Hampshire County Council

Regulatory Committee Item 15

23 May 2007

Application for a Map Modification Order for the addition to the Definitive Map of a Byway Open to All Traffic near Ibworth in the Parish of Hannington

Report of the Director of Recreation & Heritage

Contact: Colin Piper Ext. 6043 [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 reasonably 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 that event.

(3) The events referred to in sub-section (2) are as follows -

(b) the expiration... 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 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;

Presumed Dedication at Common Law

Use of a way by the public without secrecy, force or permission of the landowner may give rise to an inference that the landowner intended to dedicate that way as a highway appropriate to that use, unless there is sufficient evidence to the contrary. Unlike dedication under S.31 Highways Act 1980, there is no automatic presumption of dedication after 20 years of public use, and the burden of proving that the inference arises lies on the claimant. There is no minimum period of use, and the amount of user which is sufficient to imply the intention to dedicate will vary according to the particular circumstances of the case. Any inference rests on the assumption that the landowner knew of and acquiesced in public use.

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.

1. Summary:

1.1 A resident of Hampshire has made an application to have a route recorded as a byway open to all traffic. The path is currently not recorded as a public right of way of any description. The claim is primarily based on documentary evidence which the applicant believes demonstrates that the route was, historically, a full public highway. On balance the historic evidence does point to the existence of public vehicular rights and this is given some credibility by user evidence in the 20^th century. Members are recommended to make an Order to record the claimed route as a byway open to all traffic on the basis of a common law dedication.

2. Recommendation:

That a Map Modification Order be made to record the route A-B, as shown on the attached map, as a byway open to all traffic with a width varying between three and ten metres.

3. Claimant:

Mr D Tilbury

Oakbank Cottage

Oakbank Road

Bishopstoke

Hampshire

SO50 6PA

4. Landowner: Tenant:

Mrs C Creen Kingsclere Estates Limited

4 Waterworks Cottages Pitt Hall Farm

Lynn Lane Kingsclere Road

Shenstone Ramsdell

Lichfield Hampshire

WS14 0DS RG26 5RJ

5. Description of the routes: (please refer to the map attached to this report)

5.1 The claimed route consists of a sunken dirt track, about three metres wide, bounded by large earth banks on which are growing mature trees. It runs eastwards from a right angled bend in a public road known as Summer Down Lane for 620 metres to connect with a sharp bend in a public road known as Upper Wootton Road. At its western end there is an unlocked field gate that provides access to the fields on both sides of the lane. At its eastern end the route is blocked by a fence and immature trees, and the last 25 metres of the lane has been grubbed out to provide access for farm machinery between the fields on both sides of the old lane. The lane is a substantial feature in the landscape with a woodland strip along most of its southern edge. It is not currently recorded as a right of way of any description.

6. The issues to be decided:

6.1 The issue to be decided by this committee is whether there is evidence to show that a public right of way exists, or is reasonably alleged to exist, over the route in question. If members decide that a public right of way does exist, then the status of that route needs to be determined.

6.2 If the committee is so satisfied, it is asked to consider whether any of the exceptions contained in s.67(2) and (3) Natural Environment & Rural Communities Act 2006 applies to those rights. If the committee is not satisfied that the application should be granted, it may consider whether the evidence shows that any other amendment is required to the definitive map and/or statement in the light of the evidence contained in this report.

6.3 Any changes to the definitive map must reflect public rights that already exist. It follows that changes to the definitive map must not be made simply because such a change would be desirable, or instrumental in achieving another objective. Therefore, before an order changing the definitive map is made, Members must be satisfied that public rights have come into being at some time in the past. This might be in the distant past (proved by historic or documentary evidence) or in the recent past (proved by witness evidence).

6.4 Historic and documentary evidence has been examined to see whether the past history and use of the paths points to them having footpath, bridleway or vehicular rights as a result of dedication in the distant past. Any such rights are not lost merely through disuse. Unless stopped up by due process of law any rights previously dedicated will still exist, even if they are now neither used nor needed (subject to any statutory extinguishment under Natural Environment & Rural Communities Act 2006. This evidence must be looked at as a whole, it being unlikely that a single document or map will provide sufficiently cogent evidence to justify a change to the definitive map and statement. This type of evidence may disclose rights other than those claimed by the applicant. The County Council is under a duty to record such rights as are found to exist, even if they are not claimed by the applicant.

