Hampshire County Council Item

Regulatory Committee

18^th October, 2006

Application for a Definitive Map Modification Order to record a Bridleway in the Parish of Martin

Report of the Director of Recreation and Heritage

Contact: Sylvia Seeliger, Ext. 6349 [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...

(b) 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 which is not shown on 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

This is an application for a Definitive Map Modification Order to record a bridleway in the Parish of Martin. It is not recorded on the Definitive Map. Historic evidence has been put forward, which indicates that the route has been in place since the third quarter of the 18^th century, and possibly before. The Bishopstone Inclosure Award strongly suggests that there was a public carriage road between Croucheston and Fordingbridge across Faulston Down in 1792 and map evidence shows the road to have followed the claimed route since at least 1788. The coming into force of the NERC Act in May 2006 prevents the claimed route being recorded on the Definitive Map as a byway open to all traffic. The claim is recommended for acceptance, at the status of restricted byway, that is to be used by walkers, riders and drivers of non-mechanically propelled vehicles.

2 The Claimed Route

The claimed route (shown as A to B on the attached plan) commences at a junction with Martin Bridleway 18, which skirts the edge of a wood. The route runs in a near northerly direction to meet the parish and county boundary at Grim's Ditch. Current Ordnance Survey mapping shows it as a track between pecked boundaries. It forms the headland to a field and has been scaled from current mapping at five metres in width. At the northern end, where it meets the county boundary, there is a gate. The route is unsurfaced. At the county boundary, the route continues in a north-westerly direction, as Bishopstone Bridleway 29.

3 The Applicant

Mr. R. Brockhurst,

Vice Chairman and Footpath Secretary,

Ringwood and Fordingbridge Footpath Society,

Greyfriars,

Christchurch Road,

Ringwood,

Hampshire,

BH24 1DW.

4 The Landowners

Messrs. R. and M. Pike.

5 Consultation

The following persons and bodies have been consulted about the claim, namely, Councillor K. Heron, the local member, New Forest District Council, Martin Parish Council, the British Driving Society, the Trail Riders Fellowship, the Byway and Bridleway Trust, the Open Spaces Society, the Ramblers' Association, the Council for the Preservation of Rural England, Hampshire County Council Director of Environment, County Planning Officer and the Rights of Way Area Officer (Central). At the time of writing, the following responses have been received:

6 The Highways Manager of Hampshire County Council has `no objection or evidence to offer'.

7 The Area Respondent of LARA, has submitted evidence relevant to the status of the route, including extracts from the Bishopstone Inclosure Award of 1792 (considered in the documentary evidence below), and commentary on various maps and surveys. The import of this material is that he considers that the status of the claimed route should be byway open to all traffic.

8 It is the opinion of the representative of The British Horse Society in Dorset that `this is the obvious continuation of BR Bishopstone 29 from the Ox Drove, south over Faulstone Down and A354 to Grim's Ditch. It should continue south, over Wiltshire border, to join BR on Little Toyd Down'. The letter suggests that some individuals have ridden the route (a check indicates this is the case on only one or two occasions, and does not represent regular use). The representative says that during the last year, a notice of a byway claim was to be found at Grim's Ditch, and continues `I am sure your path is a continuation of an old road'.

9 The other consultees had not yet responded at the date of the preparation of this report.

10 The issue to be decided

This Committee is required to decide whether or not the evidence described in this report shows that a public right of way subsists, or is reasonably alleged to subsist, over the claimed route.

11 Any changes to the Definitive Map must be based on evidence of the history and past use of the path 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 subsists, or is reasonable alleged to subsist, over the claimed route, then a map modification order should be made.

12 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 consider that there is no conflict in this case.

13 The originals of some of the documents referred to in his 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.

14 Documentary Evidence

The origins of the parish of Martin lie in Wiltshire - it was not transferred to Hampshire until 1895. A number of the documents consulted are at Wiltshire Record Office, and two of the early commercial maps of Hampshire normally consulted do not cover Martin. An evaluation of historical documents is attached as Appendix 1. The documents that relate to the continuation of the claimed route in Wiltshire will be examined first, followed by those that relate directly to it in Hampshire.

15 The continuation route in Wiltshire

Andrews and Dury's Map of Wiltshire 1773 (Wiltshire and Swindon Record Office)

Andrews and Dury's map shows the Salisbury to Blandford Turnpike Road (the modern A354) on what appears to be very much its present-day alignment. The course of Grim's Ditch from Swayne's Firs to Toyd Clump is also very similar to what is shown on modern mapping. A route, depicted by pecked lines, is shown running from `Falston' in a south easterly direction, crossing the Salisbury to Blandford Turnpike, to meet a route running between Combe and East St. Martin. South of the Turnpike, the route runs partly through woodland (at least, the symbol is used elsewhere on the map to indicate what is known to be woodland). The section north of Grim's Ditch appears to be what is now Bishopstone Bridleway 29, and the section south appears to be on a similar line to the claimed route. The shape of the area bounded by Grim's Ditch, Bridleway 18 and the road from Stratford Tony is distinctive. There have been changes to the road network since 1773, but it seems clear from the shape of the road network to the north of the Turnpike which forms a triangle, that the track south of Grim's Ditch does approximate to the claimed route.

