Archived decisions
Hampshire County Council Item
Regulatory Committee
30 November 2005
Application for a Map Modification Order for the addition to the Definitive Map of two bridleways at Lee-on-Solent in the Borough of Gosport
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 -
(i) that a right of way which is not shown on 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;
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 Two former Hampshire representatives of the British Horse Society have made an application to have the routes known as Common Barn Lane and Sandhill Lane, in Gosport, recorded as bridleways. The application is based on documentary evidence which purports to show that these routes were, historically, public highways. The application for Sandhill Lane is recommended for refusal but the application for Common Barn Lane is recommended for acceptance, as a bridleway, on the basis of a common law dedication in recent years.
2. Claimants:
Mrs B Clarke Mrs C Shoopman
Woodlands 2 Deer Park Cottages
Bourne Gardens Milton Abbas
Porton Dorset
Wiltshire BT11 0AY
SP4 0NU
3. Landowners:
There is no known owner for the northern 130 metres of Sandhill Lane
Sandhill Lane (section H-L) is owned by:
Persimmon Homes
Persimmon House
Brooklands Business Park
Weybridge
Surrey
KT13 0YP
Sandhill Lane (section L-M) is being developed as a public road
Sandhill Lane (section M-N) is owned by:
Defence Estates
Building 1/150
Murrays Lane
HM Naval Base
Portsmouth
PO1 3NH
4. Description of the routes (please refer to the map attached to this report)
4.1 The claimed routes consist of two roughly parallel tracks that run southwards from Cherque Lane and Shoot Lane on the east side of Lee-on-Solent. These routes were in existence before 1856 but by that date they had been altered so that they no longer linked together and did not connect with the coast road. The western route is known as Common Barn Lane and its original route is shown by the letters A-B-C-D-E-K on the map. The eastern route is known as Sandhill Lane and its original route is shown by the letters H-I-K-L-M-N on the map.
4.2 Today, the major portion of Common Barn Lane still exists as a surfaced path, sandwiched between houses, but it now extends southwards to connect with public roads at point G. The section between E and K no longer exists on the ground. Only the northern half of Sandhill Lane, between H and I, still exists as a recognisable track and this now turns east to provide access to a mineral extraction site close to point J. There is no trace on the ground of a path or track on the old alignment of Sandhill Lane between points I-K-L-M-N.
4.3 Common Barn Lane is already recorded by Hampshire Highways as a publicly maintainable route which is described as a bridleway. It also has a Traffic Regulation Order on the section from B to F that prohibits use by public motorised vehicles. Only the two ends of the lane (A-B and F-G) resemble roads, the overwhelming majority of the route now consisting of a two to three metre wide gravel or tarmac path that is extensively used by walkers and cyclists with some evidence of use by horse riders.
5. Background to the claim
5.1 The application was made when a large area of land between Lee-on-Solent and Rowner was proposed for development. The horse riders wanted to protect two routes that had allegedly been used by local riders and they lobbied for public access as part of the development. The land immediately to the east of Common Barn Lane is in the process of being developed with houses and a new distributor road is under construction. The new road will connect Broom Way in the north with the Portsmouth Road in the south and it will be built over the section K-L-M of the old alignment of Sandhill Lane. At the moment Sandhill Lane is heavily used by lorries gaining access to a mineral extraction site at point J. The land to the east of Sandhill Lane is being landscaped with trees and lakes and this area is proposed for informal public recreational use.
6. The issues to be decided
6.1 The issue to be decided by this committee is whether there is evidence to show that Common Barn Lane and Sandhill Lane ought to be shown on the definitive map as public rights of way.
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 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 points to them having footpath, 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 and statement. This type of evidence may disclose rights other than those claimed by the applicant. 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 Evidence forms and statements taken from those who have used the path or have knowledge of it in living memory can show that higher rights have been acquired as a result of a recent dedication at common law, or a deemed dedication under s.31 Highways Act 1980. It may not be necessary to examine this type of evidence if the historic and documentary evidence shows that higher rights were dedicated in the past and still subsist, although the user evidence may add credibility to the earlier evidence of dedication. This type of evidence is also useful in determining the width of the path.
