Hampshire County Council Item 13

Regulatory Committee

12 September, 2001

Application for the upgrading of Upton Grey Footpath 21 and Weston Corbett Footpath 1 to Byway Open to All Traffic

Report of the Director of Arts, Countryside and Community

Contact: Sylvia Seeliger, Ext. 6349

WILDLIFE AND COUNTRYSIDE ACT 1981

53. Duty to keep definitive map and statement under continuous review

(2) As regards every definitive map and statement, the surveying authority shall keep the map and statement under continuous review and as soon as reasonable practicable after the occurrence .... of any of [the events specified in sub-section (3)] by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event

(3) The events referred to in sub-section (2) are as follows -

(c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows:-

(i) that a right of way which is not shown on the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to which this Part applies.....

Under s. 53 Wildlife and Countryside Act 1981 the County Council has a duty to maintain an accurate map and statement recording the county's public rights of way. Anyone can apply to have the map amended if they consider that a previously unrecorded right of way exists and should be added to the map or, more unusually, that a path shown on the map is not, in fact, a public right of way. The County Council has a duty to make a decision on each application.

One fundamental rule of law is that an ancient public right of way does not cease to exist merely because it is no longer used or needed. For this reason, the history of a path and its previous use will be set out in some detail in this report. Any decision on the application must be based on an objective assessment of this evidence.

It follows that some issues, often of great importance to the parties involved, are not relevant and should be ignored in the decision making process. Thus the need for a path is irrelevant, as are matters relating to cost, potential damage, environmental protection or the popularity of the decision.

1. Summary

This is an application for the upgrading of a footpath from the road U260 in Weston Corbett to the road C122 in Upton Grey to byway open to all traffic. The claimed route is shown on an enclosure map dated 1794 as the `road from Herriot [Herriard] to Grewell', and described as an `ancient lane or road'. It is shown on a variety of maps as a route by itself, or part of a through-route, and is depicted on the Upton Grey Tithe map, and on maps made for local estate owners, in the same way as other, present day, public roads. On the balance of the evidence available, the claim is recommended for acceptance.

2. The Route

The claimed route is currently recorded as Weston Corbett Footpath 1 and Upton Grey Footpath 21. At its southern end, it branches in a north-easterly direction from a minor road (U260) between Weston Corbett and Tunworth, in Weston Corbett parish. There is a locked field gate across the bottom of the track, with a gap by the side to allow pedestrian access. The claimed path consists of a firm track, nearly 3 metres wide, with gravel and pieces of brick, enclosed between a fence and hedge about 9 metres apart. After 120 metres, the fence on the north-west side stops and the track is open on that side for a further 410 metres until the path reaches the Upton Grey parish boundary. From there, the track continues in a generally northerly direction, enclosed between hedges about 6 metres apart, for 100 metres. The claimed route then continues as a tarmac road that is used as a private vehicular access to the Dower House. The road is enclosed on both sides by mature hedges and banks about 7 metres apart, and continues in this fashion for 330 metres. The surfaced road then bears off to the north-west, but the claimed route carries straight on. There are still hedges and banks on either side, but the space between the boundaries is mostly overgrown with scrub and overhanging branches. There is a narrow worn footpath, approximately 130 metres long, down the middle of the route that connects with road C122 at a point immediately opposite a byway open to all traffic. The total length of the claimed path is 1,090 metres.

The description of Footpath 1 in Weston Corbett in the present Definitive Statement is as follows:

`From Road U.260 to parish boundary

From U.260 north eastwards along 10ft. wide stone based track enclosed approximately 20ft. wide between hedges to parish boundary.'

Upton Grey Footpath 21 is described as:

`From road C.122 opposite No.18 to parish boundary at Priors Hill

From C.122 south westwards along 12' wide metalled road, enclosed between hedges then along earth track through roads to parish boundary.'

3. The Applicant

The application, made in 1997, was signed by Mr. D. Tilbury, of Oakbank Road, Eastleigh. It was accompanied by a list of maps and other evidence in support of the claim.

