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Ward: |
Rottingdean and West Saltdean |
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App Type: |
Rights of Way Definitive Map Modification Order |
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Address: |
Land off Longridge Avenue Saltdean Brighton |
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Proposal: |
Application to add a bridleway to the Definitive Map and Statement |
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Officers: |
Katie Kam tel:1514 |
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Applicant: |
Mr D Brookshaw |
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RECOMMENDATION
That Committee resolves a Definitive Map Modification Order, under Section 53(2) in consequence of an event specified in sub-section 53(3)(c)(i) of the Wildlife and Countryside Act 1981 to add a bridleway to the Definitive Map and Statement for Brighton between the T-junction of the route known as Upper Bannings Road and Tenant Hill, northwards across the field and ending at a T-junction with an existing bridleway, on the boundary of Telscombe Tye, should be made.
1. PURPOSE OF REPORT AND POLICY CONTEXT
1.1 An application has been made to Brighton & Hove City Council (‘the Council’) to make an order modifying its Definitive Map and Statement of Public Rights of Way (‘the Definitive Map’) by adding a bridleway to the Definitive Map at Saltdean, Brighton.
1.2 The application is supported by documentary evidence only.
1.3 The Council is the surveying authority for the purposes of section 53 of the Wildlife and Countryside Act 1981 and is required by law to keep the Definitive Map under review and make any changes necessary by order.
1.4 It is concluded that the historical evidence meets the lower test as set out below and it can be reasonably alleged that a bridleway subsists along the claimed route (‘Claimed Route’). Therefore it is recommended that an order should be made to add a bridleway to the Definitive Map for Brighton.
2. INTRODUCTION
2.1 The application was made by Mr David Brookshaw and is supported by the Brighton & Hove Local Access Forum. The application was accepted on 28th March 2023. The application is supported by documentary evidence only.
2.2 The application is made under Section 53(3)(c)(i) of the Wildlife and Countryside Act 1981 (WCA), being the discovery, by the Council of evidence which shows that a right of way which is not shown on the Definitive Map and Statement,
subsists or is reasonably alleged to subsist over land.
2.3 The Claimed Route runs from TQ39400-03174 to TQ39870-03590 as shown on the Claimed Route plan provided as part of the Application Pack and is attached to this report.
3. LEGAL POSITION
3.1 Section 53(2)(b) of the Wildlife and Countryside Act 1981 requires a surveying authority to keep its Definitive Map up to date and amend where any ‘event’ detailed in s53(3) has occurred. If a way is shown on the Definitive Map then it is deemed by law to be conclusive evidence that the public has a right of way falling into that category at the relevant date. In reaching its decision the Council must be guided by the appropriate legal principles.
3.2 A successful application for a Definitive Map Modification Order is an ‘event’. Specifically, s53 (3)(c) includes as an event:
“(c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows_
(i) that a right of way which is not shown on the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way such that the land over which the right subsists is a public path, a restricted byway or, subject to section 54A a byway open to all traffic.”
3.3 In the case of R v SoS for the Environment ex p Bagshaw and Norton (1994) the Administrative Court held that under s53(3)(c)(i) of the 1981 Act the tests to be applied by a local authority in determining whether to make an order was whether all the evidence available either showed that a right of way subsisted or alternatively showed that it was reasonable to allege that a right of way subsisted.
3.4 There are two tests that can be applied on the basis of the case referred to at paragraph 3.3 above. For ‘Test A’, in order to find that a right of way subsists it would be necessary for it be shown that, on the balance of probabilities, the right of way existed. For ‘Test B’, in order to find that it was reasonable to allege that a right of way subsists it would be necessary for it to be shown that a reasonable person, having considered all the relevant available evidence, could reasonably allege a right of way existed. Test B is the lower test; the evidence needed is less than required for Test A.
3.5 Matters relating to suitability and condition of a way and possible nuisance or need are irrelevant for archive only claims and cannot be taken into account when reaching a decision.
3.6 The type of evidence that could be considered to rebut the claim that a bridleway once existed, for applications supported by historical documentary evidence, would be for example, evidence that an old road or path is no longer public e.g. relevant stopping up orders, diversion orders, or extinguishment orders; and documents showing that the route is private (e.g. inclosure award documents); and documents showing that the status of the route is different to the status the applicant is claiming (e.g. inclosure awards documents, legal orders etc).