6.5 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.
6.6 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 are urged to inspect these, or the originals, when considering this report.
7. Documentary evidence
7.1 Evaluation of Historic Documents
Information on the background and evidential weight which should be attached to particular historical sources is included at Appendix 1 which should be read in conjunction with this section.
7.2 1759 Isaac Taylor's Map (1 inch to 1 mile)
This is a small-scale map which shows the prominent topographical features in the area. The claimed tracks are both shown by parallel solid lines connecting the hamlet of Chark (now Cherque) in the north with a track along the coast between Lee and Alverstoke (point N).
7.3 1782 Plan of the Several Manors of Titchfield etc. (3 inches to 1 mile)
This is a fairly detailed map which shows the land in the area of the lanes, broken down to individually numbered plots. Common Barn Lane is shown by solid parallel lines, as is Sandhill Lane except where it passes on the side of two areas of unenclosed land called `Shute Common' and `Grange Warren'. Both lanes are coloured brown, indicating that they are highways of some description, with no indication of gates except at the southern end. Here Sandhill Lane stops at a solid line (point M) and does not connect with the old coast road (point N) which is shown by a thick brown line with the eastern end annotated `To Gosport'. There is a feature drawn on the map, which could represent a cliff face, between the end of Sandhill Lane and the coast road.
7.4 1783 Portsea Defence Map (4.4 inches to 1 mile)
This detailed map includes all of the area now occupied by Lee-on-Solent. It shows both of the claimed routes by parallel solid lines passing through farmland. The eastern spur of Sandhill Lane terminates at fields (point J) with no continuation across the River Alver. The southern end (point M) is similarly represented because it stops at a large area of open land called `Brown Down' on the north side of a cliff. The map does not show a coast road or track.
7.5 1789 Thomas Milne's Map (1 inch to 1 mile)
Both claimed routes are shown by parallel solid lines. Chark Farm and Shoot Farm are shown to the north of the lanes. This map does not show a coast track or road from Lee, instead Sandhill Lane turns to the south east and continues to Alverstoke. Another prominent feature shown is a cliff which extends along the coast between Lee and Gomer Pond. Sandhill Lane passes over the cliff but over to the east, near the pond, rather than the claimed route.
7.6 1797 Ordnance Survey drawing (3 inches to 1 mile)
This is another fairly detailed plan which shows individual plots and fields. Both claimed routes are shown to their full extent by parallel solid lines. There is a track or road that runs along the coast between Lee and Alverstoke. The end of Sandhill Lane is very close to the old coast road but it appears to stop at a cliff feature and it is not possible to say with certainty whether it connects with this route.
7.7 1800 Map of the lands in Rowner and Alverstoke (6 inches to 1 mile)
On the edge of this detailed map the southern section of Sandhill Lane (K-L-M-N) is shown by solid parallel lines and coloured brown. The junction with Common Barn Lane just appears but the map does not quite extend as far as the coast road, so it is not possible to determine whether the lane is a through route.
7.8 1810 Ordnance Survey map (1 inch to 1 mile)
Both claimed routes are shown by parallel solid lines. The coast track or road between Lee and Alverstoke is shown by parallel solid or pecked lines. At this scale it appears that Sandhill Lane connects with the coast road and forms part of the local highway network.
7.9 1826 Greenwood's Map (1 inch to 1 mile)
There is very little difference in the depiction of the lanes on this map compared to the Ordnance Survey map of 1810. Both claimed routes are shown by parallel solid lines, connecting at their southern end to the coast road between Lee and Alverstoke.
7.10 1837 Tithe Map & Award (14 inches to 1 mile)
7.10.1 This detailed map shows the claimed tracks on the same routes as the 1810 Ordnance Survey map and the 1826 Greenwood map.