6.5 Evidence forms and statements taken from those who have used the path or have knowledge of it in living memory can show that higher rights have been acquired as a result of a recent dedication at common law, or a deemed dedication under s.31 Highways Act 1980. It may not be necessary to examine this type of evidence if the historic and documentary evidence shows that higher rights were dedicated in the past and still subsist, although the user evidence may add credibility to the earlier evidence of dedication. This type of evidence is also useful in determining the width of the path.

6.6 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 not a step which should be taken simply to avoid making a difficult decision. Officers do not consider that there is any such conflict in this particular case.

6.7 The originals of many of the documents referred to in this report are only available in public record offices, but copies, transcripts or tracings of most documents are available for inspection in the offices of the Rights of Way Section, as are witness evidence forms and statements. The office files also contain the original application, objections from the Green Lanes Protection Group and submissions from the landowner. Members are urged to inspect these, or the originals, when considering this report.

7. Documentary evidence:

7.1 Evaluation of Historic Documents

Information on the background and evidential weight which should be attached to particular historical sources is included at Appendix 1 which should be read in conjunction with this section.

7.2 1759 Isaac Taylor's Map (1 inch to 1 mile)

This map shows a route, by parallel solid lines, that could be the claimed path. However, there are obvious inaccuracies in the positions of other features in the locality, compared to contemporary maps, so this evidence cannot be relied upon to prove the existence of the claimed route.

7.3 1791 Thomas Milne's Map (1 inch to 1 mile)

There are no tracks or roads shown in the locality of the claimed route, including routes that are now public roads. Therefore this map is of no evidential value in determining the status of the claimed route.

7.4 1797 Estate Map (15 inches to 1 mile)

This map shows land in the parish of Hannington that is owned by the Dean and Chapter of Winchester. It includes a large field on the south side of the claimed route and the map shows the middle part of the lane by parallel solid lines and coloured brown in the same manner as other routes that are now public highways. The lane has not been numbered and therefore does not appear to be included in the ownership of the Dean and Chapter.

7.5 1797 Ordnance Survey drawing (3 inches to 1 mile)

This drawing shows clearly the claimed route by parallel solid lines in the same manner as other local routes that are now public roads. It forms part of the most direct route between the settlements of `North Oakley' in the west and `Ebbworth' (now Ibworth) in the east.

7.6 1810 Ordnance Survey map (1 inch to 1 mile)

This map is derived from the earlier drawing but the detail is generalised to accommodate the smaller scale. For a route to be shown at this scale it must have been a prominent feature in the landscape. The claimed path is still shown by parallel solid lines and forms the direct route between North Oakley and Ebbworth.

7.7 1826 Greenwood's Map (1 inch to 1 mile)

There is no difference in the depiction of the claimed route on this map compared to the earlier Ordnance Survey map.

7.8 1840 Hannington Tithe Map (13 inches to 1 mile)

This map covers virtually all of the land on both sides of the claimed route. The track itself is shown by roughly parallel, solid, lines and coloured brown in the same manner as other adjoining routes that are now public roads. The fields on both sides of the lane are numbered, and therefore titheable, but the lane has no parcel number and is therefore excluded from taxation with no listed owner or occupier. There are no lines across the track that might indicate the existence of gates or other barriers. The five fields that border the lane, in Hannington parish, are owned and occupied by three different landowners or copyholders. This pattern of ownership and occupancy does not lend itself to the idea that the lane is a private estate road.

7.9 1843 Kingsclere Tithe Map (13 inches to 1 mile)

At this time Kingsclere Parish includes a short section of the western end of the claimed route. This small portion is shown by parallel solid lines and coloured brown in the same manner as other local highways that are now public roads. The lane has no parcel number and is therefore excluded from taxation with no listed owner or occupier. There is no line across the western end of the lane that might indicate the existence of a gate or other barrier.

7.10 1843 Estate Map (12 inches to 1 mile)

This map shows land in the parish of Hannington that is owned by the Dean and Chapter of Winchester. It includes virtually all of the land on both sides of the claimed route. The lane is shown by parallel solid lines and coloured brown in the same manner as other local highways that are now public roads. The parcels of land that form the estate have been given numbers but the lane itself is not numbered. However, at its western end, there is a solid line across the lane which would probably indicates the existence of a gate, although this is outside the area of land owned by the Dean and Chapter. This time the five fields that border the lane are in the ownership/occupancy of four different copyholders. This pattern of ownership/occupancy does not suggest that the lane is a private road.

