modification of definitive map and statement for the ravenglass ...

Lake District National Park Authority Agenda Item: 10
Rights of Way Committee: 2 April 2009 Page 1
MODIFICATION OF DEFINITIVE MAP AND STATEMENT FOR THE RAVENGLASS
VIADUCT FOOTPATH, PARISHES OF MUNCASTER AND DRIGG AND CARLETON
1 Summary
1.1 An error has been identified on the definitive map and statement in relation to
footpath 418033 which can only be amended by a modification order.
Recommendation that: a
b
We make a modification order to amend the
definitive map and statement for the Ravenglass
viaduct footpath.
We confirm the order if unopposed, or forward it to
the Secretary of State if objections are sustained.
2 Background
2.1 It was brought to our attention that there was an error on the definitive map and
statement for the Ravenglass footpath in February 2007. The footpath was closed
by a Traffic Regulation Order to enable Network Rail to carry out maintenance work
to the footbridge and the Viaduct.
2.2 The parish boundary runs along the River Mite. South of the river is the parish of
Muncaster and north of the river is the parish of Drigg and Carleton. The Ravenglass
footpath crosses the river and is therefore in both of these parishes. But it is only
recorded as being footpath 418033 in the parish of Muncaster.
3 Policy Context
3.1 The Authority is performing a statutory function under powers delegated to it by
Cumbria County Council. Matters referred to in this report should be determined in
accordance with legal requirement and the evidence presented to the committee.
The Authority’s policies are of no relevance to any decision made. Other policies
such as diversity or access improvements cannot be considered under the
modification process.
3.2 The basis for the work is found in AR3 within the National Park Management Plan
(NPMP) 2004 which states that we will extend, improve, protect, and provide up-todate
information on, the rights of way network and opportunities for access.
Modification orders help provide clarity with respect to the network.
4 Options
4.1 Members need to decide whether:
a) to make a modification order to record the footpath as being in both the
parishes of Muncaster and Drigg and Carleton; or
b) not to make a modification order.
5 Proposals
5.1 I recommend that we make a modification order (option 4.1a) to amend the definitive
map and statement. The justification for this is given in the annexes to this report.
The annexes include the first definitive map for Cumberland, the 1976 Special Review,
the 1976 definitive map and statement and consultation responses.
5.2 If we do not make a modification order, the footpath will remain recorded in the wrong
parish.

Lake District National Park Authority Agenda Item: 10
Rights of Way Committee: 2 April 2009 Page 2
6 Best value implications
Challenge: The modification order process will help produce an accurate up-to-date
definitive map and statement, which helps us fulfil our other rights of way functions.
Compare: This proposal will help us towards completing our outstanding
modification cases.
Compete: There is only one other authority (Cumbria County Council) that can
process modification orders – we have chosen to accept full delegated powers for
this work.
Consult: We have consulted user bodies and other interested parties.
7 Finance Considerations
7.1 When considering a modification order, cost factors must not play any part in the
decision-making process. Full guidance on decision making can be found in Annex 1
7.2 The costs involved in modification orders vary greatly between each case. A simple
order such as this could cost as little as £1,100 in staff time and postage (plus two
advertisements at about £260 each). Complicated orders can take many years to
process, and can consume large amounts of staff time – the value of which it is difficult
to calculate.
8 Risk
8.1 This case has been investigated following the Authority’s standard procedures and
has been monitored by the Solicitor. I therefore consider this risk to have been
addressed. There is also the possibility of a challenge to the order. Reporting to
committee and the associated debate and decision provides the most effective
defence against any legal challenge.
9 Legal Considerations
9.1 Any order will be made under the provisions of the Wildlife & Countryside Act 1981,
section 53(3)(c)(iii). We have delegated powers for this work from Cumbria County
Council as part of our Agency Agreement.
9.2 The purpose of modification orders is to accurately record existing rights. Therefore
there are no Human Rights Implications; this has been tested in the courts.
10 Human Resources
10.2 Work involved in this proposal is approximately 20 hours from members of the
Countryside Services teams, and one hour from other staff (Head of Countryside
Services, Head of Legal Services). It is part of our day-to-day duties, and some of it
has already been undertaken.
11 Diversity and Sustainability Implications
11.1 These are not relevant issues. The matter can only be considered on the evidence.
Background Papers: Case file reference 1422.418.03
Author:
Helen Elbourne Access Assistant
Date Written: 10 February 2009
Version
FINAL

