Visitors to the church over the past few days will already know that the normal footway approaching the church from the main gate on Church Road, opposite Well House, is now closed for safety reasons. Access to the churchyard is now via the footpath HE54 which runs between the churchyard boundary wall and the private road called Church Lane, which runs westwards from Church Road past the church car park. The footpath follows the boundary wall, then ascends a bank to the level of the churchyard, where there is a gate. Some visitors have been confused by the sign put up by the owner of Church Lane on the post she has erected at the end of the footpath by Church Road. This post is intended to explain the position.
The map above is what is known as a cadastral map. It has been provided by the Land Registry and shows property boundaries and land ownership. The line of footpath HE54 is coloured deep blue, deep pink and purple. It is not recorded in any deed of title, which means that the owner has not registered the land. It does not mean that it is not owned by anyone. It has only been mandatory to register land transactions at the Land Registry since 1998.
In order to understand the position now, it helps to understand the history of the lane. Below is an extract from the Tithe Survey of Lyminge carried out in 1837.
The site numbered 513 was the school, and 512 was a garden. These are now Church Court and the Church carpark. The collection of plots next to this numbered 502, 504, 506 and 508 comprised a tenement and gardens, and is now occupied by Dumonts and Lanfranc. The field numbered 4 was called Church Meadow, and is now occupied by all the houses along the High Street from Annbank to Ethelburga, plus Kent Cottages. It is clear that there was an approach to Church Meadow past the gardens numbered 502 and 512, indicating that Church Lane has existed since the early part of the 19th Century at the very least, and probably for much longer.
In 1837, Church Meadow was owned personally by the Rector Ralph Price. It seems to have been sold by Ralph Price to Canon Jenkins, because in 1903, the whole plot had passed into the hands of Canon Jenkins’ only surviving son William Kinnaird Jenkins. In that year he sold the bulk of Church Meadow to a developer from Folkestone, who then proceeded to erect the houses that we see today. It was necessary to provide access to Kent Cottages by preserving Church Lane. However, the line of the footpath was not included in the conveyance and it would seem that William Kinnaird Jenkins chose to retain the strip of land now designated as Footpath HE54 in his personal ownership. The fact that it remains unregistered indicates solely that it has not been sold since 1998. It is probably owned by William Jenkins’ heirs, though there is no reason for them to even be aware of this since it may not have been identified as an asset in his estate when he died in May 1945 in Falmouth, Cornwall.
Public footpaths were first registered under the provisions of the National Parks and Access to the Countryside Act 1949. This created the concept of the Definitive Map through which all existing footpaths were intended to be recorded. The act enshrined the legal principle of “once a right of way, always a right of way”. Parish Councils were asked to provide information about known paths, and the map was supplemented by a schedule describing the various footpaths as appropriate. The Schedule which still forms part of the Definitive Map describes Footpath HE54 as lying between the churchyard boundary wall and the private lane, and also notes that it is metalled, ie has a hard surface. We have been advised by one resident who attended the village school around 60 years ago that she remembers the footpath being tarmacked periodically while she was at the school.
As the authority responsible for maintaining the public highway, which includes footpaths, Kent County Council is obliged to ensure that they remain open for use. It is clear from the testimony of older residents that the line of the footpath, although tarmacked, was not regularly used and in fact it was normal as far back as the 1930s which is the limit of living memory, for pedestrians to walk along the private road. This led to the footpath surface becoming overgrown with grass, and difficult to walk upon. It is unclear when the footpath ceased to be maintained but this could have been as long ago as the 1960s.
The current owner of the private road along Church Lane has recently started to take issue with pedestrians using the lane, and has posted a notice to deter use. This is a matter that has not yet been tested in court. However, the stated opposition to pedestrian use of the lane has forced KCC to review the state of the footpath. The line of the footpath covered in grass is not in a state that allows it to be used easily. This is why KCC have begun the process of removing the grass to uncover the tarmac and restore the path to the condition that is recorded in the Schedule to the Definitive Map. Had there been no opposition to pedestrian use of the lane, this would not have been necessary.
KCC is taking the line of least resistance at this stage. However, it remains arguable that a right of way has been established over the whole lane as far as the bank. This is because people have walked over the lane openly, without permission and without the use of force for more than 20 years. This is sufficient under Common Law to create a right of way. A sign stating that a route is a “Private Road” is simply a description that it is in private ownership rather than a highway adopted by the County Council. Such a sign is not sufficient in itself to prevent anyone using it. Therefore the position would seem to be that a public right of way over the section of Church Lane that runs from Church Road to the bank was established many decades ago by regular public use, long before the current owner lived in Lyminge. She bought the lane with a public right of way already established. This renders the sign that she has placed at the entrance to Church Lane of no legal effect. However, this point has not yet been argued in court, so it is understandable that in the face of opposition by the owner of the lane, KCC have chosen to put the scheduled line of footpath HE54 back into a state where it can be walked upon once again. The footpath is thus being restored to how it was 60-70 years ago.