Agenda Item No
The Vale of Glamorgan Council
Report to Planning Sub Committee (Public Rights of Way): 26th February, 2014
Report of the Director of Development Services
Definitive Map Modification Order (No. DMO/53/378) Wildlife and Countryside Act 1981 Section 53(2) Public Footpath 75, Barry Nr Nant Talwg Pumping Station
Purpose of the Report
1. To update members on the outcome of the above order
2. That the contents of the report be noted
Reason for the Recommendations
3. Prior to the commencement of formal business at the 27th November 2013 meeting of the Planning Sub Committee (Public Rights of Way) discussions took place as to whether the Sub Committee should, in future, receive update reports in relation to any Orders made by the Sub-Committee which were subsequently challenged. Consensus emerged that this course of action would be followed in future.
4. On 29th July 2011 by the Vale of Glamorgan Planning Sub-Committee (Public Rights of Way) determined an application brought jointly by Mrs Gallimore and Underdown to add a public footpath to the Definitive Map.
5. The decision of the Sub-Committee was for a Definitive Map Modification Order to be made in respect of addition of a footpath between Points B - E of the Draft Order map (shown appendix 1).
6. The reason for the decision was that the application appeared to satisfy the requirements of Section 53 of the Wildlife and Countryside Act 1981 in respect of Sections B-E of the Draft Order plan.
7. An order was made on 11th November 2011.
8. Objections were received to the order from Mr Alan Kind, on the basis that the width of the path detailed within the order was excessive.
9. Objections were also received from one of the applicants, Mrs Gallimore. These were on the basis that the lamp post to which notice of the order was attached was several metres away, that the schedule did not record a stile in situ as a limitation and that the disability discrimination act had not been correctly applied.
10. The Council referred the objections and order to the planning inspectorate for determination. The Council and Mr Alan Kind sought that the matter be dealt with by way of written representation. Mrs Gallimore requested that it be dealt with by way of Public Inquiry. This was initially refused and a public hearing scheduled though was later upgraded to a public inquiry. The Council gave notice of intention to seek costs against Mrs Gallimore believing that a hearing could have been reasonably avoided in the context of the nature and strength of her objections. Mrs Gallimore subsequently gave notice of intention to seek costs against the Council.
11. Mrs Underdown joined objections to the order by the time of the inquiry.
12. The public inquiry was held on 25th June 2013
Relevant Issues and Options
13. The inspector declined to confirm the order as a result of the inquiry. The report of the inspector is attached for information.
14. The inspector considered the case on the basis of Highways Act 1980 s31 and common law. The inspector took the test to be the balance of probabilities.
15. In relation to the Highways Act the inspector concluded that insufficient evidence of use existed in order to raise a presumption of dedication under the 1980 Act.
16. Under common law the inspector reported that she believed the evidence supported an acceptance by the landowners of public use of a route to Porthkerry Country Park from the east, supporting an intention to dedicate a public right of way.
17. In reaching this conclusion she took account the making of the Order by the Council, who owned most of the land crossed by the route, and the lack of objection by Welsh Water, who owned the pumping station. However, she was not satisfied that clear evidence of a single identifiable route accepted by the public existed.
18. The inspector was therefore not satisfied, on the balance of probabilities, that the Council, or the objectors who were the original applicants and apparently supported confirmation of the route, had discharged the burden of proof to demonstrate the dedication of a public footpath over the Order route, or any other associated alignment, at common law.
19. The Inspector also made two awards of costs. The costs decisions are attached for information.
20. In awarding the council costs for two hours of wasted inquiry time against Mrs Gallimore the inspector drew the following conclusions:
Whilst I fully understand that the defendant feels very strongly about this case, and its relevance to FP73, her conduct in pursuing the matter has been unreasonable in failing to obtain appropriate advice, failing to accept advice given to her and failing to reasonably accept fair arguments advanced in the process. Even taking account of the 'learning curve’ I consider that the determination to press ahead with her own agenda is obvious throughout the correspondence with the OMA, The Planning Inspectorate and her conduct at the Inquiry.
