Byway Open to all Traffic through Dean Grove

Brian Murray
👍 1

Thu 6 May, 10:22

Thanks Liz for forwarding the statement and thanks Andrew for your willingness to share your thoughts on how best to respond. I look forward to learning of them when you are ready.

Andrew Chapman
👍 2

Wed 5 May, 14:07

Alas the explanatory statement doesn't really give much to go on in terms of how to respond unless you're an expert on the technicalities (see my note below, 3 May). I think Richard has given us the most plausible grounds, again below. I've had a conversation with Mr Moon this week, and he has certainly reassured me he doesn't have any agenda other than the historic right of way, although he appears to be keen on it being possible for horses to use the route in question. He contends that it would be a useless route for motor vehicles anyway as they would have to come to an abrupt halt at the Coldron Brook and go no further south-eastwards; a fair point, but alas that doesn't really stop the potential ruination of the flora if a BOAT is actually implemented on the ground, as it were. I'm pondering how to respond effectively - Brian, happy to share my thoughts when I've arrived at exactly what they should be!

Liz Leffman
👍 1

Wed 5 May, 13:51 (last edited on Wed 5 May, 13:54)

Brian, I will forward you the explanatory statement. I wouldn't advise a template letter as this may be discounted.

Brian Murray
👍 6

Wed 5 May, 09:57

I am sure that there are many people in Charlbury who, like me, just do not understand the complexities of this subject yet wish to voice their concerns and do whatever they can to stop something harmful happening to our beautiful surroundings.

If numerous submissions to the consultation are deemed to be beneficial, might it be possible for someone to provide a template that people such as me can use?

Alternatively, or maybe additionally, would it be possible for the town council to compile and submit a list of those people in support of the council’s submission?

I am really grateful for the time that contributors here have been devoting to the subject and I would hate to subsequently discover that a decision had been made which adversely affected the countryside, when I and others like me didn’t know how best to make our views known.

Philip Ambrose
👍 3

Wed 5 May, 07:56

Perhaps the inspector who made the decision should be invited to verify its appropriateness by test driving his car along the route starting at Pound Hill? He would not get very far!

Sue Normand
👍 1

Mon 3 May, 18:52

I noticed that the Inspector mention the fact that Watery Lane is on OCC's 'list of roads' maintained.  Which it is up to the end of the stoney part but not further. The Salt Way is similarly recorded yet that is a restricted byway?  

Andrew Chapman
👍 8

Mon 3 May, 13:25 (last edited on Mon 3 May, 13:25)

Thank you, Christine, and Richard for this amazing work - especially as you enter your final days as chair! I assume the map evidence you mention is the 1890s OS map, which does show the track in the grove, but it very clearly comes to an abrupt halt at the SE corner, at the parish boundary. (I'm told the landowners are looking into older documents just in case.) Question: does this sort of situation gain any benefit from the numbers of respondents to the consultation?

Richard Fairhurst
(site admin)
👍 8

Mon 3 May, 12:55 (last edited on Mon 3 May, 12:56)

At last week’s Town Council meeting, the council voted for the chair and clerk (i.e. me and Roger) to respond to the consultation, which I’ve now done. Although, as Andrew says, it’s in Spelsbury parish, it’s a path used and valued by Charlbury residents, so it’s entirely valid for us to respond to the consultation.

We’ve asked OCC to apply a Traffic Regulation Order to the section through Dean Grove to prevent motor vehicle use. Although the Sandford Principle doesn’t apply in AONBs, there are several well-established reasons for applying TROs, and “conserving the natural beauty of the area” is one of them. We’ve therefore reminded OCC of the path’s location in the AONB, and asked them to use this and other, similar qualifications as grounds for a TRO.

We’ve also made two separate points about the continuation of the path into Charlbury parish (i.e. the route through to Watery Lane). We attached map evidence showing that this was not used as a through road at the time that the Spelsbury section was believed to be so, and therefore no upgrade to BOAT status is merited. Second, we’ve asked OCC to confirm that the Charlbury section was not on the List of Streets before the 2006 Act, and therefore the exemption that the inspector uses to justify BOAT status would not apply.

