Hampshire County Council

Regulatory Committee Item 12

23 May 2007

Application for a Map Modification Order to add a byway open to all traffic along Mounter's Lane in the Town of Alton and the Parish of Chawton.

Report of the Director of Recreation and Heritage

Contact: Emma Noyce ext. 5319 email: [email protected]

WILDLIFE AND COUNTRYSIDE ACT 1981

53. Duty to keep definitive map and statement under continuous review

(2) As regards every definitive map and statement, the surveying authority shall keep the map and statement under continuous review and as soon as reasonable practicable after the occurrence .... of any of [the events specified in sub-section (3)] by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event

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

(c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows:-

(i) that a right of way which is not shown on the map exists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to this Part applies;

HIGHWAYS ACT 1980

32. Evidence of dedication of a way as a highway

A court or other tribunal, before determining whether a way has or has not been dedicated as a highway, or the date on which such dedication, if any, took place, shall take into consideration any map, plan or history of the locality or other relevant document which is tendered in evidence, and shall give such weight thereto as the court or tribunal considers justified by the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or compiled, and the custody in which it has been kept and from which it is produced.

NATURAL ENVIRONMENT AND RURAL COMMUNITIES ACT 2006

67. Ending of certain existing unrecorded public rights of way

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(4) "The relevant date" means -

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



1. Summary

1.1 This report concerns an application to amend the definitive map by adding a byway open to all traffic (BOAT) from the end of Winchester Road Chawton to the Chawton Park Road, Alton. The route is locally known as Mounter's Lane.

1.2 There is a body of evidence which suggests the whole of Mounter's Lane is a public highway, which is, on balance, of carriageway status. In fact, this evidence is unusually compelling. Section A-B (on Appendix 1) is recorded on the County's List of Streets Maintainable at Public Expense, is part of the normal highway network, and as such, is not of a character to be recorded on the Definitive Map as a BOAT. Section B-C-D has the character of a rural recreational route, and it is therefore considered that this part of the application should be accepted and that that section B-C-D should be added to the definitive map as a byway open to all traffic.

2 RECOMMENDATIONS

· That no order be made in respect of the application to add a byway open to all traffic along section A-B (Appendix 1) of Mounter's Lane, Chawton.

· That the application for a Map Modification Order to add a byway open to all traffic along section B-C-D (Appendix 1) of Mounter's Lane, Alton/Chawton, be accepted.

· That the route shown on Appendix 1 as B-C-D be recorded in the definitive statement with a minimum width of 4 metres and a maximum width of 7.5 metres, varying according to the historic boundaries of the route.

3. The claimed route

3.1 Mounter's Lane is shown on Appendix 1 as route A-B-C-D. Section A-B is a signposted tarmac'ed road which forms part of the normal highway network, and is recorded on the County's List of Streets Maintainable at Public Expense (Chalist) as surfaced Unclassified County Road (UCR) U227. Residential properties along Mounter's Lane extend from Winchester Roadn (A) to point B. Section B-C-D is not tarmac'ed, and there are no residential properties adjacent to this part of the route.

3.2 Before the 1970s, Mounter's Lane appears to have formed a through route, linking the whole of Winchester Road (the then A31) with the Chawton Park Road. In the 1970s the new A31 Chawton Bypass was constructed, which effectively isolated the northern part of Winchester Road and Mounter's Lane, and separated Mounter's Lane from Chawton Village centre.

4. The Applicant and the Application

4.1 The applicant is Mr Alec Fry, and the application is made on behalf of the British Horse Society (although Mr Fry is no longer a member of the British Horse Society).

4.2 The present claim, made under s.53(5) of the Wildlife and Countryside Act 1981, was made on 13th June 2002. The formal application is "to add the byway open to all traffic from SU 709 380 to SU 705 381 known as Mounter's Lane, Alton/Chawton"

4.3 The claimed route is not currently recorded on the definitive map.

4.4 In 1982 Chawton Parish Council wrote to East Hampshire District Council and Hampshire County Council requesting that Mounter's Lance be recorded on the Definitive Map as a bridleway. The County Council did not investigate this `informal' claim (possibly because it did not materialise into a properly made application).

5. The Landowner(s)

The land ownership of the claimed route is not currently registered. East Hampshire District Council, The Mid Hants Railway and three other individuals each own land either side of the route. All parties are aware of the application and have been given the opportunity to comment on it.

6. Consultation

The following persons and bodies have been consulted about the application, namely the County Council (Environment and Highways), Councillors Kemp-Gee and Councillor Ludlow (the local members), East Hampshire District Council, Alton Town Council, Chawton Parish Council, British Horse Society, British Driving Society, Ramblers Association, Byways and Bridleways Trust, Trail Riders Fellowship, Open Spaces Society, Cyclists Touring Club and LARA. The following responses have been received:

6.1 Alton Town Council - has no objection to the proposal but, given that the route is already used by horses but is not wide enough for vehicles, wonder if a designation as a bridleway might be more appropriate. Comment that if vehicles were to start using the route it would become wider, changing forever its current attractive rural nature.

6.2 Chawton Parish Council - comments included at Appendix 4.

6.3 British Horse Society - the respondent walked the claimed route recently and describes it as a hard surfaced track which is obviously well-used at present. During the visit of barely twenty minutes, the respondent saw two riders and three cyclists. States that horses are kept all along Winchester Road and Mounter's Lane, and they need the this route to get to riding areas in Chawton Park Woods and Bushey Leaze without going on busy roads. Cyclists use it to access the facilities at Alton Sports Centre. The rider the respondent spoke to had only been there a short time, but said others had been in the area for years. Commented that the British Horse Society should be able to find user evidence if required.

