Hampshire County Council

Regulatory Committee Item 14

23 May 2007

Application for a Map Modification Order for the addition to the Definitive Map of a Byway Open to All Traffic between Egbury and Dunley in the parishes of St Mary Bourne and Litchfield and Woodcott

Application for a Map Modification Order to upgrade to a Byway Open to All Traffic Footpath 13 in the parish of Litchfield and Woodcott

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 two routes, between the hamlets of Egbury and Dunley, recorded as byways open to all traffic. Route A-B-C, on the attached plan, is not recorded as a right of way of any description. Route C-D is recorded as a public footpath. 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 credibility by user evidence in the 20^th century. The evidence for the existence of full public highway rights, on both routes, is compelling and it is recommended that an Order be made to record them as byways open to all traffic on the basis of a common law dedication.

2. Recommendations:

1) That an order be made to record the route A-B-C, as shown on the attached map, as a byway open to all traffic with a width varying between three and seven metres.

2) Than an Order be made to upgrade the route C-D, as shown on the attached map, to a byway open to all traffic with a width varying between five and twelve metres.

3. Claimant:

Mr D Tilbury

Oakbank Cottage

Oakbank Road

Bishopstoke

Hampshire

SO50 6PA

4. Landowners:

Mr J Seale Crofton Manor Farms Limited

Dunley Park 11 College Place

Dunley London Road

Whitchurch Southampton

Hampshire Hampshire

RG28 7TU SO15 2FE

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

5.1 Route: A-B-C

This track runs from the public road between Egbury and Woodcott and runs in a north easterly direction for 1,090 metres to join the public road close to Dunley. Between points A and B the route consists of a narrow, sunken, earth track that is enclosed between banks with mature trees on top. At B there is a private track to the north-west that gives access to Buckets Down Farm. In the last few years, field gates have been erected and locked across the track at points A and B. The track between B and C is a little wider, has a firm stone surface and is regularly used by vehicles going to and from Buckets Down Farm. This route is not currently recorded as a public right of way of any description.

5.2 Route: C-D

This route mostly consists of a two to three metre wide earth/grass track running along the western edge of a wood. In places the track displays signs of having been surfaced with stones. It runs from Dunley Road just west of Dunley hamlet to join the road known as Bradley Hill at a sharp bend. This route is about 400 metres long and is currently recorded on the definitive map as Litchfield & Woodcott Footpath 13. The statement which accompanies the definitive map describes Footpath 13 as running from the U4 road "...southwards along metalled track approximately eight feet wide..." to join road U28.

6. Background to the claim:

6.1 The public's use of these routes was challenged shortly after the estate was sold by the Eagle Star Insurance Company in 1994. The new owner of the major portion of the land had a new dwelling built at Egbury, called Dunley House, and he attempted to restrict use by the public of various tracks across and adjoining his property. Gates and notices were put up across the claimed routes either by the owner or at the request of the owner but, although removed within weeks, the erection of these obstructions prompted the application for a map modification order. The property changed hands yet again in 2004 and the house was renamed Dunley Park. The owner then erected and locked the field gates at points A and B on the plan.

6.2 Historically, Dunley used to be in Egbury Tithing which was part of St Mary Bourne Parish. Under local government reorganization, in 1932, Dunley and the surrounding land was placed in the parish of Litchfield & Woodcott. The major portion of claimed route A-B-C is still in St Mary Bourne Parish with the remaining section, and all of claimed route C-D, in Litchfield & Woodcott Parish. Route A-B-C is know locally as `The Tunnel' but the other claimed track does not appear to have a popular name. Please note that the spelling of Egbury has evolved over the years from using two `g's to one.

7. The issues to be decided:

7.1 The issues to be decided by this committee are;

1) whether there is evidence to show that a public right of way subsists, or is reasonably alleged to subsist, on route A-B-C and,

2) whether route C-D (Footpath 13) should be shown on the definitive map as a highway of a different description.

7.2 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.

7.3 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).

7.4 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.

7.5 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.

7.6 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 here.

7.7 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 detailed submissions from the landowner's representative. Members are urged to inspect these, or the originals, when considering this report.

8. Documentary evidence:

8.1 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.

8.2 Early maps and plans:

8.2.1 1759 Isaac Taylor's Map (1 inch to 1 mile)

This map shows Egbury, the north-south road running through it and, possibly, the road junction at point A. However, to the east of Egbury there is a blank space where Dunley and its associated road network should be. This map is therefore of no value in determining the existence of the claimed routes.

8.2.2 1791 Thomas Milne's Map (1 inch to 1 mile)

Route A-B-C appears as parallel solid lines on the same alignment as the present day track. It is the only route between the settlements of Egbury and Dunley, and the most direct route between Woodcot, Dunley and St Mary Bourne.

Route C-D is shown by parallel pecked lines which continues southwards to `Bradley' (now Bradley Wood Farm) on the line of what is now Footpath 33. It is not clear what happens to the track beyond Bradley. The existing public roads D-X and Y-Z do not appear on this map therefore, route A-B-C is the only obvious means of communication between Egbury and Dunley.

8.2.3 1797 Ordnance Survey drawing (2 inches to 1 mile)

Both routes are shown by parallel solid lines and appear to be part of the local highway network. The route A-B-C is the most direct route between Egbury and Dunley, and the route C-D is part of a much longer route from Dunley, through Bradley Farm (now Bradley Wood Farm) and out to the main Winchester to Newbury Road; the present day A34. Again, there is no track on alignment D-X but there is a track between Y-Z which is defined by a combination of solid and pecked lines.

8.2.4 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.

Route A-B-C is shown by parallel solid lines. It provides the most direct route between the settlements of Egbury and Dunley. The alternative route to the south, between Dunley and Egbury Castle (D-Y-Z) also appears on this map.

Route C-D is also shown by parallel solid lines which connects with a cross-roads at point Y. The existing public road D-X does not appear on this map although there is another route well to the east that follows the present day parish boundary.

This map demonstrates that anyone wishing to travel between Egbury and Dunley would have had to use one of the claimed routes.

8.2.5 1826 Greenwood's Map (1 inch to 1 mile)

There is very little difference in the depiction of the two claimed routes on this map compared to the earlier Ordnance Survey map.

8.2.6 1841 Tithe Map & Award (14 inches to 1 mile)

Both claimed routes are shown by parallel solid lines and coloured brown in the same manner as other routes in the locality that are now public roads. There are no lines to indicate the existence of gates or other barriers across the tracks. All parcels of land, including the roads, have been numbered and are listed in the Award where there is a separate section for `Roads & Waste'. However, the condition of the map is poor and it is impossible to determine the extent of many of the numbers which apply to sections of roads. Claimed section C-D is shown as a very wide route and part of a much longer highway which is annotated `From Newbury' north of point C and `To Whitchurch' south-east of point Y. The existing road between D-X does appear on this map as parallel pecked lines and, from its number, it is identifiable as a `road'. Route C-D-Y, on this map, has the appearance of being the primary highway in the locality.

8.2.7 1845 London-Exeter Railway, plans and book of reference

The plan shows the intended line of the proposed railway cutting across the landscape just to the west of point A. The western portion of the claimed route A-B-C is shown by parallel solid lines with the continuation annotated "To Dunley". The road to the south, through Egbury, has been given the parcel number "58" which the book of reference describes as "Parish Road" in the ownership of "Surveyor of Highways". Given that the two lanes are a continuous linear feature and that there are no barriers to separate them, it would appear that this description applies to the claimed route too. However, as the claimed route is outside of the area of land to be used for the proposed railway little weight can be given to this description. Nonetheless, the annotation `To Dunley' suggests it is a through route of some significance.

8.2.8 Summary of evidence

Given the small scale of the majority of the maps described above, any route shown on them would have been a prominent feature in the landscape. The locations of the claimed routes in relation to the settlements of Egbury and Dunley and, in some cases, the absence of other rotes that are now public highways, give credibility to the idea that they were an essential part of the local highway network at the end of the 18^th century and well into the 19^th century.

8.3 Estate plans, conveyance plans and other sale documents:

8.3.1 1785 Map showing Earl of Portsmouth's Estate (6 inches to 1 mile approx.)

This detailed, coloured, map covers an extensive area of the old St Mary Bourne Parish which includes Dunley. Both claimed routes are delineated by parallel solid lines and coloured brown in the same manner as other routes in the locality which are now public roads. The adjoining plots of land have all been given numbers which, in the absence of a schedule, probably indicates ownership by the Earl of Portsmouth, but the roads are not numbered. At point A, a line has been drawn across the southern end of the first claimed route which would suggest the existence of a gate. However, it is worth noting that there is a solid line across what is now an important public road in the middle of Egbury, so a draughting error is a possibility. There are no other lines across the width of the claimed routes. This map does not show a track of any description between points D-X, a route that is today a surfaced public road. This means that anyone wishing to travel south from Dunley, towards Egbury and St Mary Bourne, would have had to use one of the claimed routes. This is a recurring feature on some maps until the end of the 19^th century.

8.3.2 1842 Conveyance Plan

This plan shows the extent of the estate known as Eggbury Farm. The land to be sold is denoted by colour and parcel number. It includes land on both sides of route A-B, coloured either green (for hedgerow) or brown (for arable), but not land adjoining C-D. The plan shows both claimed routes as parallel solid lines. The claimed route A-B is not coloured or numbered therefore, presumable, it is not part of the estate through which it runs.