4. The Landowners

The landowners affected by this claim are Mr. and Mrs. Mills of The Dower House, Upton Grey, Basingstoke RG25 2RY, Mr. J. Ratcliffe of Neale Turk, 10B Church Street, Basingstoke RG21 7QE and Mr. P.J. Denée, The Estate Office, Laverstoke Grange, Laverstoke RG28 7PF. Mr. and Mrs. Mills formerly owned all the land affected by the claim, but have transferred part to a family trust represented by Messrs. Ratcliffe and Denée.

Mr. P. Denée comments that the claimed route as `always been clearly indicated...as a footpath on the County's Definitive Map, and the Ordnance Survey Plans'. He states that the claimed route is not wide enough in places to take wheeled carriages, particularly in the northern section. He contends that `wheeled vehicles had never used this section'. Mr. Denée also refers to a gate shown on some larger OS maps, with the footpath to the side of it. He concludes that there is `little evidence to support the reclassification of this footpath to a byway open to all traffic'.

Mrs. R. Mills has made a sizeable case against the application and this is included in the report as Appendix 1.

5. Consultation

The following persons and bodies have been consulted about the claim, namely, Councillor Capt. M.P.R. Boyle, the local member, Basingstoke and Deane Borough Council, Upton Grey Parish Council, Weston Corbett Parish Council, the British Driving Society, the British Horse Society, the Trail Riders Fellowship, the Byway and Bridleway Trust, the Open Spaces Society, the Ramblers' Association, Hampshire County Council County Surveyor, County Planning Officer and the Rights of Way Area Officer (North). At the time of writing, the following responses have been received:

5.1 The British Driving Society is `supportive of well founded claims that will provide the opportunity for more off-road driving of horse drawn vehicles'. They are in agreement that `footpath is not the appropriate classification, and that under the present law it should be a byway open to all traffic, having been a general purpose vehicular road in the 18^th and 19^th centuries. There is no record of any subsequent downgrading or closure, and therefore its earlier status still applies'. The Society cites Timperley and Brill's volume The Ancient trackways of Wessex (1970), which points out that the route appears to be `an extension of the Lunway from Bagmore Lane "going along Priors Hill" to the important and ancient trackway junction at Five Lanes End, where it meets the Harrow Way summer route' (p. 92). Also referred to in support of the claim are Taylor's Map, Milne's Map, the Upton Grey enclosure award and map, Greenwood's Map and the OS early editions of c.1810.

5.2 The Ramblers' Association say that they have no evidence to support a claim for byway on this route. The local footpath secretary draws attention to the link between the two footpaths and Whites Lane and `questions whether this track might have been an old road?' If the claim is accepted, the Ramblers' Association requests that there should be a Traffic Regulation Order.

5.3 The Rights of Way Area Officer Michael Johnn says that he has no objections to this claim.

5.4 Upton Grey Parish Council sent Ordnance Survey and other maps to show that the claimed route is presently recorded as a footpath, and commented that `it quite simply seems ludicrous for anyone to allege that the short section through the trees, about 2 feet wide could possibly be anything other than a country footpath'. The Parish Council would also like to `raise grave concerns over safety if the path were to be opened up to anything other than a footpath'. Citing the `extremely dangerous bend' where the path joins the Tunworth road. The view at this point is restricted to ten feet in either direction, even if the present trees were cut back. `If the footpath were to become a byway it would form a hazardous crossroads across a road with a speed limit of 60 mph and this should be taken into consideration before any changes to the current status of the path are granted'.

5.5 The Area Surveyor North, for the County Surveyor, draws attention to the gates on the route, one of which is locked.

5.6 The Trail Riders Fellowship are in full support of the claim, though they do not have any evidence to contribute.

The other consultees either had no comments to make, or did not respond.

