Tadcaster, a market town between Leeds and York, is situated on both sides of the River Wharfe. The two halves of the town are linked by the main vehicular/pedestrian bridge recently re-opened after flood damage, and a pedestrian route across the river on a former railway viaduct from which the tracks were lifted in 1963.   In 1979, the viaduct and the embankment leading from Wetherby Road on the west side of the river were purchased by Tadcaster Town Council from British Railways Board.

From the eastern end of the viaduct there was a historic path across the adjacent Fircroft Estate (built in 1904 by the owner of the nearby Ingleby’s Flour Mill) to Wighill Lane, opposite Brickyard Farm.

The Fircroft Estate was sold in two parts in 1959. The house and a small parcel of land around it was bought by West Riding Council and developed as a care home.  The remainder of the property was acquired by Barnardos who built a children’s home in 1961. The care home closed and was sold to Wharfebank a subsidiary of Samuel Smith Old Brewery (SSOB) in 1991. Barnardos closed in 2003 and sold their land to Commercial Development Projects Ltd (CDP) who subsequently sold to Wharfebank in 2012. At the end of 2011, after Wharfebank had decided to buy the property but before  completion “No Right of Way” signs were erected at both ends of the path across the land. Once the purchase was completed, the path was completely blocked off in February 2012 by metal fencing at one end and by fencing and a wall at the other end.

There was an outcry in Tadcaster and an application for a Definitive Map Modification Order (DMMO) was submitted by local resident Patrick Tunney on 26th April 2012. The application included 267 completed evidence of use forms and had the full support of Tadcaster Town Council and Selby District Council.

The proposed DMMO ws put out for consultation in January 2013. Wharfebank was the only objector.  North Yorkshire C.C. approved the DMMO which was confirmed in September 2013.  Wharfebank maintained its objection and the matter was the subject of a public enquiry in February 2015. A total of 38 witnesses gave evidence over 8 days with a ninth day given to closing submissions. Apart from representatives of Barnardos who only agreed to attend after Witness Summonses were (wrongly) served upon them most of the witnesses called for the Objector were his employees or connected in some similar way.

The User Evidence demonstrated that for the 20 years before the way was closed various routes across the land had been used, and this was one of the defences raised.   Other defences were that attempts had been made over the years to prevent the use of the route, that it was a cul de sac, and that Barnardos as a charity lacked the capacity to dedicate a right of way.

The Ramblers supported Mr Tunney and his Action Group throughout.   We were unable to help with user evidence and North Yorkshire dealt with the preparation for the hearing but I attended throughout the enquiry with Mr Tunney and made submissions on the main legal issues. I am extremely grateful to Eugene Suggett at Ramblers Central Office for providing the substance of those arguments and for copies of the authorities on which those arguments were based.

The Inspector took away 10 lever arches of documents plus the witnesses statements and legal submissions. The Inspector approved the Oder but on a slightly different route to that claimed.   As a result the Order had to be re-advertised, and Wharfedale raised further objections requiring another public inquiry set for February 2016.

The Inspector agreed to hear evidence in respect of the modified part of his Order, and new evidence in respect of the unmodified part. Wharfedale attended the February date with an enhanced legal team, strengthened by the addition of James Strachan QC of whom the legal press said: “If you’ve got a seemingly unwinnable case, he’s the only one that’s going to win it.”

After another day of legal argument, the inquiry was adjourned, and eventually concluded in October 2016. At the October hearing, Wharfebank produced further evidence. All this new evidence came from witnesses connected with Wharfebank.   Most of the witnesses were employed at the Brewery and many gave the Brewery as their address. Many were tradesmen who had worked on the refurbishment of Brickyard farm – opposite where the path ended on Wighill Lane (and a SSOB property).

A number of the objector’s witnesses admitted to using the route themselves, and most were aware that  the route was being regularly walked by others. However, their evidence, including new photographs, referred to the fence along Wighill Lane. They referred to this fence as “to keep people out”, although clearly it was not effective.

The Inspector had refused the original claim based upon 20 plus years use of the route because the line of the route had changed as buildings were demolished and because there was some evidence that Barnardos had objected to public use.   He had allowed the claim on the basis of of dedication by CDP during the period of their ownership.

The claim for dedication is based on what the landowner (CDP) did or did not do. There is no evidence that CDP did anything to deter people from using the route.   They did not erect or repair any fence (except after they had exchanged contracts for the sale of the land to Wharfebank, and at Wharfebank’s request) yet there was evidence that they were concerned about security. They fenced off the building and employed security guards – but this made no difference to the use of the path.

When Barnardos had sold to CDP in 2003, there had been an Overage Agreement. CDP committed  to share with Barnardos any development potential in the property that was realised. CDP also executed a Debenture in favour of their bank in 2008. Wharfebank argued that each imposed a third party  contractual interest in the land, and without agreement CDP had no capacity to dedicate a public right of way.

In reply, North Yorkshire C.C. argued that dedication of a right of way was not contrary to the contractual conditions with Barnardos, and that the presence of a public right of way did not devalue the land as it was not a transfer, or disposition, of any part of the overage property since CDP retained the freehold of the land. It was also North Yorkshire C.C.’s argument that “dedication” of the route took place before the date of the debenture in September 2008; contending four years’ use was still sufficient to give rise to an inference of dedication at common law.

In his decision, the Inspector confirmed the principle that a mortgagee must consent for any dedication to be effective. The Inspector did not determine the point that “dedication” took place before the date of the debenture because he had also determined the Overage Agreement had a similar effect on CDP’s capacity to dedicate. The Inspector was assuming a right of way reduced the value of the land which CDP were hoping to develop. Thus CDP had no right to dedicate.

Steven Wood