Archived decisions

Hampshire County Council

Regulatory Committee Item 9

16 April 2008

Application for a Map Modification Order to upgrade Footpath 6 in the Parish of Amport to bridleway

Report of the Director of Recreation & Heritage

Contact: Colin Piper Ext. 6043 [email protected]

WILDLIFE AND COUNTRYSIDE ACT 1981

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

(2) As regards

every definitive map and statement, the surveying authority shall -

(b) .... keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence.... of any of [the events specified in sub-section (3)] by order make such modifications to the map and statement as appear to them to be requisite in consequence of that event.

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

(b) the expiration... of any period such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path;

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

(ii) that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description

Presumed Dedication at Common Law

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

NATURAL ENVIRONMENT AND RURAL COMMUNITIES ACT 2006

67. Ending of certain existing unrecorded public rights of way

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

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

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

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

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

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

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

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

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

(e) it was created by virtue of use by such vehicles during a period ending before 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,

1. Summary:

1.1 A resident of Andover has made an application to have a route in Amport recorded as a public bridleway. The route is currently recorded as a public footpath but there is substantial evidence of use by horse riders over the last 58 years, and significant historic evidence dating from the 18th century, that points to the existence of higher rights.

2. Recommendation:

2.1 That a Map Modification Order be made to upgrade Footpath 6 in Amport to a restricted byway, the route being shown on the attached map between points A and B, such highway having a width varying between 5 and 10 metres.

3. Claimant:

    Mr P Derbyshire

Red Post Farm

Red Post Lane

Andover

    Hampshire

    SP11 8DA

4. Landowners:

4.1 There is no registered owner for the lane although there are seven adjoining landowners who have all been consulted about the application.

5. Description of the route: (Please refer to attached map)

5.1 The claimed route consists of an earth track mostly bounded by banks and mature trees set five to ten metres apart. It connects at both ends with surfaced public roads. Towards the northern end, the route used by the horse riders crosses a ford whilst the recorded footpath runs on the west side of the ford, over three narrow footbridges. There are signs of heavy use by walkers, cyclists and horse-riders. The route is approximately 420 metres long.

5.2 The Definitive Statement of 1964 describes Amport Footpath 6 as follows:

    "From Road C17, south-eastwards along flint road approximately 9 feet wide enclosed between wire fence and cottage, then skirting south side of cottage, over concrete footbridge, along asphalt path (3 feet wide) 12 feet wide between stream and fence, over concrete footbridge, along asphalt path approximately 10 feet wide between ford and fence, over concrete footbridge, along earth track enclosed approximately 15 to 25 feet wide between wire fences, then along earth path (6 feet wide and enclosed approximately 20 feet wide between hedges) to road C43."

6. Background to the claim:

6.1 In 2002 there was concern among the riding community that attempts to restrict use of the lane by motorised vehicles would also stop use by horse riders. Two wooden posts were erected at the southern end of the lane to stop motorised vehicles and the application was made shortly afterwards to safeguard use by horse riders.

7. The issue to be decided:

7.1 The issue to be decided by this committee is whether there is evidence to show that the claimed route ought to be shown on the definitive map as a highway of a different description, that is as bridleway, restricted byway or byway open to all traffic.

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

7.3 Historic and documentary evidence has been examined to see whether the past history and use of the paths point to them having bridleway or vehicular rights as a result of dedication in the distant past. Any such rights are not lost merely through disuse. Unless stopped up by due process of law, any rights previously dedicated will still exist, even if they are now neither used nor needed. 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. This type of evidence may disclose rights other than those claimed by the applicant, for example, in this case, they may show that the lane is an old road for vehicles, not merely a footpath or bridleway. The County Council is under a duty to record such rights as are found to exist, even if they are not claimed by the applicant.

7.4 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 not a step which should be taken simply to avoid making a difficult decision.

