Archived decisions
Appendix 4
Bridleway rights at Tylney Park, Rotherwick
As you know I have been involved in this matter since the historical documentation relating to the 19th century bridleway order was unearthed by my wife in the late 1990s. As I have expressed to the council on more than one occasion, it has been a matter of great frustration that it is taking so long to resolve this issue (ten years so far and counting), and I sympathise with the efforts of yourself and your colleagues to bring it to a satisfactory conclusion. It is obvious from the history that I am aware of, that it has been made exceptionally difficult by the attitudes of Tylney Investments Ltd which seem to have been bent on delay and non co-operation at every turn. The saddest aspect of this intransigence is that the eminently sensible compromise suggestion of route B Z G H has been apparently rejected by them. This offered the possibility of solving everyone´s problems, and I am unable to understand how such a reasonable idea has not been adopted by Tylney Investments Ltd.
However, we are where we are, but 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.e your option (1).
I do understand though that, faced with the hardly veiled threats of costly opposition from Tylney Investments to this course of action, 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. Clearly this is what Tylney Investments and their advisers are gambling on, which therefore means that alternative (2) putting A B C and E F onto the def map as bridleways is the most practical initial step for the council to take. It is deplorable of course that you have to bend to threats of this kind, but common sense indicates that this is inevitable.
If your committee opts for this initial step as you recommend, then it would certainly have the support of the BHS Hampshire ROW committee, but I think it likely that the committee would want to revisit the possibility of a claim for a DMMO for C D E if there was not fairly rapid and realistic progress towards an agreed diversion. Obviously we would do everything possible from our perspective to find an agreeable diversion (as indeed I and my colleagues Gloria Harrison, Carol Shoopman and others have done over the years), but we are determined that there should be a usable off road route for riders and cyclists between Newnham and Rotherwick before much longer. The dangers of Post Horn lane for riders and cyclists are obvious to anyone who has used it and the sooner a viable alternative is available the better.
Appendix 4
I note that Tylney Investments Ltd obtained legal advice regarding the significance of the 1953 footpath diversion. Legal opinion of this kind is always subject to certain qualifications.
Firstly, it depends on the quality of the brief provided by the client to Counsel. In this case I suspect that this may have contained omissions of fact that might have led to the advice being qualified.
Secondly, there is no case law as such on the specific point in issue, and the opinion therefore is likely to be strong on assertion but not so strong on precedent.
Thirdly, although the decisions of Public Inquiries do not create legal precedents as such, there has recently been a similar case where the Inspector was quite positive that it was possible for residual bridleway rights to exist where footpath rights had been diverted. Inspectors will normally follow their colleague´s decisions unless very strong arguments can be presented to persuade them otherwise. In this case it is hard to see where such strong contrary arguments are likely to be found, all circumstantial evidence pointing in the opposite direction. Therefore, your committee should take comfort that just because an eminent QC has given his opinion to a third party (who would not actually be directly involved as Tylney don´t own C D E), he is necessarily correct.
On a point of administration, please note that I have been dealing with this matter for many years now on behalf of the British Horse Society (not the BDS as in your letter, which was my wife), firstly as BHS County Access and Bridleways Officer and latterly as Assistant ABO. Dr Brenda King, the present CABO is fully aware of these discussions and will hopefully be able to attend your committee meeting as I shall be abroad at the time.
Alec W Fry FCA
BHS Assistant Access and Bridleways Officer (Hants)
Copies to Dr B King, (BHS Hants) and Mr Mark Weston (BHS Stoneleigh)