8.3.3 1849 Plan of the Eggbury Estate (13 inches to 1 mile)

The Eggbury Estate includes fields on both sides of the claimed section A-B. The extent of the estate is indicated by distinctive light brown colouring and parcel numbers. The claimed route is shown by parallel solid lines with hedgerows on both sides of the lane. The lane is coloured dark brown in the same manner as other routes in the locality that are now public roads. It is not numbered.

Although outside the area of land to be sold, the claimed route C-D also appears as parallel solid lines with hedges on both sides of the lane. It too is coloured dark brown. The continuation of the route D-C, to the north, is annotated `To Newbury'. The existing public road C-X, south of Dunley, is not coloured brown on this plan which would suggest that, at this date, the claimed route C-D is part of a primary route to and from Newbury.

8.3.4 1850 Conveyance Plan (13 inches to 1 mile)

This plan is similar to the one described in the preceding paragraph. It too shows land to be sold on both sides of claimed section A-B as part of the Eggbury Estate. The claimed route is coloured brown in the same manner as other routes that are now surfaced roads. Claimed route C-D is also shown coloured brown but C-X is not coloured. Again, this indicates that C-D is the primary highway in the locality.

8.3.5 1867 Conveyance Plan for Egbury Castle Farm

This is a large-scale plan which shows that land to be sold as part of Egbury Castle Farm, which is to the south of Egbury. The holding includes two fields that border the western end of section A-B on its south side. The claimed path is shown by parallel solid lines, it is not coloured or numbered and therefore excluded from the sale. There is a small circle annotated `Pond' in the middle of the road at Point A. It does not cover the width of the lane. The continuation of A-B, to the north-east, is annotated `From Dunley'. The annotation suggests that the claimed path is a through route between Egbury and Dunbury.

8.3.6 1874 Conveyance Plan for Dunley Manor Farm

This plan shows by distinctive colour, parcel number and schedule the land forming the Dunley Manor Farm that is being sold. It includes all of the land on both sides of routes B-C and C-D. Both claimed routes are shown by solid parallel lines and coloured brown in the same manner as other routes in the locality that are now public roads. They do not have parcel numbers and therefore do not form part of the conveyance. The continuation of the route D-C, to the north, is annotated `From Newbury'. The present day road D-X is shown on this plan by pecked lines but it is included within the fields of Dunley Manor Farm and not coloured brown. This evidence demonstrates that the claimed routes were not part of the surrounding estate and it appears that the vendor considered them to be part of the local highway network. To travel from Dunley to Egbury it would have been necessary to use one of the claimed routes.

8.3.7 1883 Conveyance Plan for Eggbury Farm

This plan shows by colour and parcel number those fields on both sides of section A-B that are being sold by as part of Eggbury Farm. The claimed route is shown by roughly parallel, solid lines and is not coloured or numbered. The land to be conveyed, therefore, does not include the claimed route. This plan shows a `Pond' as an un-natural, elongated triangle right across the southern mouth of the lane at point A.

8.3.8 1886 Plan of the Dunley and Bradley Manor's Estate

This plan shows, by colouring and parcel numbers, those fields and properties belonging to the estate. It includes land on both sides of the claimed route A-B-C, although not all of it, and all land on both sides of C-D. Both claimed paths are not coloured, or numbered, which indicates that they do not form part of the estate being sold. The uncoloured land that borders the north side of the claimed route A-B-C is owned by a Mr Hooper. The plan does not show any barriers across the lanes except at point A where a `Pond' shown by the same elongated triangle as mentioned above, occupies the whole width of the lane.

8.3.9 1886 Sale Catalogue for Bucketts Down Farm

This document itemises those lands and buildings that are being sold by Mr T Hooper at auction on 6^th August. Although there is no plan with the sale catalogue it is possible to identify the fields being sold by their tithe numbers and acreages listed in a schedule. From this information it is apparent that the claimed route A-B-C was not part of the Bucketts Down Estate.

8.3.10 1889 Conveyance Plan

This plan shows fields and buildings being sold in Dunley hamlet. It does not include land adjoining the claimed routes but it does show the local highways coloured brown and annotated with their destinations. At point C the plan shows the highway `From Lower Woodcott' branching in three directions. C-X is annotated `To Whitchurch', claimed route C-D is annotated `To St Mary Bourne & Bradley' and claimed route C-B is annotated `To Bucketts Down'. This evidence demonstrates that C-D was considered to be part of the through route between Lower Woodcott and St Mary Bourne but C-B was a more local route leading to Bucketts Down Farm.

8.3.11 1900 Sale Catalogue for Bucketts Down Farm

Again, there is no plan with this catalogue but the schedule of fields with tithe numbers and acreages make it clear that the claimed route A-B-C is not part of Bucketts Down Farm.

8.3.12 1902 Conveyance Plan and Schedule for Dunley Manor Estate

The plan is of poor quality and does not make it clear precisely which land is being sold. However, the schedule lists those fields forming the estate and it is clear that it does not include the claimed routes.

8.3.13 1903 Conveyance Plan for land at Dunley

This plan shows fields and buildings being sold in Dunley hamlet. It does not include land adjoining the claimed routes but it does show the local highways coloured brown and annotated with their destinations. At point C the plan shows the highway `From Lower Woodcott' branching in three directions. C-X is annotated `To Whitchurch', claimed route C-D is annotated `To St Mary Bourne & Bradley' and claimed route C-B is annotated `To Eggbury'. This provides good evidence that both claimed routes were considered to be through highways to neighbouring settlements.

8.3.14 1906 Conveyance Plan

This plan shows the extent of the property, by colour and parcel number, conveyed by the Earl of Portsmouth to William Penny in 1906. It includes fields on the south side of the western end of section A-B but does not include the lane itself which is uncoloured and unnumbered. This plan shows a small circle at point A which is almost certainly a pond. It does not occupy the full width of the lane.

8.3.15 1917 Conveyance Schedule

In 1917 the Dunley Estate was sold by Francis Holman to Sir Alfred Herbert. The schedule lists those plots of land to be sold which does not include the claimed routes. A document headed `Requisitions on Title' sets out a number of questions to be answered by the vendor. Question 57 asks: `Are there any rights of way...affecting the property...if so please give particulars' The answer to this is `As to the rights of way, the same are obvious from the Ordnance plan'. Question 60 asks: `Are there any roads, to which the property has frontages, which are not public highways made and repairable by the Local Authority? If so, please give particulars' The answer to this is `The vendor has no information or knowledge'

8.3.16 1917 Plan of the Dunley Manor Estate

This plan was lent to the County Council by a local resident. According to the present owner it was the property of Sir Alfred Herbert who gave it to his chauffeur who then, in turn, passed it on to the father of the current owner. It is based on the Ordnance Survey six inch map and has been annotated by hand to show the extent of the estate together with the field names and acreages. The boundary of the estate is shown by a thin red line and the estate fields are shaded pink. The estate includes land on both sides of route A-B-C, but not all of it, and all land on both sides of route C-D. The colouring and boundary line indicates that both claimed routes were not considered to be part of the Dunley Manor Estate.

8.3.17 1958 Dunley Manor Estate map (6 inches to 1 mile)

This plan shows, by colouring, that land to be sold as part of the Dunley Manor Estate. It includes land on both sides of route A-B-C, although not all of it, and all of the land on both sides of route C-D. The colouring seems to indicate that the claimed routes were not part of the estate at this time, although given the small scale of the map and the narrowness of part of the route A-B-C there is some ambiguity about a short section of this path.

8.3.18 Summary of estate, conveyance plans:

The area of land between Egbury and Dunley is particularly well documented because the land has belonged to various large farms and estates which have changed hands at regular intervals. In 1785 all of the land, on both sides of both claimed routes, belonged to one landowner; the Earl of Porstmouth. After that date the land holdings are more fragmented with no one landowner having the whole estate, and it is only in more recent years that the land holdings have become consolidated once more.

8.3.19 Not one of the 17 documents made between 1785 and 1958 depict the claimed routes as being part of the estate or land to be conveyed. In every case the land that forms the private estate is depicted by distinctive colour and/or parcel number. In every case the claimed routes are either shown uncoloured and unnumbered or, coloured brown in the same manner as other routes that are now public roads. We can't be sure what the person who drew up the maps intended to show by the brown colouring, but a reasonable interpretation is that they were intended to show the public highway network. The lanes only became subsumed within the adjoining estate when the property was in the hands of Eagle Star Insurance Company from 1958 onwards.

8.4 Ordnance Survey large-scale maps and other records:

8.4.1 1868 Description of Trig Station

This document is held at the Public Record Office in Kew. It is an Ordnance Survey record of the position of the trig station or pillar that was situated at Dunley Hill, later known as Bradley Hill. This trig station was located just to the west of the claimed route C-D, just north of point D, and is shown on the first edition of the Ordnance Survey map described in the following paragraph. The station was recorded on 21^st September 1868 and it is described as being `About ¼ mile west of Dunley Farm House and on the west side of the road.' There is also a sketch of its location upon which the surveyor has written the word `Road' on the claimed route. Part of the claimed route is shown by solid lines as a continuous feature with the existing public road to the south, that is C-D-Y. The solid lines are only broken where the present-day road D-X (shown by pecked lines) forms a `T' junction with the claimed route. This document suggests that C-D-Y is the primary route at this time.

