1 Wildlife and Countryside Act 1981 – Section 53

WILDLIFE AND COUNTRYSIDE ACT 1981 – SECTION 53, SCHEDULE 14 APPLICATION TO UPGRADE GUMMER’S LANE L24/5 AND CH24/14 FROM FOOTPATHS TO BRIDLEWAYS IN THE PARISHES OF PUCKINGTON AND STOCKLINCH 537M

Author: Erica Darch Date: 03 December 2018

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CONTENTS

1. Introduction 2. The Application and supporting evidence 3. Description of route 4. Relevant Legislation 5. Documentary Evidence 6. User Evidence 7. Landowner Evidence 8. Consultation and other submissions 9. Discussion of the evidence 10. Summary and Conclusion 11. Recommendation 12. List of Appendices

1. Introduction

1.1. On the 27/06/2008 the South Somerset Bridleways Association (SSBA) made an application under Schedule 14 and Section 53(5) of the Wildlife & Countryside Act 1981, for an Order to amend the Definitive Map and Statement by upgrading footpaths L24/5 and CH24/14 to bridleways as described in paragraph 2 below.

1.2. A public bridleway can be used by the public on foot, bicycle and riding or leading a horse.

1.3. The purpose of the report is to establish what public rights, if any, exist.

2. The Application

2.1. The application is based on documentary evidence and includes extracts of the following documents; Ordnance Survey (OS) Map, 1807 Greenwoods Map, 1822 Tithe Map for Puckington, 1837 Tithe Map for Stocklinch, 1845 OS Boundary records, 1882 OS Object Name Book, 1902 Finance Act map, 1910 Bartholomews Map, 1927 Contemporary photographs of the route Current map

2.2. No user evidence was submitted with the application. User evidence submitted at a later date is discussed at Section 6.

3. Description of Route

3.1. Gummer’s Lane is shown coloured blue on Appendix 1. It runs from point A at the B3168 at the southern end of the village of Puckington in a generally east south-easterly direction for about 540 metres before turning south-east, crossing the Puckington / Stocklinch parish boundary at point B and terminating at the unclassified road at Winsmoor Hill at point C.

3.2. When visited on 03/08/2018 a short distance at either end of Gummer’s lane was physically accessible by vehicle. It was also clear that there was at least occasional vehicular use, presumably to access land. For almost the entire length of the route it is defined by a bank and ditch or banks, the ditch predominating on the southern boundary and bank on the northern boundary. There is significant vegetation growth, including a mature tree in the middle of the width of the route, and it is consequently difficult to accurately measure the width between the boundaries. However, the width clearly varies

significantly and is around 3.5 metres for a significant length, narrowing to around 2.6 metres in at least one place between the base of the bank and the ditch.

3.3. Photographs of the claimed route taken on 03/08/2018 are at Appendix 2.

3.4. A land registry search was carried out on 18/07/2018 which identified five owners or joint owners of land adjacent to the route. There were no registered owners for the claimed route itself. An additional two potential landowners or adjacent landowners were identified by other means. The Common Law presumption is that adjoining landowners own up to the centre point of a way, in the absence of any evidence to the contrary.

3.5. The case file, including the application, accompanying evidence and consultation responses can be viewed by Members by appointment.

4. Relevant Legislation

4.1. The Wildlife and Countryside Act 1981 specifies in Section 53(2)(b), that the County Council must keep the Definitive Map and Statement under continuous review and must make such modifications as appear to them to be requisite in the light of certain specified events. In this case 53(3)(c)(ii) is of particular relevance.

4.2. 53 (3) (c) (ii) states that the Map and Statement should be modified where the County Council discover evidence which, when considered with all the other available evidence, shows “that a highway shown on the map and statement as a highway of a particular description ought to be shown as a highway of a different description”,

4.3. Later in the same Act section 53(5) enables any person to apply to the Authority (Somerset County Council) for an Order to be made modifying the Definitive Map and Statement in respect of a number of ‘events’ including those specified in Section 53(3)(c)(ii) of the Act as quoted above. On receipt of such on application the County Council is under a duty to investigate the status of the route. It was under these provisions that the SSBA made their application.

4.4. The purpose of Section 53 of the Wildlife and Countryside Act 1981 is to record or delete the record of rights rather than create or extinguish the rights themselves. Practical considerations such as suitability, security and wishes of adjacent landowners or user groups cannot be considered under the legislation.

4.5. Section 32 of the Highways Act 1980 states that “a Court or other tribunal, before determining whether a way has or has not been dedicated as a highway, or the date on which such dedication, if any, took place shall take into consideration any map, plan or history of the locality or other relevant document which is tendered in evidence and shall give weight thereto as the

Court or tribunal considers justified by the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or compiled and the custody in which it has been kept and from which it is produced”.

4.6. The Natural England and Rural Communities (NERC) Act 2006, Section 66 and 67, extinguished rights for mechanically propelled vehicles (MPV’s) over any routes that were recorded on the Definitive Map as a footpath, bridleway or restricted byway and over any routes that were not recorded on the Definitive Map or the list of highways maintained at public expense. There are a few exceptions to the general rule outlined above, none of which appear to apply in this case. There is therefore no question of rights for MPV’s existing over the claimed route.

