Archived decisions
Hampshire County Council
Regulatory Committee Item
19 July 2006
Application for a Definitive Map Modification Order for the addition to the Definitive Map a byway open to all traffic at Upper Mill, in the parish of Longparish
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 -
(b) the expiration, in relation to any way in the area to which the map relates, of any period such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path;
(c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows:-
(i) that a right of way 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
1. Summary
1.1 This item considers an application to add to the definitive map a byway open to all traffic crossing the River Test at Upper Mill, East Aston, Longparish. The application is based on documentary evidence.
1.2 The claim is recommended for refusal, there being insufficient evidence of dedication and acceptance of the rights claimed.
2. Description of the claimed path
2.1 The claimed byway is shown by a broken black line between points A - B - C on the attached plan and referred to in this report as `the claimed byway'. The present U54 roadway through the former mill yard and across the mill bridge is shown by a solid grey line.
2.2 The claimed byway runs from this road point A southwestwards for approximately 40 metres through woodland, across the River Test by way of a ford (point B) and then southeastwards along the banks of the Test for approximately 42 metres to join the U54, immediately south of the mill bridge (point C).
2.3 There is little or no sign of the claimed byway north of the river, although there is a low boundary feature which may have delineated one boundary of it and there are photographs which show that it was once a more distinct feature than it is now. The route is not obstructed by any major vegetation within the woodland. There is no sign of the ford crossing (but see paragraph 9.2). On the south of the river the claimed byway runs along a narrow path between the edge of the river and a sparse hedge, which path is also the route of Longparish Footpath 11. The route is separated from the mill access road, at point A, by a temporary wire fence and there is a field gate at its southeastern end (point C), with a pedestrian gap at the side.
3. The Applicant and the Application
3.1 The Applicant is Mr Alan High of Charlton, Andover. The application was made in November 2001 and claims the addition to the definitive map of a byway open to all traffic `North of the River Test - through a river crossing/ford to south of the river, then to side of Upper Mill Bridge'.
3.2 The application was prompted by the erection in 1997 of a private steel bridge over land alleged by the Applicant to be a public road and ford, and the failure of the landowner to reinstate the crossing after the removal of the bridge in 2000 (and the failure of the local authorities to insist on its reinstatement). The County Surveyor has already considered and rejected a similar application to have the ford reinstated, on the grounds that `there is not enough evidence to require the Council to reinstate the road and ford'. This is a further application to have the track and ford recognised as a public highway, and relies on the same evidence.
4. The Landowner
4.1 The owner of the land affected by the claims is Mrs L. Barron, of Upper Mill, Longparish. Mrs Barron opposes the application and has provided some evidence against the claim which is considered within paragraph 8.11 below.
5. Consultation
5.1 Letters of consultation have been sent to Test Valley Borough Council, Longparish Parish Council, Open Spaces Society, The Ramblers' Association, British Horse Society, British Driving Society, Cyclists Touring Club, LARA, Trail Riders Fellowship, Environment Group (Hampshire County Council) and The Environment Agency. The local member, Cllr Woodhall has been informed.
5.2 The Open Spaces Society supports the application. It has not offered any additional evidence.
5.3 LARA supports the application, and notes that a County Surveyor's map of 1986 shows the U54 crossing the river downstream of the Mill, and not on the mill bridge.
5.4 Test Valley Borough Council is unable to provide any information about the claim, and its representative claims no knowledge of a bridge in the claimed location for the last 15 years at least.
5.5 The Trail Riders Fellowship supports the application, because its records show that there are no rights, or ambiguous rights across the mill bridge.
5.6 The Cyclists Touring Club has responded that its members have used the bridge in front of the mill to cross the river for decades. It has no comments on the claimed byway and ford crossing, but would wish to comment should the road over the mill bridge be found not to be public.
5.7 The Environment Agency has no knowledge of a vehicular crossing at the claimed ford and notes that the reinstatement of the crossing would need consent under s.109 Water Resources Act 1991.
5.8 Longparish Parish Council refers to evidence produced when the matter was considered by the County Surveyor in 1991. At that time, the parish referred the County Surveyor to Mr Dawnay (see paragraph 9), and to a Mrs Darrah, a parish councillor who has lived in a property directly opposite the mill since 1959 and who has no recollection of there having been a public right of way during her time in the village. In a letter of 24 May 2001, the Parish Council states that "...Councillors who have been residents of Longparish for the past thirty years have no recollection of the ford having been a right of way during that period , and have, therefore, no memory of any such right of way formally having been closed".
