The modern user evidence corroborates that user was by the public, and that it was to bridleway status. But the user evidence is also relied upon more generally for the purpose of section 31 of the 1980 Act. The first question is to consider when user was called into question. For the Southern section of the route there appear to be the following possibilities:
1963, when Mr Whitfield erected fences around the “80 acres” (to which previously the public had access);
1989 when the gate at point D was locked;
1997(the date accepted by the previous Inspector), when various prohibitive notices were erected.
1963
The decision of the CCC 1974 was appealed to the High Court and the Court of Appeal. As a result of the compromise reached in the Court of Appeal proceedings (by Consent Order dated 24th May 1978): (i) Mr. Connell agreed to relinquish his rights of common over the 80 fenced acres owned by Mr. Whitfield; (ii) the County Council agreed not to “pursue its provisional registration of the said area as common land...”; and (iii) the Respondents further agreed to support any application by Mr. Whitfield to the Secretary of State, under section 194 of the Law of Property Act 1925, for permission to erect the pre-existing fences.
It is still not apparent whether any such application was ever made (which, had there been a date of such permission being granted, would have been a further possible date for calling into question- i.e. the date on which an “illegal” obstruction became a lawful one.)
In any event, having heard all the evidence brought forward at the Inquiry, the Applicant does not contend for 1963 as the date for calling into question of the claimed route. It appears that any gate providing access on to the common at point D remained unlocked at this stage, and that bridleway access along E – B and from B – A and from B – D and on to the common continued as a matter of fact to take place.
Next time: my closing submissions continue.
All 'TCHCC' Parts so far