4. SITE LOCATION
4.1 Characteristics and features of the Claimed Route
The Claimed Route starts at the T-junction of the route known as Upper Bannings Road and Tenant Hill, where an existing bridleway leading north from Saltdean currently ends. The Claimed Route travels northwards across the field ending at a T-junction with an existing bridleway, on the boundary of Telscombe Tye. The land is currently being used for agriculture. Historically, the land was divided into two fields by the Rottingdean Telscombe boundary, and it is along this boundary that the Claimed Route runs. (See Claimed Route Application Map).
5. LAND OWNERSHIP
5.1 Land Registry documents confirm that the landowners for the Claimed Route are Mr David Carr and Mr Michael Carr. They were served notice of the application and their response is set out in section 8 of this report.
6. CONSULTATIONS
Notice of the application was sent to various interested amenity groups and interested parties, the District and town Council and Local Councillors. The following comments were received:
6.1 Telscombe Town Council
“We have taken this to Councillors at our Planning & Highways Committee, who have unanimously recommended to support this application.”
6.2 British Horse Society
“A primary objective of the British Horse Society is to promote and secure the provision, protection and preservation of rights of way and of access for ridden and driven horses over public roads, highways, footpaths, bridleways, carriageways, public paths and other land. As such, we would support an order which seeks to protect historic rights of way for both ridden horses and carriage driven horses.”
6.3 Rottingdean & West Saltdean Councillor M Earthey
“There is no current indication that this is a right-of-way, so the historical right of access must have been long forgotten. Indeed, where the claimed right of way emerges on the bridleway by the reservoir, there is an old, overgrown barbed-wire fence that has been there for years. If the claimant is correct, a lot of work will need to be done to restore the path. The field is indeed being used for crops, and there is no access to the north without removing the barbed wire fence.”
7. EVIDENCE SUBMITTED IN SUPPORT OF THE APPLICATION
The application is supported by archival evidence only. The applicant asserts the evidence demonstrates that the Claimed Route was historically a route used by the public as a bridle road.
7.1 Ramblers Don’t Lose Your Way campaign map/OS 1888-1913 [Map 2]
The applicant advises that the Claimed Route is one of several unrecorded routes noted by the Ramblers’ campaign, as seen on the OS six-inch map records 1888-1913, which the applicant notes have been overlaid onto the current OS Map. The unrecorded routes are marked as blue dashes.
Comment: The Ramblers Don’t Lose Your Way Campaign has been instrumental in identifying paths recorded on historic maps. It is agreed that the Claimed Route has been identified on this map.
7.2 First edition of the one-inch OS Sheet No88 Hastings 1 Feb 1831 [Map 3]
The applicant notes the existence of a ‘route’ from the coast heading north-east in the direction of Telscombe.
Comment: Whilst a faint wide ‘route’ can be seen heading north-east from the coast, in line with the current recorded bridleway, it appears to be headed off by a clearly defined route running west to east and does not continue north in line with the Claimed Route.
7.3 Book: SALTDEAN From Old Photographs, by Douglas d’Enno [Map 4]
The applicant notes that in this book, the author identifies an 1825 map as showing The Droveway (which became Longridge Avenue) passing north of The Banning onto the hamlet of Telscombe then ultimately to Lewes.
Comment: Marking on the map makes identification difficult but it is agreed that The Droveway (which became Longridge Avenue) passed north of The Banning.
7.4 Encyclopedia of Brighton by Timothy Carder
The applicant states that the following entry supports the previous evidence in noting that The Droveway previously continued northwards: “171.SALTDEAN Longridge Avenue: Saltdean’s main shopping street was formally a trackway known as the Droveway and it divides Brighton from Telscombe parish for most of its length.”
Comment: Whilst this adds to the weight of the assertion made in8.44 in itself it does not provide evidence of the Claimed Route.
7.5 OS Map Sussex sheets LXVI SE and LXV11 1893 [Map 5]
The applicant advises that the Claimed Route is shown marked as BR (bridle road) from the coast by Saltdean Cottages and heads NE past Upper Bannings.
Comment: It is agreed that the Claimed Route is clearly shown and marked as a BR (bridle road). The Claimed Route appears to form part of a network of bridle roads and paths in that area, which are currently marked on the definitive map and statement.
