Hampshire County Council Item 7

Regulatory Committee

26 April 2006

Application to upgrade Bridleway No. 32 in the parish of Owslebury and part of Footpath No. 30 in the Parishes of Owslebury and Upham to byways open to all traffic

Applications to upgrade Roads Used as a Public Path Nos. 31 and 51 in the Parish of Owslebury and Road Used as a Public Path No. 52 in the Parishes of Owslebury and Fair Oak and Horton Heath to byways open to all traffic

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

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. 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 of the assumption that the landowner knew of and acquiesced in public use.

1. Summary

1.1 This report concerns four separate applications, all relating to a network of lanes within, or on the boundaries of Owslebury. All applications seek to show the relevant routes as byways open to all traffic.

1.2 It is recommended that Red Lane and Hatchley Lane be upgraded to byways open to all traffic, on the basis of historic evidence which shows that they were old roads.

1.3 It is recommended that the application to upgrade Roughay Lane and Trenchers Lane to byways open to all traffic be refused, although there is some, not insignificant, evidence that points to their reputation as old roads, and it would not be unreasonable to come to a contrary decision.

1.4 It is recommended that an order be made to add part of Roughay Lane and Trenchers Lane to the definitive map as restricted byways, as soon as legislation so permits. This is on the basis of an inferred dedication of limited vehicular rights at common law, based on recent use of the lanes by non-mechanically propelled vehicles. In the alternative, if Members are no so minded, it is recommended that part of Upham Footpath 30 (Roughay Lane between RUPP 27 and Trenchers Lane) be upgraded to bridleway on the basis of recent user by horse riders.

2. The Applicants and the applications

2.1 Claim No. 697 was made in 2000 by Mrs M. Fry on behalf of the British Driving Society and by Mrs C. Shoopman on behalf of the British Horse Society (for ease referred to as the `First Applicant') and relates to part of Roughay Lane (part of Upham Footpath 30) and the whole of Trenchers Lane (Owslebury Bridleway 32) (see map attached). The application was accompanied by a number of witness evidence forms and letters and a number of maps, plans and documents outlining the history of the routes.

2.2 Claim No. 866 was made on 14 March 2005 by Mr Sean Fosberry on behalf of the Trail Riders Fellowship(the `Second Applicant'). It relates to Road used as a public path (RUPP) No. 51, part of Red Lane, in Owslebury.

2.3 Claim No. 867 was made on 14 March 2005 by Mr Sean Fosberry on behalf of the Trail Riders Fellowship. It relates to Road used as a public path (RUPP) No. 52, known at Hatchley Lane, in Owslebury.

2.4 Claim No. 864 was made on 14 March 2005 by Mr Sean Fosberry on behalf of the Trail Riders Fellowship. It relates to Road used as a public path (RUPP) No. 31, also part of Red Lane, in Owslebury.

2.5 The last three claims are being dealt with in this report, despite being only recently submitted, because they concern lanes which form part of the same network of paths as those which are the subject of the first claim, and evidence relevant to the first claim is also relevant to the others. In the interests of efficiency, and in accordance with our policy, they have been investigated otherwise than strictly in chronological order.

3 The Claimed Routes

3.1 The claimed routes are shown on the maps attached to this report

3.2.1 `Roughay Lane' runs from Popes Lane in the south, in a northeasterly direction towards the Baybridge - Upham Road. The first 235 metres of this route is recorded as a county unclassified road, U197. The next 430 metres, to Sweet Briar Cottage, is known as Upham RUPP 27 (this will automatically be converted to a restricted byway when sections 47 - 51 Countryside and Rights of Way Act come into force). The remainder of the route is recorded as a footpath (Upham Footpath No. 30 as far as the parish boundary with Owslebury and thereafter Owslebury Footpath 27), but the name `Roughay Lane' probably only applies to the section within Upham. These routes follow the line of a shallow valley rising from Popes Lane in the south up to Woodlocks Down in the north.

3.2.2 Roughay Lane is currently surfaced to a standard equivalent to its recorded status. It is well metalled to Lights Dell (the county road); roughly metalled to Sweet Briar Cottage (the RUPP) and unsurfaced from that property northwards. The hedges which once existed on the northwestern side of the lane have been removed, and north of Sweet Briar Cottage the path has the characteristics of a headland path. There is evidence of use by horse riders and three unofficial signs - presumably erected by the landowner, asking horse riders to keep to the path.

3.3.1 Trenchers Lane is approximately 930 metres long and connects Roughay Lane with Red Lane. It is recorded on the definitive map as Owslebury Bridleway No. 32. Although connecting at its western end with a highway of at least bridleway status, the eastern end terminates on Roughay Lane, at a point where Roughay Lane is recorded on the definitive map as a footpath. Thus, on paper at least, Trenchers Lane is a dead-end for horse riders. It is more likely Trenchers Lane was over-recorded, or this part of Roughay lane was under-recorded, and that the anomaly was not spotted because the two parishes were originally in separate districts and their rights of way were shown on two separate definitive maps.

3.3.2 Although originally enclosed like an ancient lane, the old boundaries have been grubbed out and Trenchers Lane is currently unfenced and no more than an unsurfaced track through the middle of a large field. At its eastern end the alignment of the track now on the ground does not exactly follow the line of the historic route or the recorded bridleway: it joins Roughay Lane some 30 metres south of the original alignment. Maps and aerial photographs suggest that this change occurred between 1971 and 1984. This part is badly poached by horse riders. The lane crosses a ridge, the highest point of the lane being in its centre with the land sloping away to the east and west.

3.4.1 Hatchley Lane was formerly known as Deeps Lane and runs between the southern end of Roughay Lane and the southern end of Red Lane. It continues from Red Lane to the B2177, Fishers Pond to Bishops Waltham road (formerly part of the Bishops Waltham to Winchester Turnpike). It is recorded on the definitive map as RUPP 52 in Owslebury but, in fact, straddles the parish boundary, with Owslebury to the north and Fair Oak and Horton Heath to the south.

3.4.2 Recent works have provided Hatchley Lane with a sound surface for recreational use. It is not possible to say whether it has previously been metalled.

3.5.1 Red Lane connects Hatchley Lane with the Baybridge - Marwell Road. From Hatchley Lane northwards to the entrance to Roughay Farm it is recorded as a county unclassified road, the U176. From this point northwards Red Lane is shown on the definitive map and statement as Owslebury RUPPs 51 and 31, and recorded by the Environment Department as unclassified road T176. It runs, in part, parallel with Roughay Lane and follows the line of a very shallow valley, gaining height from south to north.

3.5.2 There is a good asphalt surface on Red Lane between Hatchley Lane and the entrance to Roughay Farm. Thereafter the lane is roughly metalled - appropriate for recreational, rather than general, use.

4. The Landowners

4.1 Trenchers Lane is within the registered title to Roughay Farm, Owslebury, which is currently owned by Mr Harry Trigg. Roughay Lane is not within the registered title of that property, although Mr Trigg exercises some control over the lane. It is likely that he owns at least half in width of Roughay Lane (i.e. RUPP 27, and Footpath 30 between RUPP 27 and Bridleway 32)

4.2 Mr and Mrs Knights, of Popes Farm, Upham own land to the east of Roughay Lane and, by virtue of that, are likely to own the remaining one half in width of Roughay Lane, there being no evidence of any other paper owner.

4.3 RUPPs 31 and 51 (Red Lane) are unregistered, and it is not thought that any individual is claiming ownership of this length of Red Lane.

4.4 The same applies to RUPP 52 (Hatchley Lane).

5. Consultation

5.1 The following persons and bodies have been consulted about the applications, namely the Director of Environment, Ramblers Association, British Horse Society, Councillor Cllr A. Roling and Cllr P. Mason the local members, Trail Riders Fellowship, Cyclists Touring Club, LARA, Winchester City Council, Owslebury, Fair Oak and Horton Heath and Upham Parish Councils and the Countryside Service's Area Officer. The following responses have been received: the remaining consultees are presumed to have no evidence to offer.

5.2 Ramblers' Association - has no evidence to offer.

5.3 LARA

Has provided evidence of use of Red Lane and Hatchley Lane by one user (and friends) since 1976.

5.4 Upham Parish Council

The Parish Council does not consider that historical use by a horse and cart should equate with current use by motorised vehicles. It reports that a local resident (since 1941) state that Roughay Lane and Trenchers Lane were always narrow tracks and were not used by motorised vehicles, only a horse and cart. Another resident used to use a track that led from Woodlocks Down to Widlers Lane rather than use Roughay Lane, because it was very overgrown and used only with difficulty with farm machinery.

