Archived decisions

Decision Maker:

Regulatory Committee

Date of Decision:

13 January 2010

Decision Title:

Application to upgrade part of Ellingham, Harbridge & Ibsley Footpath 33 to a byway open to all traffic

Decision Reference:

1132

Report From:

Director of Culture, Communities and Rural Affairs

Contact name:

Colin Piper

Tel:

01962-846043

Email:

[email protected]

EXECUTIVE SUMMARY

1) Summary of decision area:

1.1. The County Council has received an application to upgrade part of an existing public footpath to a byway open to all traffic. The claim is based on evidence of us by motor vehicles in the period from 1960 to 2004. There is also some documentary evidence that the track in question was part of an historic route.

1.2. The application is recommended for refusal on the grounds that a significant proportion of the user evidence, with vehicles, is related to the exercise of private rights on Ibsley Common and because the historic evidence does not, on balance, support the existence of public vehicular rights.

1.3. The evidence has also been examined to determine whether rights other than vehicular rights exist. Although there is circumstantial evidence of use by cyclists and horse riders, over the footpath in question, it is very difficult to quantify that use and to identify routes used beyond the claimed track that connect with other highways. It is therefore recommended that no order be made to record higher rights.

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 higher rights exist on the recorded footpath. 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) Recommendation:

4.1. That the application be refused.

1) Purpose of report:

1.1. The purpose of this report is to set out the facts of the case to enable this Committee to determine whether the public has acquired higher rights over an existing public footpath through a dedication at common law, or through the provisions of s.31 Highways Act 1980. If it is considered that the public has acquired higher rights, then the status and width of that path must also be determined and authority required for the making of a Modification Order to record those rights on the definitive map.

2) Claimant:

2.1. Mr P Webster

Nut Tree Cottage

Mockbeggar Lane

Ibsley

Ringwood

Hampshire

BH24 3PR

3) Landowners:

3.1 Mr J K East-Rigby

Crossley Towers

Mockbeggar

Ringwood

Hampshire

BH24 3NQ

The National Trust

Mottisfont Abbey

Mottisfont

Romsey

Hampshire

SO51 0LP

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

4.1. Footpath 33 runs from the eastern end of a surfaced public road in the hamlet of Mockbeggar and runs generally eastwards across Ibsley Common towards Linwood Bog. The claim relates to the western 430 metres of the path which consists of a gravel track, about 2.5 metres wide. This track provides access to a dwelling known as Crossley Towers and, beyond that, to the open heathland of Ibsley Common. The track is currently used by walkers, cyclists and horse riders, but use by the public, in vehicles, is prevented by gates at four locations between points A and B. Ibsley Common is designated as a Site of Special Scientific Interest.

5) Background to the claim:

5.1. Although recorded as a public footpath, Ellingham, Harbidge and Ibsley 33 is a substantial gravel track that provides vehicular access to Ibsley Common. There were no restrictions on this track until the mid 1970s and it was used by some local residents to exercise their common rights on the Common and by some members of the public for recreational use of the heath. A gate was erected at point B sometime in the 1970s and thereafter vehicles parked along the track between Crossley Towers and point B. This vehicular access was stopped completely in 2004 by the erection of further gates, west of Crossley Towers, and it was this action that prompted the claim for a byway open to all traffic.

5.2. Although Ibsley Common is within the New Forest Perambulation, the land is privately owned with common rights held by other parties. Until 1999 the whole of Ibsley Common was in the ownership of the Somerley Estate, but since then it has been sold to a number of parties. The track leading to Crossley Towers is owned by Mr East-Rigby, the Parish Council own the southern verge of the track and the triangular green at its western end, Summerlug Hill is owned by Hampshire County Council, but the large majority is owned by the National Trust.