6. Historical and Documentary Evidence

6.1 Upton Gray Enclosure Award and Map, (1794, HRO Q23/2/134)

The award directed that the Commissioners for this enclosure, implemented in 1796, should `by stakes and other proper marks set out or appoint convenient public and private roads and ways...in through and over or by the sides of the said new inclosures or allotments', and `all new public carriage roads which should so set out and appointed should be and remain 40 feet broad at the least between the ditches'. Three public carriage roads were set out in this award (Upton Grey to Basingstoke, Upton Grey to Greywell and Upton Grey to Odiham), and it would appear that they were roads already in existence, since the wording refers to the phrase `usual course and direction'. The claimed route was not laid out as one of the `new' public carriage roads created at this enclosure, but is shown on the map accompanying the award. It is shaded yellow, as are the enclosure roads, and is of a similar width and depiction. From the west it is signed as `from Harriot' [Herriard] and it passes between the lands of William Talk and Thomas Leach to be signed `to Grewell' at its eastern end. The Upton Grey to Basingstoke Road crosses the claimed route at the corner of William Talk's first allotment, `to the south east end of an ancient lane or road' [the claimed route]. The Upton to Basingstoke Road, having passed `the said lane', entered Pudding Field at its south east corner. The description of William Talk's first allotment states that it is `bounded on part of the south by an ancient road leading from Herriard towards Grewell'. The allotment comprises the whole of Pudding Field, and Pudding Field is shown on the Tithe Map to the north and west of the claimed route, upon which it abuts. The Upton Grey to Basingstoke public carriage road passes in `its usual course and direction through and over the said [Pudding] field to the north west side thereof where it enters an ancient lane or road being part of the public carriage road or driftway from the village of Upton Gray aforesaid toward Basingstoke'. It is unlikely that the enclosure Commissioners would have taken a public carriage road of forty feet wide into a bridle road, or road of even lesser status, especially since it is a major through-route, so it would appear that the description `ancient road or lane' refers to a pre-existing public road. Indeed, the Award explicitly makes the connection between `ancient lane or road' and `being part of the public carriage road or driftway' in the case of the Upton to Basingstoke Road, and it is arguable that this equation could also be made in the case of the claimed route. The award sets out three public footways, none of which are the claimed route. One private carriage road and driftway of 30 feet wide is laid out branching out of Upton Grey Street, between the first allotment to Adolphus Meetkirke and an old enclosure of William Lovett's, running in a south westerly direction on the western edge of the village, and not in the vicinity of the claimed route.

6.2 Upton Grey Tithe Map and Apportionment (1839, HRO 21M65/F7/241/1-2)

The Tithe Map shows the claimed route as part of the road network of the area. It is coloured brown, like the other roads, and carries no plot number, indicating that it is not owned or tithable. The route passes through Prior's Hill, with Pudding Field to the north of it, and near to fields called Pudding Close and Pudding Field, the location of a common arable field that was enclosed in 1794 (see 6.1), confirming that the claimed route is the `ancient lane or road' referred to in the enclosure award. Where the route continues northwards towards Five Lanes End, another road branches to the north west. This has a plot number (26), is designated as `road' and is in the ownership of Charles Beaufoy, and occupation of Thomas and William Hutton. This is the only plot on the map shown as a road, and its tithe charge is subsumed into the total charge for the various plots occupied by Thomas and William Hutton. This would lend weight to the argument that the surveyor differentiated between public and private roads on this map, and that the claimed route is public in status. There is no separate section in the Tithe Apportionment for roads and waste.

There appears to be no Tithe Map or Apportionment for Weston Corbett.

6.3 Map of the Weston Corbett Estate, the property of George Green (1846, HRO Photocopy/392/4

This estate was surveyed by Thomas Wilson in 1846, and covers an area north and east of what is now Reeds Farm House and shows the claimed route, along the western boundary of what is now Green's Copse. The claimed route appears to be enclosed and is depicted in the same way as White Lane, out of which it branches. White Lane is now a public vehicular road. At the northern boundary of George Green's estate, the claimed route is marked `to Greywell', and White Lane is marked `to Tunworth'. Both the western fork of White Lane, and the claimed way, which forms the eastern fork, are marked 31. Plot 31 is given in the accompanying table as `roads and waste', three acres and ten perches in extent. The claimed route is clearly an integral part of the local road network.

