Hampshire County Council Item 10

Regulatory Committee

7 September 2005

Application for a Map Modification Order to record bridleway rights over two routes, known as Hart Hill and Hardley Lane, in the Parish of Fawley and the Parish of Hythe & Dibden

Report of the Director of Recreation & Heritage

Contact: Colin Piper Ext. 6043 [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 -

(b) .... keep the map and statement under continuous review and as soon as reasonably 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 that event.

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

(b) the expiration... of any period such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path;

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

(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

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 of 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

1.1 Fawley Parish Council has made an application to have two routes, known as Hart Hill and Hardley Lane, recorded as bridleways. Currently they are both recorded as public footpaths. The application is based on documentary evidence which purports to show that these routes were of a higher status than footpaths. In the case of Hart Hill there is very strong evidence that, historically, this route was a full public highway and therefore it is recommended that an Order be made to record it as a Byway Open to All Traffic. The evidence for Hardley Lane is not so persuasive and, on balance, it is recommended the application be refused for this route.

2. Claimant:

Fawley Parish Council

c/o Mr E Holtham

5 Henry Close

Hardley

Hampshire

SO45 2JW

3. Landowners:

Hardley Lane Hart Hill (northern half)

Mr W Parke Mr M Cox

Area Land Agent (New Forest) Hart Hill (Hythe) Ltd

Forestry Commission The Moorings

The Queen's House Hart Hill

Lyndhurst Hythe

Hampshire Hampshire

SO43 7NH SO45 3ND

There is no known owner for the southern half of Hart Hill.

4. Description of the routes (Please refer to attached map)

4.1 Hart Hill - This is a 1.2 kilometre long route which extends from Frost Lane, Hythe, in the north, to the junction of Hardley Lane and New Road in the south. Starting in the north, at point A, the first 230 metres to point B is recorded by Hampshire Highways as a public road. This section consists of a three metre wide metalled surface enclosed between hedges set about 10 metres apart. The metalled road continues for another 270 metres to point C, just south of the Travellers Rest public house, but this section is recorded as a public footpath only, as is the whole length as far as point F. At the end of the tarmac there is an unofficial sign, fixed to a telegraph pole, which reads "Private Road. No thru traffic" The lane continues south as a three metre wide hard track that provides vehicular access to four dwellings on the east side of the lane. From the entrance to the last property, just north of point D, all the way to New Road, at point F, the route has the same character. It consists of a worn earth path, about two metres wide, enclosed between earth banks about nine metres apart upon which are fences and mature trees. There are signs of heavy use by walkers and horse riders. There are no gates or barriers anywhere along the path but there is a stream at point D which walkers cross using a narrow concrete bridge with a shallow ford at one side for horses.

4.2 At point F the path widens out to a gravel track known as New Road which then joins Hardley Lane at point G. The eastern half of Hardley Lane, between points G and H, also consists of a gravel track enclosed between hedges. Despite their appearance, New Road and the eastern half of Hardley Lane are also recorded by Hampshire Highways as public roads. There is a Traffic Regulation Order on these roads which prohibits their use by public motorised vehicles. At its junction with Fawley Road, at point H, the entrance to the eastern half of Hardley Lane is restricted by a locked metalled gate with gaps 1.2 metres wide on both sides.

4.3 Hardley Lane - the track known as Hardley Lane continues on the western side of the Fawley Road, between points J to K, but this section is recorded as a public footpath only. Access from Fawley Road is restricted by a line of metal posts, set one metre apart, to deter fly tipping. The lane consists of an earth track enclosed between high earth banks, between 9 and 13 metres apart, with very large trees growing on them. There are signs of use by walkers and a few horse riders. The lane has suffered badly from fly tipping and although attempts have been made to clean the area up it is still in a sorry state. At point K the lane opens out onto an area of scrub land which is part of the New Forest Perambulation. There are two narrow worn paths that continue generally westwards to reach the main road, at point L, where there is a gap in the hedge line. Opposite this opening, on the other side of the main road, there is a field gate and pedestrian gate that provides access to a gravel track and the open forest. The claimed route is approximately 460 metes long.

4.4 The parish boundary between Fawley and Hythe & Dibden runs down the middle of most of Hart Hill and all of Hardley Lane. Hart Hill footpath is part of the County Council's promoted long distance footpath known as the Solent Way.

