.

9.4 Signs were subsequently erected by the landowners at the western and eastern

end of the claimed path. The sign at the western end of the claimed path, where

it joins bridleway NKS 31, was subsequently removed by persons unknown. The sign at the eastern end of the claimed path was still extant at the time of a site visit on 17 May 2002. The wording was: PRIVATE PROPERTY Following the recent outbreak of vandalism these gates will remain locked for security and stock-handling purposes No public right of way This latter sign was still in place at a subsequent site visit on 24 February 2003 but had been removed by 20 August 2003 when a further visit was made.

10. CASE ON BEHALF OF THE LANDOWNER 10.1 General Comments Mr and Mrs Cardale responded by letter dated 4 th March 2003: Further to your letter of 22nd November 2002, please find enclosed herewith our comments on the Applicants' evidence in respect of the above claim. I note that in your correspondence you state that the proposed path is in the parish of Ozleworth as well as Kingscote and runs between Brimscoombe Wood and Scrubbetts Lane [Officer's Note- this is not correct- the path passes through Ozleworth Parish for a distance of some 30 metres south of Conygre Wood]. This appears to be the source of some confusion since the description given matches the exact route of an existing path (NOZ14/NKS31). The claimed path runs from Scrubbetts Lane to join NKS 31 on Bagpath Down. I trust that this clarifies the position. As discussed with you, we believe the claim to be malicious and entirely without foundation, having been brought in an attempt to frustrate or halt a development application. There is no evidence of any intention by the landowner to dedicate a Public Right of Way at any time over the last 20 years. As requested, we have examined the evidence forms supplied by you and our comments on the forms are attached hereto. In addition we have spent many hours researching the claim at the County Archives, and have extensively examined map records and Parish Council meeting minutes in an attempt to verify the position. It is clear from this research that there has never been any public right of access immediately south of Conygre Wood as has been suggested. The `track' shown on the OS map (to which the applicants refer), does not in fact exist any longer. Historic evidence suggests it was a track made by moving livestock from the barns adjacent to Scrubbetts Lane across to higher grazing pastures on Bagpath Down to the north of Conygre Wood, and used to transport hay and straw from those fields to the Rick Yard by Scrubbetts Lane. A farm track is not the same as a public path. You should note that the OS maps show there are many similar tracks dotted across the Ozleworth Valley, which are equally not designated PROW. Similar examples can be found around Boxwell Farm to the west and to the south east , and all around Boxwell Court. Further examples can be seen from Scrubbetts Farm (new buildings)

to Hirecoombe Wood; from Lasborough Manor to Lasborough Park; to the south east of Ashcroft House; and east of Sawcombe Farm. Public paths in this area are well documented and well signposted. The area is very well served for PROW: with a bridlepath across Bagpath Down immediately to the north of Conygre Wood, a footpath leading from Bagpath to Ozleworth along the bottom of Marlees Brook; joining up with the bridlepaths around Ozleworth and linking back up to the Bagpath Down bridlepath. In addition there are two separate footpaths along Ozleworth Bottom to Lasborough, and, of course, the Monarch's Way on the opposite side of the valley. The village of Bagpath is dissected by footpaths. Eleven of the applicants claim to walk the proposed path as part of a circular route from Boxwell to Ozleworth, Bagpath to Ozleworth or from Kingscote to Kingscote via Ozleworth. We have examined these `routes' against the topography of the land and the availability of public paths, and it is clear that none of the routes is logical given the topography, or selected destination. There is a clear suggestion of acting in concert about these statements We believe this claim has been devised specifically as a spoiling tactic in an attempt to delay or postpone the planning approval process. Mr Harford petitioned the case officer at Cotswold District Council repeatedly to defer the application until after the bridlepath claim had been resolved. He was not successful. We have submitted 11 forms of evidence, which clearly rebut the fallacious claim that there has always been a PROW south of Conygre Wood. The evidence is from those who have had legitimate reason to access this area, and from those who know the area well, and have done so for many years. It is worth noting that the previous owners who have farmed the land for nearly 70 years do not believe there to be any PROW other than those on the Definitive Map, and have given legal undertakings to that effect. There is no evidence of any intention on their part to dedicate a PROW across the land in question. The evidence has been obtained despite the following not inconsiderable handicaps: (i) the land is remote and not well known. Walkers tend to stick to the public paths

which surround the area (ii) personal intimidation from the campaigners against our proposals, who are

influential in the area. In many instances when we have approached people who have worked on the land, we have found that although they do not believe there to be any right of access across the land (other than the existing Bridlepath) they are unwilling to commit this to paper for fear of the personal repercussions.

This claim should be dismissed in full for the following reasons: (i) After extensive research at Glos Archives and Highway Records, we can find

nothing to justify the claim that there was any historic basis or justification for the proposed path.

(ii) In the light of Parish Council records, and the history of the definitive map discussions in the area, and in view of the involvement during that period of

certain key figures in the current application, there is nothing to justify the proposed claim

(iii) The quality of the evidence is very poor and circumstantial. There is no physical evidence of a PROW. Most of the claimants are unwilling to give evidence at a court hearing. None of the evidence is impartial or unconnected. Despite an extended timetable, very high levels of publicity and leaflets being available on surrounding walks no independent person came forward to claim the path. All those who claim the path are objectors to our planning proposals.

(iv) Of the 18 forms submitted only 7 satisfy the time requirements, of which 3 are spouses, 2 have permissory rights, and 2 roam to collect wild flowers and mushrooms.

(v) Evidence from the two Applicants is very poor and unsatisfactory. By definition both describe an activity (gathering wild flowers and mushrooms) which requires permission and is evidence that either they were walking on a permissory or assumed permissory basis.

(vi) There is no evidence of any intention on the part of the previous owners to create a PROW

(vii) The claim has been initiated in poor faith in response to a planning proposal We would reiterate that the claim is malicious and entirely without foundation, and should be dismissed accordingly. This sort of action is irresponsible resulting in a waste of scarce public resources and money, which would be far better used elsewhere. I understand that both the Ramblers' Association and the British Horse Society have indicated that although they have no knowledge of any existing path, they would support an application for a new path. This is not an application for a new path but an application for a claimed path, which is not the same thing. The absence of knowledge of existence of the path is very important. 10.2 Evidence to Rebut Claim A. General issues 1. There has been no 'challenge'. On which date was the public's right (if indeed there

is one) brought into question? 2. The 'track' shown on the OS map is not evident on the ground 3. No hoof prints or cycle tracks are evident along the route B. Quality of evidence submitted: 4. The quality of the proposers' supporting evidence is very poor although numerous.

The same basic errors occur again and again in the evidence. None of the claimants are unconnected. Three of them are only resident in the area at weekends.

5. Few of the claimants are prepared to testify in court: five have positively indicated they will not give evidence, and most leave the space blank deliberately

6. Five of the 18 claimants have not stated use of the track continuously for a period

of 20 years 7. Of the evidence submitted it is worth noting that 7 of the 18 (Harford, Huntley,

Lees, Blackwell, and Vernon) are known to be good friends, and have lived in the area for many years. All are opposed to the proposed development

C. No intention to create a public right of way 8. There has been no intention by the previous landowner (who has farmed there for

over 60 years) to create any bridle or footpaths other than those agreed on the definitive map. Nothing has been done to facilitate public access. Gates have always been in place at either end of the claimed track, and have usually been closed.

9. Scrubbetts Farm, although once a part of the Ozleworth Estate, has always been

let as a separate farm entity since the 17th century. Indeed the previous owners (Frank Sage and family) were tenant farmers and acquired the farm from the Ozleworth Estate in 1947 when the whole estate was offered for sale.

10. As a farmer, the previous owner would have noticed any regular walkers. The

original farmhouse was based at Scrubbetts Farm adjacent to the exit of the proposed path onto Scrubbetts Lane

11. In the Contract of Sale and particulars dated March 2000 the previous owners, Mr

Martin Sage and Mr Tim Sage, specifically deny knowledge and existence of any PROW other than those shown on the Definitive Map.

12. The Sage family lived and farmed at Scrubbetts for 60 years so many of their

friends and neighbours (including Huntleys, Harfords, Vernons etc,) may have walked freely across the farmlands on a permissory basis. Specific permissions to walk may have been granted, but none survived their ownership

13. The farm is subject to an Environmentally Sensitive Area (ESA) agreement. The

previous owners entered into the ESA agreement in 1994. Footpaths /PROW are specifically excluded from acreage calculated eligible for the scheme. The ESA map for the agreement shows only the bridlepath to the north of Conygre Wood (the `Old Carriageway', NKS 31/NOZ 2). This is clear evidence of the landowner's absence of intention to dedicate a PROW.

14.There is a cross-country jump interrupting the line of the supposed bridleway

(80429324). This jump has been there for many years, and would have been reported as an obstruction if the track had been a PROW. It is also clear evidence of a lack of intention on the part of the landowner to dedicate a PROW.

15. The present landowners have lodged a statutory declaration and deposition.

D. Definitive Map 16. In December 2001, five months before the present claim was lodged the present

owners sought and received from Gloucestershire County Council Highways Records confirmation of the existence of all PROW. No PROW is shown south of Conygre Wood as is presently claimed.

17. The Definitive Map shows no public right of way across the land other than

NKS31/NOZ2 18. The Definitive Map was finalised in 1974 after 24 years of extensive local

consultation. The Kingscote Parish Council has no evidence supporting a bridlepath in this location.