6.4 Ordnance Survey County Series 25 inch Map, first to third editions (from GIS coverage)

6.4.1 The claimed route is shown on the first edition of the Ordnance Survey 1:2,500 map, dating from the 1870s, enclosed in Upton Grey and with a boundary feature on the east in Weston Corbett (the western boundary is depicted with a pecked line, indicating a feature less than approximately one foot high). The route in Upton Grey has a number `64' on it, which the book of reference gives as `road'. The main road from Tunworth to Upton Grey, now the road C.122, has a plot number of `41', also given as road. The book of reference for Upton Grey designates all routes as `roads', unlike the books for some other parishes, which make a distinction between public roads and occupation roads. This makes it impossible to comment on the public status of the claimed route in Upton Grey as shown on this Ordnance Survey map, save to say that it is depicted in the same way and has the same designation as other roads which today carry public vehicular rights. However, the southern part of the route is gated where it joins White Lane. The track is shown with a hedged eastern boundary, and is braced into plot 16. This is given in the book of reference as `arable, &c', of 19.958 acres. This depiction of features may indicate the process by which a road is taken by the landowner into his or her own holding.

6.4.2 The second edition of the 1:2,500 Ordnance Survey map, dating from the 1890s, shows that part of the route in Weston Corbett as being gated at both ends. The track is part of plot 16. That part of the claimed route in Upton Grey is shown in the same way as on the first edition. There is no book of reference for this.

6.4.3 The third edition of the 1:2,500 Ordnance Survey map, dated 1910, shows the Weston Corbett section as being gated at the southern end, but ungated at the northern end. Otherwise, there are no changes. That part of the route in Upton Grey is shown in the same way as the previous editions.

Items 6.1 to 6.4 constitute the strongest evidence that the claimed route carries higher public rights than footpath status. The items discussed below are further evidence of the existence of the claimed route. These are treated in chronological order.

6.5 Small scale printed maps

6.5.1 Isaac Taylor's Map (1759)

This is a commercially produced map printed at a scale of one inch to the mile. It shows an enclosed route running in a north easterly direction, branching out of the road north of Weston Corbett. The route becomes less clear and appears to follow the course of a pecked line that emerges on the Basingstoke to Greywell Road in the vicinity of Five Lanes End. The legend accompanying the map denotes that this depiction is of a `road inclos'd with hedges'.

6.5.2 J. Cary's Map (1787, HRO 139M89/2/17)

This is a map of approximately 6 miles to the inch, and shows a route approximating to the claimed byway, branching to the north east, in the vicinity of Weston Corbett.

6.5.3 J. Cary's Map (1809, HRO 139M89/2/26)

A slightly later map, at the same scale, which shows the way depicted in the same way.

6.5.4 J. Harrison's Map (1788, HRO 139M89/1/10)

This map was printed at a scale of 5 miles to the inch, and is highly generalised in its depiction of Hampshire. A route passes to the west of Upton and curves up in a north easterly direction through Nately, to Odiham. It could be argued that this corresponds to the claimed route, passing on through Five Lanes End to the north east.

6.5.5 J. Duncan's Map (undated, but probably c.1830s, HRO 139M89/1/14)

This map was produced in connection with the Reform Bill, and shows the county at approximately 4 miles to the inch. A route which probably corresponds to the claimed route is shown meeting the Tunworth to Upton Grey road. According to the legend, this is depicted as a `bye road'.

6.5.6 Edward Weller's Map (c.1840, HRO 139M89/1)

This map shows a comprehensive network of roads at the scale of 3 inches to the mile, and includes the claimed route, which is clearly shown branching north east out of the road from Weston Corbett to Tunworth, continuing on to Five Lanes End. The route is clearly depicted as part of the road network, and in the same way as other roads that are now public vehicular routes.

6.5.7 Bacon's Geographical Establishment Map (1910, HRO 139M89/1/18)

This map, at 3 inches to the mile, shows the claimed route clearly branching out of the Weston Corbett to Tunworth road in a north easterly direction, continuing on to Five Lanes End, which is clearly marked. The legend indicates that it is depicted as a main or cross road.

6.5.8 Milne's Map (1792)

This was a commercially produced map, and shows the route very clearly, branching in a north easterly direction out of the road running from Weston Corbett to Tunworth to join with the road from Tunworth to Upton Grey. It is shown as enclosed and depicted in the same way as other routes that are now public vehicular roads. The key for this map shows the claimed route to be an `enclosed road'.

