Archived decisions

    Hampshire County Council

    Regulatory Committee Item 11

    27 June 2007

    Application for a Definitive Map Modification Order for the addition to the Definitive Map of a byway open to all traffic across Cadnam Common in the parish of Copythorne

    Report of the Director of Recreation and Heritage

    Contact: Alex Lewis, extn. 6044; [email protected]

    WILDLIFE AND COUNTRYSIDE ACT 1981

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

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

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

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

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

    NATURAL ENVIRONMENT AND RURAL COMMUNITIES ACT 2006

    67. Ending of certain existing unrecorded public rights of way

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    (4) "The relevant date" means -

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

1. Summary

1.1 This item considers an application to add to the definitive map a byway open to all traffic from Storms Farm, Cadnam, across Cadnam Common towards Newbridge. The application is based on documentary evidence which suggests that a public road existed across the common, in approximately the line of the claimed route.

2. Recommendation

      That the claim be accepted and an order be made to add to the definitive map a byway open to all traffic between points A - B - F, and a restricted byway between points F - D and B - E each with a width of 3 metres on the basis that they are highways which are reasonably alleged to subsist.

3. Description of the claimed path

3.1 The claimed byway commences at the end of Storms Farm Road (an unclassified road maintained at public expense) at Storms Farm (point A on the attached plan) and runs for approximately 675 metres across Cadnam Common to a junction with Cadnam Lane, another publicly maintainable unclassified road ( via points B and F to point C). The route is not defined by boundaries or surfacing.

3.2 The map accompanying the application is at a scale of approximately 1:7,000 and shows the claimed path with a thick red line, illustrated by pink colouring on the plan annexed.

3.3 Cadnam Common is within the New Forest National Park and the New Forest, Special Protection Area, Special Area of Conservation and Site of Special Scientific Interest.

4. The Applicant and the Application

4.1 The Applicant is Mr D. Tilbury of Bishopstoke, on behalf of the Trail Riders Fellowship. The application was made in 2002.

4.2 The application for an amendment to the definitive map was made to the Rights of Way Section after the Applicant had had four years of correspondence on the matter with the Environment Department. That department ultimately refused to recognise the way as a highway maintainable at public expense. The evidence examined by that department is included in the evidence examined in this report.

5. The Landowner

5.1 The National Trust has been the owner of Cadnam Common since 1928, when it was given all of the Bramshaw commons by Lady Eyre. The common is managed so as to retain habitats in good condition. The Countryside Manager for South Hampshire has been invited to comment on the claim. He confirms that commoners do use vehicles on the common to tend their stock, but he is not aware of any significant use of the common by the public as a highway. The route has never been gravelled in the same way that many of the forest roads used to be and the Trust has never accepted it as a public highway. The public has free access to the common on foot and horseback.

5.2 The Trust advises that, for about 15 years after the mid 1970s, signs were put up, at the Storms Farm end of the common and elsewhere, saying `No vehicles beyond this point' and in the mid 1980s it blocked the claimed route with dragons teeth in order to protect a particularly valuable habitat, although these structures were removed after just a couple of years. An attempt to ditch the common to prevent vehicular access was abandoned as it prevented legitimate access by commoners.

6. Consultation

6.1 Letters of consultation have been sent to New Forest District Council, Copythorne Parish Council, Bramshaw Parish Council, The Clerk to the Verderers of the New Forest, The National Trust, New Forest National Park Authority, the Northern Commoners Association, the Warrens Estate, Open Spaces Society, The Ramblers' Association, British Horse Society, British Driving Society, Cyclists Touring Club, LARA, Trail Riders Fellowship, Environment Group (Hampshire County Council), and the Rights of way Area Officer. The local member, Cllr Heron has been informed, but has not offered any evidence for, or against, the claim.

6.2 Copythorne Parish Council - comments that `the route was travelled by horses and traps a long time ago but has since fallen out of use. One member also recalls a court case (reference to Tinkers Lane) when a judge commented that "the... Council doesn't provide roads to nowhere", presumably an indication that the lane had a particular purpose'. A number of local residents have written about the claim in response to information provided by the Parish Council and these are considered at paragraph 9.2 below.

6.3 The New Forest National Park does not have any evidence relating to the existence of vehicular rights, but would welcome the opportunity to comment on the future management of the route should a public right of way with vehicles be found to exist, as it would wish to see nature conservation issues given due weight alongside any potential benefit to the rights of way network.