7.6 OS Map Sussex LXVII SW Revised 1898 [Map 6]
The applicant notes that as with the previous map, the BR is shown to the left of the BS (boundary stones).
Comment: It is agreed that the Claimed Route is clearly shown and marked as a BR (bridle road). The Claimed Route appears to form part of a network of bridle roads and paths in that area, which are currently marked on the definitive map and statement.
7.7 OS Plan TQ3903, Scale 1:2500 Revised 1954 [Map 7]
The applicant states that the Claimed Route is shown.
Comment: It is agreed that the Claimed Route is shown as in the older maps presented by the applicant, but it is annotated as a ‘track’ rather than BR. However, it is noted that the previously annotated FP (foot path) and BRs (bridle roads) to the west and east and south of the Claimed Route are also annotated on this map as tracks.
7.8 Telscombe Cliffs Auction Map 1899 [pg 3 of the Application pack]
This is provided with the note that it shows the track that was subsequently to become Longridge Avenue heading further northwards along the Claimed Route.
Comment: Having viewed the original of this map (close-up added), it is agreed that the map shows the continuation of the track The Droveway, which was to become Longridge Avenue, northwards as per the claimed route.
7.9 Sectional Plan Saltdean 1937 [pg 4 of Application pack]
This is also provided with the note that it shows Longridge Avenue heading further northwards in line with the Claimed Route.
Comment: Having viewed the original of this map, it is agreed that it shows the continuation of Longridge Avenue northwards, past Upper Banning, as per the Claimed Route.
7.10 Aerial Photo Telscombe Tye Auction 1989 [pg 5 of Application pack]
The applicant notes that the Claimed Route, shown ploughed out, can be clearly seen in the aerial photo.
Comment: It is acknowledged that the Claimed Route is clearly presented on the aerial photo as a continuation of the route currently marked on the definitive map as a bridleway. The map included with the Auction details, drawn from OS Maps (close-up provided), also clearly shows the bridleway.
8. OWNERS’ RESPONSE AGAINST THE APPLICATION
8.1 Mr David Carr and Mr Michael Carr, the registered landowners and occupiers (“the Occupiers”), have objected to the application and provided evidence to consider in three emails.
8.2 Email 1) sent 11th September 2023 (attached under Supporting Documents)sets out:
“… I am afraid the map of Telscombe Tye sale 1989 [contained in the applicant’s application supporting documents] is of an old fence which you can see on other field margins on our Coombe Farm and on our neighbours. These are definitely not footpaths or bridlepaths…”
Comment: The Occupiers state the white line along the Claimed Route as shown on the Telscombe Tye Auction sale aerial shot (page 5 of the Application) is a fence line, and that the same is true of the other white lines visible on the aerial shot – that they are field margins/fences. Whilst it is acknowledged that fencing did run along the Claimed Route at the time of the aerial photo, the width and clarity of the white line suggests that it is the field margin that is being seen, not the fence. The Claimed Route white line is in keeping with the white line that is Longridge Avenue; this and the lines joining from the west and east, are bridleways. Along with the Claimed Route, these white lines reflect the historic bridleways and footpaths evidenced by the older maps provided by the applicant.
8.3 Email 2) sent 1;1th September 2023 (attached under Supporting Documents) sets out:.
“Here is a letter and map dated 1998 . At the top of the map clearly says ‘Definitive Map showing Public Rights of Way’. As you can see the map shows again the proposed footpath is described as ‘Parish Boundary’. Hopefully this is all good proof to show this has never been a right of way and the photograph from 1989 aerial view is our fence line splitting our then grazing area for Dairy herd and our arable land.”
Comment: The Occupiers provided a letter from the Rights Of Way (ROW) team at the Council regarding the installation of a bridleway gate on their land and an excerpt of the 1998 Definitive Map showing no Right of Way for the Claimed Route. They note that the Claimed Route is shown as a Parish Boundary, and hope this is ‘all good proof’ that there has never been Right of Way. It is agreed that at the time of the map and letter the Claimed Route did not exist as a ROW. However, the letter and map do not disprove the earlier existence of a bridleway and ROW along the Parish Boundary and only show that it has not been included on the Definitive Map. This is what this application seeks to address: “Once a highway, always a highway.” As noted, the previous fence line / field margin runs along the Parish Boundary. Whilst the current Occupiers own the land both sides of the boundary and utilise the land as one field, the Tithe Maps show that historically a ‘road’ ran along the Parish Boundary and the fields either side were separately owned.