4.7. 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, SCC must be satisfied that public rights have come into being at some time in the past. This might be in the distant past (proved by historic or documentary evidence) or in the recent past (proved by witness evidence). The decision is a quasi-judicial one in which the decision maker must make an objective assessment of the available evidence and then conclude whether or not the relevant tests set out above have been met.

5. Documentary Evidence

5.1. The tables below list the documentary evidence sources examined as part of this investigation. In some cases it has not been possible to view the original copy of a document and it has instead been necessary to rely entirely on an extract supplied by the applicant or another party. Where this is the case the words ‘extract only’ follow the title of the document. If it has been necessary to give those documents less weight on account of them only being viewed in part this has been made clear in the description and interpretation of the evidence.

5.2. Throughout discussion of the evidence comparison is frequently made to the way in which other routes in the immediate vicinity of Gummer’s Lane have been recorded. Where other rights of way, roads or physical features have been referred to their location has been identified on the plans at the relevant appendices.

5.3. Survey of Stocklinch Magdalen in the County of Somerset Belonging to the Bailiff and Burgesses of Ilchester, c. 1792 (with additional notations between 1804 and 1820). South West Heritage Trust (SWHT) reference D\B\il/3/8. Appendix: 3

Description and interpretation of evidence

5.3.1. Between the plots of land in the ownership of the Baliff and Burgess of Ilchester little or no detail is shown. All the linear ways are shown in the same way, with solid casing lines and a buff coloured line along the centre. This includes routes which are today public vehicular roads as well as public rights of way (bridleway CH 24/12 and parts of footpath CH 24/4) and ways with no recorded public rights (Mead Lane). It is therefore not possible to discern a visual distinction between different types of public ways and public or private ways. There is no key.

5.3.2. The application route is shown where it borders plots of land included in the survey. That is to say, at the southern end at point C where is joins the current public vehicular road Winsmoor Hill adjacent to a plot numbered 38, and for a length of about 55 metres at a point between A and B adjacent to a plot numbered 4. The application route is shown in the same way as the other linear ways on the map, is unnumbered and unlabelled.

5.3.3. The map was not created to record, nor does it claim to show, public rights of way. Given the area covered there is limited basis for comparison, but routes which are today recorded as public vehicular roads, public bridleways, public footpaths and linear ways with no recorded public rights are all shown in the same way as the application route.

5.3.4. The map confirms the physical existence of the application route in 1792, but does not assist in determining what, if any, public rights exist over it.

5.4. Greenwood’s Map, 1822. Appendix: 4 Description and interpretation of evidence

5.4.1. Despite some criticism relating to the positional accuracy of Greenwood’s maps they can provide good evidence of a routes physical existence at the time of the survey and also that the surveyor considered it to be of some importance. As the map was produced for use by members of the public it is likely that the surveyor would have focused on those roads that he believed to be publicly accessible or that were useful for the public in some other way.

5.4.2. In this case the map shows the application route as a ‘cross road’. Although not specifically defined on the map, this term was being used to refer to more than just the point at which two roads cross. In one prominent case the courts defined a cross road as ‘a public road in respect of which no toll is payable’1 (my emphasis). However, in that case the judge was considering a map produced 55 years earlier than Greenwood’s and by a different cartographer. Therefore, while consideration should be given to this legal precedent, it is important to consider the term ‘cross road’ in the context of any individual map before drawing any inferences2.

1 Hollins v Oldham (1995) 2 Paragraph 2.26 of the Planning Inspectorate’s ‘Definitive Map Orders: Consistency Guidelines’.

5.4.3. While the majority of cross roads shown on Greenwood’s map are now recognised as public vehicular roads, there are many which are not. Most of those which are not now public vehicular roads are shown on Greenwoods Map as cul-de-sacs (e.g. a way leading north from Bushfurlong Cottages with no recorded status, a route running east from Midelney Road then south to Southmoor Main Drain with no recorded status, Netherfield Lane, part of footpath CH 14/14) which are unlikely to have carried public vehicular rights. However, there are a few crossroads which, like Gummer’s Lane, are shown as through routes (e.g. footpaths CH 28/6, and Crossham Lane, Fivehead over which no public rights are recorded). A similar picture emerges when analysing other extracts of the same map. In the circumstances it seems as though Greenwood either did not consider all ‘cross roads’ to be public vehicular routes, or that he did not make very careful checks about the public status of the routes he recorded.

5.4.4. This map therefore confirms the physical existence of the application route in 1822, but is of very limited weight in support of public rights over the application route.

5.5. Map of Stocklinch Magdalen, Stocklinch Ottersey, 1834. SWHT reference DD\CA/171. Appendix: 5

Description and interpretation of evidence

5.5.1. There is a key in which roads are identified as being coloured muted yellow. No other types of way (footpath, bridleway, occupation road, public road etc) are identified in the key.