6.4 Brook Enterprises Limited, owner of the Warrens Estate (which formerly included Cadnam Common) is opposed to the application and states that there has been no history of usage along the claimed route. Oliver Crosthwaite-Eyre, on behalf of Brook Enterprises Limited advises that both he and his uncle have served on the National Trust's local committee over the last twenty years and that to their knowledge there is no history of use of this route by the public with vehicles. He does not consider that it is correct to say, or assume, that the public has acquired such a right of way.

6.5 Cllr Heron has been informed, and whilst recognising the duty to record any historic rights that exist, is opposed to designation as a byway open to all traffic. If the route is designated as a byway she would wish to see it closed immediately to motorised vehicles.

6.6 No other responses have been received at the time of preparation of this report.

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

7. The issue to be decided

7.1 This Committee is asked to decide whether or not the evidence described in this report shows that a public right of way for vehicles subsists, or is reasonably alleged to subsist, across Cadnam Common, between Storms Farm, and Newbridge, in accordance with the application.

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

7.3 If the committee is not satisfied that the application should be granted, it may consider whether the evidence shows, nonetheless that any other amendment is required to the definitive map and/or statement in the light of the evidence and issues contained in this report.

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

7.4 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 representations made by the Green Lanes Protection Group.

8. The historic and documentary evidence

      Information on the background and evidential weight which should be attached to particular historical sources is included as an appendix to this report.

8.1 Taylor's Map (1756)

    This is one of the earliest small-scale commercial maps of the county. Although tracks are shown in the vicinity of the claimed route, the map is insufficiently precise in this area for them to be identified confidently. This map does not provide evidence in support of the claim.

8.2 Map and Survey of the Manors of Bramshaw, Cadnam and Winsor and Canterton (1790)

8.2.1 This map and survey is in a private archive, but officers have had sight of photographs of the map. A microfiche of the written record which is believed to have formed part of the same survey is held in Hampshire Record Office.

8.2.2 The written survey includes the road to Storm's Farm Road in a list of `Commons and Lanes' and describes it as `Lane leading from Tinkers Lane onto Cadnam Common'. The written survey includes `Cadnam Common' in the same list of `Commons and Lanes', but no separate reference is made in this survey to any routes across Cadnam Common. The map however, shows a number of tracks across Cadnam Common, including a track which leads from Storms Farm Road at Storm's Farm and runs across the common, one branch from which leads to the road to Cadnam Common Lane and Newbridge (B - F - D), and the other which joins the road to Cadnam Green (Cadnam Lane, (B - E)). Other tracks are shown across the common, including Cadnam Common Road and Cadnam Lane.

8.2.3 This map provides evidence of the existence of lines of communication across Cadnam Common, between Storms Farm and the roads to Newbridge and Cadnam Green (part, but not all, of which follows the claimed byway). The map does not prove status, but as the tracks connect with public roads without any distinction being made in the way in which they are depicted, it is not unreasonable to draw the inference that the map shows public highways across the common. However, this map is not, of itself, proof that all such tracks were public roads.

8.3 Milne's Map of Hampshire (1792)

    This map shows a very small part of Cadnam Common (the remaining part being, at that time, in Wiltshire and outside the parameters of the map). No track is shown on the line of the claimed route. This map does not provide evidence in support of the claim.

8.4 Ordnance Survey two-inch drawing and one-inch map (1808 and 1811)

      These show Cadnam Common as part of a much larger area of unenclosed common. There are many roads or tracks leading into the common (including Storms Farm Road), but no tracks shown across it. This evidence is neutral: it does not support the claim because it does not show the claimed route but, equally, it would be unrealistic to use it to argue that there were no roads or rights of way across the common. Not untypically, they have just not been drawn.

8.5 Tithe map and Award for the Parish of Minstead (1842)

      This shows part of Cadnam Common, including the area over which the claimed route runs (the remainder of the common was outside the parish boundary). The common itself is numbered `703' and listed in the award under `Waste, Roads etc' as `part of the Heath'. The same section contains an un-numbered entry for `Roads in Cadnam'. Three roads or lanes are shown leading into the relevant part of the common, but no tracks are shown across the common. Like the previous map, this evidence is neutral, as it was not unusual for roads and track across commons not to be shown on tithe maps. It is realistic to presume that highways did continue across the common. Two roads which are public today - Cadnam Common Road and Cadnam Lane are both shown on the 1790 estate map, but not on the Minstead tithe map.