6.4 Open Spaces Society - has no evidence to support the claim.

6.5 Cyclists Touring Club - has spoken with local cyclists who state they frequently use Mounter's Lane and had assumed that it was an UCR. State that it is also identified in the Cycle Plan produced and approved by East Hampshire District Council. It is regarded as a valuable link for cyclists between Chawton and the Sports Centre in Alton. It suffers however, currently from a poor surface.

 

6.6 LARA - supports the claim and comments that the size of the railway bridge would suggest vehicular status for Mounter's Lane.

6.7 East Hampshire District Council - has concerns about the width of Mounter's Lane at the point where it emerges onto the Sports Centre car park access road. Has further concerns that Hampshire County Council officers are identifying East Hants District Council property as highway  (BOAT) which will then not be maintained to its current standard (bridleway rather than carriageway)

6.7 Mr Plumbe of the Green Lanes Protection Group has been notified of this application, as he had previously expressed an interest in it. Having received a copy of the application he stated, on the 9^th December 2006, that, as far as he could see, the application was compliant with the requirements of s.53(5) Wildlife and Countryside Act 1981, and that he did not intend to object. Officers have had no further comment on this case from Mr Plumbe.

6.8 The following points summarise the most common concerns of both the parties who have responded to formal consultations, and local residents who have written to officers regarding the application (but whose views are not recorded in this report):

6.8.1 Safety - potential safety problems, both to current users of the route and local residents which could be caused by the vehicular use of this route. Specifically, concerns have been raised over the narrowness of the route, poor sight lines along it, the proximity of the route to residential properties and problems with traffic emerging from wither end of the route.

Officers' comments - this concern is not relevant to the decision Members are being asked to make (which must be based on evidence of the past history and usage of the route), but such concerns will be relevant, and will be taken into account when considering the future management of this route, should it be found to be a public right of way.

6.8.2 Suitability -the suitability of this route for vehicular traffic. Particular concerns have been raised over the current width of the route, and the surface of the route. Comments have drawn Officers' attention to the fact that there are other, `more suitable' roads which provide a link between Winchester Road and Chawton Park Road.

Officers' comments - as for 6.7.1

6.8.3 Environment - the impact that motorised vehicles would have on the local flora and fauna.

Officers' comments - as for 6.7.1

6.8.4 Current usage - this route is currently used mainly by walkers, riders and cyclists. Some point out that, to their knowledge, part B-C-D of Mounter's Lane has not ever been used by the public in vehicles. Many suggest that it would be more appropriate to record this part of the route as a bridleway, this classification reflecting its current usage and its character.

Officers' comments - see paragraph 7.4.

6.8.5 Mounter's Lane and Winchester Road are signposted as culs-de-sac - the signposting of the start of Mounter's Lane is considered by some to be evidence of status of the route. It has been suggested that had it been the intention of the planners of the Chawton Bypass that Mounter's Lane should be a through route, then it would have been sign-posted as such.

Officers' comments - the signposting of the routes reflects the status that the County Surveyor believed the routes to carry at the time they were signposted. Such signs are not proof of status. The actions of the Surveyor are described in paragraph 11.7. As described in paragraph 7.4, historic rights are not lost unless stopped up by due process of law.

6.8.6 The historic line of the route has altered over time - there is evidence to suggest that the line of the route altered when the Meon Valley Line was constructed.

Officers' comments - the diversion of this part of the lane is described in 10.6.2.2. It is considered that as a `road' was diverted, in the late 1890s, all historic vehicular rights were transferred to the new route. Therefore, the historic route does not need to match exactly with the claimed route, the pre Meon Valley Evidence serving to illustrate the status of the route which was diverted.

6.8.7 The Natural Environment and Rural Communities (NERC) Act 2006 - the intention of NERC was to prevent the use of motorised vehicles on routes of this nature.

Officers' comments - the effects of NERC are described in paragraph 12.

7. The issues to be decided

7.1 This Committee is asked to decide whether or not the evidence described in this report shows that a public right of way for vehicles subsists, or is reasonably alleged to subsist, along Mounter's Lane.

7.2 If the Committee is so satisfied, it is asked to consider whether any of the exceptions contained in sections 67(2) and (3) Natural Environment and Rural Communities Act 2006 applies to those rights.

7.3 The burden of proof in these matters is `on the balance of probabilities', so it is not necessary for evidence to be conclusive before a change to the definitive map can be made. If there is genuine conflict in the evidence, for example between the evidence of users on the one hand and landowners on the other, Members should make an order so that the evidence can be tested at a public inquiry. However, this is appropriate only if an order could otherwise properly be made and it is not a step which should be taken simply to avoid making a difficult decision. Officers do not consider that there is such a conflict of evidence in this case.

7.4 Historic and documentary evidence has been examined to see whether the past history and use of the path points to its having vehicular rights as a result of dedication in the distant past. Any such rights are not lost merely through disuse. Unless stopped up by due process of law any rights previously dedicated will still exist, even if they are now neither used nor needed (subject to any statutory extinguishment under the Natural Environment and Rural Communities Act 2006). This evidence must be looked at as a whole, it being unlikely that a single document or map will provide sufficiently cogent evidence to justify a change to the definitive map and statement.