7.10.2 Common Barn Lane is not named as such on the map but it is given that name in the Award. The lane is gated at five locations; two either side of the turning to Court Barn, (point C) two either side of Common Barn (point D) and another gate where it meets Sandhill Lane (point K). This means that the lane has been divided into five different land parcels, four of which are numbered and listed in the Award. The unnumbered section of track is the northern 300 metres south of Chark Lane. There is no owner or occupier of this land and therefore it would appear to be part of the public highway network. Going south from the first gate, close to the turning to Court Barn, four different sections of the lane have been given parcel numbers which are listed in the Award. All are owned by Henry Peter Delme and all are occupied by William Green. The numbers, with their descriptions from the Award, are: 2041 - `Court Barn Farm buildings and roads', 2045 - `Common Barn Lane', 2046 - `Common Barn and yard', 2073 - `Upper Part of Green Lane'. The fact that the lane is owned and occupied, and is gated at five locations, suggests that it is private rather than public.
7.10.3 Sandhill Lane is annotated on the map as applying to the northern half of the track, whilst the southern half is annotated `Brown Down Lane'. The lane is gated at three locations; approximately 25 metres south of Shoot Lane, at its junction with Common Barn Lane (point K) and at its very southern end (point N). The northern 25 metres of track does not have an owner or occupier and is therefore probably part of the public highway network as far as the first gate. Going south from there the lane has been given three different parcel numbers. The first is 2109a, owned by Henry Peter Delme, occupied by Charles Stares and described as `Pasture'. The second is 2072, owned by Henry Peter Delme, occupied by William Green and described as `Green or Brown Down Lane'. The third is 2067, owned by the Government, occupied by Caroline Carter and described as `Part of lane'. Approximately half way down the lane (point I) there is a spur that branches off to the east for 370 metres and ends at a gate leading to fields (point J). At the extreme southern end of the lane the map does not show a connection with the old coast road. It ends at a solid line (which is probably a gate) on the top of a low cliff, and between there and the coast road, a distance of about 10 metres, there is no indication of a track or path. The fact that the lane is owned, occupied, gated and possibly not a through route, suggests that it is private rather than public.
7.11 1856 Ordnance Survey map (25 inch to 1 mile) - first edition
7.11.1 This is the first, large-scale, map of the English countryside to accurately portray all topographical features. It shows both lanes but not to the same extent or alignment as the earlier maps. In the 19 years since the Tithe Map was made the lanes have been significantly altered. All highways, whether public or private, are shown coloured brown. Please note that this evidence would normally include a description of the Book of Reference which describes the use for every parcel of land but in this case it has not been possible to reconcile the numbers in the Reference Book with those on the map.
7.11.2 Common Barn Lane starts in the north from `Chark Lane' (point A) on the west side of a group of buildings named `Chark'. From there it runs due south shown as parallel solid lines, approximately 6 metres apart, indicating hedges or fences. It is gated just north of a turning to a large group of buildings called `Court Barn' (point C) and continues to the south as a wider route, up to 22 metres, enclosed between hedges or fences. It then passes along the eastern side of another group of buildings called `Common Barn' (point D) where there is another gate across the track. From there the lane still continues south as an enclosed feature but this ends 150 metres south of Common Barn at the point on the old maps where it turned east to connect with Sandhill Lane (point E). There is no trace of the connecting track (E-K) on this map. Common Barn Lane carries on south for another 210 metres (to point F) but only as a minor track on the edge of a field. It ends at field boundaries about 500 metres north of the coast road. The route has been coloured brown on the map and annotated `Common Barn Lane'.
7.11.3 Sandhill Lane starts from `Shoot Lane' (point H) about 350 metres west of Common Barn Lane and runs due south as an enclosed track. It is gated after only 25 metres from Shoot Lane but continues south without any more gates for 930 metres where it turns to the east (point I) on the spur shown on the Tithe Map. This spur still ends at a gate leading to fields (point J). This length has been coloured brown on the map. There is no evidence of a path or track of any description on the old route of Sandhill Lane to the south of the spur (between points I-K-L-M-N) except at the very southern end where there are the remains of a short section of enclosed lane overgrown with rough grass (points M-N). This map clearly shows the cliff that separates the land at the top, called `Browndown Camp Fields', from the old coast road at the bottom. There are two minor paths on this map that run diagonally down the cliff face but even they don't directly connect with the road. The land south of the cliff, known as `Browndown' has been completely taken over by a large military firing range which would probably have made public access to the area impossible at this date.