7.11 1845 Kingsclere Enclosure Map

At this time Kingsclere Parish includes a short section of the western end of the claimed route. The lane is not part of the land being enclosed but it is shown by parallel solid lines and coloured brown in the same manner as other local highways that are now public roads.

7.12 1871 Ordnance Survey map (25 inches to 1 mile) - first edition

A copy of the map is attached as Appendix 2. This large-scale map shows the claimed route by solid lines set between three and ten metres apart. There are no lines across the track to indicate the existence of gates or other barriers. It forms part of a continuous route that runs from west to east. The Book of Reference, which accompanies this map, describes the use of every parcel of land. All of the claimed route is part of plot number 84 which also includes part of what is now the public road to the east (Upper Wootton Road) and a small part of what is now the public road to the west (Summer Down Lane). The Book of Reference describes this land as `Road'. The two `present-day' roads to the south form `T' junctions with the east-west highway, giving the impression that the claimed path is the primary route. This map, and other subsequent large-scale Ordnance Survey maps, has been used to calculate the width of the highway as defined by solid line features.

7.13 1895 Ordnance Survey map (25 inches to 1 mile) - second edition

There is very little change in the depiction of the claimed route compared to the earlier OS map of 1871.

7.14 1900 Estate Map (12 inches to 1 mile approx.)

This map shows land in the ownership of the Rev. Thomas Wigg. He owned a large field on the north side of the claimed route and this is shown coloured green on the map. The eastern half of the claimed route, that adjoins his land, is shown by parallel solid lines. It is not coloured, or numbered, and therefore probably not part of his estate.

7.15 1900 Estate Map (12 inches to 1 mile approx.)

This is a crude map that shows land owned by the Trustees of the Estate of George Webb. It includes a large field on the south side of the claimed route which is has been numbered and coloured green on the plan. The lane itself is not coloured or numbered and therefore probably does not form part of the estate. At its western end there is a solid line across the lane which probably indicates the existence of a gate or other barrier. However, this part of the map falls outside of the estate land, and the map could well be a tracing of the earlier estate map dated 1843.

7.16 1909 Ordnance Survey map (25 inches to 1 mile) - third edition

There is no material change in the depiction of the claimed route compared to the earlier OS maps of 1871 and 1895.

7.17 1929 Handover Map

This map shows those routes that Kingsclere Rural District Council considered to be publicly maintainable highways when it handed over responsibility for them to the County Council. The claimed route is not coloured or marked in any way which indicates that, at that date, the rural district council did not consider it to be a publicly maintainable highway.

7.18 c1940 Ordnance Survey Map (25 inches to 1 mile) - fourth edition

The map that covers the western half of the lane is not available. The eastern half is depicted in the same manner as the earlier Ordnance Survey maps of 1871, 1895 and 1909.

7.19 1952 Draft Definitive map (6 inches to 1 mile)

The claimed route was not claimed as a public right of way by Kingsclere Parish Council when the map was drafted in the early 1950s. At that time Kingsclere was a very large parish, that included Hannington village, and the claimed route was close to the southern border of the parish.

7.20 1968-72 Ordnance Survey Map (1/2,500 scale)

The claimed route is still shown by solid lines spaced between three and ten metres apart. There are no solid lines across the lane, which might indicate the existence of gates or other barriers, but the map does show scrub and tree symbols, within the strip, which indicates that it has become at least partly overgrown with vegetation. At its western end there is a short track, about 50 metres long, which provides access from the public road to the fields to the north of the claimed route.

7.21 2000 Application for a Map Modification Order

Mr D Tilbury submitted his application on 20^th January 2000.

8. Witness evidence:

The claim is primarily based on historic, documentary, evidence. However, the officers have also been given or gathered user evidence that should also be taken into account because it builds a picture of how the lane has been used and managed in more recent years.