5. Background to the claim

5.1 Hart Hill and Hardley Lane are very useful recreational routes that allow the urban population of Hythe to gain access to the New Forest without using busy roads. Although they are recorded as footpaths only they are both used by horse riders, as well as walkers, and there is great potential for use by cyclists. Fawley Parish Council recognise the value of these routes and are concerned that the lanes have deteriorated to the detriment of the public who wish to enjoy the countryside on foot, cycle and horse back.

6. The issues to be decided

The issues to be decided by this committee are:

6.1 Whether there is evidence to show that Hart Hill and Hardley Lane ought to be shown on the definitive map as a highway of a different description, that is as bridleways or Byways Open to All Traffic.

6.2 Any changes to the definitive map must reflect public rights that already exist. It follows that changes to the definitive map must not be made simply because such a change would be desirable, or instrumental in achieving another objective. Therefore, before an order changing the definitive map is made, members must be satisfied that public rights over and above those presently recorded over Hart Hill and Hardley Lane have come into being at some time in the past. This might be in the distant past (proved by historic or documentary evidence) or in the recent past (proved by witness evidence).

6.3 Historic and documentary evidence has been examined to see whether the past history and use of the paths point to them having bridleway or vehicular 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. This type of evidence may disclose rights other than those claimed by the applicant, for example, in this case, they may show that Hart Hill and Hardley Lane are old roads for vehicles, not merely a footpath or bridleway. The County Council is under a duty to record such rights as are found to exist, even if they are not claimed by the applicant.

6.4 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, for example between the evidence of users on the one hand and landowners on the other, members should make an order so that the evidence can be tested at a public inquiry. However, this is not a step which should be taken simply to avoid making a difficult decision.

6.5 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. Members are urged to inspect these, or the originals, when considering this report.

7. Documentary evidence

7.1 1759 Isaac Taylor's Map (1 inch to 1 mile)

This is a small-scale map which shows only the prominent topographical features in the area. A route that corresponds to that of Hart Hill is shown by parallel solid lines connecting the coast south of "Hithe" with the hamlet of "Hardlye" in the south. Hardley Lane is also shown by parallel solid lines running westwards from "Hardlye" to connect with a track across the forest leading to "Beauley"

7.2 1781 Fawley Parish Register

An entry for burials on 7^th March records the following information:

"Catherine, wife of John Bitten of Hythe, who on Monday the 5^th of this month was found lying in bed with her throat cut, and as her husband, John Bitten, was found lying in the kitchen and behind the back door, in the same condition, with a bloody knife clenched in his left hand, it was immediately suspected he was the murderer - Accordingly, from circumstances, the Coroner's Inquest found a verdict against him of wilful murder and suicide. He is buried at Hardley Lane End leading to Bewley, in the Cross Road."

It was customary practice in the 18^th century to bury murderers and suicides at rural cross-roads on the border of the parish. The description of the burial site, when related to contemporary maps, would place it at L on the attached map.

7.3 1789 Thomas Milne's Map (1 inch to 1 mile)

There is no trace of Hart Hill on this map although what is now known as New Road is shown in full. Both halves of Hardley Lane are shown by parallel solid lines leading westwards from the hamlet of Hardley to the open forest. On the edge of the forest the route splits into three with one route going south-westwards towards Beaulieu.

7.4 1810 Ordnance Survey map (1 inch to 1 mile)

A route that corresponds to Hart Hill is shown by parallel solid lines although it takes a slightly different alignment at its junction with New Road. Hardley Lane is also shown by parallel solid lines leading to the open forest where again it splits into three.

7.5 1825 Plan of the Cadland Estate (7 inches to 1 mile)

This map shows the extent of the Cadland Estate owned by A B Drummond.

Hart Hill is not shown on this map possibly because the route crosses two large areas of open land called Frost Lane Common and Quag Common. There is a lane shown south of Quag Common, leading to New Road, but it is slightly to the east of the present day route of Hart Hill.

Hardley Lane is shown on the map by parallel solid lines which, at its western end, opens out to the forest. This is annotated "Hardley Lane End" on the map. The fields on both sides of the lane have been given parcel numbers, presumably to indicate that they are part of the estate, but the lane does not have a number.

7.6 1826 Greenwood's Map (1 inch to 1 mile)

Both routes are shown in the same manner as the Ordnance Survey map of 1810, except that Hart Hill is shown by a combination of pecked and solid lines rather then just solid lines.

7.7 1838 Tithe Map & Award (14 inches to 1 mile)

The Tithe Commutation Act of 1836 introduced a system that converted payments from the produce of the land to a money payment. The maps and awards prepared under this act were done under statutory authority and were open to public scrutiny and are therefore a reliable source of information about land use. Any land that was public was excluded from taxation.