5.3. On 2 May 2006 s.67(1) of the Natural Environment and Rural Communities Act (NERC) extinguished public motor vehicular rights over every highway recorded as a footpath or bridleway, subject to certain exceptions. This legislation was designed to curtail the scope for establishing and recording public rights of way for mechanically propelled vehicles based on evidence of historic use. However, section 67(3)(a) of NERC exempts any application made before the cut of date of 20 January 2005. This particular application was made on 12 October 2004 and any unrecorded vehicular rights over this route will not, therefore, have been extinguished by virtue of s.67(1) of the 2006 Act.

6) Issue to be decided:

6.1. The issue to be decided by this committee is whether there is evidence to show that the claimed route ought to be shown on the definitive map as a highway of a higher status than a footpath. That is as 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. 1759 Taylor's Map

This map shows the open heath land, east of Mockbeggar, criss-crossed by numerous tracks shown by parallel pecked lines and coloured brown in the same manner as other routes that are now public roads. The lane leading to Mockbeggar can be identified but it turns northwards on the route of, what is now, Footpath 35 and does not continue to the east on the alignment of the claimed track.

7.2. 1791 Milne's Map

In contrast to the previous map, this document does not show any paths or tracks across the open heath land east of Mockbeggar. The lane from Ibsley to Mockbeggar can be identified, but there is no continuation eastwards, beyond Mockbeggar.

7.3. 1810 Ordnance Survey Map

This map shows the claimed route as a substantial track, depicted by parallel pecked lines, running eastwards from Mockbeggar. Once beyond point B the route splits into two and, for the most part, neither arm follows the alignment of Footpath 33, or indeed any other route across Ibsley Common that is still recognisable today. The two tracks do cross Linwood Bog, at points X and Y, and eventually connect with other routes further east that are today public highways. However, it is unclear whether the crossings of Dockens Water / Linwood Bog were capable of taking wheeled traffic.

7.4. 1826 Greenwood's Map

This map shows the claimed route in a virtually identical manner to the OS map of 1810, together with the continuations to the east.

7.5. 1841 Ibsley Tithe Map

The road leading to Mockbeggar from the west is shown by parallel solid lines with dwellings, gardens and fields on both sides. However, it only shows the first 100 metres of the claimed route continuing east and beyond that the map is a blank because the surveyor had no interest in showing Ibsley Common, as common land was not titheable.

7.6. 1870 Ordnance Survey County Series Map 25 inches to 1 mile

This map shows the claimed route as a wide track running eastwards from Mockbeggar. The track continues right across Ibsley Common, on the route of Footpath 33, to cross Linwood Bog by what appears to be a narrow bridge. The whole of Ibsley Common is criss-crossed by numerous paths and tracks, many of which connect with the claimed route and its extension to the east. There are no lines across the claimed route that would indicate the existence of gates or other barriers. The book of reference, which describes every parcel of land, is of no assistance in this case because there is just one parcel number for all 870 acres of the common which describes all land, tracks, paths etc. as "Marsh, Rough Pasture etc."

7.7. 1895 Ordnance Survey County Series Map 25 inches to 1 mile

This document shows the network of paths and tracks across Ibsley Common in a very similar manner to the earlier OS map. This document also shows, by symbol and annotation, a "Gravel Pit" on the south side of the claimed route at point B. To the east Footpath 33 crosses Linwood Bog by a footbridge. Point Y is also a footbridge but points X and Z are fords.

7.8. 1897 Bartholomews Map for Tourists and Cyclists

This small-scale, commercial, map is designed to aid travellers by colour coding various routes according to their suitability. The route from Mockbeggar along the claimed path, and then continuing north eastwards on the alignment of Footpath 10, has been annotated with orange dots which the legend describes as "Indifferent Road (Passable for cyclists)". The legend also contains the caveat that "The representation of a road or footpath is no evidence of the existence of a right of way."

7.9. 1905 Plan of Ibsley Common

This plan was drawn by a local resident called Heywood Sumner who was a renowned artist and amateur archaeologist. The route of Footpath 33 is depicted by a single dotted line which the legend describes as a "Trackway".

