Hampshire County Council Item 6

Regulatory Committee

27 April 2005

Claim for the addition to the definitive map of a Byway Open to All Traffic from the junction of Bagmore Lane and Red Lane, Bradley, to Bridleway 9, Herriard

Report of the Director of Recreation and Heritage

Contact: Emma Noyce ext. 5319 email: [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) that a right of way which is not shown on the map exists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to this Part applies;

(ii) that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description

HIGHWAYS ACT 1980

32. Evidence of dedication of a way as a highway

A court or other tribunal, before determining whether a way has or has not been dedicated as a highway, or the date on which such dedication, if any, took place, shall take into consideration any map, plan or history of the locality or other relevant document which is tendered in evidence, and shall give such weight thereto as the court or tribunal considers justified by the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or compiled, and the custody in which it has been kept and from which it is produced.

PRESUMED DEDICATION AT COMMON LAW

Use of a way by the public without secrecy, force or permission of the landowner may give rise to an inference that the landowner intended to dedicate that way as a highway appropriate to that use, unless there is sufficient evidence to the contrary. Unlike dedication under s.31 Highways Act 1980, there is no automatic presumption of dedication after 20 years' public use, and the burden of proving that the inference arises lies on the claimant. There is no minimum period of use, and the amount of user which is sufficient to imply the intention to dedicate will vary according to the particular circumstances of the case. Any inference rests on the assumption that the landowner knew of and acquiesced in public use.

1. Summary

This report concerns an application to amend the definitive map by adding a byway open to all traffic (BOAT) from Bagmore Lane, through Herriard Common to Bridleway 9, Herriard.

There is insufficient evidence of the previous dedication of a public right of way over the claimed route, and it is therefore recommended that the claim be refused.

2. The Applicant and the Application

2.1 The applicant is Mr David Tilbury

2.3 The present claim, made under s.53(5) of the Wildlife and Countryside Act 1981, was made in April 1993. The formal application is "to add the byway open to all traffic from SU 648 439 to SU 656 439"

2.4 The claimed route is not currently recorded on the definitive map.

3. The claimed route

3.1 The claimed route runs from the junction of Bagmore Lane and Red Lane, Bradley, to Bridleway 9, Herriard. The route is illustrated on the attached map between points A and B.

3.2 Herriard Common is not a registered common.

4. The Landowner(s)

4.1 The claimed route between Bagmore Lane and the Bradley/Herriard Parish Boundary is owned by Mr M Gibbons. The route from the parish boundary, through Herriard Common to Bridleway 9, Herriard, is owned by Mr JTL Jervoise. Both are represented by Mr Graham Plumbe.

5. The issue to be decided

5.1 The issue to be decided by this Committee is whether or not there is evidence to show that the claimed route should be shown on the definitive map as a public right of way.

5.2 Historic and documentary evidence has been examined to see whether the past history and use of the path points to its having public rights as a result of dedication in the distant past. Any such rights are not lost merely through disuse. Unless stopped up by due process of law, any rights previously dedicated will still exist, even if they are now neither used nor needed. This evidence must be looked at as a whole, it being unlikely that a single document or map will provide sufficiently cogent evidence to justify a change to the definitive map and statement.

5.3 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. If there is genuine conflict in the evidence, Members should make an order so that the evidence can be tested at a public inquiry. However, this is appropriate only if an order could otherwise properly be made and it is not a step which should be taken simply to avoid making a difficult decision.

5.4 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 in the offices of the Rights of Way Section, as are witness evidence forms and statements. Members may inspect these, or the originals, when considering this report.

6. Background Information

6.1 It is normal (though not always the case) that a public right of way leads to and from a route of equal or higher status. In this case, the claimed BOAT links a public carriageway to the east and a public bridleway to the west, over which no vehicular rights are recorded. In order to found a successful claim it is necessary to establish whether or not public vehicular rights exist over that part of Bridleway 9, Herriard, which forms the only link between the claimed route and a public carriageway ( A339 Basingstoke Road).

6.2 When the first definitive map was published, in 1954, Bridleway 9 was designated as a Road Used a Public Path (RUPP). As a result of the Wildlife and Countryside Act, 1981, (which requires all surveying authorities to review RUPPs and reclassify them as either BOATs, bridleways or footpaths according to the evidence of past user), the reclassification of RUPP 9 was considered at a Public Inquiry. At this Inquiry, the Inspector found no evidence of a vehicular right of way over RUPP 9, and duly confirmed a modified Order to reclassify RUPP 9 as a Bridleway in 1994.

