Council order over Brampton woodland footpaths overruled by inpectors

It concerned a number routes in woodland near the village of Hayton which were thought to be open to the public by local residents but the landowner, Roxlena, claimed the area was private land and they should not be, and never have been, classed as public rights of way.

In 2021, the then Cumbria County Council declared a total of 18 footpaths and one bridleway at the site to be public rights of way and the landowner objected which led to the hearing in November which, at times, took place at Cumbria House in Carlisle.

The findings were published this week and the inspector ruled that she did not confirm the order. In her report she said: "Having regard to the totality of relevant evidence, I find that it does not suffice to show that a right of way which is not shown in the DMS subsists whether under statute or common law. I conclude that the order should not be confirmed."

She concluded that, at the outset, there had been a lot of people claiming use of multiple paths and added: "Relatively few attended the inquiry for their evidence to be tested.

"What emerged was that different routes had been used at varying degrees of frequency and not for the whole period claimed due to the impact of the foot and mouth outbreak which prompted people to stay away from Hayton Woods.

"On balance, I am not satisfied that the use by the public of has been enjoyed without interruption for the full 20-year period under consideration given the cessation in use over the foot and mouth outbreak."

Brampton Hayton Woods document (Image: Newsquest)

She said that no objection was raised by a nearby landowner, whose land was affected by certain routes and added: "However, those routes connect with the western end of existing BW 117004 making it improbable that they were used by the public during the foot and mouth outbreak.

"Therefore, the tests in section 31 of the 1980 act are not met for the order routes to be deemed to have been dedicated as public rights of way."

The inspector said that, given her findings that statutory dedication had not taken place, the question turned to whether there had been dedication at common law.

She added: "Roxlena suggests there is no case to answer as the council had not purported to rely on common law in its reasons for making the order and nobody tendered evidence to support common law dedication. Even so, evidence of use has been tendered and it properly falls to be considered against the common law tests.

"Demonstrating that a way has been dedicated for public use at common law is a more onerous task than deemed dedication under statute."

She said it required consideration of three issues:

whether any current or previous owners of the land had capacity to dedicate a highway;

whether there was express or implied dedication by the affected landowners whose actions (or lack of action) indicate that they intended a way to be dedicated as a highway;

and whether there was acceptance of the highway by the public.

She added: "There is no fixed period of use at common law. It may be longer or shorter than 20 years and depending upon the facts of the case it may range from a few years to several decades.

"Potentially quite a short period could suffice at common law depending on the circumstances and evidence. There is no particular date from which use must be calculated, but it must be ‘as of right’.

"At common law, the claimant of the public right of way must not only show that the landowner had evinced an intention to dedicate the way as a public highway, but that they had actually dedicated the way as a highway.

"The test of the evidence is the balance of probabilities. There is no presumption of intention to dedicate that applies once sufficient evidence of user has been demonstrated in the same way that occurs under section 31 of the 1980 act."