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Cinder Path

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I wonder if there is any news of the re-opening of this right-of-way?   I think Russell was instrumental in campaigning against the closure and seeking to get it re-opened.
The  reason I ask is that there is a Geocache half way along the path which has now been rendered inaccessible and suggestions have been made to have it archived, which would be a shame asit is the starting point for a series.
Any way, I have attached a few images of old maps which show the original route in 1913 and the diverted route around the rail yard in 1961.
Which begs the question, was the stopping up of the path for the new development legal?

There is currently no public right of way along the part of the cinder track that has been blocked up, so the owner can do as they please.

I organised and collected evidence in the form of signed witness statements from 12 local folk who said that they used the route for more than 20 years etc and I sent it to the Definitive Map section at County Hall with an application to claim a new right of way based on prescription (20 years public use without permission, not in secret and without force).

After more than a year, the application was refused. With help from Cllr Morland (who understands the law and has done it all before), I then appealed the decision to the Planning Inspectorate. I am still waiting for the Inspector's decision.

The central point in my Appeal against Wiltshire Council's decision in June 2018 not to make an Order adding the route as a new right of way to the Definitive Map and Statement was that plenty of evidence exists to prove that the public used the route for more than 20 years prior to the application which was made in 2016.
 The provisional statutory period would be 1996 - 2016, although some of the User Evidence submitted asserts much earlier/longer periods of use by the public as of right than that.

 The difficulty is that Network Rail say that all such evidence is defeated by Section 57 of the British Transport Commission Act 1949, passed over 70 years ago, which basically says that no new rights of way can be created via prescription over railway land or dockland.

 That is why the Appeal is based on several grounds and involves consideration of documents covering a much longer period since the Westbury Inclosure Award of 1808 and the earliest railway scheme affecting Westbury in 1836.

Below is my original case for the appeal as sent to the planning inspectorate. This was followed with several more emails responding to more comments from the WC case officer who kept changing her reasons for refusal one way or another and then I sent a link to a website containing all my photos of the the maps mentioned below and many others too.

From: Hawker, Russell
11 July 2018 11:33
 To:; xxxxxxxxxxxxx
 Cc: Madgwick, Sally; rightsofway
 Subject: Westbury Station DMMO application - Wildlife and Countryside Act 1981 Schedule 14(4) -- APPEAL AGAINST A DECISION NOT TO MAKE AN ORDER
To: Rights of Way Section      The Planning Inspectorate
3G Hawk      Temple Quay House      2 The Square      Temple Quay      Bristol      BS1 6PN
APPEAL to the Secretary of State – RE: Decision by Wiltshire Council to refuse my application for an Order to Modify the Definitive Map and Statement by adding a footpath over land at Westbury

Wiltshire Council Ref:  SM/2017/01 WEST

Dear Sir or Madam

Please accept this email as my notice of appeal against the above decision by Wiltshire Council.
Please acknowledge receipt.
By way of copying (CC) this email to the case officer at Wiltshire Council (Sally Madgwick – Rights of Way Officer, Acting Team Leader - Definitive Map and Highway Records), I am also serving notice of appeal on the Surveying Authority.
Please find attached the following documents:
  Final Decision Report.

* Appendix A
* Appendix B
* Covering Page for Decision Report
* Covering letter to me dated 14 June 2018. 

My Three Grounds of Appeal are as follows:-
 The Reason for Recommendation [22.0 - 22.14] and Recommendation [23.0] in the 58 page Decision Report dated 04 April 2018 (Application number: 2017/01), but sent to you on 14 June 2018 (see letter - reference: SM/2017/01 WEST), cannot conceivably apply to the portion of the route down the slope (formerly steps) from Station Road to Station Approach (see Photographs (July 2017) [5.0] - photograph on page 9), which is recorded as publicly maintainable highway on the Council's Highway Record (see also under Current Records [4.0],[4.1] and shaded sienna at [4.3]).   This portion of the route appears for the first time on the Ordnance Survey's County Series 1:2500 sheet 44.8 Edition of 1924 - although not on the extracts from that sheet on page 42 [11.55] and page 44 [11.57] of the Decision Report.