5.5.2. The application route is shown coloured yellow, unnumbered and unlabelled. There is no line across the route separating it from the public vehicular roads it joins at point A and C.

5.5.3. The majority of the routes shown as ‘roads’ according to the key and in the same way as the application route are today recorded as public vehicular roads. However, the following routes are also shown in the same way as the application route:

 Bridleway CH 24/12  Part of footpath CH 24/10  A route with no recorded public rights at ST3713 1772  Mead Lane (no recorded public rights)  A route with no recorded public rights at ST3737 1758

5.5.4. The above exceptions cast doubt on whether the surveyor intended ‘roads’ to mean public roads, all roads whether public or private, or whether it was the physical characteristic of the way rather than status which determined how it would be mapped.

5.5.5. The map does not claim to show the status of the routes depicted. The specific purpose for which the map was made is unknown, but the fields are numbered and outlined in either bright yellow or pink which is identified in the key as representing ‘Stocklinch Ottersey’ or ‘Stocklinch Magdalen’. This, and the other labels and features identified in the key, strongly suggest that it was neither intended or necessary for public rights of way to be recorded on this map for the purpose for which it was made. Therefore, although this map confirms the physical existence of the application route in 1834 it does not assist in determining what public rights ran over the route, if any.

5.6. Drainage – correspondence and plans, 1881. SWHT reference D/P/puc/23/1. Appendix: 6 Description of evidence

5.6.1. This piece of evidence includes a schematic plan (horizontal plain) and separate section (vertical plain) for a drainage pipe which was intended to be installed along the B3168 through Puckington, and associated correspondence. The section is undated but is very similar to the plan and it has been assumed they were produced together.

The Section

5.6.2. The section gives the levels at various points, with a few corresponding features noted. ‘Outfall & Tank’ is adjacent to a ‘Road’ which corresponds with the application route. Other relevant named features are: i) ‘Bradon Road’ - corresponding with Bradon Lane, today a public vehicular road; ii) ‘At End of Road’ - corresponding with a short stretch of public vehicular road leading south-east from the B3168; and iii) ‘Occupation Road’ - corresponding with Clay Lane over which no public rights are currently recorded, but which is subject to an undetermined Definitive Map Modification Order (DMMO) application.

5.6.3. Although ‘road’ by itself might mean either a public road or a private road with or without lower public rights running over it, the other routes named as ‘road’ on the section are today public vehicular routes. Furthermore, the term ‘occupation road’ is used to qualify the only route over which no public rights are today recorded (although it has been alleged they exist). ‘Occupation road’ is usually taken to mean a private road. Therefore, on the basis of comparison with the other linear ways noted in the section, this is in favour of the application route being a public vehicular road.

The Plan

5.6.4. The plan is dated October 30th 1881 and signed ‘B. J. Shier’. It appears to be incomplete as it is torn along one edge.

5.6.5. The plan shows the application route labelled ‘road’ with a tank

(labelled ‘outfall & intercepting’ before a tear in the plan) on the application route at point A, a blue feature (probably a pond) taking up about half the width of the route at point A, and a feature at the junction with the B3168 leaving less than half the width of the route for access at point A.

5.6.6. None of the linear ways on the plan are coloured. The B3168 is labelled ‘From Ilminster’ at the southern end and ‘To Langport’ at the northern end, a short section of road leading from the B3168 towards St. Andrew’s Church is labelled ‘From Vicarage’, a short section of road leading south east from the B3168 is labelled ‘Road’ and Bradon Lane is labelled ‘From Bradon’. All of these routes are today public vehicular roads. Clay Lane and two short sections of linear way leading to property, none of which are recorded as public highways of any kind today, are not labelled.

5.6.7. On the basis of comparison with the recorded status of the other routes shown, the labelling on the plan is in favour of public vehicular rights over the application route as all the other labelled routes are today public roads, and all the unlabelled routes have no public rights recorded over them today.

5.6.8. The physical features shown on the application route on the plan, although leaving a diminished width at point A, appear to leave sufficient width for the application route to have been used by vehicles.

Correspondence

5.6.9. The associated correspondence includes a letter dated Nov 1st 1881 on headed paper from B. J. Shier, District Surveyor, Ilminster District Highway Board, in which he refers to the plans he has drawn up.

Interpretation

5.6.10. The associated correspondence suggests the scheme was considered by interested parties, although it is unclear how many people actually saw the plan and section. However, anyone viewing the relevant documents would be likely to comment on the scheme itself (or the cost thereof) and not on incidental details such as the way nearby roads were depicted – nobody at the time would have anticipated that this document would be considered as evidence for the existence of public rights on linear ways.

5.6.11. The documents were drawn up to show a proposed drainage scheme, not public or private roads or rights of way. However, they were produced by the District Surveyor of the Ilminster District Highway Board who would be an excellent authority for the status of linear ways at the time.