7.10. 1908 Ordnance Survey County Series Map 25 inches to 1 mile

Again, there is very little change in the representation of the paths and tracks across Ibsley Common compared to the earlier OS maps. There are now two "Gravel Pits" close to, or just beyond, point B; one on the south side of the track and the other on the north side.

7.11. 1919 Plan of Ibsley

This map shows land owned by the Earl of Normanton to be sold at auction. It includes all of Ibsley Common, which is coloured green, and virtually all of the land crossed by the claimed route. Although the claimed route is shown by parallel pecked lines this is obviously derived from the OS maps and does not assist in determining what public rights might exist.

7.12. 1929 Handover Map

This map shows those routes that were considered to be publicly maintainable by the Rural District Council on transfer to the County Council. The legend includes carriageways, bridges, public footpaths and gravel/sand pits. The lane leading to Mockbeggar from the west is coloured blue which the legend indicates is a metalled public carriageway, but that colouring stops at point A with no symbol along the claimed route to the east. The gravel/sand pits on Ibsley Common are also not coloured which demonstrates that they were in private ownership. The claimed route itself is not annotated by any symbol to indicate that it was public, although other routes across Ibsley Common are described as public footpaths.

7.13. 1940 Ordnance Survey County Series Map 25 inches to 1 mile

The claimed route is shown in a very similar way as the earlier OS maps. It starts as a wide track at point A and as it progresses eastwards it narrows in width and sub-divides. The gravel pit on the south side appears to be disused by this date, but the one on the north side is active.

7.14. 1958 Ordnance Survey National Grid Map 1/2500 scale

This large-scale map shows the claimed route as a wide "Track" running eastwards from the end of the surfaced road in Mockbeggar. It varies between 3 and 6 metres wide as it passes "Crossley Towers" and continues east for about 230 metres where the map shows a large and active "Gravel Pit" on the north side. The gravel pit on the south side of the track is disused. There are no solid lines across the track between Mockbeggar and the Gravel Pit to indicate the existence of a gate or other obstruction. It is very likely that the track provided access for vehicles extracting minerals from the site.

7.15. Analysis of historic documentary evidence

The claimed path appears, for the first time, as an identifiable route on the Ordnance Survey small-scale map of 1810. It is shown as part of a through route connecting Mockbeggar with routes on the east side of Linwood Bog. There are only four routes crossing Ibsley Common at this date, all running roughly in an east to west direction. The claimed path is portrayed on this document as a substantial track, so this suggests it would have been capable of use by wheeled vehicles, but the nature of the river crossings throws doubt on that status.

7.16. This depiction is repeated on Greenwoods map of 1826, but the Ordnance Survey large-scale map of 1870 shows a more confusing picture. By this date there are numerous paths and tracks across Ibsley Common and the extension of the claimed route no longer directly connects with the river crossings shown on the earlier maps. This pattern is repeated on subsequent OS maps although there are slight variations in the depiction of certain routes.

7.17. In the 20^th century the maps continue to show a substantial track for the claimed section which divides into several routes just beyond a gravel pit, the remnants of which can still be seen today. The claimed route would have undoubtedly been used by vehicles extracting gravel from the common to the nearest public highway, but that is use associated with the management of the land and has no relevance to the acquisition of a public right of way. All `official' maps made in the 20^th century to record public highways record the road leading to Mockbeggar as a public road but beyond the green, at point A, it is only ever shown as a public footpath.

7.18. Although there are two old small-scale maps which suggest that the claimed route might have had through vehicular usage this is insufficient evidence from which a common law dedication of higher rights could be inferred. Furthermore, given the use of the land as a common, with rights limited to a particular group of people, it is more likely than not that a significant proportion of use would have been primarily by those with an interest in the land. Therefore, on balance, it is considered that there is insufficient documentary evidence from which a common law dedication of higher rights can be inferred.

8) User evidence:

8.1. User evidence consists of 11 forms submitted with the application in 2004. Those who have submitted user evidence are listed below.

