Archived decisions

Decision Maker:

Regulatory Committee

Date of Decision:

27 May 2009

Decision Title:

Proposal to (1) rescind a previous decision of the Rights of Way Panel to record bridleway rights (2) rescind a previous decision of the Regulatory Committee to divert unrecorded bridleway rights and (3) record bridleway rights on part of Footpath 29 in Rotherwick Parish

Decision Reference:

727

Report From:

Director of Culture, Community & Rural Affairs

Contact name:

Colin Piper

Tel:

01962-846043

Email:

[email protected]

EXECUTIVE SUMMARY

1) Summary of decision area:

1.1. In 2000 the Rights of Way Panel resolved to make an order to record a route in Rotherwick as a bridleway. This decision was based on historic documentary evidence which demonstrated that the public had acquired bridleway rights through a common law dedication in the 19^th century. This Order has not been made because the County Council recognised that the historic route would have an adverse impact on the land currently used as a golf course, horse paddock and playing field and wanted to give the landowners the opportunity to consider alternative routes.

1.2. An application from the landowners, for an order to divert the bridleway, was agreed by the Regulatory Committee in January 2005, but this too has never been made because the major landowner has refused to confirm the route and has now challenged the existence of bridleway rights over that part of the route owned by the other two landowners. The County Council has explored other options to divert the bridleway rights, without success, and has to fall back on the definitive map modification process to establish a public bridleway.

2) Legal framework for the decision:

2.1. 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 the occurrence 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 -

i) that a right of way which is not shown on the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way [to which this Part applies]

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) that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification.

2.2. 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.

3) Summary of issues to be decided:

3.1. The primary issue to be decided by this committee is whether there is evidence to show that the bridleway subsists, or is reasonably alleged to subsist. 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.

3.2. If a right of way is considered to subsist then the route, status and width of that way must also be determined and authority is required for the making of an Order to record that right on the definitive map.

4) Recommendations:

4.1. That the decision of the Rights of Way Panel, made on 30 November 2000, to make an order to record the route A-B-C-D-E-F (as shown on the attached plan) as a bridleway, be rescinded.

4.2. That the decision of the Regulatory Committee, made on 5 January 2005, to make an order diverting bridleway A-B-C-D-E-F (as shown on the attached plan) be rescinded.

4.3. That an order be made to record the routes A-B-C and E-F (as shown on the attached plan) on the definitive map of public rights of way, as a public bridleway. The path to have a width of 4.0 metres between points A-B and 2.7 metres between points B-C and E-F.

1) Purpose of report:

1.1. The purpose of this report is to invite the Committee to reconsider its decision to make an Order to divert bridleway rights over a path at Tylney Park in Rotherwick and to review a decision to make an Order to record those rights on the definitive map.

2) Claimant:

2.1. There is no claimant in this case; the original investigation was initiated by officers in the rights of way team following the discovery of documentary evidence.

3) Landowners:

3.1 Sections A-B-C and E-F

Tylney Investments Ltd

Elmfield

Slab Lane

Woodfalls

Salisbury

Wiltshire

SP5 2ND

Section C-D

J P Winkworth Limited

Estate Office

Lambs Farm Business Park

Basingstoke Road

Swallowfield

Reading

RG7 1PQ

Section D-E

Rotherwick Parish Council

c/o The Briars

Wedmans Lane

Rotherwick

Hampshire

RG27 9BN

4) Description of the route (please refer to the map attached to this report):

4.1. The path runs from the northern end of a surfaced public road (point A) along a substantial earth/grass track bounded by large banks set between 6 and 20 metres apart. This part of the route is known as Park Lane or Tylney Lane. Where the northern end of the enclosed lane meets the open golf course (point B) it follows the route of Footpath 29 along the eastern side of the course, then across several fairways to reach a concrete access track which leads to Optrex Business Park (point C). The route of the old bridleway then runs diagonally across two fields to join the driveway to Tylney Hall (point E). The northern field is used for football and cricket matches as well as informal public recreation. The path then passes through entrance gates and northwards to join Stroud Green Lane (point F). A total distance of approximately 1,550 metres.

