Archived decisions
Hampshire County Council
Regulatory Committee Item 13
25 June 2008
Review of applications for Definitive Map Modification Orders to upgrade Road Used as a Public Path Number (now Restricted Byway) 16 in the Parish of Twyford and Bridleway No. 3 in the Parish of Chilcomb to byways open to all traffic (claim numbers 869 and 535).
Report of the Director of Recreation and Heritage
Contact: Emma Noyce ext. 5319; [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) ...
(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
(iii) ...
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 In March 2006 this Committee agreed to the making of orders under s.53 Wildlife and Countryside Act 1981 to show Twyford Road Used as a Public Path (RUPP) 16 and Chilcomb Bridleway 3 on the definitive map as byways open to all traffic. No orders have yet been made. In the light of the recent Court of Appeal decision in R (on the application of the Warden and Fellows of Winchester College and Humphrey Feeds Limited) v Hampshire County Council and the Secretary of State for Environment Food and Rural Affairs ('the Winchester' case') the March 2006 decisions would appear to be unsound. Members are recommended to rescind the March 2006 decision and make no order in respect of the Twyford application, and to make an order to record Chilcomb Bridleway 3 as a Restricted Byway.
2. Recommendation
2.1 That this Committee's decision of 22 March 2006 (recorded as minute number 120 to the 22nd March 2006 meeting) be rescinded.
2.2 That the application to upgrade Twyford Road Used as a Public Path 16 be refused and that no Order be made in respect of this route.
2.3 That the application to upgrade Chilcomb Bridleway 3 be refused, but that an Order be made under section 53(2) of the Wildlife and Countryside Act 1981 (following the discovery of evidence which show the definitive map and statement require modification) to upgrade this route to Restricted Byway with a width varying between 2.5 and 3 metres.
.
3. The Applicants and the applications
3.1 Claim No. 869 was made on 14 March 2005 by Mr Sean Fosberry on behalf of the Trail Riders Fellowship. It relates to Road used as a public path (RUPP) No. 16 in Twyford (the Twyford route).
3.2 Claim No. 535 was made on 11 June 2001 by Mr David Tilbury. It relates to Bridleway No. 3, in Chilcomb (the Chilcomb route).
3.3 The two applications 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 and no formal direction was given for substituted service on the owners and occupiers of the land affected by the applications. In determining the applications in April 2006, Members must already have waived this non-compliance.
4. The Claimed Routes
4.1 Both claims form one continuous route leading from the village of Twyford to the village of Chilcomb. The lanes were described in detail in the March 2006 report.
5. The March 2006 decision
5.1 The March 2006 report set out in detail the historic and documentary evidence which relates to these two lanes. It concluded that there was good evidence that the lanes were all-purpose highways and Members concurred with this view when making their 2006 decision for the routes to be recorded as byways open to all traffic.
5.2 In May 2006 the Natural Environment and Rural Communities Act 2006 came into force. The proposed byway orders had not yet been made. The new legislation had the effect of extinguishing any right of way for mechanically propelled vehicles over the two lanes unless one, or more, of eight exceptions applied.
5.3 Until the Court of Appeal decision in the Winchester case officers thought that one of these exceptions (s.67(3)(a)) applied to protect the mechanically propelled vehicular rights from extinguishment over the Chilcomb route, and that another of the exceptions (s.67(3)(b)) applied to protect the mechanically propelled vehicular right over both routes and, thus, that the recording of the lanes as byways remained appropriate, even after commencement of the 2006 Act. The judgment in the Winchester case has shown this view to have been wrong.
5.4 It is, therefore, necessary to consider whether any of the other exceptions applies to preserve the public right of way for mechanically propelled vehicles. If not, the lanes cannot be recorded as byways open to all traffic. In the case of the Twyford route, no order need be made, because the lane is already shown on the definitive map as a restricted byway following the mass conversion from RUPPs effected by the Countryside and Rights of Way Act 2000 on 2 May 2006. In the case of the Chilcomb route it would be appropriate to make an order to record the route as a Restricted Byway (it being an all purpose highway which, though the 2006 Act, lost its mechanically propelled vehicular rights but retained any rights for non-mechanically propelled vehicles (such as horse-drawn carts).
