Archived decisions

    Hampshire County Council

    Regulatory Committee Item 15

    25 June 2008

    Reconsideration of this Committee's determination of three applications following the decision of the Court of Appeal in the case of R (on the application of Winchester College and Humphrey Feeds Limited) v Hampshire County Council and the Secretary of State for Environment, Food and Rural Affairs

    Report of the Director of Recreation and Heritage

    Contact: Emma Noyce, extn. 5319; [email protected]

    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

    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.

1. Summary

1.1 This item considers three decisions made by this Committee on 27 June 2007 in light of the Court Appeal Judgment in R (on the application of Winchester College and Humphrey Feeds Limited) v Hampshire County Council and the Secretary of State for Environment, Food and Rural Affairs (as discussed at the meeting of this Committee on 21 May 2008). Minutes of the 2007 meeting are included as Appendix 1 to this report.

2. Recommendations

2.1 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

      · That the decision contained in Minute 125 to the meeting of 27 June 2007 be rescinded.

      · That, insofar as it relates to route B-C (as shown on Appendix 2 to this Report), the application for a Definitive Map Modification Order be accepted and that an Order be made to record B-C as a Byway Open to All Traffic with a minimum width of 4 metres and a maximum width of 7.5 metres, varying according to the historic boundaries of the route.

      · That, insofar as it relates to route A-B and C-D (as shown on Appendix 2 to this Report), the application for a Definitive Map Modification Order be refused, but following the discovery of evidence which shows the Definitive Map and Statement require modification, an Order be made under section 53(2) of the Wildlife and Countryside Act 1981 to record route C-D as a Restricted Byway with a minimum width of 4 metres and a maximum width of 7.5 metres, varying according to the historic boundaries of the route.

2.6 Application for a Definitive Map Modification Order to upgrade to a byway open to all traffic Footpath 9 in the parish of Bramshaw

      · That the decision contained in Minute 124 to the meeting of 27 June 2007 be rescinded.

      · That the application for a Definitive Map Modification Order be refused, but following the discovery of evidence which shows the Definitive Map and Statement require modification, an Order be made under section 53(2) of the Wildlife and Countryside Act 1981 to upgrade Bramshaw Footpath 9 (as shown as A-B on Appendix 3 to this Report) to Restricted Byway.

2.7 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

      · That the decision contained in Minute 126 to the meeting of 27 June 2007, where it relates to route A-B-F (as shown on Appendix 7 to this report) be rescinded (decisions made in Minute 126 relating to routes F-D and B-E still stand).

      · That, insofar as it relates to route A-B-F, the application for a Definitive Map Modification Order be refused, but following the discovery of evidence which shows the Definitive Map and Statement require modification, an Order be made under section 53(2) of the Wildlife and Countryside Act 1981 to record route A-B-F (as shown on Appendix 4 to this Report) as a Restricted Byway with a width of 3 metres.

3. Background

3.1 The June 2007 reports set out in detail the historic and documentary evidence which relates to these lanes. They concluded that there was good evidence that the lanes were all-purpose highways and Members concurred with this view when making their 2007 decisions.

5.3 The Natural Environment and Rural Communities Act 2006 (`the 2006 Act') had the effect of extinguishing the right of way for mechanically propelled vehicles over these routes unless one of the exemptions contained within this Act applied. Until the Court of Appeal decision in the Winchester case officers thought that the exemption detailed in s.67(3)(a) applied to protect the mechanically propelled vehicular rights from extinguishment over part C-D of the Alton/Chawton route, all of the Bramshaw route and part A-B-F of the Copythorne route, and thus, that the recording of these sections of the lanes as Byways Open to All Traffic was appropriate. The judgment in the Winchester case has shown this view to have been wrong.

5.4 This report therefore asks the Committee to rescind, where appropriate, their decisions of 27 June 2007 and decide whether or not Hampshire's Definitive Map and Statement require modification. It is, therefore, necessary to consider whether any of the other exceptions within the 2006 Act apply to preserve the public right of way for mechanically propelled vehicles. If not, the lanes cannot be recorded as byways open to all traffic.

3.4 In advance of the June 2007 meeting, applicants were asked which exemption, if any, in the 2006 Act they considered to apply to each route in question. The applicability of each exemption to the routes in question was considered in each Officer Report put before the Committee at the 2007 meeting (the 2007 Report(s)).