8.2. Mr T Day of South Gorley

Mr Day used the track with a vehicle from 1960 to 2004 about 30 times a year. He states that the purpose of his journeys was "common rights and animals". He adds "We had the right to go and get gravel up that road. This actual road was access to the gravel pit on Ibsley Common for hundreds of years." On the map with his form Mr Day has highlighted a route that goes westwards as far as point C.

8.3. Mr B Forest of North Gorley

Mr Forest used Footpath 33 with a vehicle and for parking between 1990 and 2004, about 18 times a year. However, it is not clear from his map how much of the track he used.

8.4. Mr R Hordle of Ibsley

Mr Hordle has used the claimed route on horseback, on a bicycle and with a vehicle from 1987 to 2004. His use has varied between 25 and 300 times a year. He used this route with a vehicle to get from home to car park beyond Crossley Towers. In response to the question "Have there been any notices along the route?" he states "Private no through road sited adjacent to Beacon Cottage in 1992/93. A letter sited on a post adjacent to Crossley Towers stating that vehicles had no right of way 2004." On the map with his form Mr Hordle has highlighted a route that goes beyond point B to terminate at the junction of Footpath 33 and Footpath 10. He has annotated the map to say "From here we take a variety of different routes".

8.5. Mr M Lambert of Ibsley

Mr Lambert has used the claimed route ten times a year on a bicycle, between 1953 and 2004, and 20 times a year with a vehicle from 1963 to 2004. He says that there was a Private Road notice along the route and that he was stopped by two named persons.

8.6. Mr B Robberts of Ringwood

Mr Robberts has used the track with a vehicle from 1964 to 2002 about twice a week to walk in the forest with his family and dogs.

8.7. Mr G Smith of Ibsley

Mr Smith has ridden the claimed route on a bicycle from 1973 to 2004 about 50 times a year and used it with a vehicle between 1980 and 2004 about 260 times a year. He has helpfully provided photographs of gates along the route with a brief explanation of when they were erected. He maintains that Gates 1 and 2 were erected in 2003/04, Gate 3 was erected in 2001 and Gate 4 was erected in the early 1980s when the gravel excavations were completed.

8.8. Mrs V Smith of Ibsley

Mrs Smith has used the claimed route on a bicycle and with a vehicle but she has not stated on her form when she used the track. However, she was born in 1937 and says "People have used this track for at least 60 years, probably more, for access to Ibsley Common." The route that Mrs Smith has highlighted on a map extends westwards well beyond point B to terminate at Whitefield Plantation.

8.9. Mrs E Webster of Ibsley

Mrs Webster has used part of Footpath 33 with a vehicle about 20 times a year between 1960 and 2004. She adds "I have always used this track on to Ibsley Common. I would often see 5 or more cars parked by the track beyond Crossley Towers." She has also enclosed a photograph of her car, taken in 1964, parked just to the north of point B.

8.10. Mr P Webster of Ibsley

On his form Mr Webster has recorded use by bicycle from 1956 to 2004, about 10 times a year, and use with a vehicle between 1967 and 2004, about 20 times a year. His stated purpose for these journeys is "bird watching, photography and once to take gravel from old gravel pit...we have commoners rights in the village." In an additional report he says:

"Before the official barrier was put in place by the New Forest Association near the top of the track on to Ibsley Common, cars used to drive on to the common and indeed evidence of this can still be seen, e.g. the width of the tracks. There used to be an aircraft beacon in the heart of Ibsley Common close to path 10 and service vehicles often visited it using path 33 as a point of access to the common. When the gravel pit on Ibsley Common was being worked, up to 20 lorries an hour were using path 33 in order to remove gravel. After work stopped at this pit, a section was left open so that commoners could have easy access to gravel...Path 33 is the ideal gateway to Ibsley Common, owned by the National Trust, and also to the former gravel pit now owned by Hampshire County Council. It is only right and proper that we should have parking and easy access to this beautiful area, with panoramic views over the Avon Valley, south to the Purbecks and west to Win Green Hill near Shaftesbury."

