Archived decisions
Hampshire County Council
Regulatory Committee Item 11
23 May 2007
Application for a Definitive Map Modification Order to upgrade to a byway open to all traffic Footpath 9 in the parish of Bramshaw
Report of the Director of Recreation and Heritage
Contact: Alex Lewis, extn. 6044; [email protected]
WILDLIFE AND COUNTRYSIDE ACT 1981
53. Duty to keep definitive map and statement under continuous review
(2) As regards every definitive map and statement, the surveying authority shall keep the map and statement under continuous review and as soon as reasonable practicable after the occurrence .... of any of [the events specified in sub-section (3)] by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event
(3) The events referred to in sub-section (2) are as follows -
(c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows:-
(i) that a right of way not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to which this Part applies
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 1st 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, 20th January 2005
1. Summary
This item considers an application to upgrade Footpath 9 in Bramshaw to a byway open to all traffic. The application is based on documentary evidence which suggests that it is more likely than not that the way was an ancient public road, although it has since fallen into disuse as a highway of this category.
2. Recommendation
It is recommended that the application be accepted and that an order be made to upgrade Footpath 9 in the parish of Bramshaw to a byway open to all traffic.
3. Description of the claimed path
3.1 The claimed route is currently recorded as Footpath 9 in Bramshaw, and is known locally by some people as Brook Lane. It commences at a junction with the public road, U137 (point A). This road is un-named, but it has been known as `Tinkers Lane' and is currently known by the Warrens Estate as `Warrens Estate Road'). The path runs for some 600 metres in a generally southwesterly direction to a junction with road B3079 at Brook (point B). The path is unsurfaced and has the characteristics of an old lane, although the verges are now overgrown. It is currently gated at each end.
3.2 The definitive statement for Footpath 9 reads as follows:
From Road U.137, southwest of Warren's Farm, to junction with Road B.3079
From U.137, southwestwards along gravel road 12 ft. wide through trees, through gap, along road enclosed between bushes and wire fence, along road enclosed 10 ft. wide between earth banks, along road 8 ft. wide enclosed 20 ft. to 30 ft. wide between wire fences, and through wicket gate at swing gate to junction with B.3079.
4. The Applicant and the Application
The Applicant is Mr D. Tilbury. The application was made in 2002 on behalf of the Trail Riders Fellowship.
5. The Landowner
Footpath 9 is believed to be owned by Brook Enterprises Limited, of the Warrens Estate in Bramshaw. This company also owns land on the northwestern side of the lane. Brook Enterprises Limited is opposed to the application and states that there has been no history of public vehicular usage along Footpath 9. Representatives state that path has always been gated at both ends and each gate has been permanently locked, which has prevented vehicles from using the lane for the past half century or more. Evidence from members of the Crosthwaite-Eyre family, who manage the land through the company, is contained in paragraphs 8 and 9.
6. Consultation
Letters of consultation have been sent to New Forest District Council, Copythorne Parish Council, Bramshaw Parish Council, The Clerk to the Verderers of the New Forest, The National Trust, New Forest National Park Authority, the Warrens Estate, J.F. Thomas (New Forest) Limited (owner of land on the southeast of Footpath 9), Open Spaces Society, The Ramblers' Association, British Horse Society, British Driving Society, Cyclists Touring Club, LARA, Trail Riders Fellowship, Environment Group (Hampshire County Council), and the Rights of way Area Officer. The local member,
6.1 Bramshaw Parish Council - is opposed to the claim, on the grounds that it is a quiet country walk and the surface is not suited to 4 wheel drive vehicles and other motorised transport. A former chairman of the Parish Council and, latterly, its footpath officer, confirms that the path has `always been locked for [the] past 25 years'.
6.2 The New Forest National Park Authority does not have any evidence relating to the existence of public vehicular rights on this route, but would welcome the opportunity to comment further on the future management of the route should vehicular rights be found to exist.
6.3 Mr Jeff Thomas of J.F. Thomas (New Forest) Limited, which owns land on the southeast side of the lane, has known the area since 1930s and believes that Footpath 9 has never been open to the public in vehicles, although he believes that it is used by horse riders. He considers that there is no justification for opening up the route to vehicles and that to do so would be dangerous and create a haven for criminals. He objects strongly to the application being approved.