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 a highway subsists, or is reasonably alleged to subsist, across the River Test, on the claimed route, downstream from Upper Mill, Longparish.
6.2 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. The present case relies very much on documentary evidence and, although there are inconsistencies in the evidence, officers do not consider that there is such a conflict of evidence in this case.
6.3 The originals of some documents are in Hampshire Record Office, but copies of most maps and extracts of documents can be inspected in the Rights of Way office, Mottisfont Court. Members are urged to inspect these, or the originals, when considering this report.
7. The evidence submitted by the Applicant
7.1 It is the Applicant's case that the mill road (now recorded as a county unclassified road) was originally a private access to the Mill and that the public crossed the river slightly further downstream on the claimed byway and ford. When the mill stopped working, the public started to use the mill road in preference to the claimed byway. In 1996 a private bridge was erected by the owner of the mill on the site of the former ford crossing, which necessitated a retrospective application for planning consent. This was granted temporarily, pending repairs to the original mill bridge. When the new bridge was removed in 2000 the original access track and ford were closed by gates.
7.2 In support of the application the Applicant has produced the following documents, which for ease of reference have been divided into groups:
7.2.1 Ordnance Survey Maps
An extract from the 1871-3 County Series map (1:10,560, enlarged), (partially coloured)
An extract from the 1872-3 County Series Map (1:2500) (partially coloured)
An extract from the 1910 County Series Map (1:2500) (partially coloured)
An extract from a map of 1961 (presumed 1:10,560 but enlarged)
7.2.2 Hampshire County Council Maps
An extract from the 1957 definitive map, (partially coloured)
An extract from the definitive map1.
7.2.3 Extracts from Andover Advertiser dated
29 July 1994
24 November 1995
22 December 1995
10 May 1996
27 June 1997 (planning notices)
29 August 1997
7.2.4 Documents relating to an application for planning permission to build the `new' bridge on the site of the alleged ford:
Letter R P Dawnay to Test Valley Planning Department 12.6.97
Planning Application for erection of new steel bridge 16.6.97
Letter in support of retrospective planning permission for the bridge, Hallsworth Farming Limited to Hampshire County Council 16.6.97
Copy planning consent 26.8.97
Letters from Mr A. High (i) to Hampshire County Council Rights of Way Office 30.7.97, (ii) to Test Valley Design and Conservation Manager 27.1.01 and (iii) to County Surveyor 22.8.01
7.2.5 Letters
Letter Hampshire County Council Rights of Way Office to Test Valley Planning Department 12.9.97
Letter Test Valley Planning Department to Mr A. High 23.8.01
Letter County Surveyor to R Dawnay 17.2.00
Letter Chief Executive Hampshire County Council to Mr A. High 1.10.97
7.2.6 Photographs
A barrier across the track south of the claimed ford
The barrier now erected across the track north of the claimed ford
Mill bridge, viewed from the ford
A notice, claimed to have been erected at the Mill, saying `This bridge is for light vehicles only not exceeding 50 cwts?[illegible] loaded. By order'.
7.2.7 Extract from Longparish Village Handbook dated April 1999
7.2.8 An extract from the Longparish tithe map of 1841.
7.3 The Applicant also refers to, but has not provided copies of, the 1929 `Handover' map and 1946 County Surveyor's map, and minutes of the Longparish Council Minute Book.
7.4 Not all of these documents provide direct evidence of the status of the claimed byway. The most relevant are the Ordnance Survey maps and County Council's highway and rights of way records, which are considered along with other relevant evidence below. The correspondence concerning the erection of the private bridge in the 1990s is not strictly relevant in determining whether there was a pre-existing public crossing, although it is of interest that, in his application for retrospective planning consent for the erection of the private bridge, the landowner, Mr Rupert Dawnay, referred to the site as `old track to public ford'. In a recent e-mail to the current owners of the Mill, however, Mr Dawnay denies that there was a public ford as claimed, explaining that he referred to it because he thought that `the application would sound better with the environment authority'. However, see Mr Dawnay's comments at paragraph 9 below.
7.5 Those documents which shed light on the status of the claimed byway are referred to in paragraph 8. All documents have been considered and taken into account in the recommendation proposed in this report.
8. Historic and Documentary Evidence
8.1 Early small scale maps
8.1.1 Taylor's map (1759) identifies Upper Mill, but does not show a ford crossing, or track on the south side of the river. It does, however, show a river crossing near Lower Mill, which is located further downstream in the parish. The implication from this is that, had there been a crossing at Upper Mill it, too, would have been shown.