8.4 Email 3) sent 11th September 2023 (attached under Supporting Documents) sets out:
“…I enclose a snip of a map …. The line which has on it a Boro Const Andy Co Const , CP & E D Bdy , this mean’s basically Parish boundary. This map is 1979”
Comment: The Occupiers provided a map from 1979 that shows the Claimed Route as a Parish Boundary. This DMMO application asserts that the Claimed Route exists alongside the Boundary, as depicted in the historic maps attached to the Application. Having looked at the application maps and at other archive maps, it is concluded that this map from 1979 does not rebut the existence of the route as depicted on other maps.
8.5 In conclusion, it is considered that no significant contrary evidence that disproves the earlier existence of the bridleway or that has altered any previously established public rights over the way, has been submitted against this archive application.
9. ARCHIVE EVIDENCE
The application and subsequent investigation by the Council has brought forward a variety of archival information on the Claimed Route. The relevance and usefulness differ between each piece of documentary evidence, particularly, as the intention was to find evidence to prove the status of the route. The status of a route is difficult to determine from archive evidence as most historic maps do not provide information on status and/or are not seen as sufficient evidence to prove definitively the status or sometimes even the existence of a public right.
9.1 Ordnance Survey mapping:
The following Ordnance Survey maps were consulted at the East Sussex Record Office –:
· LXXVIII.1 1874, by Capt A Hill, shows the route clearly marked as a BR (bridle road) and the smaller track next to it marked as a FP (foot path). Appendix 1 and 1a (close-up)
· LXVII SW 1899 2nd Ed shows the route clearly marked as a BR (bridle road) and the smaller track next to it marked as a FP (foot path). Appendix 2 and 2a (close-up)
· LXVII.13 1910 Sussex, the Claimed route is no longer marked
· LXVII.13 1939 Sussex, confirms omittance of the Claimed route
The Ordnance Survey maps pre-1910 depict the Claimed Route as a natural continuation of the bridle road running north from the coast along Longridge Avenue; this bridle road appears on the Definitive Map (TEL/1/1) but ends where it meets Upper Bannings Road. The pre-1910 maps show two routes (one smaller than the other, a footpath and bridle road) to the south-west of the Claimed Route; these routes merge with the Longridge Avenue bridle road and continue northwards past Upper Bannings. At the point where the routes merge another bridle road leads east along Upper Bannings Road; this bridle road appears on the Definitive Map (TEL/5/1)
The Ordnance Survey Maps post-1910, whilst omitting the Claimed Route do not disprove its prior existence.
Ordnance Survey Maps can provide an accurate picture of the landscape at the date of survey, and carry strong evidential weight, but it should be noted that the surveyors mapped physical features and not legal rights. However, the land in question is agricultural and there are no visible features on the maps that have been considered which would suggest that the Claimed Route was not freely accessible.
9.7 Tithe Maps:
It should be noted that Tithe maps were not intended to establish or record public rights of way. The maps are only conclusive of matters of relevance to the tithe commissioners and generally give no more than an indication as to whether any way is public or private. A private right of way can diminish the productivity of the land for tithe assessment. However, as public highways were free from tithes it was in the interests of a landowner to have any public highways on their land recorded on the tithe map.
9.9 Rottingdean Tithe Map 1841 Appendix 3, 3a & 3b (close-ups) and 4
The Claimed Route lies along the boundary line of Rottingdean and Telscombe. Plots 99 and 102, the two apportionments to the west of the boundary line (within Rottingdean), are recorded as arable land owned by Thomas Beard. There are several apportionments on the Tithe Map schedule [Appendix 4] that are recorded as being a ‘road’; Plot 257 is marked on the Claimed Route and is recorded as such. Plots 256 and 258 are also recorded as ‘roads’. These three roads (Plots 256, 257 & 258) match the BR marked routes on the OS Map from 1899. There are no visible features on the Tithe map to suggest that access along the Claimed Route/boundary line was restricted.