8.4.2 1871 Ordnance Survey map (25 inches to 1 mile) - first edition

Extracts from this map are attached to this report as Appendix 2 to show how the claimed paths connected with other routes at this time.

Route A-B-C: This path is mostly shown by parallel solid lines between three and seven metres apart. There are no lines across the track to indicate the existence of gates or other barriers. A circular feature appears at point A between two tracks, and this must be the pond that is shown on some conveyance plans. This map conveys the impression that route A-B-C is a natural extension of the road through Egbury.

Route C-D: This path is shown by parallel solid lines between five and twelve metres apart. A three metre wide track is shown by parallel pecked lines within the lane. There are no lines across the track to indicate the existence of gates or other barriers. The trig pillar, referred to in the previous paragraph, is shown as a triangle on the west side of the road.

This map, and other subsequent large-scale Ordnance Survey maps, has been used to calculate the width of the highway between boundaries defined by solid line features.

8.4.3 1871 Ordnance Survey Book of Reference

The first edition county series is the only Ordnance Survey map that has an accompanying reference book that describes the use for every parcel of land. Route A-B-C: The parcel number for this path can be found well to the south, written within the boundary of the existing road in Egbury village. The parcel number given is `507' which the book of reference describes as a `Road'. This indicates that the surveyors viewed the claimed track as having the same status as the existing public road through Egbury.

Route C-D: The parcel number `200' appears at the junction of four routes (at point C) and applies to the whole of the claimed path and the existing road to the south and north of it. The book of reference describes this parcel of land as a `Road'. This indicates that the surveyors viewed the claimed track as having the same status as the existing public road through Dunley.

8.4.4 1895 Ordnance Survey map (25 inches to 1 mile) - second edition

There is no change in the depiction of the claimed routes compared to the earlier Ordnance Survey map of 1871. However, this map shows the existence of a `Mission Hall' at Dunley and it is reasonable to assume that the local inhabitants would have journeyed to Dunley to use this facility. The Mission Hall was only one mile from Egbury so it is feasible that the residents went there instead of the parish church in St Mary Bourne about two miles away.

8.4.5 1909 Ordnance Survey map (25 inches to 1 mile) - third edition

There is no material change in the depiction of the claimed routes compared to the earlier OS maps of 1871 and 1895. The `Mission Hall' is still in Dunley.

8.4.6 1972 (September) Ordnance Survey 1/2500 map

Route A-B-C: The route is shown as an enclosed `Track' with a width between three and seven metres. There are no gates or barriers across the track.

Route C-D: The route is shown as a four metre wide `Track' with parallel pecked lines. On both sides of the track there are tree belts but no hedges or fences except on one side at the southern end. There are no gates or barriers across the track.

Both routes have pecked lines across the ends which indicate a change in surface with the connecting roads.

8.4.7 Summary of Ordnance Survey evidence

All three large-scale maps, made before the First World War, depict the claimed routes in the same manner; they are indistinguishable from other routes in the locality that are now public roads. This evidence is reinforced by colouring and the extent of the parcel numbers on the 1872 map. Both claimed routes are coloured brown in the same manner as other local highways and, more particularly, they have been given parcel numbers that include the current public road through Egbury (for route A-B-C) and the current public road between Dunley and Egbury Castle (for route C-D). After the Second World War the claimed routes have obviously declined in importance because they are labelled `Tracks' on the 1972 map and are cut-off from the metalled roads by pecked lines that indicate a change in surface material.

8.5 Highway Board Minutes and other administrative records 1863-1921:

8.5.1 1863 Minutes of Whitchurch Highway Board

21^st April 1863 - The Surveyor was directed to report:

(A) The names of all the Highways ....and their length in each of the 13 highway parishes comprising the district, dividing such highways into three classes in each parish, namely:

(1) Roads of primary importance

(2) Roads of secondary importance

(3) Driftways which have never been formed into roads

30^th June 1863 - The Surveyor produced a Schedule of Highways as requested two months previously. This schedule included the Parish of St Mary Bourne, broken down to the six Tithings within the parish, including the Tithing of `Eggbury'. The Surveyor recorded three roads of primary importance in Eggbury Tithing and two roads of secondary importance with no recorded driftways. Each road has a brief description together with its length in miles, furlongs and poles.

8.5.2 With the exception of one route it has not been possible to identify the recorded roads from the brief descriptions and lengths. However, the officers have conducted an exercise whereby an accurate map, contemporaneous with the highways schedule (Ordnance Survey six inch map c1870) has been coloured to show the parish and tithing boundaries to identify the Tithing of Eggbury. All highways within that area that are currently surfaced public roads, plus the two claimed routes, were then coloured on the map to identify their lengths. It transpired that the lengths of the roads recorded in 1863, by the Surveyor, is exactly the same (6.26 miles) as the lengths of the existing public road network, plus the two claimed routes, as measured using a computer.

8.5.3 This exercise has either produced a remarkable coincidence or very compelling evidence that the two claimed routes were considered by the highway authorities to be either first or second class public roads in 1863. The only caveat is that the evidence for the extent of the Tithing of Eggbury was derived from a single document whose origins are unknown. Despite a lengthy search of the archives only one map has been discovered that shows this information. It appears to be a copy of the tithe map upon which someone has drawn by colour the boundaries of the six tithings of St Mary Bourne together with their names. As the author and date of the annotations is unknown this evidence cannot be relied upon.

8.5.4 1886 Whitchurch Highway Board minutes

On the 18^th January the minutes record the following:

"Re. a road in St Mary Bourne Parish. Mr Thomas Hooper attended the Meeting of the Board and made application for the repair of part of the road leading from Eggbury to Dunley. The Surveyor was instructed to repair the road."

On 12th April the Chairman reported that the road had been repaired.

The sale catalogue described in the preceding paragraph, and made in the same year as the above minutes, shows Mr Hooper as the owner of Buckets Down Farm which borders the claimed route A-B-C on its north-west side. It is very likely therefore that the description `...road leading from Eggbury to Dunley ...' applies to the claimed route A-B-C because it would have been in his interests to have this route in good condition. The fact that the route was repaired by the Surveyor indicates that it was considered to be publicly maintainable at that time. It would seem that only the section B-C, leading to the entrance to Bucketts Down Farm, was actually repaired as requested by Mr Hooper. This part of the lane still has a stone surface unlike the remaining section, A-B, which is natural earth.

8.5.5 1888 A Parochial History of St Mary Bourne by J Stevens 1818-1899

This comprehensive book, written by Joseph Stevens, surgeon and resident of St Mary Bourne for 37 years, contains the following description:

"Dunley is a hamlet in the tithing of Eggbury. Following the course of the winding copse lane from Eggbury the hill overlooking Dunley is reached from which an interesting view of the hamlet is obtained."

The description `winding copse lane' almost certainly applies to the claimed route from A-B-C. The only other route between the two hamlets (Z-Y-D) is a relatively straight road with no bordering woodland.

8.5.6 1889 Whitchurch Highway Board minutes

On 14th August the Board debated a proposal to upgrade the road through St Mary Bourne village (the existing B3048) from a Class 2 road to a Class 1. This came about because of the increase in traffic, down the Bourne Valley, generated by the railway line between London and Salisbury. The traffic was going to and from Hurstbourne Priors Station. The minutes read as follows:

"Litchfield Station on the Didcot, Newbury and Winchester line of railway would be the most accessible station for a very small part of the parish of St Mary Bourne, consisting of Dunley, and the same station is also nearer Woodcot and Crux Easton than the Hurstbourne Priors station..."

8.5.7 It would seem that the opening of the railway line between Winchester and Newbury in 1885, and the establishment of a station at Litchfield, had far-reaching effects upon the highway network. For those people living in Dunley, Woodcott and Crux Easton, and especially those wishing to trade in agricultural produce, it was now easier to journey to Litchfield Station than it was to travel by road to Whitchurch, the nearest market town, or to go south to Hurtsbourne Priors Station. Before 1885 the traffic probably flowed from Woodcott, through Dunley, and south-eastwards to Whitchurch or south to Hurstbourne Priors. After 1885 the local traffic probably changed direction, to the east, to Litchfield Station. This change in traffic flow might account for the decline in use and importance of the two claimed routes.

8.5.8 1909 Finance Act Maps

The Act required the Board of Inland Revenue to determine the value of all land in the United Kingdom as on 30 April 1909. District offices of the Revenue completed the valuation work and the extent of land holdings were shown by colouring and numbers on contemporary, large-scale, Ordnance Survey maps.

Route A-B-C: The recording system for the land in this locality is complex with four different colours used in and around the lane. Some colour bands are alongside the lane boundary, some are along the lane itself, some cross over and probably include the lane and at one point the colour band is broken to probably exclude the lane. It is considered that this document is of little value in determining the status of this route because the colouring is inconsistent.

Route C-D: Although the claimed route is within a very large estate, the boundary of which is shown by a blue line, the lane itself is not coloured and neither are the other routes that are now public roads.