We have asked OCC to reply on these points, and as soon as they do I’ll post further.

If anyone is able to find historical evidence disproving the inspector’s findings that would be ideal. But I think it’s risky to rely entirely on this being unearthed and then accepted by OCC. So asking for a TRO seems like a must in any case.

(I will reserve my feelings on the Oxford Fieldpaths Society for now!)

Christine Battersby
👍 4

Mon 3 May, 12:20 (last edited on Mon 3 May, 12:25)

Thank you, Andrew, for raising this again. I hadn't forgotten, but I was waiting to see if others had some better ideas than I have had.

The trouble with the Planning Inspector's Appeal Report is that it accepts that the outcome is not ideal in terms of the habitat, the flora or the environment. So it's only a technical issue that is likely to be relevant.

My earlier thought about cut-off dates for the 2006 Act won't work as this is building on an earlier complaint put in by the Oxford Fieldpaths Society. This was put in by the late Rowland Y. Pomfret, and submitted in 1991.

One thought relating to this is, however, whether the Inspector was right to accept The Oxford Fieldpath Society as a suitable entity to put in an appeal against the 2006 NERC Act. If it was simply being done in the name of Mr Moon, the cut-off date of 2005 might have been relevant -- although it sounds to me as if the Inspector thought there would be a strong case, irrespective of the date of the initial application.

On the Fieldpath Society and its status -- it's clearly a legitimate society for walking etc and has a long and respected history. But I am not sure it's sufficiently formal for it to count as a legal entity -- but I'm not a lawyer, so don't really know. I could  find no AGM minutes for the organisation after 2015, at which time there was no Secretary for West Oxfordshire recorded (post vacant), ditto for Oxford and Vale of White Horse. 

I also noticed that Mr Moon had requested that the missing section should become a Restricted Byway, rather than a BOAT. But I am not clear that Mr Moon could withdraw the application at this stage, even if he decided that he would like to do so. 

The only other thing I can think of is to appeal to the so-called "Sandford Principle" which I have picked up from gleam-uk.org. This states "Where irreconcilable conflicts exist between conservation and public enjoyment in National Parks, then conservation interest should take priority.” Given the the Cotswold ANOB is now a National Landscape & supposed to be more like a National Park, does the principle apply in our area? My suspicion is that it does not. But perhaps others have seen it appealed to.

I don't know if gleam-uk.org could help with this.

I noted Richard's and CPRE's point about a Traffic Regulation Order and, somewhere in the documentation that I read, I also saw that referred to as a possible way forward. However, I can also see from the latest decision recorded on the gleam.uk-org website that TROs can be weak modes of control. If there were a way to get the BOAT classified as a Restricted Byway this would be better.

Andrew Chapman
👍 4

Mon 3 May, 11:07 (last edited on Mon 3 May, 11:11)

I'd like to bring this thread up again to avoid it being forgotten - the deadline for responses is 26 May. It seems that nobody actually wants this route to have BOAT status; and I'm told the landowner is aware of the situation and is against that too. The explanatory statement that Liz mentions says: 'To be relevant, objections or representations should relate only to the question of the existence or status of rights of way.' So what actual arguments are there we can use to preserve this either as the current footpath, or at most a restricted byway? (I note that Mr Moon's original documents from 2010 express a clear preference for the latter rather than a BOAT. I have sent a message to him via an intermediary but haven't heard anything yet.)

And I'd like to invite all of the prospective town councillors to engage with this issue and share with us the steps they will take to support the protection of Dean Grove. (I don't think 'But it's in the parish of Spelsbury' is an acceptable answer…)

Philippa Phelan
👍 4

Wed 21 Apr, 14:54

This application was not made by CPRE but by Oxford Footpath Society as Mr Moon volunteers for both organisations. OFS had very good intentions of ensuring the route got recorded to go on the Definitive Map for posterity but it seems like the inspector went beyond what was asked for and felt it should be classified as BOAT. CPRE West Oxfordshire will be writing to OCC to push for a reclassification to a restricted byway and if that is refused requesting an RTO on the route. 