5) Background to the claim:

5.1. In November 2000 a report was taken to the Rights of Way Panel concerning the discovery of historic documentary evidence which pointed to the existence of public bridleway rights across Tylney Park in Rotherwick Parish (route A-B-C-D-E-F on attached map). Members resolved to make a Map Modification Order to record those rights but this Order has never been made because of a long-running debate about how the bridleway could be accommodated across land which is now used as a golf course, horse paddock and playing field.

5.2. Those discussions resulted in an application from the landowners, made in 2002, to divert the historic bridleway onto a route through the middle of the golf course, but avoiding the fairways, as shown on the map by black dots between points B-Z-C-Y. This application was considered and approved by the Regulatory Committee in January 2005. However, this Order has also not been made because the major landowner would not confirm the exact route of the new bridleway across its land and has now challenged the Council's interpretation of one piece of documentary evidence.

5.3. In 2006 Tylney Investments sought counsel's opinion on the effect of a legal diversion of that part of the original highway between points C-D-E. Counsel concluded that a Diversion Order, confirmed in 1953, extinguished all public rights on the alignment of the post-1899 bridleway route across the two fields and replaced it with a footpath C-X-E. This opinion has been presented to the County Council as conclusive evidence that bridleway rights do not exist between points C-D-E. Counsel advises that the County Council would be acting unlawfully in making a definitive map modification order to add a bridleway between C-D-E and that an application to the court for an order restraining the County Council from acting upon any decision to make such an order could be made.

5.4. Advice has been sought from the County Council's Legal Practice on this issue and the conclusion is that there is certainly merit in the argument put forward by counsel, via Tylney Investments, and it might well be a correct interpretation of the effect of the 1953 Diversion Order although, in the absence of case law on this subject, it cannot be said with absolute certainty that bridleway rights do not exist.

5.5. Tylney Investments has suggested that bridleway rights over the remainder of the route should be extinguished, but no formal application has been received. Officers have not pursued that suggestion but instead have investigated different options to accommodate a route for the bridleway. The two parish councils prefer a bridleway route that utilises The Avenue (F-E-X and its continuation southwards) in some way and follows as close as possible the pre-1899 bridleway route. However, Tylney Investments expressed a strong aversion to any route that utilised The Avenue and Tylney Hall Hotel was equally opposed to any route that encroached upon the Hotel grounds.

5.6. The officers proposed that the bridleway rights should be diverted to the west, onto a route between points B-Z-G-H, whilst retaining footpath rights on the existing route of Footpath 29. All interested parties have been consulted on this proposal and, although it is not some people's first choice there are no objections from any party. Tylney Investments take the view that this path is preferable to any other suggested route, but they have failed to facilitate the diversion by providing written consent as required by the legislation.

5.7. In the absence of a negotiated solution the County Council has no option but to fall back on the historic evidence to record the bridleway rights that still exist.

5.8. The Council's desire to see the matter resolved is driven by three factors:

i) The duty under s.53 WCA 1981 to modify the Definitive Map has been triggered by the discovery of evidence that public bridleway rights exist over a route currently recorded as a public footpath.

ii) The desire not to lose an historic public right of way through the failings of the parish, district and county councils when the first definitive map was drafted in the 1950s.

iii) To satisfy public demand for a safe, off-road route for cyclists and horse-riders between the communities of Newnham and Rotherwick.

5.9. Both Newnham and Rotherwick fall within the Forest of Eversley Countryside Access Plan produced by the County Council following consultations with user groups, landowners and local residents. The Countryside Access Plan increasingly is being used to drive the Council's work in improving access to the countryside. The Plan for the Forest of Eversley identifies two issues which are relevant to the Tylney Park route: "There is a demand for more off-road and utility routes for cyclists" and "There is a need for greater connectivity of horse riding routes."

5.10. In 2007, as part of the debate to try and find an alternative bridleway, both parish councils wrote to support the attempt to establish an off-road route between the villages. Rotherwick Parish Council observed that "Post Horn Lane is extremely dangerous for walkers, cyclists and horse riders because of the volume and speed of vehicular traffic in what is a narrow country lane with a number of blind bends. We are strong advocates of establishing a usable route between Rotherwick and Newnham for all non-vehicular movement." Newnham Parish Council wrote to say: "(we) strongly believe in the importance of, and need for, bridleways and similar opportunities for horse riders to exercise their mounts and themselves; and to do so away from cars and other motorised traffic. We strongly believe that Tylney Lane...used to be a bridleway and...we would like to see the bridleway reinstated."

