Hampshire County Council Item 5

Regulatory Committee

11 September 2002

Result of the public inquiry into the status of Sandy Lane, Bramshill

Report of the Director of Recreation & Heritage

Contact: Colin Piper Ext. 6043

WILDLIFE & COUNTRYSIDE ACT 1981 - Schedule 15, Sub-section 8

Restriction on power to confirm orders with modifications

(1) The Secretary of State shall not confirm an order with modifications so as -

(a) to affect land not affected by the order;

(b) not to show any way shown in the order or to show any way not so shown; or

(c) to show as a highway of one description a way which is shown in the order as a highway of another description,

except after complying with the requirements of sub-paragraph (2).

(2) The said requirements are that the Secretary of State shall -

(a) give notice as appears to him requisite of his proposal so to modify the order, specifying the time (which shall be not less than 28 days from the date of the first publication of the notice) within which, and the manner which, representations or objections with respect to the proposal may be made;

(b) hold a local inquiry or afford any person by whom any representation or objection has been duly made and not withdrawn an opportunity of being heard by a person appointed by the Secretary of State for the purpose; and

(c) consider the report of the person appointed to hold the inquiry or to hear representations or objections.

1. Summary

1.1 A recent decision by an Inspector at a public inquiry into a Map Modification Order made by the County Council is considered by the officers to be perverse. Members therefore are asked to give their approval to objections to be made to the proposed changes to the Order as originally made.

2. Background

2.1 On two separate occasions, in May 1999 and January 2000, the old Rights of Way Panel considered an application for a Map Modification Order to record Sandy Lane, Bramshill as a Byway Open to All Traffic (BOAT). The application was made in 1984 by the Bramshill Parish Council but for a number of reasons the claim was not investigated thoroughly until recent years. In the mean time the Parish Council had changed its view regarding the status of the lane and opposed the route becoming a BOAT.

2.2 The matter was discussed on two occasions because, following the first meeting, additional information regarding the status of the route was submitted by local residents and further research was conducted by the officers. On both occasions the members of the Rights of Way Panel agreed with the officers recommendation and resolved to make a Map Modification Order for BOAT status.

2.3 The Order was duly made and advertised and as a result eight objections were received to the proposal, including those from Bramshill and Eversley Parish Councils. This meant that the County Council could not confirm the Order but had to refer the matter to the Secretary of State. A public inquiry was held in Eversley village hall over a period of 5 days in March and April of this year.

2.4 The officers who attended the inquiry, to represent the County Council, were so concerned about the way the proceedings were conducted by the Inspector that at the end of the inquiry a formal complaint was made to the Planning Inspectorate regarding the running of the inquiry. The Inspectorate has recently replied to that complaint and acknowledge that in some ways the inquiry was not conducted to the standard normally expected. The officers are satisfied with this response and do not propose taking this aspect of the matter any further.

2.5 The Inspector's decision letter was received in August. He decided to confirm the Order but he modified it so that the status of the route was that of bridleway only. He also reduced the width of the right of way so that at two locations it was only 1.0 metre wide, where it used to pass through gates, and 1.5 metres wide for the southern section of 20 metres where the track is enclosed by earth banks constructed in the 1990s.

3. Conclusions

3.1 It is immaterial to the County Council whether the outcome of the inquiry results in Sandy Lane being recorded as a bridleway or a Byway Open to All Traffic. Regardless of its precise status the route would be of significant benefit to walkers, riders and cyclists in the locality. However, it is extremely important to the County Council that all decisions are soundly based on the correct interpretation of the facts and the current legislation.

3.2 The officers consider that the Inspector's decision letter does not take proper account of all the evidence presented, that it is biased and that it misunderstands the legal criteria upon which these issues must be decided. Advice has been sought from Chief Executive's Department which is of the opinion that the decision is unbalanced and legally flawed. The decision could thus set a dangerous precedent for other routes under consideration that could also be the subject of public inquiries. For this reason officers are of the opinion that this decision must be challenged.

3.3 There are two ways in which the Inspector's decision can be contested. The first is to allow the modified order to be confirmed and then to make an application to the High Court for a Statutory Review. This would involve the County Council in considerable expenditure, primarily in hiring the services of a barrister. The second method is to object to the modified Order which has to be published and advertised in the near future. This would result in a second inquiry, although the officers would request that the matter was dealt with by written representations instead. This procedure would be less expensive and time consuming than a full blown inquiry. If there is a second inquiry, the legal representation can be dealt with by the Chief Executive's staff. It is also seen as desirable to ask the Planning Inspectorate to appoint a different inspector to hear the objections to the modification.

3.4 It should be emphasised that this proposed course of action is very unusual. The County Council has taken part in numerous inquiries into Orders affecting public rights of way over the years and they are usually conducted in an exemplary fashion. The conduct of the Inspectors is such that their decisions are generally regarded as being impartial, legally correct and acceptable to those who participated in the proceedings. Officers consider that the decision for Sandy Lane, Bramshill does not come into that category and should therefore be challenged.

RECOMMENDATIONS

That members resolve -

1) To make objections to the modification of the Order for Sandy Lane, Bramshill.

2) That the Planning Inspectorate be requested to deal with the objection by written representations rather than a public inquiry

3) That the Planning Inspectorate be requested to appoint a different inspector to hear the objections to the modification of the Order.

Section 100D - 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 this report.

NB The list excludes (1) published works and (2) documents which disclose exempt or confidential information as defined in the Act.

File CR21 - Rights of Way Office, Mottisfont Court, Winchester