The officers take the view that this document is of no use in determining the status of the claimed route but it should be noted that the landowner's representative places a different interpretation on this evidence - see paragraph 10.

8.5.9 1914 Minutes of Whitchurch RDC

On 16 November 1914: `A letter was read from Mr Nicholson of Woodcott House asking for a direction post at Dunley Cross Roads. The Committee recommended that the application be granted on Mr Nicholson agreeing to pay 30s towards the cost.'

Further, on 28 December 1914: `A letter was read from R Nicholson enclosing a cheque for £1-10-0 as a contribution towards the erection of a finger post at the Dunley Cross Roads and thanking the Council for their favourable consideration.'

The description `Dunley Cross Roads' could apply to point C as, at that time, it is the only meeting place of four `roads' in the locality. However, it could also apply to point X, at the entrance to Dunley Manor, where there is an existing signpost.

8.5.10 1919-21 Minutes of Whitchurch RDC

24 June 1919: A letter was read from Sir A Herbert calling attention to the road Dunley to Eggbury....The matter was left in the hands of the Surveyor to deal with.

28 October 1919: A letter was read from Sir Alfred Herbert in reply to the Clerk's letter relative to the repair to the roads running through the Dunley Manor Estate.

20 January 1920: A letter was read from Sir Alfred Herbert complaining of the state of the roads in his neighbourhood. The Clerk was directed to inform Sir Alfred Herbert that the Surveyor would do some temporary repairs to the roads.

13 April 1920: Letters were read from Sir Alfred Herbert calling attention to the state of the roads in his District. The Clerk was directed to reply that the matter would receive attention as soon as possible.

8 June 1920: A letter was read from Sir Alfred Herbert complaining that no steps have been taken to repair the roads in the neighbourhood of Dunley...the Clerk was directed to instruct the Surveyor to arrange for the work to be done without delay also to inform Sir Alfred Herbert of the action of the Council..."

8 March 1921: The Committee recommended proceedings against Sir Alfred Herbert for failure to cut the trees and hedges overhanging Long Ash and Eggbury to Woodcote roads.

26 July 1921: Recommended that 16 signposts in the District be painted; those at Dunley Manor not to be touched.

These minutes are included to provide a picture of what was happening in the locality at this time. They suggest that none of the roads in and around Dunley were properly surfaced circa 1920.

8.5.11 Summary of Highway Board minutes 1863-1921

The 1863 schedule of highways for the parish provides a comprehensive record of those routes that were considered publicly maintainable at that time. This document is tantalisingly close to determining the status of the claimed routes let down by doubt abut the authenticity of the Tithings boundary map. There is no evidence in the minutes that the Whitchurch Highway Board ever repaired any road other than those that were publicly maintainable. The minutes record continual debate on this subject over many years. Where there were private interests, such as the erection of signposts to certain properties, the highway authority asked for, and received, contributions from landowners. Therefore, when they do agree to repair part of the route A-B-C, as requested by Mr Hooper, this is a strong indication of its public nature and this evidence should carry substantial weight. The 1889 minute possibly provides an explanation as to why certain roads in the Dunley area either grew in importance or, in the case of the claimed routes, declined in importance.

8.6 County/District Highway and Planning records 1929 -1946

8.6.1 1929 Handover Map

This map was prepared by Kingsclere & Whitchurch Rural District Council to show those routes that they considered publicly maintainable highways on transfer to the County Council. This map purports to show public footpaths, as well as carriageways, but there are no rights of way recorded in the Egbury-Dunley area including the claimed routes and numerous other paths and tracks that are today shown on the definitive map. The conclusion to be drawn from this is that the Highway Authority did not consider the claimed routes to be publicly maintainable highways. However, it should be noted that this document was not subject to public scrutiny and is obviously deficient as a comprehensive record of public highways in the locality at this time.

8.6.2 1934 Minutes of County Roads and Bridges Committee

The minutes for 26^th November 1934 are headed "Maintenance of Unclassified Roads" and read as follows:

"The Committee have now completed their examination of this question; each unclassified road has been inspected, its traffic conditions and its geographical and geological conditions studied, with a forecast of future developments of traffic and building. This survey has been made in conjunction with the District Surveyor and the proposals laid before the District Councils concerned and their views obtained. A record has been made of the present condition, width, length, and other details of each road, and a map prepared of each district showing the nature of the present surfaces and where an improvement of a present surface appears likely to be needed, of the nature of the improved surface proposed."

The map is described in the next paragraph.

8.6.3 1933 Unclassified Roads Estimates Map

The map referred to in the paragraph above, for Kingsclere & Whitchurch District, shows the claimed route A-B-C as an unclassified road which has been coloured yellow with grey lines on the outside. The legend indicates that the existing surface consists of `water-bound gravel' and the `suggested ultimate surface' is also `water-bound gravel'. The route has been numbered `4' which is the same number as that given to the group of roads through Dunley, Woodcott and Binley. Route C-D does not appear on this map and was therefore not considered to be an unclassified road.

8.6.4 1933 Highway Maintenance Notebooks

It is believed that these notebooks, arranged by district but compiled by the County Surveyor, are a companion to the map described in the preceding paragraph. They describe in tabular form the publicly maintainable highways by number, brief description, nature of surface and by length. Although claimed route A-B-C is shown on the map it does not appear in this notebook. This has the effect of devaluing the evidence contained on the map. There are obvious inconsistencies in the record keeping at this time and therefore this evidence cannot be relied upon.

8.6.5 1937 Joint Planning Scheme Map

In 1933 Joint Planning Committees were established in Hampshire to implement the requirements of the Town & Country Planning Act 1932 and, later, the Restriction of Ribbon Development Act 1935. The Committee for North West Hampshire included representatives from the county council and Andover, Kingsclere & Whitchurch and Winchester Rural District Councils. Each rural district set up its own plans sub-committee which produced draft plans detailing proposals which included new streets, widenings of existing roads, building lines, land use and development densities. These plans also show existing highways which were put into three categories: Classified Roads (shown by brown colouring) Highways repairable by the inhabitants at large (shown by orange colouring) and Highways over which the public have a right of way (shown by yellow colouring).

8.6.6 On 25^th November 1936 a meeting was held at St Mary Bourne which was attended by representatives of the District and Parish Councils as well as by members of the Joint Committee, to discuss planning proposals for the village. The maps for Scheme No.1 includes the parish of St Mary Bourne and therefore most of the claimed route A-B-C, but not route C-D. That part of route A-B in St Mary Bourne Parish is coloured brown on the map indicating that it was considered to be a classified road. The draft scheme map, which evolved from the consultation process, was adopted by the Joint Planning committee on 6th October 1937 and its existence was publicised in two local newspapers. Landowners were invited to view the plans and to comment on them. The Planning Officer for the Committee attended at Whitchurch on 7^th January to `interview' any interested owners. About half a dozen owners, mostly from the St Mary Bourne District, took advantage of this arrangement. A copy of the map was also sent to the County Surveyor for his observations regarding road proposals.

8.6.7 As a result of the publicity for this scheme a number of objections were received, including one against the widening of an existing road, through Binley, about one mile to the west of Egbury. One of the signatories to that objection was Sir Alfred Herbert, the owner of Dunley Manor and the land on both sides of both claimed routes. This evidence demonstrates that he was aware of the Planning Scheme and had, more likely than not, seen the maps for himself. There is no evidence that Sir Alfred Herbert objected to the designation of claimed route A-B-C as a `Classified Road' or any other `improvements' in his locality.

8.6.8 1946 Highways Map

This map was prepared by the county highways surveyor to show those routes that were considered to be publicly maintainable. Neither claimed route are shown coloured or marked which indicates that the county highways surveyor did not consider them to be his responsibility. Again, this is an internal document that was not subject to public scrutiny.

8.6.9 Summary of local government records

There are several documents produced by local authorities in the period 1929-1946 which show the status of public `highways' in the St Mary Bourne area. Three of those documents, the 1929 Handover Map, the 1933 Notebooks and the 1946 Maintenance Map do not record either of the claimed routes as publicly maintainable roads, or other highways, and yet other documents, published between those dates, do record claimed route A-B-C as either an unclassified road or a classified road. It is necessary to consider how the documents were arrived at to decide what weight to give to the different pieces of evidence.

8.6.10 The 1929 Handover Map was drawn up by the Rural District Council as a record of what they considered to be publicly maintainable highways and passed to the County Council on transfer of responsibility. There is no record of any public involvement or consultation as part of that process. Similarly, the 1933 Notebooks were part of an internal exercise by the County Surveyor to determine future maintenance liability. The 1946 Maintenance Map was also an internal document, produced by the County Surveyor, as a record of those routes that were considered to be publicly maintainable. Again, there is no record of public involvement or consultation in the drawing up of these documents.

8.6.11 In contrast, the Unclassified Roads Maintenance Map of 1933 was made by the County Council, in conjunction with the District Surveyor, and laid before the District Councils to obtain their views. The process by which the Planning Schemes of the North West Joint Planning Committee was even more democratic, involving local meetings with Parish and District Councillors, advertisements in local newspapers, meetings with local landowners and consideration of objections.