19. Of the 14 households involved in this claim, 7 are resident in the parish or are

neighbours and were resident at the time of the Definitive Map consultation period. A number of the applicants and their families were involved closely with the Parish Council during the relevant period. It is unlikely they would not have been aware of the discussions concerning the identification of PROW

20. Four of the applicants are farmers and would have been closely involved in

negotiations concerning the definitive map, as all their farms are affected by Public Rights of Way. It is inconceivable that they would not have noticed the exclusion of a `favourite walk' either at the time, or subsequently.

E. Parish Council Records 21.There is no Parish Council evidence to support the application. A detailed study of

the Parish Council minutes from 1950 to 2002 has been undertaken and extracts from those minutes are attached hereto, (see enclosure .6E).

22. From 1950 to 1956 Public Rights of Way were discussed and debated at every

Parish Council meeting (totalling 17 meetings) and there is no reference to a right of way along the proposed route.

23. Parish minutes show clearly that Kingscote Parish Council took its responsibilities

very seriously. The Parish Council appointed not one but three people to check and certify the public rights of way. The diligence with which the task was undertaken was remarkable. The Chairman even volunteered to obtain evidence from the older members of the Parish concerning public rights of way at the request of the District Council.

24. The Parish Council was not complacent about the public rights of way, and was

instrumental in reopening rights of way threatened with closure by local landowners. There were five instances minuted of disputes over rights of way between 1951 and 1974. Between 1950 and 1983 there are 37 minutes concerned with PROW

25. The Parish Council was also in contact with the Ramblers' Association during the

period of finalising the Draft Map. Parish Minutes show that the Ramblers

Association was `very interested' in the Rights of Way around Kingscote and Bagpath. The Ramblers' Association would have sought inclusion of the proposed path on the Draft Map had it been a Right of Way.

26. Parish Council records show that the signposting was the subject of considerable

debate at Parish Council meetings for many years. The absence of any signposting here is clear evidence that the claimed path was never a public one.

27. In addition, Parish council minutes clearly show that historically all obstructions to

PROW were reported and acted upon. F. Historical Evidence 28. No path or track is shown on the 1839 Ozleworth tithe map (item (B)). That map

clearly shows the entrance area at Scrubbetts Lane named Rick Yard. Historically this was the area where bales and silage were stored from hay/straw taken off the Yardway and Bagpath Down fields. This area provided relatively sheltered storage.

29. The 1849 map of the estate from sales particulars (item (C)), shows no track or

path across the land. (The bridlepath north of Conygre Wood across Bagpath Down had not been established at this date either.)

30. Map evidence shows no public footpath, although it indicates a track used for

livestock by the farmer. In 1881 the Ordnance Survey map shows the new drive (the `Old Carriageway') from Ozleworth to Scrubbetts Lane across Bagpath Down, and two tracks across Bradles/Further Yardway. These tracks go from the farmhouse to the well and from the li vestock barns above the farm across the Rick Yard to Bagpath Down (which was pasture) according to the 1838 tithe map. This route would have been used to drive livestock up to the pasture on Bagpath Down and Lower Yardway from the barns, and to bring hay/straw from those fields down to the Rick Yard. Its creation and use was entirely incidental to the farming activity.

31. The 1903 OS map and the sales particulars of 1918 show a further farm track from

Scrubbetts Farm to Scrubbetts Barns and the gate to Rick Yard, confirming the use by the farmer. Public access to the farm would have been by the farm drive branching off Scrubbetts Lane. Since 1947 the farm has been in the continuous ownership of the Sage family who used to live in the old farmhouse until 1984, when they moved to the new farmhouse on the Down. During that time there was no intention to create a PROW along the (now disused) farm track, and it was not in public use.

32. There is no historic evidence that the track was ever used as a footpath in the 19th

Century. The allegation by Mr Harford that there may have been a 19th Century Footpath is clearly fallacious. There is no evidence in the Gloucestershire County Archives (maps or Parish Council records) to support such a claim.

33. Historically footpaths tended to arise as part of a route to and from a place of

worship or work. This track does neither.

34. All Public Rights of Way are well signposted in this area. A lack of signposting should have alerted the walkers, if any, to the status of the land being crossed.

35. The footpath claim has been advertised on the objectors' website, and on all

footpaths locally by means of flyers together with claim forms. Despite such extensive publicity, no-one unconnected with the objectors has come forward to substantiate the claim

G. Evidence to rebut claim 36. There is no physical evidence of people walking or riding along the track. 37. This is a remote site. It is not on a route to or from a place of work or worship, and

would not therefore be subject to many passing visitors. No-one who has had a legitimate reason to be on the land has seen walkers or riders on the land other than on the listed Bridlepath.

38. For continuous periods over the past two years (since April 2000) foresters,

woodmen, drystone wallers, fencing contractors, and archaeologists have been working on the land intermittently, and none of then have seen any walkers or riders (other than the Hunt) across the proposed route.

39. The gamekeeper from Ozleworth Estate who regularly feeds and tends the

pheasants and partridge in Conygre Wood has no recollection of seeing walkers or riders (other than the Hunt) travelling across the proposed route.

40. The land is presently used for sheep farming. The shepherds and farmer who tend

the flock and have a daily presence on the land have not seen walkers or riders using the proposed route.

41. We have evidence from people who worked, live and who used to live in the area,

who rode and walked regularly through this area, that there was never a public bridlepath over the land, other than that shown on the Definitive Map. They are prepared to give evidence in court to this effect.

42. None of our immediate neighbours claim that the PROW exists. (although some

are objecting to our application). Two of the neighbours live within less than 300 yards of the entrance to the claimed PROW and have lived there for many years.

43. The previous owners (the Sage family) lived and worked as farmers there

continuously since 1934. They were meticulous in maintaining public rights of way. In all that time there has only been one query concerning a right of way. In 1974 Mr Sage approached the Parish Council to clarify whether a claim across his land could be verified (the Sages do not appear to have been members of the Parish Council at that time). The claim was found to be without foundation.

44. All footpaths across the farm are clearly marked and well maintained

45. The Sages entered the farm into ESA agreements with DEFRA in 1994. All PROW are specifically excluded from grant subsidy and are excluded from the agreements. Land subject to exclusion is shown clearly marked on maps provided by DEFRA to the farmer. [A current copy of the ESA map was supplied to Highway Records]

46. Any use by the residents of the local area of the alleged path would have been of

a permissive nature, and would have covered a right to roam across the farm generally rather than a set path, since the Sage family were amongst the oldest inhabitants of the village. Martin Sage has confirmed this.

47. At a meeting early in 2002 between the present landowner and the Chairman of

the local Ramblers Association, the possibility of introducing a new footpath was raised. The Chairman felt that the area was well served as it was and needed no additional paths.

H. User Evidence 48. The quality of the proposers' supporting evidence is very poor although numerous.

The same basic errors occur again and again in the evidence. None of the claimants are unconnected. Three of them are only resident in the area at weekends.

49. Of the 18 forms submitted only 5 claim to have ridden over the land, one of whom

has done so with permission, the remainder claim to know it as a footpath, one claims to know it as a 'track'

50. Five of the claimants have positively indicated they will not give evidence and are

not prepared to testify in court. Most of the claimants have deliberately left the space blank.

51. Five of the claimants have not used the track continuously for a period of 20 years

or for a period long enough to qualify for a claim 52. There is clear evidence of complicity of evidence in reading the forms 53. The proposers claim they have used the footpath to gather wild flowers and

mushrooms. As every responsible rambler and walker knows the pub lic are prohibited from picking wild flowers. The Ramblers even have a well-known code 'take only photographs, leave only footprints.' To do otherwise is to trespass, and may give rise to criminal damage proceedings. The proposers' statement clearly shows that if they have actually walked the claimed path, it has been walked on a permissory basis, since the gathering of flowers and mushrooms requires one to wander at will over the fields. It would not be possible to gather flowers and mushrooms from this path. Further proof of this lies in the fact that the wild flowers are actually situated much further south (200m) than the proposed path on the banks of the lower grass rides and close to Mill Wood.

54. It is not possible to access this area on horseback without dismounting. In March

2000 the gates at either end of the alleged track were in poor condition and

required lifting to open. It would not be possible to do this whilst holding a horse. The gate adjoining the existing bridlepath was replaced in 2000. A new gate was put up in Summer 2000 between the road and the barn to facilitate stock handling. The remaining gates were not replaced or rehung, these are old gates which are heavy and do not swing open - they have to be carried open. This is in direct contrast to gates on the PROW across Bagpath Down, which can be opened whilst mounted.

55. The Parents of one of the Proposers (Ben Harford) served on the Kingscote Parish

Council throughout the consultation period, latterly as Chairman. 56. The Harfords and Mr Challis were in close proximity to Parish Council business at

the time the Definitive Map was being discussed and finalised (in their respective capacities as Chairmen). This fact, coupled with their claim to walk the track regularly and over the relevant period, renders it highly unlikely that the claimed path would have been omitted from the Map were it genuinely a public right of way.

57. Of the evidence submitted it is worth noting that 7 of the 18 (Harford, Huntley,

Lees, Blackwell, and Vernon) are known to be good friends, and have lived in the area for many years. All are opposed to the proposed development.