Hart Hill: There is no indication of a path or track on this route. However, most of it is over two large open areas annotated "Frost Lane Common" and "Quag Common" both "Part of the New Forest". As this land was not titheable there would be no purpose in showing any topographical features within this area, therefore it is not surprising that a track is not shown. There is a lane at the southern, Hardley, end shown by parallel solid lines and coloured brown. It is just to the east of the claimed route and terminates on the southern boundary of "Quag Common".

Hardley Lane: This map shows both halves of the lane by parallel solid lines and coloured brown. The lane is un-numbered and the western end terminates on the open forest.

7.8 1851 Plan of the Cadland Estate

This is a very similar map to the estate map of 1825. It is at the same scale and by the same surveyor as the earlier map. There are no material differences in the way that the lanes are shown or not shown on these plans.

7.9 1853 Conveyance of land at Frost Lane Common

This document details the transfer of two plots of land on what used to be Frost Lane and Quagg Commons. It was being sold by The Commissioner of Her Majesty's Woods, Forests and Land Revenues to George Robbins. The plan on the conveyance shows the land to be sold on the west side of Hart Hill Lane between section C-D. Hart Hill Lane is shown by parallel solid lines and annotated "Public Road". One end of the lane is annotated "From Hardley and Fawley" and the other end is annotated "To Hythe". The wording in the conveyance document repeats these descriptions of Hart Hill Lane.

7.10 1855 Conveyance of land at Quagg Common

This document details the transfer of a plot of land on what used to be Quagg Common. It was being sold by the Commissioner in charge of the New Forest to George Robbins. The plan on the conveyance shows the land to be sold on the west side of Hart Hill Lane between section D-E. Hart Hill Lane is shown by parallel solid lines and annotated at one end "To Hythe" and the other "To Fawley". The wording in the conveyance document describes the land as being "...bounded on the east by the public road leading from Hardley and Fawley to Hythe..."

7.11 1863 Fawley Vestry Minutes

In February 1863, the owner of the Cadland Estate, Andrew Drummond, applied to the Fawley Vestry for the diversion of a highway across his land. The route to be stopped up was a 555 yard section of what was described as "the Highway...leading from Hardley to Frost Lane Common and Hythe". In its place he proposed a new highway just to the west of the old route which, from the description contained in the minutes, applies to that length of the claimed route between points E-F on the attached map. The reason for the diversion was the shorter distance of the new road and the removal of a sharp bend. The application was agreed by Fawley Vestry and an application was subsequently made to the Magistrates for an Order to stop up and divert the highway.

7.12 1863-65 Magistrate's Court Order

The Magistrates considered the diversion at the Midsummer Quarter Sessions in 1863. The plan that was presented to them shows a route coloured red described as the "existing road" and a route coloured green described as "proposed new road". Both ends of the route are annotated "From Hythe" and "To Hardley". Other highways that connect with this route are coloured brown, including both parts of Hardley Lane. The Magistrate's agreed to the diversion and made the necessary Order. In June 1865 two Justices of the Peace certified that "the said new Highway is made and completed and is put into good condition and repair" thereby completing the legal process that stopped up the old road and created a new road in its place.

7.13 1868 Ordnance Survey map (25 inches to 1 mile) - first edition

This is the first large-scale map of the English countryside which accurately shows all topographical features in great detail.

Hart Hill is not named as such but it is shown as a continuous feature running from Hythe in the north to Hardley in the south, on the same route that it has today. It is depicted by parallel solid lines between eight and twelve metres apart. There are no gates shown across the route although there is a small stream that crosses over it at about the half-way mark. The section of old road that was stopped up two years earlier can still be seen as a feature and it is annotated "Blind Lane" Hart Hill has been given one parcel number (111) which applies to all of the lane from its junction with Frost Lane in the north all the way to old Hardley village in the south. The Book of Reference describes parcel 111 as a "Public Road".

Hardley Lane is also shown by parallel solid lines set between 9 and 13 metres apart with tree symbols drawn along both boundaries. At its western end it opens out onto the forest but a track continues south westwards to meet a road or track. There are no lines across the lane to indicate the existence of gates or other obstructions. The name "Hardley Lane" has been written so that it falls both sides of the Fawley Road to indicate that it applies to the whole feature between New Road and the New Forest. The lane has been given the parcel number 108 which the book of reference describes as "Occupational Road".