7.12 1895 Ordnance Survey map (25 inch to 1 mile) - second edition
7.12.1 There is very little change in the depiction of the lanes from the first edition map of 1856.
7.12.2 Common Barn Lane is gated either side of the turning to Court Barn but there are no other obstructions along the route. However, the track does not extend so far to the south, it stops in the middle of a field about 150 metres south of Common Barn (point E) with no onward connection to the new estate roads being built along the coast. The old coast road has been replaced by a new road, annotated `Portsmouth Road', built on land at the top of the cliff. (It is known, from other sources, that this new road was opened in April 1888.) One significant addition to this map is the annotation `G.P.' for Guide Post positioned at the junction of Common Barn Lane and Shoot Lane. The inference from this is that the post was placed there because it was a junction of public highways.
7.12.3 Sandhill Lane has not altered from the previous map. There is still a gate across the track, 25 metres south of its junction with Shoot Lane, at the northern end and it still turns to the east at point I to end at a field of rough grass at point J. There is no trace of a path or track south of point I and even the remnant of old lane between M and N has disappeared.
7.13 1907 Ordnance Survey map (25 inch to 1 mile) - third edition
7.13.1 Common Barn Lane: The northern third of the track has not altered. There is still a guide post at its junction with Chark Lane and it is still gated both sides of the turning to Court Barn. But from there, going south, the eastern boundary has been removed leaving it as a narrow track on the edge of a field. The lane still leads to Common Barn, which now consists of two, semi-detached, dwellings and a group of farm buildings, where there is a third gate across the track. The track continues south of Common Barn, along the edge of a field, and this time it connects with an off-shoot of Wootton Road which is one of the new estate roads just north of the main Portsmouth Road. This is not quite the same route that is in use today, the end being a little to the east of point G.
7.13.2 Sandhill Lane has not altered at all. It is still a cul-de-sac track gated at the north end near Shoot Lane and at the end of the eastern spur at point J. There is no trace of a path east of point J or south of point I.
7.14 1939 Ordnance Survey map (25 inch to 1 mile) - fourth edition
7.14.1 Common Barn Lane: The northern half of the lane remains the same except that the guide post has been repositioned possibly to indicate the start of a footpath that runs south westwards from Common Barn Lane. South of the turning to Court Barn the lane is, for the most part, an unenclosed track about three metres wide which runs across large fields. The gate has been removed at Common Barn and the track now divides at its southern end to connect with the estate roads at two locations. The western route is the one that is still in use today.
7.14.2 Sandhill Lane has not altered at all. It is still a cul-de-sac track gated at both ends, that is points H and J.
7.15 1959 Magistrates' Court Order
In 1958 the highway authority applied for an order to stop up and divert parts of Chark Lane and Shoot Lane to facilitate the construction of a new road called Broom Way. Sandhill Lane was completely unaffected by the alterations but Common Barn Lane, whilst remaining intact, appears on the detailed drawings submitted for the Magistrates' consideration. Along with part of Shoot Lane, it is coloured green which the legend describes as `Existing road to remain'. The road alterations left Common Barn Lane and Shoot Lane as a connecting route separated from Chark Lane by Broom Way. The implication of this evidence is that the very northern end of Common Barn Lane was part of the public highway network in the late 1950s.
7.16 1964 Ordnance Survey 1/2500 map
7.16.1 Common Barn Lane: Following the road alterations described above, the lane now connects with Broom Way and Shoot Lane at its northern end and runs south from there as an enclosed track or road about six metres wide. There is still a turning to the west, to Court Barn, and it continues south from there as an unenclosed track, about three metres wide, across a large field. The buildings at Common Barn have been demolished and at its southern end the track connects with Elmore Avenue as it does today.