16 Bishopstone Inclosure Act 1785 (WSRO A1/216/16)

There is no record of a formal inclosure in Martin. However, the claimed route has a continuation in the parish of Bishopstone, which did. An Act was passed in 1785 for `Dividing and Allotting the open and common Lands and Grounds within the several Parishes of Foffant, Swallowclift, Ebesbourne-Wake, Broadchalk, Bowerchalk, Alvedeston, Bishopston and Fifield in the County of Wilts.' The three Commissioners were to `set out, ascertain, order and appoint both public and private Roads, Highways, Bridle Ways and Foot Ways...in, over, upon and through, or by the sides of the Lands and Grounds hereby intended to be divided and allotted'. These public roads and highways (except the bridleways and footways) were to be forty feet wide `and such other breadth as the said Commissioners shall think necessary'. Once these highways were ascertained, staked out and advertised, objections could be heard, and the resolutions made by the Commissioners would be `binding and conclusive to all parties'. Once the highways had been determined, it was not to be lawful for any person to use `any other Road or Way, either public or private in, over, upon, or through the said Lands and Grounds'. The award, to be binding and conclusive to all parties, was to contain a description of the `Roads, Ways, and Foot Paths', and was to be admitted `at all Times...in all Courts whatever, as Legal Evidence'. There was to be a map or plan to show the allotments. Any aggrieved party could make an appeal to the General Quarter Sessions within four calendar months.

17 Bishopstone Inclosure Award and Map 1792 (WSRO/EA38)

The Award, with its accompanying Map, is a record of the allotments made at the inclosure authorised by the Act of 1785. The Commissioners ascertained the `public and private roads and ways', and set out 23 public carriage roads and driftways, at widths varying between 20 feet and 40 feet. Two of the public carriage roads are of interest, the first being the sixteenth, the public carriage road and driftway of 30 feet from Croucheston to Woodyats Inn, and the second the public carriage road and driftway from Croucheston towards Fordingbridge. It was possible to travel from Croucheston, a village in the Ebble valley, to the boundary of Bishopstone parish, and onward through Martin, to Fordingbridge, a distance of almost nine miles as the crow flies.

18 The first 334 metres of this journey would be made on the road from Croucheston to Woodyats Inn. The awarded road is described as follows:

`...One other Public Carriage Road and Drift Way of various breadths and dimensions now bounded out but not less than thirty feet beginning at a dwelling house belonging to Thomas Hewitt at the south end of Croucheston Village and from thence extending Southward in its usual course and direction by and between several arable Allotments in the Tything of Croucheston unto the north corner of an Allotment to Thomas Harding to which place it is in part already inclosed...'

continuing

`...One other Public Carriage Road and Driftway branching out of the last described Road opposite the south east corner of Thomas Hewitt's home Allotment of Arable Lane hereinafter described and from thence extending eastward through and over an Allotment of Arable Land to Edward Hewitt late part of Croucheston Middle Field to a northwest corner of an Allotment to Amos Prowse Esquire at which place it takes a southeasterly direction and extends through and over the Allotment to Amos Prowse Esquire to a point or certain place called Bank Ditch Corner in the boundary of Faulston Farm at which place it takes a southerly direction and continues by the hedgeside to the place of its usual entrance into Croucheston Sheep Down to which place the said Road is of the breadth of Forty feet and from thence extending nearly in the same direction through and over part of the said Sheep Down allotted to Amos Prowse until it comes to the southwest corner of Faulston Farm called pale corner and from thence taking a southeasterly direction extends through and over part of Faulston Down allotted to the said Earl and across the Great Western Road leading from Blandford to Salisbury continues in the same direction to the place of its usual entrance into Toyd Farm which said Road from its entrance into Croucheston Down is of the breadth of Thirty feet the same being a public carriage road and driftway from Croucheston towards Fordingbridge....'

This public carriage road is now (possibly erroneously) recorded as Bishopstone Bridleway 29.

19 The map accompanying the Award shows the route, branching out of the Croucheston to Woodyats Inn Road, running across the allotment of Amos Prowse, alongside Faulston Farm, then across the land of the Earl of Pembroke, across the Salisbury to Blandford Turnpike and to the parish boundary at Martin. Here it is marked `To Fordingbridge' over land that is named as `Toyd Farm'.