Liz Leffman
👍 3

Mon 19 Apr, 09:01 (last edited on Mon 19 Apr, 09:02)

The OCC Countryside Records Officer has sent me a very helpful Explanatory Statement about the reasons for the order and how to object.  In it he says "The Council will be willing to discuss the concerns of those objecting or making representations relating to the order. Please contact the Countryside Records Officer on 07789 653140."  If you would like a copy of this statement, which I don't think has been uploaded to the OCC website, please let me know and I will forward it to you by email. 

Rosemary Bennett
👍 3

Mon 19 Apr, 08:35

“I have not visited the site, but I am satisfied that I can make my decision without the need to do so.”

This is Point Two from the Inspector’s Decision, the first of which tells us that he has been directed by the Secretary of State.....blah blah blah blah blah, so this is coming from the top.

As with WODC, it appears that most of the officials who end up making their decisions have very little or no knowledge of the local natural environment that they are happy to urbanise.

Andrew Chapman
👍 5

Sun 18 Apr, 17:31

I haven’t contacted CPRE (yet) but have emailed the OFS to see if they can put me in touch with Mr Moon - I think it might be helpful to understand the purpose. It *seems* to be about technicalities and not wanting to lose rights of old trackways - but clearly here local context is everything and it would be a very blunt instrument to endanger these woods for potential vehicular access that nobody needs or even wants. I’m absolutely all for preserving public rights of way, but that’s not what’s being threatened.

Richard Fairhurst
(site admin)
👍

Sun 18 Apr, 16:35

Has anyone contacted CPRE Oxfordshire yet about this? The application seems to have been made by “Nicholas John Moon on behalf of Oxford Fieldpaths Society c/o CPRE Oxfordshire”.

Having ferreted through the documents both at Frank’s original link and those concerning the appeal (and in particular, the appeal decision), it seems that the Inspector has only formally ruled on the Spelsbury parish footpath being upgraded to BOAT, but that his reasoning applies to the entire Pound Hill—Dean route.

If this were to be opened to motor traffic as a result of an application made by CPRE (the Campaign to Protect Rural England)… well, words fail me! That couldn’t happen without OCC reclassifying the Charlbury section, but it might be difficult for them to refuse in the light of this decision.

What could (and I’d hope would) happen is that OCC could impose a Traffic Regulation Order, even if the route were reclassified. This would effectively be saying “yes, we agree this is a road, but we’ve put no entry signs on it”. It’s fairly commonplace and these paths would seem to qualify under several of the criteria.

Christine Battersby
👍

Sun 18 Apr, 15:57 (last edited on Sun 18 Apr, 16:00)

Gareth -- Just not understanding your post. The NERC Act  dates back to 2006 (and a Labour Government). As far as I can see the only thing still be changed under this Govt is a clause to do with Marine Management.

The 2006 legislation was in part designed to prevent the seemingly endless disputes about motor traffic being able to use green lanes, and where the evidence that was presented was based on historical maps and thus related to a time when, as Liz points out, modern motor vehicles simply did not exist. There was a date (20th January 2005) after which new cases could not be lodged, except under very exceptional circumstances. 

Nick Moon seems to be objecting to that as a cut-off date in the case of Dean Grove. Not sure why it is thought helpful to hear his case or to contact him, since he has set out his case in great detail in 72 pages (largely maps and historical records). (For the link see Andrew Chapman's post.)  Also not sure why you think it has anything at all to do with "proposals to shut off some old rights of way that this Government are pushing through in an anti-“trespass” initiative". 

I am not sure what Nick Moon's motives might be. But really it hardly matters, because if the path is opened up to all vehicles (which is what he is asking for) it is likely to become very wet and muddy (and less suitable for walkers and less protective for rare plants and the environment). 

Also, his request has the potential to open up again all the old debates about the differences between stagecoaches, cart and horses and motor vehicles that were supposedly put to bed by the 2006 act.