7.16.2 Sandhill Lane: The lane is gated at its northern end, 25 metres south of its junction with Shoot Lane. From there it is shown running south as an unenclosed track, five to eight metres wide, which crosses a large area of open land. It turns to the east and leads to a `Gravel Pit' and `Works'. There is no path or track that continues south to connect with the coast road.
7.17 1971 Letter from L S Vail & Son to Gosport Borough Council
This letter was written in response to a request from the Borough Council to provide bridleways across land at Chark Farm. The agents for the owners replied, in part:
"Our clients are certainly willing to co-operate in the provision of bridleways so far as they are able. However, we must as a top priority consider the interests of the farm tenants of Chark Farm and we know that in the past they have been caused considerable nuisance by people riding through Chark Farm without authority."
7.18 1977 Letter from County Surveyor to Gosport Borough Council
This letter, dated 18th March, was also copied to the County Secretary and other colleagues in the Surveyor's Department. It is headed `Common Barn Lane' and reads, in part:
"A request has been received from Messrs Laing Homes Limited for a status report to be carried out on the above road"
7.19 1977 Letter from County Surveyor to Laing Homes
The letter, dated 9th May, reads in part:
"With reference to previous correspondence, the status of Common Barn Lane has been investigated and it has been decided that it is an ancient highway."
7.20 1981 Gosport Borough Highway maps
These working maps show the routes that the Borough Council considered were publicly maintainable before responsibility was handed over to the County Council. They use as their base, Ordnance Survey maps at either 1/1250 or 1/2500 scale, dated between 1964 and 1981. Publicly maintainable highways appear to be coloured in red. Common Barn Lane is coloured red for its entire length from its junction with Fieldhouse Drive in the north (point A) to its junction with Elmore Avenue in the south (point E). Sandhill Lane appears to be coloured pale red and against it is written "Recorded in searches as unadopted. Not inspected or maintained. DD 7/9/99"
7.21 1982 Letter from Gosport Borough Council to Messrs Fairhall & Durston
The letter is dated 21st October and reads in part:
"Investigations, including consultation with the Agents of the former landowners and perusal of maps, documents etc. in the Council's possession, have led to the following conclusions:
1. Common Barn Lane is an unsurfaced Public Highway over land in the ownership of the adjacent holdings. It is covered by a prohibition of Driving Order preventing its use by vehicles except for emergency access to adjacent land. Its use is thus limited effectively to that of a bridleway and footway.
3. To preserve access to Common Barn Lane south of Court Barn, it will be necessary to provide a gate...that keeps it normally in a shut position. The gate should be wide enough to permit passage by horses and pedestrians."
On an attached map, the annotation "Hinged gate to be provided for access to footpath" is shown just south of the turning to Court Barn (point C).
8. User evidence
8.1 1971 User forms from Mrs J Andrews
There are two old user forms for these routes that were submitted in 1971 from Mrs Andrews a resident of Hillhead.
8.1.1 The form for Common Barn Lane records that Mrs Andrews used that section of the lane from Cherque Lane south to Elmore Avenue (A-B-C-D-E-F-G) from 1944 onwards. She used the route on foot, on horseback and in a pony and trap about once a week for pleasure and business. She recalls that, in the summer of 1971, a locked barrier was put up across the track with a notice on a gate outside Cherque Farm (between points A and B) and she was stopped by a Mr Baird who said to her "If I allow one to use it, everyone will".
8.1.2 On the form for Sandhill Lane, Mrs Andrews records that she used it on horseback, from 1952 to 1971, approximately once a week for pleasure. She has highlighted a route on a map to show she rode the length of the existing lane (H-I-J) but does not indicate where she went from its eastern end (point J). She does recall that there was "a moveable Hampshire gate at the Browndown end". In answer to the question "Have you ever been stopped...from using the way" she has written "Very occasionally, possibly when shooting in operation over land". She has seen other people using the route on horse back and foot "quite frequently especially on horse".