8.6 Map of Storms Farm (1852)

    This map is held in the Record Office amongst papers deposited by Tylee Mortimer and Atlee, solicitors of Romsey. It is endorsed "This is the plan referred to in the declaration of William Egerton made before me this fifth day of October 1852. Henry Holmes, a master in Chancery", which suggests that the plan was prepared in connection with some litigation, possibly a property dispute. The plan shows land holdings around what is now Storms Farm. Storms Farm Road is clearly shown, apparently gated at its western end but not at its junction with Cadnam Common. As with the tithe map, no tracks are shown across the common, but the lanes to and from Newbridge and Cadnam Green are also shown. This map lends weight to the view that there were highways across Cadnam Common, but it does not prove that there was one on the claimed route or that it was a right of way for vehicles. Its evidential strength is limited by the fact that we do not know by whom or for what reason the map was prepared, although it might be supposed to be accurate in view of its apparent connection with legal proceedings.

8.7 Ordnance Survey County Series map: 1:2.500 First Edition

8.7.1 Published in approximately 1870, this is the first map, apart from the 1790 survey, to show any tracks across Cadnam Common. To avoid a prolonged description of these tracks, and for ease of reference, an extract of this map is annexed, from which it will be seen that one of the tracks is a continuation of Storms Farm Road, which divides approximately halfway along its length, with one branch leading into Cadnam Common Road (B - F - D) and the other into Cadnam Lane (B - E). Neither of these branches is on the exact route shown on the application plan, which shows a track terminating at point C. The routes of the tracks on this map are very similar to those on the 1790 estate map, which suggests that the tracks had some degree of permanence.

8.7.3 The number `6' appears on the subject track near Storms Farm Road, before it branches. This edition of the County Series map is accompanied by a Book of Reference which sets out the acreage and land use of the of the numbered land parcels shown on the map. In Minstead parish `6' is listed as `public roads'. By convention, parcel numbers should appear approximately halfway along the feature to which they relate. The bracing certainly suggests that both branches of the track across the common are excluded from parcel number 7 (the common itself) and presumably included within parcel 6, but it is not clear how far towards Cadnam Green parcel 6 extends. This is probably an academic point, because Cadnam Lane is also recorded as `public road'.

8.7.4 The maps previously considered do not prove, or disprove, the existence of a public highway leading out of Storms Farm Road across Cadnam Common, but this evidence does lend support to the Applicant's case that there was a public highway (most likely for vehicles1) across the common.

8.8 Later Editions of the County Series Maps

8.8.1 On the second edition of this map, (circa 1895) the main track from Storms Farm Road, and its two branches (towards Cadnam Common Road and Cadnam Lane respectively) remain, although there are changes in the more minor tracks across the common. There is no longer a separate parcel number for the tracks on this part of the common. The tracks previously numbered `6' now fall within the general parcel for the whole common. The significance of this is a moot point. The surveyors could have corrected an earlier mistake, or the (perceived) significance of these tracks, relative to the rest of the common, could have declined. The latter is, perhaps, a safer theory, given that there was no Book of Reference with this edition, and no longer any need to specify a status for the tracks. It is interesting that, in contrast, Cadnam Common Road and Cadnam Lane do retain their separate identities, suggesting, perhaps, that these tracks were more significant features.

8.8.2 On the third edition (circa 1909) the main track from Storms Farm Road and its two branches are shown much as on the second edition, but the minor tracks around them have disappeared. Cadnam Common Road and Cadnam Lane remain features separate from the land through which they pass, whereas the tracks leading to Storms Farm Road fall within the common, as on the second edition.

8.9 Highway Board Minutes and Eyre v New Forest Highway Board (1892)

8.9.1 In the early 1890s Mr George Briscoe Eyre, the owner of the Bramshaw (or Warren's) Estate (which then included Cadnam Common), was in dispute with the Highway Board. The Board had placed gravel on part of the waste of the Manor of Cadnam which the Board believed to be a public road, but which the owner of the land disputed. Mr Briscoe Eyre sought compensation for damage to his property. The matter was tried by the Winchester Assizes and subsequently considered by the Court of Appeal. In both instances, the court found that the land in question was a publicly maintainable highway known as Tinkers Lane, and that the Board had the right to maintain it in the way it had done.