5.6.12. Although the way in which the routes are shown on the plan and section appears to correspond with recorded rights today the area covered offers only a small number of routes as a basis for comparison. There is also doubt as to the status of Clay Lane because there is an undetermined DMMO

application pending over this route. If public rights, particularly public vehicular rights, do exist over Clay Lane, then this casts doubt on the conclusion that public vehicular roads were labelled and private roads were unlabelled / called occupation roads on these documents.

5.6.13. Overall, these documents weigh in favour of public vehicular rights over the application route and were drawn up by someone who should have been well aware of the status of the routes he was depicting. However, because they neither explicitly claim to show the status of linear ways (with the possible exception of the route labelled ‘occupation road’) and were not produced for a purpose which required the status of linear ways to be shown, the weight that can be given to them is slightly reduced. The fact that the documents are schematic rather than topographic to scale plans, does not diminish their weight as the features represented are easily identifiable.

5.7. Bartholomew’s Map, 1911 and 1927 (Extract only). Appendix: 7

Description and interpretation of evidence

5.7.1. B

5.7.2. On the 1911 map the application route is shown uncoloured and the key includes the statements ‘The uncoloured roads are inferior and not to be recommended to cyclists’ and ‘NB. The representation of a road or footpath is no evidence of the existence of a right of way’.

5.7.3. On the 1927 map the application route is again shown uncoloured. The key includes almost identical statements to those on the 1911 map ‘The uncoloured roads are inferior and not to be recommended’ and ‘NB. The representation of a road or footpath is no evidence of the existence of a right of way’.

5.7.4. Many roads which are today public vehicular highways (such as Ruskway Lane) are shown uncoloured in the same manner as the application route, but some routes over which no public rights are today recorded were also shown uncoloured (for example, a route leading south at Ilford Bridges).

5.7.5. Although this map was intended for the use of the traveling public, particularly cyclists, many uncoloured routes which are expressly described as being unsuitable for cyclists are included. Furthermore, it explicitly states that it is no evidence of the existence of public rights. This map, like the Ordnance Survey maps (discussed at 5.11), confirms the physical existence of the routes at the time of the surveys, but is unhelpful in determining what, if any, public rights existed over them.

5.8. Tithe Records:

Explanation of the type of evidence

5.8.1. Tithe maps and the written document which accompanied them, (the apportionment) were produced between 1837 and the early 1850’s in response to the Tithe Commutation Act 1836, to show which landowner owned which pieces of land and as a result how much they owed in monetary terms. The tax replaced the previous ‘payment in kind’ system where one tenth of the produce of the land was given over to the Church.

5.8.2. A map was produced by the Tithe Commissioners which showed parcels of land with unique reference numbers, and these were referred to in the apportionment document, which contained details of the land including its ownership, occupation and use.

5.8.3. Public roads which generated no titheable produce and were not given a tithe number. Some private roads, due to use could be equally not liable to a tithe. However, public and private roads could be subject to a tithe, if for instance, they produced a crop – grazing or hay cut from the verges.

5.8.4. The Map and Apportionment must be considered together. Roads are often listed at the end of the apportionment; there is also sometimes a separate list for private roads.

5.8.5. Tithe maps provide good topographical evidence that a route physically existed and can be used to interpret other contemporary documents but were not prepared for the purpose of distinguishing between public and private rights and so tend to be of limited weight.

5.8.6. Puckington Tithe Map, 1837. SWHT reference: D\D/Rt/M/4. Appendix: 8 Description and interpretation of evidence

5.8.7. The map is signed by the commissioners, but not sealed, making it a second class map. Second class maps were considered evidence of whatever they showed in relation to tithes, but not of any other detail they happened to record. First class maps, which were signed and sealed, were considered reliable evidence of everything they showed.

5.8.8. The plots shown are divided into those numbered 1 and coloured white (i.e. uncoloured) for Puckington Farm, and those numbered 2 and coloured black for Glebe land.

5.8.9. The application route is shown between point A and just beyond the parish boundary at point B. It is depicted between solid casing lines, coloured yellow and unnumbered. The majority of the routes coloured yellow are today public vehicular roads. There are, however, a number of exceptions including the following routes, or parts thereof:

 Footpath L 24/1  Footpath L 17/58  Footpath L 3/26

 Footpath L 3/8  Footpath L 9/24  Bridleway L3/38  Pyde Lane (no recorded status)  Copse Drove (no recorded status)

All of the above routes are wholly or partially subject to undetermined DMMO applications to upgrade to, or add, a bridleway or restricted byway. Their status is therefore in question. Part of a linear way leading west from the B3168 to grid reference ST3810 1911 is coloured yellow. It has no current recorded status, is a cul-de-sac and is not currently the subject of a DMMO application. However, only part of this relatively short route is coloured.

5.8.10. There are a few uncoloured linear ways on the map. A few short sections of these uncoloured ways correspond with public rights of way currently recorded on the DMS, but for the most part they do not. At least one of the uncoloured routes over which there are no recorded public rights is, however, subject to an undetermined DMMO application (reference 535M). If this case is determined in favour of the application it will significantly reduce the correlation between uncoloured ways and lack of public rights on this map. However, the case has not yet been determined and the outcome cannot be anticipated. Therefore, at the present time there is a strong, if not absolute, correlation between uncoloured routes and no recorded public rights, although according to the key, ‘white’ (uncoloured) indicates land forming part of Puckington Farm.