Gareth Epps
👍

Sun 18 Apr, 14:42

Christine - thanks.  The legislation can be found at https://www.legislation.gov.uk/ukpga/2006/16/section/67

This would seem to relate to proposals to shut off some old rights of way that this Government are pushing through in an anti-“trespass” initiative.  It would be interesting to hear Mr Moon’s thinking.

Christine Battersby
👍

Sun 18 Apr, 12:06

I have now glanced through the documents that Nick Moon supplied and see that he seems to be arguing that Section 67(1) of the Natural Environment & Rural Communities Act 2006 should not apply to several sections of this route. (The Charlbury section is also mentioned.)

The whole thing is amazingly complicated, and there is an organisation (gleam-uk.org) that Richard Fairhurst identified in relation to the Saltway. It has a huge accumulation of knowledge -- and may perhaps be able to offer some legal advice.

Their web-page dealing with exceptions to the 2006 act is here: http://www.gleam-uk.org/guidance/evidence-of-motor-vehicular-use-under-the-nerc-act-2006/

They also have a page dealing with the outcome of various recent legal appeals.

NB: it's important to register that decisions made with regard to one BOAT have implications for other footpaths and green lanes. That was the case with The Saltway and once again in this case.

Hannen Beith
👍 1

Sun 18 Apr, 09:08

Lol!  That occurred to me as well Philip, but I was too timorous to publish.

Philip Ambrose
👍 1

Sat 17 Apr, 20:53

The Trail Riders Fellowship are a great bunch of people who have rendered considerable service to the results teams at local horse trials, they are not a bunch of hoodlums. It seems a shame to me that they were unsuccessful in their claim re The Salt Way, a relatively well drained track, but Dean Grove / Coldron Mill / Watery Lane is a rather different matter.  Come to think of it, The Salt Way would make an excellent by-pass for Charlbury. (joke!)  

Liz Leffman
👍

Sat 17 Apr, 20:42

Excellent point, Christine.

Christine Battersby
👍 2

Sat 17 Apr, 20:29

Liz, Is it worth looking back at Richard Fairhurst's post with regard to the Saltway on 6 March 2018? (Link in my previous post.)

Richard wrote: <<The current OCC guidance says "A claim to add (or upgrade to) a BOAT may only rely on documentary evidence demonstrating an express intention to create a right of way for motorised vehicles", which appears to reflect the legal status post-NERC 2006.

So although the inclosure maps might have been evidence for proving the creation of a "road", which before 2006 could have been used to argue for the right for motor traffic to use it, that no longer seems to apply. Had TRF applied before 20th January 2005 they'd have had a case, but (mercifully) their application was made on 27th March 2006.>>

In fighting the case for the Saltway being redesignated a BOAT a number of people were encouraged to write in and say that there had been no recent evidence of the Saltway being used for motorised vehicles.

As long as the original application for redesignating Dean Grove as a BOAT was not made before 20 January 2005, I would have thought that the same arguments would apply.

Liz Leffman
👍 3

Sat 17 Apr, 19:01 (last edited on Sat 17 Apr, 20:06)

The decision has been taken by a planning inspector on behalf of DEFRA. OCC rejected the application for the path running through Dean Grove to become a Restricted Byway but at the appeal the planning inspector used the fact that this once formed a road between Dean and Charlbury to rule that the route should be re-designated as a BOAT. I had a meeting with the officer at OCC who has been dealing with this and he has sent me the relevant papers.  

We can appeal this decision - but it is complex.  Although we might want to appeal on the grounds that it will destroy a tranquil ancient piece of woodland full of rare plants this will carry no weight -  objections were made on these grounds at the appeal but they were discounted. The only way to appeal this is to look at the technical reasons why the decision was made and work out any flaws in the argument.  

The argument that this was once a road therefore it should remain a road is on the face of it preposterous as the last time it appeared on a map as a thoroughfare was when the internal combustion engine was in its infancy, though the argument given is that the public right to use it as a road has not been extinguished. Any footpath that was once a road could in theory be subject to the same argument so I think it is very important that we oppose this and we have till May 26th to appeal against this decision.