8.6.12 In summary, the three documents that do not record the claimed routes as `highways' were not subject to public involvement but the documents that record claimed route A-B-C as either an unclassified road, or a classified road, both went through an extensive process of public consultation and scrutiny. On that basis these documents must be given greater weight when considering the status of claimed route A-B-C. They demonstrate that, as late as 1937, the highway authority considered the lane A-B-C to be part of the public highway network and there was no dissent to this classification from parish council, district council or local landowners. The non-appearance of route C-D on any of these documents does not detract from the earlier mapping evidence which suggests that this was part of a through public highway.

8.7 Evidence post first definitive map

8.7.1 1952 Letter from Divisional Surveyor to County Surveyor

This letter, dated 14^th May, relates to the compilation of the first definitive map and the problems that the Surveyors were encountering in trying to get information from certain parishes. The letter reads, in part:

"Litchfield and Woodcott have no Parish Council. As you may know, Litchfield is run by Miss Tidd, Sir Alfred Herbert's secretary; Woodcott appears to be ignored. The Rev Bishope Lunn is Vicar of Ashmansworth, Crux Easton and Woodcott. He represents Crux Easton and Woodcott on the Rural District Council, but I do not think he has any real interest in that Parish. In any case if you sent the maps to him from what I know of his business capabilities they may not have been opened. The only person who could deal with them would be Miss Tidd."

Given the circumstances described in the letter it is, perhaps, not surprising that information regarding rights of way from parish councils, in the early 1950s, was rather inconsistent. It would seem likely that the evidence for rights of way in Litchfield and Woodcott Parish was derived from the secretary for the dominant landowner.

8.7.2 1953 Public Hearing

The Ramblers Association objected to the omission of what is now Litchfield & Woodcott Footpath 13 from the first draft definitive map of public rights of way, but there is no indication of what status they considered the route to be. At a Hearing held on 7 October 1953, in Whitchurch, the Inspector decided to add this route to the provisional map as a footpath but it is not known on what basis or evidence this decision was made. There were no objections to this addition and therefore the path was shown on the final definitive map. It has not been possible to find any paperwork which describes this process in any detail.

8.7.3 1972 Letter from Southampton Motor Club to HCC

This letter was written to the `Public Highways Department' of HCC on 2^nd March 1972. It requests permission to use a number of routes in North Hampshire for a car rally to be held on 12/13 August. The proposed route includes Footpath 13.

8.7.4 1972 Letter from HCC to Southampton Motor Club

The County Surveyor replied to the Southampton Motor Club on 11 April. It reads, in full:

"These public footpaths are in fact public footpaths over private accommodation roads and some concern has been expressed about the condition of these access roads. I feel that the use of these tracks for car rallies would only enlargen the problem and, in addition, there is growing public objection to night time rallies especially in the Woodcott area. Although the Chief Constable has raised no objection to your proposal, subject to the usual conditions and provided that permission of the owners of the land is obtained, I do feel it would be most unwise to pursue this matter further and I am therefore unable to concur with your proposal in this instance."

8.7.5 1978 Ramblers Survey

The Ramblers Association carried out a survey of the condition of all rights of way in Hampshire in the 1970s. There are no comments for the claimed route A-B-C as it was not recorded as a public right of way but the sheet for Litchfield & Woodcott Footpath 13 (C-D) contains the following comments from the surveyor:

"Description: From U4 at Dunley along a stony track three metres wide through the length of a belt of trees 18 metres wide starting in a S direction then turning SSE to U28. Obstructions: There are no gates and no deterrent signs on this path. It is heavily used by vehicles and connects two public roads. Should it not be a byway?"

8.7.6 1981 Letter from Dunley Estate

This letter was written by Captain Woods, representing the Dunley Estate, to Mr Nicholson the Chairman of Litchfield & Woodcott Parish Meeting and the owner of the neighbouring Woodcott Estate. It reads in full:

"Thank you for letting me have sight of the footpath maps, which are satisfactory, except for the remarks on page 13 - the path from U4 Dunley to U28 at Bradley Hill. This footpath, for which the Council have asked to make into a byeway, is in fact used only by farm and estate vehicles - avoiding the sharp turn by Dunley Lodge. The estate must oppose any upgrading of this path into a byeway. As it is, it is often abused in the summer by Car Rallies at might, as is the Green Drove by Woodcote and Dunley boundaries - causing a great nuisance to local residents. I trust therefore, that you will restrict this to a footpath only."

It is likely that Captain Woods reference the Council's request for a `byeway' is just a response to the Ramblers survey of 1978. Other than this survey there is no evidence of an earlier claim for higher rights.

8.7.7 1996 Highways Act S.31(6) declaration

In this year the owners of the Dunley Estate deposited a statement with the County Council in which they denied the existence of any public rights of way across their land other than those already recorded on the definitive map. The effect of this declaration is to prevent the public acquiring a right of way through usage from the date that the declaration was made. It has no effect on user evidence or documentary evidence before 1996.

8.7.8 1998 Letter from Egbury resident to the British Horse Society

This is a letter of complaint about obstructions on Footpath 13. It reads:

"I have lived in Egbury since 1978 and it came as a shock three months ago when the Austrian who bought the Estate which surrounds this hamlet, placed logs at both ends of a public footpath (a most substantial flint based track). This highlighted our fragile relationship at Egbury, and I have lost use of a footpath for horse-riding, a neighbour has lost the use of a path along which she has driven her Welsh cobs since 1964 and the postman has lost a track up which he has driven forever. Adjacent to Footpath 13 is a green lane, not particularly marked as so, perhaps I should do some work on that also before logs appear there!!"

8.7.9 Summary of evidence post first definitive map

The perceived status of the two claimed routes changed after the Second World War and especially after the transfer of the Dunley Manor Estate to Eagle Star Insurance Company on the death of Sir Alfred Herbert in 1956. By that date the first definitive map of public rights of way had recently been published, and route A-B-C had not been recorded on it while route C-D had been recorded as a footpath only. In 1972 the County Surveyor described the routes as `...public footpaths over private accommodation roads...' in response to a letter from Southampton Motor Club asking for permission to hold a rally. The first indication from the landowners that they opposed an upgrading of route C-D to byway is dated 1981 when, rather confusingly, they say that it is `...used only by farm and estate vehicles...' but then go on to relate that both claimed tracks are `...often abused in the summer by Car Rallies at night...'. Although the Dunley Estate was opposed to use by motor vehicles there is no evidence of the landowner exercising physical control over use of the lanes until 1998 and the placing of logs on route C-D.

9. Witness evidence:

9.1 Although the claim was made on the basis of historic documentary evidence, there is considerable evidence of use by walkers, cyclists, horse riders and horse drawn vehicles within recent years. This user evidence adds weight and credibility to the historic evidence which suggests that the lanes were part of the public highway network. The witnesses also provide a picture of how the lanes have been used and managed since the Second World War. The investigating officer has not pursued every contact because the documentary evidence for these routes is particularly comprehensive. It is possible, therefore, that more evidence of use of this lane could be found. The evidence consists of user forms and statements as follows:

9.2 Ms R Bliss (made statement in 2006)

9.2.1 In 1978 Ms Bliss moved to Egbury village and chummed up with local horse riders to find out where she could ride her horse. One of the routes Ms Bliss used was a track that led from Egbury to Dunley (route A-B-C). It was a well defined track with no gate or barrier across the end nor any signs or notices to say that it was private. The track was about 2.5 yards wide with fairly high banks and beech trees on both sides. She followed this track for its whole length until it connected with the surfaced road at Dunley. Again there was no gate or barrier across the end of the track nor any signs and notices to say that the lane was private. The track was a delight to use because it was easily accessible at all times of the year and the overhanging branches of the trees on both sides gave it a tunnel effect.

9.2.2 At the road junction Ms Bliss quite often turned to the right up another track (route C-D) to reach the surfaced road at Bradley Hill. Again there were no gates or barriers across C-D nor any signs and notices to say that it was private. This route was also a good solid track that could be used at all times of the year. From Bradley Hill she would take a variety of routes to make a circular ride that took her home by a different direction.

9.2.3 The track that Ms Bliss knew as `The Tunnel' was her favourite route which took her to the best riding routes, so she used it on horseback about four times a week at all times of the year. Footpath 13 she used slightly less often on horseback, about three times a week, and cycled it a few times as well. She also used `The Tunnel' to walk the dogs and take her friends for recreational walks in the countryside and for bike rides, usually with friends, about once every three weeks. Ms Bliss has also used `The Tunnel' and Footpath 13 as a passenger in a pony and trap driven by Cynthia Sheerman of Binley. They did this about ten times in total over the years. Mrs Bliss often met the postman driving his van on Footpath 13, delivering mail between Dunley and Egbury, to avoid the difficult turning at Bradley Hill.

9.2.4 Ms Bliss last used `The Tunnel' and Footpath 13, on horse back, in September 2003 and last walked the routes in the spring of 2004. In all the time that she has used these lanes she has never been stopped or challenged. Most of the time Ms Bliss has ridden on her own, but sometimes with friends including Sarah Cox, Sandra Gordon, Lesley Kingston and Mary Johnson. She has seen other horse riders, using both routes, and very occasionally other horse drawn vehicles.