20 There is no evidence in the Wiltshire or Hampshire Quarter Sessions records that there was any challenge to this inclosure or that there has been any stopping up of the public carriage road rights on this route. Although the awarded public carriage road is not the claimed route, the obvious implication is that the claimed route, being a continuation, has the same status as the awarded route.

21 Survey of Bishopstone, 1794 (WSRO 2057/S90)

The map for this survey is very similar to the Inclosure award map, and shows the course of inclosure public carriage road 17 from Croucheston to Fordingbridge, from the place where it leaves the Croucheston to Woodyat Inn public carriage road (number 16). It is shown between pecked lines and is tinted light brown, as are the other roads, including the Salisbury to Blandford Turnpike. The road enters plot 4, runs in a southeasterly direction, until it follows the boundary of plot 25 `Lapwing Leaze'. About halfway down the boundary of this field, it diverges to go more directly south, through plot 5 `The Down', and then south east again across plot 31, `Faulston Down'. It crosses the Turnpike, emerging into Martin parish on the land of Toyd Farm, being marked `To Fordingbridge', and being depicted for a short distance in Martin, again between pecked lines.

22 Greenwood's Map of Wiltshire, 1820

Greenwood has the reputation of plagiarising the Ordnance Survey mapping. In making his map of Wiltshire there is, however, evidence that some re-survey work had been done, in that the pattern of tracks in the Toyd area is different from that shown on the Ordnance Survey Old First Series map. The triangular pattern noted previously is present, and the continuation north is to `Fallston' via the public carriage road number 23 set out at inclosure, the Faulston to Great Western Road. The route runs straight to the approximate location of the parish boundary, then continues in a south easterly direction towards `Tide Farm', though it is not straight, as it was in Andrews and Dury's map. Greenwood shows far fewer routes over Crowdon Down in comparison with Andrews and Dury, but it is impossible to tell whether that is because there were physically fewer routes, or Greenwood did not survey the other routes, or he chose not to show them.

23 Wilton Estate Map, 1839 (WSRO 2057/P1/22)

This map shows land belonging to the Wilton Estate, with shading on the plots. The Salisbury to Blandford Turnpike is shown, and the inclosure roads are included. Under the scale it reads `This Map is drawn to the same Scale as the Tithe Apportionment', indicating that the surveyor had seen that document. It may even be the survey upon which the Bishopstone Tithe Map is based. The course of the Croucheston to Fordingbridge road is shown on a slightly different line north of Faulston Down. To reach the section of the Croucheston to Fordingbridge road that forms part of the triangle with the Turnpike, this map indicates that the traveller would have to go along a short section of public carriage road number 20, described in the award as `public carriage road and driftway of 30 feet from Turnpike to Shaftesbury'. The final section of the Croucheston to Fordingbridge road is shown, stopping at the Bishopstone/Martin parish boundary, marked `To Fordingbridge' as it is on the inclosure award map.

24 Bishopstone Tithe Map and Apportionment 1839 (WSRO)

The apportionment for Bishopstone gives only a generalised description of the lands and premises referred to in the Map. The distinctive triangle north of the Salisbury to Blandford Turnpike is present on the map, but the route across plot 36 (on both sides of the Turnpike) has been drawn in, to a certain extent, in pencil. That the route extended across this land is indicated by the short stretches that are inked in, either with solid boundaries, or between pecked lines. The pecked lines continue into Martin, though there is no directional sign. The apportionment has no separate `roads and waste' section. The roads seem to have no shading or colour or plot numbers on them.

25 Extract from Bishopstone Highway Rate Book 1840 (WSRO 345/21)

An entry for 20^th March 1840, headed `Bishopstone Roads', indicates that `From Harford's Lane up Faulston Drove to Martin Ditch' was 2 miles, five furlongs and 39 poles. Faulston Drove runs from Faulston in a southerly direction, continuing south along public carriage road number 23 until it reaches Faulston Down Farm, continues south east to cross the Salisbury to Blandford Turnpike, then down Bishopstone Bridleway 29 to Grim's Ditch, the `Martin Ditch' of the description. The inclusion of this route in the Highway Rate Book of Bishopstone suggests that the route down to Grim's Ditch along Bishopstone Bridleway 29 was considered to be a publicly maintainable highway in 1840.