6.3 Although vehicular rights over the entirety of Bridleway 9 have been considered, and found not to exist at law, this does not preclude the existence of vehicular rights over any section of Bridleway 9 which forms part of a route different from that considered at the Inquiry. Thus, any evidence considered during the Inquiry for the reclassification of RUPP 9 may be reconsidered for the purposes of the current claim.

7. Consultation

The following persons and bodies have been consulted about the application, namely the County Council (Environment and Highways), Councillor Anna McNair-Scott (the local member), Basingstoke and Deane Borough Council, Bradley Parish Council, Herriard Parish Council, British Horse Society, British Driving Society, Ramblers Association, Byways and Bridleways Trust, Trail Riders Fellowship, Open Spaces Society, Cyclists Touring Club and LARA. The following responses have been received:

7.1 Hampshire County Council (Environment) - have serious concerns about the claim, stating that the claimed route passes straight through the Herriard Common Site of Importance for Nature Conservation (SINC), and that the use of vehicles across the site could cause irreparable damage and unacceptable disturbance to the flora and fauna of the SINC.

7.2 Councillor McNair-Scott - objects to the claim

7.3 Hampshire County Council (Highways) - no objection

7.4 Ramblers' Association - state that there is no physical evidence of a path on the ground, and that the claimed route would be of little advantage to a walker.

7.5 Trail Riders Fellowship - The TRF Southern Group supports the application for a BOAT, and comment that the investigation should also consider the upgrading of Bridleway 9, Herriard, as the logical continuation of the route.

7.6 Cyclists Touring Club - objects to the claim

7.7 LARA - supports the claim

8. Modern User Evidence

8.1 No modern user evidence has been submitted in support of the claim.

9. The actions of the Landowner

9.1 In an e-mail dated 14^th December 2004, Mr Gibbons stated (of the claimed path within Bradley):

"We challenge people using private paths on a regular basis. However, there is no indication at present or has there ever been of a path any kind on this land. The issue of challenging anyone trying to use the route has never been an issue because there is no material evidence of any route. A section of this claim passes over cultivated land which has been in continuous cultivation through most people's lifetime. The woodland strip that it is also alleged to pass through, consists of Oak standards with Hazel Coppice and has several indicator species of Ancient Woodland for which Hampshire is so famed. The hardwood species are scattered evenly across the whole length and breadth of this alleged route. The route would appear to have no grounds to substantiate its existence and can therefore be deemed to be fictitious."

9.2 In a letter dated 30^th November 2004, Mr Jervoise writes (of the path within Herriard):

"[The claimed route] has never existed as a private track in living memory and is not in the 1910 25 inch OS map. It appears to be entirely fictitious.

[This route leads] onto what has been referred to as RUPP 9 through Herriard Common. There was an inquiry into this in December 1992, which reported in 1993, and which was confirmed in September 1994...This confirmed RUPP 9 as a bridleway having considered the evidence in detail."

10. Historic and documentary evidence

10.1 1759 - Taylor's map

10.1.1 This is a small scale map which is one of the earliest commercially produced maps to show roads. As with Milne and Greenwood, the scale of this map is such that only routes of some significance are likely to be shown. Of themselves, these maps do not prove whether the routes shown on them are public or private, footpaths or bridleways.

10.1.2 The map depicts Herriard (Harriad) Common and a road which is likely to be Bagmore Lane. Bradley Lane (now Red Lane) is also indicated, though the relative positions of Bradley Lane and Bagmore Lane seem somewhat inaccurate. Taylor shows Bradley Lane leading from Bradley, across Herriard Common to Cabbage Garden, but it is not clear whether or not the route shown across the common is that claimed.

10.1.3 This map does not assist in the determination of the claim.

10.2 1792 - Milne's map

10.2.1 This map is of the same evidential value as Taylor's, considered above.

10.2.2 Although Milne's map more clearly depicts the routes in and around Herriard, the mapping of the area around Herriard Common is extremely inaccurate: many of the roads are skewed, and some place names have been transposed. However, the avenue of trees which represents the route of Herriard Bridleway 9, is illustrated with a good degree of accuracy, and the claimed route is clearly depicted to the north of this avenue.

10.2.3 Although this map cannot, of itself, prove whether or not public rights exist on the claimed route, Milne's map shows that the claimed route has existed as a physical feature since at least 1792.

10.3 1810 - Ordnance Survey one inch map and drawing

10.3.1 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. The map was derived from a survey and drawing at two inches to the mile.

10.3.2 Both the printed map and the drawn survey show a route leading from Bagmore Lane to what is now Bridleway 9, on a similar alignment to the claimed route. The route is depicted as an enclosed road to the west of Herriard Common. Where it passes through Herriard Common, the route is illustrated with pecked lines, indicating that it was unenclosed.