8.9.2 The Eyre judgment refers to a number of locations in the Bramshaw and Cadnam area, and the Applicant's previous correspondence with the Environment Department started because the Applicant believed that the claimed route was the same `Tinkers Lane' as is referred to in the judgment and that it ought to be recorded on the List of Streets. The investigations carried out by, and on behalf of, that department (including consideration of the 1790 estate map and contemporaneous Highway Board Minutes), concluded that the road on which the gravel had been laid is to the southwest of Cadnam Common and that the judgment is, therefore, of no significance for the claimed route.

8.9.3 The current application appears to be founded, in part, on the premise that the claimed route, whilst not the exact piece of land which had precipitated the 1890s litigation, is nonetheless part of the same highway considered by the court in the Eyre case. There is merit in the argument that the tracks shown across the common on the 1790 estate map and Ordnance Survey County Series maps do form a logical connection between Brook and Newbridge, but officers do not consider that the decision in the Eyre case is of direct application to the claimed highway, because it is too remote from the location described in the judgment and it is only one of a network of highways connecting with Tinkers Lane.

8.10 Records from the Finance Act (1909/10)

8.10.1 These can sometimes be used to support the cases for the existence of a public right of way, although they are rarely determinative of status.

8.10.2 Some working copy maps of the area survive. The most informative of these shows Cadnam Common coloured green and shows the track running across it between Storms Farm Road and Cadnam Common Road with a single, solid blue line. The significance of the solid blue line on this map is debateable: it is not uncommon to see a solid blue line running along highways on Finance Act maps (it also runs along Storms Farm Road, Kewlake Lane and the road through Newbridge) but it does not seem to have been included as a standard notation in Valuers' instructions, so the strength of this as evidence of a public highway across Cadnam Common is low. Nonetheless officers feel that the line was there for a purpose and that its most likely purpose was to indicate a highway of some description.

8.10.3 There are no entries in the valuation book of assistance in determining status, and no other supporting documents have been found from the valuation.

8.11 C20th Road maps

8.11.1 In support of his argument that the claimed route forms part of a road between Brook and Newbridge the applicant has produced a number of road maps and atlases that show the route. These are:

      (a) 1921 Ordnance Survey map of the New Forest shows a route between Storms Farm Road and the road to Newbridge (A - B - F - D) as an unfenced road (`narrow' and `bad' according to the key). There is a different symbol for footpaths or bridleways.

      (b) 1947 Ordnance Survey one inch map of The Solent shows the same tracks as appear on the second edition county series, i.e. a track from Storms Road which branches into two tracks connecting with the roads to Newbridge (point D) and Cadnam Green (point E) respectively. There are represented by a symbol which indicates an unfenced, minor road. There is a separate symbol for footpaths and bridle paths.

      (c) Circa 1930 W & AK Johnson Motoring and Hiking Map shows a route between Storms Farm Road and the road to Newbridge (point D) (but interestingly, not the road through Cadnam Green). No key has been provided for this map.

      (d) Circa 1940 W & AK Johnson Road Atlas shows Storms Farm Road and a continuation across the common to connect with the road to Newbridge (point D) (but again, not a road through Cadnam Green). There is a declaration that `the representation of uncoloured roads ...does not necessarily imply that these are suitable for wheeled traffic'. The key includes a symbol for footpaths.

      (e) 1960 Russell's guide to the New Forest shows a route past Storms Farm across the common to Newbridge (point D) as an `indifferent' road. Again, there is a separate symbol for footpath.

      (f) Three editions of Bartholomew's maps (1935, 1953 and 1976) have been produced. That of 1935 does not show a route across the common. The 1953 map shows an `other' road or track (i.e. not a `recommended through route' nor a `good' nor `serviceable' road) between points A - B - F - D. The latest edition shows a `minor road and track' across the common, between Storms Farm Road and Newbridge (point D). There is a separate symbol for footpaths and bridleways.

8.11.2 These maps reinforce the fact that there was a track across the common between Storms Farm and Newbridge, and they are not inconsistent with it being a public right of way for vehicles, but they do not prove that it was, particularly where they contain a disclaimer (such as in the case of the 1935 edition of Bartholomews: `The representation of a road or footpath is no evidence of a right of way'). If the map maker was recording physical features without further inquiry into legal rights of passage over them, then they cannot be anything other than neutral on the issue of status.

8.11.3 With one exception, where these maps show a track from Storms Farm Road across Cadnam Common, they show it linking with the road to Newbridge, rather than the road to Cadnam Green, i.e. A - B - F - D.