5.11. The County Council has exhausted the possibilities to divert the bridleway and officers see no point in prolonging the debate. There is a need to resolve this issue once and for all. This is potentially a very valuable route that will provide great benefit for cyclists and horse riders and members are asked to give approval for the making of an order which will record the historic bridleway rights as the first step towards establishing a through route between the two villages.

6) Documentary evidence: (see Integral Appendix 2)

6.1. The historic documentary evidence was previously considered by the Rights of Way Panel at its meeting in November 2000 at which members resolved to make an Order to record the entire route A-B-C-D-E-F as a public bridleway. For this report the documentary evidence is described in Integral Appendix 2 and is essentially the same as that previously reported to members. The one significant difference is that it was previously considered that the Footpath Diversion Order of 1953 had no effect on the historic bridleway rights between C-D-E, whereas officers now take the view that it is quite probable that the Diversion Order inadvertently extinguished all public rights over section C-D-E and therefore the previous decision needs to be reviewed in this respect.

6.2. There are three possible options for the County Council to record what historic bridleway rights exist across Tylney Park. They are:

1) Make one map modification order for the whole route A-B-C-D-E-F

The advantage of this course of action is simplicity in that there is one order for the entire route.

The disadvantage is that the case for the existence of bridleway rights over C-D-E is considerably weaker than for the rest of the route and this may result in a modification of the order involving additional time and expense. This option should only be pursued if members feel that bridleway rights subsist, or can reasonably be alleged to subsist, on section C-D-E and counsel's opinion has shed some doubt on this.

2) Make two map modification orders, covering the whole route,

one to record sections A-B-C and E-F and the other to record C-D-E

The advantage of this option is that it would allow a full public debate about the existence of bridleway rights on the whole route and allows for the confirmation of one order and the non-confirmation of the other order without the need for re-advertisement. This recognises the difference strength for the evidence for the two parts of the route.

Again, this option should only be pursued if members feel that bridleway rights subsist, or can reasonably be alleged to subsist, between C-D-E and counsel's opinion has shed doubt on this.

3) Make one map modification order for sections A-B-C and E-F

(thereby omitting section C-D-E)

The advantage of this option is that it confines itself to that part of the route which has the strongest evidence and therefore stands a greater chance of achieving early certainty about the greater part of the route.

The disadvantage is that it does not address the connection between points C and E. However, this can be the subject of a separate process if, and when, the order is confirmed in respect of the majority of the route.

6.3. On balance, officers take the view that Option 3 is the best course of action. In the light of counsel's opinion officers are not confident that it is expedient for the County Council to argue that bridleway rights still exist on section C-D-E or, in the absence of any contrary advice, that such rights are reasonably alleged to subsist. Any missing link in the bridleway that is created by this course of action can be addressed by other means at the disposal of the County Council. If members follow the recommended course of action it is still open to them to make an order for route C-D-E when the application from Tylney Investments is considered at a later date (see paragraph 9.1).

7) Consultations with landowners and other bodies:

The following parties have been consulted on the proposal to rescind the decision to divert the bridleway and the options open to the County Council in making a map modification order, or orders, to record the historic bridleway rights.

7.1. Tylney Investments Limited

Mr G Plumbe, representing Tylney Investments, has submitted the following `overview'. His comments on the draft report are contained in Appendix 3. Some of the comments have been overtaken by the completion of the final report.

"The proposal to the Committee is simply to make an order based on historical evidence. It is however only a chapter in a much more complex story. The Reporting Officer has helpfully chosen to wrap that story around the proposal, but Tylney believes it has been presented unfairly. A more balanced account is appended.

As matters stand legally, there is an arguable case for a cul-de-sac bridleway from the end of Tylney Lane across the golf course and into the Optrex Business Park. There is no case whatsoever for a bridleway beyond that, apart from a tiny spur at the very north end. HCC wants to create a through bridleway route simply as a matter of access policy. To achieve that it will be necessary to use provisions in the Highways Act. Those provisions bring into play a range of factors such as extent of existing rights, public interest, safety, need, convenience and damage to landowners' interests.