7.5 The originals of some documents are in Hampshire Record Office, but copies of most can be inspected in the Rights of Way Office, Mottisfont Court. Members are urged to inspect these, or the originals, when considering this report. Members can also inspect the original application and correspondence surrounding the case.

8. Landowner Evidence

8.1 In 1986, five user forms (giving evidence on behalf of six individuals) were completed to support the 1982 `application' to record Mounter's Lane as a bridleway. Of the six individuals, three (including Mr Kemp and his sister Miss Kemp) claimed to have used Mounter's Lane with vehicles, the earliest use dating back to 1947. All three individuals lived along Mounter's Lane at the time, though none appear to have any recorded private rights of access along it.

8.2 In response to consultation on the current application, Mr Kemp of Mounter's Lodge (previously of Mounter's Farm) has written:

"I have correspondence from solicitors of Hants CC Re Mounter's Lane dated 1972. One letter from the HCC states that the lane from Winchester Rd to the end of the farm buildings is the maintained County Highway U227. From there on `Although as an ancient highway this length is maintainable by the Highway Authority, it is not in fact maintained as such because the present state of this length is considered suitable by the Highway Authority to serve the volume of the traffic which in fact uses it.' [County Surveyor, 1972].

In fact the Highway Authority did raise the level of the lane with hard core and gravel as far as the existing railway bridge, and constructed a drainage ditch on the north side of the bend at the site of the demolished bridge...(late 70s?).

In 1939 the Alton Motor Cycle Club started and finished a trial from the Butts Green, Alton. As a boy on a push bike I saw some of the riders in Mounter's Lane.

In 1940 I had my first motor cycle on the road, and often rode through Mounter's Lane, which was very rough and muddy in the winter. An ideal training ground for a trail rider.

By 1947 I was actually living in Mounter's Lane [and] competing in National and International Motor Cycle Trials for the next 12 years. Mounter's Lane was used regularly for bike testing and access to Chawton Common etc.

Before the Alton Bypass was built about 1970, all the main road traffic passed along the Winchester Rd. Access in and out of Mounter's Lane was difficult at weekends in the summer. I and other residents in the Lane sometimes drove north up the Lane to Chawton Park Road with our cars to go to Alton...This was also the quickest route to the Hospital in Chawton Park Road which in those days had an A&E department.

The Alton Motor Cycle & Car Club held a night-time trial in the 1950s which ran through Mounter's Lane - cars and bikes. I was an official at the time check at the Railway Bridge.

Other users of the Lane in the 40s to 70s era were Mr R Grace (dec) of Little Eastfield Farm Chawton. He rented land which is now the sports centre. Mr A Key (dec) of Winchester Road regularly drove his Lotus trial car through Mounter's Lane...

...The last time I drove the full length of the Lane was about 4 years ago, after the Water Co had cleared the hedges back to put a new water main through from Winchester Rd to Chawton Park Road Building Site.

I have several friends who ride vintage motor cycles and use the lane when visiting me. They appreciate the chance to ride an `old green lane' type route with care and consideration for other users."

8.3 Officers have had sight of, and have verified the contents of, the 1972 letter described by Mr Kemp.

9 Historic and documentary evidence¹

9.1 As discussed in paragraph 3.1, section A-B of Mounter's Lane currently forms part of the normal public highway network, whilst section B-C-D does not. Unless specified, the discussion of the historic evidence relates to the full route (A-B-C-D). Officers have not discovered any historic maps, plans or documents (other than administrative records of the County Surveyor and Milne's Map of 1791) which draw any distinction between section A-B and section B-C-D of Mounter's Lane.

9.2 Early Commercial Maps

9.2.1 Taylor: 1759

Taylor's map clearly shows Mounter's Lane. Though the evidential value of this map is limited, on the face of it, it appears to support the application.

9.2.2 Milne: 1791

Milne shows Mounter's Lane only as far west as Mounter's Farm (part A-B only). However, the mapping of this area is particularly inaccurate, and therefore, this map is considered neutral to the assistance of the determination of the claim.

9.2.3 C&J Greenwood: 1826

9.2.3.1 The claimed route is clearly illustrated on Greenwoods' map. The route is shown as an enclosed road.

9.2.3.2 The key to the map indicates that C&J Greenwood considered the claimed route to be a "Cross-Road", suggesting that it was considered by them to be a route of some significance.

9.2.3.3 This map suggests that the claimed route may have carried public vehicular rights, and supports the application for a byway open to all traffic.

9.3 Estate maps and related documents

9.3.1 Chawton Manor and its owners: pre 1741

In 1911, William Austen-Leigh published a history of "Chawton Manor and its owners". Included as an appendix to this book is a pre-inclosure (pre-1741) plan of Chawton Common, showing individual allotments within the open field system. Mounter's Lane is illustrated on this map, though not annotated. Northfield Lane (to the south of, and parallel to, Mounter's Lane) is not illustrated. Sadly, there is no reference to the original map from which this illustration is derived. With no date and no provenance, the evidential value of this map is limited, but it does hint at the antiquity of Mounter's Lane.

9.3.2 Estate Map of Chawton Parish: pre 1740

9.3.2.1 This is an early estate map which appears to predate the Inclosure of Chawton Common, thus placing it before 1741. Mounter's Lane is illustrated (though not annotated) and is coloured sepia, in the same manner as other roads in Chawton (apart from the now Chawton Park Road which is shaded grey). It is excluded from the adjacent landholdings. Northfield Lane is not present on this map, suggesting that, before 1741, Mounter's Lane was the only road south of the Butts linking the (now) Chawton Park Road with the (then) Winchester/Farringdon Road.