5.5 Owslebury Parish Council

Advises that there is no evidence to suggest that public vehicular rights exist on the claimed routes. There is no evidence on the parish file, which goes back to 1933, that public vehicular rights exist. There are some other documents relating to these rights of way, including a letter from Mr Trigg, written in 2001, indicating that he had no objection to Roughay and Trenchers Lane being used by horses and horse drawn vehicles. Part of this letter reads "...we have always, however, accommodated and welcomed Horses and Horse Drawn Vehicles along the side of the field. In my opinion a Bridle Way to include Horse Drawn Vehicles would be acceptable but not motorised traffic".

5.6 Fair Oak and Horton Heath Parish Council

States that "When the boundaries of the parish of Fair Oak were walked c.1955 Hatchley Lane was part of that boundary which adjoined the parish of Owslebury and at that time was a muddy and rough but well used track. Since when, to our knowledge, it as continued to be used by wheeled vehicles and is now in a far better condition, which indicates that it is a well established RUPP and in our opinion suitable to be upgraded to being a BOAT. We are not aware of the suitability of Red Lane being recorded as a BOAT except to say that both of these routes are well used and are part of a network of former ancient trackways, which are logical connections to other established roads".

5.7 Winchester City Council

The Council has no information about the history and past use of the lanes.

5.8 HCC Environment Group

Reports that Roughay and Trenchers Lanes run along the boundary of Sladsford and Leybushes Copses SINC, but the Environment Group considers that they appear to be traditional lanes and have no relation to the designation. Hampshire Highways has no observations.

5.9 Area Officer - Countryside Service

Has located a works order dating from February 1992 for a sign to be erected at the southern end of Footpath 30, saying `Footpath only No Horses or Cycles'.

5.9 Notices of the application to upgrade Roughay and Trenchers Lanes were placed on site. A number of letters were sent to the Rights of Way Section in response to the notices. In general terms, these expressed local opposition to the application, from users who wish the route to remain as a safe path for walkers and riders, free from motorised traffic. These letters have been noted, but contain little in the way of evidence about the legal status of the routes.

5.10 An application to upgrade Red Lane to Byway Open to All Traffic was lodged with the County Council in September 2002, but subsequently withdrawn. A number of letters were sent to the Right of Way Section in similar terms, expressing some local opposition to the upgrading.

6. The issue to be decided

6.1 This Committee is required to decide whether or not the evidence described in this report shows that the public rights of way shown on the definitive map as Upham RUPP 27 and Footpath 30, and Owslebury Bridleway 32, and RUPPs 31, 51 and 52 ought to be there shown as highways of a different description. The Applicants allege that they ought to be shown as byways open to all traffic. It is open to members to agree with the Applicants or, taking all available evidence into account, to conclude that the map requires amendment to show them as highways of any other type.

6.2 Any changes to the definitive map must be based on evidence of the history and past use of the path(s) in question and must reflect public rights that already exist. It follows that the map must not be amended simply because such a change would be desirable, or instrumental in achieving another objective. Neither should such a change be avoided for the opposite reason. If Members are satisfied that a public right of way of a particular description exists over the claimed route and/or that any path shown on the map ought to be recorded with a different status, then a map modification order should be made.

6.3 Any public rights of way found to exist from an examination of the evidence 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, for example in this case they may show that the claimed route is a public bridleway rather than an old road for vehicles. The County Council is under a duty to record such rights as are found to exist, even if they are not the same as those 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 appropriate only if an order could otherwise properly be made and it is not a step which should be taken simply to avoid making a difficult decision. Officers do not consider that there is such a conflict of evidence in this case.

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 Rights of Way office, Mottisfont Court, as are witness evidence forms and statements. Members are urged to inspect these, or the originals, when considering this report.

Historic and documentary evidence

7.1 1625 - William Langdon's Maps of land belonging to Corpus Christi College

The original maps are believed to be held by Corpus Christi College. Photographs have been examined in Hampshire Record Office. The maps record various, fragmented parcels of land at one time owned by Corpus Christi.

7.2 One of these maps shows Upham Copse and Deep Copse and land to the west of Red Lane. Red Lane is shown as an enclosed track, from Hatchely Lane northwards to a few metres beyond the junction with Trenchers Lane. The junction between Red Lane and Trenchers Lane is shown, but the map covers only a few metres of Trenchers Lane.

7.3 Hatchley Lane is shown as an enclosed track marked `The Way from Upham'.

7.4 Roughay Lane is shown as an enclosed track, for approximately 120 metres, co-extensive with the southeastern boundary of Upham Copse, where that particular map stops. It is marked `The Way from Wood lock'.

7.5 The southern portion of Roughay Lane is shown on another map, which also shows land adjacent to Upham Street and on the north side of Popes Lane. Upham Street is marked `The way from Upham Street to Strowd Wood': Popes Lane (and Hatchely Lane) is a continuation of this road.

7.6 A third map shows Woodlocks Down. There is evidence of a track leading from the down into Widlers Lane and a gate (possibly) where Footpath 30 now enters the down, but no evidence of any track or path across the down where Footpaths 30 (Upham) and 27 (Owslebury) now are.

7.7 These maps show that Red Lane (at least from Hatchely Lane to beyond Trenchers Lane), Roughay Lane, so far as it co-extensive with Upham Copse and Hatchley Lane in its entirety were in existence as physical features by at least 1625.

7.8 The maps are not of themselves proof of the status of these tracks, but they suggest that Hatchley Lane might be public, because it is an integral part of the highway network and annotated `The way from Upham'. As far as Roughay Lane is concerned, the maps suggest, perhaps, the opposite: the track leads towards Woodlocks Down, but there is no evidence that it continues across it. and it could well have been a road for the benefit of the landowners and tenants only. There is no suggestion from this map that it served any useful purpose as a public thoroughfare. It is impossible to make any judgment from this map about the status of Red Lane or Trenchers Lane.

8 1759 - Taylor's map

8.1 This map does not show any roads or tracks in the vicinity of the claimed routes. In view of the 1625 estate map, this cannot be taken as evidence that they did not exist. It is more probable that the area was simply inadequately mapped.

9. 1779 - Perambulation of the parish of Owslebury

9.1 This document is in a private collection (that of the Mildmay Family, who owned Marwell and much of Twyford at this time). It records the boundaries of the Manor of Marwell and parish of Owslebury as it was walked in a clockwise direction by local parishioners. It makes reference to the perambulation going southwest across Woodlocks Down, to a pollard beech in a hedge, then `...straight on to Roughay Lane the ditch of which on the E side is the boundary til you come to Deeps Lane ...then west down Deeps Lane...'.

9.2 Although the perambulation makes reference to these features it does not shed any light on the status of them. It does, however, provide confirmation that what is now Hatchley Lane was then known as Deeps Lane and thus makes it easier to interpret some of the later material.

10 1792 - Milne's map

This map shows an area of land marked `Row Hay', but no roads or tracks in the area of the claimed routes.

11. 1816 - Ordnance Survey one inch map and drawing

11.1 This map reflects the greatly improved mapping techniques that were practised by the Ordnance Survey and, as a result, much more reliance can be placed on it as an accurate representation of the topographical features present at the time of the survey. The one-inch map was reduced from the original drawing at two-inches to the mile.

11.2 This map shows Roughay Lane, as an enclosed track running northeastwards from Hatchley Lane towards Woodlocks Farm where it becomes an unenclosed track continuing northeastwards to Baybridge Lane.

11.3 Trenchers Lane is shown as an unenclosed track or ride through Row Hay Woods, which connects with Red Lane at its western end, but which terminates short of Roughay Lane in the east.

11.4 Hatchley Lane is shown, connecting the road through Upham with land to the west. This map is interesting because it pre-dates the current Fishers Pond to Bishops Waltham Road (the B2177). It shows that Hatchely Lane was the road that had to be followed to go westwards from Upham.

11.5 Red Lane is shown as an enclosed track running from Hatchley Lane along the western boundary of `Row Hay Woods', then turning northwestwards towards Marwell. Before its junction with a road or track running between Marwell and Baybridge it turns north-northwestwards across an area on land that was, at the time of the map, unenclosed. That land was to be the subject of an inclosure in 1861 (see paragraph 17 below).