7.14 1895 Ordnance Survey map (25 inches to 1 mile) - second edition

Hart Hill: The entire route is shown by parallel solid lines with no indication of a narrower, worn track within those features. There are no barriers across the lane except for the stream. The name "Hart Hill" has been written alongside the middle of the track.

Hardley Lane: Is also shown by parallel solid lines with a two to three metre wide path or track down the middle. This time there is a solid line across the lane at point K which probably indicates the existence of a gate. The path or track still continues beyond the gate, to the south west, to meet up with the main road at point L. The name "Hardley Lane" has been written in the middle of the feature to indicate that it applies to both halves.

7.15 1903 New Forest Rural District Council minutes

10 August - A letter was read from Mr Meyer, Agent to the Cadland Estate, asking for permission to erect two gates in the Parish of Fawley across the road leading from Hardley to Hythe cross roads and the lane from Hardley Farm to the Forest, for the purpose of keeping cattle back. It was resolved to adjourn the consideration of the application until the next meeting when no doubt the Fawley representative would be present.

7 September - The letters from Mr Meyer upon this subject were again considered and the Surveyor was directed to find out whether the Council really had any jurisdiction over the roads in question and to report thereon at the next meeting.

5 October - The District Surveyor stated that in his opinion the roads where the proposed gates were to be erected were not public roads. Mr Fry stated that the gates would be of great benefit to the people in the district. It was resolved to inform Mr Meyer that the roads were not under the jurisdiction of the Council therefore their consent to the erection of the gates thereon was not required.

7.16 1907 Ordnance Survey map (25 inches to 1 mile) - third edition

Hart Hill: Its depiction is unchanged from the 1895 map.

Hardley Lane: No difference from the 1895 map except that the gate at point K has disappeared.

7.17 1912 Alteration of Parish Boundary between Fawley and Dibden

Following a public inquiry into a proposal to amend the parish boundary, the County Council ordered that the boundary be moved to follow the centre of Hardley Lane and Hart Hill. The new alignment is described in the following terms:

"..commencing from the point where Hardley Lane meets the present boundary of the Parish, continuing along the centre of Hardley Lane to its junction with Hart Hill and along the centre of Hart Hill Road to the lane near Sylvan Villa to the shore..."

7.18 1929 Handover map

In 1929 responsibility for all public highways was transferred from the Rural District Councils to the County Council. This map shows those routes that the District Council believed were publicly maintainable at that time.

Hart Hill: The northern 230 metres, between points A-B, is shown as a solid blue line which the legend describes as "Public Highway (carriageway) repaired by District Council (metalled)". The rest of Hart Hill, between points B-C-D-E-F, is shown as a dotted black line which the legend describes as "Public Footpath not repaired by District Council".

Hardley Lane: The eastern half, between points G-H, is shown as a solid blue line, that is metalled carriageway. The western half, between points J-K-L, is not coloured or annotated at all.

7.19 1931 Ordnance Survey map (25 inches to 1 mile) - fourth edition

Hart Hill: Its depiction is unchanged from the 1895 and 1907 maps.

Hardley Lane: Its depiction is unchanged from the 1907 map.

Both routes: This map shows the new parish boundary, by black dots, running down the middle of Hart Hill, New Road and both halves of Hardley Lane. The boundary mereing, which describes the position of the boundary in relation to adjoining topographical detail, is given as "CR" which stands for Centre of Road, for the whole route.

7.20 1967 Ordnance Survey 1/2500 map

Hart Hill: From the north the metalled road is shown as parallel pecked lines enclosed between solid lines. This serves eight properties that exist on the eastern side of the lane. The pecked lines narrow at the last property on the lane indicating that from there the used route is a "Path" also enclosed between solid line features. The path passes over a "Foot Bridge" across a stream and continues south towards New Road. About half way along the pecked lines are shown slightly further apart and it is annotated "Track" instead of path. The parish boundary mereing is still described as being "CR" for Centre of Road.

Hardley Lane: The route is shown by parallel pecked lines enclosed between solid lines and annotated "Hardley Lane (Track)" The land on the north side of the lane has now been developed with houses and on the south side the fields have been converted to a "Sports Ground" with two club houses. There are no gates or other barriers shown across the track. At the western end the track divides into two narrow "Paths" one of which leads the short distance to the main road and the other turns north across scrubland.