26 The claimed route in Hampshire

Paterson's Itinerary Direct Roads (Vol. 1)

Published in London in 1785, this volume contains strip maps showing long distance routes, with mile markers. Two maps appear to be of relevance to the claimed route. Map 62 shows the route between Salisbury and Woodyates Inn along the Salisbury to Blandford road. Between the 5 and 6 mile markers, at an area marked `Vernditch Chase', a route crosses the Salisbury to Blandford Road leading towards `Naton' (also shown by Andrews and Dury), which seems to correspond with Croucheston, both being slightly to the west of Bishopstone. This route makes a characteristic triangular shape which can be seen on modern maps at Faulstone Down Farm, also found on Andrews and Dury. This way seems to approximate to the claimed route.

27 Page 67 of the Itinerary features a route from Combe Basset (now Coombe Bissett) to Stanbridge, along what is now the U116. Between the 5 and 6 mile markers, the road pattern (though shown in less detail than the map on page 62) is similar to that shown on Andrews and Dury, with a route that approximates to the claimed way, marked `to Fallson' (Faulston) at its north end.

28 Map of manor and parish of Martin 1788 (HRO 3M86/15)

This is a 19^th century copy of a map that is dated 1788, and it shows the different manors and lists the tenants of the Earl of Shaftesbury and Lady Coote. It shows the claimed route, entering Martin from Bishopstone to the north, at the junction with Grim's Ditch, with a solid boundary on the south, and pecked boundary to the north, running alongside Bustard Farm Down. A narrower route branches to the south about a quarter of the distance from its northern end, through what may be a gate. The claimed route is tinted brown, as are other routes on the map, although as at least one of these would appear to be private, no conclusions can be drawn from this. A field marked out by pecked boundaries, to the south of the north end of the route, has the words `burnbaked in 1788 ab^t 20 acres' written across it. The route runs down the side of Bustard Farm Down, but turns west just short of the Down's southern boundary. There are no directional markers on this map.

29 John Cary's Map, 1801

This is a small-scale map shows both Tidpit and Toyd Farm, but does not show the claimed route.

30 Ordnance Survey 2 inch drawing c.1808

This is the preparatory drawing for the Ordnance Survey old first edition of 1810. The presence of heavy hachuring on this map makes it difficult to interpret, but it seems clear that the upper edge of the map is the Salisbury to Blandford Turnpike Road. It shows Bishopstone Bridleway 29 between mile markers 5 and 6, but this track turns to the southwest once into the parish of Martin, and continues in this direction until it reaches East Martin. Bearing in mind the direction markings on the Bishopstone Inclosure Award map, this is not an obvious route to Fordingbridge. Toyd Farm is marked as `Tide Farm', and there is no sign of the claimed route.

31 Ordnance Survey 1 inch map Old First Series 1810

The map that resulted from the earlier drawing is clearer, and shows the same arrangement of routes as is described above.

32 G. and J. Cary's Map of 1832

This map is of a similar scale to the Ordnance Survey Old First Series and Greenwood's maps, and embodies aspects of both. Cary shows the triangular configuration in relation to the Salisbury to Blandford Turnpike, but puts this between the 6 and 7 mile markers. Where the track corresponding to Bishopstone Bridleway 29 enters Martin, it follows a route similar to that shown by the Ordnance Survey, in a south westerly direction towards East Martin, and therefore this map does not show the claimed route.

33 Martin Tithe Apportionment and Map 1846-1847 (HRO 3M86/17)

The claimed route is shown on this map. It has a brown tint on it, as have the roads that are shown, including the Salisbury to Blandford Turnpike. What is now Bridleway 17 is named as `Sops Lane', and a route from East Martin to the Salisbury to Blandford road is `East Martin Drove'. The west side of the claimed route has a solid boundary, while the east has a pecked line. Where the route branches off to the south east, it is between pecked lines, and marked `To Toyd', and seems to be along the general line of the present Bridleway 18, though it is straighter. The route runs alongside Burnbake Field, in the ownership and occupation of George Topp. The commons and roads are given in a separate section; the roads and wastes in West Martin total 36 acres 3 roods and 26 perches, and in East Martin 13a 2r 18p. This map is very similar to that of 1788, discussed at paragraph 17. There is nothing explicit on the map about the status of the claimed route.

34 Ordnance Survey County Series 1:2,500 first edition, surveyed in 1871 and 1876 (Bodleian Library)

The claimed route is shown on this map, uncoloured, between pecked lines. It is braced into plot 4, given in the Stratford Tony book of reference as `Arable'. It is shown as continuing north between solid boundaries, having crossed Grim's Ditch, which is consistent with that part of the route having been set out on inclosure. At its southern end, the track is shown as curving round plot 5, given in the Toyd Farm and Allenford book of reference as `wood'. This section of the route is already recorded on the Definitive Map as Martin Bridleway 18. It is not possible to say what status, if any, the claimed route has on this map.

