Archived decisions

Decision Maker:

Regulatory Committee

Date of Decision:

2 September 2009

Decision Title:

Proposal to make a Definitive Map Modification Order to record a path between Marlands Lane and the A32 in the parish of West Meon as a public right of way

Decision Reference:

899

Report From:

Director of Culture, Communities and Rural Affairs

Contact name:

Sylvia Seeliger

Tel:

01962 846349

Email:

[email protected]

EXECUTIVE SUMMARY

1) Summary of decision area:

1.1. An investigation into the history of a path in West Meon has revealed evidence that it has been existence for many years, and is currently used by the public. It is considered that the public has acquired a right of way through a common law dedication, and it is proposed that a Definitive Map Modification Order should be made to record this.

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.

2.3. 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

(a) was not shown in a definitive map or 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 the period ending before 1^st 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 an interest in that part only

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 a right of way 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, or Members consider that it is reasonably alleged 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 a Definitive Map Modification Order be made, under the County Council's duty to keep the Definitive Map and Statement under review (to record a byway open to all traffic between the A32 and the U196, Marlands Lane, shown on the attached map as A to B.

4.2. Route A to B has a variable width. The widest part is 10 metres, and the narrowest 3.55 metres; most of the route is 7.44 metres wide.

1) Purpose of report:

1.1. The purpose of this report is to set out the facts of the case to enable Members to determine whether the public has acquired a right of way through a dedication made at some time in the past. If it is considered that the public has acquired a right of way, then the status, route and width of that path must also be determined and authority required for the making of a Modification Order to record that right on the Definitive Map.

2) Claimant:

2.1. There has been no application in this case. Evidence suggesting at a public right of way may exist over the route A to B has been put forward by the `Discovering Hampshire's Lost Ways' project organised by Hampshire Countryside Access Forum. Hampshire County Council has a duty to consider the evidence under section 53(2)(b) of the Wildlife and Countryside Act 1981.

3) Landowners:

3.1 The landowners are Mr. N. Silk and Ms J. Smith.

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

4.1. The route begins at the A32, point A on the attached map, and runs slightly north-eastwards to join the U196, Marlands Lane (point B), of which it is a part. It runs downhill to the A32. It is also an extension of Vinnells Lane on the east side of the A32, with which it forms a cross road. The way is 195 metres long, and bounded by hedges of mature trees. Its width is variable, with the widest part being 10 metres, and the narrowest 3.55 metres. For much of its length, however, it is 7.44 metres wide. It is a sunken lane, with a narrow trodden path down the middle, and it is overgrown with vegetation where it leaves Marlands Lane.

5) Background to the claim:

5.1. The public already has use of West Meon Bridleway 7, which feeds into Marlands Lane. Once they reach Marlands Lane, they can turn either left or right and continue along it; or they can cross Marlands Lane, and use the continuation of the bridleway down to the A32. The trodden track in the middle of this route indicates that it has been used in this way.

5.2. As no user evidence has been sought, it is not possible to give details whether this has been foot or on horseback or with bicycles. Currently, vegetation obstructs the junction with Marlands Lane, but the public has opened another entrance to the route from the side some metres to the south east. It is not known for how long they have been accessing the route by this means There is no indication that the route is currently being used by motorised vehicles. There is a clear trodden path, and no other obstacles to use than the overgrown vegetation at point B.

6) Issue to be decided:

6.1. The issue to be decided by this Committee is whether there is evidence to show that the 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.

6.2. 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).

6.3. 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.

6.4. 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.

6.5. 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.

7) Documentary evidence:

7.1. Isaac Taylor's Map, 1759

This is a commercially produced map printed at a scale of one inch to the mile. What appears to be the route is shown, though at a more diagonal angle, but the road pattern in the area does have a rough correspondence to what is there today. The route is between solid boundaries and is therefore a road enclosed with hedges, according to the legend on the map (see Appendix 1 for an evaluation of historic documents).