6.4 Cllr Heron has been informed, and whilst recognising the duty to record any historic rights that exist, is opposed to designation as a byway open to all traffic. If the route is designated as a byway she would wish to see it closed immediately to motorised vehicles.
6.5 At the time of preparation of this report, no further responses have been received.
6.6 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 Counsels' opinion, as to which this Committee has received advice.
7 The issue to be decided
7.1 This Committee is asked to decide whether or not the evidence described in this report shows that it is more likely than not that a public right of way with vehicles exists on the claimed route, in accordance with the application.
7.2 If the Committee is so satisfied, it is asked to consider whether any of the exceptions contained in sections 67(2) and (3) Natural Environment and Rural Communities Act 2006 applies to the mechanically propelled element of those rights.
7.3 If the Committee is not satisfied that the application should be granted, it may consider whether there is any other evidence which shows that Footpath 9 ought to be shown in the definitive map and statement as a highway of any other status.
7.4 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 do not consider that there is such a conflict of evidence in this case.
7.5 Historic and documentary evidence has been examined to see whether the past history and use of the path points to its having 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 the Natural Environment and 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. Members are referred to the annexed paper on the interpretation of historic records.
7.6 The originals of some documents are in Hampshire Record Office, but copies of most can be inspected in the Rights of Way office, Mottisfont Court. Members are urged to inspect these, or the originals, when considering this report. Members can also inspect the original application and representations made by the Green Lanes Protection Group.
8. The historic and documentary evidence
8.1 Prior to 1895 the parish of Bramshaw was partly in Hampshire and partly in Wiltshire. In 1895 it was transferred to Hampshire but formed the separate civil parish of Bramshaw East. Bramshaw East and Bramshaw West were merged in 1932. Footpath 9 was in the `Wiltshire' part of the parish.
8.2 Information on the background and evidential weight which should be attached to particular historical sources is included as an appendix to this report.
8.3 Taylor's Map (1756)
This is one of the earliest small-scale commercial maps of the county. Although tracks are shown in the vicinity of the claimed route, the map is insufficiently precise in this area for them to be identified confidently. This map does not provide evidence in support of the claim.
8.4 Map and Survey of the Manors of Bramshaw, Cadnam and Winsor and Canterton (1790)
8.4.1 This map and survey is believed to be in the Warrens private archive, but officers have had sight of copies of the map. A microfiche of the written survey believed to have accompanied the map is held in Hampshire Record Office. The Survey was carried out on behalf of Lord Henry Paulet, who then owned a considerable amount of land in and around the present parish of Minstead and was Lord of the Manor of Bramshaw, Cadnam and Winsor, and Copythorne. The map records all land in those manors, including that owned by freeholders, copyholders and tenants as well as land in hand, lanes and commons.
8.4.2 The map shows Footpath 9 as an enclosed lane on its current alignment, merging with Warrens Estate Road (U137). It is marked `Tinkers Lane' and numbered 156. The number 156 and name `Tinkers Lane' also appears on that part of Warrens Estate Road which leads eastwards from its junction with Footpath 9 (i.e between A and C on the attached plan). That part of Warrens Estate Road leading northwest from the junction with Footpath 9 (i.e. A - D) is also shown as `Tinkers Lane', but it is numbered 198. No gates are shown across the lane. This map provides evidence of the existence of Footpath 9 as a physical entity, indistinguishable (in terms of status) from other roads and tracks in the area. Land on either side of Footpath 9 belongs to Henry Compton, or Jno. Turner. Owners of land adjoining Warrens Estate Road include Henry Paulet, Samuel Orr, Edwards Andrews and John Turner. This suggests that, in contrast to the position in the C19th, the land served by `Tinkers Lane' was not in the ownership of a single person.
8.4.3 The written survey for Bramshaw contains four lists: `Tenants', `Lifeholds', `Commons and Lanes' and `Freeholds'. Parcel 156 is found in the `Commons and Lanes' section and is described as `Tinkers Lane, from Brook to the bounds by Holladays' (this would take it beyond the end of Footpath 9 at point A, eastwards along Warrens Estate Road towards the parish boundary, at around point C). Parcel 198 is also described as Tinkers Lane `...leading from Brook to Stocks Cross', i.e. from the junction with Footpath 9 northwestwards beyond point D. An endorsement to the list notes "Tinkers Lane except timber granted to Geo. Eyre for 3 ...[illegible]".