 The claim based on User Evidence - under Section 31 of the Highways Act 1980 (see at [12.2] on pages 46, 47 and 48) - requires use by the public as of right ( viz. nec vi, nec clam, nec precario) for a period of 20 years, immediately prior to the date when the right of the public to use the way is brought into question.   The objectors do not assert any challenges, permission or obstructions prior to the obstruction of the cinder path in 2016 as stated at [9.4], [11.59] and [11.60] and in the Summary of User Evidence in Appendix B of the Decision Report, so the provisional relevant statutory period must be 1996 - 2016.
It appears that Network Rail relies exclusively on Section 57 of the British Transport Commission Act 1949 to defeat the claimed route based on User Evidence (see [7.4], [7.6] and Appendix A).  The Decision Report itself indicates doubts about the application of that Section to the claimed route, both at [8.3], [8.4] and [8.5], not least that it cannot apply to any period prior to 1949, and that what is said by other objectors (DB Cargo UK and First Great Western) suggests that substantial parts of the claimed route may fall outside the scope of Section 57, viz. they are not "an access or approach" to premises of the Commission.   The Decision Report further considers the position at [12.3] and [13.4] to [13.6] and again at [22.6] to [22.11].
Even on that analysis, it is submitted that Section 57 of the 1949 Act alone is not "incontrovertible evidence" (see [22.4]) sufficient to defeat the allegation that public rights exist over every part of the claimed route under Test B (see [22.2]).   The words "less clear" in [22.8], "a reasonable allegation of public rights could be made" in [22.11], and "The Council has before it some evidence of use prior to 1949" in [22.14] of the Decision Report, the words "Part of the path was in regular (and undisputed)) use until 2017 when it was blocked by a fence and a bund and part of the path remains in use as part of Station Approach." in the first bullet point of the Decision Report Summary, "The path is well documented as a physical feature since that time [1915]." in the fourth bullet point, and "some evidence of public use at this time exists" in the sixth bullet point (see Covering Page for Decision Report), and "it may be possible that public rights could have been acquired over the southern section of the path pre-1949" in the covering letter dated 14 June 2018 cumulatively indicate that the application meets Test B (at least) and ought not to have been refused.
In any event, the 1949 Act was a local act, not a public act and Section 57 applied specifically to the British Transport Commission itself and to its property and premises alone.   The British Transport Commission was abolished with effect from 1 January 1963 by the Transport Act 1962 and replaced by four separate Boards and the Transport Holding Company, each constituted as separate statutory corporations for each of its former activities.   Thus the powers in Section 57 ceased in 1962 and are no longer applicable at all, or at best are only applicable for the period from 1949 to 1962, more than 33 years before the start of the Provisional relevant period (1996 - 2016) stated in Appendix B.
The information about Land Ownership [3.0] and [3.1] in the Decision Report is extremely imprecise, even about the current position, let alone about earlier periods, but neither DB Cargo (UK) Limited nor Network Rail Infrastructure Ltd. have any direct connection with the British Transport Commission, nor even existed when it was abolished in 1963.   The Decision Report's assumption that either of them is entitled to rely on Section 57 of the 1949 Act is mistaken.

