Archived decisions
Hampshire County Council
Regulatory Committee Item 13
4 January 2006
Request for consent to the making of a Map Modification Order to add a Byway Open to All Traffic in the parish of Barton Stacey
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 RUPPs 3a and 3b in the parish of Barton Stacey (between points A - B on the attached plan). The highway was dedicated to the public by the landowner in 1984 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, to take account of all the changes to the network that have happened since the original date of publication (in Hampshire's case, 1964). Whilst diversion or extinguishment orders, or dedications, which this
Committee is asked to approve from time to time, legitimate a change to the network, they do not automatically update the definitive map. A separate order is need to do this.
2.3 New footpaths and bridleways, or changes to them, can be recorded as an amendment of the definitive map relatively simply, by `Legal Event' Orders, because they reflect an earlier legal order, or process, or event. Such orders 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. Consequently a legal event order need not be consulted on, nor advertised because that has already been done.
2.4 However, Legal Event Orders cannot be made to record new byways open to all traffic, or to record changes to them. \These 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)(ii), i.e. an order based on evidence that a route shown on the definitive map and statement (i.e. that part of bridleway No. 4 which lies between points A and B on the attached plan) should be shown as a byway open to all traffic.
3, The Dedication Agreement
3.1 The dedication was made by an agreement dated 17th May 1984, made between the Honourable Shelagh Mary Cowen and Hampshire County Council. A copy of the dedication agreement is annexed to this report. It makes clear that the dedication is for the public, with vehicles. If public use of the route is primarily that of walkers and riders then this type of highway is shown on the definitive map as a byway open to all traffic (rather than a RUPP over which the rights of the public are uncertain). The dedication was made to facilitate the diversion of a Road Used as a Public Path, Barton Stacey RUPP 3 and grants a public vehicular right of way over part of a route already recorded on the definitive map as Barton Stacey Bridleway No. 4 and which provides a link with the existing, and the diverted, routes of RUPP 3.
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. The need for the dedication to be accepted by the public is normally satisfied if the highway authority agrees to the dedication, as in the present case. In any event, as the route in question forms a link between the rest of Bridleway No. 4 and Barton Stacey RUPP No. 3 it is believed to be in regular use by the public.
3.3 Only that part of Bridleway 4 which was needed to carry vehicular traffic from the diverted route of RUPP 3 was the subject of the dedication agreement. A very small length of Bridleway 4 will remain as bridleway.
4. The route of the dedicated highway
4.1 The existing statement for Bridleway 4 states (running from just south of point B to point A) "From parish boundary northwards along earth cart track approx. 7 ft. wide between wire fence and pasture to No. 3". There remains a small, undiverted, section of RUPP3 linking the dedicated byway with Road A30.
5. The balance of user
5.1 Only those public vehicular highways that are used primarily as footpaths and bridleways can 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 Test Valley Borough Council and Barton Stacey Parish Councils have been consulted about this matter, in accordance with Schedule 15 to the Wildlife an Countryside Act 1981, and the local member has been informed.
The Parish Council has no objection to the proposed addition to the definitive map, but has concern at the poor sight lines at its junction with the A30. The local member, Michael Woodhall, concurs with these views.
7. Future management
7.1 The path has been dedicated as a vehicular highway since 1984 and remains in perfectly acceptable condition as a rural byway. 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.
8 Conclusions
8.1 The dedication agreement of 17th May 1984 is an express dedication of a public right of way with vehicles, between the points A - B 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.
RECOMMENDATION
That an order be made to upgrade part of Barton Stacey Bridleway No. 4, between GR SU 4398 3853 and 4411 3824 (points A - B on the attached map), to a Byway Open to All Traffic.
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.