At Monday night’s Group Parish Council meeting, Cllr. Simon Christopher delivered 3 separate reports: a general one, one on Waste Management (Click HERE) and this one – on Common Water Lane:
Dear Councillors and Helen
I thought I would send you a separate report in respect of Common Water Lane for Helen to distribute please.
Earlier this Summer I met with a solicitor at a practice that I have worked with for almost 30 years. The solicitor in question is a specialist in public rights of way and access to land.
I took this decision as I am clearly not the font of all knowledge on these matters and would be beneficial in an attempt to move matters forward and the meeting and written advice to me would not involve a cost to the parish council. It was said of him in the Chambers UK solicitors guide that: “His knowledge on public rights of way is vast“.
His is also honorary adviser to the Green Lane Environmental Action Group (Until April of this year Prince Philip was Patron of this organisation). Within the legal directory , the Legal 500 he is considered “an industry leader in his own area of expertise public and private rights of way and access to land and leaving no stone unturned”.
I was advised by the solicitor that the power to a Traffic Regulation Order exists under the Road Traffic Act 1984 and Regulations made under Statutory Instrument 1996/2489.
The question arose as to whether it would be appropriate to make a TRO while allowing private access. The power exists to do so if Dorset Council accept that any one or mor of the of the specific powers listed in as 1(1) of the 1984 Act applies to the Lane. From the explanations that I gave he concluded that those powers or at least those first six powers listed in section 1(1) of the 1984 Act do apply there should it his opinion be no issue that a TRO would be appropriate.
I have to say at this point that as a Dorset Councillor I commented that the present position is in my opinion unsustainable and needs urgent control. We concluded that for the same reason that it is both appropriate and a priority there can be no doubt about necessity. We then went on to discuss the physical possibility of installing barriers , which prevent unauthorised use but which allow private access to land and property served by the Lane but also public non vehicular use, principally on horseback and on foot. The solicitor after considerable comment about the benefits to adjoining land owners and local residents, horse riders and walkers then examined what the thoughts of more learned persons at Dorset Council might be if the struggle is continued!!!
His opinion was that Dorset Council would no doubt want/ need to make 3 specific assessments as to:
- What is precisely the current highway status of the Lane?
- As to what is its true legal width?
- What private rights can be shown to exists?
With respect to the first assessment it was the opinion of the solicitor that “the likely answer was that the status of the Lane is an Unclassified Road (UCR)“ – probably no surprises for the reader there it may he said have been a RUPP (Road Used as a Public Path) in 1949, but others may be able shed light on this.
One of the more interesting points to observe is that the solicitor did point out that even if the Lane is a Unclassified Road there is, in his opinion , “no guarantee that public vehicular access exists in a UCR. It depends upon an assessment of all the available evidence of status , as to what the public status is.“ Further he added “One needs to be absolutely sure about this question of status before proceeding.
That research would need to include research of such things as The Object Names Book, The Finance Act 1910, map and book entries, the Handover Map 1929 , the list of streets and the Definitive Map and parish survey . It may also be necessary to go back further , to tithe records and inclosure records “
With respect to the second assessment he added: “The width of a highway is a notoriously difficult question to be sure of. Put simply , the width will encompass not only the metalled strip down the middle but also the verges wall to wall as it were, BUT the latter point is not certain and depends upon whether the boundary features in question which bound the Lane were put in by reference to the highway or for other purposes”
With respect to the third assessment: “Private rights will normally benefit all properties and fields having access off the Lane. The rights will either be expressly contained in the deeds of the property or field and or have arisen by long use . If the latter the purposes will be only be for the purpose for which it was exercised during the long use period . Thus for houses the private right will normally be for residential purposes only; for agricultural property normally for agricultural purposes only”.
He essentially finished his advice by adding that the spending of public money will be a key factor in Dorset Councils decision making process!
I look forward to meeting with, perhaps, a working party of parish councillors to discuss further if you decide this is appropriate. Clearly to arrive at a satisfactory position in respect to the Lane is even more difficult than I might have thought!
Dorset Councillor Marshwood Vale
Edited by: Wendy Shields.