10.3 Comments on the Evidence Forms Submitted by the Claimants Mr Blackwell A neighbour of Mr & Mrs Lees at Barton End, who are very close friends of the Huntleys (path proposers). Mr Blackwell is well known to us, as our daughter rides at his daughter's riding school. Mr Blackwell farms at Barton End. He has a number of footpaths and bridleways going through his own farm and would have been well aware of the Definitive Map discussions. He is not prepared to give evidence in court. We believe that there may be some confusion on the part of Mr Blackwell as to the location of the Bridlepath, and would wish to confirm Mr Blackwell's evidence with him. [This was subsequently done and Mr Blackwell withdrew his evidence on 31 March 2003) Mr Carpenter Mr Carpenter lives next door to Mr Challis, and to a public footpath which goes from Bagpath down into Marlees Bottom, and Ozleworth. He is a vociferous objector to our proposals. Mr Carpenter states the path goes from Bagpath to the old Scrubbetts farmhouse. This is illogical since there is no footpath along the valley side. The footpath from Bagpath travels along the valley bottom to Ozleworth or up to Ashcroft.. The only route to the old Scrubbetts farmhouse is along the road, Scrubbets Lane. The claimed path does not provide linkage to anywhere which is not already served by the closer and easier to navigate Bridlepath NOZ 2/ NKS 31. Given he states the footpath system was a reason for buying his house it is surprising he did not check an OS map to ascertain if the paths were public or not,

particularly as he arrived in the area a few years before the Definitive Map was finalised, and had plenty of opportunity to include this claimed path at that time. Mr Challis Is well known to us. He has been actively and aggressively campaigning against our proposals, and has even masterminded a website on the issue. The bridlepath claim has been advertised by him on the website, but produced no response. He has also been responsible for putting the information on the Ramblers' Association website, which again has elicited no response. Mr Challis has lived in the area for many years. At the time of launching the international competition to design our house in 2001, David Cardale took Mike Challis to the site. At that time Mr Challis commented that although he had `lived in the area for over 20 years he had never been to that spot and indeed doubted whether anybody in the village had been there either..'. He now claims to have walked it 50 - 60 times a year! We have never seen him there. Mr Challis was Chairman of the Kingscote PC at the time of the debate on signposting public rights of way, and was an acti ve member of the Parish Council at the time the Definitive Maps were put in place. It is highly unlikely that this proposed footpath would have been omitted from the Map if it was genuinely walked 50 -60 times a year by Mr Challis, given his close involvement with the Parish Council. It is highly likely that if there had been a public footpath it would have been declared and signposted earlier in keeping with all footpaths and bridleways in the area. The failure to signpost it would have been noted by someone as vigilant and as close to the Parish Council as Mr Challis then was. Mr Challis' form is not countersigned. It is interesting to note that Mr Challis has deleted a reference to the track being on the same contour as his house and that he has walked the contour regularly for the last 30 years. Cursory examination of any OS map shows this is not possible on any public path. It is however an indication that he is in the habit of walking across open fields generally. I note that he would have to cross Yardway field by Brimscoombe Wood to achieve this, which is our land and not open to the public without permission either. Mrs Challis Married to Mr Challis, and is an objector to our proposals. She states that she has not known the path to be public. She used the fields (Bradles and Conygre Paddock) with our permission to graze and exercise her horses during the last two years. Paragraph 8(d) is therefore not correct. She gives no indication of the width of path used. 8 (c) is not correct. Mrs Challis was employed by Mr Cardale on a part time basis to look after our horses whilst out at grass She is not prepared to give evidence in court.

Mr Eeles A neighbour of Mr Harford. States he has walked the 'track width' 3(f). This is astonishing since there is no track visible. Paragraph 5 is not correct. The land has always been grazed. The gates would customarily be closed to keep cattle in (historically) and sheep (more recently). He is not prepared to give evidence in court. Mr Giddings Resident of Bagpath and objector to our proposals. Neighbour to Mr Challis. Paragraph 1: Mr Giddings states the path to be a 'track'. There is no evidence of this on the ground. Perhaps he is confusing this with the NKS 31 bridlepath? Mr Giddings does not know the path to be public (he has merely presumed -this is not the same as knowing) Given he claims to have walked it for 40 years, it is astonishing that no details of any gate locations are given. There are four gates on the proposed path. A brief glance at the contours and footpaths on the OS map will show that it is extremely unlikely that you would walk from Boxwell to Ozleworth via the proposed PROW. From Boxwell you would take the footpath below in Mill Wood which connects to Ozleworth Park directly. The Bridlepath is closer to the village and connects directly with the paths to Ozleworth for a `circuit' walk. A rambler from Boxwell would be more likely to use the wicket gate on Scrubbetts Lane to walk across to the west end of the bridlepath. He is not prepared to give evidence in court. Ben Harford Proposer of the bridlepath. Mr Harford has been a vigorous campaigner against our planning proposals, and is a close friend of the Huntleys. Form witnessed by John Paton. A landowner who has lived in the valley since 1947, (inheriting his house from his parents) and who was living in the parish at the time of the Definitive Map being drawn up and finalised. Both Mr Harford's parents sat on the Kingscote PC at the time of the Definitive Map discussions: his family were closely involved with these discussions. Parish Council minutes show that a blocked PROW across Mr Harford's own land was reopened as a consequence of the Definitive Map discussions and procedures. Given the fact that Mr Harford's mother was chairman of the Parish Council for many years and the family were actively involved in Parish Council business, it is inconceivable that the existence of the proposed path as a PROW would have been overlooked during the Definitive Map debate. His own land is littered with similar tracks to that shown across our land, none of which are PROW

The very nature of Mr Harford's claimed walks (collecting wild mushrooms and flowers) implies permissive use, since to achieve such an object you would have to roam freely over the land Paragraph 5 there are only three gates identified not four. Paragraph 9 the reference to a 19th cent public footpath is untrue. There is no evidence in Gloucestershire Records Office to substantiate this claim. Historic footpaths tended to arise as part of a route to and from a place of work or worship. This route does neither. Mr Harford has deliberately omitted to state whether he is willing to give evidence. John Huntley Proposer of path, and a vociferous objector to our planning application. Together with Mr Challis and Mr Harford a founder of a local lobby group (Cotswolds Against Country House Explosion) against our proposals. As a neighbouring farmer and landowner who was living in the area at the time the definitive map was drawn up he would have been closely involved in the process. Paragraph 9 is not true. There has never been a cottage on the site. Yardway Barn is in an adjacent field facing Ozleworth and not on the route of the proposed path. Access to the barn was through the gate in the middle of the hedge between Yardway and Further Yardway. The barn was a very large Cotswold stone threshing barn, demolished in the late 70's. His own land is littered with similar tracks to that shown across our land, none of which are Public Rights of Way. Mr Huntley claims to have walked gathering flowers and mushrooms. Such an activity is unlikely to be carried out without permission, since it involves not only roaming freely over the fields, but to do so without permission would clearly be trespass. Mrs Huntley Wife of the proposer, and vociferous campaigner and objector to our proposals. Claims to have walked path 10 times a year but states there are only two gates at Scrubbetts Lane end. (para 5). This is not true. There are three gates. Brian Holley Is a good friend of the Harfords who are proposing the new path. Form is witnessed by Harford, the proposer of the path. He has no knowledge of the path as public. His evidence should therefore be ignored. Use has not been for long enough to qualify, only eight years.

We understand from The Cotswold Voluntary Wardens, that they do not take guided tours across a path not marked as public on any map. Mr Holley's comment is clearly incorrect. Mr Holley (Para 5) has no knowledge of the four gates along the track despite claiming to walk it for the past 8 years, He has not signed a map identifying the area walked. Mr Holley is not prepared to testify at an inquiry. Elizabeth Holley Is a good friend of the Harfords who are proposing the new path. Form countersigned by Harford, proposer of the path. She has no knowledge of the path as public. Her evidence should therefore be dismissed. She has not signed a map identifying the area walked. Claims to have walked path only once in 2000. Use has not been for long enough to qualify. Like her husband she has no knowledge of the four gates (Paragraph 5), but is clear on the only occasion she has walked it that she walked a ten foot wide path! She is not prepared to testify in court. Mark Lee Close friend of the Huntleys who are proposing the path. Use has not been for long enough to qualify 3(a) `past few years' only. Form countersigned by Bridget Huntley whose husband is proposer of the footpath. Paragraph 5 is not correct there are four gates. Not prepared to testify in court Susan Lee Close friend of the Huntleys who are proposing the path. Use not long enough to qualify 'past few years' only para 3(a). Form countersigned by Georgina Harford, whose husband Ben Harford is proposing the claim. (See comments from Mr Blackwell above) Not prepared to testify in court Nicholas Monck. Objector to our planning proposals. Neighbour of Mr Harford. Mrs Monck is not a signatory to the form and should not therefore be included. He is the only person we have ever seen walking on our land (as opposed to the bridlepath above Conygre Wood, where we have seen many people). He was met

by Mr Cardale, who noted his name and gave him permission to continue to roam across the field until further notice. On that occasion we met Mr Monck walking across Further Yardway/Bradles but not along the track. Mr Monck told us he walks diagonally across the field to reach a small wicket gate, which adjoins Scrubbetts Lane in the south east corner of the property, to watch birds on the lake in Ozleworth Bottom. He informed us that he walks in the area habitually but in a general way not on public paths, with the consent of Ozleworth Estate John Paton Neighbour of Mr Challis, friend of Mr Harford, and objector to our plans. Use of path not long enough to qualify (less than 20 years). Form countersigned by proposer whose form he has in turn countersigned. William Plowden Is a vociferous objector to our proposals. A friend and walking partner of Mr Monck. Mr Plowden does not claim to have walked the 'track'. Mr Plowden states that he has walked a 'line across pasture' rather than a footpath/track. This does not qualify for the purposes of establishing a footpath. Walks with Monck (qv) across Lower Yardway and Bradles to lower wicket gate into Scrubbetts Lane. Habitually walks off/away from public paths in the area, particularly around Ozleworth Park, with permission from the Estate. Mr Plowden has specific permission from us to walk across these fields. Mrs Vernon An objector to our proposals. Has not used path for last 7 years. States it was known as bridlepath but only 3-4 feet wide was used. Bridlepaths are usually wider than that. Formerly resident in Kingscote and would have known of the definitive map discussions. Mr and Mrs Tomlinson Objectors to our proposals. We understand from our neighbours at Ozleworth that this couple object to everything as a point of principle. They were vociferous objectors recently to some necessary tree felling by the National Trust at Newark Park. Neither are prepared to give evidence in court. 10.4 Definitive Map Discussions