9. The landowners

9.1 Hart Hill (Hythe) Ltd

On 9 August the Company Secretary submitted the following letter:

"The residents of Hart Hill have no objection to the use of Hart Hill as a bridleway, in accordance with the application made by Mr Holtham. You have indicated that you intend to go beyond this application and classify the path as a Byway Open to All Traffic. Although you have indicated that, from an administrative viewpoint, you can do no more than make recommendations on matters outside your control as a Map Review Officer, we wish to make the following points:

1. The section from F to H is subject to a permanent Traffic Prohibition Order obtained by the New Forest District Council in the light of arson, vandalism and fly tipping. The introduction of Hart Hill as a BOAT would negate this unless a traffic Prohibition Order was imposed simultaneously.

2. Your Council have supported, in general, the recommendations made in the Government consultation document on the use of mechanically propelled vehicles on Rights of Way. The Ministerial forward to this document is particularly pertinent to the situation of Hart Hill.

3. Hart Hill is part of the Solent Way and allowing access to motor vehicles would constitute a danger to other users in view of the restricted sight lines at various points.

4. In the light of the above, it appears to be a completely futile and expensive operation to create Hart Hill as anything other than a bridleway, which is exactly what the applicant requested in the first place.

9.2 Forestry Commission

No formal response has been received from the Forestry Commission. If one is received before the 7^th this will be reported to Members at the meeting.

10. Consultations with other bodies

10.1 Fawley Parish Council

The Parish Council are the claimants in this case.

10.2 Hythe & Dibden Parish Council

"Whilst this Council accepts that Hart Hill Lane is a Byway Open to All Traffic it would urge that it is down graded to a bridleway, along with Hardley Lane, due to environmental concerns such as vandalism and arson."

10.3 New Forest District Council

No comment

10.4 County Councillor Lee Dunsdon - local member (Fawley)

"Residents of Hart Hill are very concerned at the proposed upgrading of Hart Hill / Hardley Lane to a Byway Open to All Traffic. In the last couple of years a Traffic Regulation Order was placed on Hardley Lane and New Road in order to prevent traffic entering the lanes, this in order to prevent dumping.

The residents of Hart Hill have no objection to Hart Hill / Hardley Lane being designated as a bridleway and rural cycleway. If Hardley Lane / Hart Hill is upgraded to BOAT it will only be a big cul-de-sac with the only access at the Hart Hill end. This will create an opportunity for the return of dumping to the area. There is concern at the time between designation as a BOAT and application of a Traffic Regulation Order at Hart Hill."

10.5 County Councillor Brian Dash - local member (Hythe & Dibden)

No comment

10.6 The Ramblers Association

No comment

10.7 The British Horse Society

No comment

10.8 Cyclists' Touring Club

"I have not been able to trace much use by cyclists of Hardley Lane west, cyclists seem to use the parallel residential roads. Some cyclists seem to use Hart Hill Lane from the Travellers Rest to Hardley Lane. This comment comes from someone who used to work at Fawley but is now retired."

10.9 LARA

The Hampshire Area Respondent has written to say that he has used Hart Hill for many years on a motor cycle and has met, on more than one occasion, other motor cyclists doing the same. He has not used Hardley Lane for the same purpose. He has also supplied a list of early, small-scale maps which allegedly show Hart Hill as a prominent route suitable for vehicles.

10.10 Trail Riders Fellowship

No comment

10.11 Environment Department

No comment

10.12 Hampshire Highways

Highway Management HQ has provided the following observations:

"The extent of section A-B is quite clearly described in CHALIST as the end point being 80m south of the entrance to Frost Farm which would confirm the line shown on your map as being correct. If maintenance has been carried out by the Highway Authority, beyond this point, then this was not part of its obligation to maintain the public highway. At the present time there are no recorded vehicular rights beyond point B on your plan other than the section of New Road/Hardley Lane which has a Traffic Regulation Order on it.

The section of road shown as J-K on your plan is referred to in our files as being a private road providing access to the pumping station."

11. Analysis of the evidence

11.1 Before the second world war, Hardley village consisted of a farm and about 15 dwellings centred on the junction of Hadley Lane and New Road. This old village has been completely demolished and replaced by a much larger settlement about ½ mile to the south. Hart Hill would have provided the inhabitants of the old village with a direct route to Hythe, and Hardley Lane would have provided a direct route to Beaulieu. Before 1912, Hart Hill would also have provided a direct link between the two main population centres of Fawley Parish in the days when parishes performed important administrative functions.