5.8.11. The vast majority of the routes shown in the same way as the application route carry recorded public rights, although a significant number as footpaths. Although the question of whether or not there are unrecorded higher rights on these routes has been raised by the DMMO applications, these cases have not yet been determined and it is therefore unknown whether they do carry higher rights.

5.8.12. The key uses uncoloured (white) and black to indicate land ownership but yellow is not included in the key. The meaning of the yellow colouring is therefore not explicit.

5.8.13. The strong correlation between routes coloured yellow (as the application route) and routes with recorded public rights implies that yellow indicated public rights of some kind. This map is therefore evidence in favour of public rights over the application route. However, tithe maps were created to record the titheable value of land, not public or private rights. Public roads were excluded if they produced no crop and so it would be expected that many of the excluded routes would be public roads, but private roads would also be excluded if they produced no crop. The correlation between coloured ways and public rights is also not absolute – there are a small number of exceptions. The weight that can be given to the tithe maps as evidence for public rights over Gummer’s Lane is therefore reduced, and these documents must be considered alongside all the other evidence.

5.8.14. Whilst this tithe map weighs in favour of public rights over Gummer’s Lane, it does not help determine what those rights might be as routes coloured yellow on the map are today recorded as public vehicular roads, bridleways and footpaths. Although many of the non-vehicular routes coloured yellow are subject to DMMO applications and their status is therefore in question, these cases have not yet been determined and it cannot be assumed that because rights have been alleged they exist in all, or even some cases. The tithe map is therefore consistent with the current recorded status of Gummer’s Lane as a footpath or higher rights.

5.8.15. Stocklinch Magdalen Tithe Map, 1845. SWHT reference: D\D/Rt/M/462. Appendix: 9 Description and interpretation of evidence

5.8.16. The map in uncoloured, apart from some buildings. It is signed by the commissioner but not sealed and therefore, like the Puckington tithe map discussed at 5.8.6 – 5.8.14 above, is a second class map.

5.8.17. The whole of the application route is shown, with the parish boundary indicated on the southern side between A and B. Most linear ways, including the application route, are shown between solid casing lines. A few are indicated by broken casing lines. The application route is unnumbered.

5.8.18. Most unnumbered linear ways on the map are today recorded as public vehicular roads. However, there are some exceptions including;

 Mead Lane (no recorded public rights)  CH 24/12 (bridleway and through-route between two vehicular roads)  CH 24/4 (part, footpath)  A route leading south from the public road to the east of Ilford Bridges (no recorded public rights)

5.8.19. There does not seem to be any attempt to differentiate between public and private roads or different types of public rights of way. This would be completely consistent with the purpose for which the map was produced. Any unnumbered pieces of land, including ways, were unproductive and therefore no tithe was payable against them, but this only confirms that they were not subject to a tithe, not that they were public highways.

5.8.20. Therefore, beyond confirming the physical existence of the application route at the time of the survey, this map is unhelpful in this investigation.

5.9. Sales Documents, The Puckington Estate, 1920. SWHT reference: DD\FO/5/1. Appendix: 10 Description and interpretation of evidence

5.9.1. The application route is shown twice, once on the location plan and

once on an enlarged plan. In each case it is uncoloured. No part of the application route is included in any of the lots for sale although some lots are adjacent to the application route. The plans were based on OS maps of 1904 and 1887.

5.9.2. On the enlarged plan Bradon Lane and the B3168 (both public vehicular roads today) are coloured yellow. Clay Lane (over which no public rights are recorded but which is subject to an undetermined DMMO application) and a short section of linear way running west from the southern end of Clay Lane with no recorded status are uncoloured. Also uncoloured are short stretches of linear way leading from the B3168 to St. Andrew’s Church and another leading to a property now called Peelmead which are today public vehicular roads. As there is no key it is therefore not possible to say with any certainty whether the yellow colouring was intended to indicate public roads, or roads of a particular quality, or some other unknown characteristic.

5.9.3. The Stipulations which form part of the conditions of sale include the following; 3.- The severance of any Lands into distinct Lots shall in no way affect or disturb (unless otherwise stated) the use of way and water or easements of any description which have until now existed. 11.- The Sale is subject to all outgoings, rights-of-way, easements…and any rights, easements or other things provided by the Particulars… No lot shall have any right of way over any other Lot unless expressly mentioned in the Particulars.

5.9.4. Although individual plots (which make up the lots) would have required access via Gummer’s Lane, each lot as a whole could have been accessed via other means. No rights of way or easements are mentioned in the particulars, but the conditions of sale make it clear that the lots are sold subject to any existing rights irrespective of what was stated in the particulars.

5.9.5. This plan is excellent evidence that Gummer’s Lane was not for sale with the other lots in 1920, but does not assist in determining what, if any, public rights exist over the route.

