The public inquiry voted for by Tynwald to establish whether public rights of way have been ‘created’ on Langness peninsula got under way this morning (Monday 20^th July) at the Mount Murray Hotel in Santon.

Chaired by Roy Hickey, who informed the inquiry he has about 30 years of experience in this subject, the inquiry is scheduled to run all this week, but judging by the progress made this morning it could be over a lot sooner.

Mr Hickey commenced proceedings by delivering a short run through the key points as he sees them and the process for the establishment of access rights.

He outlined the key provisions of the law in order to give witnesses an opportunity of understanding what points he was hoping witnesses would address.

Explaining how a public right of way (PROW) can be created he said the most common method is by use: i.e. walking, riding driving along a particular line over a period of time and establishing a “tradition of use”; and the land owner acquiesces to the usage. In other words the land owner does nothing to prevent it; which can then give rise to the presumed dedication of the way.

However, he stated a right of way, or highway, can not be established by just wandering around an area at will, it needs to be a linear route along a consistent line.

He went on to say each path must start from a point where the public are allowed to be and has to go somewhere: e.g. another public place or view point or something else of interest. Furthermore access must be by the ‘public-at-large’ and not ‘limited’ in use, he said, and for a significant period of time without breaks.

He also explained the use must be by right and not conducted in secrecy, by force and without permission. A ‘permissive path’ is not a public right of way, he stated.

The use also has to be obvious to the landowner who does nothing to stop its use: e.g. lock gates, block the path, put up notices to say the use was by permission or taken action for trespass or sought injunctions.

Any one of these actions, he said, would be sufficient to prevent a PROW; although he added there are qualifications to this point. The public must be made aware of the action: i.e. it is insufficient just to write to your advocate indicating your stance and the action must be taken before the PROW is established. If action is taken afterwards, he said, it may be considered as obstructing a highway.

Moreover, he explained, once a PROW has been established it remains in force indefinitely or until it is extinguished by another legal process.

Therefore, he was looking for evidence of where people had walked, the start and finish point, with whom they had walked, what for, and how often. He added he needed this for each claimed path or even any other route. He would also need any evidence of any action taken by the landowner during the period in question.

In regards to the period of time, he said this issue is a bit confused, with common law setting no defined timescale and a decision being made on the merits of the case. He recalled that one heavily used urban path had become established within 18 months.

He pointed out though that the Highway Act sets out a period of 21 years from the date when the usage is first called in to question, so in this case it would be 1984.

However, he added the statutory law does not override the common law position but preserves it; so he would be considering both and so it could be PROW had been established in less than 21 years. Any decision will be determined on the balance of probability; he said.

Winding up his opening address, he suggested he ought to inform witnesses what the inquiry is not about: e.g. not creating new PROW’s or deciding if additional ones are needed; whether the claimed PROW’s are suitable or safe; or considering property interests. He finished by saying his conclusions will be based solely on the evidence put before him. He then asked if anybody had any questions.

It was confirmed the legislation being considered is Manx and not English law and that a ‘loop’ route would not establish a PROW unless it was for the purpose of visiting or viewing somewhere.

Mr Hickey went through his planned order of witnesses, saying he expected them to be cross-examined in order to test their evidence - even if they had submitted written evidence – and pointed out it was not under oath. However, he expected witnesses to be honest and truthful.

He stated he had already made two site visits, the most recent being the previous evening, and had looked at all the claimed paths.

He then made a list of people who wished to present oral evidence, and about 15 people of the 40-50 people in the room declared they wanted to; including John Welch who was involved in a previous access ‘dispute’ in the 1970’s.

Ian Costain, representing PROWL (PROW Langness), said he would be presenting evidence on his own behalf as well as PROWL, but he would not be calling witnesses.

Jenny Holt, advocate for the Clarksons, said she would be calling Simon and Jamie Riggle, the most immediate previous owners, to give evidence in addition to Mrs Clarkson, who was in attendance for the hearing.

Having settled who wished to speak, Mr Hickey said he would allow an evening session if assisted those who wish to give evidence but can not make it to the inquiry during the day time.

Director of Highways, Bruce Hannay was first to take the stand, and he too gave a brief overview of the legislation before saying the definitive maps of PROW, drawn up after the introduction of the 1986 Act, had never shown any PROW on Langness. Furthermore, he said no records could found in the department to show any attempt had been made to establish any PROW’ or certainly by Malew Parish Commissioners, whose local authority area the peninsula falls.

He did add that Castletown Commissioners had, in the past, written in to say they thought all the paths on the peninsula were public; but Mr Hannay dismissed this by saying the area is outside Castletown.

So the only route over which the public have access he said is the road to the car park, which had come about, by agreement, in the 1970’s.

He explained the issue had been ignited again in 2005 and, owing to the amount of phone calls and letters received by the Dept. of Transport about access restrictions around the lighthouse, inquiries were made with the landowner. However, this did not resolve the issue and so a Tynwald delegation tried to find a compromise. This also failed to find favour, he explained, and so the Inquiry had been established. He informed the inquiry 165 affidavits and 135 letters supporting the establishment of PROW’s have been received, with only 1 letter and 2 affidavits rejecting the proposition.

Therefore, owing to the lack of defined routes on the maps and conflicting points of view the DoT had decided to take a neutral stance at the Inquiry, he said.

In a break from the normally accepted procedure in inquiries in the IOM, Mr Hickey was the first to question Mr Hannay before allowing other parties to question him. This process was adopted with other witnesses appearing in the morning, so it is clearly Mr Hickey’s way of doing things; and perhaps he sees this as a way of speeding things up by potentially pre-empting questions from other parties.

Mr Hickey essentially asked Mr Hannay if paths were left off the defined maps more by accident than design; but Mr Hannay said he had insufficient knowledge and records to give a clear answer but he accepted it didn’t preclude their existence.

Ian Costain delivered his opening statement, which made quite clear where PROWL is coming from in support for the existence of PROW’s and conversely James Ramsden, presenting the case for the Clarksons made it equally clear why they disagree.

The inquiry will continue to hear further evidence over the coming days, and the Manx Herald will report on Mr Hickey’s conclusions in due course.