6.6 Plan and Survey of the estate of Adolphus Meetkirke, by George Barnes (1795, HRO 10M57/9)

This map was drawn by George Barnes, a well-known local enclosure Commissioner, who also drew the enclosure map for the Upton Grey award of 1796. There are many similarities with the enclosure map. No doubt the 1795 map was drawn up for Adolphus Meetkirke at the time of the enclosure to give him a clear idea of how his land was arranged. The familiar road pattern is shown, with the claimed route crossing the Upton Grey to Basingstoke Road between the lands of William Talk and Thomas Leach. To the east of the claimed route, the land is called Prior's Hill. The claimed route is shown in exactly the same way as the other roads on this map, of a similar width and enclosed between hedges, and coloured yellow. It is marked `to Herriard', and continues to the north east towards Five Lanes End, where it meets the Odiham Road. The map shows a well developed road network in the area, and there is arguable that the claimed route is a general purpose road, as are other roads shown on this map.

6.7 Ordnance Survey 2 inch drawing 20 (1808)

The claimed route is shown, branching out of the road from Weston to Tunworth. Where the road branches, the route looks to be unenclosed (indicated by pecked lines) on both parts of the fork, for a short distance. A line, indicating some kind of ground feature, is drawn across the claimed route, where the route becomes enclosed. This is also the case with the U260, from which the claimed route branches. Once north of the woodland (the present day Green's Copse and associated woodland belt), the route is enclosed, and joins the Tunworth to Upton Grey Road. Where the route is enclosed, it is depicted at the same width as other roads that are now public vehicular roads.

6.8 Ordnance Survey Old Series 1 inch drawing (c. 1810)

This map shows the route very clearly, branching out of the road from Case is Altered to Tunworth, crossing the Tunworth to Upton Grey Road, and continuing northwards to Five Lanes End. There is no feature across the lane where it becomes enclosed. Again, the route is depicted in exactly the same way as other routes which are now public vehicular roads.

6.9 Greenwood's Map (1826)

This map relied heavily on survey information compiled by the Ordnance Survey. The claimed route is shown clearly on this map, branching out in a north easterly direction from the road between Case is Altered and Tunworth. It meets the Tunworth to Upton Grey Road, crosses it and continues in the same direction towards Greywell. It is shown as being enclosed, and in the same manner as other routes which are now public vehicular roads. This is a `cross road', as indicated by the legend accompanying the map.

6.10 Finance Act Map (1910, PRO Kew IR 125/4/154) and Reference Book (c.1910, HRO 152M82/4/10)

These maps and reference books were compiled for the Finance Act of 1910. Ordnance Survey sheets were hand coloured to show what land was included within hereditaments for valuation purposes. Public roads, not being taxable, were not shown to be part of private land, and are uncoloured on the maps. Tax deductions could be claimed for public rights of way, though landowners did not always claim them (Rights of Way Law Review, 1990, Section 9.3, pp. 17-18). The claimed route is shown as shaded along its length, indicating that it is part of a hereditament, and therefore not claimed as public. The reference book for Upton Grey shows only one claim for a public right of way in the parish, made by Mr. Seth Smith of Upton Grey Lodge, which is in the village of Upton Grey itself. The Weston Corbett book of reference indicates that no deductions for public rights of way were claimed by anyone.

6.11 Hants and Berks Gazette (Saturday 7^th January 1922, HRO 6M82/11)

Part of the evidence put forward by the claimant is a report of the proceedings in the Divisional Petty Sessions in 1922, detailing a gypsy encampment `on the highway at Five Lanes', which he contends is the claimed route. A more detailed description of the location is `in a lane leading from Tunworth to Greywell, between Five Lanes and Greywell, which is described by the police constable as a public highway, and by the Magistrates' Clerk as an `old cattle road'. The most likely candidates for the lane on which the gypsies had camped is the present day Upton Grey BOAT 18, which leads from Five Lanes End and feeds into the road C122 to Tunworth, or Upton Grey BOAT 19, leading from Five Lanes End westwards to Ragmore, then southwestwards along the road U261 to Tunworth, via Down Farm. The claimed route leads more directly to Weston Corbett, and lies south of the more direct routes between Tunworth and Greywell.