10.3.3 This map offers a good indication that the claimed route existed as a physical feature at the time of survey. Although the map offers no evidence as to the status of the routes shown on it, the depiction of the claimed path on this map would suggest that it was a route of some significance.

10.4 1826 - Greenwoods' map

10.4.1 This map carries the same evidential weight as Taylor's and Milne's map, considered above.

10.4.2 The map clearly shows a route on the same alignment as the claimed route. As with the Ordnance Survey map and drawing, this route is shown as an enclosed road to the west of Herriard Common, and an unenclosed road where it passes through the Common.

10.4.3 Of itself, this map is of little evidential value, but when taken with other evidence, this map supports the suggestion that the claimed route was likely to have been a route of some significance.

10.5 1840 - Tithe Map and Apportionment

10.5.1 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. Although they do not provide conclusive evidence about the existence of public highways, they can nonetheless provide indirect or supportive evidence about the history and status of a route, not least because public highways which were not titheable are generally found outside titheable plots.

10.5.2 The Bradley Tithe Map, confirmed in 1843, clearly shows a route emanating from the junction between Bagmore Lane and Red Lane, leading towards Herriard Common in the same position as the claimed path. This route is coloured brown, in the same manner as other roads on the map. The road does not have a plot number. Roads and Waste are not listed separately in the Bradley Tithe Award.

10.5.3 The Herriard Tithe Map, dated 1840, shows Herriard Common (described as West Common and Middle Common). The route of Bridleway 9 is clearly shown as an avenue of trees. The map illustrates an access point to West Common at a location which corresponds with the route depicted on the Bradley Tithe Map (neither map indicates that access to the common was restricted). However, there is no indication of a defined route leading from this access point, through West Common, to meet Bridleway 9. Although it is possible to infer the route of the path, based on the evidence from other maps, the Herriard Tithe Map does not in itself show the claimed route in its entirety. The whole of West Common and Middle Common are subject to tithe. West Common is given the plot number 155, Middle Common is given the plot number 156. Both are described in the tithe apportionment as "Furze and Bushes" under the ownership of George Purefoy Jervoise Esquire.

10.5.4 The Bradley Tithe Map depicts part of the claimed route in the same fashion as other routes which have since been recognised as public. The Herriard Tithe Map does not contradict this view, but does not show a defined route through West Common. Therefore, although the Bradley Tithe Map would suggest that the claimed route may be public, neither map proves that public highway rights exist over the whole of the claimed route. However, the tithe commissioners were concerned only with matters which would have affected the value of tithes and would not necessarily have recorded rights which had no effect on the tithes payable.

10.5.5 Neither the tithe maps nor the awards prove that public highway rights existed across the claimed route. However, the tithe commissioners were concerned only with matters which would have affected the value of tithes and would not necessarily have recorded rights which had no effect on the tithes payable. Therefore these maps do not prove whether or not public rights existed over the claimed route.

10.6 Mid Nineteenth Century -The Farleigh Estate Map

10.6.1 This map shows the extent of the Farleigh Estate. This estate did not extend into Herriard Parish, and neither Herriard Common, nor the route of the claimed path is shown. However, the map does show the junction of Bagmore Lane and Red Lane, and a route is depicted emanating from this junction in the same location as the claimed route. The map does not show the continuation of the route, and does no more than indicate the possible presence of the claimed route.

10.6.2 This map is of little assistance in determining the claim.

10.7 1870 to 1908 - Ordnance Survey County Series Maps

10.7.1 These maps are very useful in providing a detailed picture of the landscape at the time of the survey.

10.7.2 The claimed route is not shown on any edition of the County Series Map. However, to the west of the Bradley/Herriard parish boundary, a narrow strip of woodland is depicted which follows exactly the course of the claimed route.

10.7.3 The First Edition Map, published in 1870, shows this strip of woodland with the annotation "Red Lane". The book of reference which accompanies the map describes this strip of land as "Wood". This annotation is not present on any of the subsequent editions.

10.7.4 Although the annotation "Red Lane" may suggest that the strip of woodland was once part of an ancient lane, this is of limited evidential value. On balance, the Ordnance Survey County Series Maps offer strong evidence that the claimed route did not exist as a physical feature between 1870 and 1908, and offer no support to the claim.