9.11 Telscombe Tithe Map 1841 Appendix 5
The Claimed Route lies along the boundary line of Rottingdean and Telscombe Parishes. The two apportionments to the east of the boundary line (within Telscombe) and the Claimed Route are shown as owned by James Ingram. There are no visible features on the map to suggest that access along the Claimed Route/boundary line was restricted.
9.12 Rottingdean Fields Map 1922 Appendix 6
Whilst the origins of this map have not been verified, it hung for a time at Rottingdean Heritage Museum and is believed to be useful supportive evidence, showing as it does the fields either side of the Rottingdean and Telscombe boundary lines. The Claimed Route is shown as different to that of field boundaries and matches other markings on the map that appear to denote roads. In keeping with the earlier OS maps, this map suggests an accessible route leading northwards from the coast.
10. CONSIDERATION OF CLAIM
10.1 The application was submitted with archive evidence summarised in Section
7 above. The objection against the application is noted in Section 8. No archive evidence has been submitted against the application. An investigation of the City’s archives has been conducted and this evidence is set out in Section 9 of this report.
10.2 Section 53 WCA requires there to be a “discovery” of evidence. The applicant relies on archive evidence only. Section 32 of the Highways Act 1980 provides that a court or other tribunal, before determining whether a way has or has not been dedicated as a highway, shall take into consideration any map, plan or history of the locality or other relevant document, which is tendered in evidence, and shall give such weight thereto as the court or tribunal considers justified by the circumstances. In doing so, account must be taken of the antiquity of the document, the status of the person by whom and the purpose for which it was made or compiled and the custody in which it has been kept.
10.3 The burden of proof rests with the applicant. In determining the application, it is necessary to decide whether the evidence provided by the applicant, together with all the relevant evidence available, shows that on the balance of probability a bridleway subsists, or in the alternative that a bridleway is reasonably alleged to subsist, which is the lower test.
10.4 In making a recommendation all the evidence has been considered in accordance with Section 32 of the Highways Act 1980, the relevant legal tests in Section 53 Wildlife and Countryside Act 1981 and case law. In the case of claimed highways, direct evidence is often impossible to find and so it is necessary to draw inferences from circumstantial evidence. The nature of the evidence that may be considered in deciding whether or not to draw an inference is almost limitless. An approach to the application of an inference derived from evidence was suggested by McCullough J in ‘West Yorkshire MCC v Harry Brown’ (1983). The decision-maker should give … careful consideration of what should prima facie be drawn from a fact and then see whether, upon consideration, this should be rebutted or whether it should ripen into an inference upon which further conclusions may in turn be based.’
10.5 The Claimed Route has been depicted on various maps and plans over time. There are no physical features shown on any of the maps which would suggest that access was restricted along the Claimed Route or that the Claimed Route was one which may be used as private access to land or a dwelling. Indeed, given the established bridleways in the area, and their historic link to the Claimed Route, it is more probable than not that the Claimed Route is part of a network of historic bridle roads (BRs) and footpaths (FPs).
10.6 The applicant notes that the OS maps provided show the existence of the Claimed Route. Whilst Ordnance Survey maps can provide an accurate picture of the landscape at the date of survey, and carry strong evidential weight, it should be noted that the surveyors mapped physical features and not legal rights. However, when considering the evidence as a whole, and without the existence of any restrictive features depicted, it could be argued that the Claimed Route was one which was open and available to the public.
10.7 Gaps in evidence may be bridged by the use of one or more of a number of legal presumptions. One of them is contained in the maxim: Once a highway, always a highway (Dawes and Hawkins [1860]). This presumption must prevail unless some legal event causing the highway to cease can actually positively be shown to have occurred.
10.8 The tithe map of Rottingdean and its corresponding schedule provide convincing evidence of the Claimed Route, marking as it does the Claimed Route as a ‘road’. Whilst the Telscombe tithe map does not have any roads marked on its schedule, it does show the boundary line and the Claimed Route could conceivably have co-existed with the boundary line and/or been considered under Rottingdean’s remit. What is important to note is that the existing Longridge bridle road, running north from the coast to Upper Bannings, is also ‘covered’ by the boundary line on both Tithe Maps. The Claimed Route connects to this bridle road freely and without restrictions.