12. 1826 - Greenwood's map

12.1 This shows Roughay Lane as an enclosed track running from Hatchley Lane northeastwards. (The track is somewhat indistinct because it forms the boundary between the parishes of Upham and Owslebury and it is heavily overprinted by a broken line on the map) Trenchers Lane is shown, connecting Red Lane with Roughay Lane.

12.2 The key to this map indicates that the claimed routes were `cross roads'. The meaning of this expression is not entirely clear. It may have been a method of distinguishing minor cross-country roads from major arterial routes, such as turnpikes, without being specific as to the nature of the rights carried by the road in question. It is argued by the First Applicant that the expression `cross roads' means that the route in question carried vehicular rights. Even were this proposition to be correct, it cannot be assumed that all routes shown as `cross roads' on this map were of carriageway status without knowing what inquiry was made by the map maker into the status of each and every road given this designation.

13. 1833 Fishers Pond to Bishops Waltham Turnpike Road

13.1 In the 1820s there was local concern that the only route from Bishops Waltham to Winchester was too long and the gradients too steep, and there was a need for a new road. After some debate about the route, the present B2177 (Fishers Pond to Bishops Waltham road) was built as a turnpike road. For the most part it was a newly constructed road, but part of it followed the pre-existing highway, then known as Deeps Lane, which used to run from Upham to Marwell and which is visible on the Ordnance Survey Map and Greenwoods Map described at paragraphs 11 and 12 above. (What we now call Popes Lane and Hachley Lane, between Roughay Lane and the B2177 is what is left of the old Deeps Lane). Following the construction of the new turnpike road, the justices were asked to deal with the stopping up and diversion of highways made redundant by the new road. These changes are evidenced by Vestry minutes from Bishopstoke, by records of the Turnpike Trust and from entries in the Quarter Sessions Order book. A length of highway well to the west of Hatchely Lane was diverted. In the Quarter Sessions minutes it is referred to as a `highway or bridleway' along part of a lane known as Deeps Lane. Taken alone this suggests that the diverted route had only bridleway status and, by implication, perhaps, that Hatchley Lane was of the same status. However, it is somewhat remote from the claimed route and may well have had, or after the turnpike might have been considered to have had, a different status from Hatchley Lane. The diverted `highway or bridleway' is, in any event, now a public road.

13.2 These changes in the area appear not to have had any direct effect on the existence and status of Roughay Lane and Red Lane.They are important however, in understanding the pattern of the road network in the area: after the turnpike Hatchley Lane (RUPP 52) served only a very local function. Any public use of Roughay Lane, Trenchers Lane and Red Lane as highways may have suffered a similar decline.

14. 1838 Vestry Minutes for Bishopstoke and 1839 Quarter Sessions order

14.1 Matters pertaining to the repair of roads were considered by the parish vestry prior to the formation of highway boards and parish councils in the second part of the C19th. An entry in the Bishopstoke Vestry minutes records that a proposal was made to Bishopstoke parish by Owslebury about the future repair of Hatchley Lane, which formed the boundary between the two parishes one half of which, longitudinally, fell to be repaired by each parish. Using powers recently given to them by the Highways Act 1835, the parishes agreed to split the repair of the road transversely, 294 yards of the road falling to be repaired by Bishopstoke and 426 yards being the responsibility of Owslebury. The Order made by the Justices in Quarter Sessions giving effect to this agreement refers to the `...Common Highway called Hatchley Lane otherwise Roughay Lane...'. It is believed to relate to what we now know as Hatchley Lane, (which was prior to 1838 sometimes referred to as Deeps Lane), rather than to any part of the route we now describe as Roughay Lane. Hatchley Lane forms the boundary between the parishes of Owslebury and (what was then) Bishopstoke; Roughay Lane is the boundary between the parishes of Owslebury and Upham.

14.2 This evidence does not shed much light on the status of Roughay Lane, but it does suggest that Hatchley Lane was part of an all purpose highway, repairable by the inhabitants at large.

15. 1841 Upham Tithe Map and Apportionment

15.1 The tithe map for Upham shows Roughay Lane from its junction in the south with Hatchley Lane northeastwards to the parish boundary, at a point approximately 290 metres northeast of the junction with Trenchers Lane. The roads on this map are neither coloured nor numbered and there is no `Roads and Waste' section in the award.

15.2 The junction of Roughay Lane and Trenchers Lane is shown, and a small length of Trenchers Lane (enclosed, unnumbered, but of similar width to other roads on the map), with the words `from Owslebury'. This is indicative of Trenchers Lane and, by implication, Roughay Lane from Trenchers Lane southwards, being part of a public highway network, though not necessarily that they had any particular status.

16. 1841 Owslebury Tithe Map and Apportionment

Roads and tracks on this map are coloured ochre and numbered. All four claimed routes are shown coloured brown, with the exception of the very northernmost part of Red Lane, where it crosses unenclosed land. The number 853 (in the apportionment, `Roads to Upham') appears at the junction of Red Lane and Trenchers Lane, the junction of Trenchers Lane with Roughay Lane and the junction of Red Lane and Hatchley Lane. The words `to Upham' appear at the junction of Roughay Lane and Hatchley Lane, on the parish boundary where the mapping stops. This map suggests that Red, Trenchers, Roughay and Hatchley Lanes were part of a road network between Owslebury and Upham but, like the Upham tithe map, it does not, of itself, prove that they were all purpose highways. Nonetheless it suggests that they were.

17. Owslebury Inclosure Award 1861

17.1 This relatively late award carried out under the 1845 inclosure award, inclosed land at the northern end of Red Lane. The award provided for a carriageway to connect Red Lane with the Marwell - Baybridge Road and replaced a section of Red Lane that had hitherto crossed the common or waste land which was the subject of the inclosure. It was set out thus:

"... one other Public Carriage Road or highway of the width of twenty feet to be called the Red Lane Road numbered 76 on the said map commencing at a point marked C^a on the said map and extending thence in a southeastwards direction to and terminating at a point marked C^b on the same map". The map in question shows the northernmost 370 metres of Red Lane, on its current alignment.

17.2 In January 1859 the new carriageway was certified by the Justices as having been made in a substantial manner and of the width required by the Highways Act 1835. It thereby became publicly maintainable and complied with the requirements of the 1845 Act.

17.3 The remainder of Red Lane, and the other lanes claimed were unaffected by the inclosure, but the inclosure evidence does lend weight to the argument that the remainder of Red Lane was a public road.

18. circa 1870 - 1910 Ordnance Survey County Series Maps

18.1 The Ordnance Survey undertook a survey of the county in the late 1860s and subsequently produced a very detailed series of maps at a scale of 25 inches to the mile. These maps would be expected to show matters of particular relevance to rights of way, such as footpaths, gates and signposts, as well as the more significant landscape features. The first edition of this map is particularly helpful as it is accompanied by a book of reference which sets out the use to which land was put.

18.2 Roughay Lane is shown as an enclosed track as far as Woodlocks Down and Trenchers Lane is shown as an enclosed track between Red Lane and Roughay Lane. Both are referred to in the 1868 Book of Reference as 'public road'.

18.3 Red Lane and Hatchley Lane are also shown on the map as enclosed roads or tracks and each recorded in the Books Reference as `public road'.

18.4 There are no material differences in the way the lanes are shown on the second and third editions of this map, dating from the mid 1890s and from 1908 respectively.

18.5 The object name book from 1908 describes Rowhay (sic) Lane as `A lane extending N.E. from Hatchley Lane and ending W. of Bulldean Copse' (i.e. at Woodlocks Down). Red Lane and Hatchley Lanes are also named on the map and described respectively as `a lane extending from junction of roads w. of Austins Green Plantation to Hatchley Lane' and `A lane extending from junction of roads SW of Deeps Copse to junction of roads SE of Upham Copse'. In each case a local landowner is given as authority for the spelling of the names.

19. Other C19th and C20th maps

19.1 Part of Kentish's great map of Hampshire 1823

This is not a well-known map and seems to have been a trial sheet showing land around Winchester. It is not known whether maps of any other parts of the county were made. The sheet does not extend sufficiently far south to cover all of the claimed routes, but it does show the northern half of Red Lane (RUPP 51, and RUPP 52 only to the point where it enters unenclosed land on Owslebury Down), and most of Trenchers Lane (but the map ends short of its junction with Roughay Lane). Roughay Lane is shown as an enclosed lane from north of its junction with Trenchers Lane, to Woodlocks Down. No track or path is shown crossing Woodlocks Down. It shows that woodland still existed on the north side and one half of the south side of Trenchers Lane. The map is not particularly strong evidentially other than as to the existence of the lanes in question and in this respect it endorses other maps and plans of approximately the same era.

