Hampshire County Council

Regulatory Committee Item 13

10 January 2007

Proposal to make a Definitive Map Modification Order to record a restricted byway between Church Lane in Nursling & Rownhams Parish and Lee Church Lane in Romsey Extra Parish

Report of the Director of Recreation & Heritage

Contact: Colin Piper Ext. 6043 [email protected]

NATURAL ENVIRONMENT AND RURAL COMMUNITIES ACT 2006

67. Ending of certain existing unrecorded public rights of way

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(4) "The relevant date" means -

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

1. Summary

1.1 Members are asked to rescind their decision of 19 July 2001, to record the track between Church Lane in Nursling and Lee Church Lane in Romsey Extra as a Byway Open to All Traffic, and instead approve the making of a Map Modification Order to record restricted byway rights over the same length of lane. This alteration, to the status of the lane, has been brought about by the provisions of the Natural Environment and Rural Communities Act which came into effect on 2 May 2006.

2. Description of route (Please see map attached to this report)

2.1 The route starts in Nursling at the end of the surfaced highway (point A) and runs north as a gravel track to houses and boarding kennels called Meadowview (point B). From there, going northwards, the route consists of a narrow, sunken earth track bounded by large banks and mature trees as far as point C. Going north from C the track broadens out into a wider gravel track between hedges that is used by farm vehicles to gain access to the adjoining fields. At D there is a junction with another bridleway that crosses the valley to the west and the remaining route consists of a surfaced road that joins Lee Church Lane at point E where there is a gate. It is believed that the section D-E was surfaced by the landowner to facilitate use by farm traffic across the valley.

3. Background

3.1 In 1986 Nursling & Rownhams Parish Council made an application for a Map Modification Order to record public bridleway rights over the lane between Church Lane, Nursling and Lee Church Lane. An investigation of the user evidence, old maps and other documents revealed that the lane was, more likely than not, an all-purpose public highway. At a meeting in 1993, the Rights of Way Panel accepted an offer from the landowners to dedicate public bridleway rights and the question of higher rights was put in abeyance. The landowners entered into a dedication agreement with the County Council in May 1994 and the route has been recorded on the definitive map, as a bridleway, from that date.

3.2 In 1997 the Cyclists' Touring Club made an application to record higher rights on what was Romsey Extra Footpath 21 which runs westwards across the valley from point D. The investigation into this claim concluded that the public had acquired bridleway rights through a common law dedication but, again, the landowner offered to dedicate bridleway rights and this was accepted by the Rights of Way Panel at its meeting in July 2001. The landowner entered into a dedication agreement with the County Council in July 2002 and the route has been recorded on the definitive map, as a bridleway, from that date.

3.3 The investigation into this application highlighted the existence of evidence for public vehicular rights on the route along the east side of the valley, and members this time agreed to make an Order to record this route as a Byway Open to All Traffic. At the same time they also resolved to advertise an intention to make an Order under the Road Traffic Regulation Act 1984 to prohibit use by public motorised vehicles in recognition that opening up the route to vehicular traffic would, potentially, cause danger to other users (s.1a) and be unsuitable on a route that is heavily used by walkers and riders (s.1d and 1e).

3.4 These two Orders have never been made and on 2 May 2006, the Natural Environment and Rural Communities Act came into force which affects public rights on this route.

3.5 Those sections of the Act that relate to rights of way are intended (in broad terms) to extinguish public rights of way for mechanically propelled vehicles over green lanes, such as the subject lane between Nursling and Lee. The Act is the Government's response to public concern about the use of motorised vehicles in the countryside, but achieves its objective in a very unusual and wide-sweeping way: by extinguishing public rights of way for mechanically propelled vehicles over all ways which are not shown on the definitive map as byways open to all traffic, unless the way in question falls within one of a number of exemptions contained in sub-sections 67(2) and (3). These sub-sections are set out above and at paragraph 3 below.

3.6 If the route does not fall within one of the exemptions, it is inappropriate to record the way as a byway open to all traffic, because, on 2 May 2006, the public lost any right it may have had to use the lane with motor vehicles. Instead, the way should be recorded as a restricted byway, which is a right of way for walkers, cyclists, horse riders and horse drawn vehicles.

