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5 Conclusions
5.1 Section 31 of the Highways Act 1980 states that "Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it".
In the case of this particular pedestrian route, there cannot in our view be any argument about the path's status, as innumerable local residents and visitors have been using the route in question, without hindrance, for the past 40 or more years.
5.2 The User Evidence that has been submitted indicates that the path has been of widespread benefit. It has been used regularly by residents of a large area, for a wide variety of purposes. There have been no notices prohibiting its use by pedestrians or cyclists. Despite being notified of the Right of Way Claim and, subsequently, the Modification Order, neither of the two Land Owners (Liverpool Mutual Homes and Hayne Properties Ltd) has submitted an objection. The main reason cited by objectors to the Order is the alleged crime and anti-social behaviour 'caused' by the footpath, but the Police have been unable to corroborate these allegations. The alternative routes available to pedestrians and cyclists involve lengthy detours and the use of busy, polluted roads and/or poorly-maintained, hazardous surfaces. The advice alleged to have been given to the perpetrators of the wall - that it did not need permission because the route was not a Public Right of Way - was unfortunate and inaccurate. The omission of a footpath from the Definitive Map does not mean that a Right of Way does not exist.
5.3 Bearing in mind that the incident referred to in the City Council's report RS/450/16 - i.e. the turning back of the grandson of a Glenacres resident - actually took place AFTER the wall was built, we see no reason why the Highways Act cannot be used as an argument for designating the path as a Public Right of Way (on the basis of 20 years unhindered use prior to March 2016). This is in addition to the Common Law argument, based on unhindered use between 1980 (or earlier) and 2000.
5.4 We ask that the Modification Order be confirmed, and the wall removed, as soon as possible.
Mike Chitty
Environment Secretary
THE GATEACRE SOCIETY
30 January 2018
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