Riverside path in Kildale blocked

A funny old day. I’m incandescent with happenings in London, I’ve found myself agreeing with Piers Morgan, Tory MPs, The Daily Mail and several bishops. I meet with a dozen or so motorcyclists on a Public Bridleway but forgot to press the record button on my phone. And, to cap it all, I now find one of my favourite paths barricaded. Apparently, it’s an

“C19 OFFICIAL CLOSURE TO PROTECT PUBLIC HEALTH”.

“Official” notice of closure

As far as I know, this is a Public Right of Way, a Restricted Byway to be exact. Although there is not yet any indication as such on the Ordnance Survey map, an appeal, in December 2016, to re-designate the route running from Kildale to Low Easby Lane as a Restricted Byway was allowed. For those who want some soporific bedtime reading the appeal can be found here. Apparently, the track was created as “a private carriage drive to Kildale Hall” with a “ticket arrangement” in use until 1939.

To date, there has been no signage erected indicating the Right of Way neither has theNorth York Moors National Park nor the North Yorkshire County Council Rights of Way maps been updated. I have written to the NYM National Park Authority twice before but have not received a reply.

In fact, as you can see, there is still some old local signage erroneously saying the route is a “Concessionary Path”.

Of course, there’s always the chance that the decision may have been appealed higher but I haven’t been able to find anything.

Now, in the last few days, a formidable makeshift barricade has been erected preventing the public from using the Restricted Byway under the pretext of the Coronavirus pandemic.

About 400 metres down this track is an idyllic waterfall on the River Leven known as Old Meggison, a local beauty spot that is a favourite for children to play in the river and splash pool. I suspect on Saturday it became too popular hence the sudden barriers. But officialdom doesn’t work at that speed.

Another letter today to the National Park.

Stop press
I received two email replies this morning (26 May 20) from the North York Moors National Park. One said

“It is our understanding that the definitive map order has not yet been confirmed and therefore not yet added to the definitive map, which is why it is not yet showing on ours or NYCC’s online mapping systems. As it is not yet officially a right of way, there is no action to take on the closure.”

and went on to suggest I take the matter up with North Yorkshire County Council.

This raises more questions:
Who will “confirm” it?
Why has it taken so long, 3½ years, for this confirmation?

The other email from the North York Moors National Park merely informed me they have passed my enquiry to North Yorkshire County Council.

So, watch this space.

Old Meggison January 2019

Open Space Web-Map builder Code

3 Replies to “Riverside path in Kildale blocked”

  1. I walked down the valley a few months ago and noticed that a lot of timber steps and access tracks had been created, even a footbridge over the Leven, it seems that the shooter’s have been catered for yet again !

  2. Update 29th May

    I have today received a (non-offical) response on the IPROW Institute of Public Rights of Way and Access Management FaceBook page:

    Someone asked us this week about an application for a definitive map modification order (DMMO) which is based on an understandable and fairly common misconception. The timeline is fairly familiar to those who spend their time working with these peculiar things or who make many applications but not for most people including landowners, occasional applicants and even most rights of way officers not doing DMMOs.
    In 2013 someone made an application to North Yorkshire County Council (NYCC) as Surveying Authority, for a DMMO to add a restricted byway to the Definitive Map and Statement, i.e. they provided evidence which they believed showed that a restricted byway existed where no public right of way was recorded.
    NYCC considered the evidence and in 2016 decided it was insufficient to make an order so rejected the application. To DMMO wizards this is a good turnaround time but to muggles it probably seems unreasonably lax.
    The applicant appealed to the Secretary of State against this decision (only the applicant has this right of appeal) and the Planning Inspectorate considered the evidence and produced the 7 page decision letter (the first bit is shown in the first image but the URL of the full letter is given below.)
    The applicant’s, and supporters’, eyes seek out the information that the appeal is allowed and they think they can see the light at the end of the tunnel. Sorry guys, that’s the tail lights of the one ahead of you in the queue but there’s not much to hint at that from the letter.
    The letter is logically laid out and deals with the evidence in 4 chunks:
    [1] Documentary evidence shows it is reasonable to allege that public vehicular rights exist.
    [2] User evidence is insufficient to raise the presumption of dedication of public rights.
    [3] User evidence does not suggest dedication can be inferred at common law.
    [4] Any rights for mechanically propelled vehicles would have been extinguished by the Natural Environment and Rural Communities Act 2006.
    Therefore North Yorkshire County Council were directed to make a DMMO to add the restricted byway to the Definitive Map.
    The questioner wanted to know why it still wasn’t shown on the rights of way map of either NYCC or the North York Moors, no Restricted Byway signs were erected (it is signed as a permissive route) and currently notices say it is closed due to Covid-19 (although despite what the sign says it is not ‘official’ and someone can’t spell ‘walkers’!)
    The clue to the answer is lying innocuously in the last sentence; that the decision is without prejudice to a decision under Schedule 15 of the Wildlife and Countryside Act 1981. Now we realise that the first sentence of the Decision cites Schedule 14.
    The test for making an Order to add a right of way to the Definitive Map is that it is reasonably alleged that the right subsists and the result of the decision is that NYCC are directed to make an Order (just as if they had decided to do so in the first place). That’s not to say they didn’t know what they were doing when they decided not to; they have good DMMO expertise in NYCC but these matters are nuanced and often finely balanced, plus although in theory the appeal should consider only the evidence on which the decision being appealed there is often additional evidence put forward so both the Authority’s decision and the Planning Inspector’s decision may be correct based on the evidence considered.
    However, although in many other matters an Order is drafted, advertised then finally ‘made’, which means it takes effect, that’s not the case with public rights of way orders. They are made initially but only take effect at some time (or event) after they are confirmed, and if they are not confirmed it is as though they were never made.
    So this Order will be made (if it hasn’t already), advertised, presumably objected to, referred back to the Planning Inspectorate and a decision made whether or not to confirm it (or to modify the Order but that’s another story). The test for confirmation of the Order is different (and harder to meet) than the test for making it. NYCC were directed to make the Order because the restricted byway rights were reasonably alleged but the Order can only be confirmed if such rights are proven on the balance of probabilities. Just as it is possible for both the initial refusal and the direction to make an Order to both be correct it is often correct to make an Order but not confirm it, although that can also happen because it was made in error and the 2nd stage acts as a safeguard.
    So until (and unless) the Order is confirmed NYCC do not know if it is a restricted byway, and even if they thought it was, the evidence is too weak to base any enforcement action ahead of the DMMO outcome. So any obstructions or deterrents might or might not be unlawful – no-one knows until the Schedule 15 decision, i.e. the one to confirm (or not) the Order.

    https://www.facebook.com/IPROWuk/posts/3043252095759019?__tn__=K-R

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