8.1.2 Milne's map (1791) also shows a river crossing near Lower Mill. Near Upper Mill are the words `Up Mill', but the map does not show the Upper Mill buildings or the claimed byway and ford, or tracks leading to it on either side of the river.
8.1.3 The Ordnance Survey one inch map (published 1818 but surveyed in 1808) shows the mill buildings and a gated yard or roadway leading from the north to the mill. The appears to be no river crossing at the mill and no roadway on the south side of the river.
8.1.4 Greenwood's map (1826) does not show a river crossing at Upper Mill, nor does it show any track or roadway leading south from the mill.
8.2 Longparish tithe map (1841)
8.2.1 This map is on a much larger scale than the early commercial maps and not immediately easy to reconcile with the earlier maps. Part of the reason for this is that there is a large mill pond to the south of the mill, and some nearby fields have a different profile. However, this map clearly shows i) that the road to the mill is gated, ii) there is access to the river from the north on, or roughly on the line of the claimed byway, adjacent to a property on the north bank of the river (and apparently not subject to tithes) and iii) there is no road or trackway to the south of the river and mill, which would have been necessary had there been a public ford crossing here. This map supports the view that there was access to the river at the point of the alleged ford, but not that it was a public access, nor that there was a river crossing at this point.
8.3 Ordnance Survey County Series maps
8.3.1 The first edition 1:2,500 map, published in approximately 1870, shows a road or track leading south from the village road (now the B3048), and then turning southeastwards on the line of the claimed byway, to the edge of the river. The feature is numbered 162, which is described in the Book of Reference as `Road'. This supports the claimant's view that there was once a track or roadway in the position of the claimed byway. Contiguous with the boundaries of the road are two lines drawn across the river, but it is not clear what these lines are intended to represent. They could be intended to show that there was a ford crossing at this point, but there is no annotation to indicate this (in contrast to the position slightly further downstream, where the words `Ford' appear near the ford at Lower Mill). The mill yard and bridge are shown, but gated at the junction with the claimed byway.
8.3.2 There is a track following the south bank of the river at this point. It leads northwestwards into some fields, and southwestwards to the mill bridge and onwards, on the line of the present U54.
8.3.3 There are a number of significant differences between this map and the tithe map prepared some twenty five years or so earlier. The large mill pond shown on the tithe map has disappeared, there are a number of new water channels (presumably new and alternative ways of managing the flow of water to the mill) and track to the south of the river, which is now the U54 is shown for the first time. It is braced with adjoining land and described in the Book of Reference as `marsh' and `acre, yard etc.' respectively, which suggests that it was not then regarded as a public road.
8.3.4 Some editions of the county series map were coloured, for aesthetic reasons, (buildings ochre or red, water blue, roadways brown). On the version inspected, the claimed byway and track to the south of the river are coloured brown, but the track to the mill and the mill bridge are not. Private yards and drives were sometimes coloured, so colouring should not be taken as evidence of the status of a route, rather more a comment on the nature of the surface of the feature in question. However, it may be appropriate to draw some inferences from the fact that some difference was being drawn between the two.
8.3.5 This map supports the view that there could have been a river crossing at the point of the claimed ford, although it is not an inevitable conclusion (n.b. the absence of the proper annotation) and there is nothing on this map to say that it was a public road and ford.
8.3.6 Later editions of this map (circa 1895 and 1909) show a similar picture, with a mill yard (although not always gated), a track to the river on the line of the claimed byway, no obvious river crossing (although nothing to suggest that such a crossing was impossible), and a track to the south of the river leading to what is now the U54. There are some difficulties in interpreting these maps, because the mill and claimed byway and ford are at the junction of four separate map sheets, each sheet not necessarily surveyed and revised at the same time. The configuration of the parcels, and their numbers, change from one edition to the next. For example, north of the river, on the 1895 and 1909 maps the claimed byway, the mill yard and the land between are treated as one parcel, as opposed to two on the first edition. By the third (1909) edition the roadway to the south of the river (the U54) is treated as a separate parcel from the land through which is passes, in contrast to the earlier editions which treated it as an integral part of the fields through which it passes. This might suggest that it had, by 1909, become a more distinct, perhaps permanent, feature. However it is not thought that any significant conclusions can be drawn from these variations alone, although they do lend weight to officers' preferred interpretation of highway minutes (paragraph 8.4 below).