8.1 1995 Statement of Mr B Oates (deceased)

In preparation for a public inquiry, held in 1995, into the status of another route in the locality, a Mr Benjamin Oates provided a signed statement concerning his use of the lanes in the area. His statement is as follows:

"I am 84 years of age. I lived in the Hannington area all my life until I moved to Whitchurch in the early 1980s. I wish to put on record that I have used the lanes which I have marked A-B and C-D on the attached plan."

(The attached plan shows that A-B is the route that is the subject of this investigation.)

"I have used the lane A-B with a horse and cart many years ago. It was regularly used short cut between the Ibworth and Hannington roads. Again this was used by everyone during the 1920s and 1930s, which is when I used it with a horse and cart. One farmer who owned adjoining land used to trim it out. He didn't mind people using it. I am not aware of anyone having asked permission to use the track, nor of being stopped. As far as I am concerned it should be a full right of way for all purposes."

8.2 1996 Letter from Mr D Tilbury

The letter is addressed to the Rights of Way Manager at the county and reads:

"In order to avoid any question of stealth or secrecy regarding the vehicular use of certain highways, I write to inform the Authority of some of the lanes ridden by the TRF (Trail Riders Fellowship). These ways may, or may not, be shown on the Definitive Map but where they are, there is evidence that would indicate a higher status than is currently recorded. Please note that there has been no recorded challenge to use on those ways listed below and so the use will continue nec vi, nec clam, nec precario (without force, without secrecy, without permission).

There then follows a list of those routes over which the TRF claim use and this includes the route in Hannington which is accurately described by grid references. There is no mention in the letter of how long and with what frequency the TRF has ridden the claimed route.

In further correspondence, dated September 2005, Mr Tilbury expands on his evidence of use as follows:

"I have used this route on my motorcycle (usually in the company of others) I have walked this route on several occasions (in the company of others) and I know local people used it with horses and I've seen cycle tyre marks on the lane - until it was fenced off."

8.3 2007 Statement of Mrs J James (deceased)

8.3.1 Mrs James was born in Hannington, in 1925, and until the age of 19 she lived in a cottage opposite the old school. She was the youngest of eight children with four brothers and three sisters in her family. Mrs James lived her entire life in the parish of Hannington.

8.3.2 She remembers, as a young girl, going for walks with her family at week-ends and summer evenings. Their usual route was to walk down what is now known as the Oakley Road, which they used to call Hannington Hill, past Freemantle Farm and along the road by the side of Warren Bottom Copse. This brought them to a right-angle bend in the road but straight ahead was an earth lane that led towards Ibworth (the claimed route). Mrs James and her family walked up this lane which brought them out onto a bend on the main Ibworth Road. From this bend they walked to Ibworth and then turned left to walk back to Hannington along Ibworth Lane. The earth track was not obstructed by gates or fallen trees, it was well used by local people going for walks and Mrs James has seen the local hunt use the lane.

8.3.3 For many years Mrs James carried on walking down the lane with her family and then, in 1944, she got married and with her husband went to live in a rented cottage in North Oakley. Mrs James had two sons, born in 1947 and 1954 and she used to go for walks with them on the same route that she used with her mother. They would do that walk most Sundays and, when they were a little older, her sons would ride their bicycles along the earth lane. Again, there were no obstructions or barriers that prevented them from walking along the lane nor any notices to say they shouldn't be there. Mrs James probably last used the lane for walking when her youngest son was about 11 years old, which would be in the mid-1960s.

8.3.4 Mrs James knew Ernie Baggs who lived in White Lane and would sometimes see him pottering around when she walked up the earth lane towards Ibworth. They would stop and talk but he never told her that she shouldn't be using the lane. She also knew Bert Trebles who lived in Ibworth. She used to see him when they walked through Ibworth and he didn't say anything about her use of the lane. Both Mr Baggs and Mr Trebles owned land on both sides of the claimed route.

9. The landowners:

9.1 Mrs C Creen

In an e-mail dated 13 December 2006 Mrs Creen confirmed that she is the owner of the land in question but does not have any evidence regarding how the lane has been used and managed. She directed the officers to Mr May of Kingsclere estates for more information.

9.2 Kingsclere Estates Limited

In a letter dated 24^th January 2000, shortly after the application for a map modification order was made, the Managing Director, Mr May wrote the following letter to the Rights of Way Manager:

"We have tenanted the land for the past 10 years in which time we have actively stopped public use of the old track by, on occasions, locking the gate at the bottom and placing notices saying "No Right Of Way". We also challenge any members of the public trying to use it. We have just received planning permission to alter the top gateway, after this work is completed we will wire up the old track."