Tylney does of course recognise the merits of a general access policy, and also the superficial attraction of completing a partial route if so proved. HCC has however been asked repeatedly for the justification for applying a general policy without paying any regard at all to the circumstances of this case. Officers have declined to answer. They have also refused to give reasons for rejecting the best available legal advice as to rights over the playing field, and have instead encouraged a belief in the minds of other parties and the public that such a threat is still real. The question of existing rights is the obvious starting point for any Highways Act proceedings which may follow. A formal request for those reasons was blocked on untenable grounds and the matter is now with the Ombudsman.

Rotherwick PC successfully shifted the footpath onto Tylney's land in 1953 with the co-operation of Tylney. RPC now supports a proposal which would be very damaging to Tylney. The golf course was developed 35 years ago, not only as a legitimate business but also to make good use of parkland and provide a recreational facility for some 600 local people. Although historic rights obviously have to be recognised if proved, creation of a through bridleway will introduce obvious and serious safety problems for the public. It will also cause very substantial management problems and loss of value. Bridleways bring not only horses but also bicycles. The potential for damage from both types of traffic, not to mention the prospect of vandalism, must be recognised. Even if cul-de-sac bridleway rights are proved, the difference between that and a through route is as chalk is to cheese.

The Report states at 5.2 and 5.5 that Tylney has refused to co-operate. That is misleading and unfair. Tylney has consistently made its position clear. The Committee decisions in 2000 and 2005 were made on the back of a serious legal error, and these induced a proposed but far from satisfactory compromise. The error was reported to HCC in 2006 and all parties were asked to start again. HCC switched from asserting rights to creation of rights instead. If and when a convincing case for a through route has been made out, consideration will be given to a possible agreement on the most suitable route. Until that happens, attempts to force the matter through will be resisted. Meanwhile an application has been made for a determination in respect of the northern section to resolve the issue of existing rights.

If the Committee is minded to make an order, Tylney believes that it should relate to the whole route. That is because evidence and arguments concerning the northern section have a direct bearing on the southern section (as yet unrecognised by officers) and it would at the same time settle once and for all the matter of rights over the playing field. For the reason stated in the Report, the most sensible course is Option 2, ie separate orders, to be made after completion of the consultation required as a result of the 1981 Act application. For reasons detailed in the appended representation, HCC has not only good reason but also a statutory duty to allege rights over that section."

7.2. J P Winkworth Limited

A director of the company has written to say that he is quite happy to go along with the county council's option 3.

7.3. Rotherwick Parish Council

No comment

7.4. Newnham Parish Council

No comment

7.5. Hart District Council

No comment

7.6. Local Member - Councillor Glen

No comment

7.7. Tylney Hall Hotel

The Managing Director of Elite Hotels has written to say:

"Our position remains...that any such suggestion (to resurrect the pre-1899 route) is wholly objectionable to us...On the other hand, if the outcome will be that the route runs between points A-B-C on the map, then we would have no objection. We have no comment to make on the route beyond point C."

7.8. British Horse Society

A letter has been submitted by the Hampshire Assistant Access and Bridleways Officer. Extracts from that letter are reproduced below and the full letter is attached at Appendix 4.

"As I have expressed to the council on more than one occasion, it has been a matter of great frustration that it has taken so long to resolve this issue...and I sympathise with the efforts...to bring it to a satisfactory conclusion. I remain of the opinion that the correct outcome would be for the historical route A-B-C-D-E-F to be recorded on the definitive map, based on the Quarter Sessions decision of 1899. Once this was done, then it would be possible to have a meaningful discussion with the various landowners with a view to achieving a modern and practical route. I do understand though that...your council is bound to consider whether at this point the public's best interest is served by committing to a process that could end up costing a great deal of public money...which therefore means that alternative (option 3), putting A-B-C and E-F onto the definitive map as bridleways, is the most practical initial step for the council to take."

7.9. Ramblers Association

The letter from the footpath representative for Rotherwick reads, in full:

"Your preferred option (option 3) would end up with a bridleway that came to a dead end so why not go for option 1, if not successful we would be no worse off. The Ramblers Association are happy with the existing route of Footpath 29 and would be opposed to any diversion or map modification order affecting this path unless there was clear benefit to walkers."