Discussions on the finalising of the Definitive Map (according to Parish Council minutes) were very protracted and apparently highly controversial, since a number of local landowners attempted to close and /or re-route public rights of way at that time, and considerable litigation was involved. The Parish Council were painstaking in their efforts to include all paths known, and the map reflects this. A team of four independent men was appointed to carry out this exercise. For the avoidance of doubt no-one from the Sage family (previous owners of the land across which the proposed path runs) was amongst the team, nor indeed were they members of the Parish Council at that time. In 1974 a claim for a footpath was made across the same land and dismissed, on the basis there had never been a public footpath there. Mr Challis was a member of the PC at that time and charged with confirming that fact to the landowner, Mr Sage. (qv Minutes of Kingscote Parish Council)

10.5 Evidence of Other Local Residents Name Address Occupation Period Use Comment A.E. Barnhill Farmer 30 years frequent Used to keep sheep on adjacent field Godsell Farm (Bagpath Down) for 20 years. No Ba ath knowledge of claimed path Col. Coombe Colonel, (retd) 1967- Exercising Member of Kingscote PC for many Bromley Cottage present horses . Also years. Lived at Kingscote Park. Gardner Chariton visited land Frequently rode in the area, knows frequently land well and knows it has never been with Berkeley open to the public and Beaufort Hounds Mrs N Brock Hill Investment 1995- Pleasure House adjoins Bridlepath. Not aware Curtin House, banker present walking of claimed PROW Stafford Bagpath A. Drewett The Flat, Contractor 2000-2002 Frequent Worked immediately adjacent to Leawood, (agricultural) work claimed path and was fencing part of Woodchester claimed path, but saw no evidence of footpath or use. S. Davis 15 Magdalen Shepherd Whenever Frequently- Tending sheep on land, on area of Rd, Tetbury sheep work proposed path resent M. Grove Farm, Venture 20 years Frequently Regular walker Newington Bagpath/ Cresswell- Tetbury, Capital Lasborough through Ozleworth Turner Glos Bottom up Scrubbetts Lane returning to church at Newington Bagpath. Has never known of claimed PROW or seen walkers/riders on the claimed path Mr J. Brockhill Banker 1995-2003 Pleasure. Seen public on bridlepaths on Stafford House Lives on footpaths and on road only. No Bagpath adjacent land knowledge of PROW south of Con re Wood. P. Panton Fox Cottage Housewife 20 years Frequently - Has ridden regularly over the area and Leighterton rides in the knows it well: has never heard that area track was open to the public R.T. Gale Binley Farm, Farmer Daily Daily checks on sheep flock. No Kingscote knowledge of public on the land. Has farmed and lived locally for many ears C. Appelbe Riverside Housewife 36 years Daily Understood the track was private to Foxley exercising provide access for the farmer of horses until 1996 T. Boxall Bulk Farm, Gamekeeper Work- Tends pheasants in Conygre Wood, Ozleworth seasonal and in Mill Wood pens. Drives birds from off fields below Conygre Wood and above Brimscoombe Wood. Works immediately adjacent to claimed path.

10.6 Comments on Additional Evidence Forms The landowners make the following comments on the three additional public path evidence forms that were submitted by the applicants in May 2003: J Tomlinson This claimant's evidence is very poor quality, imprecise and vague. There are no details or dates given. There is no personal knowledge of the path as public. The claimant is not willing to appear at a public inquiry. This evidence should be disregarded.

Andrew Kerr This is further poor evidence. By his own admission the claimant has not walked the path since 1999, and has only ever walked it 3 times. How then I wonder did he come to hear about this claim unless prompted by others? Looking for butterflies will necessitate walking across fields generally, not walking along a path. This would not give right to a PROW. Geoffrey Blackwell It is curious that if the claimant had really known the path to be public for the last 45 years that he did not claim it before. It appears from the evidence that he has walked the path only in 1956, and it is astonishing that he can remember doing so given he cannot remember any gates, but knows where he walked and how wide the path was ...I can barely recall where I walked last month let alone 45 years ago on one occasion. The form is countersigned by the proposer. Curiously the date on the form and that on the map do not tally: the form is dated 18th May and the map 11th April. In the early 1950s, the rights of way provisions were as controversial and hotly debated as the current Right to Roam under CROW 2000. It is very odd therefore that this applicant did not seek to include his favoured path as a PROW in 1956 since draft maps were widely available and many such claims were made at this time. Again, poor quality, circumstantial evidence. In addition, the landowners make the following general comments: No challenge has been made to any of these persons at any point over the tenure of our ownership. There has been no intention on the part of the landowners to create a public path across this land. Gates to this area are habitually kept closed, both when livestock are grazing and when the fields are empty. The condition of the gates has been so poor for at least the last three to four years that had it been a PROW they would have been reported as being unusable, which they have not. 11. DOCUMENTARY EVIDENCE The County Archivist has examined sources in the Gloucestershire County Record Office, specifically tithe, inclosure, Ordnance Survey and Inland Revenue maps, to see if this path is marked in any way. He also identified other sources that might be useful in establishing the existence of a footpath along this route, or a diverted or modified route. These sources are then checked by the Rights of Way Officer. The documents examined were: Inclosure Award. Not known Tithe Map: (1) 1839 (GDR T1/127) and (2) 1838 (GDR T1/138) Area shown between these maps, (1) of Newington Bagpath (. .G) and (2) of Ozleworth. Claimed route not shown.

Ordnance Survey 25" to 1 mile, sheet numbers Glos 57.13 and 57.14 Route shown on 1886 1St edition by two pecked lines, status not identified. Evidence of a gate or other physical boundary at either end, but status not otherwise identified (6.I). The 2nd edition of c.1902 (.6J) and 3 rd edition 25" to 1 mile maps of 1920 show the same features (Glos 57.13 and 57.14). Ordnance Survey 1:2500, ST 8093-8193 (1978) The claimed route is shown by two double pecked lines and labelled "Track". Boundary features are shown at points A, C, D and E. The status of the route is undefined. (6..K) Ordnance Survey 1" to 1 mile map, 1817 Area shown, route not shown (.6.F) Bryant Map of Gloucestershire, 1824 Area shown, route not shown Inland Revenue, maps compiled under the Finance Act, 1910, based on Ordnance Survey 25" to 1 mile c.1902 edition, marked up by Inland Revenue c.1915, and reference books or files (D 2428). Route, shown on Finance Act maps 57.13 and 57.14, status not identified. Evidence of gate or other physical boundary shown in three places: (1) at junction with Scrubbett's Lane; (2) at corner below disused quarry and (3) at outcrop of woodland below Conygree Wood lettering. Maps deposited with County Planning Officer under Rights of Way Act, 1932. S1, 3 (CP/D). Not applicable Parish Council file, Rights of Way Act, 1932 Nothing appears relevant Private Estate Maps D 2305/11- Printed plan of Ozleworth Park Estate, n.d. [20t" century] Features as on the 1St and 3rd edition Ordnance Survey maps. SL 144- Sale particulars of Ozleworth Park, 1849. Map shows area, but not claimed route (....H) Duplicate Copies of Tithe Awards Ozleworth MF 1128/152- Microfilm copy of tithe map PC 1812/109- Modern hand-drawing of tithe map Newington Bagpath P226 SD 2/1 - Duplicate tithe map D 307- Duplicate tithe map MF 1127/139- Microfilm copy of tithe map PC 1812/109- Modern hand drawing of tithe map Footpath or Highway Diversion Orders deposited with Clerk of the Peace (Q/SRh).

