Long Bennington, Westborough and Dry Doddington DMMO 377 - Register of DMMO applications

13 Winter's Lane, Long Bennington, Newark, NG23 5DW

The Council determined not to make a modification order on the following grounds:

i. No documentary evidence was discovered supporting the existence of a historical public right of way (PROW) over the route applied for.

ii. The user evidence demonstrates that there has not been a consistent or sufficient level of use of any part of the Application Route by the public over the first of the 20 year statutory terms identified, 1984-2004, to reasonably allege that a PROW subsists by virtue of statutory dedication (section 31 (1) of the Highways Act 1980).

iii. Although the evidence suggests that the section of the Application Route between the trailer-bridge and Winter's Lane, via the sleeper-bridge, has been used to a greater extent over the second of the statutory terms identified (1993-2013), aerial photography shows that part of the route between the sleeper-bridge and Winter's Lane shows that it has changed position at some point between 1999 and 2005, i.e. during this statutory term. This means that there has not been a single consistent (unchanged) route which has been used throughout the second statutory term to raise the presumption of dedication. There has not been a consistent or sufficient level of use of the sections of the Application Route between the sleeper-bridge and Long Bennington Public Footpath 2 or between the sleeper-bridge and Westborough Lane over the second statutory term 1993-2013 to reasonably allege that a PROW subsists by virtue of the presumption of dedication over these sections.

iv. The evidence is supportive of the existence of a fixed gate across the eastern end of sleeper-bridge, a post and rail fence across the riverbank at two locations between the two bridges, a barrier across the riverbank below the weir and a post and barbed-wire fence at the point where the Application Route meets with Westborough Lane. The Council considered that the structures were not of a type which either promoted or facilitated public access along the Application Route and that the evidence showed that access could only be gained by climbing or stepping over the structures. Use of the Application Route in this manner was considered by the Council to be contentious user, which would amount to user by force according to the judgement R (Oxford & Buckinghamshire Mental Health NHS Foundation Trust and Oxford Radcliffe Hospitals NHS Trust)

v. Oxfordshire County Council [2010] EWHC 530 (Admin), and not user as of right, which is fatal to both presumed or implied dedication at statute or common law.

The Applicant lodged an appeal against the Council's decision not to make a modification order with the Secretary of State (SoS). On 12.06.2017 the SoS made a decision based on all of the available evidence to dismiss the appeal. In summary, the SoS found that the evidence was insufficient to show that a public right of way was reasonably alleged to subsist to warrant upholding the appeal and issue a direction to the Council to make a modification order. This means that no modification order will be made and the claimed footpath will not be recorded as a public right of way.

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Long Bennington application

Long Bennington map

Long Bennington Secretary of State Decision 12 June 2017