5.10. Ministry of Food National Farm Survey, 1921 – 42. (Extract only) NA reference: MAF 73/36/81. Appendix: 11 Description and interpretation of evidence

5.10.1. The application route is excluded from the agricultural holdings. Some plots of land are also excluded, as is the B3168 and Winsmoor Hill (both public vehicular roads today) and a route leading south from Ilford Bridges over which no public rights are today recorded, until it joins with footpath CH 28/6 further south. There is no outstanding DMMO application for this route.

5.10.2. The purpose of this survey was to survey farms and not to record the status of roads. Therefore, while exclusion from the surrounding plots of land may be indicative of vehicular routes, the map does not provide

evidence as to the public or private status of the roads passing through or adjacent to the landholdings. This conclusion is supported by paragraph 11.14 of the Planning Inspectorate’s Consistency Guidelines which state that ’It is possible that information regarding rights of way might arise from the Survey, although,….it seems unlikely’.

5.11. Ordnance Survey Records:

Explanation of the type of evidence

5.11.1. The Ordnance Survey (OS) are generally accepted as producing an accurate map depiction of what was on the ground at the time of a survey.

5.11.2. OS Maps cannot generally be regarded as evidence of status; however they indicate the physical existence of a route at the date of survey.

OS ‘old series’ map (extract only) c. 1807 Appendix: 12

5.11.3. A linear way is shown between casing lines of equal thickness from point A to C indicating a fenced road which was not a main or turnpike road.

OS County Series 1st Edition Map Sheet No: LXXXI.10 Survey Date: 1886 Published: 1887 Scale: 1:2500 Appendix: 13

5.11.4. The whole application route is shown uncoloured between narrow casing lines of equal thickness and labelled ‘Gummer’s Lane’. At point A and C it is separated from the adjoining sienna coloured routes (both of which are now public vehicular roads) by broken lines. At point A adjacent to the northern casing line within the application route two rectangles are shown labelled ‘Tanks’. The width of the route varies, but at point B abruptly decreases from about 13 metres wide to about 5 meters wide.

5.11.5. R.H. next to the application route refers to ‘Root of Hedge’. The available width will therefore have been less than that shown between the casing lines as an unknown amount will have been taken up by the width of the hedge.

OS County Series 2nd Edition Map Sheet No: LXXXI.10 Survey Date: 1902 Published: 1903

Scale: 1:2500 Appendix: 14

5.11.6. This map is uncoloured, but the route is shown in the same way as on the 1887 plan with no changes of any significance to this investigation.

OS Boundary Remark Book and Map c. 1882/3 (extract only) National Archives reference: OS 26/9476 Appendix: 15

5.11.7. The maps show the application route between A and B, where the parish boundary between Stocklinch and Puckington corresponds with the southern edge of the application route.

OS Boundary Remark Map c. 1885 (extract only) National Archives reference: OS 27/4739. Appendix: 16

5.11.8. The map show the application route between A and C, with the parish boundaries marked in pink.

OS Revised New Edition Timeline reprint (extract only) Sheet No: 193 Date: 1898 - 1900 Scale: 1 inch : 1 mile Appendix: 17

5.11.9. The full length of the claimed route is depicted as an ‘unmetalled road’. The OS used this symbol to record both public and private roads3. A different symbol was used for cross field footpaths but not necessarily for those which ran along fenced linear ways.

OS Object Name Book 1902 (extract only) Appendix: 18

5.11.10. In preparing the second edition County Series map, the Ordnance Survey produced an ‘object name book’ the primary purpose of which was to ensure that the various names recorded on the maps (e.g. names of farms, roads, places etc.) were accurate and correctly spelt. To this end each book contained a list of those names and a description of the feature to which they related. Each of the names in those books was later corroborated by a prominent member of the local community (e.g. a landowner or clergyman).

5.11.11. The description for Gummer’s Lane reads “A public road

3 Hodson, Y. (1999) Popular Maps: The Ordnance Survey Popular Edition One-Inch Map of England and Wales 1919-1926 Charles Close Society for the Study of Ordnance Survey Maps, London, page 132.

extending from the south of Puckington to Winsmoor […]”. The authority for the name and spelling is given as ‘Mr R. […] District Surveyor, Stocklinch, Ilminster’. The District Surveyor would be expected to be an excellent authority for the status of any road.

OS Popular Edition Timeline reprint (extract only) Sheet No: 193 Date: 1919 Scale: 1 inch : 1 mile Appendix: 19.

5.11.12. The full length of the claimed route is shown uncoloured between the narrowest solid casing lines. The key identifies uncoloured narrow spaced casing lines as ‘Minor Roads’. However, it also includes the statement ‘Private Roads are uncoloured’. Therefore, the symbol used for the application route would have been used for both public and private roads.