8.3.7 The Applicant has provided some copies of Ordnance Survey County Series maps at the 1:10,560 scale. They are not considered to add anything, as the detail contained on them is less accurate than on the larger scale maps (1:2,500) from which they are derived, and which are considered above.
8.4 Minutes of the Andover Highway Board and Andover Rural District Council
8.4.1 Minutes of the Highway Board (1863-1894) and District Council (1894-1910, and 1919-1939) have been examined. These provide frequent references to the repair of highways and bridges in Longparish. There are five bridges near Upper Mill. There is one bridge on the road leading north from the mill, three small bridges on the road leading south of the mill, and the mill bridge itself. These minutes can, therefore, shed some light on the status of the claimed byway because, if a bridge is publicly maintainable, it is more likely than not to be on a publicly highway.
8.4.2 The most relevant entries would appear to be these:
i) In 1875 it was resolved to carry out repairs to the `Bridge at Longparish leading to Upper Mill'. This is thought to be the bridge on the road north of the mill, leading from the B3048 village road and indicates that the road may have been regarded as publicly maintainable in 1875.
ii) A series of entries in 1881suggest that the mill bridge itself needed repair, but that there was some doubt amongst members of the Highway Board whether it was a public bridge. Mr Hawker, the owner of the mill was asked to give a right of way through his property. He agreed on condition that the Board erect bridges over the river, but the Board declined his terms.
iii) In 1896 attention was drawn to `the dangerous state of the Bridge near Mr Magwick's Mill2 near Longparish', but that it was thought to be private. representatives were sent to the Landowner to see if he would agree to its being made public. Minutes record that the owner, once again, `expressed his willingness to give up the road leading to Longparish Mill on condition that the Council undertake the building and repairing the Bridges on that road'. The Assistant Surveyor was directed by the Council to `do all necessary repairs that were now required'. There was debate later in the year about the repairs. Adjoining owners were written to, to see if they would provide timber for rebuilding.
This entry is believed to refer to the road leading south from the mill, now part of the U54, and suggests that the road south of the mill became a public road as part of an agreement in 1896, in consideration of which the District Council maintained the bridges on that road.
iv) In 1897 the Parish Council complained that `the highway on front of Mr Madgwick's Mill has been stopped as a public highway' and the Council were ask to attend to it. A committee was formed to look into the Longparish Bridges. The committee recommended the repair of old bridges and that `a quit rent of 20/- be offered for the use for the Bridge over the Mill rail, the landlord keeping it in repair'. The minutes then record that `If this is not agreed to the ford below the mill should be rendered fit for use'. In a later minute, in which the bridges south of the mill are being discussed, reference is made to the bridges having been `adopted at a previous meeting' (presumably that referred to at iii) above). The landowner's solicitors agreed to the payment of a quit rent of £2.10.0 for use of the mill bridge, subject to certain conditions about it not being used by livestock. It is not clear whether this condition was agreed to in its entirety, but there are later references to payment of the quit rent, so presumably an agreement was reached.
This series of minutes would suggest that, in 1897 the mill bridge itself was regarded as private, and that a payment was made to the owner so that it could be used by the public. It is the only documented reference to a ford downstream of Upper Mill, but the ford would not appear to have been unfit for use at that time.
v) In 1898 the three timber bridges south of Upper Mill were repaired and in 1910 they were replaced with steel and concrete structures. The landowner agreed to contribute to the cost. At the same time (1910), the payment of £2.10.0 for use of the Mill Bridge was continued.
This is confirmation that the roadway south of the mill was being maintained by the District Council, and, presumably carried public rights, although payment was made for use of the mill bridge itself.
vi) In 1921 the bridge north of the Mill was replaced with a steel and concrete bridge, at the joint cost of the Council and the landowner.
vii) In 1931 the Surveyor was instructed to negotiate with the owner of Upper Mil Bridge `with a view to entering into a similar agreement to that previously in force' (i.e. the payment of a quit rent for use of the mill bridge). In 1932 this was agreed to £5 per annum, with three months notice on either side and a weight restriction An order was put in force restricting the weight of vehicles using the road in 1939.