19.2 James Robbins map of 1838

In contrast, this map, at a much smaller scale, does not show Red Lane at all and does show an unenclosed track across Woodlocks Down, passing immediately adjacent to Woodlocks Farm. Like the Kentish map it covers only the northernmost part of the routes under examination. It has the same evidential value as other small-scale commercial maps, and is reasonably accurate in what it shows, but it does not show some detail which is known from other sources to have existed at the time.

19.3 Bartholomew's cycling maps

These maps are of interest because they were annotated to show different grades of highway, according to their suitability for use by cyclists. At the time these maps were made cycles were confined to using carriage roads, and so the theory is that anything shown on these maps as available for cyclists must have been regarded as public carriage roads. However, it is not known what inquiry was made before the routes were graded, and so some caution has to be exercised in interpreting them. Maps of 1911 and 1924 have been examined. Only on one map is any of the claimed routes coloured: Hatchley Lane is shown with red dots on the 1924 map as `Indifferent (passable for cyclists)' all other routes are shown uncoloured (`Inferior and not to be recommended'), with the exception of Roughay Lane, which is not shown at all. Interestingly, but probably erroneously, Trenchers Lane is shown as an enclosed track extending eastwards from the point where it joins Roughay Lane (or, rather, would have joined it, had Roughay Lane been shown) and running into Widlers Lane and then Upham.

19.4 The Second Applicant also refers to a map of 1935 (not inspected), which apparently shows these routes as `Other roads'. The key to all maps contains a separate symbol for footpath or bridleway.

19.5 The Second Applicant has provided copies of a number of maps and atlases not considered above. Individually these are of limited evidential weight. Smith's map (1804) shows only Hatchley Lane and an approximation of Red Lane; J & C Walker (1835) shows Hatchley Lane; Bacon's map (1896) show Hatchley, Roughay and Red Lanes; Philips cycling map (1925?) shows Hatchley Lane and Red Lane; Johnson's Road Atlas (1930?) shows Hatchley Lane and Red Lane; Geographica shows Hatchley Lane, Red Lane and Trenchers Lane (continuing to Widlers Lane, like Bartholomew's map).

20. Sales Particulars of Roughay Farm

20.1 1808 sales particulars list parcels of land included in the sale of Roughay Farm, but there is no map. The list of parcels does not include Red, Roughay or Trenchers Lanes, (although there is reference to a parcel of land called `Trenchers Close'). The particulars do not mention how access to the property is obtained, nor do they make any reference to public rights of way across it.

20.2 Particulars produced for a sale by auction in 1902 show Roughay Lane, from Popes Lane to Woodlocks Down, coloured brown and marked `From Upham' at its southern end. Trenchers Lane is also shown, coloured. Neither lane is included on the sale.

20.3 In contrast, sales particulars prepared in 1944 are more ambiguous: Trenchers Lane is coloured as if it were one of the parcels of land being sold, but it is not included in the list of parcels included in the lot. It is numbered 604, of which the particulars state "There is believed to be a public footpath over Trencher Lane No. 604'. Roughay, Hatchely and Red Lanes are not included in the sale.

21. Upham Parish Council Minutes

21.1 There are minutes in 1896 and 1897 showing that the Parish Council was trying to get the condition of `the road commonly known as Popes Lane leading to Deeps Cottage from Upham Farm' improved. Droxford Highway Board was contacted first, but clearly denied responsibility (which would be correct if the section of road in question was Hatchley Lane). A request was then made to Winchester District Council to repair Popes Lane. This was refused, on the basis that it was not within their jurisdiction (which would have been correct if the request had related to the section of road now known as Popes Lane, rather than Hatchley Lane). In 1904 a request was made to the Winchester County Council, which - correctly - denied responsibility because at the time the District Councils were responsible for maintenance of rural roads. This last request related to the road at the bottom of Popes Lane bordering Mr Hounsham's land on the south and Upham Copse on the north. This is believed to be Hatchley Lane.

21.2 Maps prepared under the Finance Act 1909/10

These show that Roughay Lane and Red Lane are excluded from the landholdings on either side, which suggests that they are public highways of some description. Trenchers Lane is within landholding 155, in Owslebury. The Valuation book for this heriditament shows that no deduction was claimed for public rights of way or user.

22. County Council maintenance records

22.1 In 1929 responsibility for the maintenance of rural roads was transferred from the District Councils to the County Council. Each district prepared a map showing the routes that it considered itself to be responsible for maintaining. These are known as the `handover' maps.

22.2 The Winchester District handover map is unusual in that it has a unique key as well as the standard key and generally shows fewer roads than maps prepared by other districts.

22.3 Hatchley Lane is shown on this map with a solid blue line. Both keys indicate that this was considered to be a metalled public carriageway. It also appears under the written `List of Roads' pasted onto the map as '37, Rowhay - Stroudwood'.

22.4 Red Lane has a blue dots along its part of its length (between Hatchley Lane and Bridleway 25 but also along Bridleway 25 to Greenhill), as does Roughay Lane. The unique key makes no reference to this, although the standard key indicates that this was the symbol for an unmetalled public carriage road. There is no colouring on Trenchers Lane.

22.5 The handover map for Upham district covers only Roughay Lane. This is coloured blue (i.e. shown as a metalled carriage road) to `Lights Dell', the point where the present RUPP 27 begins.

22.6 Maintenance maps of 1946 (but with later amendments) show Red Lane between Hatchley Lane and the entrance to Roughay Farm as a metalled carriage road and beyond, to the junction with Bridleway 25, as an unmetalled carriageway. Hatchley Lane is shown as an unmetalled carriage road. Roughay Lane is shown as a metalled carriageway to the old chalk pit (by what is now Sweet Briar Cottage), with the remainder, northeastwards to Woodlocks Down shown as a footpath. There is no colouring on Trenchers Lane, or that part of Red Lane which is now RUPP 31.

22.7 Hampshire Highways' List of Streets kept under s.36 Highways Act 1980 records Roughay Lane southwestwards from Lights Dell to Hatchley Lane, Hatchley Lane and Red Lane as far northeastwards as Bridleway 25 part of the U176 group of county roads. The remainder of Red Lane and Trenchers Lane are not recorded.

23. Owslebury Parish Council Minutes

In 1932 the parish council put together a list of footpaths for submission under the Rights of Way Act 1932. These included `14. Lane leading from Greenhill to Deeps Copse' (Bridleway 25 and part of Red Lane) and `15. Lane leading from Greenhill to Deeps Cottage via Sweetbriars, Popes Hole and lower end of Upham Copse'. It is not entirely clear where this runs, but it probably includes Trenchers Lane and Roughay Lane.

24. Rights of Way files and correspondence

24.1 In 1949 there was a complaint that Upham Footpath 30, across Woodlocks Down, was overgrown.

24.2 In 1958 the Southwick Estate, owners of Roughay Farm, asked Hampshire County Council for consent to the carrying out of improvements to some rights of way, including Trenchers Lane. The work was agreed, although no liability was accepted for the future repair of the routes to the improved standard. Hampshire County Council's correspondence assumes that the routes in question were `..farm accommodation ways over which the public have subsequently acquired footpath or bridleway rights.'

25. Quarter Sessions records

A search has been made of the quarter sessions indexes and no evidence has been found of an order stopping up any of the claimed routes.

26. Conclusions from the historic evidence

27. Hatchely Lane - Owslebury RUPP 52

The earliest document to show this route is the Corpus Christi Map of 1625, which describes it as `the way from Upham'. All documents showing this route suggest that it is an integral part of the highway network, probably being a more important link before the construction of the Fishers Pond to Bishops Waltham turnpike road than afterwards. The quarter sessions order for repair strongly suggests that the path was part of an all-purpose highway as does its consistent treatment within the County Council's maintenance records.

28. Red Lane - Owslebury RUPPs 31 and 51

This lane is shown in part on the Corpus Christi map of 1625, and consistently on various maps since then, only its junction with Lower Baybridge Lane varying slightly before and after inclosure. The most significant piece of evidence affecting the status of this lane is the Owslebury Inclosure Award of 1861. This sets out part of the lane (part of RUPP 31) as a public carriage road - something that would have been pointless unless the new road was part of a route that had a similar status. Read in the light of this, the tithe map and Ordnance Survey first edition Book of Reference (`public road') would appear to support vehicular status. The County Council's maintenance records are more ambiguous, but do record RUPP 51 as a maintainable carriage road, and of course approximately one half of Red Lane is currently recorded and maintained by the County Council as a metalled carriage road.