8.4.4 Nothing in the survey states specifically whether any of the lanes listed are public or private and, if public, the type of traffic entitled to use it. Some, such as Vice Lane and Tinkers Lane (D - A - C) certainly are public. Only inferences can be drawn from the way in which Footpath 9 is treated in comparison with other lanes, or from the ownership of surrounding land or use to which it was put.
8.4.5 The survey was made prior to the sale in 1798 of the Bramshaw Estate to the Eyre family and before the present Warrens Estate house was built (it was completed in 1802 on the site of a former farmhouse and yard). The maps shows that, in contrast to the situation in the following century, Tinkers Lane(s) then served as access to a number of different landholdings, only later consolidated as a single estate. It is also significant that, as well as encompassing Footpath 9, parcel 156 also includes a significant part of the present, public, Warrens Estate Road (U237). This would suggest that B - A - C was regarded as a single entity, not that A - C was a public road and A - B a private drive.
8.5 Ordnance Survey two-inch drawing and one-inch map (1808 and 1811)
This shows Footpath 9 as part of a network of lanes around Brook and Bramshaw. It supports the claim to the extent that the lane appears to be an integral part of the highway network but, of itself, it does not prove that the way was a public right of way with vehicles.
8.6 Tithe map and Award for the Parish of Bramshaw (Wiltshire) (1843)
This map and award does not number roads and lanes in its area and does not contain a `Roads and Waste' section. It is helpful in that it confirms the existence of the claimed route, still apparently an enclosed lane on the alignment shown on the 1790 estate map and 1818 Ordnance Survey one-inch map. It shows that by 1843 the lane was gated close to its junction with Road B3079 in Brook and (probably) that the majority of traffic using it was travelling towards, or from the Stocks Cross direction, as opposed to Cadnam. (This might suggest that the main use was by Warrens Estate traffic, rather than traffic to and from the Cadnam direction). Like the 1790 map and the Ordnance Survey map these documents suggest that the lane was capable of taking vehicular traffic, but do not go so far as to prove that such traffic was public. The presence of a gate might suggest that it was not, but it is not proof that it was not a public road.
8.7 Ordnance Survey County Series map: 1:2.500 First Edition
8.7.1 Published in approximately 1870, this map shows the claimed route, as an enclosed lane following the same course as on previous maps. This map is far more detailed, and shows that part of the lane had grown in with verges of scrub or vegetation, but there was a clear thoroughfare or track within the boundaries of the lane.
8.7.2 The parcel number of the lane (A - B) is 267, which is recorded in the Book of Reference as `Road'. This term could apply equally to a public or private road. The map does nothing to cast doubt on the applicant's case but, equally, it does not prove that the lane was a public right of way for vehicles.
8.8 Highway Board Minutes and Eyre v New Forest Highway Board (1890s)
8.8.1 In the early 1890s Mr George Briscoe Eyre, the owner of the Bramshaw (or Warren's) Estate, was in dispute with the Highway Board, which had responsibility for maintaining public roads in the same way as the Highway Authority does now. The Board had placed gravel on part of the waste of the Manor of Cadnam which the Board believed to be a public road, but which the owner of the land disputed. Mr Briscoe Eyre sought compensation for damage to his property. The matter was tried by the Winchester Assizes and subsequently considered by the Court of Appeal. In both instances, the Court found that the land in question was a publicly maintainable highway known as Tinkers Lane, and that the Board had the right to maintain it in the way it had done.