6.12 County Maintenance Maps

The claimed route is not coloured on either the 1929 `Handover Map' or the 1946 map of highways and rights of way, indicating that it was not considered to be a publicly maintainable highway. The road from Tunworth to Weston Corbett, out of which it forks, is shown coloured brown and is the road U260, and the continuation of the claimed route to Five Lanes End is the road U245, also coloured. This continuation of the claimed route was previously RUPP 18, and has now been reclassified to byway open to all traffic at a Public Inquiry in 1993, utilising some of the same documentary evidence as is cited in this report. The claimed route does not appear on the County Surveyor's list of publicly maintainable streets, `Chalist', though White Lane (the U260) is, and the continuation to Five Lanes End is listed as Down Lane (the U245).

6.13 The Definitive Map

Both Upton Grey Parish Council and Weston Corbett Parish Council were in agreement with the depiction of the claimed route as a footpath on the Definitive Map, published in 1964.

6.14 Ordnance Survey 1:2,500 maps, dated 1968 and 1976

These maps show the claimed route on two separate sheets. Half of the route in Weston Corbett is unfenced to the west of a hedge. There is no gate at the southern end, and this is consistent with the Definitive Statement. The northern half of the Weston Corbett section is enclosed, as is the section in Upton Grey. From grid reference 6844.4831 to grid reference 6852.4856, the track is shown by pecked lines between hedges.

6.15 H.W. Timperley and Edith Brill, The Ancient Trackways of Wessex, reprinted 1983

This is a volume which lists and discusses a number of important historical long-distance routes in Hampshire and a number of other counties. In the discussion of The Lunway (page 73), the authors suggest that `the Lunway could have joined the Harrow Way [the long-distance route passing south of Basingstoke] a little west of Bagmore [south-west of Herriard] and continued to a meeting with the summer way of the Harrow Way at Five Lanes End. In Herriard Park, as it goes north east to the summer way, the track is lost, but it can be picked up again going along Priors Hill [the claimed route], where it becomes one of the tracks leading to the meeting-place of ways at Five Lanes End'.

6.16 Other documents consulted

The following documents were consulted, but were found either not to be of help to the investigation, or to show features that have already been noted in several documents:

HRO Q23/2/72 Basingstoke and Upton Grey Inclosure Award 1786

HRO 10M57/P158/1 Survey of the lands of John Hanbury Beaufoy in Upton Grey, c.1813

HRO Q1/ series, Quarter Sessions Enrolments, various dates

HRO 2M81/PV1 Upton Grey Vestry Minutes, 1845-1888

7. Summary of the Historical Evidence

The existence of a way along the claimed route is not in dispute. Many maps show it, but make no explicit comment as to its public status. It was not specifically set out by the Inclosure Commissioners in 1796, but since that enclosure was before the 1801 Act, this fact does not mean that it no longer had any existence after the date of enclosure, or that its status was changed in any way. It is referred to in the description of the Upton Grey to Basingstoke Road, which crosses it, as an `ancient lane or road'. The section of road that the Commissioners ran their enclosure Upton Grey to Basingstoke public carriageway into is also described as an ancient lane or road, and the enclosure road and the ancient road together formed the route from the two aforementioned places. There is no indication that the Commissioners considered the claimed route to be any different in nature from the road that joined the 40 feet wide enclosure public carriageway. The Upton Grey Tithe Map and Apportionment also shows the claimed route as part of the local road network, coloured brown and listed as non tithable. There is no separate section for roads and waste in the Tithe Apportionment. It is indistinguishable in its portrayal on the map from the Upton Grey to Basingstoke public carriage road which crosses it. The Surveyor for the Tithe map showed another road, in private occupation, with a yellow tint, and a plot number, so it is likely from this evidence that private and public roads were differentiated on this particular Tithe Map. The first edition of the Ordnance Survey 1:2,500 map shows the northern part of the claimed route as having a plot number, which is listed as `road' in the book of reference. The book of reference makes no distinction between public and private roads, and other routes which are present day public vehicular roads are shown in the same way. However, the presence of a gate at the southernmost point in Weston Corbett, and the bracing into plot 16, by the 1870s indicates that this section was being taken into a landholding, and probably falling out of use as a through-route. The Weston Corbett estate map of 1846 shows the claimed route branching out of White Lane. White Lane is now a public vehicular carriageway, and both routes are depicted in the same manner with the same plot number. Plot 31 is shown in the table accompanying the map as being `roads and waste', indicating that the claimed route is clearly an integral part of the local public road network.