Lake District National Park Authority Agenda Item: 10
Rights of Way Committee: 2 April 2009 Annex 1 Page 1
Annex 1: Definitive Map Modification Orders - guidance on decision making
Modifications require us to look back to discover what has happened in the past, establish
the facts and apply the relevant legal tests to decide whether or not a right of way exists.
Whether this provides new opportunities for users or creates difficulties for landowners (or
ourselves) is irrelevant and must not be taken into account.
This differs from public path orders, which involve creating, closing or diverting paths. With
these, the Authority exercises discretion to make changes to the rights of way network to
improve it for the future, or to reduce problems wherever possible or to create new
opportunities for path users.
The Wildlife and Countryside Act 1981, part 3, section 53, concerns the making of
amendments (modifications) to the definitive map on the basis of evidence alone. The
evidence must be considered in isolation to all other factors such as local history,
desirability or otherwise, personalities involved, Authority policy, etc.
The evidence put forward in the report should be sufficient to enable Members to reach a
decision.
Modification orders may amend the definitive map, provided that the evidence discovered is
cogent and shows that, on the balance of probabilities, a change should be made. The
possible changes are:
(1) add to the map rights of way not presently shown,
(2) remove rights of way already on the map,
(3) upgrade or downgrade rights of way already shown on the map or
(4) change some details of a recorded right of way.
The modification process is legally complicated and a significant number of cases have
reached the High Court and beyond. The reports prepared for committee by the rights of
way staff outline the law relating to each case and endeavour to draw your attention to the
significant points. We will, of course, be present at the meetings to assist with clarifying any
matters connected with these items.
The Authority is acting in a quasi-judicial capacity and must reach a decision based
on the evidence presented, weighing such evidence using the test of the ‘balance of
probabilities’. Although officers have considered the evidence, and made a
recommendation to members based on their appraisal, members must themselves
consider the evidence and reach their own conclusions.
Members are not required to resolve conflicts in the evidence and there may well be
evidence on both sides of the issue. You must weigh up the evidence and, if on balance, it
is reasonable to conclude that the evidence shows that change should be made, you should
authorise the making of a modification order.
If a modification order is made the public have a right to object to that order. The matter
would then be determined by the Secretary of State. Conversely, if the resolution is not to
make an order, the applicant also has a right to appeal.
Nick Thorne, Senior Rights of Way Adviser, 15 September 2006

Lake District National Park Authority Agenda Item: 10
Rights of Way Committee: 2 April 2009 Annex 2 Page 1
ANNEX 2: MODIFICATION OF DEFINITIVE MAP AND STATEMENT FOR THE
RAVENGLASS VIADUCT FOOTPATH, PARISHES OF MUNCASTER AND DRIGG AND
CARLETON
1. Background
1.1 The length of Ravenglass viaduct footpath (Points A to B to C) is recorded as being
in the parish of Muncaster. The parish boundary runs along the centre of the River
Mite. South of the river (Points A to B) is the parish of Muncaster. North of the river
(Points B to C) is the parish of Drigg and Carleton.
1.2 The definitive map description for footpath 418033 correctly describes the footpath
on the ground from Point A to B to C. However, the definitive map and statement
describe the footpath as being in only the parish of Muncaster. The map and
statement should record the footpath as being in two different parishes.
2. Investigation
2.1 I have investigated documentary evidence to support the case that the definitive map
and statement contains an error.
2.2 The italicised and bracketed numbers (p1-6) refer to the pages in the document
bundle.
3 Legal Guidance – section 53(3), Wildlife & Countryside Act 1981
3.1 Section 53 (3)(c)(iii) of the Wildlife and Countryside Act 1981 enables surveying
authorities to make amendments to the definitive map and statement on the
discovery of evidence which (when considered with all other relevant evidence
available to them) shows that particulars contained in the map and statement require
modification. We must only consider the facts and whether the legal grounds for an
order are met. The law is not concerned with the desirability or otherwise of a
claimed modification.
3.2 The only evidence which may be considered in this case is “does the definitive map
and statement correctly record the footpath between the road at Ravenglass, across
the bridge to the Saltcoats road?
3.3 A modification order is the only way to correctly amend the definitive map and
statement.
4 Documentary evidence
4.1 The footpath is shown on several documents. These can be found in the document
bundle at the back of this report.
4.2 The definitive map process
4.2.1 The National Parks and Access to the Countryside Act of 1949 required all county
councils to produce a definitive map and statement of rights of way. The county
councils relied on the parish councils, with their detailed local knowledge, to record
all paths in their area that had public status. The relevant date for Cumberland’s first
definitive map was 1 June 1953.