7.10. Open Spaces Society

No comment

7.11. Environment Department

No comment

8) Conclusion:

8.1. It is not expedient to proceed with the Diversion Order, as agreed by members in 2005, without the consent of the major landowner.

8.2. The documentary evidence demonstrates that a public bridleway has existed through Tylney Park from at least 1774. Part of this bridleway was properly diverted by the Quarter Sessions in 1899.

8.3. Public rights over that part of the bridleway between points C-D-E were probably extinguished by the Footpath Diversion Order confirmed in 1953.

8.4. There is compelling documentary evidence that bridleway rights remain over that part of the path between points A-B-C and E-F.

9) Postscript:

9.1. In the week before this report was sent out to members, the County Council received an application from Tylney Investments Ltd for an order to record bridleway rights across land in the ownership of J P Winkworth Ltd and Rotherwick Parish Council (route C-D-E). The legislation requires the County Council to consult the parish and district councils on this matter, before determining the application. There has been insufficient time to do this before the meeting, therefore it will be necessary to bring a further report to members at a later date, which deals with this specific application. Members will note that the application is at odds with the previous representations made to the County Council, by Tylney Investments, who have hitherto argued most forcefully that bridleway rights cannot possibly exist on route C-D-E (see paragraph 5.3).

Links to the Corporate Strategy

Yes

No

Hampshire safer and more secure for all

Maximising well-being

Enhancing our quality of place

OR

This proposal does not link to the Corporate Strategy but, nevertheless, requires a decision because: the County Council, in its capacity as " surveying authority", has a legal duty to amend the definitive map on the discovery of evidence that a right of way which is not shown in the map and statement, subsists or is reasonably alleged to subsist.

Section 100 D - Local Government Act 1972 - background documents

The following documents discuss facts or matters on which this report, or an important part of it, is based and have been relied upon to a material extent in the preparation of this report.

(NB: the list excludes published works and any documents which disclose exempt or confidential information as defined in the Act.)

(Quote list of documents here: e.g. list the relevant letters, memos, etc. and their location)

Document

Location

File: CR637

Rights of Way Office Room 200

Archive evidence

Mottisfont Court

Correspondence

High Street

Diversion proposal

Winchester

1) Issue to be decided:

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

1.2. 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 have come into being at some time in the past. This might be the distant past (proved by historic or documentary evidence) or in the recent past (proved by witness evidence).

1.3. Historic and documentary evidence has been examined to see whether the past history and use of the paths point to them having public 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, 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.

1.4. 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.

1.5. 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.

2) Documentary evidence:

2.1. 1774 Map of Tylney Hall Estate (10 inches to 1mile)

This detailed map shows land in the ownership of Earl Tylney. It includes most of Rotherwick Parish and substantial portions of six other surrounding parishes. Land use is portrayed by a combination of symbols and colour. The buildings of Tylney Hall are depicted by red shapes surrounded by formal gardens and "The Park". Access to Tylney Hall, from Rotherwick, is gained by a track shown by parallel pecked lines and coloured light brown. This route leads right to the northern corner of the group of buildings before turning south westwards to join the end of an enclosed lane. This route is annotated "Bridle Road" on the map and closely corresponds to the route shown by red dots on the attached map between points B-X-E-F. Given that the map was commissioned by the landowner to show his estate, this map provides compelling evidence for the existence of a public bridleway at this date.

2.2. 1791 Milne's map

This map shows "Tilney Hall" by a drawing of a house. The house is surrounded by enclosed park land through which runs a track or road depicted by parallel pecked lines. This track is on the same alignment as the `Bridle Road' of 1774 and connects, at its southern end, with the enclosed route now known as Park or Tylney Lane which runs southward to Newnham.

2.3. 1810 Ordnance Survey Map

The historic route under consideration is shown in a very similar manner to Milne's map of 1791.

2.4. 1826 Greenwood's Map

This map shows the alleged bridleway in a very similar manner to the earlier Ordnance Survey map.