As the applicant, Mr Webster has also made further representations regarding the status of the claimed route: He claims that "This track is an important gateway to Ibsley Common and thus into the New Forest. There are clear routes available to Linwood, Fritham and Hampton Ridge. In places, where the tracks on the Common are below the plateau gravel deposits, there is clear evidence of extensive use over a long time as the tracks are sunken."

8.11. Mr J Venning of Steep

Mr Venning used the track with a vehicle 12 times a year between 1964 and 1980 and about twice a year after that until 2002. He adds:

"My grandmother bought Beacon Cottage in 1935. I lived there as a child from 1947-49 and was a regular visitor from 1949-64 when my parents moved in until my father's death in 1998. We used to drive up to below the gravel pit to take my father onto the Common from the late 1960s. My brother and I and our wives still own Beacon Cottage. During all the time my parents lived at Beacon Cottage my father suffered from Osteoarthritis. This was successfully operated on in 1971, his mobility was impaired at various times before and after that date. Nevertheless, he used the upper part of the track with a car to get access to the Common for walking and to collect gravel from the gravel workings under his commoner's rights. In October / November 2002, a notice was erected, saying `Private Road to Beacon Cottage and Crossley Towers only".

8.12. Mr R Venning of Yeovil

Mr Venning used the claimed route with a vehicle eight times a year between 1964 and 1966 and twice a year after that until 2002. He adds "The occupants of Beacon Cottage are, by nature of its position, commoners of the New Forest Common land to the north and east of the house." Mr Venning has not included a map with his form to show the way that he used but he has described his route as being from Mockbeggar Farm to Ibsley Common Gravel Pit.

9) Other relevant evidence:

9.1. 1961 Photograph

This photograph was submitted by the applicant and it shows a parked car, on the open forest, with three people standing by the vehicle. This image was taken on land north of Footpath 33 with Whitefield Plantation in the background. There is no information regarding which route was taken by the car to get to that position, but presumably it was by using the claimed route.

9.2. 1964 Atlas of Common Rights in the New Forest

This document is held by The Verderers of the New Forest and records those properties that have common rights attached to them. There are 114 entries listed under Ibsley Common, mostly within two miles of the claimed route, and including three of the addresses given by the claimed users of the path.

9.3. 1979 Ramblers Survey

In 1979 the Ramblers Association carried out a condition survey of all rights of way in Hampshire. The survey for Footpath 33 contains a description of a "low gate across track" 130 metres east of Crossley Towers. This would correspond to point B and confirms that there was a barrier in place at this date to limit access for vehicles.

9.4. 1980 Letter from Mr P Webster to County Council

This letter was written by Mr Webster in his capacity as the footpath representative for Harbridge & Ibsley Parish Council. It contains descriptions of several paths in Ibsley including the following:

"Footpath 50 is the only means of access to a number of houses and fields alongside the track and must be classified as a "Byway Open to All Traffic". There are other footpaths which are used for part of their lengths as access tracks for vehicles to properties, but these lay within the Somerley Estate and I am not sure whether the re-classification would apply. The paths are:.... Part of 33 from junction with U119."

9.5. 1980s Photographs

Five photographs have been submitted by the owner of Crossley Towers. They show the length of track between Crossley Towers and point B with motor vehicles parked by the side of the track. One photograph shows 10 vehicles in a continuous line. These photographs suggest that, unless the vehicles went to point B to turn around, some drivers did no use the entire length of the claimed track on every visit.

10) The Landowners:

10.1. Mr J East-Rigby

Mr East-Rigby submitted a letter in May of this year. It reads, in part:

"I have lived at Crossley Towers for 30 years and the track running up to the house and beyond has always been privately owned and at present is owned by me. It is lawfully used by the owner of Beacon Cottage and my family, as a vehicular access to our respective properties. I believe there are several reasons why, despite the fact that the public have customarily driven their vehicles over the track for several years, that this has not been done as of right but it has been done unlawfully.

1. It is a criminal offence to drive a car or motorcycle on a footpath, bridleway or restricted byway.

2. It is unlawful for the public to drive a vehicle on or over land which forms part of a common.

3. A public right of way gives the public the right to pass and re-pass and not to stop. It must be unlawful to park and be an obstruction on such a public right of way.