Ozleworth- 1818 B/2 - Checked. Not relevant Newington Bagpath- 1825 D/2 - Checked. Not relevant Plans of Public Schemes deposited with Clerk of the Peace (Q/Rum). Not checked. District Council Clerk's correspondence. DA 36/250/1- Planning scheme resolution map, 1935. Area not shown in detail. DA 36/185/2- National Parks and Access to the Countryside Act draft map, 1952. Route shown with same features as the Ordnance Survey maps, but route not numbered. County Council Solicitor's correspondence (K 596/25) Not checked County Surveyor: papers relating to survey of footpaths under National Parks and Access to Countryside Act, 1949 (K 687 1/12) Shown as pencil route on submission map mentioned in notes. Listed in notes as path number 1 "Running from Scrubbett's Lane west along southern edge of Conygre Wood to join bridleway no.31. Field gates, but no sign of track at Scrubbett's Lane end. Pigs have thoroughly grubbed up land. To be included?" Decision of Parish Council not to include. Provisional map not checked. 12. OTHER OBSERVATIONS 12.1 Kingscote Parish Council: A letter of consultation was sent to the Parish Council Chairman on 16 May 2002 inviting comments on this application. No reply was received. Following a query from the landowners, Kingscote Parish Council made the following comment in their minutes of a meeting held on 10 February 2003: "The clerk has received a query from Mrs Cardale regarding the existence of a bridle path going through her land, immediately south of Conygre Wood. The Parish Council are unaware of any such bridle path going across the Cardale's land, and they do not know of any documents relating to the matter." 12.2 Ozleworth Parish Council: A letter of consultation was sent to the Parish Council Chairman on 16 May 2002 inviting comments on this application. No reply was forthcoming. 12.3 Cotswold District Council: Following a letter of consultation to the District Council, Mr N S Love, Head of Heritage and Economic Development, replied by letter dated 13 June 2002 and stated "This Council has no information to contribute to the debate on this application." 12.4 County Councillor: Councillor A E Hicks, the County Councillor for Tetbury replied by letter on 24 May 2002: "I confirm that I have no evidence or comment to make to support this application..." 12.5 Ramblers' Association: The South Cotswold Group Footpath Secretary Mr Michael Poole replied by e -mail dated 30 May 2002: "Our group supports this application for a new right of way..." He further commented, by e-mail dated 9 July 2002: "This matter was considered by the Footpaths Sub Committee of the South

Cotswold Ramblers on 8 July 2002. The Sub Committee confirm what I said in my e-mail dated 28 May. We support this application for a new definitive Right of Way. We are aware of the planning application for a house in the same field and have resolved to oppose this application, on the grounds that such a development would be inappropriate without serious damage to the local network of minor roads." 12.6 British Horse Society: Mr William Reddaway, County Access and Bridleways Officer replied by letter dated 30 June 2002: "I am pleased to advise you that the British Horse Society supports this Application and believes that the bridleway should be added to the definitive map." 12.7 Open Spaces Society: The Open Spaces Society Local Correspondent, Mr Gerry Stewart, replied by fax dated 28 May 2002: "...I have no knowledge of the claimed route and, on the face of it, make no objection to the application." 13. APPLICANT Comments by Co-Applicant, Mr Ben Harford, 20 April 2003 The applicant Mr Ben Harford was given the opportunity to comment on the observations made by the landowners. He replied by letter dated 20 April 2003: Covering Letter 1. As explained in my letter accompanying the proposal form, Mr Cardale is correct in one sense: our application was triggered by Mr Cardale's publicity campaign of last spring prior to his applying for planning permission to build a large PPG7 house in a grassland field overlooking the Monarch's Way. However, the purpose of the application was not to thwart his application (his views on the route of the proposed bridlepath seem to vary) but to protect a right of way which has a historical documented pedigree going back to the end of the Napoleonic Wars plus considerable evidence of regular and continuous use until last year. 2. We are not claiming, or pretending, that this right of way is on the Definitive Map. If it was, we would not need to be making the application! But we do have direct historical evidence from early OS maps and we are saying that quite a number of people have used the footpath/bridle path regularly without objection from the family which sold the land to Mr & Mrs Cardale. 3. Mr Tim Sage has said to me on several occasions, and to others separately, that although he never considered it was a right of way he was happy to let people walk/ride along the track. I am not aware of anybody who was stopped or warned that it was not a formal right of way. (see point 6 below) 4. Mr Cardale claims that "the 'track' shown on the OS map ... does not exist any longer." This is not accurate. The underlying hardcore of track is clearly visible in several places. Indeed, the landscape study Mr Cardale submitted with his planning application includes a good photograph of one section of the track. (See comments under Historical Evidence below). 5. Farmers do not use tracks for moving livestock across grassland. If the 19th century farmers had put down the hardcore track, the route should have gone from

barn to barn. But, on the large scale 1922 OS map (for instance) the track does not divert to, or go anywhere near, where Yardway Barn was (not shown on the 1922 map). 6. The existence of "similar tracks", or of footpaths which walkers could use instead of the proposed route is irrelevant. What we are seeking to establish is a question of fact: is this particular proposed route one which, by historical evidence and continued use, a right of way which should be added to the Definitive Map. 7. The Parish Council Minutes show that the map of the Kingscote Parish PROWs was displayed and then put in the Deed Box, in 1966. The signposting of these PROWs was definitely not as good as Mr Cardale claims: Minutes show that, in 1981, requests for signposting were shelved because the parish was asked to contribute 3/4 of the cost! 8. We have four PROWs on our land the other side of the valley: one has always had a signpost, a second acquired its signpost about 15 years ago, the third no more than 8 years ago; and one has never had any signpost. So the history of local PROW signposting has left plenty of room for confusion for law-abiding walkers or riders if not given guidance by the local farmer. 9. Mr Cardale claims to have "examined these routes against the topography of the land and the availability of public paths, and it is clear that none of the routes is logical ...". The logic for the route goes back to the days of the packhorse, when the population of Bagpath was over 250 with employment heavily dependent on the conversion of wool. To walk/ride to Bath, and probably Bristol too, the easiest route would have been round the contour line, joining up with the track from Ozleworth and going along our proposed bridlepath to join the Scrubbetts Lane under Conygre Wood. This route is referred to by Mr Challis on his evidence form, which Mr Cardale has made reference to in his comments on evidence forms. This is the track/path route shown on the pre-1850 OS maps. 10. Examination of the pre-1945 OS maps, going back in time, seems relevant. The 1922 OS map shows the current bridlepath from Brimscombe Wood to Scrubbetts Lodge (now Brock Hill House) as a track (not footpath, not bridlepath). Our proposed bridlepath is shown in precisely the same way. This equivalence is repeated, going back to when Scrubbetts Lodge was built (1860's). Prior to the Lodge being built, our proposed bridlepath is shown with parallel dashed lines, but there is no trace of the route of the current bridlepath. Our bridlepath would appear to have an equivalent, but longer pedigree, than the track made into a bridlepath under the 1948 Act. 11. And, if you look at this map history and the visit the site, the logic for the current bridlepath route across Bagpath Downs is clear. The back drive from Ozleworth Park swept under the Stableyard clocktower arch and down into the valley, crossed the Marlees Brook over a grand stone parapetted bridge (known to everyone locally as "London Bridge" but now sadly derelict) and emerged onto Scrubbetts Lane at Scrubbetts Lodge. The current bridlepath was created in the 1860's as the Ozleworth back drive and the way to London. "Evidence to Rebut Claim"

(A) General: (1) We regarded the Cardale publicity campaign about his housebuilding project as the challenge. And the moment the Cardales were informed about the proposed bridlepath, the gates were padlocked. (2) The 'track' is shown on the OS maps (elsewhere Cardale says it is not shown) and on site, its route is clear. (B) Quality of Evidence: (5) I have asked several who submitted evidence, all I talked to are willing to give evidence if asked. (6) I believe this is a misinterpretation of the relevant legislation. (7) It is inevitable that people who live locally know each other, especially if they have done so for a long time. That most local evidence providers come from the ranks of the opponents of Mr Cardale's development is straightforward: local support for his plans are limited and opposition very strong. His "known to be good friends" is inaccurate: I have known Mr Huntley all my life but I have met Mr Lee once (about the bridlepath), Mrs Lee two or three times prebridlepath; and I have never met Mr Blackwell. Elsewhere in his comments, Mr Cardale claims that we are good friends of the Holleys: in fact, I never knew of their existence before a Rambler I met suggested I talked to them. (C) No Intention: (8) Few turkeys volunteer for Christmas. (10) They did notice regular walkers & riders (see 3 above). Because the proposed bridlepath goes over permanent pasture, the Sages would have been unconcerned about seeing occasional walkers and riders. While it remained pasture, the legal status of the path was similarly irrelevant to those using it. (12) Irrelevant: I am not aware that anybody who gave evidence ever sought, or was given, permission. (13) Irrelevant? Landowners do not "intend to dedicate" a PROW; how would one do this? (D) The Definitive Map: (16 & 17) We are not claiming that the Definitive Map shows a PROW, merely that there has been informal, continued and unchallenged use of this route by walkers and riders. (19 & 20) Only John Huntley & I are farmers (not 4 farmers), and all his land is the Boxwell side of the valley. My family is the only one still living in the same place in the Kingscote Parish throughout the period when these matters were being finalised until now. I was working in the USA when the Kingscote PROW map was displayed (see 7 above). I have no recollection of any earlier parental discussions, when I would have been away at school/university, on any footpath issues. (E) Parish Council Records: I am waiting for your assistant to send me the Cardales' extracts from Parish Council Minutes to see if comments are necessary. [Comments were made on these extracts by Mr Challis, below) (F) Historic Evidence: There is more historical evidence for the proposed bridlepath than for the current Bridlepath over Bagpath Downs. The proposed route is shown as a double dashed line on both the 1817 and the 1830 OS maps, as part of the path/track from Bagpath to Boxwell: although Mr Cardale states that the statement to this effect in my original letter to you is fallacious, in fact a photocopy of the 1830 map was actually included in the landscape study commissioned by the Cardales and included in their planning application. (A photograph, clearly showing part of our proposed bridlepath as a track, was included in the same study.) I have seen many maps (OS, estate plans etc) after the 1865 construction of Scrubbetts Lodge which all show the current bridlepath North of Conygre Wood and the proposed bridlepath