8.4.3 The Andover Rural District Council records also contain a book of maps of maintainable highways, prepared in 1879 by a former District Surveyor. The maps are line drawings without any base mapping against which the road information can be reconciled. The map for Longparish shows a highway leading from the Hurstbourne road (the B3048) to the C165 (Nuns Walk) northeast of Upper Mill. It is not clear what highway this is intended to represent: when overlaid on a modern map base it fits neither the claimed route nor the road over the mill bridge, being considerably further northeast. It best fits the line of a track shown on the tithe map, broadly represented now by Longparish Footpath 3.
8.5 Finance Act maps 1909/10
8.5.1 These maps are normally examined to see if they shed any light on the public status of the claimed byway, but no Finance Act information is available for the relevant Ordnance sheets.
8.6 Building Control Plans 1911
8.6.1 Records from Andover Rural District Council contain drawings relating to building works being carried out at Upper Mill on behalf of the then owner, Ralph Sneyd. One of these (relating to the drainage of the property) consists of a hand drawn plan showing the Mill, the Mill House, the mill road and yard and the claimed byway. The claimed byway is annotated `OLD ROAD'. No ford crossing is shown, and there is no roadway or path drawn on the south side of the river, but the drawing ends here and no features are drawn south of the river.
8.7 Private conveyancing documents 1912
8.7.1 Mr Dawnay (see paragraph 9) has let officers have sight of some plans annexed to private conveyancing documents relating to the mill. A map on a document of 1912, shows the mill buildings, the (ungated) mill yard, tracks on the line of the claimed byway north and south of the river and the (current) U54 south of the mill. Again, there is no direct evidence of a ford crossing, but it might nonetheless have been possible to cross the river between the tracks on either side.
8.7.2 On another, very similar (but undated) conveyancing plan, there appears to be a gate across the entrance to the mill yard and pecked lines across the southern end of the mill bridge.
8.8 1929 Handover map
8.8.1 This map was believed to have been prepared by the surveyor of the Andover Rural District Council when responsibility for the maintenance of rural roads was transferred from the districts to the county. It was intended to inform the county surveyor of the highways that were publicly maintainable. It is believed to have been the first such record of its type, or at the very least, the earliest to have survived.
8.8.2 The district surveyor would have been in a good position to know the routes that were maintained by him, and so this map (and similar maps prepared by other districts) ought to carry good evidential weight. However, the maps do not create any rights or responsibilities where none previously existed, and so whilst they are good evidence of what the surveyor thought or believed to be his responsibility, they are not conclusive proof of the accuracy of the information shown on them. When evaluated, they need to be read in the light of all the other relevant evidence. Where they are consistent with the known history of a road or way, they are good supporting evidence of status. Where they are inconsistent, they need to be treated with some caution.
8.8.3 The handover maps were based on the 1909 Ordnance Survey county series maps. Each map consists of a number of map sheets at a scale of 1:10,560, pieced together on linen in such a way as to permit the map to be folded without damage to the map sheets. However, as with the county series maps examined at paragraph 8.3, Upper Mill lies at the junction of four map sheets, making interpretation difficult, and after almost 80 years of use, damage to the corners of the map sheets is inevitable.
8.8.4 The maps were annotated to show the status of maintainable highways (we do not know whether by hand, although some maps show later, clearly handwritten, amendments). The maps were over-written with a solid blue line to indicate publicly maintainable metalled carriage roads and with a broken blue line to indicate unmetalled carriage roads. There were other notations, most of which are not relevant to this claim, but it is worth noting that bridges repairable at public expense were recorded with a red circle. The key makes no provision for recording public bridleways, although public footpaths could be shown in black. The key was standard throughout the county, although the quality and reliability of the information shown by the maps varies from district to district and within the maps themselves.
8.8.5 In this case there is a solid blue line running along the track towards the mill buildings from the village road. This then turns southwest to follow the claimed byway to the river. No colouring is shown across the river (so far as it is possible to tell), but the blue colouring is taken up again on the track on the south side of the river. It then follows the line of the current U54. There is no colouring over the mill yard or the mill bridge. On the face of it, therefore, this map indicates that the district surveyor thought that the claimed byway was a publicly maintainable carriage road and that the mill road was not.
8.8.6 There is a red circle marking the bridge on the road leading southwards to Upper Mill, but no red circles on the three bridges on the road leading southwards from the mill - an inconsistency if the three bridges had been maintained by the district council as the minutes suggest.
8.9 Later maintenance records
8.9.1 The County Surveyor's later maintenance records were compiled from the 1929 `handover' data as later added to, or amended. Thus on the 1946 maintenance map for Longparish, similar information is given. This time the track on the line of the claimed byway is coloured orange, to denote a publicly maintainable, metalled carriage road. The orange colouring crosses the river - the first evidence which directly supports the existence of a crossing at this point.