2.5. 1839-1841 Tithe Maps

There are three maps, for three different parishes, which cover the route of Park or Tylney Lane from Newnham Green northwards to the edge of Tylney Park (point B). Starting at the southern end, the Newnham Tithe Map shows the extent of the lane within the parish coloured brown and annotated with the number 260. This parcel is listed in the award under "Commons, Roads & Waste" The map also shows an annotation at the northern end of the lane "From Rotherwick". The depiction of the lane on this map is consistent with its current status as a publicly maintainable highway.

The second map, going northwards, is Hartley Wespall Tithe Map. At this date Hartley Wespall Parish included part of what is now Rotherwick Parish. The southern half of section A-B is shown coloured brown on the map and un-numbered.

The third map, which includes the northern half of section A-B, is Rotherwick Tithe Map. The lane is also coloured brown and not numbered. There is no continuation of this route to the north depicted on the map.

The brown colouring indicates that the route is probably a highway of some description but doesn't draw a distinction between public or private. The absence of a number indicates that there is no owner for that parcel of land.

2.6. 1872 Ordnance Survey Map (25 inches to 1 mile)

This is the first large-scale survey of the English countryside. It shows "Tylney Hall" as a fairly modest building with an avenue leading northwards to Rotherwick village. Branching off from this avenue is an unenclosed path or track shown by parallel pecked lines that follows the route shown by red dots on the attached map. It connects with the northern end of an enclosed lane at point B. Going south from B the route is depicted as a very wide lane bounded by solid line features set between 6 and 20 metres apart. The route is annotated "Park Lane" and given parcel numbers which the Book of Reference describes as "Road", though no distinction is drawn between public and occupation roads in these parishes.

2.7. 1894 Ordnance Survey Map (25 inches to 1 mile)

There is no significant difference in the depiction of the route under consideration from the earlier map of 1872.

2.8. 1898 Letter to Rotherwick Parish Council

In 1898 Lionel Phillips bought the Tylney Estate and immediately set about transforming the house and grounds. As part of those alterations he wanted to divert the northern part of the bridleway where it passed close to the house onto a route to the west. His agent wrote to Rotherwick Parish Council on 16 June 1898 in the following terms:

"Mr Phillips, the new proprietor of this estate, is most anxious to change the right of way through the park, from Rotherwick to Newnham, in order that he may take in a portion of the park and convert it into pleasure grounds. We have had a survey made...and from which it will be seen that the proposed change will shorten the distance by about 30 yards. If your Parish Council will consent to the alteration, Mr Phillips will be glad to lay down a good gravel path and keep it in order for the use of pedestrians."

2.9. 1898 Letters to newspapers

Mr Phillips desire to divert the public right of way through Tylney Park sparked a debate in the local newspapers about the proposal. Three separate letters to the Hants and Berks Gazette from the Chairman of Nately Scures Parish Meeting and two other local residents commented on the alterations being made to the park and all refer to the route being a public bridleway and not a footpath. An extract from one of the letters runs as follows:

"I never doubted that the public bridle path in Tylney Park would have to be diverted sooner or later: how the late owner of Tylney could have acquiesced in it, as it is, has never been understood by anybody, and perhaps not even by himself."

2.10. 1899 Diversion application to Quarter Sessions

Hartley Wintney Rural District Council, on behalf of Mr Phillips, made a formal application to the magistrates to divert the right of way. This application was heard at the Quarter Sessions held on 4 April 1899. On the certificate authorising the diversion the public right of way is described as a bridleway. The plan that accompanies the application shows the historic route to be extinguished and the proposed new route to the west. The diverted route was originally annotated "Proposed New Footpath" but the word "Foot" has been drawn through with two lines and the word "Bridle" substituted above.

2.11. 1909 Ordnance Survey Map (25 inches to 1 mile)

This map shows the changes brought about by the redevelopment of Tylney Hall and the diversion of the bridleway route. The house has been greatly enlarged and is now surrounded by outbuildings, orchards and landscaped gardens. The bridleway is depicted by parallel pecked lines where it crosses open park land between the "Lodge" and the northern corner of the gardens. It then runs southwards on the west side of the gardens to connect with the northern end of Park Lane. The route is annotated `B.R.' which stands for Bridle Road. There are several solid lines across the route of the bridleway which probably indicates the existence of gates. The alterations have not affected Park Lane which still appears as a wide enclosed lane running southwards to Newnham Green.