Further, as the letters of support testify, signs have been erected explaining the nature of the track. i.e. "Private No Through Road, Access to Beacon Cottage and Crossley Towers Only, No Unauthorised Vehicles" but these have been vandalised. And, again, as the letters of submission testify I have personally, on several occasions stopped people who are using the track in their vehicles and informed them of the category of the right of way. There are also barriers which I close and lock at least once a year. There is also the question of public nuisance. Since public vehicles have stopped using the track, I have had several pedestrians comment to me that the continual use of the footpath by public vehicles was a nuisance and that they are pleased that this has now thankfully stopped.

Historically, cars unlawfully roamed freely all over the various New Forest Commons and it was to deter this that the New Forest Association erected a barrier in the 1970s a few hundred yards east of Crossley Towers on the footpath in question. This effectively stopped the cars from having free unlawful access to the common, but ended up creating an area of unlawful parking leading up to the barrier. For the above reasons I would therefore ask the Council to throw out this application which I believe is based on specious argument."

Mr East-Rigby offered further evidence in December 2008, as follows:

"From 28 February 2001 no one used the track (other than access to private property) during the Foot and Mouth epidemic as people were banned from using the common completely - walkers, riders, bicycles and vehicles. By the time the ban was lifted on 11 May 2001 I had already erected the barrier at point 3 on the plan so no member of the public had free access to the route in question since 28 February 2001. So the evidence of 10 people who made submissions are factually incorrect."

10.2. The National Trust

The National Trust have been consulted by letter and sent reminders by post and e-mail but, to date, they have not commented.

11) Consultations with other bodies:

11.1. Ellingham, Harbridge & Ibsley Parish Council

This issue was debated at a meeting of the Parish Council on 23 June 2009 after which the Clerk made the following submission:

"The Council voted on the issue and there were three councillors in support, one objection and three abstained. Therefore, there was a majority in support of the modification. However, there was a major reservation concerning parking. If a BOAT was established and Mr East-Rigby is required to remove the barrier that he has installed below his house, vehicles would still not be able to progress beyond the barrier established by the National Trust to keep vehicles off the Commons. At present parking would only be possible on the track itself which is not acceptable under the terms of a BOAT, being for passage not parking. The Council are also concerned that many tracks giving access onto the Commons have been designated as footpaths, whereas each one should have been carefully considered and classified appropriately. There are therefore wider issues involved here."

11.2. New Forest District Council

No comment

11.3. Local Member - Councillor E Heron

No comment

11.4. Ramblers Association

The consultation has been answered by the Ringwood & Fordingbridge Footpath Society on behalf of the RA. The claim was discussed by their Committee and the Footpath Secretary has written to say:

"Our Society opposes the application. Any vehicles driving beyond Crossley Towers, along what is a well-used footpath, would constitute a risk to walkers and parking of vehicles would obstruct the footpath, also the surface of the path would need to be maintained. At present the surface is adequate for a footpath, if sometimes rather wet due to water draining from the much higher forest."

11.5. British Horse Society

The Hampshire representative has tried to contact local members to provide information about use of the track in question but, to date, no response has been received.

11.6. Cyclists' Touring Club

No comment

11.7. The New Forest Verderers

The Verderers have been helpful in providing information regarding common rights but have not expressed a view on the application.

11.8. The New Forest Association

A representative of the Association has written to offer the following observations:

"The (claimed) route...was formerly part of the access to a gravel quarry. After the quarry closed, in the mid 1970s, a comprehensive system of gates and ditches was established to protect Ibsley Common from vehicular damage and vandalism. A gate was erected a few yards south west of (point B) on the map. That gate I inspected at least monthly until about the time that the land was bought by the National Trust. When necessary, I arranged for its maintenance and that of the adjacent ditching and posts. Further south west the gravel track served only as the access to a private house - Crossley Towers. From time to time it was the source of crime including night time drug taking, fly tipping and car burning. Eventually I believe that matters became so intolerable (indeed dangerous) for the householder that he obtained consent from the Somerley Estate (who owned the track) to move the gate so as to eliminate the problem."