Whilst it seems that much of her behaviour after 6 February 2013 was in fact an attempt to negate any costs being found against her, the overall effect has been to waste Inquiry time unnecessarily and so cause wasted time and therefore expense. However, as I am entirely satisfied that she had a right to be heard I do not consider that a full award of costs is appropriate. Given that points raised by the objector in relation to limitations and NGRs were accepted by the OMA it cannot have been unreasonable for her to raise them in the first instance.
I have considered the argument that a partial award relating to the second day of the Inquiry could be given, however, at least half of that day was taken up by the costs applications themselves. As I consider that the OMA should have sought the withdrawal of the objection prior to submitting the Order to The Planning Inspectorate, which may then have removed the perceived 'threat’ of costs and the subsequent matters arising, I am not satisfied that it would be appropriate to award costs for the entirety of that sitting period.
However, I do consider that two hours of sitting time was wasted by the unreasonable behaviour of the defendant requiring the Inquiry to deal with a request for a ruling, primarily on a matter on which she had already been advised, and the newly claimed alternative alignment north-east of point A. As such I consider unnecessary expense will have been caused to the OMA in convening the Inquiry for that period.
21. In awarding Mrs Gallimore costs in respect of expenses associated with the submission of information relating to incorrect National Grid References cited within the order schedule, the inspector drew the following conclusions:
Whilst I understand the applicant believes that the OMA should have made a different Order, it was open to her to challenge the decision at the Schedule 14 stage, which she did not do. In relation to the matter before me, under Schedule 15, it is generally the case that all the parties to an Inquiry normally pay their own expenses and I am satisfied that there has been no unreasonable behaviour on the part of the OMA in this respect.
The exception to this is the drafting of the Order. This is a legal document and Circular 5/93 sets out that the Welsh Ministers '...normally disregard errors or defects of a minor nature provided they do not, in their view, prejudice the interests of any person, render the order misleading in its purpose or appear to result in incorrect information being recorded on the definitive map. Nonetheless care should be taken in drafting orders to ensure they are correct and free from errors and defects, to reduce the possibility of their validity being challenged at a later stage in the procedure.'
Given that the OMA requested modifications in relation to the event specified in the Order, the addition of a stile as a limitation and the NGRs4, I am not satisfied that sufficient care was taken in the drafting of this Order. Whilst I fully accept that these matters will have arisen from error, rather than deliberate action, I consider that it was unreasonable of the OMA to have produced an Order with such defects.
I do not consider that a full award of costs is appropriate, as these points have not led directly to the wasting of Inquiry time. They were fairly and openly accepted by the OMA. However, I accept that the applicant will have spent time and resources in relation to the points she raised, particularly with regard to the matter of the NGRs. I consider that there was unreasonable behaviour in failing to draft the Order correctly and the need to pursue these points will have caused unnecessary expense to the applicant.
22. Mrs Gallimore has since sought judicial review of the Inspectors decisions, which is ongoing.
Resource Implications (Financial and Employment)
Sustainability and Climate Change Implications
Legal Implications (to Include Human Rights Implications)
25. Challenge of the decision by way of judicial review has not been pursued.
Crime and Disorder Implications
Equal Opportunities Implications (to include Welsh Language issues)
28. Maintaining and reviewing the definitive map are also aims within the Council's Rights of Way Improvement Plan.
Policy Framework and Budget
29. This report is for the information of the Public Rights of Way Sub-Committee.
Consultation (including Ward Member Consultation)
30. This report is for information only
Relevant Scrutiny Committee
31. Economy and Environment.
Inspectors inquiry decision
Inspectors decision on the cost application of the Council
Inspectors decision on the cost application of Mrs Gallimore
Gwyn Teague, Public Rights of Way Officer, Countryside and Economic Projects - Tel 01446 704810.
Bob Guy –Operational Manager, Countryside & Economic Projects
Geraint Davies - Lawyer
Rob Thomas – Director of Development Services