2.12. 1910 Letter from District Councillor

The letter was written by a District Councillor, Mortimer Pechell, to the Clerk to the Rural District Council giving his apologies for non-attendance at a committee meeting. He added the following information:

"I gave Mr Forrester an old post to hang a finger on "Bridle Track" on Newnham Green. It is a mere trifle but will be useful if it prevents people going up the Tylney Lane instead of the Basing Road."

Mr Forrester was the District Surveyor of Highways and the letter suggests that Mr Pechell was trying to prevent vehicles going up Tylney Lane and having to turn around and retrace their route to find the through road.

2.13. 1942 Minutes of Hartley Wintney RDC

The minute of the Rural District Council Rights of Way committee for 18 February records the following:

"The bridlepath running from Tylney North Gate Newnham has been ploughed where it crosses field No. OS 159. Once more, this pasture was ploughed under the Committee's directions and the occupier did not realise that a separate authority was required for breaking up the bridlepath itself."

In 1942 field No.159 was the area of land north and south of point C, although it is wrongly described as being in Newnham.

2.14. 1950-53 Correspondence regarding first definitive map

The first letter on file, dated 17 February 1950, is from Newnham Parish Council to the County Surveyor commenting on the first draft definitive map. It reads in part:

"My council...are in agreement with the paths as shown on your enclosed map. There are however, in addition to those shown, two other paths - (2) a bridle-path, continuing the road from Newnham Green...through Tylney to Rotherwick. We would point out...that owing to ploughing etc. during the war the use of this way as a bridle-path has become practically impossible."

The response from the County Surveyor reads, in part:

"I should like to take this opportunity of pointing out that the road running northwards from the "Old House at Home" is recorded as a public carriageway for the portion within your parish, and therefore need not be included (on the definitive map). Its continuation through Tylney will be scheduled as a bridleway and I hope to press for its reinstatement as such."

A County Surveyor's memo, dated 15 November 1951, records a site meeting at Newnham Green with the parish council. It reads, in part:

"The question of the status of the extension of Tylney Lane in the Parish of Rotherwick is in some doubt. Whereas the Rotherwick Parish Council have claimed it as a footpath only, the Newnham Parish Council insist that it is a Bridle Path, and would like the words "Bridle Path" to be included on the "No-Through Road" sign."

Rotherwick Parish Council then entered the debate and wrote to the County Surveyor on 1 June 1952 to say:

"...it has been pointed out to me that the Path No.29 is a Bridle Path, and is so shown on the Ordnance Survey Maps. It is desired that this path should continue to be a bridle path. Would you please have the necessary correction made on your maps and schedule."

The response from the County Surveyor was as follows:

"I note that your Council wishes to claim Path No.29 as a bridle way instead of a footpath, as shown on the draft map, and I am arranging for this to be considered by the Arbitrator as an objection. As soon as the time and place of the enquiry are known I will inform you, and your Council can then send a representative to place its evidence before the Arbitrator."

The last letter from Rotherwick Parish Council on this subject is dated 27 September 1952:

"...at a meeting of the Parish Council yesterday, it was decided not to pursue any further the question of Path No.29 being a Bridle-way, but to leave it as at present described, i.e. a Footpath only. The amount of use it would ever likely to be made of anyone on horseback would not warrant the expense and time that would be involved in replacing a number of gates and wire by hunting gates. In the circumstances therefore, we shall not send a representative to meet Mr Barber at Hook on 7 October. I am sorry to have troubled you, but representations had been made to us that the path had always been a Bridle-path and was so marked by the Ordnance Survey."

The last word on this subject is from the County Surveyor to the District Council. Dated 1 June 1953, the letter reads, in full:

"It is indeed unfortunate that the Newnham Parish Council did not raise this matter before and, as you say, the period for objections to be received has now expired. Unless there is an objection to Quarter Sessions by the owner or lessee, I am afraid the matter can only be left in abeyance until the periodical revision of the Maps and Statements takes place in accordance with Section 33 of the above Act. If you agree, I will arrange to make a note of this and the matter can then be raised at the appropriate time."

There is no further evidence on internal files that this was taken any further until the discovery of evidence in the late 1990s.