3.7 Unfortunately, because of the way the new Act is drafted, it is necessary to consider whether there is evidence to show that any one of the exemptions applies before it is possible to say that motorised vehicular rights have, in fact, been stopped up. Some of the exemptions are relatively easy to prove or disprove but others are much more difficult. Although it is not explicit in the Act who has the burden of proving that one of the exemptions applies, the Department of Food and Rural Affairs advises that the onus is on the person seeking to prove that motorised vehicular rights still subsist. Although officers are not aware of anyone sustaining a claim that motor vehicle rights still exist, officers have considered whether any of the exemptions apply.

4. Exemptions

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

Section 67(2)

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

Although there has been use by motorised vehicles of the section A to B this has been in connection with access to and from dog boarding kennels at Meadowview. At point B there is a bridlegate which physically prevents four wheeled vehicles getting north of that point and from regular visits to the site by various rights of way officers over the last 10 or so years it can be said with some confidence that there has been little or no use by mechanically propelled vehicles between points B-C-D other than farm vehicles. There has been some use of section D-E but that was in connection with private fishing rights on the River Test.

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

The route is not shown on the county's list of publicly maintainable highways.

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

No evidence was discovered during the officer's investigation that the claimed route was expressly dedicated as a way for mechanically propelled vehicles.

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

The route has been in existence for hundreds of years and therefore could not have been constructed for use by mechanically propelled vehicles.

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

There is no evidence of use by mechanically propelled vehicles before 1930. The 1929 Handover Map described the route as a "footpath" therefore it is likely that the route was no longer being used by vehicles at that date.

Section 67(3)

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

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

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

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

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

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

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

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

5. Consultations

5.1 Nursling & Rownhams Parish Council

The Clerk has written to say that:

"Nursling & Rownhams Parish Council strongly supports the proposed action by HCC to change the status of the ancient track joining Lee Church Lane to Church Lane, Nursling to a restricted byway."

5.2 Romsey Extra Parish Council

No comment

5.3 Test Valley Borough Council

No comment

5.4 Councillor R Perry - local member

No comment

5.5 Ramblers Association

The Hampshire Area Footpath Secretary has written to say:

"The Ramblers Association agrees that this matter probably does not come under the exceptions listed. However, if a different view prevails and the track is deemed to be a BOAT, then the Ramblers Association would ask that a Traffic Regulation Order is made to prohibit its use by public motorised vehicles."

5.6 British Horse Society

"In principle, the British Horse Society would object to this bridleway being upgraded to BOAT as it is unsuitable for mechanically propelled vehicles; it would have no objection to an upgrade to restricted byway which would provide more off-road access for carriage drivers. As I have no information on this path I am unable to comment on whether the exceptions to the NERC Act apply to it or not."

5.7 Cyclists Touring Club

No comment

5.8 British Driving Society

No comment

5.9 Trail Riders Fellowship

A representative of the Trail Riders have expressed annoyance at the council's failure to make an order for byway status before the relevant date. They originally challenged the council's interpretation of section 67(3)(b) but now reluctantly accept that to be exempt the original claim has to be for byway status.

5.10 Hampshire Highways

No comment

5.11 Environment Department

No comment

5.12 The landowner - The Broadlands Estate

No comment

5.13 Adjoining landowners at Meadowview

A site visit has been held with the owners of the two properties at Meadowview. They expressed concern about use by motorised vehicles and the officer described how the lane could be managed to deter use by motorbikes and motor vehicles whilst preserving access for other types of traffic. The proposed restricted byway status will not affect existing private access by vehicles to and from these properties.

6. Conclusions

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

6.2 Mechanically propelled vehicular rights were extinguished over the route by the Natural Environment and Rural Communities Act 2006. This leaves public rights on foot, bicycle, horse back and with horse-drawn vehicles. Therefore, this route should be recorded as a Restricted Byway.

RECOMMENDATIONS

1) That the resolution of the Rights of Way Panel of 7 July 2001, to make an Order to record a Byway Open to All Traffic, between points A-B-C-D-E, as shown on the map attached to this report, be rescinded.

2) That a Definitive Map Modification Order be made to add a Restricted Byway between Church Lane, Nursling and Lee Church Lane, as shown between points A-B-C-D-E on the map attached to this report.

Section 100D - Local Government Act 1972 - background papers

The following documents disclose facts or matters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of this report.

NB The list excludes (1) published works and (2) documents which disclose exempt or confidential information as defined in the Act.

File CR57 - Rights of Way Office, Mottisfont Court, Winchester