7.5 The originals of many of the documents referred to in this report are only available in public record offices, but copies, transcripts or tracings of most documents are available for inspection in the offices of the Rights of Way section. Members are urged to inspect these, or the originals, when considering this report.

8. Documentary evidence:

8.1 1791 Thomas Milne's Map (1 inch to 1 mile)

    This is a small-scale map which shows only the prominent topographical features in the area. The claimed route is shown by parallel solid lines in the same manner as other routes in the locality that are now public roads. Together with Hook Lane to the south it forms a continuous north-south route.

8.2 1810 Ordnance Survey map (1 inch to 1 mile)

    The claimed route is shown broadly in the same manner as Milne's Map as described above.

8.3 1826 Greenwood's Map (1 inch to 1 mile)

    The claimed route is shown in a very similar manner as Milne's Map as described above.

8.4 1839 Tithe Map & Award (14 inches to 1 mile)

    The claimed route is shown by parallel solid lines with no line across the path that would indicate the existence of a barrier. A group of buildings annotated "Sarson Mill" are depicted at the north-west end of the track. The blue colouring for the river has been broken which probably indicates the existence of a ford. The route is not coloured or numbered therefore it is exempt from tithe payments (see Appendix 1).

8.5 1846 Plan of the Amport Estate

    The primary purpose of this map is to show a road diversion, to the west of Amport House, proposed by a major landowner, the Marquis of Winchester. The plan includes the claimed route which is shown by parallel solid lines and coloured brown in the same manner as other routes in the locality that are now public roads. There are no barriers across the path and the blue colouring for the river has been broken which probably indicates the existence of a ford.

8.6 1870 Ordnance Survey Map (25 inches to 1 mile) - first edition

    This is the first large-scale map of the English countryside which accurately shows all topographical features in great detail. The claimed route is shown by parallel solid lines set between five and ten metres apart. Close to the northern end is a building which is annotated "Sarson Mill (Corn)" and alongside that is a "Ford" where the river crosses the track. The lane has been given the parcel number "241" which the accompanying Book of Reference describes as a "Road". This particular reference book does not draw a distinction between public roads and accommodation roads. The extent of parcel 241 is depicted by bracing symbols and pecked lines. Parcel 241 includes the ford across the river. The map does not show any footbridges across the river at Sarson Mill.

8.7 1878-79 Map of highways in Amport - Andover Highway Board

    The minutes of the Highway Board for 4th October 1878 record that:

    "The Clerk read a letter...from Mr J P Clarke, their late Surveyor, stating that the map of the Roads he was preparing was on a scale of 3 inches to a mile and that he would complete the same, with book of reference, for a sum not exceeding £1 for each parish."

    The resulting map for Amport Parish was made the following year and shows those routes that were maintainable by the highway authority. The highways are shown by parallel solid lines, coloured brown and given numbers which are listed on the same document with a description of the route and its length. The claimed route is shown by brown colouring and is part of route number 15 which includes Hook Lane to the south. The legend describes this route as "From Amport Village, by the mill, towards Wallop" with a length of 6 furlongs and 36 poles. The map also shows routes which are not coloured and described as "Private Road" and "Bridleway". This map provides strong evidence that, in 1879, the local highway authority considered the claimed route to be an all-purpose, publicly maintainable highway.

8.8 1895 Ordnance Survey Map (25 inches to 1 mile) - second edition

    There is no material change in the depiction of the claimed route compared to the 1870 map. The building is now annotated "Sarson Mill (Disused)" with a "Ford" just to the east. There are two footbridges across the river at the mill.

8.9 1901 Photograph of Sarson Mill

    This photograph was taken from the northern end of the claimed route looking south westwards. It shows the building known as Sarson Mill on the right hand side with a wide track in the foreground. To the left of the picture can be seen the river and the footbridges over the river that carry the existing Footpath 6. Where the track enters the river, several wheel marks can be seen in the mud where vehicles have entered and exited the ford.

8.10 1908 Ordnance Survey Map (25 inches to 1 mile) - third edition

    There is no change in the depiction of the claimed route, ford and mill compared to the previous map of 1895.

