Archived decisions

    Hampshire County Council

    Regulatory Committee Item 8

    23 July 2008

    Reconsideration of this Committee's determination of two 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: Colin Piper x6043; [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 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 for the addition to the Definitive Map of a Byway Open to All Traffic between Egbury and Dunley in the parishes of St Mary Bourne and Litchfield and Woodcott and

      Application for a Map Modification Order to upgrade to a Byway Open to All Traffic Footpath 13 in the parish of Litchfield and Woodcott

      · That the decision contained in Minute 127 to the meeting of 27 June 2007 be rescinded.

      · That the application for a Definitive Map Modification Order to record route A-B-C (as shown on Map 1 with this report) as a Byway Open to All Traffic be refused but, following the discovery of evidence which shows the Definitive Map and Statement require modification, an Order be made under s.53(2) WCA 1981 to record route A-B-C as a Restricted Byway with a width varying between three and seven metres.

      · That the application for a Definitive Map Modification Order to record route C-D (as shown on Map 1 with this report) as a Byway Open to all Traffic be refused but, following the discovery of evidence which shows the Definitive Map and Statement require modification, an Order be made under s.53(2) WCA 1981 to record route C-D as a Restricted Byway with a width varying between five and twelve metres.

2.2 Application for a Map Modification Order for the addition to the Definitive Map of a Byway Open to All Traffic near Ibworth in the Parish of Hannington

      · That the decision contained in Minute 128 to the meeting of 27 June 2007 be rescinded.

      · That the application for a Definitive Map Modification Order to record route A-B (as shown on Map 2 with this report) as a Byway Open to All Traffic be refused but, following the discovery of evidence which shows the Definitive Map and Statement require modification, an Order be made under s.53(2) WCA 1981 to record route A-B as a Restricted Byway with a width varying between three and ten 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.

3.2 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 the 2006 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 the Hannington route, the Litchfield & Woodcott route and the route across the St Mary Bourne and Litchfield & Woodcott boundary, and thus, that the recording of these sections of lanes as Byways Open to All Traffic was appropriate. The judgment in the Winchester case has shown this view to have been wrong.

3.3 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. The consequence of the Winchester Case is that these are therefore not validly made applications. In order that the previous decision of this Committee can be corrected and the applications disposed of, it is proposed that these procedural defects be waived, as previously.

4. The Applications:

4.1 Application for a Map Modification Order for the addition to the Definitive Map of a Byway Open to All Traffic between Egbury and Dunley in the parishes of St Mary Bourne and Litchfield and Woodcott and

      Application for a Map Modification Order to upgrade to a Byway Open to All Traffic Footpath 13 in the parish of Litchfield and Woodcott

4.1.1 The routes subject to these two applications are shown on Map 1 as A-B-C and C-D respectively.

4.1.2 The Committee's previous decision on this item is recorded as Minute 127 to the meeting of 27 June 2007 (Appendix 1). At that meeting Members considered that A-B-C and C-D 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-C and 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 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 these routes. No further evidence as to the application of the remaining exemptions has been received since the original report.

4.1.4 Route A-B-C is not currently recorded on the definitive map and statement. Route C-D is currently recorded as a Footpath. It is considered that mechanically propelled vehicular rights over both routes have been extinguished by s.67(1) of the 2006 Act and therefore A-B-C and C-D should be recorded as a Restricted Byway.

4.2 Application for a Map Modification Order for the addition to the Definitive Map of a Byway Open to All Traffic near Ibworth in the Parish of Hannington

4.2.1 The route in question is shown on Map 2 as route A-B.

4.2.2 The Committee's previous decision on this item is recorded as Minute 128 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.

4.2.3 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.

4.2.4 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 this route should 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 573 and 721 - 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.