 There are substantial omissions and misunderstandings of the huge volume of documentary evidence applicable to this application.   This has caused the Council wrongly to accept virtually at face value the mistaken history of the claimed route presented by Network Rail (see at [7.4], [7.6] and Appendix A of the Decision Report), in particular that there were no rights of way in the vicinity of the claimed route prior to the Wilts Somerset & Weymouth Railway Act 1845.
In fact, closer study of Map B of the Westbury Inclosure Award in 1808 (WSHC Cat no. EA76) shows that the Brook Footway, number CXXXII, passed directly through allotment 376 on its route from "Dyehouse Lane Road at or near a place called Cooks Styles" (see [11.2] to [11.6] of the Decision Report) to Brook.   It is unfortunate that the route of it has not been enhanced on the extract of Map B at [11.5] and that its whole route is not displayed.
However, it is clear that the allotted route of Brook Footway ran more or less directly from its starting point (at or near what is now the Fire Station on Meadow Lane), past what is now the Westbury United Football Ground to a point on Cowards Withey Lane at or near what is now the Railway Inn (there is still a public footpath along most of this route except the short diversion of it at the Westbury avoiding line made by Section 20((4)(b) of The Great Western Railway Act 1930 - see [11.22] to [11.27] of the Decision Report).   From there I believe it crossed allotments 377 and 378 to enter allotment 376 (where it is annotated).   The suggestion (see [11.7] of the Decision Report) that it originally followed a route via Sopps Lane (now Oldfield Road) and then on the current line of Westbury 15 across the Westbury avoiding line is entirely incorrect.
Another allotted way (XLVI) 12 feet wide is marked along the boundary between allotments 376, 377 and 378, but whether this connected with the Brook Footway is unclear from the extract at [11.5].
The Wilts Somerset and Weymouth Railway (Amendment) 1845  Deposited Plans and Book of Reference (WSHC cat ref. A1/371/68) are referred to at [11.15], but not displayed;  but an extract can be found in Appendix A.   Not all the plot details have been abstracted there, notably 246 and 251, but I believe the Description "Arable & Footpath" for plot 250 refers to the Brook Footway and directly contradicts Network Rail's assertion in its covering letter dated 14 September 2017 that "Although the referencing details refer to footpaths, ...........they are purely referenced in private ownership."
I would have expected the relevant sections/schedules of the 1846 Amendment Act to be abstracted and displayed in the Decision Report but nothing is included and the letter from Network Rail dated 14 September 2017 at [7.6] and Appendix A is silent too.   It is possible that the Brook Footway was left on its original route with simply a level crossing over the new line(s), but even then I would have expected some mention of it in the Act.   That would clearly demonstrate that it was recognised as a public footway, so the point is very important.
It should be noted in passing that the deposited plan marks but does not number plots 377 and 378 on Map B of the Westbury Inclosure Award 1808; from which it is clear that the 1846 Amendment Act did not authorise the compulsory purchase of those plots and hence at that time the Station Approach could not have been laid out in the way it later appears on the Ordnance Survey County Series 1:2500 First Edition sheet 44.8 published in 1887 (see [11.53] or on the OS 1:10560 sheet 44 published in 1890 (see in Appendix A of the Decision Report).
There is a gap of almost 80 years between the Westbury Inclosure Award of 1808 and the Ordnance Survey County Series 1:2500 First Edition sheets 44.7 and 44.8 surveyed in 1884 and published in 1887, for which period the Deposited Plans and Books of Reference of Railway Schemes are very important.
Unfortunately, the overview plan of these in [11.11] of the Decision Report was prepared for a quite different purpose and is incomplete and inaccurate in almost every respect.
Research to date has identified at least 13 such railway schemes in the vicinity of the application in the period up to 1933 (when the Westbury avoiding line was opened), of which 9 were enacted and 4 were not, viz.:-
A1/371/9 (1836) Great Western Union Railway Bath to Weymouth - not enacted.
A1/371/36 (1844) Wilts Somerset & Weymouth Railway - enacted 1845, but not built (through Westbury).
A1/371/41 (1845) Direct Western Railway 1st Division - not enacted.
A1/371/44 (1845) Berks & Hants Extension Railway Hungerford to Frome Selwood - not enacted.
A1/371/46 (1845) London Devizes & Bridgwater Railway - not enacted.
A1/371/68 (1845) Wilts Somerset & Weymouth Railway Alterations & Extensions - enacted 1846, and built (through Westbury) - opened 1848, 1850 and 1851.
A1/371/71 (1846/1847) Great Western Railway Berks & Hants Extension - enacted 1848, but subsequently lapsed.
A1/371/113 (1865) Berks & Hants Extension Railway Stert to Westbury - enacted 1866, but subsequently lapsed.
A1/371/132 (1882) Great Western Railway Stert to Westbury - enacted 1883 (Railway No. 6), but abandoned by Section 39 of the 1894 Act).
A1/371/145 (1893) Great Western Railway Stert to Westbury - enacted 1894 [GWR (No.1) Act] (Railway No. xxx and built (outside the limits of deviation).
A1/371/155 (1898) Great Western Railway - enacted 1899.
A1/371/166 (1904) Great Western Railway Swindon & Westbury - enacted 1905 [GWR (Additional Powers) Act].
A1/371/173 (1929) Great Western Railway Westbury avoiding line - enacted 1930 (Railway No. 2) and built, opened 1933.