7.2. Thomas Milne's Map, 1791

Another commercially produced one inch map, this has a more clear-cut depiction of the road pattern of which the route is a part. The road that is now Marlands Lane going north from West Meon is shaded brown, and has mile marker posts, indicating that it is a turnpike road. This road passes through a cross road, where there is an Inn, `The Hutt' (now the `West Meon Hut' public house). A comparison of this map with a modern map indicates that the turnpike road (now the A32) has been diverted to a position midway between Marlands Lane and Vinnells Lane. The angle of Marlands Lane is similar to that of the route today, and inclines more to the vertical than on Taylor's map. A way corresponding to the route leaves the turnpike close to Martin's [Marlands] Barn, and is an enclosed road, according to the legend on the map.

7.3. Ordnance Survey Old Series first edition, 1810

This map also shows the turnpike on the alignment of Marlands Lane. A way approximating to the route is shown, between solid boundaries.

7.4. Christopher Greenwood's Map, 1826

The route is shown similarly to the Ordnance Survey old first edition, but with the addition of brown colouring to indicate it is a turnpike road, on its old Marlands Lane route. The route is shown as a `cross road' and is between continuous boundaries.

7.5. West Meon Tithe Map and Apportionment, 1839 and 1841 (Hampshire Record Office `HRO' 21M65/F7/245/1-2)

The route is shown coloured ochre on the tithe map, connecting with the lane that runs past Marlands. It meets a road which is the present A32, and there is a continuation to the other side of that road. This map indicates that, by 1841, the turnpike shown on the earlier commercial maps has been diverted to be straighter, and to bisect the route of which the way was a part. The route is narrower than the lane past Marlands, and the major road (which is in a cutting). None of the roads carries a plot number. The total of roads and waste is collected together at the end of the apportionment. However, the occupation roads are listed as such in the apportionment, by plot number. The route is not numbered and not within that list, so would appear not to be, at that time, an occupation road. Apart from the re-routed turnpike road and those routes with plot numbers listed as occupation roads, the network of roads (including the claimed route) is coloured ochre and is without plot numbers. This lends support to the proposition that the route is a public highway of some sort.

7.6. Ordnance Survey County Series Map, 1:2,500 first edition, c.1871

On this map, Marlands Lane is uncoloured - the A32 is shaded brown, as is the route leading to Great Heading Copse. The book of reference for this map indicates that this lane, plot number 228, was recorded as a `public road' at 0.174 acres. The fact that the Ordnance Survey recorded it as a public road is some indication of its reputation at this time, and offers support to the argument that it was a public general purpose highway, and had been at the time of the tithe surveys.

7.7. Ordnance Survey County Series Map, 1:2,500 second edition, c.1895

The route is shown on this map between solid lines, and feeds into a major road, in a cutting. It is open at point B, and is between solid boundaries, except for a very small section near Marlands Barn, where the southern side has a pecked boundary. There are no barriers across it.

7.8. Sales Particulars of freehold manorial property, Court Farm, West Meon, 1902 (HRO 3A00W/D4)

Marlands Farm formed Lot 3, and the plan, based on the 25 inch Ordnance Survey map, show the path as part of the estate, and not excluded or coloured. The same is the case with the extension on the east of the A32, that runs into Vinnells Lane, which is now a public general purpose highway.

7.9. Ordnance Survey County Series Map, 1:2,500 third edition, 1930s

This map shows the course of the London and South West Railway Meon Valley Line, to the east of the A32. The building of this line has required a diversion and bridge on the continuation of the route into Vinnells Lane, but the way that is the subject of this report has been unaffected.

7.10. Droxford Urban District `Handover' Map, 1929 (HRO H/SY3/3/24/4)

The path is shown shaded in orange, and as part of the U196. the key gives the orange shading as indicative of a `U' road, under the heading `County Highways'.

7.11. Droxford Urban District Highway Maintenance Map, 1946 (HRO H/SY3/3/24/4)

This map shows Marlands Lane in solid orange shading, as part of the U196, indicating that it was a `U' class general purpose highway.

7.12. Definitive Map 1964

The 1964 edition of the Definitive Map shows the path as part of the U196.

7.13. Ordnance Survey National Grid Map, published 1970

The route is shown by pecked lines between solid boundaries, and is open at both ends.

7.14. List of Publicly Maintainable Streets (CHALIST)

The list of publicly maintainable streets records the route as the U196, Marlands Lane.

8) The Landowners:

8.1. At the time of writing, no comments had been received.

9) Consultations with other bodies:

9.1. East Hampshire District Council

No comment at the time of writing.

