Councillors reject application for public right of way at controversial former South Shields dock site

The stretch of land adjacent to the former Brigham and Cowan Dock 4 Entrance, off Long Row, previously hit the headlines after being gated-off due to development works in recent years.

Plans have since been approved for a floating pontoon for the storage of small boats at the site and to open up opportunities for water sports and community groups, and developers have more recently sought permission for “educational and safety” boats to use the ‘marina’ development.

A decision by landowners to close a route adjacent to the former dock has previously been met with opposition from local residents, who claimed the site was well-used by the public.

The route also covered part of the national England Coast Path, with the obstruction of the route previously sparking concerns from campaigners and South Shields MP Emma Lewell-Buck.

At a meeting this week, South Tyneside Council’s Planning Committee considered an application to add a length of footpath to the council’s Definitive Map and Statement (DMS), an official record of public rights of way.

This followed an application from The Friends of Market Dock Pathway group to “add a length of footpath at Long Row South Shields to the DMS”.

The application route of around 347 metres was described as starting at the “southern end of Wapping Street, just south of T S Collingwood Drill Hall and proceeding in a southerly direction following the river edge to end at the junction with Long Row, outside number 14”.

User evidence from 91 individuals was also submitted to support the application, detailing their use of the application route over various periods, along with photographs and maps.

Several landowners linked to the application route appointed solicitors and specialist consultants to submit an initial objection, and a council report states the objection indicated there was “no evidence of any historic route prior to 2008” and that the route was “physically obstructed in 2016 when the use of the site changed from office to residential”.

It was argued that this all prevented a claim for a public right of way as the route had not been used for an uninterrupted period of 20 years, a key legal test under the Highways Act 1980.

Following receipt and validation of the DMS application, South Tyneside Council appointed an external rights of way consultant to “investigate the application on the council’s behalf”.

Although an initial report concluded it was “appropriate for the council to make an order to add the application route to the DMS”, a supplementary report was later produced by the consultant concluding that it was instead “appropriate to refuse to make an order”.

A council report said this was because of “additional evidence submitted”  by objectors which “showed the application route was not available for the full period suggested by the evidence in the application”.

A report presented to councillors this week said the application failed a key test as the route had been closed to the public on several occasions and was therefore not “actually enjoyed by the public as of right and without interruption for a full period of 20 years”.

Councillors were also told that the route’s status under the England Coast Path was “completely irrelevant” to the legal discussion and that a decision on the application must be “based upon fact and law, not opinion”.

Dave Carr, South Tyneside Council’s highways and infrastructure manager, gave a presentation on the issue to a packed council chamber on Monday, July 15, at South Shields Town Hall.

It was stated that the land over which the alleged footpath ran had various private owners but had never been in the ownership of South Tyneside Council, and that there was “no evidence of landowner intention” to dedicate the route as a public right of way.

The report to councillors recommended that the Planning Committee “decline to make an order to add the application route to the DMS”.

Some members of the Planning Committee raised concerns about perceived links between an individual linked to landowners objecting to the public right of way, and certain South Tyneside councillors.

However, debate on the application was allowed to proceed and the decision was placed in the hands of elected councillors on the planning panel.

Councillor Sarah McKeown questioned why the council had not interviewed the 91 individuals who provided statements outlining their use of the route.

Council officer Dave Carr said the committee had to weigh up this user evidence against objector (landowner) evidence, and noted there were some “contradictions” in evidence provided, including claims people could not have physically walked the route on certain dates.

When pressed on why people making user evidence submissions had not been interviewed further, the highways officer said that he “couldn’t say why it didn’t happen, it just didn’t happen”.

Councillors heard the council had been advised that the erection of a fence during the development in the area “removed the 20-year test” and that the application failed on that basis.

Mr Carr also noted that the legal process of establishing the England Coast Path was “unrelated to the establishment of public rights of way”.

Councillor Geraldine Kilgour said the first report from the council’s external consultant, and the “first recommendation” around a public right of way, had caused “alarm” and that there were “huge lessons to learn with evidence gathering”.

While stating she understood the “emotion” around the dispute, the councillor stressed “the law is the law”.

Cllr Kilgour told the meeting: “For me, this is private land owned by house builders and it doesn’t satisfy the test […] for that reason I don’t think we can make any other decision other than to disallow the application”.

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However, several councillors on the committee disputed the recommendation from council officers and made queries about fencing at the site and what date represented the ‘final closure’ of the route.

Councillor David Kennedy said dates presented in evidence were “very vague” and said he believed it was “dubious” to weight the case in one direction.

After being put to the vote, a decision on the application was initially tied with six votes in favour and six against.

Councillor Stephen Dean, Planning Committee chair, used his casting vote to tip the balance to seven votes in support of the council officer’s recommendation, and the application was refused by a majority.

Cllr Dean said he could “see both sides” but that he “could not go against the law”, and added the application had the chance of “going to appeal anyway”.

When challenged by councillor Andrew Guy about the comments and implications on councillors who had voted to support the application, Cllr Dean clarified his comments about the law were “his opinion”.

A council report states the land over which the application route runs is “within the area of a former shipyard and dock complex owned and operated by Brigham & Cowan Ltd, which closed in the 1980s”.

The council report adds: “In the mid to late 1990s part of the land was redeveloped for housing, and in the mid to late 2000s further land was redeveloped for offices, which was later converted to housing”.

Documents and reports linked to the public right of way application are available to view on South Tyneside Council’s website.