35 Ordnance Survey County Series 1:2,500 second edition c.1895, and third edition c.1909

The parish boundaries are less confusing on these maps, the land on either side of the claimed track being within Martin parish. The claimed route is shown between pecked lines on both maps, and braced into plot 4 in a similar fashion to the first edition. The continuation to the north runs between solid boundaries. A significant difference on these maps is the presence of a way, shown between pecked lines, joining the claimed route from the south west, in a similar position to the track that is shown on the Martin Tithe Map. On the second and third editions, this track is annotated as `footpath', though it is not currently recorded as a public right of way beyond Bridleway 18 (its continuation is Bridleway 17 to the south west of Bridleway 18).

36 Finance Act Map and Valuation Books 1910 (HRO 160M86/188-189 and 198-199)

These maps and reference books were compiled for the Finance Act of 1910. Ordnance Survey sheets were hand coloured to show what land was included within hereditaments for valuation purposes. Public roads, not being taxable, were not shown to be part of private land, and are uncoloured on the maps. Tax deductions could be claimed for public rights of way, though landowners did not always claim them (Rights of Way Law Review, 9.3, pp. 17-18). The entire claimed track is within hereditament 267, owned by Sir Eyre Coote, for which no reduction was claimed for public right of way user. This suggests that it was not considered to be a public right of way at the time the documents were compiled. The equivalent map for Bishopstone Bridleway 29 indicates that north and south of the Salisbury to Blandford Road the Bridleway lay within hereditament 49, owned by William Brown, and for which £50 public right of way user was claimed (although it is not possible to pinpoint which rights of way that sum relates to). The Bridleway was also not perceived to be a public road in this location. However, north of Faulston Down Farm its continuation is excluded from hereditament 49, suggesting that this section was considered to be a public road.

37 Highway Maintenance Map `Handover Map' Fordingbridge Rural District, 1929 (HRO H/SY3/6/8)

The claimed route is not recorded as being subject to maintenance by the County Surveyor.

38 Ordnance Survey County Series Fourth Edition, 1930s

The depiction of the claimed route on this map is different from the previous editions. There is no track shown southward from Grim's Ditch for 313 metres, although there is a pecked track crossing the Ditch, and the continuation north is between pecked lines. The track becomes a surveyable feature after 313 metres, and has the appearance of a headland track, with a solid boundary on the west and a pecked boundary on the east, until a field boundary is reached. Here there is a line across the track, which is probably a gate, and the route then continues between solid boundaries except for the last 14 metres before it meets Bridleway 18.

39 Highway Maintenance Ringwood and Fordingbridge Division, 1946 (HRO H/SY3/3/24/9)

The claimed route is not recorded as being subject to maintenance by the County Surveyor.

40 Rights of Way Map prepared by Martin Parish, c.1949 (Martin Parish File)

This is an Ordnance Survey Map pasted on to a large sheet of plain paper, and is entitled `Parish of Martin Rights of Way'. It was prepared in response to a request from Hampshire County Council, under the National Parks and Access to the Countryside Act 1949. This map shows routes that were considered to be public rights of way, but shows nothing along the line of the claimed route.

41 Definitive Map of Public Rights of Way, 1953, 1958 and 1964

The first Definitive Map for Ringwood and Fordingbridge was produced in 1953, reviewed in 1958 and 1964. None of these maps shows the claimed route as a public right of way.

42 Martin Parish File 1948-1967 (Rights of Way Section)

A memorandum was sent by P. Selborne Stringer, Clerk of Wiltshire County Council, on 9^th July 1957 to G. Wheatley, Clerk of Hampshire County Council, in reply to a letter from Hampshire of 5^th July (not found in file) . The heading to the memo is general, and the discussion contained in it does not refer to any numbered path, though the opening sentence reveals that it is `in the Parish of Bishopstone in this County and the Parish of Martin in your County'. The memo continues, stating that Wiltshire Highway Authority had considered `the issue', and although they considered `the force of the Inclosure Award they nevertheless determined to add a path along the side of the field and not the path across the middle of it as shown on the Inclosure Award'. The owner had made representations and, with his and the Ramblers' agreement, it had been decided that a bridleway should be shown along the side of the field, and not across the middle of the field as shown on the Inclosure Award. It seems unlikely that the route concerned was Bishopstone Bridleway 29 as it is shown on maps in the same position that it appears on the Inclosure Award Map, and is not recorded as a public right of way in Hampshire. Two other routes shown on the inclosure award map are contenders, in that they meet or cross the Salisbury to Blandford Turnpike, one the route between Stratford Tony and Fordingbridge on the west side of the inclosed area, and the Knighton to Martin to Fordingbridge Road, which begins on the west side of the area inclosed.

