After a lengthy procedure lasting precisely ten years, Ramblers volunteer Malcolm McDonnell has succeeded in getting a historic footpath in the village of Withyham, East Sussex, officially recognised after landowner the 11th Earl de la Warr barred the way in February 2000.
The path led from the centre of Withyham, near the village pub and hall, up a set of steps by the B2110 road, and ascended a field to reach the 14th-Century parish church of St Michael and All Angels. It had been in use for at least 120 years, and probably far longer, to judge by the well-worn depression in the ground throughout the route.
On discovering the obstruction, bemused residents – all used to walking the path at one time or another to get to church or Sunday-school, visit graves and to further walks beyond, like to Ashdown Forest – approached Malcolm, a member of the parish council’s footpath Advisory Committee. Malcolm, a keen country walker, had himself been walking the path for about 20 years; and, concerned by the closure and the furore it had caused, contacted Ramblers central office for advice on how to proceed. They advised him to collect evidence of use and to apply to East Sussex County Council for a definitive map modification order to have the path officially recorded as conclusive legal proof of its public status.
The Council took seven years to determine the application. Then in 2007 they rejected it, for reasons which astonished Malcolm and the Ramblers staff. The Council said the way was a “church way” and, so, it was not possible for the public to acquire rights over it, on account of a court-ruling in another case.
Ramblers staff tracked down the judgment in the case and found that the Council had misunderstood it: it was, in fact, perfectly possible for the public at large to acquire rights over a route even if it was originally a way used since time immemorial for people of the parish. The Council also said that since the landowner was unaware of use, it failed another legal test which required the use to be such that the landowner realises that the public are asserting a right. In fact there is no such test.
Ramblers staff advised Malcolm to appeal to the Secretary of State against the Council’s decision to reject the order. He did, and the Secretary of State found the Council’s decision to be legally flawed and directed them to make an order. This they duly did, but seemed unpersuaded by the Secretary of State’s reasoning, as they took a neutral stance at the inquiry which followed when the Earl de la Warr objected – leaving the Ramblers to present the case for the route’s recognition.
The inquiry took place in Withyham village hall in January 2010, before Inspector Peter Millman. Snow prevented some witnesses from attending, but nonetheless several long-standing Withyham residents testified. So did Ben Perkins, of the Society of Sussex Wealdsmen, who had considered the route public enough to include it in a walks-guide, Village Walks in East Sussex (1998, Countryside Books); and another 20 or so people wrote in, one from Canada, stating their use over many years.
On 3 February 2010, the Inspector announced his decision to confirm the order. He found not only that the public had walked the path for the statutory 20-year period prior to its obstruction, but also that there was demonstrable historical uninterrupted use by the public since at least 1935.
The path is a real gem. Its confirmed existence continues to provide villagers with a short circular walk, so that they can approach the church via its main entrance and return by the path, which has spectacular views over the village and to distant hills. It is to be hoped that East Sussex County Council will take no time in signposting the path and in ensuring that any obstruction is removed.