OS Provisional Edition (extract only, provided by Puckington Parish Council) Sheet No: ST31 Date: 1958 Scale: 1 : 25,000 Appendix: 20

5.11.13. The application route is shown uncoloured between solid narrow casing lines. There is no key.

Description and interpretation of evidence

5.11.14. The OS maps and boundary books confirm the physical existence of the application route but offer no indication of the status the surveyor believed the route to have. This interpretation is supported by case law which states that “If the proper rule applicable to ordnance maps is to be applied, it seems to me that those maps are not indicative of the rights of the parties, they are only indicative of what are the physical qualities of the area which they delineate...”4. In fact, since 1888 OS maps have carried the statement “The representation on this map of a road, track or footpath is no evidence of the existence of a right of way”5.

5.11.15. Many features which were not publicly accessible are mapped and the OS has always placed emphasis on accurately recording physical features and not public or private rights. There is therefore no reason to suppose any way which existed as a significant feature on the ground would have been omitted from a map because there were no public rights over it.

5.11.16. Weighing slightly against public vehicular rights over the

4 Moser v Ambleside Urban District Council (1925) 89 JP 118 at 119, Pollock MR 5 Oliver, R. (2005) Ordnance Survey Maps, a concise guide for historians, The Charles Close Society, London

application route are the tanks shown on the 1887 and 1903 maps. As these would be an obstruction on the highway their continued presence suggests that either this was a private road and it was therefore up to the occupier whether or not they placed such obstructions on it, or that the ground on which the tanks were located fell outside of the highway.

5.11.17. Similarly, the abrupt narrowing of the route at point B would have been an inconvenience to wheeled traffic using the route as a through route. However, it was still wide enough for vehicles to pass single file. Such a narrowing is not impossible on a public road and would be no inconvenience to a public footpath or bridleway.

5.11.18. The Object Name Book uses language which explicitly refers to status and describes the application route as a public road. The authority for the spelling was the District Surveyor, who ought to have known the status of the roads in his area and would be unlikely to use terms such as ‘public road’ and ‘private road’ imprecisely. The primary purpose of this document was to check features were correctly named and spelled, not to record public or private rights, but this is nevertheless good evidence for the application route having the reputation of a public road in 1902.

5.12. 1910 Finance Act

Explanation of the type of evidence

5.12.1. The Finance Act of 1910 provided, among other things, for the levy and collection of a duty on the incremental value of all land in the United Kingdom.

5.12.2. Land was broken into ownership units known as hereditaments and given a number. Land could be excluded from payment of taxes on the grounds that it was a public highway and reductions in value were sometimes made if land was crossed by a public right of way. Finance Act records consist of two sets of documents which are:-

 Working Plans and Valuation Books. Surviving copies of both records may be held at the Local Records Office. Working maps may vary in details of annotation and shading. The Valuation Books generally show records at a preparatory stage of the survey.  The record plans and Field Books (small bound books) are the final record of assessment and contain more detail than the working records. The Record Plans and Field Books are deposited at The National Archives, Kew.

5.12.3. While the Valuation and Field Books were generally kept untouched after 1920, many of the working and record maps remained in use by the Valuation Offices and sometimes information was added after the initial Valuation process.

5.12.4. The 1910 Finance Act material did not become widely available until the mid1980’s. It cannot therefore have been considered during the Definitive map making process and can be considered “new evidence”. This is of particular importance for meeting the requirements of section 53(3) of the Wildlife and Countryside Act 1981 which requires the ‘discovery’ of new evidence (i.e. evidence not considered when the Definitive Map was originally drawn up or last reviewed) before an order to amend the definitive map can be made.

5.12.5. Finance Act Record Plans. National Archives reference numbers: IR128/9/996, IR128/9/993, IR128/9/992. Appendix: 21

Description and interpretation of evidence

5.12.6. The application route is unnumbered and excluded from the surrounding hereditaments. If a route in dispute is external to any numbered hereditament, there is a strong possibility that it was considered a public highway, normally but not necessarily vehicular. However, there may be other reasons to explain its exclusion, including that the route was set out in an enclosure award with multiple private rights over it6.

5.12.7. Other routes which are excluded and are today not recorded as public vehicular roads include:

 Bridleway CH 24/12  Piece Lane over which part of footpath CH 23/21 runs  Brimgove Lane over which part of footpath CH 23/17 runs  Most of the route of footpath CH 28/6.  Mead Lane, which has no recorded public rights

This suggests that at least some fenced routes over which public bridleway or footpath rights ran were excluded.

5.12.8. Exclusion of the application route from the surrounding hereditaments raises the strong possibility that the route was a public highway, usually vehicular. However, the fact that there are some nearby routes which were also excluded and do not appear to have carried public vehicular rights makes it all the more important that this document is considered in light of all the other available evidence.

5.13. Highway Road Records held by the County Council Appendix: 22.

6 DMO Consistency Guidelines – 5th revision July 2013 Section 11 page 4

Explanation of the type of evidence

5.13.1. Over time responsibility for maintenance of highways has passed between various different authorities. On each occasion a map was typically produced showing those highways which were considered publically maintainable.

1929 Handover Map and Schedule

5.13.2. The application route is not coloured on the 1929 handover map, indicating it was not considered to be a road maintainable at public expense in 1929.