6. Consultation
6.1 The applicants have been asked if that allege that any right of way for mechanically propelled vehicles has survived the 2006 legislation. In response, Mr Fosberry claims that any right of way for motor vehicles has been preserved under s.67(2)(a) (i.e. that 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), and by s.67(2)(d) (i.e. that 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). Both exceptions are considered below. Mr Tilbury has not responded to the question.
7. The exceptions in detail
7.1 s.67(2)(a) it [i.e. the right of way for mechanically propelled vehicles] 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 .
7.1.1 Officers consider that, if this exception is to apply in this instance, there has to be evidence of use, over a period of time, which includes an analysis of all types of public user during that period (only then can one particular type of use be said to be the main use). In reaching a view on the main lawful use by the public the legislation appears to require us to disregard private use (otherwise the words 'use by the public' would have no purpose).
7.1.2 The Twyford route
7.1.2.1 Mr Fosberry asserts that the Twyford route has had a great deal of legitimate use and that he has had a conversation with an individual who claimed to work for the landowner. He states that the individual claimed that the landowners were getting "ticked off" with the level of use by motorised vehicles and were going to write to the County Council to ask for the route to be closed. Mr Fosberry further states that there was once a traveller encampment on the route, with much coming and going, and therefore it is difficult to imagine that the landowners did not see motorised vehicles using the route.
7.1.2.2 In support of his 2005 application Mr Fosberry provided evidence of motorised vehicular use of the route by 17 individuals. This use dates between 1969 and January 2006. The maximum number of users in any given year between 2001 and 2006 is twelve, the minimum is four. In the same period the number of journeys per year made over the route by motorised vehicles ranged between 38 and 72. There is no record of the extent of use by other types of user.
7.1.2.3 Rights of way correspondence files held by this office contain some correspondence about the use of this route by motorised vehicles. The correspondence can be broken down into three main categories: correspondence about the use of the route by motorised vehicles (and, to some extent, the resulting damage caused), correspondence about damage caused to the adjacent golf course by the illegal use of motorised vehicles and correspondence generated by the 2005 application and subsequent consultation.
7.1.2.4 Correspondence about use of the route
7.1.2.4.1 In 1950 there was some correspondence between Twyford Parish Council and the County Council regarding the signage of this route. In May 1950 Twyford Parish Council wrote: "For generations [this route] has been used for small vehicles, and objections are being raised to it being labelled as a footpath".
7.1.2.5 Correspondence about damage to Golf Course
7.1.2.5.1 There is, on file, a significant amount of correspondence regarding the illegal incursion of motorised vehicles onto the golf course, the damage caused and the works to rectify the damage. Although these vehicles must have accessed the golf course via the RUPP, exemption s.67(2)(a) relies on lawful use by the public, use of the RUPP in order to reach the golf course with the intent of causing criminal damage cannot constitute the lawful use of a public right of way, so this element of use must be disregarded for the purposes of this report.
7.1.2.5.2 In January 2004 this route was closed (with authority) for resurfacing work. The route remained closed until at least July 2004.
7.1.2.6 Correspondence generated by this application
7.1.2.6.1 Hockley Golf Club (tenant of part of the land) has made a number of statements in response to the application.
In a letter of 12 May 2005 it states:
"There has been a loss of amenity to walkers and riders as the RUPP has become deeply rutted and until we dug a ditch around the perimeter, quite a considerable area of the course was being eroded as even high vehicles were unable to negotiate the RUPP and were therefore driving over the course".
In a letter of 18 January 2006 it states:
"I have members at the club of 50 years standing who are unable to remember any vehicle other than farm vehicles using the RUPP...The repair of damage caused by 4x4 vehicles coming illegally onto the course has run into many thousands of pounds..."
In a letter of 19th January 2006 it states:
"We are currently obtaining documentary evidence from long standing members of Hockley confirming that until recently only farm vehicles have used this track...the only use that other traffic has made of the RUPP was to access the course and to cause serious, extensive and deliberate damage...it is our view that the RUPP must be downgraded to bridleway to safeguard the large number of pedestrians from these vehicles which churn up the ground..."
And in an e-mail of 30th January 2006 it states:
"This area of the RUPP is fairly remote but when vehicles or motorcyclists have been spotted using it, the police have been called on numerous occasions. If motorised vehicles have been in evidence they have been asked by them to leave...irreparable damage has been caused in the vicinity of the RUPP and to the RUPP itself."