8.8.2 The Applicant has previously had correspondence with the County Council's Environment Department about the exact location of `Tinkers Lane', the purpose of the correspondence being to determine what area of land can be said, with certainty, to be a public highway. The investigations carried out by that department (including consideration of the 1790 estate map and contemporaneous Highway Board Minutes), concluded that the piece of road in dispute lay northeast of Footpath 9, just east of point C. The Applicant, nonetheless, alleges that Footpath 9 is part of the same `Tinkers Lane' and, therefore, that the judgement of the Court of Appeal applies equally to Footpath 9, which must therefore be a public road. If this contention is correct, and the judgement of the Court of Appeal can be taken to apply to Footpath 9, then it provides very strong evidence indeed in support of the application. The 1790 estate map supports this view, because it includes both Footpath 9 and the relevant part of `Tinkers Lane' in the same parcel number (156), although this does not exclude the possibility that in 1892 `Tinkers Lane' might have been intended to refer to Warrens Estate Road (D - A - C, rather than B - A - C).
8.8.3 Whether or not the Court of Appeal had Footpath 9 in mind when it reached its decision about the status of Tinkers Lane, there is evidence in support of the claim in the minutes of the Highway Board contemporaneous with the court case. In January 1891 the minutes noted the waywarden's view that the piece of road in dispute "had been repaired by the late Mr Eyre and that it had been a public road beyond the memory of man, but ... Mr Eyre looked upon it as a private road". The following entry is particularly relevant:
9 February 1891
"Public Highways through Warrens Estate Bramshaw
The Clerk read a letter from Mr G.E. Briscoe Eyre JP stating that he did not consider the lanes referred to are Public Highways and repairable by the Highway Board, but he was quite prepared to instruct his solicitors to consider any evidence or information which the Board might advise in support of an opposite contention.... The Clerk stated that acting under the Boards instructions he had attended at Bramshaw and taken the evidence of 7 persons which clearly showed the lane known as Tinkers Lane and the lane leading from the Turnpike at Brook through the Warrens Estate to Stocks Cross were public highways within the memory of man. After discussion the Surveyor was instructed to immediately gravel the piece of road in Minstead parish leading to Tinkers Lane and the Clerk was directed to write to Mr Eyre that the Board looked upon Tinkers Lane commencing from Minstead parish through the Warrens Estate to Stocks Cross and the road from the Turnpike at Brook by the side of property belonging to the late Mr Compton's Trustees and which joins the road above referred to near Warrens Home Farm as public highways repairable by the Board but should Mr Eyre wish to keep them in repair the Board should be willing to allow him to do so upon his entering into an agreement to keep the roads in repair and keep the Board indemnified against any claim should he fail to do so and that if Mr Eyre was not prepared to enter into an agreement of this description the Board could have no alternative but to repair the roads as necessary".
8.8.4 It is clear from this entry that the Highway Board considered that Footpath 9 was a publicly maintainable highway. The `road from the Turnpike at Brook by the side of property belonging to the late Mr Compton's Trustees and which joins the road above referred to [i.e. road U137, Warrens Estate Road] near Warrens Home Farm' is clearly Footpath 9, between points B and A, and these minutes alone provide good evidence in support of the claim that Footpath 9 was then regarded as a public road, albeit that the minutes do not provide confirmation that the Court had Footpath 9 in mind when making its decision.
8.8.5 After the first hearing, the Highway Board had received a letter from Mr Eyre offering to maintain the lanes privately, whether or not his appeal against the initial verdict was successful. The minutes read "A long letter was received from Mr Eyre in which he stated that as the lanes are practically only duplicates of former turnpikes and of district roads and are of little utility except to the owners of adjacent lands, the bulk of which he owned at present, he should be unwilling, even if the verdict stands, that the expense of maintaining nearly 2 miles of roads practically for his benefit should rest upon the ratepayers. He therefore wrote to say that he was willing to revert to the position which existed before the action and to continue to keep the roads in repair". The Board unanimously declined the offer. Tinkers Lane, between Stocks Cross and the Bramshaw Boundary (i.e. D - A - C) is only one and a quarter miles long: the offer to maintain `nearly 2 miles of road' must therefore have included other roads within the estate. Footpath 9 (A - B) is the most obvious, if not only, candidate.
8.9 Later Editions of the County Series Maps
There are no material differences between the way Footpath 9 is shown on the second (circa 1895) and third (circa 1909) editions of this map and the first edition, considered above, other than that a gate or similar structure is shown across the lane at its junction at Brook.
