Archived decisions

    Hampshire County Council

    Regulatory Committee Item 14

    25 June 2008

    Review of applications to upgrade Roads Used as a Public Path Nos. 31 and 51 in the Parish of Owslebury and Road Used as a Public Path No. 52 in the Parishes of Owslebury and Fair Oak and Horton Heath to byways open to all traffic (claim references 864, 866 and 867)

    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) ...

        (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 April 2006 this Committee agreed to the making of orders under s.53 Wildlife and Countryside Act 1981 to show three roads used as a public path (RUPPs) 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 April 2006 decisions would appear to be unsound. Members are recommended to rescind the April 2006 decision and make no order in respect of the three byway applications.

2. Recommendation

    2.1 That this Committee's decision of 26 April 2006, minuted at paragraph 131, be rescinded.

    2.2 That the applications for Owslebury restricted byways nos. 31, 51 and 52 be refused and that no order should be made as a result of those applications.

    3. The Applicants and the applications

    3.1 Claim No. 866 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. 51, part of Red Lane, in Owslebury.

    3.2 Claim No. 867 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. 52, known at Hatchley Lane, in Owslebury.

    3.3 Claim No. 864 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. 31, also part of Red Lane, in Owslebury and Fair Oak and Horton Heath.

    3.4 The three 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.

    3 The Claimed Routes

    3.1 The claims relate to two lanes, Red Lane and Hatchley Lane, which are shown on the maps attached to this report. The lanes were described in detail in the April 2006 report.

    4. The April 2006 decision

    4.1 The April 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 the decision for the routes to be recorded as byways open to all traffic.

    4.2 In May 2006 the Natural Environment and Rural Communities Act 2006 ('NERC') 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.

    4.3 Until the Court of Appeal decision in the Winchester case officers thought that one of these exceptions (s.67(3)(b)) applied to protect the mechanically propelled vehicular rights from extinguishment 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.

    4.4 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 such a case, no order need be made, because the lanes are already shown on the definitive map as restricted byways due to the mass conversion from RUPPs effected by the Countryside and Rights of Way Act 2000 on 2 May 2006.

    5. Consultation

    5.1 The applicant has been asked if he alleges that any right of way for mechanically propelled vehicles has survived the 2006 legislation. In response, he 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.

    5.2 The parish councils of Upham, Owslebury and Fair Oak and Horton Heath have been asked if they wish to claim that any right of way for mechanically propelled vehicles has been preserved by any of the eight exceptions. The Clerk to Upham Parish Council has responded in the following terms "Upham Parish Council's experience is that Hatchley Lane and Red Lane are primarily used by walkers and riders. Only an occasional vehicle, most of which are for agricultural use, is seen on these lanes". Fair Oak and Horton Heath Parish Council has stated that there is no change in Hatchley Lane since it commented in 2006 (to the effect that it was used by wheeled vehicles and suitable to be upgraded to a BOAT). At the time of preparation of this report, no response has been received from Owslebury Parish Council.

    5.3 Two local landowners have been consulted. Mr Trigg of Roughay Farm does not claim that the lanes are anything other than restricted byways. A resident of Roughay Lane states "I have lived in my present house for 27 years and Hatchley Lane borders my property. During all of this time Hatchley Lane has been used predominantly by walkers, cyclists and riders and it is used in this way every day and many times each day. It is also used by horse driven carts although this is less frequent. It has been used on an infrequent basis by cars, motor cycles and four wheel drive vehicles, but mechanised use has never, in the past five years, been its main use and is, by no means, a daily occurrence".

6. The exceptions in detail

6.1 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 .

            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, ideally, 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).

            The comments by the parish councils and local residents have been noted above and do not lead to the obvious conclusion that this exception applies. The applicant asserts that he has a great deal of user evidence for the lanes and states "Red Lane is a well used vehicular route at both ends with much through traffic, as is Hatchley Lane. Hatchley Lane has also been resurfaced by HCC twice in recent years due to the volume of use" (the resurfacing has not provided a sealed surface). To date the documentary evidence provided in support of that assertion is from a single user who claims use since 1976 with (variously) a Diahatsu F20, various Land Rovers, a Renault 4, a Humber Sceptre, a Citroen CX, two different Mercedes saloons, a Honda XL185, Yamaha XT350, a Suzuki DR350 and a BMW R1150GS. Four photographs on vehicles on the lanes have been provided, but there is no record of the extent of use by other types of user.

        Officers consider that it has not been proved that this exception applies.

    6.2 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 both Red Lane and Hatchley Lane were shown on the s.36(6) list of streets on 2 May 2006, they were also recorded on the definitive map as RUPPs/restricted byways.

    6.3 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.

    6.4 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 northern end of Red Lane was set out as a public carriage road in an inclosure award of 1861. 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 relevant part of Red Lane 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.

    6.5 s.67(2)(e) it was created by virtue of use by such vehicles during a period ending before 1st December 1930.

        With the exception of the northern part of Red Lane, which was created (or re-created on inclosure in 1861) 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 (or by statute, in the case of the northern section of Red Lane).

    6.6 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.

    7. Conclusions

    7.1 There being evidence that Red and Hatchley Lanes were old rights of way for vehicles, and no evidence that any of the exceptions in s.67(2) and 67(3) of NERC apply, s.67(1) will have extinguished any public right of way with mechanically propelled vehicles. Red Lane and Hatchley Lane can therefore, at most, be shown the definitive map as restricted byways. It is not necessary to make any further order.

    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 CR 866/864/867- 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.

    18/06/2008