Definitive Map Modification Order - Inquiry Stage

[Olivia]

Hi,
I'm at an inquiry stage of a definitive map modification order, fighting a few residence who want to open a public right of way past two sides of my parents house; which is yet another type of harassment from the neighbors. There is already a well used footpath a stones throw away!
I've been told of a case law that is in existence which will help quash the DMMO, but with the little information remembered by the definitive map officer it hasn't helped to find this case. I have been looking at The Planning Inspectorate order decisions as far back as 2009, but I believe the order I need was a little older than that, but there is no online access further than 2009.
The proposed DMMO strip of land around my parents house had been marked up by the council for 14 years illegally due to error by the council. This has encouraged the neighbors to believe they had a right when they didn't. The definitive map officer told us that there was a similar case involving a park marking up a footpath through private land, the case to open was quashed. I'm thinking the neighbors didn't use the strip of land 'as of right' if they believed they had 'a right', but not sure if that only refers to commons, common rights and town and village greens with an already Act of 1965 in existence. I've looked at Oxfordshire County Council and Others, Ex Parte Sunningwell Parish Council, R v. [1999] UKHL 28; [2000] 1 AC 335; [1999] 3 ALL ER 385; [1999] 3 WLR 160 (24th June, 1999) and R (on the application of Barkas) (Appellant) v North Yorkshire County Council and another (Respondents)[2014] UKSC 31 , but not sure they are relevant, any help would be appreciated.

Olivia

[dls]

Welcome

You have a difficult task. Start by being a little more precise.
You need to know (not us)
Exactly what is the status of the registration
On what evidnce was it based.
Is the land part of your parents land or next to it.
How is the right of way blocked? Who blocked it and when
On what evidence was the original registration based. What evidence do you have that it was wrong
What new evidence do you have?
What provision have you made for paying the (substantial) costs if you lose.

Take care. Do not go into this on the basis that this is merely the act of a troublesome neighbour. If the way is registered it exists. Everybody but you will start from that basis. If you are to have any success, the least mention of neighbour trouble will lead everybody to figuratively put their head in their hands and cry.

You have to be cool and objective. Do this, if at all, because the evidence establishes very clearly that the registration is wrong (in the exact way which may allow an order in your favour).

[Olivia]

Hi, Yes, It's been difficult to understand things.
The 'Notice of Order' starts 14th March 2017, we need statement of case, and proof of evidence by 09May 2017.
The main reason its going forward is due to proof of use, but the council are neutral due to conflicting evidence, and a neighbour making a statement that the previous owner where the DMMO is proposed for - shouted at people to get off his land, but sadly he has not summited a statement himself. My parents own the land but the order has been written as if the land is owned by the neighbours, which is incorrect, but ownership has been unclear in the past; but I found a wayleave agreement proving the land was ours.
I don't know if we should complain about the order being wrong or how to change it? Will it cost money? - the definitive map statement for the area on the order says the path is owned by the neighbour (which has a PROW registered on the 1910 financial map), but it our land (which doesn't have a PROW listed on the 1910 financial map).

The council advised the neighbours (who they thought owned the land at the time) to block the route. It was taken down two days later because the neighbour was trying to sell his house, he since moved and my dad blocked the route. The DMMO order was confirmed 09th Jan 2015.

BACKGROUND INFORMATION
2.1 On 29 April 2013, we received an application to modify the definitive
map. The application sought to add a public footpath along a route
indicated at Appendix 1.
2.2 The Director for Places approved adding this footpath to the definitive
map on 21 October 2014. This was on the basis of having received
sufficient witness evidence. Historical mapping indicated the existence
of a physical route. This though was not conclusive as to status. (see
Appendix 2).
2.3 When the modification order was advertised, the council received 29
objections. An additional eleven signatories gave their support to a
group objection. It was submitted that use of the route had been
challenged. This was by the current and previous owners of
-----------------. Attempts were made to contact the previous
owner. However, this proved unsuccessful.
2.4 Subsequently five witnesses failed to respond to confirm their support.
A sixth witness indicated that he would not be interested in pursuing
the matter if there was an overall lack of support.
2.5 This left five supporting witnesses. Only one remaining supporter
claims to have used the route for the requisite 20 year period. The
applicant has used it for three years. Use of the route by the other
three witnesses only covers the preceding 11 years. All of their period
of use falls within the years when the current and previous owners of
-------------------- are said to have disputed access along the route.
PLANNING COMMITTEE
1. OBJECT AND KEY POINTS IN THIS REPORT
1.1 To consider whether we should support the confirmation of an order
when we refer it to the Secretary of State. The order seeks to add a
footpath to the definitive map. We can, however, opt to take a neutral
stance.
2.6 We wrote to the applicant for two reasons: (1) to address these
discrepancies and (2) to provide any counter evidence. The letter
stated what could happen if we did not hear back. This was that we
could take a neutral stance at confirmation. The applicant has not
responded. A copy of these letters and confirmation of delivery can be
seen at Appendix 3.
3. OPTIONS FOR CONSIDERATION
3.1 There are two options available for consideration by the Planning
Committee:
3.1.1 To forward the modification order to the Secretary of State
supporting its confirmation (Option 1).
3.1.2 To forward the modification to the Secretary of State adopting a
neutral position regarding confirmation due to the lack of
supporting evidence (Option 2).
4. ANALYSIS OF OPTIONS
4.1 We can support confirmation of the order. In so doing, we are saying
that we are confident that the supporting witness evidence outweighs
the objections submitted. Also, that we remain confident that a
presumption to dedicate existed.
4.2 By adopting a neutral position we neither support nor oppose
confirmation. We can take this position if the evidence does not support
the presumption to dedicate. The applicant would then present the
case without our assistance.
4.3 In this case, officers recommend that we follow Option 2.