In response to questions from the investigating officer the representative has provided further information as follows:

The first gate was funded by English Nature with the approval of the landowners, carried out by the Forestry Commission and overseen by the New Forest Association. The track was used by commoners, agisters and agents of the landowners, in vehicles, going about their business on the common. The claimed route has been used by horses but no specific evidence other than personal use many years ago.

11.9. The New Forest National Park Authority

The Countryside Access Officer has written a lengthy response which includes the following observations:

"The Authority does not have any evidence relating to the history and use of the track in question. It is noted that part of the claimed route crosses land that has nature conservation designations of Ramsar, Special Protection Area, Special Area of Conservation and a larger part crosses land designated as a Site of Special Scientific Interest. The Authority recommends that in considering the user evidence particular attention is paid as to whether the evidential activity of use by motor vehicles gave rise to a nuisance."

11.10. Natural England

"Natural England objects to the proposal on the grounds that there is insufficient information to determine the likely significant effect on The New Forest SAC/SPA/Ramsar site. Further information that we would require includes: the current and proposed usage of the track, any proposed improvements, parking provision and an assessment of impact on SPA birds."

11.11. Residents of Mockbeggar

Mrs G Sills has written to confirm that she has lived in the area all her life and has known the route as a public right of way for vehicles and horses for ever (no dates are given). At the top of the track there used to be a parking area only until a few years ago.

Mr & Mrs Makings strongly object to this footpath being opened to all traffic as it is clearly unsuitable for this purpose. The footpath leads to two houses and the open forest and has no place for vehicles to turn. The main cars using this path are residents of the two houses, walkers and dog walkers, the latter two groups can easily park on the tarmac road before the start of the footpath which slightly lengthens their walk. Probably 10 to 20 horse riders per day use the track, since it is very close to two very large self livery fields. A number of cyclists, particularly at weekends and holiday periods, use the track. It should be noted that the footpath has recently been used by scramble motor bikes as access to the forest, which is an activity which everyone would wish to discourage. The footpath is suffering from severe potholes which will get worse if it is designated as a byway.

Mr & Mrs Spillett have lived in Mockbeggar since 1991 and say that prior to the erection of gates in 2004 the track was the site of anti-social activity resulting from illegal car access. They say that conversion of a quiet footpath into a byway would be a distinctly negative step and that cars parked on the track must constitute an access hazard to emergency vehicles. Such an action would seem to be completely out of tune with current thinking which seems to aim at keeping cars, people, riding horses and dogs off the Forest.

Mr & Mrs Morelli-Batters have lived in Mockbeggar since 2007. They say:

"We oppose the application for a definitive map modification to make the footpath a byway open to all traffic. The reason for our objection is that the footpath is already used by cars which park outside our property. This has resulted in our access becoming heavily pot-holed. The cars parking on the land beside the path occasionally leave litter...which are a danger to animals. On occasions youths in cars park on the footpath at night playing loud music, drinking and littering. We fear that the footpath could become a venue for drug dealing if more traffic were allowed. There is a tarmac road immediately before the footpath which has room for the occasional car to park allowing the owner to walk their dogs. Horse riders use the path at present"

12) Analysis of the evidence:

12.1. Footpath 33 is a typical New Forest, heathland track that serves many functions. It is a recorded public footpath, it is used by horse riders and cyclists, it was used by people in vehicles wanting recreational access, it was used by vehicles extracting natural resources, and it is still used to gain access to property and to manage the land. It is quite feasible that this multiple use goes back many hundreds of years. However, in determining whether the public has acquired rights higher than that of a footpath several key factors must be taken into account such as: is there evidence that the path was historically a through route for public traffic? Has use been focussed on a particular route, or routes, or was it dispersed over numerous paths and tracks with no specific destination? Lastly, has recent use by motor vehicles been by the public at large or was it by people who had rights over the land?