43 Damerham and Martin A Study in Local History, E.H Lane Poole, 1976

In a chapter entitled `Roads, downs and forests', the author discusses the road system of Martin in some detail, tracing in particular the road from Old Sarum to Dorchester and suggesting it corresponds with a Roman road, marked on Ordnance Survey maps (pages 14-15). A small part of this route, south of Woodyates, seems to correspond to the present-day A354. The author then refers to the Wilton Way, a route to the east of the claimed way, along which the county boundary runs. Further discussion in the text refers to a coaching road between London and Poole Harbour and, though the roads pass over Toyd Down to Tidpit, there is no direct mention of the claimed route. The author considers that Martin was inclosed `some time between 1518 and 1686, and probably between 1518 and 1606, possibly by common consent of the strip holders' (page 119).

44 Reclassification File for Martin RUPPs (Rights of Way Office)

In 1991, an officer prepared a report to the then Rights of Way Sub-Committee, and a statement to a public inquiry in 1996, concerning the reclassification of a number of RUPPs in Martin, including what is now Martin Bridleway 18, to which the claimed route connects. In preparing this material, she considered many of the same documents that are considered here. She pointed out the difficulties presented by the early mapping of Crowdon Down in Martin, the area over which the claimed route runs, noting that `in the early nineteenth century the pattern of tracks on the north Martin boundary and over the border in Wiltshire was different today and the area was open downland'.

45 Discussion of the Documentary Evidence

The whole of the claimed route was likely to have been physically in existence in 1773, the date of the earliest map available that shows it. It is also shown on a parish map of Martin of 1788; this is the first map of the route in Hampshire only, and bears many similarities to the Martin Tithe Map of 1846-1847. It is clearly identifiable, because it is a continuation of a route in Wiltshire that forms part of a triangle with the road from Salisbury to Blandford, which is visible on current mapping. The earliest Ordnance Survey map of 1810 does not show it, but shows a track on another line. As the Rights of Way officer noted in her report, this was an area of open downland at the time of the OS survey, and there may have been a number of routes in circumstances where there was no restriction on where people could travel. Further, we cannot be certain why surveyors showed one route and not another, something commonly encountered when comparing early maps. The later Ordnance Survey County Series maps confirm the continuing existence of the route shown in 1788. These maps do not offer any explicit information on status, and must be considered with the rest of the evidence.

46 At the time of the inclosure in Bishopstone, Wiltshire (1785-1793), the continuation of the claimed route in that parish was set out and awarded as a public carriage road thirty feet wide, being the public carriage road from Croucheston towards Fordingbridge (the first part being the Croucheston to Woodyats Inn public carriage road, with a point of divergence just south of Croucheston village). If the Commissioners were setting out public highways with termination points in another county, as clearly stated in the Award, they must have had regard as to how those public highways would reach their destination. Of the twenty five public carriage roads awarded, three had destination points outside the county, two in Fordingbridge and one in Martin. The Commissioners had power only within the area specified to be inclosed, and were able to set out the public highways in that area as they thought fit and convenient to the public. The Commissioners were experienced local men, and would have been familiar with the road network existing at the time of the inclosure, not just in Bishopstone, but in adjoining parishes. The Andrews and Dury map of 1773, made some twenty years before the inclosure, clearly shows a route from Croucheston to the point at the parish boundary where the awarded public carriage road terminates, with a continuation towards Toyd Farm, a place mentioned in the description of the road. (It is not clear from the Andrews and Dury map how the traveller would have reached Fordingbridge from Toyd Farm, as the configuration of routes in this area has altered over time, and their map does not correspond with what is shown currently.) The Award map is marked `To Fordingbridge' at this location, with pecked lines showing the route continuing in the parish of Martin. This is the route shown on the 1788 parish map. Further, the wording uses the phrase `its usual entrance', a recognition of the fact that the road was already in existence, and its inclusion in the Award was to give it the necessary legal status so that it would not be stopped up under the provisions of the Act.

47 It is difficult to imagine that the Commissioners of this inclosure, whose task it was to provide suitable and convenient public carriage roads, should countenance a connection to a route leading towards Toyd Farm and Fordingbridge, unless that connection was perceived by them to carry the same highway rights. To provide a public carriage road that terminated at the parish boundary would have meant that they had not fulfilled their obligations. It is, therefore, reasonable to conclude that there was a public carriage road across Toyd Farm to Fordingbrdge.

48 No evidence has come to light to suggest that any rights of way were or might have been extinguished or lost at any time.

