Hampshire County Council

Regulatory Committee Item

19 July 2006

Application for a Map Modification Order to record a bridleway from Hart Hill to New Road in Hythe and Dibden and Fawley Parishes

Report of the Director of Recreation & Heritage

Contact: Colin Piper Ext. 6043 [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 rescind their decision of 7 September 2005, to record a lane as a Byway Open to All Traffic, and instead approve the making of a Map Modification Order to record restricted byway rights over a slightly shorter length of the lane. This alteration, to the status and length of the lane, has been brought about by the provisions of the Natural Environment and Rural Communities Act which came into effect on 2 May 2006.

2. Background

2.1 In 2000 Fawley Parish Council made an application for a Map Modification Order to record public bridleway rights over a lane known as Hart Hill, on the boundary between Fawley and Hythe and Dibden Parishes. An investigation of old maps, and other documents, revealed that there was substantial evidence that the lane was once an all-purpose public highway. At its meeting on 7 September 2005 the Regulatory Committee resolved to make an Order to record the route between points A-B-C, as shown on the attached map, as a Byway Open to All Traffic.

2.2 The Map Modification Order was made by the County Council on 17 January 2006. The advertisement of this order attracted two objections from the public which means that the Council has been unable to confirm the Order and therefore the definitive map still shows the route as a footpath. Normally these objections would be dealt with by a public inquiry or hearing but, on 2 May 2006, the Natural Environment and Rural Communities Act came into force which effects public rights on this route.

2.3 Those sections of the Act that relate to rights of way are intended (in broad terms) to extinguish public rights of way for mechanically propelled vehicles over green lanes, such as the subject lane at Hart 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 exemptions contained in sub-sections 67(2) and (3). These sub-sections are set out above and at paragraph 3 below.

2.4 If the route at Hart Hill does not fall within one of the exemptions, 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 a right of way for walkers, cyclists, horse riders and horse drawn vehicles.

2.5 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 exemptions applies before it is possible to say that motorised vehicular rights have, in fact, been stopped up. Some of the exemptions 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 exemptions 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 exemptions, the burden of proof should lie with the person seeking to show that mechanically propelled vehicular rights still subsisted, but it is not clear whether this applies to all exemptions.

2.6 One of the objections to the Map Modification Order concerned the status of the section of road, between points A-B. The objector contended that that part of the route was a publicly maintainable, surfaced, highway and should therefore not be part of the Order. Hampshire Highways have confirmed that their records show the publicly maintainable road terminating at point A but, given the character and use of the section between A and B, they are considering formally adopting it so as to include that part on the List of Streets.

3. Exemptions

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

Section 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.

The section A-B has a sealed surface and is a continuation of the maintainable public road, giving access to the public house car park and four properties to the south. For this portion it is likely that the main lawful use by the public, over the last five years, has been in mechanically propelled vehicles. The section of Hart Hill between points B-C has an earth/gravel surface and been used extensively by walkers, cyclists and horse riders over the past five years. There is no evidence that there has been any use by vehicles other than those accessing the four dwellings to the north. The balance of user is firmly in favour of non-motorised 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).

The northern end of Hart Hill is recorded on the List of Streets (Chalist) as an unclassified county road. However, this terminates at point A on the attached map and the rest of the lane going south to New Road is not similarly designated.

(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 the officer's investigation that the claimed route was expressly dedicated as a 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.

Although section A-B has been constructed to the standard of a public road it is not known if this was done by a lawful authority using its statutory powers. Section B-C 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 no evidence of use by mechanically propelled vehicles before 1930. The 1929 Handover Map described the route as a "footpath" therefore it is likely that the route was no longer being used by vehicles at that date.

Section 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.

An application was made before 20 January 2005, but that application was for bridleway rights only.

(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.

The council considered the application before 2 May 2006, but the application was not for a byway open to all traffic.

(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.

The application was made by a parish council and not by a person with an interest in the land and, in any event, it was for bridleway not byway open to all traffic.

4. Consultations

The district council, both parish councils, both local members and the residents who live along the lane have been consulted. At the time of writing the only response is from Mr Cox who has written on behalf of the residents to say:

"All the residents consider this a very satisfactory solution to the problem, which will help to retain the character of the lane."

5. Conclusions

5.1 The historic evidence previously presented to this committee demonstrated that, on a balance of probability, the track or lane between points A-B-C was a public highway for all purposes.

5.2 Full public highway rights over the section of lane between points A-B are not extinguished because the main lawful use of this portion, over the last five years, has probably been by mechanically propelled vehicles.

5.3 However, this does not mean that section A-B should be recorded as a Byway Open to All Traffic because a BOAT is a carriageway which is used mainly by walkers, cyclists and horse riders. The section A-B is probably a public road but not necessarily publicly maintainable.

5.4 For the section B-C, mechanically propelled vehicular rights were extinguished by the Natural Environment and Rural Communities Act of 2006. This leaves public rights on foot, bicycle, horse back and with horse-drawn vehicles. Therefore, this part of the route should be recorded as a Restricted Byway.

RECOMMENDATIONS

1) That the Regulatory Committee's resolution of 7 September 2005, to make an Order to record a Byway Open to All Traffic, between points A, B and C, as shown on the map attached to this report, be rescinded.

2) That a Definitive Map Modification Order be made to add a Restricted Byway from Hart Hill to New Road, as shown between points B and C on the map attached to this report.

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 CR478 - Rights of Way Office, Mottisfont Court, Winchester