9.3.2.2 Though this map has no key, its antiquity and the detail of the mapping lends it some evidential weight. It clearly shows that Mounter's Lane was part of the pre-Inclosure `road' network, and suggests that, before Northfield Lane was set out, Mounter's Lane was an important link in the network.

9.3.3 The Inclosure of Chawton Common: 1740/1741, and "A Map of the Manor Farm of Chawton, part of the estate of Thomas Knight esq., surveyed by Edward Randall, Senior": 1741

9.3.3.1 In 1741, parts of Chawton Common and certain common fields in the parish of Chawton were Inclosed by Act of Parliament. Though the copy of the Act held in Hampshire Record Office is not itself accompanied by a map, the map of the Manor Farm of Chawton, surveyed by Edward Randall in 1741 is contemporary with the Inclosure and clearly indicates much of the land referred to in the Act.

9.3.3.2 On the map, Mounter's Lane is illustrated, forming a link between "The Road from Alresford" (Chawton Park Road) and "The Road from Farringdon to Alton" (Winchester Road). It is depicted in the same manner as other roads known to be public carriageways, and the map is sufficiently detailed to show that there are no gates or barriers anywhere along the Lane. Footways are illustrated in a separate fashion on this map.

9.3.3.3 Mounter's Lane lies to the north-east of Ridge Field (belonging to the Winton Corporation). Ownership of the land to the north of Mounter's Lane is not specified.

9.3.3.4 Northfield Lane was set out as a public highway in the Chawton Inclosure Act. Mounter's Lane is not named specifically in the Act, nor is it identified as an abutment to any of the lands allotted. In this respect the Inclosure does not assist in the determination of the application. However, the "common Highways of the said Parish of Chawton" which are identified in the Act are illustrated on the 1741 map in the same manner as Mounter's Lane.

9.3.3.5 Whilst the map does not include a key to the routes shown on it, the scale of the map, the detail included, the fact it was produced for a major local landowner, and the supportive evidence provided by the Inclosure Act means that the map carries significant evidential value. As Mounter's Lane is illustrated as part of the local road network of the time, this map supports the application.

9.3.4 An Accurate Survey of a Farm in the Parish of Chawton by William Godson: 1753

This post Inclosure map shows those lands in Chawton belonging to the Bishop of Winchester. Mounter's Lane is illustrated, though not annotated, and is depicted in the same manner as other roads in the parish. Footways are illustrated in a different fashion. Mounter's Lane is excluded from the adjacent landholdings. This map appears to support the application.

9.3.5 List of "Roads in Chawton": c1756

9.3.5.1 Compiled by Edward Randall (the surveyor of the 1741 map), this survey is titled "Roads in Chawton"; among the eleven roads listed is "Mounters Lane" with a length of 2 furlongs and 10 rods (roughly 453 metres). This length reflects the length of route A-B-C-D. The total of the lengths of all the roads in Chawton is annotated "Five Miles, Six Furlongs and Twenty two Rods of Common High Road besides Turnpike". Officers believe that every road identified on this list, apart from Mounter's Lane, is currently recognised as a public carriage road.

9.3.5.2 The evidential value of this document is high. Not only does it name the whole of Mounter's Lane as a Road, but it states that it was a "Common High Road", thus lending support to the application.

9.3.6 The Measurement of Chawton Roads: c1761

9.3.6.1 Inside the front cover of the Chawton Parish Council Vestry minutes of 1835-1966 is a hand copied list entitled "The Measurement of Chawton Roads, 1761".

9.3.6.2 Again, 11 roads are listed. The list appears to reflect the same roads (though under different titles) as were listed in the 1756 survey. Mounter's Lane is given at ¼ mile and 10 rods (again roughly 453 metres).

9.3.6.3 Although a copy, this is a significant document, in that it is another early record of roads in Chawton. Again, officers are of the view that every other route on this list is currently recorded as a public carriageway. Therefore, this list is a strong indication that Mounter's Lane was a public carriageway in 1761, and supports the application.

9.3.7 Map of Mounter's Farm: 1802

9.3.7.1 This map is an accurately drawn sketch map of Mounter's Farm. Though detail is not included, road names and land ownership are. Mounter's Lane is shown, and annotated as such. It forms a link between the "Green lane to the Butts" (Chawton Park Road) and the road "From Alton to Chawton" (Winchester Road). Mounter's Lane is shaded in sepia, as for other roads in the area, whilst Chawton Park Road is shaded in green. The significance of the green shading is not known.

9.3.7.2 Land to the north and south of Mounter's Lane is attributed to a number of different landowners, including the Winton Corporation, New Park Farm, Pound Farm and Mounter's Land. No owner is recorded for Mounter's Lane itself.

9.3.7.3 Whilst this map may not be detailed, it is clearly accurately measured, and of such a scale that it carries some evidential weight. The illustration of Mounter's Lane, and the fact that it is not included with adjacent landholdings lends weight to the application.

9.3.8 Plan of Chawton Village: ND (late 19^th century?)

9.3.8.1 Within the Chawton Parish Records is an undated plan of Chawton Village. The Alton, Alresford and Winchester Railway is illustrated on this map, whilst the Meon Valley line is not, thus placing the date of the plan between 1861 and 1897. Mounter's Lane is shown, and annotated, as such. It is coloured in sepia as for other roads in the area now known to be public carriageways. Land either side of Mounter's Lane is shaded in various colours (presumably reflecting different landowners).

