Archived decisions

    Hampshire County Council Item 9

    Regulatory Committee 27 April 2005

    Claim to add to the definitive map a bridleway between Sickles Hatch and Bridleway 62 in the Parish of Binsted

    Report of the Director of Recreation and Heritage

    Contact: Alex Lewis, extn. 6044; [email protected]

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

1. Summary

1.1 This report concerns an application to add to the definitive map a bridleway between Sickles Hatch and Straits Inclosure in Binsted.

1.2 The bridleway was set out in the Binsted Inclosure Award of 1857. There is no evidence of the route having been stopped up and thus the bridleway rights would appear to subsist, although there is no evidence of the rights having been exercised by the public. The claim is recommended for acceptance.

2. The Applicant and the application

    The Application was made by Mrs Maureen Comber of Frith End, Bordon on behalf of the Three Counties Bridleways Group. The application was made in 1999 and accompanied by three documents, including relevant details of the Binsted Inclosure Award.

3. The Landowners

    The owners of the land affected by the application are Mrs B.N. Pilcher and the Trustees of the Mrs B.N. Pilcher No. 2 Discretionary Settlement, both of whom are represented by Giles Wheeler-Bennett, Chartered Surveyor and Land Agent, of Bishops Waltham. The landowners oppose, and may contest, the claim and have raised concerns about the interpretation of the railway evidence, considered at para. 8.11.3 below

4. The Claimed Route

4.1 The claimed route commences at a junction with Sickles Road, at Sickles Hatch, on the Binsted and Kingsley parish boundary (A - B on the map at Appendix 1). It continues northeastwards for approximately 670 metres, following the parish boundary, to join Binsted Bridleway No. 62 and Footpath No. 27, southwest of Straits Inclosure. The claimed route is imprecisely marked on the map submitted with the application, but it is clear from the evidence subsequently examined that, if a highway exists, it must lie on the northern (i.e. the Binsted) side of the parish boundary.

4.2 No sign of the bridleway exists on the ground. The parish boundary at this point consists of a hedgerow with mature trees, with a ditch on its northern side. The land is in part cultivated and in part pasture. There are a number of field boundaries crossing the route and a disused railway line.

5. Consultation

    The following persons and bodies have been consulted about the application, namely the Director of Environment, Ramblers Association, British Horse Society, Councillor Filer the local member, Trail Riders Fellowship, Cyclists Touring Club, LARA, East Hampshire District Council and Binsted and Kingsley Parish Councils. The following responses have been received: the remaining consultees are presumed to have no evidence to offer.

5.1 Ramblers' Association - has no objection to the application but has no evidence to offer.

5.2 LARA - has no point of view on this route

5.3 Director of Environment - has no objection in principle to the proposal.

5.4 Kingsley Parish Council - has no comment as the path is outside the parish boundary.

5.5 Binsted Parish Council - advises that a lifelong resident states that there was never a foot crossing at Kingsley Halt, so to the best of his knowledge there has never been a bridleway on the claimed route.

6. The issue to be decided

6.1 This Committee is required to decide whether or not the evidence described in this report shows that a public right of way subsists, or is reasonably alleged to subsist, over the claimed route.

6.2 There is no suggestion that a right of way has been acquired by recent public use of the claimed route. Instead, the applicant alleges that bridleway rights were created during the statutory inclosure of common and waste land in Binsted, as evidenced by an Award of 1857. If this proposition is correct, then such rights must exist, irrespective of whether they are currently exercised, unless they have been properly stopped up by due process of law.

6.3 The burden of proof in these matters is `on the balance of probabilities', so it is not necessary for evidence to be conclusive before a change to the definitive map can be made.

6.4 The originals of many of the documents referred to in this report are only available in public record offices, but copies, transcripts or tracings of most documents are available for inspection at the offices of the Rights of Way Section. Members are urged to inspect these, or the originals, when considering this report.