3.5 The applications in question did not comply with Schedule 14 to the Wildlife and Countryside Act 1981, in that they were not accompanied by copies of the documents which the applicant wished to adduce in support of the application. In order that previous decision of this Committee can be corrected and the applications closed, it is proposed that these procedural defects be waived, as previously.

4. The `applications'

4.1 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

4.1.1 The route in question is shown on Appendix 2 as A-B-C-D.

4.1.2 The Committee's previous decision on this item is recorded as Minute 125 to the meeting of 27 June 2006 (Appendix 1). At that meeting, Members considered that A-B-C-D carried vehicular rights prior to the 2006 Act. Nothing in the recent judgement affects this element of Members' decision. However, Members further considered that mechanically propelled vehicular rights over A-B-C-D were saved from extinguishment by virtue of s. 67(3)(a) of the 2006 Act. Members are asked to rescind this decision, as it is now clear the original application does not qualify for exemption under section 67(3)(a) of the 2006 Act.

4.1.3 As discussed in the 2007 Report, Section A-B-C of this route is recorded on the County's List of Streets Maintainable at Public Expense (kept under section 36(6) of the Highways Act 1980). Mechanically propelled vehicular rights over this part of the route are therefore saved from extinguishment by virtue of section 67(2)(b) of the 2006 Act.

4.1.4 Officers consider that mechanically propelled vehicular rights over the remainder of the route (section C-D) are not saved by any exemption in the 2006 Act and therefore are extinguished by virtue of section 67(1) of the same Act.

4.1.5 The route is not currently recorded on the definitive map and statement. Although it is considered that section A-B-C of the route retains its mechanically propelled vehicular rights, section A-B is not considered to be of the character of a Byway Open to All Traffic (BOAT) (it being part of the `normal' highway network, as discussed in the 2007 Report). It is therefore considered that no Order should be made for A-B. It is considered that B-C should be recorded as a BOAT and C-D should be recorded as a Restricted Byway.

4.5 Application for a Definitive Map Modification Order to upgrade to a byway open to all traffic Footpath 9 in the parish of Bramshaw

4.5.1 The route in question is shown on Appendix 3 as route A-B.

4.5.2 The Committee's previous decision on this item is recorded as Minute 124 to the meeting of 27 June 2007 (Appendix 1). At that meeting, Members considered that A-B carried vehicular rights prior to the 2006 Act. Nothing in the recent judgment affects this element of Members' decision. However, Members further considered that mechanically propelled vehicular rights over A-B were saved from extinguishment by virtue of s. 67(3)(a) of the 2006 Act. Members are asked to rescind this decision, as it is now clear the original application does not qualify for exemption under section 67(3)(a) of the 2006 Act.

4.5.3 In the 2007 Report each of the exemptions within the 2006 Act was considered, and it was found that none (apart from s.67(3)(a)) applied to this route. No further evidence as to the application of the remaining exemptions has been received since the original report.

4.5.4 The route is currently recorded as a Footpath on the definitive map and statement. It is considered that mechanically propelled vehicular rights over this route have been extinguished by s.67(1) of the 2006 Act and therefore this route should be recorded as a Restricted Byway.

4.6 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

4.6.1 The route subject to this application is shown on Appendix 4 as A-B-F-C.

4.6.2 The Committee's previous decision on this item is recorded as Minute 126 to the meeting of 27 June 2007 (Appendix 1). At that meeting, Members considered that A-B-F-D and B-E carried vehicular rights prior to the 2006 Act. Nothing in the recent judgment affects this element of Members' decision. Members further considered that mechanically propelled vehicular rights over F-D and B-E were extinguished by virtue of section 67(1) of the 2006 Act, but that such rights were preserved from extinguishment over route A-B-F by virtue of s. 67(3)(a) of the 2006 Act. Members are asked to rescind this decision insofar as it relates to route A-B-F only, as it is now clear the original application does not qualify for exemption under section 67(3)(a) of the 2006 Act.

4.6.3 In the 2007 Report each of the exemptions within the 2006 Act was considered, and it was found that none (apart from s.67(3)(a)) applied to this route. No further evidence as to the application of the remaining exemptions has been received since the original report.

4.6.4 The route is not currently recorded on the definitive map and statement. It is considered that mechanically propelled vehicular rights over this route have been extinguished by s.67(1) of the 2006 Act and therefore A-B-F should also be recorded as 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.

Files CR 749, 753 and 754- 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.