9.3.8.2 As the provenance of this map is unknown, its evidential value is limited, but the map lends weight to the body of evidence which suggests that Mounter's Lane was part of the public road network of the time, and thus, supports the application.

9.3.9 John Eggars Free School and the Sale of Mounter's Farm:1639 to 1878

9.3.9.1 Though deeds relating to Mounter's Farm can be traced back to 1600, the first reference to Mounter's Farm that officers have had sight of dates to 1639, when the freehold to Mounter's Farm was acquired by the Feofffes of Eggars Grammar School, Alton.

9.3.9.2 In 1641, by Act of Parliament, the Free Grammar School of John Eggars of Moungommeries was formally set up. Mounter's Farm provided the endowment to this school.

9.3.9.3 Mounter's Farm remained in possession of the School until 1878, when the farm was sold. The sale particulars and accompanying plan have been examined. On the sale plan, Mounter's Lane is illustrated in sepia, in the same manner as for other roads in and around Chawton. It was not included for sale, suggesting that it was not part of the ownership of the John Eggars School. The sale particulars to Mounter's Farm do not include reference to a private right of way along Mounter's Lane for the benefit of Mounter's Farm and its surrounding land.

9.3.9.4 Though sale particulars were not produced with the intention of detailing public rights of way, the document's value is twofold. Firstly, the fact that the lane was not included in the sale, and no private rights of access were recorded along it, suggests that the property as sold may have relied on a public right of way for access, lending weight to the claim. Secondly, as Mounter's Farm had been in the ownership of the Free School since 1639, it possible that Mounter's Lane has also existed since 1639. The minutes of the Foeffes of the School state that that this is the first time it had sold any of its lands, and therefore, shows that Mounter's Lane had been in separate ownership from Mounter's Farm as far back as 1639. Leading on from these two points, it is quite possible that Mounter's Lane had been a public highway since at least 1639.

9.4 Chawton Tithe Map (1838) and Award (1840)

9.4.1 The map shows the claimed route in its entirety, numbered as plot 224. The accompanying tithe award includes 224 in the `Roads and Waste' Section, and describes it as "Road from Turnpike to Chawton Park", the road has no given owner or occupier.

9.4.2 The map and award are good evidence that Mounter's Lane was considered to be a public road in 1838/1840, and as such, support the current application.

9.5 Ordnance Survey Records

9.5.1 OS First Edition 2" Drawing (1808) and 1" Map (1810)

9.5.1.1 The claimed route is depicted on the Ordnance Survey 2" drawing and accompanying map as an enclosed road.

9.5.1.2 Although the map and drawing offer no evidence as to the status of the routes shown on them, the depiction of the claimed path would suggest that it was a route of some significance. Once again, these documents lend support to the application, but of themselves, do not prove that the claimed route was a public vehicular highway.

10.5.2 Ordnance Survey County Series 1^st Edition map: c1870

10.5.2.1 The full length of Mounter's Lane is illustrated on this map. The Alton, Alresford and Winchester railway is illustrated, crossing the lane at its mid point. Mounter's Lane is depicted as an enclosed road for its full length. The route is annotated as "Mounter's Lane"; Mounter's Farm and Mounter's Bridge (the railway bridge) are also annotated. The lane is annotated as parcel 78.

10.5.2.2 The book of reference, accompanying this map contains the following information:

No. on Plan	Remarks	Acreage
78	Public Road	0.548

10.5.2.3 Though it is fairly common for the Ordnance Survey to describe routes as "roads", it is relatively unusual for them to describe land as "Public Road". Therefore, this is considered to carry strong evidential weight in support of the application.

10.5.3 OS CS 2^nd Edition map: c1895

The most significant difference between this map and the first edition is the inclusion of the Meon Valley Railway. The part of Mounter's Lane crossed by the railway has, by this time, been diverted slightly.

10.5.4 OS CS 3^rd Edition map: c1909

There are no significant differences, with respect to the claimed route, between this edition of the map and the preceding edition.

10.5.5 OS CS 3^rd Edition Object Name Book: 1909

10.5.5.1 When compiling maps, the Ordnance Survey sought authority for the spelling of any names included on the map, this information is recorded in `Object Name Books'. The records for the third edition of the County Series Map survive.

10.5.5.2 The records for Chawton, collected in 1908, and amended in 1909, contain the following information:

List of Names as written on the Plan	Authority for those modes of Spelling	Descriptive Remarks, or other General Observations which may be considered of interest
Mounter's Lane	Mr. W. McIntosh, R.D. Surveyor, Ackender Road, Alton	A lane extending from Mounter's Bridge to junction of Roads E. of Mounter's Farm
Mounter's Bridge	As Above	A [`railway' inserted above] bridge situated 9 chain W of Mounter's Farm.

The significant point to be drawn from this document is that the authority for Mounter's Lane (from Winchester Road to the Chawton Parish Boundary at Mounter's Bridge), was considered to be The Rural District Council Surveyor, not a private individual (cf Montague George Knight, paragraph 10.6.2.3) as would be expected if Mounter's Lane was a private track in private ownership. This is evidence that the Rural District Council had some sort of vested interest in the route, most likely because it was a public highway.

10.5.6 Ordnance Survey National Grid 1:2500: 1972-1975

By the date of this map, the A31 bypass had been constructed. The sports pavilion is also shown at the northern end of the claimed route.