7. A summary of the historic and documentary evidence

    Some small scale maps produced prior to 1830 show a road or track approximately on the claimed route, but this appears to have been stopped up during the inclosure of Binsted Common in the 1850s. The Binsted Award is dated 1857, and appears to reflect an inclosure that had, to a large extent, already happened. It sets out a bridleway, nine feet wide, on the claimed route, part of which is also a private carriage and occupation road, and along the entire length of which is also set out a public footpath six feet wide. There is no evidence of the bridleway having been stopped up or diverted after inclosure, yet no maps subsequent to the inclosure show it as a physical feature. It was not claimed as a right of way by the parish immediately prior to the first definitive map published in 1954. The post-inclosure evidence tempts the conclusion that the bridleway was never properly set out on inclosure, nor taken up by the public, but this conclusion is not an easy one to reconcile with the terms of the 1845 Act. Nor can it be reconciled with the fact that part of the same inclosure bridleway subsists on the definitive map today as Binsted Bridleway No. 62.

8. Historic and documentary evidence in detail

8.1 1759 - Taylor's map

    This is a small scale map which is one of the earliest commercially produced maps which show roads. This map shows Kingsley, (to the south of the claimed route), Wheatley (to the north of the claimed route), but nothing that could be said to represent the claimed route, or any predecessor of it.

8.2 1792 - Milne's map

    Similar in weight and providence to Taylor's map, this is another commercially produced map, printed at the scale of one inch to the mile. It is much more helpful than Taylor's map in the way it shows Kingsley, Wheatley and the area in between, known as `Straits', which was land that subsequently formed part of the 1857 inclosure. No roads are shown through The Straits, although several lead into it, including roads on the approximate alignment of Sickles Road, which currently connects Kingsley with Wheatley.

8.3 1816 - Ordnance Survey one inch map and drawing

    This map reflects the greatly improved mapping techniques that were practised by the Ordnance Survey and, as a result, much more reliance can be placed on it as an accurate representation of the topographical features present at the time of the survey. Like Milne's map, it shows Kingsley and Wheatley, and a road, broadly but not exactly on the line of the present Sickles Road, this time running through The Straits and connecting the two settlements. Unlike the previous two maps, it also shows a track running northeastwards from Sickles Hatch, through The Straits to a junction with a road at Frith End. This track follows a similar alignment to the claimed bridleway and Bridleway 62, but (in so far as it is possible to tell at this scale) somewhat further to the north of the parish boundary. It is not possible from this map alone to judge the status of the tracks and roadways shown on it, other than to say that the scale of the map makes it likely that only routes of some physical or strategic importance are likely to be shown on it.

8.4 1826 - Greenwood's map

    This map carries the same evidential weight as Taylor's and Milne's map, considered above. Although reputed to have relied heavily on the survey previously carried out by the Ordnance Survey, in this instance there are some differences in the way in which the mapmaker shows the topography at Sickles Hatch. The extent of land named The Straits is different, for example, and the number of tracks and their alignment here is slightly at odds with those shown by the Ordnance Survey. Like the Ordnance Survey map, however, Greenwood's map shows a road or track crossing Sickles Road north of Sickles Hatch, and running northeastwards. approximately parallel with the parish boundary, to Frith End.

8.5 1843 - Tithe Map and Apportionment

    The Tithe Commutation Act of 1836 introduced a scheme whereby all tithes were converted from a payment from the produce of land to a money payment. The maps and awards prepared under this Act were prepared under statutory authority and were open to public scrutiny and are thus a reliable source of information about land use.

8.6 In this instance, however, the tithe records are of no assistance in determining the claim, as the area of land shown on maps as `The Straits' (but also known as Binsted Common) is not mapped. This is not unusual where land was not titheable, and something that is entirely consistent with use of land as waste or common, as `The Straits' would appear to have been. No bias in favour of, or against, the claim should be read into the tithe documents.

8.7.1 1857 Binsted Inclosure Award

    Inclosure is the name given to the process whereby land was taken out of a communal, or common farming system and allotted to individuals who subsequently retained sole ownership of their individual parts of it. It had a major impact on the landscape, as large open fields previously cultivated in strips or blocks were divided by hedges into separate units, and waste or common land was similarly fenced or hedged and improved by its new owners.

8.7.2 During this process account had to be taken of the public roads and other highways crossing the land being inclosed. As a consequence, inclosure evidence is one of the few historic sources that can prove the exact status and location of highways. From the mid 18th century, most inclosures took place with the approval of Parliament, under the authority of commissioners, or latterly a Valuer, who could vary the existing highway network and set out new or additional highways, within the parameters of their statutory powers.

8.7.3 An inclosure of common and waste land took place in Binsted in the mid 1850s. The scheme was implemented under the 1845 Inclosure Act, and was carried out by a Valuer, answerable to Commissioners appointed by that Act. The Valuer had the power i) to set out and make, ii) to widen and iii) to stop up, divert and alter any public roads or ways through the land being inclosed (section 62).