Lake District National Park Authority Agenda Item: 10
Rights of Way Committee: 2 April 2009 Annex 2 Page 2
4.2.2 The above Act also allowed for a periodic review of the definitive map and statement.
The object of a review was to produce a revised map and statement, adding any
rights of way omitted from the previous map, any rights newly acquired (for example
using a path for twenty years), and by showing changes (for example creations,
diversions and extinguishments). After Cumbria was formed in 1974, a new definitive
map and statement was drawn up within the county (as a “special review” under the
provisions of the 1968 Countryside Act) with a relevant date of 1 January 1976.
4.3 The First definitive map for Cumberland – 1 June 1953 (p1)
4.3.1 The path did not exist on the ground at this point.
4.4 The 1976 Special Review (p2 & 3)
4.4.1 On 7 November 1977 footpath 418033 was added to the definitive map and
statement by the “special sub-committee on public rights of way”. The evidence for
adding the path was that “the footbridge and pathway was constructed by
Cumberland County Council about 1959. The Parish Council claim uninterrupted
public use since that time”.
4.4.2 The information sheet from the sub-committee described the footpath to be added as
being in the parish of “Muncaster”.
4.4.3 For information, the bridge was constructed to provide a safe crossing of the river
after residents had been using the railway itself – which led to a fatal accident.
4.5 The 1976 definitive map and statement (p4 & 5)
4.5.1 Footpath 418033 was added to the 1976 definitive map and statement. The
statement reads “From County road in Ravenglass 15 metres west of railway bridge
(Point A), north-westerly for 280 metres along concrete footpath to cross River Mite
by railway footbridge (Point B), thence turning south-westerly for 120 metres to rejoin
county road (Point C)”.
4.5.2 The definitive map shows the footpath as it is on the ground and correctly shows the
parish boundary in the centre of the River Mite. But the description and numbering
incorrectly describe the footpath as only being in the parish of Muncaster.
5 Consultations (p6 to 9)
5.1 We are statutorily obliged to consult the relevant local authorities. The responses
from our consultees are outlined below:
County Councillor
Local Access Forum
The ramblers’ Association
Archaeologist
LDNP Ranger
Happy with the proposal.
The Forum asked about the possibility of upgrading
the footpath to bridleway because there is a
promoted Sustrans route across the footpath. I
explained that the bridge is not suitable for
bridleway use as it is too narrow, and it is not
something that we are looking to do at the moment.
After discussion they had “no further comment to
make”.
“Accepts” the proposal
“No archaeological issues”.
No comments

Lake District National Park Authority Agenda Item: 10
Rights of Way Committee: 2 April 2009 Annex 2 Page 3
5.2 No responses were received from our other consultees, Copeland Borough Council,
Natural England, Environment Agency, Friends of the Lake District, LDNP Ecologist,
Parish Council.
6 Summary
6.1 The evidence shows that an error was made when the footpath was recorded on the
1976 definitive map and statement. The special review documentation only stated
that the footpath was in the parish of Muncaster, and the definitive map and
statement reflects this error.
6.2 The only way of recognising and correcting the error is through a modification order.
6.3 This will have the affect of splitting the definitive statement into two sections as
shown on a schedule at the back of the document bundle.
6.4 The Muncaster definitive statement for 418033 should read “From County Road in
Ravenglass 15 metres west of Railway Bridge, north-westerly for 280 metres along
concrete footpath to cross River Mite by railway footbridge to centre of the river”.
6.4.1 The definitive statement for Drigg and Carleton should read “From Public Road 4055
at SD0817 6970, south-east of Saltcoats, north-easterly for 140 metres, then southwesterly
parallel with railway to half way across the footbridge over River Mite”.