8.11 1929 Handover Map

    In 1929 responsibility for all public highways was transferred from the Rural District Councils to the County Council. This map shows those routes that the District Council believed were publicly maintainable at that time. The claimed route is not shown on this document probably because it had declined in importance due to the surfacing of alternative highways and the cessation of Weyhill Fair.

8.12 1973 Ordnance Survey Map 1/2500 scale

    The claimed route is shown by parallel solid lines indicating the position of the existing banks and mature trees. Within the solid lines there are parallel pecked lines annotated "Path (um)" for the major part of the route but at the northern end there is a wider route which is annotated "Track" where it passes through the "Ford". There are no lines across the path which would indicate the existence of a barrier.

8.13 1979 Ramblers Survey

    The Ramblers Association carried out a survey of all rights of way in Hampshire, at the end of the 1970s, and described the routes. At the bottom of the description for Amport Footpath 6 the surveyor has written "Evidence of use as a bridleway".

8.14 1987 Letter from Amport Parish Council to Rights of Way Officer

    This letter was in response to a consultation letter regarding a review of the definitive map. It reads, in part: "There was discussion on three other footpaths...Green Lane (6)...It was unanimously agreed that these should be reclassified as Byways Open to All Traffic." The number 6 indicates that the parish were referring to the claimed route.

8.15 1991 Letter from P Calderley to Assistant County Secretary

    In a letter dated 23 July, Mr Calderley complained about motorised vehicles using Footpaths 6 and 7 and suggesting the erection of bollards to stop this activity. He describes Footpath 6 in the following terms:

    "This follows the course of an ancient unmetalled track which fords Pilhill Brook, twists quite a bit, and visibility along it is very poor. Unfortunately, with the current popularity of 4 wheel drive vehicles, this track has become attractive to drivers of such vehicles, especially as it goes through a ford. This track, which I believe is a footpath and not a byway, has been used with increasing frequency by such vehicles. The ford is a favourite play area for children and has been for many years. The footpath up the track is very regularly walked both by people and horses."

8.16 1991 Memo from Rights of Way Officer to Assistant County Secretary

    The Rights of Way Area Officer was asked to look at the route by the County secretary and in his response, dated 12 August, he says:

    "Although defined as a footpath, this right of way has the appearance of an old green lane. When I inspected the path there were definite signs of vehicular use, both agricultural and cross-country i.e. Land Rover. Vehicle usage was light, resulting in flattened undergrowth rather than a badly churned and rutted surface. There was also a great deal of horse traffic along this footpath, but again no undue damage had been done to the surface as it is lined with flints."

8.17 2002 Letter from Amport Parish Council to horse riders

    "Amport Parish Council wishes you to know that there is no intention of horses being prevented from using this footpath. It is possible however that the landowners may take steps to prevent motorised vehicles from using it, and we are currently in discussion with them over this."

9. User evidence:

9.1 The County Council has received 18 user evidence forms submitted by horse riders in support of the application. The earliest recorded use is by Mrs Perrin in 1950. For a visual representation of use by riders please see the chart at the back of this report. The users have not been interviewed by the investigating officer because the historic, documentary, evidence for the existence of higher public rights is very persuasive and the used route is obvious and well-defined. The user evidence adds credibility to the historic evidence as it demonstrates continuity of use over many years. The following evidence is contained within the user evidence forms and accompanying letters.

9.2 Mrs J Booth of Andover

    Mrs Booth used the claimed route weekly for horse riding between 1992 and 2002. She does not recall any obstructions on the route.

9.3 Mrs K Chappell of Andover

    Mrs Chappell has used the path monthly from 1978 to 2004. She says "As long as I can remember it has been used by horses, including race horses..."

9.4 Miss J Clarke of Salisbury

    Miss Clarke rode the claimed track 12 times a year between 1997 and 2004 to exercise a horse avoiding busy roads.