If you would like to get involved please message me through this website and perhaps we can set up a group to look at what we can do

Sue Normand
👍

Sat 17 Apr, 18:08

On the Oxfordshire definitive map a restricted byway was created in 2012 which runs from Watery lane parallel with the footpath westwards, then carries on westwards and in last field does a dog leg to get to gate into the woods.   Bridleway rights stop there at the parish boundary.  This application would mean the route for walkers, riders and cyclists could continue and join bridleway nr Dean pit as was, and avoid the roads which are quite narrow and busy.  And should be restricted as well...

Andrew Chapman
👍 3

Sat 17 Apr, 16:04

A document here - https://consultations.oxfordshire.gov.uk/gf2.ti/f/1208994/83178725.1/PDF/-/Appeal__ALL_APPENDICES.pdf - suggests Mr Moon has been involved with this for over a decade, by the look of it with good intentions as Christine suggests. I haven't had a chance to digest all 72 pages of historical information here yet! But that doesn't change the fact that allowing vehicles along that particular path would have a major deleterious impact on a magical piece of woodland. I will see if I can get in touch with Mr Moon.

Christine Battersby
👍 1

Sat 17 Apr, 14:58

There's a long thread about BOATS on this forum back in 2018 -- and in fact another one prior to that. Searching for BOAT in the MAIL SEARCH box brings up the links.

But the most useful thread is here: https://www.charlbury.info/forum/5084#29576

I was one of those who put in an objection in 2018 to the Saltway becoming a BOAT -- and our objections were successful.

Having followed up the links in the Frank Payne's post to see if it was the same organisation (the Trail Riders Fellowship) that put in appeals for so many of Oxfordshire's footpaths to be tuned into BOATs, I see that this is not the case.

This time the applicant is a Mr Nick Moon who publishes numerous maps and guides to footpaths, and it is indeed not the only application/appeal that he has lodged. He is recorded as being linked to Oxford Fieldpath Society. The Society seems to have laudable aims, and it might be useful to talk to the OCC about the implications of this. OCC officers were very helpful back in 2018.

Jane Crane
👍

Sat 17 Apr, 14:04

Definition:
BOATs allow the use of wheeled vehicles of all kinds, but the highway is normally used for walking or horse riding. Driving of off-road type vehicles for recreational purposes often happens along such highways. They are not usually surfaced, and can get very wet and muddy for obvious reasons.

It is not clear if this includes Dean Grove, I sincerely hope not it’s such a peaceful walk

Frank Payne
👍

Sat 17 Apr, 13:08

That would be a huge relief Richard, thanks for pointing it out.

Richard Fairhurst
(site admin)
👍

Sat 17 Apr, 13:01

I don’t think through motor traffic would be possible – the section in Charlbury parish is still a Restricted Byway, i.e. no motors. Horses and (chunky-tyred) bikes would be able to use it as a through route, though.

Andrew Chapman
👍

Sat 17 Apr, 12:43

Surely this can't be possible! Dean Grove is semi-ancient woodland with amazing flora and an incredible atmosphere. Making that diagonal path into a track would require mass destruction of trees. Thanks for drawing attention to this, Frank.

Frank Payne
👍

Sat 17 Apr, 12:13

I noticed yesterday that signs have been put up by OCC at the entrances to Dean Grove informing that a new Byway Open to all Traffic (BOAT) is to run through the middle of Dean Grove in a South Easterly direction, then across the adjacent fields  eventually linking up with Watery Lane, which will be upgraded to a BOAT. I'm hoping it is not what it seems, but on the face of it anyone with a suitable four wheel vehicle would be able to drive from Pound Hill across the valley all the way to Chadlington, cutting right through the middle of Dean Grove.

I've given a link to the relevant OCC web site here:

consultations.oxfordshire.gov.uk/03092.MadeOrder/consultationHome

It appears that the OCC originally rejected the application for this, but an appeal to the Secretary of State was successful in getting it approved.

Does anyone know what this will mean in practice, as on the face of it I fear that the tranquility of Dean Grove might be severely disrupted, as well as the wild life and flowers that are there. Or is this just a technical change in the status of the various tracks involved?

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