South of Conygre Wood as identical in size, status and drawing. A site visit will confirm that there was no reason for the route of the current bridlepath, other than as a carriage route from Ozleworth through Brimscombe Wood and out towards Kingscote. (G) Evidence to Rebut Claim: Mr Cardale has only owned the land since April 2000, so his evidence is concentrated on 2 years out of 20. It only takes a few minutes to walk the proposed route, and you can only see short sections from any vantage point. Of the two immediate neighbours, neither can see any part of the proposed route from their houses or gardens; one family is in residence only 40-60 nights a year. Of the other nine, five have a financial relationship of some kind with the Cardales. When I asked people whether they had used this proposed foot/bridlepath, I made it clear I only wanted people who had genuinely used it; and I asked them to fill in the form themselves, saying only what they were willing to confirm at a hearing. By contrast, I know that some of Mr Cardale's evidence has been collected by sending out an already completed form, asking for a signature. Two people who submitted evidence forms, when I asked them about giving evidence at a hearing, told me that on more than one occasion when they had been walking the proposed route they had said Good Morning to Mr Cardale's waller, receiving a grunt in reply. Section 2 Apart from the many factual inaccuracies in his comments, several of which I have already referred to, I do not think Mr Cardale helps his case by implying over 6 pages of his submission that all of the evidence submitted on our evidence forms is fictitious. Section 3 Please read the last paragraph of this section of Mr Cardale's submission. Please then compare it with this verbatim extract from the Parish Council Minutes: "Mr Sage had made an enquiry regarding a public footpath at Bagpath. A map was produced showing no public footpath over his land and Mr Challis said he would show this to Mr Sage." We do not even know what possible footpath is being referred to. [Mr Harford concludes] "...In commenting on our evidence forms, he [Mr Cardale] claims that "in spite of a massive publicity campaign and website" none of the evidence forms submitted came from outside the concert party he believes have unfairly ganged up against him. He has, wrongly, merged the application for the foot/ bridlepath with opposition to his planning application. No attempt was made to seek publicity for the footpath. I only wanted evidence from people who had used the route for a long period and who were likely to be known to John Huntley or myself. Our application ... predates the submission of Mr Cardale's application for planning permission. The website, and such publicity as we managed to generate, was all focused on his PPG7 planning application. Quite a number of letters of objection were sent to Cotswold District Council as a result of contact via the website and notices put up on the Monarch's Way (notices were not put up near either entrance to the field below Conygre Wood).

Comments by Mr Challis, 25 April 2003 Mr Challis wrote to make comment on the landowners' observations on 25 April 2003: I refer to a letter, undated, from David Cardale to yourself and headed "an Application for additional Bridleway south of Conygre Wood between Scrubbett's Lane and existing Bridleway, Parish of Kingscote". I write because I believe that David Cardale has made serious misrepresentations related to my claim in his letter (the section 'The claimants - Landowner's Commentary') and elsewhere and I address only these matters. I understand that many of the other issues are being addressed by others. In Section 2 under the heading 'Mr. Challis':- Paragraph 1 - reads ... "... the bridlepath claim ... on the website ... produced no response." Perhaps he should quote his source of information. Paragraph 2 - quotes me as saying, when he took me to see the proposed site, " (I) ... had never been to that spot (in 20 years) and indeed doubted whether anybody in the village had been there either...". I believe this quotation is on his wish list. Our horse had, by arrangement with David Cardale, grazed the very same field in which he proposes building his house for many months previously. He makes reference to it in his comments on my wife's witness statement as if these were separate fields. They are not. Further Yardway, Bradles and Gravel Hill have long been one large field. At the time a very low temporary electric fence (18 ins in places), encroached upon by brambles, was all that divided part of the areas marked as Bradles and Gravel Hill from Further Yardway. It is inconceivable that I would have failed to check the further boundaries to establish stock security on a regular basis. Furthermore, as our house is at the same height as these fields, the obvious way, to get there is across the fields following the contour line i.e. through the area marked as Further Yardway in which he proposes his house. (See also my comments on paragraph 8). It is impossible that I said this. Paragraph 3 - I served as a councillor on Kingscote Parish Council from November 1974 and as Chairman from May 1975. Despite David Cardale's assertion of my involvement in signposting of public rights of way, the Parish Council Minutes do not reveal the same enthusiasm that he assumes. Indeed in the period I have examined (1962 to 1984) there are very few minutes relating to footpaths at all. I summarise these in my comments on Section 1, E, Parish Council Records below. I am not sure what he means by `put in place' when referring to the definitive map. The only reference in the parish council minutes (July 1966) reports that the map of

rights of way was locked up in the deed box long before I joined the council or moved to Bagpath. Paragraph 4 - David Cardale speculates that "if there had been a public footpath it would have been declared and signposted earlier in keeping with all footpaths and bridleways in the area", and that failure so to do would have been noted by myself. I have two comments: a) the footpaths and bridleways have only been signposted in the last 10 to 15 years.

There were very few signs (if any) prior to that. The absence of a sign did not mean the absence of a footpath. Nor does it today.

b) I am not saying that the footpath existed in this period and had simply not been signposted. I am saying that I have used the track as a footpath for the last 30 years. David Cardale seems to give this claim only cursory attention.

Paragraph 7 - if my claim falls on such a technicality please return it for a countersignature. Paragraph 8 - I have examined a copy of my witness statement. It may appear that the section relating to additional information has been crossed out. In fact it has not and my statement therein stands. It was included to support the claim by explaining to people not necessarily familiar with the area why the route is a natural one. Again David Cardale seems to miss the point ... "Cursory examination of any OS map shows this is not possible on any public path." I am not, at this time, claiming a public path all of the way from the hamlet of Bagpath along that contour line to Scrubbetts Lane although since I have been walking it for 30 odd years it has been suggested by several people that I should. I am considering revisiting this suggestion. Because more people have been found who have walked or ridden the track from the west end of what was known as `Further Yardway' to Scrubbetts Lane it is this part of the route which is the subject of the claim. Section 3 - Definitive Map Discussions - David Cardale refers to a Parish Council minute regarding a claim for a footpath "across the same land" which was made and dismissed in 1974 and that I was charged by the Parish Council to confirm that fact to the landowner. David Cardale has extracted considerably more from the minute than I am able. The full Parish Council minute (November 1974) reads: "Mr. Sage had made an enquiry regarding a public footpath at Bagpath. A map was produced showing no public footpath over his land and Mr. Challis said he would show this to Mr. Sage." The minute is quite unhelpful over which piece of land is being referred to. Certainly it cannot refer to `all' of his land since, for example, the undisputed bridle path to the north of Conygre Wood was across his land.

Section 1, E, Parish Council Records - David Cardale seeks to persuade of the seriousness with which Kingscote Parish Council took its responsibilities for footpaths. I am commenting on this because of my service to that council for part of the period he refers to Although I cannot see the relevance of this to the claim I think some `flesh' should be put on his statistics. I have examined the records only for the period 1962 to 1984 and so do not dispute his overall figures for the period 1950 - 1983. However for the 10 year period 1962-1972 the council addressed only two footpath related issues - a recurring reference to one through Kingscote churchyard and in 1966 the receipt and archiving (!) of the definitive map. In 1973 (September) an invitation from the Ramblers Association to attend a meeting to encourage greater understanding of footpath law fell on stony ground. In the seven year period 1974 (February) until 1981 (March) - a total of 3 footpath related issues (ignoring an incoming un-actioned correspondence). Five minutes addressing signposting which was shelved after discovering that the parish would have to bear three quarters of the cost and two minutes addressing specific footpaths. From 1981 to May 1984 just 4 issues - in (March 1981) a lack of commitment is well illustrated by the following decision, " .. . (because) three quarters of the cost (of signposting) would be borne by the parish this item was shelved", and (November 1981), "A letter from the Ramblers Association offering to send a speaker to talk about maintaining public footpaths was read. It was agreed to send the letter to the Wl". and (intriguingly), between June - November 1983 four minutes culminating in a report of ... ". . . a letter from Gloucester County Council confirming that there is a footpath through Conygre Wood..." [Officer's note- there is another wood within Kingscote Parish named Conygre Wood] One needs to be cautious over such matters! The more recent infrequent consideration of footpath matters by the Parish Council is very different to the picture painted by David Cardale; nor should it be criticised. It is a reflection of the success of a more neighbourly approach to these matters in a small relatively isolated community. This is a tiny hamlet of some 20 houses. We are therefore all neighbours; an observation from which David Cardale seems to try to make some mileage. Surely it is not surprising that many of the footpath claimants are local. They are, after all, the easiest to find.. It follows also that many claimants are also objectors to his