8.2 2005 User survey
In an attempt to gauge how Common Barn Lane is currently being used by the public, a census was carried out at different points on the lane over three different dates in April. The results, for a total of three hours use at different times of the day, were as follows: 34 walkers, 128 cyclists, 0 horse riders. A large proportion of the use is associated with children going to and from school. Horse riders have been seen using the path at other times and some have left more permanent evidence of their use. From conversations with local people it would seem that the above figures are representative of current use of the path.
9. The landowners
9.1 Persimmon Homes
Persimmon Homes have very helpfully provided evidence of land ownership but have no commented on the substance of the claim, except to say that they object, in the strongest possible terms, to any claim for a bridleway over the routes between E - K and H - I - K - L - M - N.
9.2 Ministry of Defence
The Estate Surveyor responded on 15 November to say:
"I write to confirm our support of your refusal to grant rights along the line defined in your report as H to N. In particular section M to N which... is within our ownership and across which there has been no public rights of way since it was purchased in 1848. These areas are within our security fence and the public have been continuously excluded."
10. Consultations with other bodies
10.1 Gosport Borough Council
No comment
10.2 County Councillor Margaret Snaith - local member
No comment
10.3 The Ramblers Association
Supports the application as it gives access to the open spaces.
10.4 The British Horse Society
Mr Alec Fry, Assistant Access & Bridleways Officer for the British Horse Society, has submitted a letter together with a paper headed `Early small-scale map evidence in support of DMMO claims in South Hampshire'. Mr Fry takes the view that the small scale-maps described in paragraphs 7.2 to 7.9 support the case for the recording of the claimed routes as Byways Open to All Traffic. He concludes:
"If a route is shown as a road on pre-1835 maps then this is very strong evidence that it was a public vehicular highway. Subsequent obstruction, gating, appropriation by landowners etc. can in no way diminish this status once established - `Once a highway, always a highway' applies."
Copies of Mr Fry's letter and paper have been placed in the members' rooms.
10.5 Cyclists' Touring Club
No comment
10.6 LARA
No comment
10.7 Environment Department
No comment
10.8 Hampshire Highways
Hampshire Highways have confirmed that the sections of Common Barn Lane between points A-B and F-G are publicly maintainable highways which are metalled and recorded as unclassified highways. They also confirm that the section B-C-D-E-F was shown on Gosport Borough Council's records as a public highway but comment that: "There is no evidence to suggest why this section was regarded as maintained highway, it probably has been historically maintained without any formal dedication." This middle section is also covered by a Traffic Regulation Order which prohibits its use by motorised vehicles.
11. Analysis of the evidence
11.1 There is ample documentary evidence that Common Barn Lane and Sandhill Lane existed as substantial routes from at least 1759 to 1837. There are eight small-scale maps, and the Tithe Map, that all show the two lanes as tracks that would probably have been capable of carrying vehicles. However, there is no evidence that these tracks were public. Lee-on-Solent did not exist as a settlement until the very end of the 19th century and by then Sandhill Lane and Common Barn Lane had ceased to exist as through routes. The Ordnance Survey map of 1870 shows four farms in the locality at Lee, Court Barn, Chark and Shoot but there are no dwellings outside these farms. The area was so sparsely populated, before 1880, that it is unlikely that the tracks could have served a public purpose. The tracks were probably established to gain access to the adjoining farmland.
11.2 There is a difference of opinion, regarding the value of the small-scale maps in determining the public/private status of lanes, between officers and the British Horse Society. Mr Fry takes the view that the depiction of these lanes on the pre-1835 maps provides strong evidence of their public vehicular status. The officers take the view that the maps, by themselves, do not demonstrate that the lanes are public. The evidence from the maps has to be evaluated in the context of other documents and features in the landscape.
