Rights of Way

PUBLIC RIGHTS OF WAY OVER RETAIL FORECOURTS AT LYTHAM, LANCASHIRE

1 Background

1.1  Owners of a number of properties, particularly, bars and restaurants in Lytham, have built

on and/or enclosed, by various means the forecourts immediately in front of their buildings.

1.2  If it can be established that the public enjoyed unrestricted access over these forecourts without licence or permission from the owners, for a period in excess of 20 years then it is possible that public rights of way over such areas will have been established (known as “prescriptive rights”) which cannot be obstructed or interfered with without a formal stopping up order secured through Lancashire County Council.

1.3  There are currently no registered public rights of way which run through Clifton Square recorded in Lancashire County Council’s Definitive Map: ie the official record of public rights of way maintained by Lancashire County Council, which has authority over such matters. It may be this is because no one has thought it was necessary to formalise these rights given the relevant areas had been used freely as public realm for such a long time.

1.4  In the absence of such registration a formal application can be made accompanied by evidence to seek registration and protection of such rights for the future under the relevant statutory procedure.

1.5  Prescriptive rights of way are provided for under statute: i.e. Section 31 of the Highways Act 1980, which provides that:

where it can be shown that a way over land has been enjoyed by the public as of right and without interruption for a full period of 20 years or more, the way is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it

2 The Application to Lancashire County Council

2.1  To secure any amendment to the “Definitive Map” of public rights of way an application will need to be submitted to LCC under the Wildlife and Countryside Act 1981 for a Definitive Map Modification Order acknowledging these as public rights of way.

2.2  The application will be heard by LCC’s Regulatory Committee and their decision may be appealed against to an Inspector appointed by the Secretary of State.

2.3  The necessary application form (“user evidence form”) is freely available on line from LCC. Anyone with historic knowledge of the relevant public realm or having photographic or other evidence may apply.

3 Collecting the evidence

3.1  A successful application relies upon evidence being provided that the forecourts were freely accessible by the public for a period in excess of 20 years without restriction or the need to seek the owners’ permission (this would usually have been evidenced by a clearly marked notice confirming any access was permitted only with the agreement of the owner).

3.2  Examples of the evidence which could be relevant for these purposes might include any or all of the following:

• A large number of “user evidence forms” duly completed by local residents confirming their witness to these forecourts being openly accessible for in excess of 20 years (eg Lytham residents who can recall when such spaces were not enclosed/built upon);
• Evidence from archive materials produced by local Civic, Conservation, Heritage, Business groups and associations;
• Evidence from former employees of the relevant premises;
• Details of the Lytham town centre public realm upgrade project in the 1990’s;
• Photographic evidence, preferably taken on various dates in the past illustrating their openness dating back over many years;
• Neighbouring owners’ evidence;
• Details of Fylde/LCC maintenance responsibilities prior to the ares beingenclosed/built upon.

3.3  There need be no suggestion of banning outside seating: this can still be permitted but subject to the rules and safeguards which apply to any other outside seating licences on the public realm. In other words, the purpose of the application is simply to seek recognition of those spaces which have become public spaces as public rights of way and preserve that status for the current and future residents of the town.

3.4  This would at least enable the Council to manage more effectively how such spaces are used for outside seating purposes, perhaps by developing a masterplan for such areas, informed by residents and business and by good and consistently applied design principles.