10.6 Railway Evidence

10.6.1 The Alton, Alresford and Winchester Line (London and South Western Railway): 1854-present

10.6.1.1 In 1854 plans were deposited for the Alton Extension Line. In 1860 these plans were resubmitted as the Alton, Alresford and Winchester Line. The railway was authorised in 1861 and opened in 1865. It is currently owned by the Mid Hants Railway Company, and known as the Watercress Line.

10.6.1.2 The railway, as proposed in 1854, crossed Mounter's Lane approximately half way along the length of the lane. The original deposited plans for the Alton Extension Line (1854) give Mounter's Lane as plot number 107; the accompanying book of reference describes plot 107 as a "Parish Road", owned by the Surveyors of the Highways. `Parish Road' appears to be a description used for all roads in Chawton, which includes those we would now recognise as public (other roads are described in the book of reference as `occupation road'). The elevation of the bridge over this track is described as "Parish Road, level unaltered. Bridge 20ft Span 16ft High".

10.6.1.3 The plans deposited in 1860 for the Alton, Alresford and Winchester Line are the same as those deposited in 1854 where they relate to the claimed route. The claimed route is again described as plot 107. This time, however, plot 107 is described as a "Public Highway" again under the ownership of the Surveyors of the Highway, and the occupiers are described as "The Public". The elevation describes Mounter's Lane as "Public Road Level Unaltered. Arch 25ft Span 20 ft".

10.6.1.4 Though the Act enabling this railway to be built does not make reference to specific roads, the railway was subject to the Railway Clauses Consolidation Act of 1845. In relation to the crossing of roads by bridges, Section 49 of the Act states that bridges crossing public carriage roads were to leave a clear space of no less than 25 feet over a public carriage road, with a height of 16 feet over a 12 foot span. The requirements for bridges crossing private carriage roads was a width of not less than 12 feet. However, Section 51 of the same Act provides that the width of the bridge need not exceed the width of the road where the average available width of the road for fifty yards either side of the bridge was less than the width required in Section 49. In such cases, bridges over public carriage roads needed to be not less than 20 feet wide. The dimensions of the bridge which still spans Mounter's Lane are compliant with that required for a bridge over a public carriage road under Section 51.

10.6.1.5 The railway evidence carries considerable evidential weight, and strongly suggests that Mounter's Lane was a public carriageway by the mid 19^th Century. Further, the dimensions of the bridge indicate that the width of this part of the lane was less than 25ft for fifty yards either side of the bridge.

10.6.1.6 The construction of the bridge over Mounter's Lane involved a small deviation of the route of the path.. Officers have not discovered evidence to suggest that a formal diversion of the route took place, but the deviation of the route was so small it is considered not to materially affect the validity or outcome of the current application.

10.6.2 The Meon Valley Line (London and South Western Railway): 1896-1968

10.6.2.1 In 1896 plans were deposited for the London and South Western Railway Meon Valley Line. This railway was authorised in 1897 and opened in 1903. It was finally closed in 1968, and the railway land was subsequently sold.

10.6.2.2 The deposited plan shows Mounter's Lane as plot 28. The plan shows that part of Mounter's Lane was to be diverted to accommodate a proposed bridge to carry the railway. The plan of the diversion is annotated "Road to be diverted". The elevation of the route states "Roads to be diverted and levels unaltered. See Plan and Cross Section No. 18. Arch 20 ft Span 15ft High".

10.6.2.3 The accompanying book of reference describes plot 28 not as a public road, but as "Occupation Road and Waste" in the ownership of Montague George Knight and the Alton Rural District Council. The book of reference describes other roads in Chawton as "Public Roads". This is the first (and only) piece of evidence officers have discovered which suggests that Mounter's Lane was not a public road. The value that can be attributed to this piece of evidence is, however, limited. There is no other evidence to suggest that Mounter's Lane was in private ownership (contemporary maps suggest otherwise, cf paragraph 10.5.5.2), and subsequent documents in connection with the railway, as described below, are considered to carry more weight.

10.6.2.4 On the 3^rd June 1897 the South Western (Meon Valley) Railway Act was passed. This Act enabled the railway to be built, and as it was subject to Parliamentary scrutiny, is of significant evidential value. Sections 5 and 6 describe Plot 28 as a public road; Section 8 authorises the formal diversion of a small section of it, where it was crossed by the railway.

10.6.2.5 The span of the bridge over the railway is compliant with what was required for a public Highway under Section 51 of the Railway Clauses Consolidation Act, and exceeded what was necessary for a private carriageway. When the evidence of the Meon Valley Railway is taken as a whole, it seems likely that the description of Mounter's Lane in the book of reference, as an occupation road in private ownership, may have been erroneous. On balance, the combined evidence from the Meon Valley Railway records suggest that Mounter's Lane was a public carriage road, and offers strong support to the claim. The width of the bridge over the railway further suggests that, by 1896, the width of Mounter's Lane was less than 25ft for a distance of 50 yards either side of the Meon Valley railway.

10.7 Administrative Records

10.7.1 Finance Act: 1910

The Finance Act map and Valuation books have been checked; Mounter's Lane is excluded from the adjacent landholdings, has no number, and is illustrated with a single blue line along its length (as for other roads in the immediate area). On the face of it, this evidence lends support the claim, although the value of these records in determining status is limited.

10.7.2 Highway Surveyors' Handover Map: 1929

The 1929 `Handover Map' does not include Mounter's Lane as a route to be maintained a public expense, unlike other roads and footpaths in Chawton. However, though this map does not support the application, as it is so inconsistent with the body of evidence which precedes (and proceeds) it, its evidential value is limited.

