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We have heard much discussion about bollards and chains across the tarmac driveway. No-one has argued, though, that these prevented the use of the path by pedestrians, or even cyclists, at any time between 1979 and 2016. People were able to step over, walk round, or squeeze underneath the chain. The Byron Court Management Company's witnesses have described "cocking our legs over the chains" (Bernadette King), or "lifting up the chain for the children to push their bikes underneath" (June Donnelly).
The Planning Officer's 2000 report, discussing the planning application for what became Byron Court, described the path as a "historic link". The Landscaping Layout Plan submitted by Wimpey Homes - reading 'Maintain Pedestrian Route' - confirmed that the path was still in use, at that time, as a thoroughfare between Woolton Park and Acrefield Road, and that Wimpey Homes acquiesced with this when they built Byron Court. Two of our witnesses - Bob Collins and Councillor Malcolm Kelly - have given evidence recalling the discussions which took place at that time. There was no suggestion that pedestrian movement should be curtailed, merely a concern that vehicles should not be allowed to use the path. We maintain that the use of the path by pedestrians since 1979, with the acquiescence of the land owner Liverpool City Council, was already, by 1999, sufficient to establish it as a Public Right of Way. That is why we described its omission from the 2004 Definitive Map as a "mistake".
Since 2002 the sole owner of the Byron Court land through which the claimed Right of Way passes has been Hayne Securities Ltd (formerly known as CPM Securities Ltd). The Byron Court Management Company did not, initially, dispute this. Their solicitors wrote to Hayne Securities in 2016 seeking consent to build the wall. As far as we are concerned, the failure of the freeholder, Hayne Securities, to put up Highways Act disclaimer notices indicates that they were content for pedestrians to continue to use the path. Moreover, the failure of Hayne Securities to give explicit consent for the building of the wall, and to object to the Order, reinforces this view. One of Byron Court Management Company witnesses argued that Christopher George's failure to respond to their letter indicated Hayne Securities' acquiescence with the building of the wall. We would argue that his failure to respond to the notification of our Claim in May 2016, and to the notification of the Order in December 2016, indicates Hayne Scurities' acquiescence with the addition of the Right of Way to the Definitive Map.
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