9.2.5 A Mr Kremmel bought the estate from Eagle Star in the late 1990s. At about the same time, probably 1998, logs appeared at both ends of Footpath 13 but her horse was able to jump over them. The logs were then replaced by larger logs which still didn't stop her because she was able to ride around them. Then, one day, posts appeared on each side of the track closely followed by gates but she was able to open them and continue her riding. They were only in place for about 6-8 weeks.

9.3 Mrs R Constable-Buckingham (made statement in 2006)

Mrs Constable-Buckingham moved to Dunley in April 1989 and from that date she went for walks on a route which included The Tunnel (route A-B-C). She used to walk about every other week, usually on her own but sometimes with members of her family. About four years ago she was stopped while using another track with her oldest son and his wife. A man challenged them and said it was not a public right of way. She was told that she could use `The Tunnel' instead. There were no gates or obstructions on `The Tunnel' until about three years ago when a gate was put up at the Egbury end and locked. She carried on walking by climbing over the gate. A `Private' sign was put up at the Dunley end of `The Tunnel' about two years ago but it didn't stay in place for very long. She's never asked permission to use any of her walking routes. She's seen other people walking along `The Tunnel', a horse rider on one occasion and the gamekeeper for Mr Nicholson in his Landrover. She last walked up there in 2004.

9.4 Mrs M Johnston (completed form in 1999)

Mrs Johnston used The Tunnel for horse riding 12 times a year between 1986 and 1990. She believed that it was a public right of way and therefore did not need permission to use the route. She has seen both strangers and local people use the track on horseback.

9.5 Mr S King (completed statement in 2006)

Mr King has lived in the Crux Easton-Egbury area for the last 20 years. During that time he has used both claimed routes in a horse drawn caravan. He's been a passenger with his father, John King, and later in life he's driven a caravan himself down the same tracks. His sister has also used these tracks with a horse drawn caravan. They used these routes to avoid the steep hill down to Dunley. Mr King used them roughly three times a year but when he had the black horse, which was for about five years between 1996 to 2001, he drove up there every day in both directions. When Mr Kremmel first came to Dunley House, in the late 1990s, he put up a gate across the Egbury end of the track. But it only stayed there for 3 or 4 weeks because Mr King told him that he used the lane and needed to get up there. Mr King has seen walkers and horse riders using the tracks and one carriage driver. During the time that Mr King used the tracks no one stopped him or told him that he shouldn't be there.

9.6 Mrs L Kingston (form completed in 1999)

Mrs Kingston used The Tunnel for horse riding from 1994 to 1998 about 25 times a year. She believes that it is a public right of way and has seen both locals and strangers using the track on foot, bicycle and horseback.

9.7 Mrs S Lawman (completed form in 1999)

Mrs Lawman used The Tunnel on foot from 1983 to 1997 and on horseback between 1983 and 1994 although she doesn't give frequency of use. She has never been challenged and believes that it is a public right of way.

9.8 Mr J Mundy (completed statement in 2006)

9.8.1 Mr Mundy's grandparents moved from Romsey to Dunley in 1911. His parents lived in the village for most of their lives and he has lived at his present address for the past 56 years. His grandfather worked as a forester for the Dunley Manor Estate. Mr Mundy's father started working in the garden of Dunley Manor when he left school. Sir Alfred Herbert owned the estate when his father worked there. During the war, Mr Mundy's father joined the army and on his return, in 1945, he worked with Mr Mundy's grandfather as a forester on the estate. Sir Alfred Herbert died in 1956 or 57 and the whole estate was bought by the Eagle Star Insurance Company. His father continued to work as a forester for Eagle Star and Mr Mundy joined him in the same work in 1966.

9.8.2 The track from Dunley to Bradley Hill which is recorded as a public footpath, and Mr Mundy knew as Green Drove, was used as a farm track. Mr Mundy and his father used that track in their vehicles, including a three ton truck, to go about their work. They used to trim back the vegetation every year to keep it accessible. They didn't repair the surface but it was quite firm. There were no gates or barriers across the track nor any signs to say that it was private. Mr Mundy used to see local people walking and horse riding along that track and the occasional cyclist. It was also used by the postman and the milkman in their vehicles.

9.8.3 Mr Mundy's father called the track from Dunley to Egbury `The Tunnel' because of the effect of the overhanging trees. The Dunley end had a flint surface and was used by vehicles going to and from Bucketts Down Farm but the Egbury end consisted of a narrow earth track, about six feet wide. The track is bounded by earth banks and mature tress on both sides. There were no gates or barriers across the lane nor any signs or notices to say that it was private. Mr Mundy didn't use the track himself but his father trimmed the vegetation down both sides of the lane once a year and Mr Mundy took over that job from him. They weren't instructed to do that, it was just part of their yearly programme.

9.8.4 Part of The Tunnel formed the boundary between the Dunley Manor Estate and the Woodcott Estate to the north. Before carrying out work on the lane Mr Mundy and his father phoned Mr Nicholson, the owner of the Woodcott Estate, to ask if they could trim the hedge on his side of the track. They maintained the lane for the benefit of local people who used the track mostly on foot in the early years but increasingly on horse back. Mr Mundy doesn't remember seeing any cyclists and the only vehicles were those going to and from Bucketts Down Farm. It would have been difficult to get a vehicle down the Egbury end because it was so narrow.

9.8.5 Mr Mundy and his father believed that The Tunnel was the footpath between the villages of Egbury and Dunley. Geoffrey Dawes, who was the manager at Egbury Farm, told him that he thought that The Tunnel was a public footpath. Mr Dawes farmed the land in that area so he had good local knowledge. During Eagle Stars ownership of the estate Mr Mundy never discussed the use or maintenance of Green Drove or The Tunnel with the agents, except on one occasion Captain Woods asked that branches be lopped along Green Drove so that a lorry could get down there.

9.8.6 In 1994 Eagle Star sold the major part of the Dunley Estate and a Mr Kremmel bought what is now Dunley Park and the surrounding land. Mr Mundy lost his job and became a self-employed forester from that date. Mr Kremmel had a new house built close to Egbury village and moved there in about 1996. Mr Mundy heard that Mr Kremmel stopped someone walking down The Tunnel and that he was going to close The Tunnel and Green Drove, so he went to see him to tell him that the tracks had always been used by local people and he wanted it to stay that way. Mr Kremmel told Mr Munday that The Tunnel wasn't a footpath and didn't want it to become one because he was concerned it could more easily become a green lane used by vehicles. Following their meeting Mr Kremmel wrote a letter to many local people, Mr Munday included, giving them, their family and friends, permission to use The Tunnel on foot. Shortly afterwards Mr Kremmel sold the Dunley Estate to Mr Seale.

9.8.7 Mr Mundy has supplied photographs of both claimed routes taken in 1978 or 1979. For route A-B-C the camera angle is too low to give a clear picture of the lane but a worn route of some description can be seen. For route C-D the camera gives a full picture of the nature of the lane. It shows a substantial track, about three metres wide, with pronounced wheel tracks obviously created by vehicles. There are trimmed grass verges on both sides of the track.

9.9 Mrs S Oldham (completed statement in 2006)

Ms Oldham moved to St Mary Bourne parish in 1984. From that date she kept horses and rode them in the locality. Initially she rode with a groom but then she rode with other local horse riders. Eagle Star owned a large estate in that area and they didn't bother about where Ms Oldham went. Two routes that she used were the track from Egbury to Dunley (A-B-C) and another path that led from Dunley to Bradley Hill that is known as Footpath 13 (C-D). There were no physical barriers or obstructions across these routes nor any signs or notices to say that the lanes were private. Ms Oldham believed that the track from Egbury to Dunley was the sort of public right of way that could be used by motorbikes or something like that. Up to 1990 she used to ride out there about 4 or 5 times a week. After 1990 she didn't hack as much, she rode the area about once or twice a week, although in the school holidays she rode every day with children who lived at Wadwick House. Over the years Ms Oldham has ridden the claimed tracks with about 20 different people. She has also seen walkers using the paths but no carriage drivers. Ms Oldham last used the lane from Egbury to Dunley about one year ago.

9.10 Mr & Mrs Renfrey of Dunley (completed statement in 2006)

9.10.1 Mr & Mrs Renfrey moved to their present address in February 1997 and from that date have driven horse-drawn carriages on the lanes and tracks in the locality. When they moved to Dunley they walked along `The Tunnel' to exercise their dogs. They also used both claimed routes for carriage driving. The shorter track was very convenient for training a young horse and both routes were invaluable for getting away from busy roads. They drove them once a week in the winter, usually on a Sunday, and about three or four times a week during the rest of the year. They would have used one, or both, of these routes on every occasion they went out driving.

9.10.2 Mr & Mrs Renfrey didn't ask permission to use these two routes to start with. From observation it was common practice for people to use these tracks. They could tell vehicles were already using the tracks because of the wheel ruts. They saw walkers, horse riders, motorcyclists and the postman in his van using these routes. There were no signs or notices to say that they were private and no gates or barriers to prevent access. They invited their carriage driving friends to join them and as a result three carriages have used `The Tunnel' simultaneously and two carriages have used Footpath 13 together.