10.7.3 Highway Surveyors' Maintenance Map, Alton Rural District Council: 1946

10.7.3.1 Part A-B of Mounter's Lane is shown as a surfaced unclassified road, maintainable at public expense. A section of Mounter's Lane from point B to the Mid Hants Railway (the then district boundary) is shown as an unsurfaced road, maintainable at public expense. The section of Mounter's Lane from the railway to the Chawton Park Road lies outside of the Rural District, and therefore, outside of the scope of this map.

10.7.3.2 It is not known why, having been omitted from the 1929 map, part of Mounter's Lane was, by 1946, recorded as a publicly maintainable road. Though of limited evidential value, the map supports the application.

10.7.4 National Parks and Access to the Countryside Act : 1949

The claimed route is not shown as a right of way of any description on either the first edition, or any of the subsequent editions of the County's Definitive Map of Rights of Way. No records relating to Mounter's Lane have been discovered in the Rights of Way Parish Files.

10.7.5 Current List of Streets (Chalist)

10.7.5.1 The current computerised plan of the County's `List of Streets Maintainable at Public Expense' (known within the County as Chalist) illustrates nearly all of route A-B-C-D as a surfaced unclassified road, maintainable at public expense. However, the database which contains the information on which the plan is based states that the publicly maintainable "U" road is only that part of Mounter's Lane which lies within Chawton Parish (A-B-C). Officers from Hampshire Highways state that the inclusion of the whole of Mounter's Lane on the computerised mapping may be a digital `auto-match' error. They state that the mapping data is derived from the information held on the database and, where there is conflict, the database record should be treated as the County's List of Streets.

10.7.5.2 As the List of Streets is a record of public maintenance liabilities, and not necessarily public rights, its value is limited. In this case, the evidence provided by the List of Streets does not assist in the determination of the application, though it does suggest that at least part of the route is still considered to be a public carriageway.

11. Conclusions to be reached from the evidence

11.1 Mounter's Lane, as a physical feature, predates the Chawton Inclosure of 1741. The first dated map officers have seen which illustrates Mounter's Lane is the Randall map of 1741. However, Mounter's Lane is illustrated on at least two maps which predate the 1741 Randall map. As such, it is a lane of some antiquity.

11.2 Evidence would suggest that the same status should apply to section A-B as applies to section B-C-D. Aside from relatively recent administrative records, and the Milne map of 1791 (which is not a particularly accurate rendition of the locality), officers have not had sight of any document which differentiates between the part of Mounter's Lane which is currently surfaced and recorded as a publicly maintainable carriageway (part A-B) and the remainder of the route (B-C-D). Therefore, any status which applies to A-B is likely to apply to B-C-D.

11.3 There is evidence that all of Mounter's Lane was considered to be part of the local highway network between (at least) 1741 and the 1970s. The majority of the documents and plans that officers have considered illustrate, or refer to, Mounter's Lane in exactly the same way as they illustrate or refer to other routes which are now recognised as public carriageways. It would appear that, from before 1741 to the early 1970s (when the A31 Chawton Bypass was constructed) Mounter's Lane formed part of the local highway network.

11.4 There is evidence that Mounter's Lane was considered to be in public ownership from 1854 onwards. The only document which suggests that Mounter's Lane was not in public ownership is the 1897 Meon Valley Railway book of reference. The evidential value of this document is limited, given that it is superseded by the Meon Valley Railway Act of 1897, and is contemporary with other evidence which would suggest that Mounter's Lane was not in private ownership. The Chawton Tithe Map, Mid Hants Railway Records, 1878 sale of Mounter's Farm and 1908 Ordnance Survey name book all suggest that Mounter's Lane was in public ownership.

11.5 On balance, evidence suggests that Mounter's Lane was a Public Road. Mounter's Lane is variously described as a road, or a public road, in surveys of 1756 and 1761, the Chawton Tithe apportionment, the Mid Hants and Meon Valley Railway Records, and the Ordnance Survey 1^st edition book of reference and 3^rd edition object name book. The term "road" of itself does not confirm the existence of a vehicular right of way. However, the carriageway status of part of Mounter's Lane (part A-B) is already recognised. Various documents which describe Mounter's Lane as a `road' also (and exclusively) refer to other `roads' we would now recognise to be public carriageways. There is no evidence to counter the view that, in the context of Mounter's Lane, road means vehicular highway.

11.6 The relevance of Mounter's Lane as a link in the local highway network has diminished over time. Before 1741 Mounter's Lane appears to have been the only road (other than the Butts) which linked the Chawton Park Road with the Winchester Road. Between 1741 and the construction of the A31 bypass, Mounter's Lane still appears to have served as a link road, though it is likely that Northfield Road (set out in 1741) may have served as a more useful link. In the 1970s Mounter's Lane and part of Winchester Road were annexed by the new A31 bypass, and its usefulness is likely to have declined. Currently the route is thought to be used largely by walkers, horse-riders and cyclists. However, highway rights are not lost through disuse, and officers have discovered no evidence of highway rights over this route ever being extinguished

11.7 Only part of Mounter's Lane is currently recorded as publicly maintainable. On the 1929 Highways Handover Map, none of Mounter's Lane is recorded as publicly maintainable. By 1946, the part of Mounter's Lane which was within the district relevant to the map was recorded as a publicly maintainable, unclassified road. Currently highway records suggest that the public liability does not go beyond the Chawton Parish Boundary at point C (though the mapping suggests otherwise). It is not known why the maintenance records vary in this way. One explanation might be that Mounter's Lane is crossed by an administrative boundary (between the then Alton Rural and Urban Districts). However, the l972 letter of the County Surveyor, adduced by Mr Kemp, offers the most elegant and plausible explanation for the fact that Mounter's Lane is no longer recorded as part of the public highway network:

"Although [an] ancient highway ... it is not in fact maintained as such because the present state of this length is considered suitable by the Highway Authority to serve the volume of the traffic which in fact uses it."

