Archived decisions
Hampshire County Council Item
Regulatory Committee
19 October 2005
Request for consent to the making of a Map Modification Order to add a Byway Open to All Traffic between Whitnal Farm and New Barn in the parishes of Whitchurch and Overton
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) that a right of way not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to which this Part applies
(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
(iii) that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification
1. Summary
1.1 Members are requested to agree to the making of a Map Modification Order to add to the definitive map a Byway Open to All Traffic between Northington Farm and Whitnal Farm in the parishes of Overton and Whitchurch (between points A - B - C on the attached plan). The highway was dedicated to the public by the landowner in 1988 and the making of an order to enable it to be shown on the definitive map is considered to be a formality.
2. Background
2.1 This item has been prompted by the on-going work of the Rights of Way Section in updating the definitive map prior to publication of a new, up-to-date map of the rights of way in the County.
2.2 Before a new definitive map can be published, the existing map must be updated, by legal orders, to take account of all the changes to the network that have happened since the original date of publication (in Hampshire's case, 1964). This is because diversion or extinguishment orders, or dedications, (Highways Act, or `Public Path', orders, of the sort that this Committee is asked to approve from time to time) legitimate a change to the network, but do not automatically update the definitive map. A separate order is need to do this.
2.3 Changes to, or new, footpaths and bridleways can be recorded on the map relatively simply, by `Legal Event' Orders, which reflect an earlier legal order, or process, or event (e.g. a diversion or extinguishment order, or dedication, as the case may be). Unlike most of the applications that fall to be considered by this Committee, they should not be controversial, because the arguments about the merits of the matter have already taken place: the proposed amendment of the definitive map merely records the result of that argument, legal process, or event. The difference between a legal event order, and the usual `evidential' order considered by this Committee is that Legal Event Orders need not be consulted on, nor advertised.
2.4 However, Legal Event Orders cannot be made to reflect changes to, or new, Byways Open to all Traffic, which can only be added to the definitive map as a result of an evidential order, even if, as in the present case, the origins of the path lie with a dedication agreement. A dedication agreement, whereby the landowner dedicates a highway for all purposes, cannot therefore be included in the bulk, or composite, Legal Event Orders now being prepared by the Rights of Way Section. This report, therefore, seeks consent to the making of an order under S.53(3)(c)(i), i.e. an order based on evidence that a Byway Open to All traffic subsists, or is reasonably alleged to subsist, on the route shown between A - B - C on the attached plan.
3, The Dedication Agreement
3.1 The dedication was made by an agreement dated 27th September 1988, by Richard Arnold Wills of Longparish. A copy of the dedication agreement is annexed to this report. It makes clear that the dedication is for the public, with vehicular and all other kinds of traffic. A note with a copy of the dedication agreement states that it was made in connection with proceedings for the repair of an ancient highway, running south from New Barn (point C on the plan), but there is no further information on the dedication file about the reasons behind the dedication.
3.2 An express dedication is only effective to create a public highway if the dedication is accepted by the public - i.e. if the public uses the highway in question. However, the need for the dedication to be accepted by the public can be satisfied if the highway authority agrees to the dedication, as in the present case.
4. The route of the dedicated highway
4.1 The path is described in the schedule to the dedication agreement and subsists on the ground very much as described. It is 727 metres long, from A to C, and approximately 3 metres wide. There is currently no gate at B. At point A it connects with the unclassified road U26, Whitnal Farm Road. At point C it connects with unclassified highway T26, the ancient highway which was the subject of proceedings giving rise to the dedication. It is quite remote, and although apparently in use as a farm track, it seems little used by the public at large.
5. The balance of user
5.1 Only those public vehicular highways that are used primarily as footpaths and bridleways should be recorded on the definitive map. Although it was once considered necessary to have proof that actual use by walkers and riders exceeded use by the public in vehicles (and, therefore, that you must be able to prove that walkers and riders were using the route), it is now no longer necessary to do so. Roch LJ giving the leading judgment in Masters v Secretary of State for the Environment Transport and the Regions considered the test to be one of character: "What was being defined [in s.66(1) Wildlife and Countryside Act 1981] was the concept or character of such a way."
5.2 The character of the route is such that it is more suitable for walkers and riders than for vehicular traffic. No further research as to the type or amount of public use has been carried out.
6. Consultation
6.1 Basingstoke and Deane District, and Whitchurch and Overton Parish Councils shave been consulted about this matter, in accordance with Schedule 15 to the Wildlife an Countryside Act 1981, and the local member has been informed. At the date of preparation of this report, no responses have been received.
7. Future management
7.1 The path has been dedicated as a vehicular highway since 1988 and remains in perfectly acceptable condition as a rural byway. It has been recorded on the working copy of the definitive map (i.e. the one normally inspected by members of the public) since that date. Given this, it is not considered necessary to take any preventative action to regulate or restrict use in the immediate future. The position can be reviewed at any time should the condition of the path or the amount of use change.
7.2 A vehicular highway dedicated post-1835 is only maintainable at the public expense if formally adopted. For the record, it is not considered that the dedication agreement has the effect of a formal adoption, as would be the case were the path a footpath or bridleway dedicated under s.25 Highways Act 1980. Having said this, the route appears on the County's List of Streets as part of the T26, ancient highway.
8 Conclusions
8.1 The dedication agreement of 27th September 1988 is an express dedication of a public right of way with vehicles and all other kinds of traffic, between the points A - B - C on the attached plan and is evidence that a public carriageway exists over that route.
8.2 The path is of a character that it can properly be recorded on the definitive map as a byway Open to All Traffic.
8.3 The width of the path should be recorded in the definitive statement as 3 metres wide between 4897 5145 and 4905 5144 and 2.5 metres wide between 4905 5144 in accordance with the dedication agreement. Gates should be recorded as a restriction on the public's use of the path at points B.
RECOMMENDATION
That an order be made to add to the Definitive Map a Byway Open to All Traffic between points A - B - C on the attached plan (GR SU 4897 5144 to 4968 5133).
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 `Dedication of a BOAT in the Parishes of Overton and Whitchurch' - Rights of Way Office, Mottisfont Court, Winchester.