I've attached the councils reasons for a neutral stance.

We don't know if we can get the order changed to include the land in question as my parents land in the order or whether it would prove beneficial?

Any help will be gladly received.

Thanks,

Olivia

[blig]

It isn't clear to me what the original poster is hoping to achieve.

one remaining supporter claims to have used the route for the requisite 20 year period

This observation will become problematic for the original poster, and unless there is some concrete evidence that this claim is mistaken, it might be good to consider reasons why this doesn't support the way being a public footpath. For example, is this witness using the way by your permission? Therefore no public right of way has arisen. Alternatively, this one person could have acquired a right to pass on foot by prescription, but again no public right of way has arisen.

The proposed DMMO strip of land around my parents house had been marked up by the council for 14 years. This has encouraged the neighbors to believe they had a right

Given the apparent lack of action for 14 years, on the limited evidence here I'd have sympathy towards a claim that [more than one of] the neighbours now have a right to pass and repass across the land on foot, but that doesn't make it a public right of way. Take care.

[dls]

Please, please take care.

Unless the reason for this action is genuinely that the existing situation is clearly wrong in fact and law, and there is clear evidence of that and none against, then perhaps.

If any element of the reason is feeligs about a neighbour forget it immediately.

Many people dig themselves into financial and personal ruin through such disputes. For those involved it is only ever the fault of the neighbours. For those not involved it almost never is.
You are grabbing a financial tiger by the tail. It gets ever more difficult to let go.

[atticus]

Read threads by Cat for an example

[Olivia]

Thank you for your guidance so far.

I'm aware I need to get my position right and I'm going to be trying to write up a statement of case shortly, but still unsure what the most effective angle to take or if things are relevant in this case. Below is the suggested content for our statement of proof:

Discrediting the 20 yearer on harassment grounds/ and submissions at a Parish council meeting and confronting walkers and turning them away (witnesses can corroborate) -
The only 20 yearer has harassed my parents, we have a pile of evidence and we have some evidence statements from neighbors were she turned people away claiming it to be a private lane on numerous occasions by at least 3 independent witnesses. She sent a solicitors letter to my father claiming she had been harassed by him and if he didn't sign to say he had, and not to do it again; he would be taken to court. My father did work for her in this period in question, as did my mum as a gardener. My father left it and he never was brought before the court; it was her harassing him. See has called the police on three different issues; the light ; the cameras ; and our dog being out of control; the police told here to stop wasting police time. She then went to the dog warden to complain about the dog, the dog warden felt no further action required. She reported the light again but to the environmental health, no further action required.

The applicant has poster slanderous poster around the village about my father, and was asked to take them down by a parish councilor.

The strip of land in question WAS marked up in error by the council, we have emails from the definitive map officer saying it was as clear as mud why it was marked up; she couldn't produce any documentation to why it was marked up. Definitive map officer email - I am not sure why my predecessor did not notice that the route used along the Lane was not marked upon the definitive map.. An email from the Senior Public Rights of Way Officer stating -
The definitive map officer and the public rights of way officer were correct in saying that currently X Lane nor the strip of land along the northern perimeter of your property is shown as a public right of way on the definitive map. I apologies, therefore, if the section 130A(6)(a) notice has confused matters again. Please regard the notice as none other than a formality X Council were obliged to serve after we had a section 130A(1) notice served on us. The latter deals with obstructions on highways and is a facility any member of the public can use if he or she believes a highway is obstructed and the highway authority are not doing anything about it. In the case of this particular section 130A(1) notice, we are not taking action because our records do not include the alleged highway to which it refers. But we still have to serve the section 130A(6)(a) notice in turn. It is then up to the server of the section 130A(1) notice whether the matter proceeds to court.

We have photographic evidence the way in question was blocked by scaffolding and in-passable for a period of weeks (four years before the order started); in witness statements they claim to use the land frequently or every other day; no complains lodged during this period and statements specifying route was never obstructed only when we closed at the point the order came into questions.

A legal right of way resided along the back gardens and runs parallel to the now proposed order, residing at the front of the houses along the lane; the legal right of way through the gardens has since been extinguished; immediately after, the now order in question, the DMMO was submitted. Can one be closed so close and another open?

We are also trying to seek a statement off the previous land owner; to corroborate a neighbors statement that he went out and physically stopped people walking the route; that he saw down the PROW finger post at the top of the lane.


This is our content for our statement of proof. Any suggestions would be gratefully received.

Olivia

[dls]

Sorry, but that will not get you very far.

Take the emotion out and see what you have left. Do not use irony or sarcasm.

For facts properly stated, add details - dates and extents as far as you can.

[atticus]

If you have a pile if evidence, do not simply say that you have a pile of evidence. Submit it. Or do not mention it.

[Olivia]

Thank you for your speedy replies.

I'm aware I will need detail and the appendixes will be huge!

Can you clarify these points:

Take the emotion out and see what you have left. Do not use irony or sarcasm.

Applying these rules I believe we still have evidence of harassment, but what i'm not sure on, is whether I can use this in the case, to imply the reason behind them supporting the order is to facilitate there harassment further; or whether its gone beyond it's means; or put it in and see what happens? (The focus is on this supporter because she is the ONLY 20 yearer)
The other incriminating evidence on the 20 yearer are the independent witness statements of her turning people away from the alleged public right of way.

In regards to atticus you mentioned:

If you have a pile if evidence, do not simply say that you have a pile of evidence. Submit it. Or do not mention it.

Atticus are you suggesting we should pursue on harassment grounds?

Many thanks,

Olivia