11.2 The early, small-scale maps of the area do not show Hart Hill as a distinctive, continuous feature. That is probably because it crossed Quagg and Frost Lane Commons which, at that time, were part of the New Forest. In the 1850s the two commons were enclosed and sold off by the Crown. From then on Hart Hill appears on all maps and documents as a defined route with the same character that it has today. The key documents that establish the public status of Hart Hill, in the second half of the 19^th century, are the conveyances dated 1853 and 1855, the Magistrate's Diversion Order of 1863 and the Ordnance Survey map of 1867. All four documents describe Hart Hill as a public road running between Hythe and Fawley/Hardley.

11.3 From about the First World War onwards the evidence demonstrates that Hart Hill declined in use and importance. This was probably because alternative routes were properly surfaced to accommodate motorised traffic and Hart Hill was not upgraded or maintained to the same standard. The Rural District Council only viewed Hart Hill as maintainable as a public footpath when they handed over responsibility to the County in 1929 and it has primarily been used for that purpose to the present day. There is no evidence, however, that the public vehicular rights that existed in the 19^th century have ever been extinguished.

11.4 Hardley Lane has consistently been shown on all maps from the 18^th century to the present day as a substantial, enclosed lane giving access to the open forest and beyond. From the size of the banks and trees that form the boundaries of the lane it is probably an ancient route that served a useful purpose for those that lived in the locality. There are documents that suggest that it was part of the local public highway network. For example, the Cadland Estate maps of 1825 and 1851, and the Tithe Map of 1838 all show the lane in the same fashion as other known public lanes and not part of the estate lands on both sides. There is no evidence that the land has ever been part of the Cadland Estate or in private ownership. The most interesting evidence is the entry in the Fawley Register which records the burial of John Bitten. He was buried "...at Hardley Lane End leading to Bewley, in the cross road." This suggests that Hardley Lane was part of a longer, public route between Hardley and Beaulieu.

11.5 By the second half of the 19^th century though, it would seem that the western half of Hardley Lane had also declined in importance. There are four pieces of evidence which point to the claimed route as being of a different status from the eastern half of Hardley Lane.

11.5.1 The book of reference which accompanies the Ordnance Survey map of 1868. This document draws a distinction between the eastern half of Hardley Lane, which it describes as a public road, and the western half which is described as an accommodation road.

11.5.2 The Ordnance Survey Map of 1895 shows the mouth of Hardley Lane, where it joins the forest, as being fenced and gated.

11.5.3 The minute of the Rural District Council of 1903 in which the District Surveyor pronounces that the lane from Hardley Farm to the Forest is not a public road.

11.5.4 All four large-scale Ordnance Survey maps, spanning the period from 1868 to 1931, show the western half of Hardley Lane as a narrow track, about 2.5 metres wide, enclosed between much wider boundaries. The eastern half of the same lane does not have the same narrow track down the middle, instead the whole width, about 6-10 metres between boundaries, is taken up with useable track. This indicates that the eastern half was, most probably, heavily used by traffic whilst the western half was relatively quiet.

11.6 The evidence for Hardley Lane is very much in the balance. It is possibly an ancient public road but there is little in the way of firm evidence from the period when it would have been used as such. The later, more comprehensive, documents from the late Victorian and 20^th century indicate that it was not considered to be a full public highway at that time.

12. Conclusions

12.1 The Magistrate's Order of 1865 provides conclusive evidence to the existence of public vehicular rights over that part of Hart Hill between points E and F.

12.2 The same Magistrate's Order and the conveyance documents of 1853 and 1855 provide compelling evidence for the existence of public vehicular rights over the remaining section of Hart Hill between points B-C-D-E.

12.3 The existence of the public rights over Hart Hill is confirmed by the Ordnance Survey map and book of reference of 1867.

12.4 There is no evidence that those rights have subsequently been extinguished, therefore full public highway rights still exist over the lane known as Hart Hill.

12.5 The evidence for the public status of Hardley Lane (west) is ambiguous, some suggest that it is an old public road others more specifically refer to it as a private or occupational route.

12.6 On a fine balance, the evidence does not point to the existence of public bridleway or byway rights over the western half of Hardley Lane.

RECOMMENDATIONS

1) That a Map Modification Order be made to record Hart Hill, as shown on the attached map between points B-C-D-E-F, as a Byway Open to All Traffic.

2) That the application to record higher rights on Hardley Lane (west), as shown on the attached map between points J-K-L, 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 CR478 - Rights of Way Office, Mottisfont Court, Winchester