9.3 In a further letter, dated 14^th May, Mr May made the following comments on the evidence:

· The 1843 map indicates the lane has restricted access and the four different owners could all have had a right of passage along the lane to reach their fields without it being a public right of way.

· The 1929 Handover Map proves that the track was not a public road at that time as no public body maintained it. There is no evidence on maps since 1929 to show that a public right of way existed and note should be made of the 1952 draft definitive map when the route was not claimed.

· Mr Oates's 1995 statement said he used the track as a short cut and one of the farmers did not mind people using it. This does not mean that the farmer accepted it as a public right of way.

· In Mrs James's statement she states that she knew Mr Baggs and Mr Treble who owned the fields adjoining the track and was not stopped from using the track. One would not expect local farmers to stop all known locals using their tracks if they were doing no harm.

I hope your committee will see fit to leave the status of the track as it is and allow it to be enjoyed by the private owners as an undisturbed natural habitat as we know it has been for over 60 years.

9.4 Mr J Eckton of Ramsdell - Farm Manager for Kingsclere Estates until 1996

9.4.1 In 1939, when Mr Eckton was eight years old, he moved to Ibworth to live in a house called Keepers Cottage but now known as Lower Farm House. At that time his father was a gamekeeper for the Colman family at Malshanger Estate.

Mr Eckton first became aware of the track between Ibworth and North Oakley, over which the right of way is claimed, when he was about 10 years old. He worked at week-ends and school holidays as a beater for Freemantle Farm and to get there he took a short cut by walking down the lane, sometimes on his own and sometimes with his brothers. He knew that he was not supposed to use it though because Ernie Baggs, at Haywood Farm, owned most of the land on both sides of the track and Bert Trebles, at Bailey Hall Farm, owned a field on one side.

9.4.2 Mr Eckton went beating about twice a month from September to January but didn't always walk down the lane because sometimes he got a lift. During the war the track was overgrown and partly obstructed by fallen trees and scrub. It was mostly alright to walk down but it was not used by horses or carts. He didn't see anyone else using the path. There were no gates across the track but he has a feeling that there was a `No trespassing' sign somewhere, perhaps in a gap leading into a field. He was never stopped from walking down the lane. Mr Eckton left Ibworth in 1945 to move to a house north of Hannington, and then in 1947 he started work at Pitts Hall Farm for Gilbert (Toby) May, the father of the current owner. In those days the farm did not extend as far as Ibworth and the claimed track.

9.4.3 Toby May bought Lower Farm, in Ibworth, in the 1960s or 70s, followed by Bailey Hall Farm and then the main part of Balstone Farm. When the Mays bought the fields and lane south-west of Ibworth Mr Eckton worked on that land and got to know the lane again. The track was open then and it was being used by walkers and horse riders. He doesn't recollect seeing motor vehicles down there and he wouldn't have wanted to have driven a Land Rover down the track himself. He hasn't stopped anyone from using the track but he believes that the present Mr May has told people it is not a right of way. At the North Oakley end of the lane a gate was put up across the track.

9.4.4 Mr Eckton stopped full-time work at Pitts Hall Farm in 1996 but for five years after that did part-time work planting trees and hedges around the estate, including across the mouth of the track at the Ibworth end (point B). He did this work in about 2000.

9.5 Mr D Saunders of Alton (previous landowner)

In a letter dated 9 January 2007, Mr Saunders supplied the following information:

"I owned the land from 1985 until 1990 and during that time I saw no evidence that this route was used, or ever had been used, as a public right of way. When I became the owner in 1985 I erected a gateway at point A on the map which was kept locked and no-one ever challenged this. During the period of my ownership the route was wooded with high hedgerow trees some of which had fallen down across the area, which made it impossible to walk, ride or drive through. My father-in-law, Mr E C Lewis who is now 91 years old, was a close friend of the previous owner, a Mr E Baggs, since 1946. Over the years he shot with Mr Baggs over the land and he confirms that, as far as he is aware, there was never a right of way over this route or any claim to one.

The letter is also signed by Mr E C Lewis.