8.7.4 The Valuer made a number of decisions of relevance to this claim:

      i) He stopped up a road that would appear to be the track shown on Milne's and Greenwood's maps and the Ordnance Survey one inch map referred to at paragraphs 8.3 and 8.4 above.

      ii) He set out a public bridleway on the line of the claimed route and part of Bridleway No. 62. The wording of the award is

      "...One other public bridleway of the width of nine feet numbered 472 and 261 on the said Map A hereunto annexed commencing at the said public carriage road or Highway hereinbefore set out called the Wheatley and Kingsley Road at a point called Sickles Hatch marked D on the said map A and extending thence in a eastwardly direction along and over for the whole length thereof a private carriage and occupation road hereinbefore set out and numbered 472 on the said map A thence in the same direction over the allotment numbered 474 on the said Map A thence in the same direction crossing a private carriage and occupation road and a public bridle and foot way hereinafter set out and numbered 272 on the said Map A thence in the same direction along and over for the whole length thereof a private carriage and occupation road hereinbefore set out and numbered 261 on the said Map A to and terminating at the said public highway hereinbefore set out called the Frieze End and Bentley Road at a point marked P on the said Map A subject for the whole length thereof to a public footway hereinafter set out and numbered 472 473 and 261 on the said Map A..."

    iii) He also set out a public footway, six feet wide, to run contiguous with the bridleway, namely along plots 261 and 472, but also along parcel 473, on the edge of allotment 474. The purpose of doing this seems obscure, given that it was well established that public bridleway rights included a public right of way on foot.

      iv) He set out two private carriage roads, co-extensive with the easternmost and westernmost parts of the bridleway.

    A copy of the relevant part of the inclosure map in annexed at Appendix 2.

8.7.5 The records of the Inclosure Commissioners held at the public record office in Kew have been examined, as has a further copy of the award which is in all material respects the same as that that held in Hampshire's own Record Office.

8.7.6 Unlike the 1801 Inclosure Act and the individual Acts authorising earlier inclosures, the 1845 Act does not set out any particular procedure for the proper establishment of new roads other than as to width (with which the award complies). Further, it provides, by section 105, that confirmation of the Award is conclusive evidence that all `directions of this Act in relation to every allotment, exchange, partition and matter therein set forth and contained, which ought to have been obeyed and performed previously to such confirmation shall have been obeyed and performed'. In other words, once the award has been confirmed, all formalities required to have been completed prior to the date of confirmation, must be assumed to have been properly done. It follows that there is very little grounds on which an awarded highway can subsequently be challenged.

8.8.1 circa 1870 - Ordnance Survey County Series Map First Edition

    This map is very useful in providing a detailed picture of the landscape at the time of the survey, but there is no sign on this map of the claimed route. The field through which it passes is (together with two adjacent allotments) numbered 937 and described in the Book of Reference as `Pasture & c'. That part of the inclosure bridleway which is also part of Bridleway No. 62 (i.e. inclosure parcel No. 261) is shown, enclosed, at a width between 7 and 9 metres (approximately) and described as `Occupation Road'.

8.8.2 An Ordnance Survey Boundary Book, which records a survey of the relevant section of the parish boundary between Kingsley and Binsted made in 1866, does not show any features on the northern side of the boundary, where one would have expected the claimed bridleway to have been.

8.9.1 1883 Aldershot Farnham and Petersfield Railway deposited plans

      Plans of the intended routes of railways were deposited before Parliament at the same time as bills seeking authorisation for their construction. The plans were required to provide details of the crossing of public highways, were open to public scrutiny and formed the basis of compulsory purchase and compensation payments. In consequence, they are normally regarded as good evidence of the status of highways crossed by the proposed lines. It is not known to what extent the railway surveyors relied on the recently produced Ordnance Survey maps when compiling their plans, but an independent inspection would almost certainly have been made.

8.9.2 The line proposed by the Aldershot, Farnham and Petersfield railway was never constructed, but plans show that it was intended to cross the line of the claimed bridleway. There is no evidence on the plan that the claimed bridleway existed as a physical feature, although there are some tracks crossing the same parcel of land (not on the claimed route), including another bridleway allotted on inclosure.