9.5 Mrs D Crapper of Whitchurch

    Mrs Crapper used the lane for riding 3 times a year between 1978 and 1982 and 12 times a year from 1989 to 2004.

9.6 Miss S Curtis of Chilbolton

    Miss Curtis rode the claimed track 30 times a year between 1964 and 1990 and 20 times a year from 1990 to 2002. She regards the way as public because "This path has been used by myself for 40 years on foot and on horseback along with numerous others. It is an integral part of the surrounding countryside track/path network being a vital link to other routes."

9.7 Mr P Derbyshire of Andover

    Mr Derbyshire used the lane on horseback 50 times a year, between 1980 and 2004, for pleasure riding.

9.8 Mr R Hale of Amport

    Mr Hale is the proprietor of Amport Riding Centre. He has used the lane weekly from 1969 to 2002. In August 2002 he wrote to the county council to say:

    "I have owned and managed the Riding Centre continually since 1969. ...although the track is a footpath it has been used as a bridleway for sometime. In the spring of 02 new residents challenged riders about the use of the track. In May a Parish Council notice appeared saying a barrier was to be placed across the lane. Following inquiries to the (Parish) Council, we received a letter which to me says the Council are at ease with it being a named bridleway."

9.9 Mrs B Harman of Thruxton

    Mrs Harman used the path for riding, twice weekly, between 1984 and 2002.

9.10 Mrs H Hodgson of Monxton

    Mrs Hodgson rode along the lane 100 times a year from 1986 to 2002. In answer to the question `Have there been any notices along the route' she has replied "Barrier to be erected to prevent vehicular access."

9.11 Miss K Justice of Grateley

    Miss Justice used the path on horseback, every couple of weeks, between 1990 and 2004. She regards the way as public because "I've been riding this path since I started riding years ago and have never been told it is not public nor told we're not allowed to use the trackway."

9.12 Mrs R Justice of Grateley

    Mrs Justice used the path "regularly" for riding from 1976 to 2004

9.13 Mrs P Kearley of Shipton Bellinger

    Mrs Kearley rode the claimed route 5 days a week between 1987 and 2002.

9.14 Miss G Perren of Cholderton

    Miss Perrin has used the lane for weekly horse rides from 1975 to 2002. She regards the way as public because "It has been used regularly without restriction, obstruction or challenge."

9.15 Mrs M Perrin of Amport

    Between 1950 and 1970 Mrs Perrin rode along the lane 30 times a year and from 1970 to 2002 she used it 70 times a year. She has also cycled along the lane between 1955 and 2002. She regards the way as public because "I have used it for over 50 years unrestricted and unchallenged."

9.16 Mrs B Rippingale of Abbotts Ann

    Mrs Rippingale used the lane on horseback weekly from 1987 to 2002.

9.17 Mrs L Snellgrove of Lopcombe

    Mrs Snellgrove rode along the lane weekly between 1984 and 2002.

9.18 Miss J Vallis of Grateley

    Miss Vallis has walked, ridden and cycled the claimed route, from the age of 10, weekly from 1959 to 1987 and monthly from 1987 to 2002. In 2002 she wrote a letter to the County Council in which she said: "I am writing regarding the proposed closure to horse riders of (the claimed path). I have been riding this path over a period of 40 years and have not had any such restrictions before. It is a very much needed path to enable people to avoid the nasty and fast traffic coming through the villages."

9.19 Mrs R Wareham of Amport

    Mrs Wareham has used the path on foot since 1947 and on horse back between 1976 and 1995. She has written: "When I was Chairman of Amport Parish Council in 1990 we realised the error that had been made in registering all rights of way in the 1960s as footpaths and were collecting evidence that this has always been used as a bridleway. The lane, from my earliest memories was used by Toby Balding's racing stables, when they were based at Kimpton, as an excellent route for roadwork for their horses or when the gallops were frozen...so that the horses could enjoy the ford (river) crossing at the Sarson end..." On the map that accompanies her form, Mrs Wareham has described the claimed route as "Old route originally used by farmers bringing their sheep to the sheep fair at Weyhill from Wallop and further, and all horse riders for generations."