8.10 Records from the Finance Act 1909/10
8.10.1 These can sometimes be used to support the cases for the existence of a public right of way, although they are rarely determinative of status and often difficult to interpret.
8.10.2 Some working copy maps of the area survive. The most informative of these (for the purposes of determining the status of Footpath 9) shows some of the verges of the lane coloured, but the rest of it uncoloured and without a heriditament number. This suggests that there were public rights along the lane (as indeed, there are now), but the nature of those rights is not obvious from the map. Part of Road U137 (Tinkers Lane) leading towards Cadnam is uncoloured, but the remainder (leading towards Stocks Cross) is coloured and part of a numbered heriditament. The fact that the verges are coloured might indicate that these had a value for agricultural purposes (anticipated by the note on the 1790 survey, considered at paragraph 8.4.3 above), but overall, it is difficult to draw any safe conclusions about status from this evidence.
8.11 County Maintenance records
8.11.1 Maintenance maps of 1929 and 1946 record Road U137 (`Tinkers Lane') as an metalled, unclassified County Road, which indicates that the County Surveyor believed that it was a publicly maintainable public carriage road. Footpath 9 is not coloured on either map, despite there being a number of footpaths in the area being shown on the 1929 map.
8.11.2 These maps are good evidence of what the surveyor thought or believed to be his responsibility, but they are not conclusive proof of the accuracy of the information shown on them and they are only as good as the knowledge and experience of those who compiled them. Where they are consistent with the known history of a road or way, they are good supporting evidence of status. Where they are inconsistent, they need to be treated with some caution.
8.11.3 The maps are, of course, maintenance records and it is possible for there to be a public road that was not publicly maintainable (and it is clear from the Highway Board minutes that the owner of the Warrens Estate had customarily maintained roads in the area at his own expense). However, it is perhaps surprising that, if Footpath 9 had been part of the Tinkers Lane that was considered by the Court of Appeal in 1891, the surveyor did not subsequently see fit to record it as a maintainable highway.
8.12 C20th Road maps
8.12.1 In support of his argument that Footpath 9 was an old road the applicant has produced a number of road maps and atlases that show the route. These are:
(a) 1895 Bacon's County Map guide shows the claimed route, but no key to the map is provided.
(b) 1910 Gall and Inglis's County map shows the claimed route, but no key to the map has been provided.
(c) 1914 Ordnance Survey Road Map of Portsmouth and Isle of Wight shows the claimed route as an `other road' (as opposed to a first or second class road).
(d) 1921(?) Geographia Road Map shows the claimed route as an `other road' (as opposed to a first class road). A separate symbol is used for footpaths.
(e) 1921 Ordnance Survey map of the New Forest shows the claimed route, and tinkers Lane towards Cadnam, as a motor road. Tinkers Lane, between Footpath 9 and Stocks Cross, is uncoloured (also a motor road, but `narrow' and `bad' according to the key). There is a different symbol for footpaths or bridleways.
(f) Circa 1930 W & AK Johnson Motoring and Hiking Map the claimed route is shown, but no key has been provided.
(g) Circa 1940 W & AK Johnson Road Atlas shows the claimed route. There is a declaration that `the representation of uncoloured roads ...does not necessarily imply that these are suitable for wheeled traffic'. The key includes a symbol for footpaths.
(h) 1960 Russell's guide to the New Forest shows the claimed route as an `indifferent' road. Again, there is a separate symbol for footpath.
(i) Three editions of Bartholomew's maps (1935, 1953 and 1976) have been produced. All show the claimed route in one of the categories of `road'. There is a separate symbol for footpaths and bridleways.
8.12.2 These maps reinforce the fact that the claimed route existed as a physical entity, and they are not inconsistent with it being a public right of way with vehicles, but they do not prove that it was, particularly where they contain a disclaimer (such as in the case of the 1935 edition of Bartholomews: `The representation of a road or footpath is no evidence of a right of way'). If the map maker was recording physical features without further inquiry into legal rights of passage over them, then they cannot be anything other than neutral on the issue of status, although where some comment is made about the condition or suitability of the route these maps can lend weight to the claim.