2.15. 1952-53 Diversion of Rotherwick Footpath 29

At the same time as a debate was going on about the status of the right of way through Tylney, proposals were made to divert part of the same route. In 1952 Rotherwick Parish Council purchased a field alongside the drive to Tylney Hall for use as a playing field and applied to the District Council for an Order diverting the `footpath' between points C-D-E. Consent was given by the County Council to the District Council to enable them to proceed with the making of the order. The Order was confirmed by the Minister of Housing and Local Government in August 1953.

2.16. 1972 Report on obstruction to footpath

On 15 April 1972 a Colonel Mayer of The Old House, Rotherwick, made a complaint to the County Council regarding an obstruction to Footpath 29. The subsequent report by the officer runs as follows:

"On the 20 April 1972 I inspected the paths and found that the barbed wire had been removed. Enquiries revealed that obstructions had been erected to prevent horse-riding on the footpaths and over the land being prepared for a golf course. On the 27 April I met Mr Vinall...in an attempt to resolve the matter and he will suggest to the owners to re-erect field gates...and erect notices `Footpath Only - No Horses' He did not agree with the suggestion to dedicate a bridleway round the boundary of the golf course as he considered this would be dangerous."

2.17. 2002 Letter from Mr & Mrs May of Hook

On 6 July 2002 a Mrs May wrote to the County Council with recollections of the route through Tylney Park. She says:

"My husband was born in Rotherwick is now 93, we left the village 10 years ago. In our days the path went from the start of Stroud Green Lane...into Tylney Hall drive, then through a gate into a field diagonally across to a second field, across that, onto a narrow track into Tylney Hall Park. Straight across with Tylney Hall on ones left, out into Tylney Lane and on up to Newnham Green. All the fields belonged to Tylney Park. All had stiles and gates. At the entrance to the start of the walk was a board saying it was a bridle path, giving rules and regulation. We have walked this hundreds of times. Then things altered. The Council took over the first field for a playing field. Optrex arrived, took over the next field, made up the old track into a road. As the second field was planted with Witch Hazel we could no longer use it, the golf course was built, nobody was stopped from using it but at your own risk."

3) Analysis of the evidence:

3.1. From the Estate map of 1774 it can be said that the evidence for a public bridleway through Tylney Park goes back at least 235 years. Given that the route of the bridleway is a direct link between the villages of Newnham and Rotherwick, it is possible that it is much older than that. The route of this ancient bridleway appears on all subsequent maps, without alteration, until 1899. The status of the public highway was acknowledged by the then landowner when he made a successful application to divert the bridleway away from his new house. The route and status of the path is further confirmed by its depiction on the Ordnance Survey map of 1909.

3.2. The route is then adversely affected by four events in a 30-year period in the 20^th century. Firstly, the ploughing up and non-reinstatement of the path for increased food production in the Second World War. Secondly the mis-recording of the route as a public footpath on the first definitive map in the early 1950s. Thirdly, the diversion of the route across the top two fields in 1953 and, lastly, the redevelopment of the park land as golf course in 1972. All four actions have contrived to deprive the public of the ancient higher rights that were enjoyed without interruption from 1774 to 1942.

3.3. The footpath diversion of 1953 is particularly relevant because it not only moved the right of way but, quite probably, extinguished bridleway rights over a section of the route. This diversion occurred at the same time as the first definitive map was being compiled and the failure of any person or body to formally challenge the status of the claimed footpath on the draft definitive map resulted in the diversion proceeding as if only footpath rights existed across Tylney Park.

3.4. Although the schedule to the 1953 Footpath Diversion Order (`The Order') describes the route to be diverted as a "Footpath" the Order itself is not specific as to the status of the path. The relevant sentence refers to "the public right of way" being extinguished from the 1 March 1953. An interpretation of this phrase is that all public rights were extinguished by the Order and that certainly is the view of counsel commissioned by Tylney Investments. There is no case law on this subject. In the past the County Council has always taken the view that a diversion of a particular type of right of way would not affect any higher rights that are subsequently found to exist and this led to the recommendation in 2000 to make an order to record the whole route as a bridleway. However, each case must be considered on its merits and there is a strong element of doubt regarding the continued existence of bridleway rights for that part of the route across the two fields between points C-D-E.