development proposals; virtually everybody here is. This does not make them the conspirators which David Cardale seems to imply. This path is one which many people have enjoyed for very many years. I make this claim now because it is under threat from development. I hope that these observations will help the committee in coming to its conclusion. Comments by Alison Challis, 25 April 2003 A letter from Mr. David Cardale to yourself has been brought to my attention today. I feel compelled to write to you because I feel slighted by Mr Cardale's implication that I have been dishonest in my evidence that I have given you regarding my use of the footpath which crosses his land. I feel passionately about this as it has been a favourite walk of mine for the past 24 years. Mr.Cardale is right in asserting that I did not measure the width of the footpath! I followed the obvious track from the barn gate at the eastern end and across the field and onto the bridleway. This was always the obvious route to take. On my journeys across the land I frequently met and passed the time of day with the previous owners, the Sages, and their employees. I was not once challenged about being there. There has been no locked gates or obstructions along this route until Mr.Cardale attached padlocks to the gates recently. This path is a logical one to take as it is about a one hour walk from the majority of the houses in Bagpath. It is not too steep or muddy, as some of the other footpaths are around here. I feel that Mr.Cardale has manipula ted the truth to suit his own purposes. The ideas that people have been intimidated into refusing to back him works both ways. He is a very affable character and made friends with many of us. His assertion that he employed me to look after his horses is incorrect. He asked friends of mine if there was anyone who could keep an eye on them for him. I volunteered to do this as a neighbourly gesture. Some money did change hands but this was merely for my petrol costs. When my own horse was put into the field I often fed Mr.Cardale's horses at my expense while I was feeding my own horse. With regard to Mr.Cardales reference to sections 8C and 8D on my claim form I would like to stress that on no occasion was it mentioned that he was letting me walk or ride my horses over the footpath nor was I using the path as his employee! I assumed that the right that I have always held since May 1997 when I moved to Bagpath. Friends here, including myself, have felt very uncomfortable about objecting to Mr.Cardale's planning application and the footpath issue because he is a neighbour who has gone out of his way to be friendly. It is also possible that the labourers and contractors working for Mr.Cardale feel intimidated about the loss of work if they admit that they have seen walkers on the land. Mr.Cardale harps on his letter about who knows who as if there is some big conspiracy. This is a tiny rural area and of course we all know one another. Because we are local to the area we are the people most likely to use the footpaths here.

There is one red herring in Mr.Cardale's letter that I would like to mention. Mr. Blackwell of Barton End Farm, Nailsworth whose daughter runs a riding stable situated some 6 miles away from the footpath is too far away to have an intimate and frequent knowledge of the area. They have an excellent bridlepath network adjacent to their stables to make it worth coming all the way out to Bagpath. According to Mr.Cardale I have not agreed to give evidence in court about this footpath. If I have accidentally failed to complete this section of the form I would like it recorded now that I will, of course, attend court if necessary to present the truth as I see it. Would you also note that my indication that I did not know if it was a footpath does not means that I knew it was not a footpath. Comments by J A Huntley, 30 July 2003 "...I came to live here in 1961, but had visited every summer from 1947 to 1961, and regularly walked with my aunt Miss D M Huntley and her friends over this claimed footpath. Her generation were good botanists and looked in that area for Verbascum and Orchidaceae Pyramidalis which then thrived- botanists do not go to pick wild flowers! It would appear that Kingscote Parish Council was not particularly assiduous when the definitive map was being prepared. I have the 1924 O S Map ... which clearly indicates a well defined track beneath Conygre Wood and also a footpath running from the farmhouse and across Scrubbetts Lane to a spring on the pasture land. To this day there are small gates either side of the lane indicating where this footpath ran. I mention this to indicate how paths were left off the definitive map often due to the landowners benevolent attitude to walkers and those on horseback, whom they regarded as country people doing no damage. I totally dismiss as irrelevant balderdash, the owners' rant as to who is friendly or related to whom. In an isolated country area, people do tend to know one another..." 14. FURTHER COMMENTS BY THE LANDOWNERS

14.1 It was considered by the Officer that the applicant's response to the landowners'

comments and the letters which were submitted by Mr and Mrs Challis both raised new points, so the landowners were given the further opportunity to comment.

14.2 They comment on Mr Harford's letter thus: "....It raises a number of important

issues, particularly those of an historic nature which we will need to research further before we can comment fully ... It is however worth noting that: i. The existence of the track on old maps is not in dispute ii. The fact that a track is mapped is not however evidence of a PROW iii. There is no historical evidence to support the contention that the track was

ever a PROW (by contrast there is plenty of evidence to support the adjacent bridlepath)

iv. The track is not visible on the ground v The direct route historically and currently from Bagpath to Boxwell is down

Scrubbetts Lane

I note that Mr Harford has confirmed that the previous owners (a) did not believe it to be a PROW and (b) were happy to let people walk and ride on a permissory basis

I note that Mr Harford has confirmed that the previous owners (a) did not believe it to be a PROW and (b) were happy to let people walk and ride on a permissory basis over the pasture. Perhaps Mr Harford could provide you with a copy of the 'Napoleonic pedigree' and the first edition OS map to which he refers (although I note that the second edition is generally held to be a more accurate source.)

14.3 In response to Mr Challis' evidence, Mr Cardale comments:

"I took Mr Challis to the proposed site of the house in September 2001. In November 2001 Mr Challis launched a web site opposing our house. A number of reasons were given for being against our house but there was absolutely no mention of any suggestion that it was located on a public footpath. Mr Challis now claims the "footpath" to have been a favourite walk of his. Given that he is a 'very experienced campaigner and is very familiar with the footpath legislation, it seems quite astonishing that absolutely no mention was made of the footpath either at the time of our September site visit nor at the time of launching his website in November when he gave detailed reasons for opposing our house. Why was it that it took so many months before Mr Challis came up with the footpath claim the following year?"

15. LEGAL COMMENTS AND CONCLUSIONS 15.1 Section 53[c] [i] of the Wildlife and Countryside Act, 1981 relates to the discovery

by the Authority of evidence that shows that a right of way that is not shown on the map and statement subsists, or is reasonably alleged to subsist, over land in the area to which the map relates.

15.2 Section 31(1) of the Highways Act 1980 states that where a way over any land,

other than a way of such character that use of it by the public could not give rise at Common Law to any.presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it. The period of 20 years in sub-section (1) is to be calculated retrospectively from the date when the right of the public to use the way is brought into question whether by a notice or otherwise.

15.3 Section 31 (9) of the Highways Act 1980 says that nothing in this Section

operates to prevent the dedication of a way as a highway being presumed on proof of user for any less period than 20 years. Paragraph 12 of Annex B of the Department of Environment Circular 2/93 states that before making an order the surveying authority must be satisfied that the evidence shows on the balance of probability that a right of way of a particular description exists.

15.4 In contrast to the position at common law, it is not necessary under the Highways Act for the claimant to show intention on the part of the landowner to dedicate. If the statutory conditions are met, then the presumption arises. Where the presumption arises, the onus is upon the landowner or person denying the existence of the right of way to prove, on the balance of probabilities, that there was no intention to dedicate.

15.5 To fulfil the requirements of Section 31, we need to see whether there has been a

full 20 years use by the public and, in order to do this, we have to ascertain the date of challenge, that is there has to be some overt act on the part of the landowner to bring it home to users that their right is being challenged.

15.6 There is no fixed method by which the public's right is brought into question. The

methods can range from a notice on site denying the public the existence of a right of way, the locking of a gate or seeking a declaration that there is no highway over the land in question. Whatever means are employed, it should be sufficient "to make it likely that some of the users are made aware that the owner has challenged their right to use the way as a highway... The persons to whom the challenge has to be brought home are the users of the way."

15.7 The Dorset case (R v Secretary of State for the Environment, Transport and the

Regions, ex parte Dorset County Council, 1999] makes it clear that there was a need to "bring into question" the public's right to use a way in order to trigger the provisions of Section 31 of the 1980 Highways Act. If this does not happen, there can be no deemed dedication under that Section. Not every user need be told by the owner of the challenge, nor is there any particular method of bringing it home to users. In terms of a Modification Order application, if the owner objects to the application, this will be a date of challenge. If he does nothing until the Order is made, this is insufficient and there will be no challenge that will meet the requirements of Section 31. If the owner does nothing at all, then this would not preclude a claim based on common law under Section 31 (9) of the Highways Act [see section 15.3]

15.8 The application was made by Ben Harford and John Huntley on 7 May 2002,

notice having first been served on the landowners, Mr and Mrs Cardale. Following the receipt of notice of application for a Modification Order on 1 May 2002, the gates at either end of the claimed path were padlocked by the landowner within two days. Signs were subsequently erected by the landowners at the western and eastern end of the claimed path. The wording was:

PRIVATE PROPERTY Following the recent outbreak of vandalism these gates will remain locked for security and stock-handling purposes No public right of way The padlocking of gates and the erection of a sign denying the existence of a right of way are an overt act on the part of the landowner to bring it home to users that their right is being challenged. Taking 2002 as the date of the

challenge that brought the public's right to use the way into question, then the period over which usage is claimed can be said to run from 1982 to 2002.

15.9 In total, 21 public path evidence forms were completed by 23 witnesses (two

jointly by husband and wife). One of these witnesses subsequently withdrew their evidence, leaving 20 user evidence forms completed by 22 witnesses. User evidence goes back to 1947, with three other witnesses claiming usage since 1956, 1957 and 1958. Twelve of the 22 can claim usage over a period of more than twenty years. It is not essential for the path or way to have been used for the full period of 20 years by the same persons; the period may accrue as a result of use by different persons for shorter periods. Nor does it matter that the use is not continuous in the sense that it may not have occurred everyday.