8. Other Evidence

The claimant has listed a number of small scale maps, mainly motoring maps. While these form useful additional evidence, they have not been discussed here because of the availability of so much other material at a larger scale. There are also details of eight users of the route, including the claimant himself, but he does not elaborate on the occasions of use, since the claim is based mainly on historical evidence. However, this does indicate that the route has been in use by vehicles during the recent past.

9. Conclusions

9.1 There is no doubt that a way on this route has been in existence since at least the middle of the eighteenth century. The question that must be decided is what public status the way carries. The claim has been made using historical evidence, primarily an enclosure award, a tithe map and apportionment and a number of maps. The enclosure map shows the claimed route depicted in a similar manner to the forty foot wide public carriage enclosure roads. It is described as an `ancient road or lane', as is the route that the Upton Grey to Basingstoke enclosure road runs into to form the complete through-route. In the absence of any modifying information, it can be argued that both the claimed route and that part of the Upton Grey to Basingstoke Road joined by the enclosure road are public carriage roads. The Commissioners are unlikely to have joined a forty foot wide road to a bridle road or route of lesser status. The claimed route is signed from Herriard and Upton Grey, and appears to be a through-route. Mrs. Mills argues that the `only public highways authorised are the public carriageways/carriage roads which must...be 40' wide' and `there is no public carriageway appointed over Upton Grey F.P. 21'. The use of the word `only' would hold good if the award had been executed under the 1801 Act, and indeed Mrs. Mills argues in her second submission that the 1801 Act required all highways to be shown, those not so shown `being stopped up'. While she admits that this award was earlier than the 1801 Act, she speculates `it is very probable that the same practice would have been followed, and it is therefore very relevant that UG21 is not shown as a carriageway'. However, she provides no evidence to prove this and, in any case, the wording in the Award is specific. The Commissioners were required to `set out or appoint convenient public and private roads and ways...in through and over or by the sides of the said new inclosures or allotments to be made by virtue of the said Act', and these public roads should be forty feet wide. Nowhere in the preamble is there any indication that all other existing roads are to be stopped up.

9.2 The Tithe Map and Apportionment indicates that the claimed route was in existence in 1841, and it is shown in the same way as the enclosure public carriageway from Upton Grey to Basingstoke laid out nearly fifty years earlier, and as an integral part of the local road network. It is tinted brown, has no plot number and is untithed. It is possible to argue that the presence of another route in the vicinity, which has a plot number, is tinted brown, and is in private ownership and occupation indicates that the surveyor for the Upton Grey Tithe Map drew a distinction between private and public status on roads on this map, and that the claimed route is a public carriage road in the same way that the Upton Grey to Basingstoke road that it crosses is. There are a number of papers dealing with the depiction of routes of Tithe Maps, particularly with regard to the numbering and tinting of routes. David Lamb (Rights of Way Law Review, 1991, Section 9.3, p. 35) says `should the track in question be unnumbered, but open to other tracks which are known to be public highways, and with no barriers across it, there are strong grounds for thinking that the track was at the time of the tithe award regarded as part of the parish highway system'. John Andrews (RWLR, 1994, Section 9.3,p. 68) is of a similar opinion, stating `if the road is not subject to tithe rent and is shown in every respect in an identical fashion to other roads on the same map which were indisputably part of the public highway network, then this may be a positive indication that it shared the same status. The case may be stronger if it is also coloured in the same way as the public roads - usually this is in brown, yellow or cream'. Naturally, this type of depiction on a Tithe map must be viewed in conjunction with other documentary evidence, since it is not strong enough on its own to make a case that the road was a public carriageway. This point is made by Roger Kain (RWLR, 1998, Section 9.3, p.100), who says `the word "road" on a tithe map means little on its own', and continues `always it is the balance of probabilities which is at issue and to ensure that this is assessed properly, it is important that a full range of extant maps is explored and that their evidence is assessed not only internally within the map...but also comparatively, map against map, and also map against other documentary material'.