11.8 Only part of the route is of a character suitable of being recorded as a Byway Open to All Traffic. A BOAT is a class of public carriageway which is used mainly by walkers, cyclists and riders. In this case, whilst evidence does suggest the whole route carries the status of public carriageway, part A-B of this route is part of the normal highway network, and, as such, is not considered to be of a character which is capable of being recorded as a BOAT. Part B-C-D is a largely unsurfaced path with a semi-rural aspect; it is considered capable of being recorded as a byway.

12. Natural Environment and Rural Communities Act 2006

12.1 There remains to be considered whether the `motorised' element of the right of way with vehicles over route B-C-D 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 above and one of them will be the subject of a separate report to this Committee.

12.2 The applicant does not seek to rely on any exception. It is considered by others that the exception in s.67(2)(b) will apply to part B-C of Mounter's Lane. It seems unlikely that any of the other exceptions will apply to B-C-D:

(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 route B-C-D by the public in motor vehicles. Even on a pragmatic interpretation of this exception, the nature of this part 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).

Route B-C was shown on the County's List of Streets, and therefore, this exemption will apply. Officers from Hampshire Highways state that section C-D was not shown on the List of Streets (despite its inclusion on the mapping illustrating the County's List of Streets).

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

No evidence was discovered during officers' investigations that the claimed route came into being as a result of an express dedication or by statute.

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

This route has never been constructed as a road for motorised vehicles.

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

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

12.3 The exceptions in s.67(3)(b) and (c) do not apply to this application.

12.4 Though the applicant does not seek to rely on the exception s.67(3)(a), the application itself was made before the cut off date of 20 January 2005. NERC states that an application is validly made if it complies with Paragraph 1 of Schedule 14 to the Wildlife and Countryside Act 1981. Paragraph 1 requires that the application is accompanied by a map showing the way or ways to be added and `copies of any documentary evidence... which the applicant wishes to adduce in support of the application".

12.4 The application was made in good faith and was accepted as a valid application by the rights of way section, but it is potentially deficient in that although ten documents were listed on the application form, of these ten, copies of only four documents were supplied. Advice from the Department for Environment Food and Rural Affairs is that this should not preclude an exemption under s.67(3)(a). 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.

12.5 On balance officers consider that s.67(3)(a) provides an exemption from extinguishment of any right of way for mechanically propelled vehicles over Mounter's Lane, and s.67(2)(b) provides a further exemption for section B-C.

13. Width

13.1 Should Members decide that route B-C-D should be recorded as a right of way, they must satisfy themselves on the width of the public right. Currently, Mounter's Lane narrows from an (approximately) 7.5 metre wide path to the south and east of the Mid Hants Railway Bridge to an (approximately) 3 metre wide path to the north and west of the bridge. However, if Members take the view that, on the basis of historic evidence, the route carries highway rights, it is to this evidence they must look to provide evidence of the width of the right of way. The earliest accurate cartographic indication of the width of the path is provided by the 1st edition of the Ordnance Survey 1:2500 County Series Map. The extent of the path is clearly illustrated by way of both solid and dashed boundaries. However, the combined evidence of the two railways to be built over the route may also prove helpful - in both cases, the bridges built over the route are of a width of 20ft, indicating that for a distance of at least 50 yards either side of the bridges the width of the route was not greater than 25ft (approximately 7.5 metres).

13.2 With this in mind, the historic width of Mounter's Lane appears to vary between 4 metres and 7.5 metres.

These widths are consistent with those indicated by other evidence.

14. Comments from the Applicant and the Landowners

A draft of this report was given to the Landowners and the applicant to afford them the opportunity of submitting further evidence or making further comment.

14.1 Mr Oates (adjoining landowner):

"I found [the] report very well researched and I support its conclusions. I cannot see any errors or omissions...I would support HCC in seeking to apply a Traffic Regulation Order."

14.2 Mr Fry (applicant):

No comment

15. Conclusions

15.1 The evidence in this case is unusually strong, and clearly suggests that Mounter's Lane is an ancient highway, which, on balance, carried public carriageway status.

15.2 Officers do not consider that part A-B of Mounter's Lane is of a character capable of being recorded on the definitive map as a BOAT.

15.2 If Members are satisfied that the evidence shows that a public right of way for vehicles subsists over part, or all of section B-C-D of Mounter's Lane, 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 the relevant part of the lane as a byway open to all traffic to the definitive map.

15.3 If Members are satisfied that the evidence shows that a public right of way for vehicles subsists over the part B-C-D of Mounter's Lane, but that the `motorised' element of part, or all of that right of way has been extinguished by NERC then it is appropriate for an order to be made adding the relevant part of B-C-D as a restricted byway to the definitive map.

15.4 If Members are not satisfied that Mounter's Lane carries vehicular rights then it is recommended that this report be deferred for further consideration.

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 CR749 - Rights of Way Office, Mottisfont Court, Winchester