10. Consultations with other bodies:

10.1 Hannington Parish Council

No comment

10.2 Oakley Parish Council

No comment

10.3 Basingstoke & Deane Borough Council

The response details the recent planning history of the site but this does not throw any light on its historical use.

10.4 County Councillor M Tucker - local member (Tadley and Baughurst)

No comment

10.5 County Councillor K Chapman - local member (Calleva and Kingsclere)

No comment

10.6 The Ramblers Association

The Hampshire Area Footpath Secretary has written to say:

"The Ramblers Association would welcome having this as a right of way as it would form a valuable part of the network between Ibworth and North Oakley. It would also form part of an excellent circuit for walkers from Hannington via Ibsworth and Warren Bottom Copse."

10.7 The British Horse Society

The County Access & Bridleways Officer has written to say:

"If the historical evidence supports BOAT status for this path it would make a useful link in the rights of way network, helping to keep users off the road. Obviously if the law is amended in time we would prefer it to be classified as a restricted byway. I have no evidence to offer on this application."

10.8 Cyclists' Touring Club

No comment

10.9 British Driving Society

No comment

10.10 Trail Riders Fellowship

No comment

10.11 Green Lanes Protection Group

Mr G Plumbe, vice-chairman of the Green Lanes Protection Group, has asked that officers note his objection to the application, on the basis of arguments put forward in Counsel's opinion, as to which this Committee has received advice.

He believes that the application is deficient because it does not meet the requirements of Paragraph 1 of Schedule 14 Wildlife & Countryside Act 1981, and any unrecorded public vehicular rights have therefore been extinguished. His three specific points are:

1. The application does not specify whether it is for bridleway or a BOAT.

2. Although the prescribed form is unchanged in the reference to "I attach copies of the following documentary evidence...", and overleaf "A list of documents is attached", no copy documents were attached and no list of such documents was provided. The applicant identified evidence on which he wished to rely but did not produce copies.

3. No map accompanied the application.

The response to these points can be found in paragraph 13 of this report.

10.12 Environment Department

The County's Ecology Officer has written to say:

"The route itself is designated a Site of Importance for Nature Conservation (SINC) as the hedgerow along which the route runs is remnant ancient woodland and an important corridor leading into Warren Bottom Copse and Hay Wood, both of which are also designated as SINCs under criteria 1A as they are also ancient woodland. We would be very concerned over the potential impacts of motorised traffic using this route as there is a high likely hood of both disturbance and direct damage to these SINC sites. This damage and disturbance would be contrary to the aims and objectives of the Hampshire and Corporate Biodiversity Action Plans as well as policy E11 of the County Structure Plan. I have noted that issues such as environmental consequences cannot be taken into account at this stage, however, this proposal does pose a significant direct threat to this site and if the proposal must be enforced through other duties of the County Council, methods for protecting and enhancing this site must be sought under the Council's commitment to the Corporate Diversity Action Plan."

10.13 Hampshire Highways

No evidence

11. Analysis of the evidence:

11.1 The first map that definitely shows the claimed path is the estate map dated 1797 and it is depicted on that document in the same manner as other routes that are now public roads. So, from the documentary evidence, it is known that the lane is over 200 years old but its physical character suggests that it is much older than that. The size of the earth banks on both sides of the lane and the age of the trees indicates a lane of some antiquity. The County's Ecology Officer describes the boundary hedgerow as `remnant ancient woodland'.

11.2 The position of the lane in relation to the local topography lends weight to the notion that the lane was once part of the local public highway network. It forms part of a direct link between the hamlets of North Oakley and Ibworth. The existing alternative route between points A and B is by roads to the south that involves a journey of 2,070 metres (1.3 miles) as opposed to the 620 metre (0.38 miles) length of the claimed route. In the past any walker, horse rider or driver of a horse-drawn vehicle would surely have been strongly inclined to take the direct route, if it was available, rather than take a long detour to the south. This is circumstantial evidence but in this case it would seem to carry some weight.

11.3 This area of Hampshire is not particularly well documented falling as it does on the border of, originally, Hannington and Kingsclere parishes and, more recently, Hannington and Oakley parishes. The adjoining land does not appear to have been part of a large estate and the claimed route does not have a distinctive name. Nonetheless, there are still six maps which show land ownership in some form or other and none of them contain evidence that the lane was occupied or owned by the adjoining landowners. The estate maps of 1797, 1843, 1900 (two) and the Tithe Maps of 1840 and 1843 all show land in multiple ownership or occupation adjoining the lane but the lane itself is not included in these properties.