49 The contradictions of the mapping available at the start of the 19^th century begs the question as to whether the Croucheston to Fordingbridge inclosure road was ever set out on the ground and taken on for maintenance by Bishopstone parish, as specified in the Act. The wording of the Award (and its extension in Martin - `its usual entrance into Toyd Farm') is indicative of the existence of the public carriage road prior to inclosure, confirmed by its presence on the Andrews and Dury map. The fact that the Ordnance Survey and Cary do not show the claimed route does not mean that it did not exist - the surveyors may, for their own reasons, have decided not to show it. That the section of the Croucheston to Fordingbridge Road now recorded as Bishopstone Bridleway 29 was considered by the Salisbury District Highway Board to be publicly repairable fifty years after the inclosure, in 1840, shows that the inclosure public carriage road had been set out and had become publicly maintainable.

50 Evidence of the continued existence of the claimed route is provided by the Martin Tithe Map of 1847, where it is shown coming in from Bishopstone to the north, and continuing in a south easterly direction until it forms an angle marked `To Toyd', on the approximate route of the present day Bridleway 18. Further confirmation is to be found in both the Bishopstone Tithe Map of 1839, where the continuation of the Croucheston to Fordingbridge public carriage road is indicated by pecked lines, and a survey of 1839, where the continuation is marked `To Fordingbridge'.

51 The claimed route is shown on the Ordnance County Series 1:2,500 maps on all four editions from 1871 to the 1930s, thereby testifying its continued existence.

52 The fact that the claimed route is not shown on Hampshire County Council highway maintenance maps is consistent with the fact that the County Surveyor did not consider it to be a publicly maintainable highway at the time the maps were compiled, reflected also in its absence from the Definitive Map.

53 That section of the Croucheston (Wiltshire) to Fordingbridge (Hampshire) road that lay in the parish of Bishopstone was set out in that parish's inclosure of 1792 as a public carriage road in order to preserve its legal status. It is highly unlikely that the Commissioners would have stopped their thirty foot wide public carriage road at the parish boundary forming a cul de sac, and the maps of 1773 and 1788 show that there was a continuation to Toyd Farm and on to Fordingbridge already in existence. There is no evidence to indicate that these public vehicular rights have ever been removed, and therefore they still exist on the route. Subsequent mapping shows the continued existence of the claimed route, even though its use as a public vehicular highway may have declined, possibly because of the isolated nature of the country and settlements in this are.

54 Other Evidence

Mr. M. Pike, on behalf of himself and his brother, who are owners of the land that the claimed path passes over, put forward his views in a letter to the Rights of Way Section, dated 8^th May 2006. He refers to a map attached to a tenancy agreement of 1949, which `shows the field [over which the claimed route runs] in two parts of 43 acres each. There is no track or footpath shown'. Mr. Pike recalls the field being divided into three parts and fenced for stock, with gates across the present track. Once the field was farmed in one block as arable, the fences were removed. Mr. Pike's family owned the adjacent land at Faulstone Down Farm and he presumes that `the track developed to access the fields and became a route between farms'.

55 Current use of the track is occasional access to the field for farming; access from the A354 has been restricted to prevent the passage of vehicles, since a problem was developing when people drove across the field in pursuit of deer. Local horse riders also make use of the track, because `most of the present Byeways have been ruined in a very short time through over use'. He is not concerned with occasional use on horse or by foot, but does worry `if it becomes a recorded bridleway it is open to abuse from other traffic as other such local bridleways can be without any effective control beyond people obeying the rules'. Mr. Pike describes the route as `only a track along the edge of the field' with an unmetalled surface, and it could be used as part of an environmental scheme - Mr. Pike considers that use of such margins would `defeat the object of conservation'. He describes his land as `special' to him and his family.

56 Mr. Pike has supplied a colour copy of the plan (on an Ordnance Survey base) with the tenancy agreement dated 4^th July 1950, and this shows the land comprising Toyd Farm shaded pink within a darker border. The presence of the darker border round the edge of plot numbers 4, 4a and 4b and 4c makes the identification of the claimed track difficult. The track from Bishopstone appears to stop at Grim's Ditch. There is no track in plot 4a until some two-thirds along its length from the north, where a pecked boundary begins. The track here has a solid boundary on the west, and a pecked boundary on the east. Where it passes to plot 4, there is a line across the track, presumably signifying a gate, as Mr. Pike recalls. South of the gate, both boundaries are solid, and the track passes into an area of woodland, plot 4d, where it runs between pecked lines on the route of the present Bridleway 18. Against the section between solid boundaries is an arrow, marked `4b& 0.689', the latter figure presumably referring to the acreage of the track in that field.

57 Conclusions from the available evidence

The landowners acknowledge that some use on foot and on horseback has taken place on the claimed route (though no evidence has been put forward by any of the user groups). The landowners have not submitted any documentary evidence other than the plan with the tenancy agreement, and this plan reflects the Ordnance Survey mapping current when the agreement was drawn up.