8.9.2 Maintenance maps dated 1950, 1956 and 1961, show a maintained carriageway over the mill road at Upper Mill, not over the claimed byway. Maintenance maps of 1970, 1979 and 1986 show a maintained carriageway more on the line of the claimed byway and ford. These maps have been inspected by the highway management section of the Environment department. They are of a very small scale and it is difficult to draw any precise conclusions from them. Unless very familiar with the locality, the person preparing the maps may well not have been aware of the need to make a distinction between the two routes.
8.9.3 The current List of Streets prepared by the Environment Group shows that the maintainable highway runs from the village road directly southwards, along the mill road through the mill yard and over the bridge. Officers have been unable to find any reason for a change in the route - a point which might reinforce the view that the route was incorrectly shown in the first instance.
8.9.4 Inquiries made on behalf of the County Surveyor when this matter was investigated in 2001 report that "Ted Perrin (Area Superintendent for the Longparish area since 1970 has only maintained approximately the first 50 metres southwards from the B4048 and then again from the south side of the bridge (beyond Upper Mill). [The] section between has never been maintained".
8.10 Rights of Way Maps and documents
8.10.1 The definitive map was intended to provide conclusive evidence of the existence of footpaths and bridleways, not of any other type of highway. Nonetheless, to assist those reading the map, it does show publicly maintainable roads coloured in red. It is not conclusive evidence that the routes shown in red were public roads: they are shown simply as an aid to the map reader. The information about the maintainable roads would have been obtained from the County Surveyors maintenance records, ultimately the 1929 handover map. Predictably therefore, the definitive map (in all three editions) shows the claimed byway as a county maintainable road, and not the mill road.
8.10.2 Footpath 11 is shown terminating on this road, to the south of the (alleged) ford. The description of the relevant part of Footpath 11 reads "...along grass path enclosed approx. 8 ft. wide between stream and hedge to Road U.54" and could apply to a termination point on the claimed byway or on the mill road.
8.11 Mosaic tiles
8.11.1 These attractive and unusual tiles are in the possession of Mrs Barron and are believed to have been made for the Mill House in the 1920s (see paragraph 9.2). They show, on a white background, a hand-drawn, birds-eye view plan of the mill and the river and land immediately around (including an orchard and kitchen garden). A hay cart is drawn on the junction of the mill bridge and the claimed byway (point C). There is a track on the southwest bank of the river, but no indication of a ford. The claimed byway is shown north of the river, but has a solid line at its junction with the mill road. There is also a structure of some description across the entrance to the mill yard, in which there is also drawn a motor car. The tiles do not exclude the possibility that the claimed byway and ford were in use at that time, but neither do these tiles provide evidence that it was an acknowledged public highway.
8.12 Other documentary evidence
Although not expressly referred to, officers have also had sight, and taken account of:
i) 1879 building plans for Longparish Mill 1879
ii) Census returns for Longparish 1881 and 1891
iii) Longparish Vestry minutes (HRO 17M73 PV1)
iv) Longparish Parish Council Minutes (HRO 54M69 PX1)
v) County Roads and Bridges Committee minutes 10 July 1939.
9. Evidence of Mr Rupert Dawnay
9.1 Mr Dawnay has known Upper Mill all of his life (he was born in 1940). It belonged to the Longparish Estate, which was purchased by his grandparents in 1920. He became the owner of the mill in 1983 and the Mill House was his permanent home between 1989 and 2003. It is Mr Dawnay's understanding that the mill on the site was originally a private mill serving just the Longparish Estate until the late 1860s or early 1870s, when it was re-built as a larger, commercial mill3. It is his belief that vehicles unloading at the mill would inevitably have blocked the mill yard and the bridge, and that traffic wishing to cross the river on these occasions would have used the ford and the claimed byway. However, the mill stopped milling before the First World War. Although the mill yard was originally private, and gated, he does not think that his grandmother ever closed the gate when she was living in the Mill House and so people started to use the bridge in preference to the ford. He does not remember any public traffic using the ford during his lifetime, although he believes that his father gave permission to the army to use it for training during the Second World War. Mr Dawnay believes that the river has a solid gravel base at the point of the ford, but that this is not man-made.