So the evidence in the Decision Report (at [11.12] to [11.14]) drawn from only one of these schemes (and not one of those enacted) carries only limited weight, and nothing in it demonstrates that there had been a diversion of the allotted Brook Footway onto Sopps Lane prior to that date.   Indeed, the plan at [11.13] appears to confirm that the Brook Footway still followed its allotted route within the Limits of Deviation shown.
Furthermore, it is unsatisfactory that extracts from the Deposited Plans and Book of Reference of the Wilts Somerset & Weymouth Railway Alterations & Extensions 1845 (A1/371/68)  are not included at [11.15] (or at [11.48]) of the Decision Report.
It is also unclear whether/how the Great Western Railway Act 1899 affected footpaths in the vicinity of the application (see [11.17] of the Decision Report).
The statement in [11.18] of the Decision Report (and elsewhere) that "The plan clearly shows the line of the historic footpath (Brook Footway)" is erroneous, and it should be noted that the wording of Section 53 of the 1905 Act differs from [11.18] to [11.20].
On the point made specifically about the "cinder path" section of the claimed route (see [7.2] of the Decision Report), the evidence drawn from the Ordnance Survey adds significant weight.
The Ordnance Survey County Series 1:2500 First Edition 1887 marks this as "F.P." and the implication must be that it is not a cul-de-sac and therefore connects into the footpath marked along the south east side of the railway from Westbury Station to the railway crossing to Brook (see [11.53] of the Decision Report).
The Ordnance Survey County Series 1:2500 Second Edition 1901 marks this as "F.P." southwards to its junction with Penleigh Drove Road (see partial extract at [11.54] of the Decision Report), and none of this was stopped up or diverted by Section 53 of the Great Western Railway (Additional Powers) Act 1905.
The Ordnance Survey County Series 1:2500 Edition of 1924 marks this as "F.P." throughout from Penleigh Drove Road northwards to the railway (and this edition is clearly the basis on which the provisions of Section 20(4) of the Great Western Railway Act 1930 were drawn).
The provenance of the plan at [9.3] of the Decision Report is not stated, but as it marks the Westbury avoiding line, it clearly post-dates those at [11.55] of 1924 and at [11.26] of 1926, and from the plot numbers shown, must be from a later Edition of the Ordnance Survey County Series.   This clearly marks the "cinder path" as "F.P." and in all respects confirms the position recorded in the 1930 Act.
The coloration added to it is not accurate and attempts unsuccessfully to conflate changes to the footpath network made at a variety of dates (some not yet adequately elucidated).   Oddly too, it appears to mark another railway line crossing the footpath, which is unmarked on any other plan displayed in the Decision Report, and may indicate that some further matters remain to be elucidated.
The tabulation of evidence at [13] of the Decision Report draws a number of conclusions that are disputed, and it is unfortunate that the "Crossing at the level for Brook Footway" is not evidenced elsewhere.   The statement at [13.2] is also disputed, as is that at [13.15].   There are also transcription errors in the extract from R J Cogswell's "Westbury Ironworks" at [9.2] (and the Great Western Iron Ore Smelting Company had no connection with Westbury whatever) and of Section 20(4)(e) of the 1930 Act at [11.24].

Yours faithfully
Russell Hawker
Wiltshire Councillor for Westbury West
25 Caspian Gardens      Westbury      Wiltshire      BA13 3GP


That seems quite comprehensive, Russell, and hopefully common sense will prevail based on the historical evidence.
I will await the result with interest.

Why is Network Rail seeking to close the footpath?

If you mean they are seeking to close the pedestrian level crossing, Network Rail did say a few years ago that they would do so as a result of the suicides that keep occurring every few years.

Strangely, local papers do not report all the suicides or other deaths that occur. I think NR think that when the new estate gets built, the numbers of folk using the crossing will go up and there will be more having accidents (ie. not paying attention to the fast trains on this avoiding line) or suicides. They will say that the proposed nearby bridge will be the alternative route in due course and that walking along Oldfield Rd and Station Road. with a shortcut via Bridge Court and a footpath, is a perfectly feasible route to walk anyway.


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