29.1 Roughay Lane - Upham RUPP 27 and Part of Footpath 30

The evidence for this route is much more ambiguous than that for Hatchley and Red Lanes. The 1625 Corpus Christi map suggests that the lane may originally have served as an access to and from Woodlocks Down - it is described as `the way from Wood Lock' (as opposed to any settlement or place of interest further afield), and the map does not suggest that any lane or track continued across the down itself. Although some later maps show a track running across the down, northwards to meet the Baybridge to Upham road (now represented by Owslebury Footpath 27), it is not depicted in the same manner as the road further south and it is not possible to tell whether this was a public carriageway or a private roadway serving Woodlocks Farm, with public footpath rights being acquired over the private roadway at some point in the past. As a whole, there is insufficient evidence from which to conclude that Roughay Lane continued as a public carriage road across Woodlocks Down.

29.2 If this approach is correct, then it begs the question, what purpose was served by the remainder of Roughay Lane, if it is indeed a public carriageway, and when and by whom was it dedicated?

29.3 The tithe map for Upham is not specific about status, whilst that of Owslebury records Roughay Lane as part of a network of `Roads from Upham'. Whilst, the expression `road', or, `roads' does not necessarily in every case mean `carriage road' or `carriage roads', that is nonetheless its usual meaning (if, in a given case, it referred to a bridle road, one would expect to see some indication in the historic record of a limited class of highway, or some evidence that vehicles were physically restricted or prevented from using the way). The notion that Roughay Lane, or part of it is a carriage road is further supported by the Ordnance Survey book of reference, which lists Roughay Lane as `public road'. In neither case does the expression `road' necessarily mean `carriage road', but that would probably be its normal meaning at this time. If these documents do have this meaning, then it pre-supposes that vehicular rights had been dedicated at some time prior to 1841.

29.4 There is evidence running counter to this. The fact that the authority recorded by the Ordnance Survey for the spelling of the name in 1906 was given by someone described as `landowner', when, had it been a public carriage road, one might have expected authority to have been given by a representative of the highway authority. This, however, is a relatively minor point. Perhaps more significant is the highways authority's own uncertainty about the status and maintenance of the lane, now recorded - from south to north respectively - as a maintained and tarmaced carriage road, as a RUPP, and as a footpath. To some extent these must reflect a pragmatic approach: the tarmac runs as far as the dwelling known as Lights Dell and RUPP status as far as another cottage called `Sweetbriar Cottage'. The standard of surface is probably related to the need for these properties to have adequate access, and the recorded status probably just reflects the quality of surface. It is difficult to rely on these documents as evidence of status.

29.5 It is not impossible to have a cul-de-sac carriage road, but there is no obvious reason why public carriageway rights should have been dedicated over only part of Roughay Lane. Given that there is insufficient evidence to prove the existence of a public carriage road northwards over Woodlocks Down, officers are of the view that, on balance, there is insufficient evidence to show that public vehicular rights were dedicated over those parts of Roughay Lane under consideration. This view may need to be reviewed if Members find that public vehicular rights exist over Trenchers Lane. In that case, Roughay Lane would not be a vehicular a cul-de-sac and a finding that public vehicular rights exist would not be an unreasonable conclusion to draw.

30.1 Trenchers Lane (Owslebury Bridleway 32)

This lane has early origins (Langdon's map of 1625). Like Roughay Lane, it is not shown on some of the early small-scale maps, but it is shown in the 1818 Ordnance Survey one-inch map, commencing at Red Lane, but terminating short of Roughay Lane. It is shown connecting with Roughay Lane on Greenwood's map of 1826 and is one of the coloured roads shown on the Owslebury tithe map as `Roads to Upham'. It is described as `public road' in the Ordnance Survey book of reference. In contrast with Roughay Lane, where the documented ownership of the lane seems to have been lost with time (often an indicator of a public highway of a high status), Trenchers Lane is registered as part of Roughay Farm. It was not always thus: the sales particulars of 1808 and 1902 do not include the track in the sale of the farm, although land on either side is included. The 1944, sales particulars however, are more ambiguous, and refer to a possible public footpath along the lane (but, of course, it was recorded on the definitive map as a bridleway just a few years later).

30.2 The Finance Act maps do not point to the existence of any public highway on the route at all. They, perhaps, pointing more strongly to their being no public carriage road than to there being no footpath or bridleway, but these records are far from conclusive on the point.

30.3 What is interesting about Trenchers Lane, is its position relative to other local features. Forming, as it does, right angled connections with Red Lane and Roughay Lane, and running over a ridge, it does not present a natural route for an ancient public highway, although we know that at least part of it existed in 1625. However, looking east and west beyond Red and Roughay Lanes, we see that Trenchers Lane is in a direct line between the village of Upham and the centre of the old Manor of Marwell, and on the same alignment as an ancient lane leading out of Upham, Widlers Lane, to which it is currently connected by a footpath. The origins of Trenchers Lane might have been as a line of communication between these two settlements, probably not a carriageway because of the ridge crossed by Trenchers Lane and the small valley immediately to the east of Roughay Lane, but perhaps a footpath or bridle path. This is far from proven, but if it were so, it would explain the origin of the lane, although not how it came to be recorded in the C19th as a `public road', or part of a network of `Roads to Upham'.

30.5 The Ordnance Survey Book of Reference and the tithe maps are both quite important pieces of evidence, and show the reputation of the lane at the time they were prepared. As a consequence, backed as they are by the sales particulars and maps showing Trenchers Lane (or at least, in any given case, parts of it) as a lane of a width capable of accommodating vehicles, they are difficult to dismiss out of hand. It is perfectly possible that public vehicular rights were acquired by user at some time prior to the C19th (a higher and drier alternative to Hatchley Lane?), although the character of the route as a carriageway may be connected in some way with the clearance of timber from Roughay Woods, which maps show to have been reduced in size between 1817 (one inch OS) and the 1860s (1st edn). In the absence of any evidence that public carriageway rights could not have been acquired over this route prior to 1841, it is not unreasonable to take these documents at face value, and conclude that by the early to mid 1800s Trenchers Lane was in use as a public road for all purposes, and this is an option open to members.

30.6 It is, however, a fine balance. Officers prefer the view that Trenchers Lane is not a public carriage road of long standing, but rather, if it was an ancient highway, then it was part of a line of communication between Upham and Marwell of footpath, or possibly bridleway status only. There is no obvious reason why public vehicular rights should have been dedicated during the C19th, although there is nothing to prevent there having been some degree of public vehicular use on the back of private vehicular use (possibly to extract timber from the adjoining land). Neither view is wholly satisfactory; either could be a reasonable conclusion to draw.

31. Modern evidence of use

31.1 If Members are not satisfied that the historic and documentary evidence proves the existence of public vehicular rights, then it is necessary to consider whether there is sufficient evidence of public use of the lanes in recent years to justify a change in status.

31.2 No evidence of public vehicular use of Red Lane and Hatchley Lane has been submitted by the Second Applicant, but evidence of use by one person has been produced by the LARA respondent in response to consultation. It is not considered that this is sufficient to warrant a change of status.

31.3 The First Applicant has produced evidence of use of Roughay Lane and Hatchley Lane by horse drawn vehicles and by horse riders.

32.1 Rights of way files

Correspondence shows that in 1969 Footpath 30 (part of Roughay Lane) was blocked by the owner of Roughay Farm. It seems that the action prevented horse riders from using the path to access Trenchers Lane, which was otherwise a dead end. Three user evidence forms were completed by riders. Officers looked into the matter and initially formed a view that Roughay Lane was an ancient highway for vehicles at least as far as the junction with Owslebury Bridleway 32, and was at the very least a bridleway continuing northwards across Woodlocks Down to the Baybridge - Upham Road. This view was disputed in 1970 by agents on behalf of Corpus Christi College, the owner of Woodlocks Down ("...our view... is that there is no Bridleway across Woodlocks Down Farm and that none has ever existed").

32.2 The correspondence shows that there was also concern at the removal of the hedge on the west side of Roughay Lane and the ploughing of the lane. In 1971 the Southwick Estate (on behalf of owners of the land to the west of Roughay Lane) complained that horses were being ridden up and down the bank between the lane and the adjoining field and cantering across the field.