11.4 The most detailed mapping evidence can be found in the four large-scale Ordnance maps made between 1871 and 1940. Each of these maps show the claimed route as a natural continuation of Summer Down Lane and Upper Wootton Road with the roads to the south forming `T' junctions with the east-west route. This is reinforced by the extent of parcel number 84, used on the 1871 map, which includes that stretch of existing public road, Upper Wootton Road, running south-west from Ibworth, as well as the whole of the claimed route and a small part of Summer Down Lane. The Book of Reference describes this land as `Road'. The lanes south of points A and B have separate parcel numbers on the Ordnance Survey maps. These maps strongly suggest that the claimed route is the primary lane in the locality and that the flow of traffic is mostly east-west rather than north-south.

11.5 The only evidence of an obstruction or restriction on the lane, before 1985, is the Estate Map of the Dean and Chapter dated 1843 and, possibly, the plan showing land owned by the Trustees of George Webb, dated 1900. Both documents show a solid line across the lane at Point A. However, all other maps and plans, including large-scale Ordnance Survey maps, show the lane as being free of obstructions. No mention of artificial barriers is made by Mr Oates and Mrs James who, between them, had knowledge of the lane from the 1920s to the 1960s. Mr Eckton confirms there were no gates across the track in the 1940s and 1970s, and the first evidence of a gate is contained in Mr Saunders letter. It is he who erected and locked the gate at Point A in 1985 and, according to Mr Eckton, the route was blocked, at point B, in 2000.

11.6 Evidence of use of the lane by the public can be found, most notably, in the statement of Mr Oates (paragraph 8.1). His description of use of the lane in the 1920s and 1930s, in a horse-drawn vehicle, is consistent with a rural public road of that time. That use seems to have continued in some form or other until the 1990s. Mrs James relates her frequent use, with her family, for country walks from about 1930 through to the 1960s. Mr Eckton used the route to walk to and from Freemantle Farm, although he believed the lane to be private, and acknowledges that it was used by walkers and horse riders in the 1970s-80s. In his letter of 1996 Mr Tilbury relates his use of the lane on foot and on a motorbike, but does not give frequency of use.

11.7 There is evidence that landowners have controlled access to the lane over the last few decades. In his letter Mr Saunders relates that when he bought the land, in 1985, he put up a gate across the track at Point A. Kingsclere Estates provide evidence of that same gate being locked and signs erected saying `No public right of way' in the period 1990 to 2000. In 2000 Mr Eckton recalls that he planted trees across the eastern end of the lane. There have probably been some natural obstructions on the lane too because Mr Eckton mentions that, during the last war, the lane was overgrown and partly obstructed by fallen trees and scrub. This evidence is corroborated by the Ordnance Survey map of 1969-1972 which shows vegetation symbols within the confines of the lane which probably restricted use to some extent.

11.8 The evidence from Mr Lewis, father-in-law of Mr Saunders, is a little ambiguous. He recalls his close friendship with Mr Baggs, who owned some adjoining fields, since 1946 and that he shot with him over that land. However, his statement that there was never a right of way over the claimed route, or any claim to one, is not necessarily inconsistent with the documentary and user evidence.

11.9 From the historic evidence it would appear that the claimed route was part of the local highway network in the 18^th and 19^th centuries and possibly even into the first part of the 20^th century. Its decline was probably due to the surfacing of Summer Down Lane and Upper Wootton Road some time after the first world war. From then on most vehicles would have taken the easier, alternative, route and the claimed track was primarily used by local walkers and horse riders. By 1929 the Rural District Council did not consider it to be a publicly maintainable highway and the lane has, at times, become partly overgrown with vegetation.

12. Conclusions:

12.1 The lane has existed as a physical feature in the landscape for over 200 years and is probably much older than that.

12.2 Its location strongly suggests that it would have been used by the local population as a direct route between settlements.

12.3 The six maps, made between 1797 and 1900, which show land ownership in the locality, do not indicate that the lane was owned or occupied by the adjoining landowners.