10. The adjoining landowners:

10.1 There are three registered landowners on the west side of the lane and four registered landowners on the east side of the stream. Only two landowners, both on the south-east side of the lane, have responded in writing to the consultation letters. They are:

10.2 Mr R Aisher of Amport

    I an e-mail dated 3 December Mr Aisher made the following points:

    "Bearing in mind the fact that horses currently use the route, there is now some concern by the Test and Itchen Association...(that)...horses who should be using the bridge are crossing the stream at a point where the trout use the gravel as a spawning bed. This is most unsatisfactory. If it is decided to let horses use the path then a barrier stopping them entering the stream should be erected. Some horses do already go over the bridge. My personal opinion is that the pathway should remain a footpath and has been in place for some considerable time."

10.3 Mr D Pritchard of Amport

    In an e-mail dated 27 November Mr Pritchard made the following points:

    "You should ...be aware that the ford is now a spawning ground for brown trout. Any possible vehicular disturbance would be environmentally unacceptable."

11. Consultations with other bodies:

11.1 Amport Parish Council

    The parish clerk has written to say:

    "It was felt we had nothing to offer on this matter except that many parish councillors felt the path has been used as a bridleway for as long as anyone can remember. The Parish Council has no objection to the footpath being (correctly, as some felt) renamed as a bridleway. There would be no objection to horse-drawn vehicles, however, two posts have been placed at the Grateley Road end of this path as the landowner has recently had problems with fly tipping at the top end of this path. In addition tree routes might make it very difficult for a horse-drawn vehicle to pass along this path safely."

11.2 Test Valley Borough Council

    The Engineering Consultancy Manager at the Borough Council has written to say that:

    "I have no evidence to contribute to assist your deliberations and no further comment to make."

11.3 County Councillor P West - local member

    No comment

11.4 The Ramblers Association

    The area Footpath Secretary has written to say:

    "Andover RA Group have no evidence to offer other than having observed that the path is used by horses. They have no objection to the footpath becoming a bridleway, but ask that the bridges at the northern end are retained for use by walkers. If it should be shown that the track has vehicular rights, then so be it. However, in its current state where width is restricted by surface growth, it would be difficult for horse drawn vehicles to use it."

11.5 Open Spaces Society

    No comment

11.6 The British Horse Society

    A BHS representative attended a meeting of the Bourne Valley Riding Club in November 2007 at which the ten people present confirmed that they had ridden the path and provided information about a further 45 riders who have used the path for some time.

11.7 Cyclists' Touring Club

    No comment

11.8 British Driving Society

    No comment

11.9 Trail Riders Fellowship

    The Rights of Way Coordinator has e-mailed the following comments:

    "I suggest the correct status for this old road would be restricted byway. I am not in possession of any information that would suggest that any of the NERC exemptions apply. I'm sure that some trail riders would have used the route in the past, but not in numbers that might trigger the s.67(2)(a) exemption."

11.10 Environment Department

    No comment

11.11 Hampshire Highways

    No comment

12. Analysis of the evidence:

12.1 The maps demonstrate that the lane has existed as a physical feature in the landscape since, at least, 1791 and is probably very much older than that. Milne's map of that date shows the lane as part of a much longer route, running south to north, that leads to Weyhill which was the site of a very large and important fair from medieval times until its decline at the beginning of the 20th century. Every map published since 1791 shows the claimed route in the same manner, that is as a wide lane bounded by solid lines indicating the existence of boundary features. Every map depicts, in some manner, a ford at the northern end where the river crosses the lane.