32.3 A note dated 1973 and headed `Meon Riding Club' sets out `current bridleway problems'. The first of these reads

"Rowhays Lane, Upham, F.P. No. 30

Complaints about this path are received regularly. Mr Trigg disputes its use as a bridleway, and makes riding difficult by putting up `gates' which are hard to open, by pushing litter down onto the path, and by challenging riders he sees. This has now been going on for three years and we feel that an enquiry should be held soon so that he can have a fair opportunity to appeal against the Council's decision that this path is a public highway"

This note shows two things: first, that riders were using or attempting to use Footpath 30, and secondly that use was being resisted by Mr Trigg, the owner of adjoining land. The correspondence ends in 1973 without the matter having been resolved. It was, apparently, the view of at least one local parishioner (a Mr Burrows) that Roughay Lane was an ancient road.

32.4 In 1990 the status of the land was again debated, but no change was made to the definitive map. In 1993 an application was made by the North Bishops Waltham Bridleways Association to upgrade Footpaths 30 and 27 (i.e. Roughay Lane across Woodlocks Down to the Baybridge - Upham Road) to a bridleway. This was accompanied by some of the earlier (1970s) correspondence and five user evidence forms, but notices were not served in accordance with Schedule 14 Wildlife and Countryside Act and the claim did not receive priority at that time.

32.5 There is evidence that in 1998 Footpath 30 was again blocked: a letter dated 29 September 1998 from the British Horse Society to Mr Trigg complains that "horse riders can no longer get access to the bridleway [i.e. Trenchers Lane] from Roughay Lane". It seems that a barrier had been erected and padlocked across the route, with a stile to one side. There is other correspondence that suggests this barrier was erected because Mr Trigg was concerned that vehicles were using the lane. This obstruction stopped users from passing from the northern part of Roughay Lane, to the southern section and vice versa and in effect, closed the Roughay -Trenchers Lane route to riders and drivers of vehicles for a significant period, until it was re-opened to riders and drivers of horse-drawn vehicles on a `permissive' basis.

33.1 Evidence of use of Roughay Lane and Trenchers Lane by horse-drawn vehicles

The following data has been extracted from user evidence forms provided with the application to upgrade Roughay and Trenchers Lanes to byways. Unless specifically mentioned below, the user evidence forms do not disclose any challenges to use, or private or permissive use, or other facts that might indicate that use was not `as of right'.

33.2 Mr B. Brittan

Used Roughay and Trenchers Lanes between 1991 and 1998, not stated how often.

33.3 Mr K. Chester

Used Roughay and Trenchers Lanes between 1986 and 1998, 30 times a year.

33.4 Mr B. Hawkins

Used Roughay and Trenchers Lanes between 1994and 1998, 40 times a year.

33.5 Mr S. Lucas

Used Roughay and Trenchers Lanes between 1984 and 1998, 50 times a year.

33.6 Mr R. Page

Used Roughay and Trenchers Lanes between 1980 and 1998, 3 - 4 times a year.

33.7 Mr D. Pitter

Used Roughay and Trenchers Lanes between 1978 and 1998, 40 times a year.

33.8 Mrs S. Pitter

Used Roughay and Trenchers Lanes between 1978 and 1998, 40 times a year.

33.9 Mr C. Reeves

Used Roughay and Trenchers Lanes between 1979 and 1998, 45 times a year.

33.10 Mr Pitter has been interviewed. He has lived in Upham for 30 years and has been carriage driving in the area for 28 years, first driving along Roughay Lane and Trenchers Lane at that time. He went there because he knew the lanes to be rights of way, and that he would be able to get along them. He has used Roughay and Trenchers Lanes about once a week since 1978, except for a time after 1998 when the route was closed by a gate (access for carriage drivers has since been negotiated with Mr Trigg and Mr and Mrs Knight). Mr Pitter's wife would often come out with him, but she did not normally drive a separate vehicle. The bank on the west side of Roughay Lane has been pushed into the lane, and sometimes the slope has made it difficult to use, but if the surface is flat, a width of ten feet would be sufficient. Mr Pitter does not remember the route of Bridleway 32 changing, although he would sometimes drive to one side to avoid large ruts on the route. Mr Pitter knows of at least three carriage drivers who have used Roughay Lane and Bridleway 32 and who have not completed user evidence forms in support of the claim. He notes that there were very few carriage drivers when he started driving, but it is becoming an increasing popular recreation and so there are more users now than previously.

34.1 Evidence of use of Roughay Lane by horse riders

The following is a summary of use contained in the 1994 user evidence forms (these include Owslebury Footpath 27, north of the claimed route). Unless specifically mentioned below, the user evidence forms do not disclose any challenges to use, or private or permissive use, or other facts that might indicate that use was not `as of right'.

34.2 Mrs J. Pettitt

Used between 1964 and 1969, 3-4 time a year.

34.3 Mrs V. Cooper

Used between 1982 and 1994, 52 time a year. User form refers to blockages, and closure by gates and fences in 1994 and to Hampshire County Council `No horses or cycles' notice, erected in the year prior to 1994. However, we do not know where on the route these signs or gates were erected. In view of Mrs Coopers recent statement, these may have been north of the route currently claimed.

34.4 Miss B. Burnell

Used between 1973 and 1993, average 12 times a year.

34.5 Mrs B. Monckton

Used between 1980 and1985, approximately 12 times a year.

34.6 Mrs A Hopgood

Used between 1971 and 1975, 50 times a year. Stopped and turned back by a local farmer shortly before 1994, but it is not clear where. See statement below.

35.1 Summary of use by horse riders contained in the 1999 user evidence forms

These refer to use of Roughay Lane northwards to its junction with Trenchers Lane. Unless specifically mentioned below, the user evidence forms do not disclose any challenges to use, or private or permissive use, or other facts that might indicate that use was not `as of right'.

35.2 Mrs A. Blake

Used between 1975 and 1998, 20 times a year. See statement below.

35.3 Mrs R. Brittan

Used between 1985 and 1998, 52 times a year.

35.4 Miss K. Brown

Used between 1988 and 1998, 6 times a year. Refers to notices on the route, `just recently' which had disappeared by autumn 1998.

35.5 Miss B. Burnell

Used between 1973 and 1998, 12 times a year. See statement below.

35.6 L. Chapman

Used between 1993 and 1998. No indication is given how often the path was used.

35.7 Mrs V. Cooper

Used between 1978 and 1999, 52 - 104 times a year. Refers to various notices, which `keep changing', but see statement below.

35.8 Mr D. Copeland

Used between 1990 and 1998, 5 - 6 times a year. From 1994, saw a notice saying `Cyclists and walkers only'.

35.9 Mrs D. Fry

Used 52 times during 1978 and 12 times a year between 1982 and 1990 Worked for Mr Trigg in 1978.

35.10 Mrs L. Gearing

Used between 1965 and 1979, 6 - 20 times and year. See statement below.

35.11 Mr B. Hawkins

Used between 1993 and 1998, 50 times a year.

35.12 Mrs A. Hopgood

Used between 1971 and 1998, 30 - 40 times a year. Was told by a person working for a local farmer that the path was not public, but not clear when. Stopped or turned back by local farmer in approximately 2000. See, however, statement below.

35.13 Miss A. Hutchinson

Used between 1982 and 1998, 4 times a year.

35.14 Mrs J. Jenkins

Used between 1987 and 1996, several times each month. Refers to a `cyclists and walkers only' notice.

35.15 Ms S. Lucas

Used between 1984 and 2000, 20 times a year.

35.16 Mrs J. Mermod

Used between 1987 and 1998, 52 times a year.. Refers to gate blocking lane in late 1998 and at about this time unofficial notices put up by Mr Trigg, saying `Footpath'. States that in about 1987 Mrs Trigg told her that it was a bridleway and that they could use it, so use might be (but is not necessarily) permissive.

35.17 Mrs J. Pettitt

Used between 1978 and 1990, 20 times a year. Refers to a notice put up in approximately 1992, saying `Footpath only'. A five bar gate erected some months later.

35.18 Mrs C. Thompson

Used between 1989 and 1998, 20 times a year.

35.19 Mrs S. Tull

Used between 1989 and 1998, 104 times a year.

35.20 Mrs B. White

Used between 1993 and 1998, more than 52 times a year.

