Lincoln DMMO 401 - Register of DMMO applications

54 Albion Crescent, Lincoln, LN1 1EB

The Council determined not to make a modification order on the following grounds:

1. No documentary evidence was discovered supporting the existence of a historical public right of way (PROW) over the claimed footpath.
2. The user evidence submitted in support of the Application shows that the level of use of the claimed footpath during the two 20-year statutory terms identified (1994-2014 and 1998-2018) and the common law term identified (1986-2011) was too low reasonably allege that a PROW has arisen by statutory dedication (section 31(1) of the Highways Act 1980) or implied common law dedication.
3. Deposits made by the Lincolnshire Wildlife Trust under section 31(6) of the Highways Act 1980 for the land known as Newt Hollow which the middle section of the claimed footpath runs through, show a clear lack of intention to dedicate by the landowner and are sufficient to rebut any evidence of public use during the final years of the two statutory terms.  Use by the public has been interrupted so there is not a full period of 20 years immediately before the dates when the status of the way was brought into question.  This means that the tests for statutory dedication have not been met.
4. Hobblers Hole is held as open space and because of the restrictive covenants included on the conveyance when the land was gifted to the City of Lincoln Council means that the public are permitted to use the southern part of the claimed footpath which passes over this land.  A public right of way therefore could not have arisen as the public use of it was by right and not as of right.  This is fatal to both statutory and implied common law dedication.

Due to it being impossible for a public right of way to have been established across Hobblers Hole, it means that the claimed footpath has been severed which has created a cul-de-sac.  The judgement The Ramblers Association v Secretary of State for Environment, Food and Rural Affairs [2017] EWHC 716 (Admin) found that a cul-de-sac should terminate at a place of public or popular resort.  However, the witness evidence does not suggest that Newt Hollow or Hobblers Hole was such a place, so the remaining part of the claimed footpath is not capable of statutory or implied common law dedication.

An appeal was lodged by Long Ley’s Residents Association on behalf of the Application against the Council’s decision not to make a modification order.  In a decision of 14.02.2022, the Secretary of State for Environment, Food and Rural Affairs (“the SoS”) concluded that the evidence falls short of demonstrating that a public right of way is ‘reasonably alleged to subsist’ over the claimed footpath.  The SoS has therefore upheld the Council’s decision to make a modification order and dismissed the appeal.  This means that no modification order will be made and the claimed footpath will not be recorded as a public right of way.  The Appeal Decision has brought to a close the evidence-driven statutory process that sought to establish the existence of a public right of way over the claimed footpath.

Lincoln application and map

Lincoln DMMO 401 - Secretary of State decision