8.11.4 Neither the claimed route nor Storms Farm Road are shown on Bacon's County Map guide (1895), Gall and Inglis's County map (1910) or Geographia Road Map 1921(?), all referred to by the Applicant.

8.12 County Maintenance records

8.12.1 Maintenance maps of 1929 and 1946 record Storms Farm Road as a publicly maintainable road, but show that the maintenance liability stops at the boundary of Cadnam Common. Neither map shows a highway across the common. These maps are good evidence of what the surveyor thought or believed to be his responsibility, but they are not conclusive proof of the accuracy of the information shown on them. Where they are consistent with the known history of a road or way, they are good supporting evidence of status. Where they are inconsistent, they need to be treated with some caution.

8.12.2 The maps are, of course, maintenance records and it is possible for there to be a public road that was not publicly maintainable but, either way, they do not add weight to the case in support of a byway across the common. Both maps show a road from Cadnam, through the Warren's Estate, to Stocks Cross as a maintainable carriage road. This includes the land which was the subject of the 1892 court case. If the claimed route was considered to be part of the same highway, it begs the question why it was not also included in the maintenance record.

8.12.3 A maintenance map of 1946 does not show the route and it is not currently recorded as a maintainable highway of any description.

8.13 Quarter Sessions Records

    An examination of the indexes and catalogues of Quarter Session records has not identified any proceedings that might affect the current status or position of the claimed byway.

9. Evidence of recent use

9.1 No evidence of use of the claimed route with vehicles has been provided with the application. The claim is based on historic evidence, rather than a presumed dedication as a result of evidence of recent use.

9.2 A number of local residents and an interested party have written to officers about the application. Most letters deal only with the consequences of having a byway in this location and its future management, and they will be taken into account in that context. A number do address the matter of use of the way in living memory. The local residents are unanimous in saying that there has not been any regular public use of the claimed route with vehicles, although some refer to occasional use by the owner of Storms Farm, or by illegal flytippers or poachers.

9.3 The owners of Storms Farm have been interviewed and their view is that there has never been a made up track across the common. It is used occasionally by commoners, who use vehicles to tend their livestock, and very occasionally by the public in vehicles, who often get stuck and have to be helped out.

9.4 There is no evidence to suggest that the claimed route is in regular use by the public with vehicles or that it has been in regular use in living memory. This does not preclude the route having been a public right of way with vehicles before living memory, because rights are not lost merely through disuse. It might, indeed, reflect an historic lack of use or it may simply reflect a modern preference for made-up roads.

9.5 Cadnam Common is Open Access Land and is in practice available to the public to use on foot and horseback. It is possible that the public has acquired a right of way along the claimed route on foot or horseback, but there is currently no evidence before officers which would establish that such use was over a defined route having the character of a highway. Members are not being invited to consider whether any non-vehicular right of way has been established over the claimed route.

10. Analysis of the documentary evidence

10.1 There is evidence that there has been a track from Storms Farm towards Newbridge, which bifurcates at point B, with a branch joining each of Cadnam Common Road (point D) and Cadnam Lane (point E), since at least 1790. The only evidence which makes a direct comment on their status (the Ordnance Survey Book of Reference) describes them as `public roads'. This evidence is by no means conclusive, but it is not lightly dismissed in the absence of any contrary evidence which shows that the description was incorrect. The location of the track, between two public roads and on a direct line between Brook and Newbridge, makes the proposition that it was an old line of communication entirely plausible, as does the fact that the track(s) are consistently shown on maps over one hundred years apart.

10.2 Whilst the evidence is weighted in favour of the application, it is a very fine balance. Many of the maps do not show the route at all, although this is not considered to be fatal to the claim, because it is quite usual to find that maps showing commons do not depict the roads across those commons (Cadnam Common Road and Cadnam Lane are, similarly, not shown on many maps). The fact that the track has not been in use as a public highway for vehicles in living memory might suggest that it has never been a public highway for vehicles, but it may equally reflect changing patterns of travel and a public preference for better roads. These points are valid, but do not explain the Ordnance Survey description `public roads' or prove that such a description cannot have been correct.

10.3 The expression `road' does not, of necessity, mean a highway for vehicles, but there is nothing in the historic record to suggest that the phrase referred to a limited class of highway or should bear anything other than its usual meaning.