35.21 Statements have been taken from five witnesses, as follows

35.22 Mrs G. Blake

Mrs Blake considers that the paths around Roughay Farm provided a good evening ride from the stables in Baybridge Lane where her pony was kept. She rode out with one or two other ladies frequently down Red Lane, then left along Trenchers Lane to its junction with Roughay Lane. She recalls that, at this point, there used to be a double footpath sign pointing left and right up and down Roughay Lane, so she knew that it was only a footpath. She never felt entirely happy riding on it, preferring to ride on paths that she knew to be public bridleways, and believes that she must have been shown the ride by someone else: otherwise she would not have gone there on her own. It was well used by horses and that gave her some reassurance. Mrs Blake was never stopped when riding along Roughay Lane and did not see any notices specifically saying that it should not be used by horses. She was told by the lady who runs the stables at Marwell that the lane was blocked by a locked gate and did not attempt to ride along the lane after then. She rode along it maybe not more than once a week before it was closed.

35.23 Mrs B. Burnell

Mrs Burnell has known Roughay Lane since at least 1973. She used to ride from Colden Common towards Roughay Farm and ride the tracks around that property. Together with other riders, she used to complete a circuit by turning right from Trenchers Lane and riding down Roughay Lane and turning down the lane back towards the Bishops Waltham Road, or for a longer ride going along Roughay Lane and then on towards Upham. She did this about once in every three or four weeks throughout the period between 1973 and 1998. At first, Mrs Burnell did not realise that part of Roughay Lane was a footpath, but signs did go up saying `Footpath'. There was one at Sweet Briar Cottage, where the metalled road stops, and one at the junction between Roughay Lane and Trenchers Lane. She continued to ride the route anyway. There were never any signs saying `No horses'. She has never been questioned when using the track and never asked permission to ride along Roughay Lane, despite being acquainted with Mr Trigg. Mrs Burnell stopped using the route regularly when a locked gate was put up in about 1998. She came across it when it was locked and had to ride back the way she came.

35.24 Mrs V. Cooper

Mrs Cooper has known Roughay Lane since purchasing land in Hurst Lane Owslebury in 1982. The centre is now an activity centre offering a variety of outdoor and indoor activities, but originally it was just a riding school. She explored all the lanes in the area, but the bridleway across Mr Triggs' land (Bridleway 32) and Roughay Lane were particularly attractive because they were safe places to take riders from the school. Mrs Cooper took a group of between four and eight riders from the school there every Saturday from 1982 until the lane was closed by a gate. She also rode there on her own account, either alone or with other riders, because it provided a very useful link with other rides and circuits. She has never been challenged when using the path, or told that she should not be there. She never asked him, or anyone else, for permission to ride on the path. Mr Cooper does not remember any notices on Roughay Lane, except one referring to riders at the junction of Roughay Lane with bridleway across Mr Triggs' land, put up, she thinks, because riders were going on to the crop and it was intended to stop them cutting off the corner. It wasn't there for long and was put up a short while before the gate that stopped people from riding on the path. Mr Cooper tried to ride along Roughay Lane one day and found the route blocked by the gate. She subsequently rang Mr Trigg and was told that it was to stop four wheel drive vehicles from using the lane, but it had the effect of stopping her from using the path for about three years.

35.25 Mrs A. Hopgood

Mrs Hopgood has been riding all around the Upham and Owslebury area since about 1971. She had a breeding yard just south of Roughay and broke in horses to sell. She cannot remember how she first started using Roughay Lane, but she did use Ordnance Survey maps to find places to ride, and after a ride would mark on the map where she had been. She estimates that she has ridden along Roughay Lane about 30 times a year since 1971. The lane formed part of a number of different routes and circuits. Sometimes she rode on her own and on other occasions with other riders. Mrs Hopgood has never been stopped when using the section of Roughay Lane between the bridleway through Mr Trigg's land (Bridleway 32) and Popes Lane. and does not remember any notices, except one which said `Riders keep off the corner'. This notice went up at the junction between Roughay Lane and the bridleway through Mr Trigg's land and was intended to stop some riders from cutting the corner and riding across Mr Trigg's crops. The notice didn't last very long. She can't say exactly when it went up, but it was before the lane was closed with a gate, which she understands to be in 1998. Mrs Hopgood never asked permission of anyone to use Roughay Lane because she thought that it was public. She did know of Mr Trigg, but did not know him well enough to assume that she could use the path because of any friendship or association with him. On one occasion she did ask Mr and Mrs Knights if they had any objection to riders using Roughay Lane. This was at a time when she believed that some locals were trying to stop access for riders. They did not object. Mrs Hopgood was told by a friend about the gate which Mr Trigg put up across the lane in 1998 and was so annoyed that she went to look at it for herself. The lane was closed for a number of years before being re-opened.

35.26 Mrs L. Gearing

Mrs Gearing has known the lanes around Roughay since 1967, when she started riding with Barbara Burnell. She rode every weekend and on some evenings until 1979, using the lanes in question at least once a fortnight and on some evenings. She was familiar with Roughay Lane and always assumed that it was a bridleway because she used it for so long without any difficulty. She did not remember any signs which bothered her, nor did she encounter any obstructions on the route, such as gates or other structures. She was not approached by anyone or told that she should not ride there. There were very few riders around in those days and she was very careful and considerate when using the lanes, so as not to attract attention. The only lane that she didn't use very much was Hatchley Lane, because it was often overgrown and difficult to use. Mrs Gearing knew of Mr Trigg, but did not know him well, other than that he was an excellent horseman and used to be at hunter meets and shows. She did not ask for permission to ride on Roughay Lane and certainly wasn't given permission. She did not think that she needed anyone's consent to ride there. She has not done any riding in the area since 1979, or 1980/81 at the latest.

36. Evidence from adjoining landowners

36.1 Evidence of Mr Harry Trigg, of Roughay Farm

Mr Trigg has owned Roughay Farm since 1943/1944. He believes that bridleway rights do not exist over Roughay Lane, between its junction with Trenchers Lane and RUPP 27. He has sought to exercise control over the lane by giving riders permission to use the path, although he is unable to provide specific details and admits that no other steps have been taken to make it known to riders that the lane is not a public bridleway, relying instead on the County Council's `Footpath' or `Footpath only' signs. He states that, at first, the number of riders using the lane was not great and riders were not a problem, but by the 1990s there were becoming a nuisance, which is why he put up the field gate and stile that gave rise to the current claim.

36.2 Mr and Mrs Knights of Popes Farm, Upham

Mr and Mrs Knights own land to the east of Roughay Lane and, in the absence of a known owner of the lane, may own one half in width of the subsoil of the lane. They confirm that Roughay Lane (including RUPP 27 and Footpath 30 between RUPP 27 and Trenchers Lane) has been used regularly by riders for many years and they have no objection to this use continuing. They have not taken any steps to prevent or discourage use by riders.

37. Conclusions from the user evidence

37.1 Red and Hatchley Lanes

No real evidence of use has been provided of these lanes, but it is not considered necessary to rely on modern user, as dedication as a vehicular highway is adequately proved by the historic evidence.

37.2.1 Roughay and Trenchers Lanes

There are eight witnesses, attesting to use of Roughay and Trenchers Lanes with horse-drawn vehicles, spanning the period 1978 - 1998, before the route was obstructed. Only two witnesses claim to have driven the route in 1978, (both apparently in the same vehicle, so only once incident of use would have occurred on each occasion), three in 1979 and four in 1980. Nothing in the user forms suggests that this use was not `as of right', but it is considered that this level of use in the early part of the twenty year period is insufficient for section 31 Highways Act 1980 to operate to presume the dedication of a right of way for vehicles.

37.2.2 There is more evidence of use during the latter part of the twenty year period, and nothing to show that either landowner objected to this use. Indeed, there is evidence that Mr Trigg, as owner of Trenchers Lane and part of Roughay Lane, erected the gate on Roughay Lane in 1998 to prevent use by motorised vehicles, not by horse drawn vehicles, and his own letter to Owslebury Parish Council in 2001 indicates that he has no objection to use by horse drawn vehicles (see paragraph 5.5).

37.2.3 Officers feel that it would be inappropriate to infer a presumed dedication at common law of a right of way for all vehicles on the back on this evidence, but there is a case for saying that a dedication of a way for a limited class of vehicle - namely non-mechanically propelled vehicles - can be supported by the evidence. There is judicial authority for the proposition that a right of way for only certain types vehicles can subsist at law where there is clear evidence that the owner of the land intended to exclude certain types of traffic - as appears to be the case here (e.g. R. v. Severn and Wye Railway Company (2 B. & Ald. 646) and Marquis of Stafford v Coney ((1827) 7B & C 257), although there seem to be few recent cases on the point).