7.1.2.6.2 In a letter of 10th January 2006 Winchester College (landowner of part of the route) states:
"the College has owned the path for 70 years and no vehicular traffic, other than farm vehicles, have used it"
7.1.2.6.3 In a letter of 5th February 2006 a representative of Twyford Parish Council states:
"we are not aware of any evidence that these tracks have ever been used by wheeled traffic other than motor vehicles"
7.1.2.6.4 In an e-mail of 19th January the Winchester Group Secretary of the Ramblers' Association wrote:
"Twyford RUPP 16 already has a history of problems with vehicles damaging the track, particularly between approx 490 266 and 495 266, and rendering it impossible for walkers to use. There has of course also been the recent damage to the adjacent golf course caused by irresponsible off-road vehicles."
7.1.2.7 The above correspondence suggests that the route had been used by motorised vehicles during the relevant period, and that the use of these vehicles over the route had caused damage to the surface of the route. It would seem that this damage caused some problems for walkers and riders wishing to use the route. However, the evidence does not indicate what element of the use was by the public, what element of use was lawful and how the level use of the route by motorised vehicles compares to the level of use of the route by non-motorised traffic. On balance it is considered that there is insufficient evidence that this exemption applies to this route.
7.1.3 The Chilcomb route
7.1.3.1 Mr Tilbury has not indicated whether or not he believes this exemption applies to the Chilcomb route. However, in 1996 he wrote to the County Council on behalf of the Trial Riders Fellowship (TRF), providing a list of routes ridden by the TRF, including Chilcomb Bridleway 3.
7.1.3.2 A further eight individuals have provided evidence of vehicular use of Chilcomb Bridleway 3. This use dates between 1985 and 2006. The maximum number of users in any given year between 2001 and 2006 is six, the minimum is three. In the same period the number of journeys per year made over the route by motorised vehicles ranged between 3 and 27. There is no record of the extent of use by other types of user.
7.1.3.3 This evidence is not sufficient to show that this exemption applies.
7.2 s.67(2)(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).
This exception cannot apply as, although the Twyford route was shown on the s.36(6) list of streets on 2 May 2006, it was also recorded on the definitive map as a RUPP/restricted byway. The Chilcomb route was not recorded on such a list.
7.3 s.67(2)(c) it was created (by an enactment or instrument or otherwise) on terms that expressly provide for it to be a right of way for mechanically propelled vehicles.
No evidence was discovered during officers' investigations that the claimed routes came into being as a result of an express dedication of a right of way for mechanically propelled vehicles, or that the route was created by statue expressly as a way for mechanically propelled vehicles.
7.4 s.67(2)(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 Twyford route was set out as a public carriage road in an Inclosure Award of 1855. The powers of a Valuer to award, set out and construct a carriage road were granted by Parliament, so the first part of this exception would appear to be satisfied. However, the exception also requires that, when constructed, the road should have been intended for use by mechanically propelled vehicles. Officers have had sight of advice from and through Professor Colin Divall PhD FRHisS of the University of York which suggests that, although mechanically propelled vehicles were known of by the mid C19th, their use did not become commonplace until the very end of the C19th. In the 1860s, heavy haulage vehicles were largely experimental. There is no evidence that the Twyford route was constructed or engineered with such use in mind: sight of heavy steam-driven engines would have been a rarity. Officers are not satisfied that this exception applies, although it is, of course, open to members to take an alternative view.
7.5 s.67(2)(e) it was created by virtue of use by such vehicles during a period ending before 1st December 1930.
There is evidence that the Chilcomb 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. The Twyford route was created by statute, so this exemption cannot apply.
7.6 s.67(3) The three exceptions in this subsection all depend on an application having been made which complies with Schedule 14 of the Wildlife and Countryside Act 1981. The Court of Appeal judgment makes it clear that applications in the form of those currently under consideration do not attract any of these exceptions.
8. Conclusions
8 .1 There being evidence that the Twyford route and Chilcomb routes were old rights of way for vehicles, and no evidence that any of the exceptions in s.67(2) and 67(3) of the 2006 Act apply, s.67(1) will have extinguished any public right of way with mechanically propelled vehicles. The two routes should be shown on the definitive map as restricted byways. It is not necessary to make any further order for the Twyford route, but it is appropriate to make and Order to record the Chilcomb route 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 CR869 and CR535- 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.
17/06/2008