9.3 Therefore, other maps must be consulted. The route is shown on Taylor, Milne and Greenwood. Mrs. Mills wrongly asserts that these early maps `have no key and no accompanying conventional signs'. The claimed route as depicted by Taylor is shown, according to his key, as a road `inclos'd with Hedges', on Milne's map the key gives it as an enclosed road, and on Greenwood's key as a cross road. Mrs. Mills contends that `nor do they show the way at all (viewed under magnification)'. These early maps show the existence of the way, but make no comment on its status. The way is also shown on various Ordnance Survey maps, with the first edition of the 1:2,500 map indicating in the book of reference that it is a `road', although it cannot be relied on to prove without doubt that it was a public road. The presence of gates on the Weston Corbett section of the route indicate that, by the first, second and third editions of the map, the claimed route was probably being taken into a landholding, perhaps because use by the public was declining. Earlier Ordnance Survey maps, dated 1808 and 1810 show the route, in one instance also with a feature across it, but again do not give any indication of the status. Mrs. Mills draws attention to the disclaimer carried by early Ordnance Survey maps emphasising the fact that the depiction of tracks is an indication that they are topographical features, and do not indicate their status. The fact that Ordnance Survey maps contain a disclaimer about rights of way (currently `The representation on this map of any other road, track or path is no evidence of the existence of a right of way' referring to any representation of ways other than those designated as public rights of way in the legend, and even these are qualified) does not mean that those ways depicted are not capable of being interpreted as public rights of way. The disclaimer concerns itself with responsibility for the accuracy of information, rather than with the information itself. It is also necessary to remember why Ordnance Survey maps were made in the first place, namely for military purposes to facilitate the movement of troops and armaments during the Napoleonic Wars. The map makers paid a great deal of attention to roads and good transport routes.

9.4 A map made shortly after the enclosure, by the same surveyor that had drawn the enclosure map, depicts the claimed route in exactly the same way as the present day public vehicular road it crosses. An estate map of the land of George Green made in 1846, depicts the claimed route as a part of the local highway network. Both parts of the fork in White Lane north of Hay Down are listed with the same plot number, which land is listed under `roads and waste'.

9.5 Mrs. Mills alleges that `the applicant must produce evidence that the DM is wrong', citing Advice Note 13 provided by the DETR. The matter that paragraph 9 of that Advice Note refers to concerns the removal of a right of way from the Definitive Map. In the present case, the claimant is exercising his legal right under the Wildlife and Countryside Act 1981 s. 53 (2) to claim that a public right of way carries a higher status than is currently depicted on the Definitive Map. The relevant clause is WCA 1981, s. 56 (1) (a) `where the map shows a footpath, the map shall be conclusive evidence that there was at the relevant date a highway as shown on the map, and that the public had thereover a right of way on foot, so however that this paragraph shall be without prejudice to any question whether the public had at that date any right of way other than that right'. The onus on the claimant here is to provide evidence of any higher rights claimed, not that the Definitive Map is wrong.

9.6 No evidence has been discovered to indicate that the rights on the claimed route have been legally extinguished. On the balance of probabilities, the historical evidence points to the claimed route as having the same status, that is public vehicular road, as the route from Upton Grey to Basingstoke, which it crosses, even though part of the route has been gated in the past, as it fell into decline as a through-route from Herriard to Greywell.

RECOMMENDATION

The claim to upgrade Upton Grey Footpath 21 and Weston Corbett Footpath 1 to byway open to all traffic be accepted, an order be made to add a byway from the U260 in Weston Corbett to the C122 in Upton Grey to the Definitive Map.

Section 100 D - Local Government Act 1972 - background papers

The following documents disclose facts or matters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of the report. NB The list excludes: (1) Published works; (2) Documents which disclose exempt or confidential information as defined in the Act.

File: Application for upgrading of Upton Grey Footpath 21 and Weston Corbett Footpath 1 to Byway Open to All Traffic, ref. 580

Rights of Way Office, Mottisfont Court, Winchester.