9.10.3 Mr & Mrs Renfrey heard by word of mouth that the new owner of Dunley Park, Mr Kremmel, didn't want people to use the lanes. They ignored this and carried on using the tracks. A `Private' notice of some description then went up at the Dunley end of `The Tunnel' but it was only in place for a day or two before disappearing one night. Mr Kremmel then wrote a letter to many local people saying he would allow access to them and friends and relatives but reserved the right to revoke this permission at any time.

9.10.4 After Mr Kremmel left Dunley Park Mr & Mrs Renfrey carried on carriage driving along these tracks for a while but then wooden posts started appearing at both ends of Footpath 13 and along verges of neighbouring roads. This didn't stop their use because their carriage has a narrow wheelbase but the access points were then gated with a narrow gap at the side. The gates were soon taken away. Wooden posts appeared across `The Tunnel' at the turning to Bucketts Down Farm but they didn't last. Posts then appeared at the Egbury end of `The Tunnel', closely followed by a post and rail fence and then a locked gate. They last used `The Tunnel' in their carriage about two years ago but stopped because of the locked gate.

9.11 Mr & Mrs Ritchie (completed form in 1998)

Mr & Mrs Ritchie used The Tunnel for walking on four occasions between 1985 and 1987 but say that they have seen people riding, walking and driving there, so consider it a public thoroughfare.

9.12 Mrs S Scollary (completed form in 1999)

Mrs Scollary used The Tunnel for walks up to 12 times a year between 1985 and 1989. She regards it as a public right of way because she saw many people walking, riding and driving on it and she walked there to exercise her son's dog.

9.13 Mr T Scollary (completed form in 1998)

Mr Scollary states that he has always believed The Tunnel to be a public right of way and has walked, ridden, cycled and driven along the track unchallenged since 1984. His use is as follows: On foot between 1984-1994, 150 times a year; on foot between 1995-1998 60 times a year; on horseback between 1986-1988, three times a year; on a bicycle between 1984-1998, five times a year; and once in a vehicle in 1987.

9.14 Mrs C Sheerman (completed statement in 2006)

Mrs Sheerman moved to her present address, in Binley, in 1960 and from that date she would ride her horses in the locality. She used a variety of routes to do circular rides out into the surrounding countryside as far as Egbury and Dunley. Mrs Sheerman would get as far as Dunley about twice a week. She started carriage driving in the 1970s and would use the tracks and lanes in the locality for circular drives about five days a week. She got as far as Dunley in her carriage about twice a week. She has used all the available tracks in the Egbury-Dunley area, for riding and driving, and she's never been stopped from using them. Mrs Sheerman recently used the track from Dunley to Egbury but, instead of going all the way to Egbury, she turned right onto the track to Bucketts Down Farm. Over the years her passengers in the carriage have included Gill Bloor, Rosie Bliss, Mr and Mrs Renfrey and Jamie Windebank.

9.15 Summary of user evidence

From the user evidence it is apparent that there has been use by the public on foot, bicycle, horseback and with horse-drawn vehicles, on both routes, within living memory. This use was only brought into question in the late 1990s shortly after the owner of the estate moved into his new house that had been built just to the east of Egbury hamlet. In 1996 the owner submitted a declaration to the County Council in which he denied the existence of any rights of way on his estate. At the same time he started to issue challenges to users of the path and then had logs placed across the tracks. Following representations from residents of Egbury and Dunley this landowner permitted access to local people but even this use was brought to a halt with the erection and locking of field gates at points A and B in 2004 by the current owner.

10. The landowner:

10.1 Mr Seale's interests are represented by Mr J Cheal of Thring Townsend, (Solicitors). Mr Cheal has seen much of the evidence unearthed during the investigation and has received copies of the same. Mr Cheal has made comprehensive submissions on behalf of his client in which he places a different interpretation on several pieces of evidence from the investigating officer. These submissions have been taken into account in the drafting of this report. In summary, Mr Cheal makes the following comments on the evidence:

_ The documentary evidence shows that these two claimed routes have long existed on the ground; but that evidence is much less clear when it comes to determining the status.

_ The lack of evidence of public vehicular status arising from eg Inclosure Award, Handover Map etc is telling.

_ The express evidence which arises from the Finance Act 1910 of part of the way being included in the hereditaments is even more telling (this tends to militate against a through-route).

_ Likewise, the lack of any Parish claim or definitive status on A-B-C.

_ Likewise the lack of any substantive evidence of public maintenance and repair; the contrast between the repair of the section up as far as Buckets Down Farm drive on the one hand and, on the other hand, the stretch beyond that, is also notable. The section up as far as Buckets Down Farm was only done at the specific request of Mr Hooper the landowner at the time. The Rights of Way Officer at Hampshire County Council states, in his summary of the evidence at para 12.5 of his Report, that he places the greatest weight on the public repair at the request of Mr Hooper in 1886. The Report says that "probably the strongest evidence that route A-B-C is a publicly maintainable highway for all purposes follows the request from Mr Hooper, in 1886, to have the lane repaired". With respect, this is misleading. Mr Hooper owned Buckets Down Farm and wanted his access track repaired. The element of public repair that was then carried out was done (we submit) as a favour to Mr Hooper the landowner and at his specific request and was only done on part of the A-B-C stretch, namely the section from the east up as far as the entrance into the farm. If this is the Officer's strongest piece of evidence, it does not say much for the strength of his case overall.

_ The lack of any thickened line on the late 19^th century OS maps (this shows that the way was not metalled).

_ The lack of benchmarks and spot heights save for the eastern section of The Tunnel. If The Tunnel west of the farm entrance had been an accessible public vehicular route, the OS Surveyor would have continued marking the spot heights on that route, but he did not. This is a strong pointer against it having been a public vehicular through-route.

_ The exclusion of the middle section of The Tunnel from the 1958 sale plan.

_ The destination description on the 1889 conveyance plan (which showed the eastern end of The Tunnel as leading "to Bucketts Down" only (thus suggesting that it was not thought to be a through-route).

_ The acts of private maintenance by the adjoining landowners over the years (that is, maintenance of the surface rather than just trimming back overgrowth: it was known to be an Estate track).

_ The express grant and reservation of private access rights (which would not have been necessary had public vehicular rights existed).

_ Public user evidence with mechanically propelled vehicles is non-existent. There is evidence of some very occasional horse/carriage use in recent times. There is also some evidence of occasional bridleway and footpath use BUT the correspondence shows that the landowner demonstrated his lack of intention to dedicate as long ago as 1981 at least, and so the 20 year claim period would have had to be 1961-1981. During that period there is hardly any evidence of any type of public use. In reality, since the estate showed lack of intention to dedicate a byway in 1981, it is more than likely that that was their policy throughout their ownership. This would therefore negate the validity of any public user evidence.

_ The amount of carriage driving evidence is, in any event, sparse: Mr King used The Tunnel with a horse-drawn caravan between 1996 and 2001; Mrs Bliss rode both paths between 1978 - 2004; Mrs Sheerman rode the path and also used it for carriage driving for an imprecise period beginning in the 1970s, but when she used it recently she turned northwards onto the Buckets Down Farm track; Mr & Mrs Renfrey have used some local paths for carriage driving since 1997 but not The Tunnel. They walked along The Tunnel and Footpath 13 and they admit being made aware of the fact that the landowner did not intend to dedicate.

_ The correspondence with the Southampton Motor Club: the club asked for permission to use these paths for rallying during the hours of darkness, which was discussed between the County Surveyor and the Chief Constable, as a result of which it was decided not to grant permission. The County Surveyor's response to the motor club was that "These public footpaths are in fact public footpaths over private accommodation roads".

_ Conjecture is not enough. What is required is evidence that these routes were used and accepted by the public as of right with vehicles. We say that that evidence is absent and therefore that the Officer is having to rely on conjecture.

_ There is useful evidence of repute, from Messrs Mundy and Hill. Mr Mundy says "We were always under the impression that this was a farm track only". He was born in Dunley and has lived there all his life. Mr Hill was a gamekeeper on the Woodcott Estate and lived at Buckets Down Farm for nearly 40 years. He says that The Tunnel has never been classified as any form of right of way and was solely for use by the Dunley Estate and Woodcott Estate farm traffic.

_ In conclusion, on the balance of probabilities, there is not enough evidence to show that public vehicular rights subsist on either of these ways. The Officer is saying that on the balance of probabilities public vehicular rights do subsist. If that were so, he would have to be satisfied that all the above points made by us in this paragraph are outweighed by evidence to the contrary. It is difficult to see how he can uphold that argument, in view of the strength of the points made in this paragraph. It is therefore submitted on behalf of the objectors that the County Council should make no order.

10.2 Thring Townsend's comments on procedure:

On 22 February 2007 Thring Townsend wrote to Hampshire County Council making the point about the mandatory requirements of s.67(6) NERC and schedule 14 para 1 of the 1981 Act. A byway claim which pre-dated 20 January 2005 (as this one did) still has to have been properly made. The onus of proving compliance is on the applicant. In order to recommend BOAT status the ROW Officer has to be sure of that compliance. There are two ways in which this application may be non-compliant:

_ that the map was in the wrong scale

_ that the evidence was not provided with the form, but only referred to.

The County Solicitor needs to be absolutely sure that these two points are satisfied in order to recommend the Committee to resolve to make a BOAT Order. Otherwise, the proper course is not to do so.