8.13 Rights of Way Parish files
8.13.1 The parish file for Bramshaw contains correspondence dating from the early 1950s, prior to the publication of the first definitive map. There is no correspondence relating to Footpath 9 from that time. Correspondence from the Parish Council in 1988 reads "Finally, in connection with Footpath No. 9, repair to the gate at Brook Bridge is needed together with notices at each end prohibiting usage as a bridleway otherwise the pathway will become totally impassable on foot as a result of the effects of equine traffic", and "Gate at Brook Bridge is broken and path is evidently being used as a bridleway with result that the pathway is badly cut up and walking extremely difficult". This report resulted in correspondence with Mr J.G. Crosthwaite-Eyre (writing in July 1989 on Eyre Holdings Limited notepaper) "... I would be prepared to fence/gate the access so as to prohibit the use of this track by riders. I am quite sure that such action would provoke an outcry from the horse riders who have been using this track for many, many decades. Could you please advise exactly where I stand on the question of the Law, on the difficult point of Established User by right of Prescription". In response to such advice, Mr Crossthwaite-Eyre replied (on Brook Enterprises Limited notepaper) "To the very best of my knowledge, the track in question has been used for well in excess of twenty years as a "bridleway". That said, I have considered the two options and confirm that I will put in hand, in due course, the repair/replacement of the wicket gate, with a new gate of a similar width as the old...".
8.13.2 There is no evidence on the parish file that the replacement of the gate resulted in complaints from riders.
8.14.3 Brook Enterprises Limited has recently stated that horse riders only began to use Footpath 9 when the wicket gate fell into disrepair and that they had access only for a limited time. They advise that riders have ceased to have access to the footpath since the gate was repaired eighteen years ago and there have been no complaints since the gate was repaired. In their view it would be inappropriate to infer that a public right of way on horseback has been acquired. The Estate maintains the view that the lane is a private drive.
9. Witness evidence
9.1 A number of witnesses have given evidence about the route.
9.2 A letter from a Mr Bright, submitted by Bramshaw Parish Council, says "I have lived in Bramshaw Parish since 1946. My father was Warren's Estate foreman until the late 1970s. The gravel "roads" tracks 1) Footpath 9 from Brook and 2) Wittenford Bridge to the Warren's Estate House1 were always Private roads and had notice boards at points of entry to that effect. The "roads" tracks were always gated and locked unless in use by estate workers. It is the tarmac road which runs through the Warren's Estate from Bramshaw Stocks Cross to Kewlake that is public. I do not know when it began but it will be recorded in Council records".
9.3 Evidence of the position before the war paints a slightly different picture. Mr Oliver Crossthwaite-Eyre of the Warrens Estate has provided a copy letter from his great aunt, Mrs Monica Giles, who states "As for Brook Lane, we used it constantly before the war, it was in good condition and was the normal route for driving down to the Bell. There was a gate at the Brook end, but I cannot remember that it was ever locked or that there was ever a sign saying `private road'. On the other hand, I don't think anyone used the road except people living or working on the estate, or coming there on business. It was not a short cut to anywhere. I never remember any discussion about who might or might not use the lane. None of the lanes were tarred before the war. When the road from Stocks Cross to Kewlake was tarred, it showed it was a public way for which the Council was responsible. The fact that neither the Wittensford drive nor Brook Lane were tarred proves that they were not the Council's responsibility and therefore - presumably not public rights of way for vehicles. ... I left Warrens in 1946, so can only vouch for what happened before that date. I remember being very surprised when I came home in 1959, and was driven to the Bell via Stocks Cross. I thought this very odd, but I imagine that by then Brook Lane had been allowed to fall into disrepair and was no longer fit for cars".
9.4 Lady Crosthwaite-Eyre, who has known the Estate since 1939 reinforces the view that Footpath 9 was only ever a right of way for Estate vehicles, which was in good condition when she first knew it, but which was never a public road. She states that it has been used by horse riders.
9.5 There is no evidence of recent use of Footpath 9 by motor vehicles. One correspondent refers to riding along the path `probably not more than every two or three years on average', but no other evidence of use by riders themselves has been submitted.
