Hampshire County Council

Regulatory Committee Item

19 July 2006

Application for a Map Modification Order to record a bridleway from Frenche's Lodge, Little London to Stoke Hill, Stoke in the Parishes of Smannell and St. Mary Bourne

Report of the Director of Recreation & Heritage

Contact: Alex Lewis, Ext: 6044 [email protected]

NATURAL ENVIRONMENT AND RURAL COMMUNITIES ACT 2006

67. Ending of certain existing unrecorded public rights of way

(1) An existing public right of way for mechanically propelled vehicles is extinguished if it is over a way which, immediately before commencement -

(a) was not shown in a definitive map and statement, or

(b) was shown in a definitive map and statement only as a footpath, bridleway or restricted byway.

But this is subject to subsections (2) to (8)

(2) Subsection (1) does not apply to an existing public right of way if -

(a) it is over a way whose main lawful use by the public during the period of 5 years ending with commencement was use for mechanically propelled vehicles,

(b) immediately before commencement it was not shown in a definitive map and statement but was shown in a list required to be kept under section 36(6) of the Highways Act 1980 (c.66) (list of highways maintainable at public expense),

(c) it was created (by an enactment or instrument or otherwise) on terms that expressly provide for it to be a right of way for mechanically propelled vehicles,

(d) it was created by the construction, in exercise of powers conferred by virtue of any enactment, of a road intended to be used by such vehicles, or

(e) it was created by virtue of use by such vehicles during a period ending before 1^st December 1930.

(3) Subsection (1) does not apply to an existing public right of way over a way if -

(a) before the relevant date, an application was made under section 53(5) of the Wildlife and Countryside Act 1981 for an order making modifications to the definitive map and statement so as to show the way as a byway open to all traffic,

(b) before commencement, the surveying authority has made a determination under paragraph 3 of Schedule 14 to the 1981 Act in respect of such an application, or

(c) before commencement, a person with an interest in land has made such an application and, immediately before commencement, use of the way for mechanically propelled vehicles

(i) was reasonably necessary to enable that person to obtain access to the land, or

(ii) would have been reasonably necessary to enable that person to obtain access to a part of that land if he had had an interest in that part only.

(4) "The relevant date" means -

(a) in relation to England, 20^th January 2005

1. Summary

1.1 Members are asked to review their decision of 20 July 2005, to record as a byway open to all traffic a track between Frenche's Lodge, Little London and Stoke Hill, Stoke, in the parishes of Smannell and St. Mary Bourne. Historic and documentary evidence indicated that public vehicular rights existed over the route but, since the decision, the Natural Environment and Rural Communities Act of 2006 has extinguished motorised vehicular rights over part of the route and it is no longer appropriate to record the whole length of the track as a byway open to all traffic. Members are asked to agree i) that their resolution of 20 July 2005, to make an Order to record a byway open to all traffic, between points A, B and C, be limited to the section B-C only and ii) that a definitive map modification order be made to add a restricted byway from Frenche's Lodge to Stoke Hill Farm, (points A - B on the attached plan), in each case the widths and limitations to remain as before.

2. Background to this report

2.1 In November 1999 Mrs M. Henstock applied to the County Council for a map modification order to add to the definitive map a bridleway between Frenche's Lodge, Little London and Stoke (A-B-C on the attached plan). An investigation of old maps, and other documents, revealed that there is persuasive evidence that the lane in question was an all-purpose public highway and, in the light of this evidence, Members agreed that an order should be made to record the lane as a byway open to all traffic. The order has not yet been made, and no byway is currently shown on the definitive map in this position.

2.2 The Natural Environment and Rural Communities Act 2006 received Royal Assent on 30 March 2006 and certain sections of the Act relevant to rights of way came into force on 2 May. These sections are intended (in broad terms) to extinguish public rights of way for mechanically propelled vehicles over green lanes, such as the subject lane between Frenche's Lodge and Stoke Hill. The Act is the Government's response to public concern about the use of motorised vehicles in the countryside, but achieves its objective in a very unusual and wide-sweeping way: by extinguishing public rights of way for mechanically propelled vehicles over all ways which are not shown on the definitive map as byways open to all traffic, unless the way in question falls within one of a number of exceptions contained in sub-sections 67(2) and (3). These sub-sections are set out above and at paragraph 3 below.

2.3 If the route between Frenche's Lodge and Stoke Hill does not fall within one of the exceptions, it is inappropriate to record the way as a byway open to all traffic, because, on 2 May 2006, the public lost any right it may have had to use the lane with motor vehicles. Instead, the way should be recorded as a restricted byway, which is open to walkers, horse riders and non-mechanically propelled vehicles (including cycles and horse drawn vehicles).