12.2 The lane has never been shown as part of a landholding. It is uncoloured and unnumbered on the tithe map of 1839. The estate map of 1846, produced for the landowner, shows the lane coloured brown in the same manner as all the other routes in the locality that are now public roads. The 1870 Ordnance Survey map and reference book describes the route as a "Road" and, more importantly, it is shown as a publicly maintainable highway on the Andover Highway Board map of 1879. This latter document draws a distinction between public roads, bridleways and private roads and therefore must be considered to be strong evidence for the status of the claimed route.

12.3 The mapping evidence firmly suggests that the lane is an old road and, unusually, this is supported by photographic evidence from 1901. The photograph taken of Sarson Mill clearly shows a number of wheel ruts through the mud where carts have entered or left the ford. Use of the lane probably diminished in the 20th century due to the surfacing of alternative routes by the highway authority and the decline of Weyhill Fair as a market for animals and agricultural wares.

12.4 This decline meant that the route was overlooked when the Rural District Council drew up the Handover Map of 1929 showing those routes that were considered to be publicly maintainable. This document is not consistent with the mapping evidence that preceded it. Amport Parish Council only claimed the lane as a public footpath when the first definitive map was compiled in 1950. However, the user evidence demonstrates that the lane has been in regular use by horse riders and cyclists from 1950 to the present day, without interruption.

12.5 There is also indirect evidence of continued use by vehicles. In 1987 Amport Parish Council thought that the correct status of the lane should be Byway Open to All Traffic. Four years later Mr Calderley complained to the Council about use of the lane by vehicles and this issue was revived in 2002 which led to the erection of two wooden posts at the southern end of the lane and the claim for bridleway rights. There is no obvious evidence of use of the lane by vehicles today even though only one wooden post remains at the southern end.

12.6 The documentary evidence indicates that all those using this route would probably have had to ford the river before 1895. The OS large-scale map of 1870 does not show any footbridges in the locality of Sarson Mill. Thereafter, there have been two or three narrow footbridges in place to carry pedestrian traffic on the western side of the ford, but the horse riders using this lane have predominately used the river crossing. The public has acquired a right of way through the ford which has, historically, been part of the highway.

13. Conclusions:

13.1 The maps demonstrate that the lane has existed as a physical feature in the landscape for, at least, 217 years.

13.2 The lane has never been shown on a map as part of a land holding, and there is no evidence of a physical obstruction to users of the lane until wooden posts were erected in about 2002.

13.3 There are several documents which paint a compelling picture of the lane as part of the all-purpose, public highway network in the 19th century.

13.4 The user evidence demonstrates that the public has had uninterrupted use of the lane on horseback and bicycle since, at least, 1950.

13.5 The historic, documentary evidence demonstrates that it is appropriate to infer at common law that the lane was dedicated to the public as an all-purpose highway at some time in the past.

14. Natural Environment and Rural Communities Act 2006:

14.1 There remains to be considered whether the `motorised' element of the right of way with vehicles has been extinguished by this Act. It will have been, unless one of eight exceptions contained in the Act applies. These exceptions are set out below. It seems unlikely to officers that any of these exceptions are applicable for the following reasons:

    Section 67(2)

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

        There is little evidence of use of the routes by the public in motor vehicles but there has been heavy use by walkers and horse riders. 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 and not a route of such a character that motorised vehicle rights were intended to be preserved by this exception.

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

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

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

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

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

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

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

Section 67(3)

    (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.

      An application was made before 20 January 2005, but that application was for bridleway rights only.

    (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.

      The County Council has not yet determined the application.

    (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.

      The application was made by a user of the path and not a person with an interest in land.

15. Conclusions on effect of NERC legislation:

15.1 The historic, documentary evidence shows that a public right of way with vehicles subsists along the claimed route. However, the `motorised' element of the right of way has been extinguished by s.67(1) NERC because, immediately before commencement of the Act, the route was recorded as a public footpath on the definitive map and was not recorded on the list of streets. The exceptions in s.67(2) do not apply to this route as detailed above. It is therefore appropriate for an Order to be made upgrading the claimed route to a restricted byway.

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 CR745 - Rights of Way Office, Mottisfont Court, Winchester