11.3 The Tithe Map and Award of 1837 is the first document to refer to the status of the tracks and, with the possible exception of short sections in the north, the evidence firmly points to them being private. Both lanes are privately owned, occupied and gated at several points, and the major portion of Sandhill Lane (between H-I-K) is described as `Pasture' in the Award. There is some doubt whether they even connected with the old coast road to the south. The Tithe Map clearly shows the bottom end of Sandhill Lane as stopping at the top of a cliff (point N) with no connection to the old coast road. (This cliff still exists to the present day.) From this document it would seem that it was, physically, not possible for vehicles to pass between the two points.
11.4 Mr Fry would argue that, by 1837, the lanes had been `appropriated' by the landowners, but this is only 11 years after the publication of Greenwood's map on which the lanes were, on Mr Fry's view of the map, shown as being `public'. It is possible that there was a legal event in the intervening period that extinguished public rights but none have been found. Given the superior scale and quality of the Tithe Map, in comparison with the small-scale maps, the evidence derived from it must outweigh that to be found in the earlier maps. It must also be borne in mind that the various surveyors of the small-scale maps were more concerned with depicting the topography of the land rather than defining public highways. The officers take the view that, on balance, there is insufficient evidence to warrant the making of an order on the basis that the tracks were ancient public lanes.
11.5 No documentary evidence has been discovered which points to the existence of a track or path on the old alignment of Sandhill Lane, south of point I, after 1837. There is a map attached to the user evidence form from Mrs Andrews that indicates that she rode the route between H-I-J and continued eastwards to the river but no evidence where she went from there. Mrs Andrews acknowledges that she was `very occasionally' stopped from riding when shooting was taking place over the land. This evidence is not helpful in establishing a right of way on any route in the locality of Sandhill Lane.
11.6 Between 1837 and 1856 both lanes were substantially altered and from that time they no longer existed on their claimed alignment. Common Barn Lane was also a cul-de-sac for the second half of the 19th century. However, by 1907 the Ordnance Survey map shows that it had become connected with new estate roads being built in the south and from that date, to the present day, it has been capable of being used as a through route. The current route, connecting with Elmore Avenue, was shown for the first time on the Ordnance Survey map of 1939.
11.7 The historical evidence for the northern 200 metres of Common Barn Lane (section A-B) is persuasive for the existence of full public highway rights. On the Tithe Map & Award it is shown as being outside of land that was privately owned and occupied. The Ordnance Survey maps of 1895 and 1907 both show a signpost at the junction with Chark Lane, and the plans submitted to the Magistrate's Court, in 1959, strongly suggest that the top part of the lane was a public road. This section is now recorded as a publicly maintainable highway on Hampshire Highways' records.
11.8 For the rest of the lane south of the turning to Court Barn, that is B-C-D-E-F-G, the documentary evidence is much less persuasive. The Tithe Map & Award has already been mentioned but it is also the character of the lane that raises doubts over its public status. For many years this route has only been a narrow track running across, or along the side of, open fields. For a 50 year period, roughly between 1850 and 1900, it did not go anywhere other than the farm buildings known as Common Barn and the fields beyond. There is nothing contained within the documentary evidence, before the Second World War, that suggests the existence of a public right of way of any description.
11.9 Common Barn Lane seems to have become accepted as a public highway of some description, in the period after the Second World War, probably because of the changing nature of the surrounding land. Over the years the farmland has been used for extensive housing development and gravel extraction, and more and more people have moved to the area and sought out routes for recreational exercise. The farming interest has declined and therefore less attention has been paid to maintaining gates and boundaries and keeping trespassers out. Although, in 1837, the Tithe Award recorded an owner for most of the lane, there is no known owner today.
11.10 It reached the point where the County Surveyor felt confident enough, in 1977, to declare that Common Barn Lane was "an ancient highway" although it must be said that there is little evidence to support that view. However, nobody seems to have dissented from that pronouncement and, over the last 28 years, the lane has become absorbed into the local rights of way network and had a Traffic Regulation Order placed on it by Gosport Borough Council. It is doubtful if the public ever used the lane with motorised vehicles and the only direct evidence of use, of any description, is that from Mrs Andrews.