12.2. As discussed in paragraphs 7.15-7.18 some of the early small-scale maps do hint that the claimed path could have been part of a more important through route between Mockbeggar and Linwood to the east. However, the more detailed and official documents of the late 19^th and 20^th centuries do not support the contention that this was a public route for wheeled traffic. Although the claimed route is consistently shown on most post-1826 maps, as a substantial track, this can partly be explained by the existence of gravel pits from, at least, 1895 onwards. The last gravel pit only closed in the mid 1970s and restrictions were introduced for the first time from that date.

12.3. In the absence of any barriers before the mid-1970s it is not surprising that people used the claimed route as a means of access to Ibsley Common and continued to use the track for limited access and parking, up to point B, until 2001. However, most of the use put forward in support of the application is from people who have commoner's or private rights on Ibsley Common. Five people have stated on their user evidence forms that they have common rights on Ibsley Common, they are Mr Day, Mr & Mrs Webster and Mr J and Mr R Venning. A further three people, that is Mr Hordle and Mr & Mrs Smith, live at properties that are listed in the Atlas of Common Rights and therefore will have private rights on the common. This leaves only three people, Mr Forest, Mr Lambert and Mr Robberts without private rights and therefore using the track as members of the public. This evidence is insufficient from which a dedication can be inferred.

12.4. In this case the application fails on the low level of use made of the track by the public. It is also worth noting that, since 1930 it has been an offence to drive a mechanically propelled vehicle, without lawful authority, on any common land and on footpaths and bridleways. Lawful authority could have been acquired through a common law dedication as evidenced by maps and other documents before 1930, rendering subsequent use by vehicles after that date legitimate. Alternatively, in the Bakewell case, Lord Justice Scott held that an owner of land could give lawful authority for the doing of an act that if done without that authority would be an offence, providing that such activity would not give rise to a nuisance.

12.5. The judgment in the Bakewell case provides that if the dedication of a way as a vehicular way by a landowner could be lawfully made, then dedication could be presumed through long use where that use satisfied the provisions of s.31 of the Highways Act 1980 or common law. Lord Justice Scott took the view that it would not be open to an owner to dedicate a public vehicular highway over an existing footpath, if use by vehicles would have constituted a public nuisance to pedestrians using the footpath. In such cases, vehicular user could not give rise to the presumption of dedication, as the user would create a nuisance and would therefore have been without lawful authority. In this case there is evidence, contained in the observations by local residents, that some use with vehicles has constituted a public nuisance.

12.6. There is some evidence that the public has been using the claimed route on horseback and with bicycles, and could therefore have acquired bridleway rights. This evidence can be found in the comments from those consulted, in the evidence from some of the users and from observations by the investigating officer whilst on site. The British Horse Society were asked for user evidence from local riders but, to date, none has been forthcoming. For the purposes of this report there is insufficient hard evidence from which a dedication of a public bridleway could be inferred and there is uncertainty about the routes taken by riders and cyclists beyond point B. A refusal of this application would not debar a further application to record bridleway rights based on user evidence.

13) Conclusions:

13.1. The historic maps and other documents do not provide sufficient evidence from which a common law dedication of higher public rights can be inferred.

13.2. The public's right to use a route east of point A was brought into question in 2004. The relevant 20 year period therefore, under s.31 Highways Act 1980, is 1984-2004.

13.3. A large proportion of the user evidence has been by people who have private rights on Ibsley Common. There is insufficient evidence of public use to justify the acquisition of higher rights under s.31 Highways Act 1980.

13.4. In any event, the officers are of the view that some user has constituted a nuisance and therefore the landowner did not have legal authority to dedicate a public right of way in respect of that use.

13.5. The circumstantial evidence of use by horse riders and cyclists is insufficient to support the acquisition of bridleway rights.

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: CR794

Rights of Way Office Room 200

User evidence

Mottisfont Court

Documentary evidence

High Street

Correspondence

Winchester