9.2. West Meon Parish Council

No comment at the time of writing.

9.3. Local Member (Meon Valley) - Councillor Hindson

The local Member has been informed.

9.4. Open Spaces Society

No comment at the time of writing.

9.5. Ramblers' Association

The Footpath Secretary for the Waltham Group has replied to say:

`Since [the] Waltham group was formed in1986 we have used Marlands Lane on many occasions on group walks. We have never found any notices in place to say it was a private lane or been approached by anybody to say it was not a public right of way or highway. It makes a very useful connection to and from Vinnells lane, it is direct and saves a detour...We would Welcome Marlands Lane added to the definitive map as a right of way. One of our members is using this lane on the 3^rd June 2009 on a group walk'.

9.6. British Horse Society

The County Access and Bridleways Officer writes to say:

`I have known this path for over 30 years, and have always regarded it as a right-of-way. I have ridden it on a few occasions, but not regularly, as it is outside my usual range. There are two livery stables and numerous private stables in the area, and it appears to be used by riders from these.'

9.7. British Driving Society

No comment at the time of writing.

9.8. Trail Riders' Fellowship

No comment received at the time of writing.

9.9. LARA

The Area Respondent writes to say that:

`I have always considered this to be a road and have used on numerous occasions in the past.'

9.10. Cyclists' Touring Club

The Secretary of the Hampshire Group says that she can provide no evidence.

9.11. Byway and Bridleway Trust

No comment received at the time of writing.

9.12. Environment Department

No comment at the time of writing.

9.13. Hampshire Highways

No comment received.

10) Analysis of the evidence:

10.1. Representations of the path can be seen on the early commercial maps, from the 18^th century onwards. It branched out of a turnpike road (diverted and straightened by 1841, the time of the tithe map). The tithe map suggests, by colouring and recording occupation roads separately, that the route was a public highway. It is shown in the same way that other routes which are now public general purpose highways are.

10.2. The first edition of the Ordnance Survey County Series mapping, dated 1871, describes it as a `public road', indicating its reputation at the time. This is offset by the plan accompanying sales particulars of 1902, which shows the route as part of the estate up for sale. However, the depiction of it on the 1929 `Handover' map as a County Highway, a status confirmed by the 1946 Maintenance map and its presence on the current list of publicly maintainable streets suggests that, in recent times, the description of public road is the more accurate.

10.3. Though this route appears to have been part of the local, all-purpose, highway network, it has fallen out of use over time and, therefore, fits the criteria of a byway open to all traffic. Byways open to all traffic are rural recreational routes, used mainly by walkers and riders, though they are able to be used by cyclists and drivers of motorised vehicles.

10.4. Since this route was on the list of streets (of publicly maintainable highways) at 2^nd May 2006, the motorised vehicular rights on it will not have been extinguished by the provisions of the Natural Environment and Rural Communities Act 2006.

10.5. A project called `Discovering Hampshire's Lost Ways', initiated by the Hampshire Countryside Access Forum, has identified a number of routes around the county where the research carried out for the Countryside Access Plans has shown a need for public access and there is evidence for the existence of a public right of way. Although this route is currently being used by the public, it is only by recording it on the Definitive Map that its future as a public right of way can be secured. The Access Forum has asked the Definitive Map Team to bring forward some of these cases for consideration by Members, in order to record them on the Definitive Map, if the evidence supports the existence of a public right of way.

10.6. Since the Access Forum has not made a formal claim, the Order is to be made under our independent duty to make amendments to the Map, as requisite. The authority for this is to be found in section 53 of the Wildlife and Countryside Act 1981.

11) Conclusions:

11.1. The historical evidence available for this route suggests a reasonable allegation for the existence of motorised vehicular rights, based on a common law dedication in the period 1871 to 1929. These rights should be recorded on the Definitive Map as a byway open to all traffic on the route shown as A to B on the attached map, with a width varying between 3.55 metres and 10 metres, as set out in the Recommendation.

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 determine application for Definitive Map Modification Orders made under s.53 Wildlife and Countryside Act 1981.

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

HCAF Discovering Hampshire's Lost Ways CAP 155

Rights of Way Office,

Mottisfont Court, High Street,

Winchester SO23 8ZF