15.10 The 20 years use must be "without interruption" and this must be proved by the

claimant. "An interruption" has been defined as "an actual and physical stopping of the public's enjoyment" (Mersham Manor Ltd v Couldson Urban DC [9937]) as opposed to an act which merely challenges the public's right. It is not a mere absence in the continuity of use. Moreover, such interruption must be with the intention to prevent public use. It is not sufficient if the interruption is for some other purpose. Gates were in position at points A, B, C, D and E for at least part of the claim period but they were not locked and their purpose was for stock control. No evidence has been provided by either party that this twenty years usage has been interrupted in any way.

15.11 The statutory presumption that a way has been dedicated as a highway is

rebuttable by sufficient evidence that there was no intention during that period to so dedicate the way. The present owners have not provided any evidence that the previous landowner, Mr Sage, took any steps to make it clear to the public that they had no right to cross the land. Such actions might have included the locking of gates, erection of signs and instructing his agents to challenge anyone using the path.

15.12 The issue has been raised by the landowners as to whether use of the claimed

path was permissive. It is argued that in a small rural community of farmers, the previous landowners, the Sages farmed at Scrubbetts for 60 years so many of their friends and neighbours (including Huntleys, Harfords, Vernons etc,) may have walked freely across the farmlands on a permissory basis. Such permission may be implied, for example by permitting the public to wander at will over an area of the land, and hence the use would not be of right. It is unclear from the submitted evidence whether the previous landowners granted such permission. The basis on which the presumption of dedication rests (both at common law and under statute) is the combination of the fact of use coupled with acquiescence by the landowner in this use. It is because a landowner knew of the use and did nothing to stop it that he is presumed to have intended to dedicate the way as public.

15.13 Twenty-two witnesses attest to having walked or ridden the claimed route,

twelve of them for over twenty years. None of these witnesses make any mention of having been challenged in any way over their use of the claimed

path. The landowners have collected eleven statements by local residents or people employed locally who attest that they were either unaware of the existence of a right of way or that they hadn't seen anyone using the claimed way. The Panel's attention is drawn to the Bagshaw and Norton Case of 1994. There are two tests in Section 53 (3) (c) (i) of the Highways Act 1980: that a right of way "subsists" (Test A) or is "reasonably alleged to subsist" (Test B). Where there is no conflicting evidence (for example, the owner has not provided evidence that witnesses were stopped, or challenged by notices etc.) the test of whether a right of way "subsists" is that of the balance of the probability. For Test B, it is necessary to show that "a reasonable person having considered all of the relevant evidence available could reasonably allege a right of way to subsist". That decision was re-affirmed in the later Court of Appeal case in 1997- R v. Secretary of State for Wales ex parte Emery. If an applicant can produce credible evidence of public enjoyment of a path for 20 years, then even though there may be conflicting evidence, it is reasonable to say that a right of way is deemed to exist.

15.14 The landowners' raise the point that users may have wandered at will, rather

than followed a defined course. Several witnesses include activities amongst their purposes for use that imply wandering: witness 1 states that one of his purposes for use is collecting wild flowers; witness 2 was looking for wildflowers and mushrooms and witness 13 was looking for butterflies. However, this is not their sole purpose for use of the way and the maps accompanying their user evidence forms are consistent with use of a single route.

15.15 Under Section 32 of the Highways Act 1980, when determining whether a way

has or has not been dedicated as a highway, or the date on which such dedication, if any, took place, shall take into consideration any map, plan or history of the locality or other relevant document which is tendered in evidence, and shall give weight thereto as the court or tribunal considers justified in the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or compiled, and the custody in which it has been kept and from which it is produced. The Panel's attention is drawn to the Gloucestershire County Archivist's Report.

15.16 The tithe maps for Newington Bagpath (1839) and Ozleworth (1838) show the

area over which the claimed path runs but not the route itself. Similarly, the map accompanying the 1849 Sale Particulars of Ozleworth Park shows the area but not the claimed route. The claimed route had certainly come into being by 1886, when it is depicted on the Ordnance Survey map as an unenclosed track: the route may have come into being c.1865 when the new drive from Ozleworth Park was constructed. The track is depicted similarly on the 1903, 1920 and 1972 Ordnance Survey 1: 2500 scale maps. None of these maps record the status of the claimed way. The Panel is referred to Section 8 for a more detailed examination of the historical development of the claimed route.

15.17 Ordnance Survey maps carry a disclaimer that any representation of a road,

track or path is no evidence of the existence of a right of way over it. However they do provide evidence of the physical existence and extent of a way,

suggesting (but not proving) that the path had been in use for a longer period than that for which user evidence is available.

15.18 The Ordnance Survey 1" to 1 mile map of 1830 shows a broken line that

according to the co-applicant represents the claimed way. Closer examination shows this line to continue around the valley in a loop linking places of roughly equal height around Ozleworth Bottom. Ordnance Survey 1" maps at this date represented hills by hachuring, but this line does appear to depict altitude rather than a path. The same notation can be seen on the map in the Vale of Berkeley area where loops and islands appear to represent contouring. In any case, this feature does not follow the line of the claimed path, following a course to the south of the larger pre-1848 Conygre Wood which then extended over the course of the claimed way.

15.19 Thus, the Documentary Evidence does not assist us greatly in.determining the

status of the claimed way. User and map evidence indicates that there were farm gates at points A, C and E during the claim period and that there had been an additional gate at point D prior to the 1970s and that an additional gate has been put in at point B, possibly after 1978. The claim is for a bridleway, so while noting that there has been no physical obstruction to the use of the way in the claim period, it is wholly reliant on the user evidence.

15.20 Of the 22 witnesses, six indicate that they have ridden over the claimed route.

These are witnesses 6, 12, 16, 18, 20 and 21. Witness 6 Mrs Challis claims usage on foot and horseback since 1978, although she used the fields (Bradles and Conygre Paddock) with the landowners' permission to graze and exercise her horses during the last two years. It is unclear whether both pedestrian and equestrian use date back to 1978, or whether she had a grazing agreement with the previous landowners, but we can consider her use since 2000 to be permissive. The evidence of witness 12 dates back to 1967 (35 years), that of witnesses 16 (joint form) to 1969 (33 years). Witness 18 states that he has used the path regularly since 1965, usually on foot, sometimes on horseback. Witness 20 gives no dates for her use, stating that she has known the path for many years. Witness 21 claims usage on horseback and foot from 1957 to 1996.

15.21 There is no statutory minimum level of user required for the purpose, and the

matter does not seem to have been tested in the courts. However it is clear that there has to be a sufficient level of use for the landowner to have been aware of it, and have had the opportunity to resist it if he chose. In Hollins v Verney (1884) it was said that: No user can be sufficient which does not raise a reasonable inference of such a continuous enjoyment and that no actual use can be sufficient to satisfy the statute ... unless the user is enough to carry to the mind of a reasonable person (owner, etc) the fact that a continuous right of enjoyment is being asserted and ought to be resisted ... It follows that use of a way is less cogent evidence of dedication if the landowner is non-resident- at any rate, if the owner had no agent on the spot- than if he is resident. If the landowner did not know that the way was being used, no inference can be drawn from his non-interference. In this case, the previous landowners, Frank Sage and then his sons Martin and Tim Sage lived within half a mile of the

claimed route and kept hay and animals in the yard between points A and C then presumably they would have been aware of people using the claimed route.

15.22 Use of the way should also have been by a sufficient number of people to show

that it was use by the public, that is the people as a whole, or the community in general, and this may well vary from case to case. Very often the quantity of valid user evidence is less important in meeting these sufficiency tests than the quality (i.e. its cogency, honesty, accuracy, credibility and consistency with other evidence).

15.23 It was held in Mann v Brodie (1885) that the number of users must be as might

reasonably have been expected, if the way had been unquestionably a public highway. Watson J said: If twenty witnesses had merely repeated the statements made by the six old men who gave evidence, that would not have strengthened the respondents' case. On the other hand the testimony of a smaller number of witnesses each speaking to persons using and occasions of use other than those observed by these six witnesses, might have been a very material addition to the evidence. Arguably therefore, the evidence contained in a few forms may be as cogent- or more cogent- evidence than that in many. However, Dyson J in Dorset 1999 did not question that the Inspector had found the evidence contained in five user statements insufficient to satisfy the statutory test, even though the truth of what was contained in them had been accepted.

15.24 In an isolated rural area, south of the hamlet of Bagpath, the level of valid user

evidence would seem to meet tests of sufficiency of use for both a footpath and a bridleway. It is the view of the Officers that in the absence of any evidence of the landowner taking steps to prevent dedication before 2000, then the conditions of the Bagshaw-Norton Test A have been met and that on balance a right of way subsists.

15. APPENDICES A. Location Map, scale 1:10,000 B. Large scale map of Conygre Wood area, scale 1:2500 C. Summary of Public Path Evidence Forms submitted by the applicant May 2002 D. Summary of Use E. Kingscote Parish Council Minutes- as abstracted by the landowners F. Ordnance Survey 1" to 1 mile, 1St edition, 1830, enlarged G. Newington Bagpath Tithe Map, 1839 H. Sale particulars map of Ozleworth Park, 1849 I. Ordnance Survey County Series 25" to 1 mile, 1St edition J. Ordnance Survey County Series 25" to 1 mile, 2nd edition c.1903 K. Ordnance Survey 1:2500, Sheet ST 8093-8193 (1978)