9.2 Mr Dawnay constructed a steel bridge on the site of the former ford in 1997, when it was necessary to close the mill bridge for repairs. The bridge was needed to provide neighbours with access to fields on the south of the river, and was not intended for use by the public. When building the bridge, he had to build up the banks of the river to avoid deep mud, and to cut down some substantial trees, which reinforced his view that the ford had not been used for a long time. He confirms that the mosaic tiles (paragraph 8.11 above) were found in the Mill House and he believes that they date from the 1920s when three cottages next to the mill were converted into the mill house.
10. Landowner's comments
10.1 Mrs Barron has submitted evidence to refute the claim. Some of the evidence and documents have been reviewed in paragraph 8 above; it has all been taken into account by officers. Relevant points made by the landowner, but not specifically mentioned above are:
i) "When the mill was rebuilt in 1870, Col. Hawker also raised the river banks, created new sluice pools with three bridges (Gate, Ashtree and Waterfall) and a new track along the south side of the river". This is consistent with evidence considered above, although no directly supporting evidence is provided.
ii) In 1911 Ralph Syend took over the tenancy and used the property as a `gentleman's lot' ... the property was no longer a commercial enterprise, but rather a leisurely estate". Again this is consistent with the above evidence, but not supported by any additional evidence.
iii) During the time of milling prior to 1906 it would have been expected that the bridge would have been used for unloading and loading grain and it would have been practical for horses and carts to be taken across the river down stream of the mill pond for watering and crossing the river. This would in no way constitute a public use of the mill roads as it would have been solely for the use of the mill. This is analogous to trucks turning round in a factory forecourt today. After this period there can be no conceivable reason why any one would want to use the ford when there was a perfectly good bridge".
iv) A county road map, (attributed to 1946, but not the maintenance map referred to at paragraph 8.9.1 above) shows the public road going in front of the mill. However, the bottom part of the map (on a separate sheet) does not match the top. Four maintainable bridges are recorded.
v) An aerial photograph of 1947 shows considerable use of the road over the mill bridge, whereas the track on the south bank shows no sign of use. A 1972 aerial photograph would suggest that the route is impassable.
vi) Two trees on the south bank of the river make the south bank ford route impassable to a motor vehicle or horse drawn carriage and would have done so for many years.
vii) One of the reasons behind the application was the statement by Rupert Dawnay in his planning application that the temporary bridge was on the site of an old public ford. That statement has since been retracted. A copy e-mail to this effect has been supplied by the landowner.
11. The user evidence
11.1 There is very little user evidence and certainly insufficient to give rise to a presumption of dedication if highway rights are not proved by the documentary evidence. Mr High claims to have used it on a motorcycle relatively frequently since the 1950s, but this is the only direct evidence of use by vehicles. The British Horse Society's response to consultation in 2001 implies that there was some use before the steel bridge was constructed ("I have been advised by local horse riders that there was a ford at this point where they could cross the river, but are no longer able to use it because of the new bridge"), but no further details of that use were supplied. Mr High has provided a letter from a Mr Hopkins which states that when he was a child he used to drive his grandfather's horses along the claimed byway and through the ford in order to exercise rights of common on East Aston Common. There is no other direct evidence of use by vehicular traffic, all of which now uses the mill road and bridge.
12. Analysis of the evidence
12.1 The 1841 Tithe Map shows a track on the line of the claimed byway, leading southwards to the river, but is not possible to tell from this map whether it was a public road. The track is apparently untithed, but was possibly used in connection with a building (since demolished) at the river's edge. Fords are shown near Lower Mill and northeast of Upper Mill (i.e. up-river), but there is no equivalent annotation to suggest the existence of a ford just downstream from Upper Mill. Neither does the map show the claimed byway along the south bank of the river.
12.2 The first map to show a track south of the river at Upper Mill is the Ordnance Survey County Series, surveyed in the 1860s. It is the first map that could support a finding that public vehicular rights existed over the claimed byway, but it does not depict a ford crossing at Upper Mill, nor does it, of itself, prove that the tracks on either side of the alleged crossing were public. Later editions of this map are subject to the same caveats: they do not show a ford crossing, nor do they prove that the tracks north and south of the river are public roads, although they show that the roads or tracks existed as physical features.