37.2.4 When the current application was made there was no power to record such rights on the definitive map (a byway being a class of highway open to all vehicles), but the Natural Environment and Rural Communities Act, which received Royal Assent on 30 April, clearly envisages that routes available to walkers, horse riders and non-mechanically propelled vehicles will be able to be recorded as restricted byways if there is evidence of dedication of a right of way for such purposes based on historic or user evidence. It is anticipated that such legislation will come into force within a matter of a few weeks (Defra says `as soon as possible after Royal Assent'). If Members are satisfied that there is sufficient evidence of use by horse drawn vehicles to support an inferred dedication at common law, it is proposed that authority be given to make an order to add a restricted byway to the definitive map as soon as legislation permits.

37.3.1 Use of Roughay Lane by horse riders

If Members are not satisfied that an order should be made to add restricted byway rights to the definitive map, as proposed by paragraph 37.2.3 above, it is necessary to consider whether bridleway rights have been acquired over part of Footpath 30, the `missing link' in the bridleway network between RUPP 27 (Roughay Lane) and Bridleway 32 (Trenchers Lane).

37.3.2 The user evidence shows that horse riders have been using Roughay Lane, between Trenchers Lane and Hatchley Lane since at least 1969, although there have been periods of interruption, most particularly when wire fences were put across Roughay Lane (Footpath 30) in 1969, and when the locked field gate and stile to the side were erected in 1998. Between these events, horse riders have used Footpath 30 (between RUPP 27 and Trenchers Lane), despite some concern that the use was not approved of by one of the adjoining landowners (Mr Trigg), who may also be the owner of one half in width of the route. There seems to have been a period of at least twenty years prior to 1998, (when the locked field gate prevented access and the rights of the riders can be said to have been called into question) when use took place that was not challenged. `Footpath only' signs (or `No cycles, no horses') referred to by some riders to are likely to have been erected by the County Council, although Mr Trigg has a vague memory of erecting a similar sign at Sweet Briar Cottage. They did not, of themselves, stop riders from using the path. There is no other contemporary evidence that the landowners did not intend to dedicate the relevant part of Footpath 30 as a bridleway and, indeed, Mr and Mrs Knights specifically say that they did not stop riders, and Mr Trigg says that he did not make a point of stopping them. There is other evidence, such as Mr Trigg's letter to Owslebury Parish Council dated 20th June 2001, in which he says `...we have always welcomed Horses and Horsedrawn vehicles, along the side of the field. In my opinion a Bridle Way to include Horse drawn Vehicles would be acceptable but not motorised traffic', which supports this view.

37.3.3 It is considered that this amount of use, in the absence of challenge between the years 1978 an 1998 is sufficient to give rise to a presumed dedication of bridleway rights under s.31 Highways Act 1980.

38. Width of the highway

38.1 Widths are given in the existing definitive statements for all paths.

38.2 RUPP 51 (part of Red Lane) is described as a ten feet wide track between hedge and bank 30 feet apart. It is considered that the highway extends for the full 30 feet, and that no variation is needed to the width recorded on the existing definitive statement.

38.3 RUPP 31 (part of Red Lane) is described as a nine feet wide track enclosed approximately 20 feet. No variation is proposed to this width.

38.4 RUPP 52 (Hatchley Lane) is described as 8 feet wide, between hedge and wood. Historically, the lane appears to have been wider than 8 feet, and it is thought that the `wood' referred to in the statement is a length of overgrown verge. It is proposed that a width of between 8 and 12 metres should be recorded in the statement, that being the variation in width of the lane, scaled off the Ordnance Survey first edition County Series.

38.5 Footpath 30 (Roughay Lane) is recorded in the existing definitive statement as ten feet wide. There is no evidence on which to justify a departure from this width, if it is proposed to upgrade it to bridleway on the basis of recent use by horse drawn vehicles or horse riders. Historically, its width was undoubtedly wider - between 8 and 10 metres.

38.6 Reference has been made in paragraph 3.2.3 to the fact that the alignment of the eastern end of Trenchers Lane has moved slightly from its historic line, probably due to the land being ploughed and the line of the bridleway being reinstated in a slightly different position. This appears to have happened between 1971 and 1984. No users mention a change in the route that they followed when using Trenchers Lane, from which one can conclude either that any difference was not significant enough to have been noticed by users, or that the change took place closer to 1971 than 1984, before most of the use took place. The distinction needs to be made: if the historic alignment of Bridleway 32 was in use, then a further 30 metres or thereabouts of Footpath 30 needs to be upgraded to restricted byway, or bridleway. If the recent user relates to the recent realignment, and this is considered significant enough to constitute a separate highway, then a further 95 metres of land needs to be recorded as a restricted byway or bridleway, as the case may be, to make a connection with the historic, and definitive, line of Bridleway 32. Given that there is no evidence that Mr Trigg intended to create a separate, or new highway, it is proposed to take a pragmatic approach to the alignment of Bridleway 32, and assume that the original line has moved slightly but remains one and the same highway.

39. Copies of this report have been given to Mr Trigg and Mr and Mrs Knights and to the Applicants, but no responses have been received at the date of preparation of this report.

40. Conclusions

40.1 RUPPs 51 and 31 (part of Red Lane) and RUPP 52 (Hatchley Lane) ought to be recorded on the definitive map as byways open to all traffic, as the historic evidence shows that they were old, all-purpose highways and there is no evidence that they have subsequently been stopped up.

40.2 There is evidence which supports the view that Roughay and Trenchers Lanes (RUPP 27 and part of Footpath 30 and Bridleway 32) were considered in the C19th to be public roads, but there are also indications to the contrary. Members might reasonably take either view. Officers are recommending that the claim for byway is refused, largely because the two routes do not appear to have ancient origins as vehicular highways, and there is no direct evidence of why they should have been dedicated as such in the C19th, given that, even at that time, the evidence is not clear cut.

40.3 User evidence of Roughay Lane and Trenchers Lane by horse drawn vehicles has been provided, but it is considered that there are insufficient users of the route in the early part of the requisite twenty year period to support a presumed dedication under s.31 Highways Act 1980. However, it might reasonably be concluded that there has been a dedication of horse drawn vehicular rights at common law, based on a period of use of less than twenty years, coupled with the express statement of the owner of Bridleway 32 and part of Footpath No. 30, that he did no object to horse drawn vehicles, and even welcomed them.

40.4.1 If that is agreed, then it is unnecessary to consider whether there has been a dedication of bridleway rights over that part of Footpath 30 which links RUPP 27 with Trenchers Lane, because restricted byway rights include the a right of passage for horse riders. If not, then it is necessary to look at the evidence of use by horse riders.

40.4.2 It would be reasonable to conclude that there has been a presumed dedication of bridleway rights over part of Footpath 30 (between RUPP 27 and Trenchers Lane) under S.31 Highways Act 1980 during the twenty years prior to the erection of a locked gate and stile across the path in 1998.

RECOMMENDATIONS

1. That claim No. 697, to upgrade part of Upham Footpath No. 30 (Roughay Lane) and Owslebury Bridleway No. 32 (Trenchers Lane) be refused.

2. That claim No. 866, to upgrade Owslebury RUPP 51 (part of Red Lane) to byway be accepted.

3. That claim No. 864, to upgrade Owslebury RUPP 31 (part of Red Lane) to byway be accepted.

4. That claim No. 867, to upgrade Owslebury RUPP No. 52 (Hatchley Lane) to byway be accepted.

5 That as soon as such power is available, an order be made to upgrade part of Upham Footpath No. 30 (i.e. that part between RUPP 27 and its junction with Owslebury Bridleway No. 32) and Owslebury Bridleway No. 32 to restricted byway, or, in the alternative, that an order be made to upgrade part of Upham Footpath No. 30 (part of Roughay Lane, between RUPP No. 27 and Trenchers Lane) to bridleway.

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 CR697 - Rights of Way Office, Mottisfont Court, Winchester, including copies of some of the documents referred to above the originals of which can be inspected in Hampshire Record Office.

File CR866/864/867- Rights of Way Office, Mottisfont Court, Winchester, including copies of some of the documents referred to above the originals of which can be inspected in Hampshire Record Office.

19/04/2006