12.4 The Ordnance Survey large-scale maps, especially the first edition, strongly suggest that the claimed route was a continuation of the existing public roads to the east and west.

12.5 There is evidence of use by four members of the public from the 1920s through to the 1990s.

12.6 Landowners have exercised some degree of control over public access to the lane from 1985 onwards and completely stopped use in 2000.

12.7 It is reasonable to infer, from the documentary and user evidence, that a public right of way for all types of traffic, subsists, or is reasonably alleged to subsist over the claimed route.

13. Natural Environment and Rural Communities Act 2006:

13.1 There remains to be considered whether the `motorised' element of the right of way with vehicles has been extinguished by this Act. It will have been, unless one of eight exceptions contained in the Act applies. These exceptions are set out in the box on page 2 and one of them will be the subject of a separate report to this Committee.

13.2 The applicant does not rely on any of the exceptions in s.67(2). It seems unlikely to officers that any of these exceptions are applicable:

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

There is little evidence of use of the routes by the public in motor vehicles. Even on a pragmatic interpretation of this exception, the nature of the way is such that it is clearly not part of the current normal highway network.

(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 routes were not shown on the List of Streets on 2nd May 2006.

(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 routes came into being as a result of an express dedication or by statute.

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

The routes have never been constructed as a road for motorised vehicles.

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

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

13.3 The exceptions in s.67(3) (b) and (c) do not apply.

13.4 The applicant relies on the exception in s.67(3)(a), i.e. that the application was made before the cut off date of 20 January 2005. It was made on 20 January 2000. NERC states that an application is validly made if it complies with Paragraph 1 of Schedule 14 to the Wildlife and Countryside Act 1981. Paragraph 1 requires that the application shall be accompanied by `a map drawn to the prescribed scale and showing the way...to which the application relates' and `copies of any documentary evidence...which the applicant wishes to adduce in support of the application'.

13.5 The file does contain a map from the applicant but it is a copy that was sent to the landowner with a notice of the application. This map is at a scale of approximately 1/8,000. There was already a map showing the claimed route on file when the application was made. This was drawn up by the officers as a result of an earlier enquiry from a local resident who alleged that the lane was a public right of way. The rights of way section would not have logged the application as a valid claim unless it was accompanied by a map and it is likely that the map submitted with the application was mislaid or discarded in error at some stage between 2000 and 2006 when the claim was taken up for investigation. The route of the path being claimed has never been in doubt because it is very old and well-defined feature in the landscape that has never deviated from its alignment.

13.6 On the application form the three types of rights of way (footpath, bridleway and byway open to all traffic) are listed to enable the applicant to indicate the status of the right of way being claimed. In this case the applicant has deleted the word `Footpath' but left untouched the other two categories. The officers interpret this action as a claim for byway rights and, if the evidence does not support that category, for the lesser status of bridleway. It is not considered that this action on the part of the applicant would render the application invalid on the grounds that the applicant was not claiming byway rights, because a byway open to all traffic was claimed.

13.7 The application was made in good faith and was accepted as a valid application by the rights of way section but it was not accompanied by copies of any documents, only by a schedule setting out the nature and in some instances, the relevant content of the document relied on. Advice from the Department for Environment Food and Rural Affairs is that this should not preclude an exemption under s.67(3)(a) and that such an application does comply with Paragraph 1. Members should, however, be aware that the courts may not adopt a similar approach, instead denying exemption to any application that does not comply strictly with every requirement of Paragraph 1. On balance, officers consider that s.67(3)(a) provides an exemption from the extinguishment of any rights of way for mechanically propelled vehicles over route A-B.

14. Conclusions on NERC element

14.1 If members are satisfied that the evidence shows that a public right of way with vehicles subsists, or is reasonably alleged to subsist along the claimed route, and that the `motorised' element of that right of way has not been extinguished by s.67(1) NERC, then it is appropriate for an Order to be made adding a byway open to all traffic to the definitive map.

14.2 If members are satisfied that the evidence shows that a public right of way with vehicles subsists, or is reasonably alleged to subsist along the claimed route, but that the `motorised' element of that right has been extinguished by NERC, it is appropriate for an Order to be made adding a restricted byway to the definitive map.

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 CR573 - Rights of Way Office, Mottisfont Court, Winchester