11.11 Now that the land on both sides of Common Barn Lane has been developed with houses and roads, the lane provides a valuable link for walkers, cyclists and horse riders both for recreational and practical use. The whole route between A and G is recorded by Hampshire Highways as a publicly maintainable highway whilst a Traffic Regulation Order prevents use by motorised vehicles between points B and F.
11.12 The public has undoubtedly acquired, at least, a right of way on foot over the current route of Common Barn Lane, through a common law dedication in the 20th century but there is less certainty about higher rights. The evidence from Gosport Borough Council, County Surveyor's records and the existence of a Traffic Regulation Order all suggest that it should be recorded as a vehicular route. However, other than Mrs Andrews, there is no evidence that the lane has ever been used by the public, with vehicles, and the Traffic Regulation Order was imposed because of concern of use by vehicles rather than actual use. On this basis it would seem inappropriate to record the lane as a byway open to all traffic.
11.13 The amount of use by horse riders is insufficient, on its own, to establish bridleway status, and use just by cyclists probably cannot give rise to an inference of dedication of bridleways rights. There is an argument for saying that use by cyclists could lead to public vehicular rights, because a bicycle is a vehicle, but there are difficulties in the notion that use by non-mechanically propelled vehicles can give rise to an inferred dedication of a highway of a totally different character. The path could be considered to be a public cycleway, but there is presently no judicial authority acknowledging that such a limited form of highway can be created at common law and, even if it were possible, it is not a highway of a sort that can be recorded on the definitive map.
11.14 The difficulties in classifying a highway used by cyclists are discussed in two recent articles [to be] published in the Rights of Way Law Review, which recognise that ways used by cyclists do not fit into the traditional three-fold classification of highways (i.e. footpaths, bridleways and carriage roads), but might nonetheless exist as a separate class of highway (i.e. a cycleway) in their own right. In the second of the two articles, David Braham QC notes that use by cyclists will not automatically result in a cycleway, but that
"...evidence of use as of right by cyclists, after 1968, may tip the scales where there is also significant evidence of use with horses but no significant evidence of use with other vehicles. In some cases, the evidence as a whole may support the inference of dedication at common law...as a bridleway even though, by itself, the evidence of use with horses would not have warranted the same conclusion....in the absence of any other vehicular use, the post-1968 use by cyclists point more strongly to bridleway status than to carriage road status."
11.15 Looking at the matter from the landowners points of view, the use being made of Common Barn Lane was that of a bridleway, with the lane being enjoyed by many walkers, a few horses, many cyclists and no motorised vehicles. It seems right, in the circumstances that the uninterrupted and unchallenged use should give rise to the inference at common law of the dedication of a bridleway.
12. Conclusions
12.1 The claimed routes existed as substantial tracks or roads between 1759 and 1837.
12.2 The Tithe Map demonstrates that the major portion of these tracks were privately owned, occupied and gated.
12.3 The claimed routes were substantially altered between 1837 and 1856.
12.4 From 1856 onwards Sandhill Lane did not exist as a through route.
12.5 The public has not acquired a right of way over Sandhill Lane.
12.6 Between 1856 and the end of the 19th century Common Barn Lane did not exist as a through route.
12.7 From at least 1907 onwards Common Barn Lane connected with new roads to the south.
12.8 The public has acquired a right of way over Common Barn Lane through a common law dedication in the last part of 20th century.
12.9 The designation that would best reflect public use of Common Barn Lane, over the last 30 years, would be bridleway.
RECOMMENDATIONS
1) That a Map Modification Order be made to record Common Barn Lane, as shown on the attached map between points B-C-D-E-F, as a bridleway with a minimum width of 4.0 metres.
2) That the application for that length of Common Barn Lane as shown on the attached map between points E-K, be refused.
3) That the application for a Map Modification Order for Sandhill Lane, as shown on the attached map between points H-I-K-L-M-N, 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 CR671 - Rights of Way Office, Mottisfont Court, Winchester