12.3 The most revealing evidence comes from the Highway Board and District Council minutes. These suggest that, in 1896, when approached by the District Council, the owner of Upper Mill gave consent to the road to Longparish Mill being made public.4. The condition of the grant was that the bridges on the road were to be repaired by the Council. The District Council then ordered that the bridges be looked at, and subsequently repaired the three bridges south of the mill and replaced them with new bridges in 1910. Minutes of June 1897 refer, in relation to one of the bridges, to an `adoption' at an earlier (presumably the 1896) meeting5. These minutes suggest that the road leading to the mill from the south was previously private and, in turn, that the claimed byway south of the river, and the ford cannot have been public at that date. Bridges on roads north and south of the river were being maintained by 1897, supporting the view that both roads were by then regarded as public.
12.4 What is also clear - from the fact that quit rents were paid to the landowner from at least 1897 to 1931 - is that the mill bridge itself was not considered to be public. This begs the question whether the public went via the claimed ford or, by licence, over the mill bridge, which is the route currently used. There is no evidence in the minutes that the public used the claimed ford. The only reference to the ford is in the minutes of May 1897, when the Committee agreed that if the offer of a quit rent to the landowner of the mill bridge was not accepted, then the ford below the river should be rendered fit for use. This minute shows two things: first, that there was a ford below the mill and secondly that it was not fit for use. In contrast, the minutes record requests for public access over the mill bridge and, ultimately, payments were made for access on this route.
12.5 It is impossible to tell from the evidence available to us how much public use was being made of the roads to and from the mill prior to the `adoption' recorded in the minutes of 1896 and whether there were already public vehicular rights of way over the roads to and from the mill (including the claimed byway) before they became publicly maintainable. Presumably there was some use, on the back of traffic using the mill, or else the Highway Board would not have requested that public access be granted in 1881 and again in 1896, nor would the District Council have agreed to take on maintenance of the roads to the mill in 1896, and the Parish Council would not have complained in 1897 that it was blocked. However, it is probably unsafe to conclude, on the very little evidence available for the period, that the public had acquired a right of way with vehicles along the road, via the mill bridge or the claimed byway and ford, prior to 1896.
12.6 This interpretation is in conflict with Highway Board maintenance map which shows a maintainable route between the B3048 and the C165 as early as 1878, although this is not on a route that is reconcilable with either the claimed byway or the road over the mill bridge. This interpretation is also in conflict with the 1929 Handover map, which (correctly) reflects the fact that the roads north and south of the mill were publicly maintainable, but suggests that the crossing of the river is by way of the ford and not the mill bridge (and is itself also in conflict with the 1878 maintenance map).
12.7 In fact, the 1929 Handover map is the only original evidence to which points to there being public vehicular rights over the claimed byway and ford.
12.8 Similar information is shown on later maintenance maps and the definitive maps, but these maps would ultimately have derived their information (right, or wrong) from the 1929 Handover map, and should not be given the same weight as separate and independent sources. The real issue is therefore, whether the 1929 map correctly recorded the route of the public road past Upper Mill, or whether it was marked on the line of the claimed byway in error, an error which is very explicable on account of the small scale of the map and the critical point falling at the junction of four map sheets. As this map neither creates nor extinguishes rights, and should be a reflection of the history of the route to date, where there is conflict between this, and earlier evidence of status, the 1929 map should be treated with caution.
12.9 Apart from the 1929 map (and maps deriving their information from it) only one reference to the claimed ford has been found in the documentary record (see paragraph 8.4.2, point iv) and this does not state that the ford is public; it even indicates that in 1896 it could not be used. There is evidence which shows that the claimed byway and ford cannot have existed before 1841, and that only in 1896 was the road to the mill offered to the public, at a time when the public appeared to be making use of the mill bridge, rather than the ford.
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12.10 That there was a ford crossing downstream of the mill is evidenced by the minutes of 1896, and the recollections of Mr Dawnay and other local residents, but this does not make it, or the track leading to it, necessarily public. It may well have served to take occasional traffic if the mill bridge was blocked by vehicles loading or unloading, but there is no substantive evidence of use by public vehicles at any date.
13 Conclusions
13.1 There are inconsistencies in the evidence that are difficult to reconcile, but it is considered more likely than not that, when the roads to Upper Mill became public, use was being made of the mill bridge, not the ford crossing. There is insufficient evidence to show that there was a dedication and acceptance of public vehicular rights along the claimed byway and ford crossing.
RECOMMENDATION
That the application to add a byway at Upper Mill Longparish, between points A, B and C on the attached map be refused.
Section 100D - Local Government Act 1972 - background papers
The following documents disclose facts or matters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of this report.
NB The list excludes (1) published works and (2) documents which disclose exempt or confidential information as defined in the Act.
File CR728 - 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.