10 Analysis of the evidence
10.1 The claimed route has existed as a physical feature since at least 1790, before the acquisition of the Warrens Estate by George Eyre in 1798 and the construction of the present `Warrens' estate house, and before much of the land surrounding the original Tinkers Lane had been purchased by the Eyre family and consolidated into a single estate. Nothing in the map and survey of 1790 suggests that Footpath 9 had, at that time, the character of a private drive or private estate road: indeed it is represented in that same way as the rest of the highway network and is even included in the same parcel number as a public road. Most of the remaining documentary evidence available is neutral on the issue of status, in that it does not indicate whether Footpath 9 was public or private, but there is a significant exception in the Highway Board minutes of 1891. The Highway Board made express inquiry of local people as to the status of Tinkers Lane and its minutes record that the evidence of seven people clearly showed that the lane leading from the turnpike at Brook through the Warrens Estate to Stocks Cross was a public highway. This is not conclusive evidence that the way was a public carriage road, but in the context of the inquiry, and the documentary evidence before and after 1891, officers are of the view that it is more likely than not that it was not a highway limited to walkers or to riders, but was open to all who wished to use it.
10.2 The claimed route was not recorded as a publicly maintainable road on the 1929 `Handover' map. This is not what might be expected in the light of the Highway Board minutes, but might be explained by the fact that, as the Board acknowledged, the roads had previously been privately maintained and there is no evidence that repairs were subsequently carried out to the claimed route, or that it was made into a road at public expense and therefore there was no reason for it to be shown on maintenance records.
10.3 Members of the Crosthwaite-Eyre family who have provided evidence are united in their view that Footpath 9 is not, and has never been, open to the public in vehicles, although they did use it themselves with vehicles before the war, and it must therefore have been capable of accommodating vehicular traffic in the past. During the C20th century, as roads with a sealed surface became the norm, roads not provided with a good tarmacadam surface tended to be abandoned in favour of roads that were better maintained and suited to motor traffic. The same appears to be true of Footpath 9, as one member of the Eyre family recalls that once the Warrens Estate road was tarred, it was used to drive to The Bell PH, in preference to Footpath 9 even though Footpath 9 was a more direct route. It is also undoubtedly correct that, in living memory, there has been little or no demand for a public road between points A and B, because it does not serve to access anywhere that is not better served by adopted roads. If there is a current perception that Footpath 9 cannot have been a public road, then it is perfectly understandable view. Nonetheless, although the evidence of witnesses is very valuable, it is limited in time because witnesses can only testify as to their own experience. In the present case, officers feel that the combination of the 1790 map and survey and the highway board minutes place the balance of evidence in favour of an ancient public right of way with vehicles, which has not been extinguished by subsequent lack of use.
10.4 The current definitive statement contains widths and it would seem appropriate to leave them unchanged.
11. Natural Environment and Rural Communities Act 2006
11.1 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 to the right. These exceptions are set out above and one of them will be the subject of a separate report to this Committee.
11.2 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 no evidence of recent use of the route 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 road 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).
Footpath 9 was 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 route 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 route has 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 1st December 1930.
There is evidence that the route 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.
11.3 The exceptions in s.67(3) (b) and (c) do not apply.
11.4 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 (which it was). 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 is accompanied by `copies of any documentary evidence... which the applicant wishes to adduce in support of the application" and by a map at a scale of not less than 1;25,000, (which it was).
11.5 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. We have considered whether the lack of copy documents has prejudiced the landowner, but do not consider that it has, the nature of the case and copy documents having been disclosed to the landowner's representative at a meeting during the course of this investigation. 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.
11.6 On balance officers consider that s.67(3)(a) provides an exemption from extinguishment of any right of way for mechanically propelled vehicles over the route A - B.
12. Conclusions
12.1 If Members are satisfied that the evidence shows that a public right of way with vehicles subsists along Footpath 9, 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.
12.2 If members are satisfied that the evidence shows that a public right of way with vehicles subsists along Footpath 9, 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.
12.3 The application should be rejected if Members are not satisfied that the evidence shows that a right of way with vehicles subsists. Officers are of the opinion that there is not sufficient evidence before Members to support the making of an order for a right of way of any other description.
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 CR754 - Rights of Way Office, Mottisfont Court, Winchester, including copies of some of the documents referred to above the originals of which can be inspected in Hampshire Record Office.
15/05/2007