10.3 Mr R H Nicholson of Woodcott

Mr Nicholson is an adjoining landowner and Chairman of Litchfield & Woodcott Parish Meeting. In a letter dated 11th September he made the following points:

"I have lived at Woodcott House since 1940, and am the owner of Woodcott Estate, which includes Buckets Down Farm. The route A-B-C...forms the boundary between the Dunley and Woodcott Estate...The route A-B-C has...never been regarded as any form of Right of Way. The track was solely used for farm traffic by Dunley and Woodcott Estate, but over the last 40 years this has ceased to be a practical proposition due to the size of farm vehicles, and now the track in its entirety is not passable by vehicles. Management of the track A-B-C was arranged by Dunley Estate who always asked Woodcott Estates' permission before trimming back the hedgerow owned by Woodcott Estate. This would indicate that Dunley Estate maintained the track for their use and that of Woodcott Estate and not for any other altruistic reason. For a considerable number of years it has not been possible to traverse the whole of the track from Egbury to Dunley except on foot or horseback. It would not have been possible for a horse drawn caravan or carriage to have got through for many years. A brief walk down the track will demonstrate this. The only area where vehicular traffic can go is on the part of track used for vehicular access to Buckets Down Farm. The track is not used regularly and I cannot recall when I last saw anybody on the track."

10.4 Mr P Hill of Lower Woodcott

Mr Hill lived at Buckets Down Farmhouse from 1948 until 1987. During that time he worked as the gamekeeper on the Woodcott Estate. Buckets Down Farmhouse is the nearest dwelling to the Egbury/Dunley track and as gamekeeper he was well aware of any movement on that track. It was part of his duties to be fully briefed on the relevant rights of way on the estate and its boundaries in order to carry out his duties. To the best of his knowledge the Egbury/Dunley track has never been classified as any form of right of way and was solely used by Dunley Estate and Woodcott Estate farm traffic and there were no specific rights of way granted during the period 1948 to 1987. There was no vehicular traffic during that time on the track in question. Indeed for most of the time it has been virtually impossible to use the full length of the track for vehicles. Since he retired Mr Hill has assisted with the shooting at Woodcott and the situation has not materially changed to that which prevailed when he was gamekeeper on the Estate.

11. Consultations with other bodies:

11.1 St Mary Bourne Parish Council

No comment

11.2 Litchfield & Woodcott Parish Council

See comments under paragraph 10.2

11.3 Basingstoke & Deane Borough Council

No comment

11.4 County Councillor J Maxwell - local member

No comment

11.5 The Ramblers Association

The Hants Area Footpath Secretary has written to say:

"The track across the parish boundary (A-B-C) would be a very useful addition to the network whatever its status. Litchfield 13 is more of a problem, it is fairly steep and already subject to water erosion. If vehicular rights are proved, the Ramblers' Association would ask for a Traffic Regulation Order."

11.6 The British Horse Society

"The BHS would welcome the re-opening of the routes claimed between Dunley and Egbury. I understand that there is good historical evidence as well as user evidence dating back to 1978. Since visiting and viewing both ends of the tracks I realise what a great asset it would be to enable the riders in the area to be able to exercise without so much use of the narrow and sometimes busy roads."

11.7 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 form changes the prescribed form to read "I append a list of documents" instead of "I attach copies of the following documentary evidence..." so that the form is not substantially to the like effect of the prescribed form.

2. No copy documentary evidence was supplied, nor any list thereof. The applicant identified evidence on which he wished to rely but did not produce copies.

3. No map showing the route was supplied.

The response to these points can be found in paragraph 14 of this report.

11.8 Cyclists' Touring Club

No comment

11.9 LARA

No comment

11.10 Environment Department

No comment

11.11 Hampshire Highways

No comment

12. Summary of the evidence:

12.1 Both routes have been in existence for at least 220 years. They appear on the estate map, made for the Earl of Portsmouth in 1785, as prominent features in the landscape that are indistinguishable from other routes that are now public roads. They appear on a large number of maps and documents that chart the transfer of land in the locality. As recently as 1958 the sale plan for the Dunley Estate shows the lanes outside the ownership of that property. There is not a single document between 1785 and 1958 that shows the lanes in private ownership and the only document that shows a gate or barrier across the routes, in the same time span, is the estate plan of 1785.

12.2 The track A-B-C forms a fairly direct link between the hamlets of Egbury and Dunley. By using this route the distance between the two communities is one mile. The alternative route is to go south via Egbury Castle Farm and Bradley Hill, a distance by road of 1.9 miles or, for walkers and horse riders, to cut off the road corner using Bridleway 11 which makes a distance of 1.6 miles. The only route to the north is by road through Woodcott, a distance of 3.0 miles. It is reasonable to suggest that inhabitants of these communities would have used the claimed route to travel between these two destinations. Dunley contained a blacksmith's shop and a chapel or mission hall for many years at the end of the 19^th century.

12.3 Historically, the track C-D was part of a much longer continuous route that ran north to south, just to the west of Dunley hamlet. According to the Tithe Map of 1841 the primary route was C-D-Y then south-eastwards towards Whitchurch through Bradley Wood Farm. At some point, in the second half of the 19^th century, the road pattern changed in this locality. First with the construction of road Y-Z, which replaced Footpath 33, followed by the construction of road X-D that connected Bradley Hill with Dunley Manor. Before that last change occurred, the only highways that would have been available to the public between Woodcott/Dunley and St Mary Bourne, would have been the claimed routes. There is no evidence that section C-D was stopped-up as a result of the creation of the new road X-D, therefore any public rights that existed over it in the 19^th century still exist today.

12.4 The evidence from the 1863 highway schedule for St Mary Bourne, prepared by the surveyor of the highway board, also provides very useful evidence for the status of both claimed routes. The lengths of the publicly maintainable roads within the parish were measured to the nearest pole, that is 5.5 yards. If the document which records the extent of Egbury Tithing is correct then both claimed routes were either first or second class roads.

12.5 Probably the strongest evidence that route A-B-C is a publicly maintainable highway for all purposes follows from the request by Mr Hooper, in 1886, to have the lane repaired. The highway board's response was to instruct the surveyor to repair the road and three months later it was recorded in the minutes that this work had been completed. There is no reported debate about the status of the route, or any mention of payment, therefore it would seem that the highway authority accepted, without question, its responsibility to repair the lane. The fact that only section B-C was repaired should not diminish the status of section A-B; the highway authority probably did not want incur unnecessary expenditure. Please note that the landowner's representative has a different interpretation of this evidence- see paragraph 10.

12.6 The user evidence of the lane, post Second World War, reinforces the earlier documentary evidence which portrays the claimed routes as part of the old, local highway network. Members of the public have used the lanes, on foot, bicycle, horse-back and in vehicles without interruption until 1998. Mr Mundy and his father, both employees of the Dunley Estate, assumed that route A-B-C was a public highway of some description between Egbury and Dunley and they routinely cleared encroaching vegetation along both claimed routes. The evidence of use from members of the public is at odds with the recollections of Mr Nicholson who has lived in the locality since 1940 and Mr Hill who lived at Bucketts Down since 1948. They both maintain that the section of lane between A and B has not physically been capable of being used by vehicles. They also maintain that the track has not been regularly used and cannot recall when they last saw anybody use it. If the claim was dependent on user evidence it would be necessary to investigate this conflict of views further, but given the quantity and quality of the documentary evidence this is not felt to be necessary.

13. Conclusions:

13.1 The claimed routes have existed as physical features in the landscape for at least 220 years.

13.2 There is no evidence of any physical obstructions to those routes until 1998, for route C-D and 2004, for route A-B-C.

13.3 Not one of the 17 sale plans, schedules or catalogues, made between 1785 and 1958, show the lanes as being part of the adjoining land. The inference being that the landowners did not consider the routes as part of their estates.

13.4 There are numerous documents which build a compelling picture of the lanes forming part of the public highway network throughout the 19^th century and, in the case of route A-B-C, up to the Second World War.

13.5 The lanes have been used by members of the public on foot, bicycle, horseback and with horse-drawn carriages within living memory.

13.6 The historic, documentary and user evidence demonstrates that, on a balance of probability, the public has acquired a right of way for all purposes, on both routes, through a common law dedication.

14. Natural Environment and Rural Communities Act 2006:

14.1 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.

14.2 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.

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

14.4 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 11 June 2001. 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'.

14.5 The file does not contain a map that is obviously from the applicant. However, on the application form, he identifies the ends of the two routes by accurate, six-figure, grid references and follows that with the phrase "and shown on a map annexed hereto." The applicant has recently supplied a copy of the map which he alleges was served on the council at the same time as the application. This map shows by red lines the claimed routes drawn onto an enlarged Ordnance Survey 1/50,000 base map. This map is at a scale of approximately 1/15,000. 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 was mislaid or discarded in error at some stage between 2001 and 2006 when the claim was taken up for investigation. The routes of the paths being claimed has never been in doubt because they are very old and well-defined features in the landscape and have never deviated from their alignment.

14.6 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 routes A-B-C and C-D.

15. Conclusions on NERC element

15.1 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 routes, 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.

15.2 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 routes, 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 CR721 - Rights of Way Office, Mottisfont Court, Winchester