      The relevant parcel of land is described in the book of reference accompanying these plans as "Field, Stream Public Footpaths and hedgerow", and the occupiers of the land as the `Trustees of the will of the late Henry Wheeler and Alton District Highways Board'.

8.9.3 In theory, the plans should carry as much evidential weight as they would do had the line been constructed, although their strength may be affected by the reason for the failure of the bill to pass through parliament. No inquiry has been made into this, as it is probably sufficient to draw from these plans and the book of reference the fact that their compilers made no reference to the physical or legal existence of the inclosure bridleway.

8.10 circa 1895 Ordnance Survey County Series map, second edition

    There is no material change in the way in which the area of the claimed route is shown, except that there is a new path crossing allotment 474 (not on the alignment of the claimed bridleway, but similar to that shown on the 1883 railway plan), which does not appear on earlier maps. There is an irregularly shaped feature at the junction of the parish boundary with Sickles Road, but it is not apparent what this is, although it may have been a pond. There is no sign of the claimed bridleway.

8.11 1901 London and South West Railway, Bentley and Bordon Light Railway deposited plan and book of reference

8.11.1 Although Parliamentary authority was not needed for light railways constructed after 1896 (this was done by an order granted by the Light Railways Commission) the principle behind the preparation and deposit of plans remained the same as before.

8.11.2 In 1901 plans were deposited in connection with the proposed construction of a light railway between Bentley and Bordon. The proposed line, which was, in fact, opened in 1905 and remained in use until 1966, crossed the route of the claimed bridleway. However, consistently with the Ordnance Survey maps, the deposited plans do not show any path or track on the line of the claimed bridleway.

8.11.3 It has been suggested on behalf of the landowners, that the Bentley to Bordon Light Railway was laid for military purposes, and that this may have affected the way in which the claimed route was treated when the line was constructed. Commentaries are divided on the extent to which the line was funded, or underwritten, by the war office, but there is consensus that the line operated as a service to the public in the same way as any other branch line (see also para 9.12 below). No evidence has been found which suggests that the construction of the line had any legal effect on the existence or status of the claimed bridleway.

8.12 1902 - 1905 Binsted Parish Council Minute Book

8.12.1 An entry made in 1902 shows that the Parish Council were suggesting to the Light Railway Company that there be a station at Sickles Lane, on the Road From Kingsley to Wheatley, but that the railway company refused, because the distance between Bordon and Bentley (4.5 miles) was too short.

8.12.2 On 12th April 1905 the Parish Council Minutes note that the council "called the attention of the Railway Co. to the unnecessary delay in opening the platform at Sickles Lane to the public (which was carried unanimously)". Kingsley Halt, located between the claimed bridleway and Sickles Lane, was finally opened in March1906.

8.13 circa1909 Ordnance Survey County Series map, third edition

    The only material change since the second edition is the railway line, by now constructed, and bisecting allotment 747. There is still no evidence of the claimed bridleway, although inclosure bridleway 261 remains a clear feature between boundaries.

8.14 1909/10 - Records from the Finance Act

    The records can be used to prove the existence of a public right of way, but in the present case they are unhelpful. The majority of allotment 474 is part of a landholding (`heriditament') extending to 263 acres. A deduction in the value of this land is made on account of the existence of public rights of way or user over it, but it is impossible to tell from the available records exactly what paths were taken into account in arriving at this calculation. The remaining part of allotment 474 and the route of the claimed bridleway is within heriditament 2157, which consists of land in the ownership of the London and South West Railway Company. No deduction in the value of land is made on account of public rights of way.

8.15 1949 National Parks and Access to the Countryside Act

      The Rights of Way section's parish files contain some documents pre-dating first definitive map. In the present case, the only document of assistance is a map, undated, but believed to have been drawn up at some time prior to 1954, possibly showing rights of way claimed by the parish after the Rights of Way Act 1932, or drawn up as a first draft of the definitive map. Either way, it is believed to have been drawn up as a result of information provided by the parish. The claimed route is not shown on the map, indicating that it was not regarded as a public right of way at that time. Bridleway 62 is shown.

8.16 Other relevant sources

    The following relevant sources have also been examined, but have not provided any information that adds to our knowledge of the claimed path:

      Binsted Vestry Minutes, 1849 - 1900

      Alton Highway Board Minutes 1863 - 1880

      Map of Straits Inclosure, 1848

      Quarter Sessions Order Book 1852 - 1856, and index of Quarter Sessions highway orders

      MAF indices at PRO, Kew, classes 1, 2, 11, 18, and 21.