10.8 Other Ordnance Survey maps

10.8.1 The Ordnance Survey National Grid 1:2500, surveyed in 1981 does not show the claimed route.

10.9 Railway Deposited Plans

10.9.1 In order to be able to acquire land under compulsory purchase, railway companies had to promote a Private Act of Parliament. From 1803 onwards, Parliament required the deposition of detailed plans to accompany the Act. Two sets of plans relate to Herriard:

10.9.2 In 1888, plans were deposited for the proposed Basingstoke, East Hampshire and Portsmouth Railway. The railway was never constructed, but the plans show the intended route, which crossed Bridleway 9 at its approximate intersection with the claimed route (shown on Appendix 1). Bridleway 9 is labelled as plot number 5 on the plan. The book of reference which accompanies the plan describes No. 5 as "Occupation Road".

10.9.3 In 1896 plans were deposited for the construction of the Basingstoke and Alton Light Railway. Although little now remains on the ground, the railway was in existence for a number of years. The route crossed Bridleway 9 at its eastern end. Bridleway 9 is shown as plot number 36 which is described in the accompanying book of reference as a "Public Road" under the ownership of Basingstoke Rural District Council. The Order which accompanies this plan once again describes plot 36 as a public road.

10.9.4 A letter from Network South East states that the land to the north and the south of what has since become Bridleway 9 was sold to Major Jervoise on 31^st January 1941. The conveyance excluded the land occupied by Bridleway 9. This would imply that the part of Bridleway 9 crossed by the line was not railway property, possibly because it was considered to be in public ownership.

10.9.5 The 1896 railway map offers strong evidence that the eastern end of Bridleway 9 was considered to be a public road. However, the map does not illustrate the continuation of this road to the east or west of the railway line. The map of the proposed Basingstoke, East Hampshire and Portsmouth Railway, produced in 1888, implies that the classification of "public road" did not extend over the western continuation of Bridleway 9, and it is therefore thought that the route taken by the "public road" described on the 1896 map did not extend over the path currently in question.

10.90.6 The combined railway evidence does not support the claim.

10.10 Local Government Act 1929 Handover Map

10.10.1 The 1929 Highway Surveyors' Handover Map was prepared by Basingstoke Rural District Council to facilitate the transfer of responsibility for county roads to the County Council.

10.10.2 The map does not show the claimed route as a public highway.

10.10.3 The Handover maps were intended to record public responsibilities, not rights, and the omission of a route from a Handover map is not conclusive evidence that the route was not public.

10.11 The Jervoise Collection

10.11.1 Much of the documentary evidence relating to the Herriard Estate is stored in Hampshire Record Office, within the Jervoise collection. This is a private collection which is on loan to the Record Office with a strict proviso that the public may only consult the archive for the purposes of private research and study, and that the archive may not be used in legal proceedings.

10.11.2 Officers have written to Mr Jervoise requesting permission to view 26 items in the Jervoise collection which may be relevant to the claim. Permission has been refused, and public access to these 26 items has since been restricted.

10.11.3 Therefore, although there may well be documents within the Jervoise collection which are relevant to the claim, these documents are not available to officers. It follows that the historic evidence considered in this report does not include any items from the Jervoise collection, and is therefore potentially incomplete.

10.11.4 A new application could rightly be made (and the claim re-investigated) should any of the Jervoise material subsequently become available.

11 Discussion

11.1 There is no evidence of an express intention on the part of the current landowners to dedicate a public right of way over the claimed route, and there is no evidence of use with which to justify a deemed dedication at common law or under Section 31 of the Highways Act 1980.

11.2 A number of historic maps indicate a route passing though Herriard Common on the same alignment as that claimed. The route is first illustrated in its entirety on Milne's map of 1792. However neither this map, nor any of those produced subsequently, give any clear indication of what rights existed on the claimed route. The claimed route is not illustrated in its entirety on any map produced after 1826, though the Herriard and Bradley Tithe Maps, (and to a far lesser extent, the Farleigh Estate Map), offer the suggestion of a route across the common in the same position as that claimed.

11.3 The evidence provided by the available maps and documents is considered insufficient to prove the existence, or status, of a public highway on the claimed route.

12. Comments from the Applicant and the Landowner

A draft of this report was given to the landowners and the applicant to afford them the opportunity of submitting further evidence or making further comment. The following comments were received:

12.1 Mr Tilbury (applicant) has provided a number of comments which are included at Appendix 2.

12.2 Mr Plumbe, on behalf of the two landowners, has no further comments to make.

13. Conclusions

13.1 Various historic maps suggest the existence of a route across Herriard Common in the same location as that claimed. However, there is currently insufficient evidence to indicate that any public rights of way have been dedicated over this route.

RECOMMENDATION

That the application be refused

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 CR504 - Rights of Way Office, Mottisfont Court, Winchester