10.4 The Applicant has to show that a right of way subsists, or is reasonably alleged to subsist. Officers consider that a reasonable allegation has been made that a public right of way for vehicles subsists over Cadnam Common. The weight of evidence in favour of byway is not strong, but the balance lies in that direction. The evidence applies equally to both limbs of the track and this should be reflected in the order.

10.5 It is impossible to determine the exact width of the path from the historic record, but we are required to include a width in any order adding a path to the definitive map. A `best guess' and pragmatic answer, based on a scaling of the track shown on the first edition County Series map (in places 2 metres and in other places 4 metres wide) is to reflect an average width, of 3 metres.

11. Natural Environment and Rural Communities Act 2006

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

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

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

          There is little evidence of current use of the route(s) 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 route(s) 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 route came into being as a result of an express dedication, or by statute;

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

        The route(s) have never been constructed as roads for motorised vehicles;

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

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

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

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

11.5 The application was made in good faith and was accepted as a valid claim by the rights of way section, but it was not accompanied by a list of the documents relied on and separate copies of those documents. It was accompanied, instead, by a schedule describing, on two sides of A4, the nature and content of each of the documents relied on in support of the application. The Green Lanes Protection Group argues that the application does not comply with paragraph 1. Advice from the Department for Environment Food and Rural Affairs is that such an application does comply with Paragraph 1 and the lack of copy documents should not preclude an exemption under s.67(3)(a). For the reasons set out in the accompanying report, officers would not wish to depart from that advice.

11.6.1 A second difficulty arises that the route shown on the map accompanying the application (A - B - F - C, and coloured pink on the attached plan) is not precisely on the line of the tracks which officers consider to be the historic routes (i.e. A -B - F - D and B - E: the difference at point C is 50 metres or thereabouts). Members need to consider whether the sections F - D and B - E are the subject of the application. The section B-E almost certainly is not, as it is clearly on a different alignment from the claimed route. The section F - D, however, is a comparatively minor deviation from the claimed route, considering that this is an open landscape with no defined track on the ground.

11.6.2 If B - E is not part of the application, then it should be recorded on the definitive map as a restricted byway, because any public right of way over it for mechanically propelled vehicles will not have the benefit of the exemption in s.67(3)(a) and will have been extinguished by s.67(1) of NERC. The same should apply to the section F - D if members consider that the application does not relate to that section either. Officers do not consider that the variation between the application map and the historic routes is likely to have caused any prejudice to the landowner, with whose representative they have discussed the claim and looked at some of the historic maps early in this investigation. Given that nothing turned on the matter when the application was made, it might be considered unjust to seek to deny exemption as a result of the discrepancy. Members may regard the line shown on the application map as a generalisation. However, it is equally hard to argue that route F - C was ever part of the historic record or that the route F - D is within the land shown coloured red on the application plan. Officers consider that the application plan is unambiguous, and that it does not include the section F - D. The decision whether or not the application can be considered to cover routes F - D is in the balance, and it is open to members to take a different opinion.

11.7 Officers recognise that recording one section of a single route as a byway and the remainder as a restricted byway appears an odd, and unsatisfactory result, although it can be managed by the making of an appropriate traffic regulation or extinguishment order. Unfortunately it seems to be just one of a number of unintended consequences of the new legislation.

12. Conclusions

12.1 If Members are satisfied that the evidence shows that a public right of way with vehicles is reasonably alleged to subsist across Cadnam Common, 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, between points A - B - F - D and B - E.

12.2 If Members are satisfied that the evidence shows that a public right of way with vehicles is reasonably alleged to subsist across Cadnam Common, and 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 between points A - B - F - D and B - E.

12.3 If Members are satisfied that the evidence shows that a public right of way with vehicles is reasonably alleged to subsist across Cadnam Common, and that the `motorised' element of that right of way has been extinguished by s.67(1) NERC, over part, or parts, only of the historic routes, it is appropriate that an order be made to record those sections as restricted byways and the remainder of the routes as byways open to all traffic. Officers consider that it is appropriate to made an order for byway in respect of the section A - B - F, and an order for restricted byways over sections F - D and B - E.

12.4 The application should be rejected if Members are not satisfied that the evidence shows that a right of way with vehicles is reasonable alleged to subsist. Officers are of the opinion that there is not sufficient evidence to support the making of an order for a right of way of any other description.

Section 100D - Local Government Act 1972 - background papers

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

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

File CR753 - Rights of Way Office, Mottisfont Court, Winchester, including copies of some of the documents referred to above the originals of which can be inspected in Hampshire Record Office.

19/06/2007