The Order recognises the existence of a public right of way over the Weatherby level crossing which lies in the heart of Newmarket and serves as a key access point for members of the local community.
Network Rail had previously sought to close the crossing through the Network Rail (Suffolk Level Crossing Reduction) Order (“TWA Order”), however the Secretary of State removed the crossing from the Order (the TWA Inspector having concluded both that the alternative route suggested was not a convenient and suitable replacement for existing users and that there was no compelling case in the public interest to justify the closure of the crossing) (see here).
During the TWA Inquiry (in spring 2018) the question as to the status of rights at the crossing arose - no public right of way having yet been recorded for the crossing – but it was agreed that the correct procedure for determining this issue was the statutory procedure set out in the Wildlife and Countryside Act 1981 for definitive map modification order (“DMMO”) applications. A DMMO application was then duly made by an interested member of the public, which ultimately led to the more recent 9-day inquiry.
Whilst Suffolk County Council considered there to be sufficient evidence to make the Order, it took a neutral stance as to whether it should be confirmed, leading Newmarket Town Council to take over responsibility for presenting the case in support of confirmation. Network Rail was the only objector to the Order.
The Inspector concluded inter alia that on balance, the evidence as a whole, was supportive of the claimed route having been dedicated as a highway prior to the construction of the railway. In particular, he placed significant weight on a number of railway documents, contemporaneous with the construction of the railway, which referred to the route as a public road. Further documents that had passed through the Parliamentary process were supportive of this position and contrary documents relied on by the objector were not of sufficient evidential weight to outweigh the railway documents. The Inspector also placed significant reliance on witness evidence that provided personal evidence of use dating back to the 1930s, which (along with further documentary evidence, including a number of old newspaper reports) was consistent with an earlier dedication of the route as a highway.
Overall, in light of the evidence before him, the Inspector concluded that the route had the status of a restricted byway and so has proposed modifications to the order to reflect that status.
Merrow Golden represented Newmarket Town Council at the Inquiry.