10.9 Investigation of other archive evidence, including enclosure awards and land ownership deeds records, has produced no evidence that the Claimed Route existed in this other evidence, but this equally does not disprove its existence.
10.10 Whilst no single piece of evidence is conclusive, on balance it could be argued that the Claimed Route did have historic public rights. Whilst it is noted that some of the maps were not produced for the sole purpose of establishing private or public rights of access, they do depict the Claimed Route in a way that would be consistent with a bridle road prior to ordnance survey mapping. Registered bridleways (already shown on the Definitive Map and Statement) that meet the Claimed Route and are shown to have done so on maps prior to 1910, were similarly depicted and annotated, adding support to the historic existence of the Claimed Route.
11. CONCLUSION & RECOMMENDATION
11.1 If the evidence shows that a right of way can reasonably be alleged to subsist, or on the balance of probabilities subsists, the onus is then on the order making authority to make the order.
11.2 In conclusion it is considered that the evidence produced by the applicant and uncovered by the Council, when taken together, establishes that the Claimed Route can be reasonably alleged to subsist.
11.3 Therefore, in consideration of all the evidence submitted as set out above, it is recommended that an order under Section 53(2) in consequence of an event specified in sub-section 53(3)(c)(i) of the Wildlife and Countryside Act 1981 to add a bridle way to the Definitive Map and Statement Is made.
12. ANALYSIS & CONSIDERATION OF ALTERNATIVE OPTIONS
The Council is under a duty to determine the application pursuant to s53 of the Wildlife and Countryside Act 1981.
13. COMMUNITY ENGAGEMENT & CONSULTATION
As set out in the body of the report.
14. FINANCIAL IMPLICATIONS
14.1 The costs associated with determining the application have been met from existing revenue budgets.
14.2 Should it be necessary to submit an order to the Secretary of State for confirmation there will be additional costs to fund the hearing or public inquiry.
Name of finance officer consulted: John Lack Date Consulted: (18.11.2024)
15. LEGAL IMPLICATIONS
15.1 The Council’s Constitution provides that authority is delegated to officers to make orders under the Wildlife and Countryside Act 1981. The Constitution also provides that a function of the Planning Committee is ‘To determine any other matter of fact or law relating to a right of way or the Council’s Definitive Map and Statement under the Wildlife and Countryside Act 1981 referred to it by the Corporate Director City Services.’ As objections have been received to the application, a Committee decision is being sought to determine the application.
15.2 The statutory background and the tests to be applied in determining the application are set out in the body of the report.
15.3 If the Council declines to grant the application the applicant has a right of appeal to the secretary of state. The applicant must serve notice of the appeal within 28 days after service on them of the Council’s decision.
15.4 If the Council grants the application and makes an order, public notice of the order will be given allowing for a period of 42 days for representations or objections with respect to the order to be made. If any objections or representations received within the publicity period are not withdrawn the Council must submit the order to the secretary of state for confirmation. The legislation requires that the secretary of state must hold a public inquiry or hearing to consider the representations and objections made, following which the secretary of state will decide whether or not to confirm the order.
Name of Lawyer consulted: Katie Kam Date Consulted (18.11.2024).
16. EQUALITIES
There are no equalities implications arising directly from the report. No new policy or amendments to existing policy are proposed. In any event only the evidence relating to the application can be considered.
17. SUSTAINABILITY IMPLICATIONS
17.1 No sustainability implications identified.
18. SUPPORTING DOCUMENTATION
18.1 Plan showing Claimed Route
18.2 Application Pack including the Application Plan and other plans
18.3
Appendices from officer
research
Appendix 1: 1874 1st Edition Map
Appendix 1a: 1874 1st Edition Map (close-up of Claimed Route section)
Appendix 2: 1899 2nd Edition Map
Appendix 2a: 1899 2nd Edition Map (close-up of Claimed Route section)
Appendix 3: Rottingdean Tithe Map
Appendix 3a: Rottingdean Tithe Map (close-up of road 157 marking (Claimed Route))
Appendix 3b: Rottingdean Tithe Map (close-up of road 158 marking Claimed Route)
Appendix 4: Rottingdean Schedule, page showing road references
Appendix 5: Telscombe tithe Map
Appendix 6: Rottingdean Fields Map 1922
18.4 Representations against the application
Emails from Occupiers and appendices