58 The claimed route is a continuation of a public carriage road of 30 feet width, awarded at the Bishopstone Inclosure. There is no evidence that these public carriage way rights have ever been stopped up, so they still exist on all parts of the route A to B. Prior to the passage of Natural Environment and Rural Communities Act 2006, a public carriage road would be recorded on the Definitive Map as a byway open to all traffic. However, the NERC Act of 2006 ends certain existing unrecorded public rights of way, and therefore the possibility of recording the claimed route as a byway is affected. The box at the start of this report sets out the exemptions, and these have to be considered in relation to this application.

59 Natural Environment and Rural Communities Act 2006

The Natural Environment and Rural Communities Act 2006 received Royal Assent on 30^th March 2006, and certain sections of the Act relevant to the rights of way came into force on 2^nd May. The effect of these sections, broadly, is to extinguish public rights of way for mechanically propelled vehicles for `green lanes', such as the claimed route in Martin. The Act is the response of the Government to public concern about the motorised vehicle use in the countryside, and achieves this by extinguishing public rights of way for mechanically propelled vehicles over all ways that are not shown on definitive maps as byways open to all traffic, unless the way falls within one of the exceptions contained in sub-sections 67(2) and (3). The sub-sections are set out at the start of this report and in paragraph 62 below.

60 If the route between Bishopstone Bridleway 29 and Martin Bridleway 18 does not fall within one of the exceptions, it would not be appropriate to record it as a byway open to all traffic because, on 2^nd May 2006, any rights the public may have had to use the way with motorised vehicles were extinguished. In these circumstances, the way should be recorded as a restricted byway, a way open to walkers, horse riders and non-mechanically propelled vehicles, (including cycles and horse-drawn vehicles).

61 Due to the way that the new Act has been drafted, it is necessary to consider if 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 extinguished. It is relatively easy to prove or disprove some of the exemptions, while others are much more difficult. It is not explicit in the Act where the burden of proving that one of the exemptions applies falls (or what authority is qualified to determine such issues). It was clearly intended in debate that the burden of proof should lie with the person seeking to show that mechanically propelled vehicular rights still subsisted, in respect of at least one of the exemptions. The Act itself is not clear whether this applies to all the exceptions, although Defra's guidance is that it does.

62 The exceptions

The eight possible exceptions are listed below, together with officers' comments about the applicability of the exception 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 used for mechanically propelled vehicles.

The landowner, Mr. Pike, states that a problem was developing with people driving across the field chasing deer, and for this reason he restricted access from the A354 with a gate at the parish boundary. He does not suggest that they were using the claimed route, which is used by himself to access the field for farming operations. Therefore, there is no evidence that the route has been used by the public in motor 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).

No part of the claimed route is shown on the 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.

No evidence was discovered during officers' investigations 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

The claimed track (A-B) has never been constructed as a road for

motorised vehicles, and is an unsurfaced green lane.

(d) 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 was in existence before mechanically propelled vehicles were commonly used, so it cannot be said that the public vehicular right of way was created as a result of use by motorised vehicles. It is more likely than not to have been created as a result of horse-drawn vehicular use. There is no evidence of use by mechanically propelled vehicles prior to 1930.

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

(b) before commencement, the surveying authority has made a deter-

mination under paragraph 3 of Schedule 14 of the 1981 Act in respect

of such an application.

No determination of this application was made before 2^nd May 2006, and

thus this exception does not apply.

(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 an interest in that

part only.

Hampshire County Council has received no such applications.

63 Width

If the older second and third editions of the 1:2,500 Ordnance Survey mapping are used, the width can be scale off at between 3 and 5 metres, depending on where the measurement is made. When the claimed route is scaled off current Ordnance Survey mapping, its width is also variable, but is consistently about 4.5 metres.

64 Conclusions

The historic evidence contained in this report demonstrates that, on the balance of probability, the track between A and B was a public highway for all purposes. The mechanically propelled vehicular element of those rights was extinguished by the Natural Environment and Rural Communities Act on 2^nd May 2006. This leaves public rights of way on foot, bicycles, horseback and with non-mechanically propelled vehicles between those two points. The route should therefore be recorded as a restricted byway.

RECOMMENDATION

That a Definitive Map Modification Order be made to add a restricted byway, of a width of 4.5 metres, from Martin Bridleway 18 to Bishopstone Bridleway 29, as shown between points A and B on the plan attached to this report.

Section 100 D - Local Government Act 1972 - background papers

The following documents disclose facts or maters 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 the report. NB The list excludes: (1) Published works; (2) Documents which disclose exempt or confidential information as defined in the Act.

File: Application for the upgrading of a bridleway in the Parish of Martin, ref. 617

Rights of Way Office, Mottisfont Court, Winchester