9. Analysis of the historic and documentary evidence

9.1 On the face of it, the Binsted Inclosure Award of 1857 set out a nine feet wide bridleway between Sickles Hatch and the C96 at Frith End, part of which is currently recorded as Binsted Bridleway 62 and the remainder of which is the subject of this claim. It is disturbing, however, there is no subsequent evidence for the existence of the bridleway. In the absence of evidence of the proper stopping up of bridleway rights, there can only be two conclusions. Either

        a) the award failed, in law, to set out a new bridleway as intended, or

        b) the award created a bridleway on the claimed route, but lack of any `engineering' and lack of use has meant that no trace of it survives.

9.2 Dealing first with a), it is considered that the claimed bridleway was validly set out in the award. The inclosure was carried out under the scheme provided for by the 1845 Act, under which the Valuer had the power to `set out and make Roads and Ways', and was required to do so before making any allotments of land. The only other formalities would appear to be that he had

      i) to `form and complete...' the new public roads and ways and

      ii) to set them out at the width prescribed by Highway Act 1835 which, in the cases of bridleways, is at least eight feet, and so is complied with in this case.

9.3 Unfortunately, we do not know what was intended by the words `form and complete' in paragraph i) above. There is no evidence that the claimed bridleway was ever engineered, or created in the physical sense, as happened in the case of Bridleway 62. If `form and complete' meant create in a physical sense, then it was clearly not done in respect of the claimed route.

9.4 This defect (if it is such) seems to be saved by section 105 of the 1845 Act (see para. 8.7.6). Unless section 105 only applies to procedural defects, any defect in the appointment, forming and completing of roads would seem to be immune from subsequent challenge. If this conclusion is correct, it must follow that the bridleway rights exist on the claimed route, despite the absence of any evidence of the route on the ground, or evidence of actual use, and that b) above is the correct solution.

9.5 An alternative interpretation might be to find a) that the obligation `to form and complete' the bridleway was a higher obligation than the duty to `set out and make' it, b) that the claimed bridleway was not `formed and completed' as required by the Act and c) section 105 does not prevent that error from being challenged. If this is correct, the bridleway will not have been set out properly and no order to amend the definitive map need be made. Unfortunately, gaps in our knowledge about the inclosure process and the scarcity of written records from the time of inclosure make it very difficult to be sure which is the correct answer. Officers' preferred view is that the inclosure award must be taken at face value, because there is no real reason to challenge it. However, it is not a particularly comfortable result, given that there is no post-1857 evidence recording the claimed bridleway.

10. Width and route of the bridleway

    The width of the bridleway, according to the award, is nine feet. At point B on the map at Appendix 1 Bridleway 62 turns south, east and north, (rather than following the exact line of the bridleway set out on inclosure) before resuming the inclosure line. Bridleway 62 has had this configuration since at least 1953, but it is assumed that the origins of this route lie with the 1857 inclosure. For this reason it is not proposed that any map modification order should include a new bridleway east of point B.

11. Comments from the Applicant and the Landowner

    A draft of this report was given to each of the landowners and the Applicant to afford them the opportunity of submitting further evidence or making further comments. It is understood that both the Applicant and the Landowner's Representative intend to address Members at the meeting and that the Landowners' Agent is intending to circulate a written response to this report.

      The Applicant has referred officers to an 1826 plan of a new turnpike road (now the A326). This plan shows a road or track on the very eastern line of Bridleway 62. This is entirely consistent with our interpretation of the evidence, namely that there was an all purpose highway approximately on the line of Bridleway 62 and the claimed route, which highway was extinguished by the inclosure award and replaced with the subject bridleway.

12. Conclusions

    The 1857 Binsted Inclosure Award set out a public bridleway nine feet wide between points A and B on the attached plan. No evidence of stopping up or diversion of this path has been found, and the rights are believed to subsist.

RECOMMENDATION

    That approval be given to the making of a Map Modification Order to add to the definitive map a public bridleway 2.74 metres wide as shown between the points A and B on the attached map.

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 CR655 - Rights of Way Office, Mottisfont Court, Winchester, including copies of some of the documents referred to above the originals of which can be inspected in Hampshire Record Office.