2.4 Unfortunately, because of the way the new Act is drafted, it is necessary to consider whether there is evidence to show that any one of the exceptions applies before it is possible to say that motorised vehicular rights have, in fact, been stopped up. Some of the exceptions are relatively easy to prove or disprove, but others are much more difficult, and it is not explicit in the Act who has the burden of proving that one of the exceptions applies (or indeed, what authority is qualified to determine such issues). In debate, it was clearly intended that, in respect of at least one of the exceptions, the burden of proof should lie with the person seeking to show that mechanically propelled vehicular rights still subsisted. It is not clear from the Act itself whether this applies to all exceptions, although Defra's guidance is that it does.

3. The exceptions

3.1 The eight possible exceptions are repeated again below, together with officers comments about the applicability of the exemption to the claimed route.

s.67(2)

(a) it is over a way whose main lawful use by the public during the period of 5 years ending with commencement was use for mechanically propelled vehicles .

There is no evidence that the claimed route has been in use by the public in motor vehicles. Farm traffic uses the section southwards from Stoke Hill to the track to Frenche's Farm, but evidence suggests that in recent years the track from there southwards has often been impassable to pedestrians and riders, let alone any other types of traffic.

(b) immediately before commencement it was not shown in a definitive map and statement but was shown in a list required to be kept under section 36(6) of the Highways Act 1980 (c.66) (list of highways maintainable at public expense).

This exception applies to the section of the claimed route between B and C. This part of the claimed route is not shown on the definitive map, but is recorded as an unclassified county road on the List of Streets (part of the U5 group of roads). Motorised vehicular rights are therefore not extinguished over this section of the claimed route. The remaining exemptions will be considered in respect of A - B only.

(c) it was created (by an enactment or instrument or otherwise) on terms that expressly provide for it to be a right of way for mechanically propelled vehicles.

No evidence was discovered during officers' investigations that the claimed route came into being as a result of an express dedication or by statute.

(d) it was created by the construction, in exercise of powers conferred by virtue of any enactment, of a road intended to be used by such vehicles.

The claimed track (A-B) has never been constructed as a road for motorised vehicles. It remains an unsurfaced green lane.

(e) it was created by virtue of use by such vehicles during a period ending before 1^st December 1930.

There is evidence that the claimed route existed before mechanically propelled vehicles became commonplace, so it cannot be said that the public vehicular right of way was created as a result of use by such vehicles. It is more likely than not to have been created as a result of use by horse-drawn vehicles.

s.67(3)

(a) before the relevant date, an application was made under section 53(5) of the Wildlife and Countryside Act 1981 for an order making modifications to the definitive map and statement so as to show the way as a byway open to all traffic.

This does not apply, to the present claim as it was a claim to add a bridleway, not a byway open to all traffic.

(b) before commencement, the surveying authority has made a determination under paragraph 3 of Schedule 14 to the 1981 Act in respect of such an application

This does not apply, for the same reasons.

(c) before commencement, a person with an interest in land has made such an application and, immediately before commencement, use of the way for mechanically propelled vehicles -

(i) was reasonably necessary to enable that person to obtain access to the land, or

(ii) would have been reasonably necessary to enable that person to obtain access to a part of that land if he had had an interest in that part only.

Hampshire county Council has received no such applications.

4. Conclusions

4.1 The historic evidence previously presented to the Regulatory Committee demonstrated that, on a balance of probability, the track or lane between points A-B-C was a highway for all purposes. The mechanically-propelled vehicular element of those rights, between points A-B, was extinguished by the Natural Environment and Rural Communities Act on 2 May 2006. This leaves public rights of way on foot, bicycle, horseback and with non-mechanically propelled vehicles between those points. Therefore, this part of the route should be recorded as a restricted byway.

4.2 Full public vehicular rights over the section of lane between points B-C are not extinguished, because that part of the route is not shown on the definitive map but is shown on the List of Streets, bringing it within the exception provided by s.67(2)(b) of the Act.

RECOMMENDATION

1) That the Regulatory Committee's resolution of 20 July 2005, to make an Order to record a byway open to all traffic, between points A, B and C, be limited to the section B-C only and

2) that a definitive map modification order be made to add a restricted byway from Frenche's Lodge to Stoke Hill Farm, (points A - B on the attached plan),

in each case the widths and limitations (if any) to remain as before.

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 CR 172 - Rights of Way Office, Mottisfont Court, Winchester