1930 Road Records

5.13.3. The application route is not recorded as a road maintainable at public expense on the 1930s road records.

1950 Road Records

5.13.4. The application route is not recorded as a road maintainable at public expense on the 1950s road records.

Description and interpretation of evidence

5.13.5. The road records are very good evidence that the application route was not considered a road maintainable at public expense since 1929. However, it is unsafe to hold that the fact that a road does not appear to have been accepted by the highway authority necessarily suggests that it cannot have been a highway. It is possible that they were simply unaware of the existence of highway rights or that the route was considered to carry public vehicular rights and not be maintainable at the public expense. Furthermore, bridleway and footpath rights were not usually recorded on these maps and so they are no evidence against the existence of lower rights.

5.14. Definitive Map and Statement preparation records Appendix: 23

Explanation of the type of evidence 5.14.1. The Definitive Map and Statement were produced after the National Parks and Access to the Countryside Act 1949 placed a duty on County Councils to survey and map, all public rights of way in their area. The process was undertaken in a number of stages:

 Walking Survey Cards and maps - Parish Councils were required to survey the paths they thought were public paths at that time and mark them on a map. The route was described on a survey card, on the reverse were details of who walked the route and when.

Queries for the whole parish are often noted on a separate card.  Draft Map – Somerset County Council produced the Draft Map from the details shown on the Survey Map. These Maps were agreed by the County Works Committee and the date of this Committee became the ‘relevant date’ for the area. The map was then published for public consultation; amongst other things this included parish and district councils being contacted directly and notices appearing in local newspapers. Any objections received were recorded in a Summary of Objections found in the District file.  Draft Modification Map – This stage in the process was non statutory. SCC produced a map to show any proposed changes as a result of objections to the Draft Map. Any objections received were recorded in a summary of Counter Objections to the Draft Modification map, found in the District file.  Provisional Map – This map incorporates the information from the Draft Maps and the successful results of objections to the Modification Maps. These were put on deposited in the Parishes and District Council offices at this point only the tenant, occupier or landowner could object.  Definitive Map and Statement – Any path shown is conclusive evidence of the existence and status of a public right of way until proved otherwise. The Definitive Map is without prejudice to other or higher rights.

Survey Card, 1950 5.14.2. The survey card for Stocklinch number 14 describes the path as starting at “Winsmoor Hill & runs across to main road at Puckington. It is called Gummers Lane Open to main roads at either end. Is wide enough for cart road but has not been cleared for a long time. The Council men should keep this cleared. As a useful road for the farmers to […]. Was much used once by farmers for their carts Marked Gummers Lane on map.” Under ‘Kind of path’ F.P. is underlined twice and C.R.F.7 is underlined once.

Survey Map 5.14.3. The application route is not coloured on the Puckington survey map, but the whole route is coloured red and labelled ‘14’ on the Stocklinch survey map.

Draft Map 5.14.4. On the Chard RDC map Gummer’s Lane was shown with a dashed green line (for a RUPP, Road Used mainly as a Public Path) which was then overcoloured with a purple line (for a footpath) and labelled 24/14. It is also labelled ‘Langport RD’. The route is not marked on the Langport draft map.

7 The classification of CRF was given to those routes considered to be public carriage or cart roads or green un-metalled lanes which were used mainly as footpaths. The term originates from an advisory booklet produced by the Commons & Open Spaces Society and sent to Parish Councils to assist them in preparing the Survey material. Despite the booklet being approved by the Government the term CRF has never carried any legal significance and, consequently, is no longer used.

Summary of Objections to the Draft map 5.14.5. No record of any objections to the draft map relating to this route were found.

Draft Modification Map (Not included in appendix) 5.14.6. The application route is not shown coloured on the Chard or Langport draft modification maps. This is consistent with no objections having been received to the draft map.

Summary of Counter Objections to the Draft Modification Map 5.14.7. No record of any counter objections to the draft modification map was found.

Provisional Map 5.14.8. On the Chard provisional map the whole application route is shown in purple (for a footpath) labelled 24/14. It is also labelled ‘In Langport RD’.

5.14.9. On the Langport provisional map between point A and B the route is coloured purple (for a footpath) and labelled 24/5.

Definitive Map 5.14.10. The Definitive Map for the former Chard RDC shows the whole application route coloured purple (for a footpath) and labelled 24/14 twice and 24/5 once. It is also labelled ‘in Langport RD’. A green broken line can be seen under the solid purple line.

5.14.11. The Definitive Map for the former Langport RDC shows the application route coloured purple between A and B and labelled 24.5.

Definitive Statement 5.14.12. The Definitive statement for CH 24/14 reads “THE PATH IS A footpath [ C.R.F. has been crossed out and footpath added by hand] IT STARTS AT The Langport – Ilminster road at the south western end of Puckington village and runs east south eastwards along Gummer’s Lane (following the line of the rural district boundary) to the County road at Winsmoor Hill just north of Stocklinch. The first section of this path is in Langport R.D.”

5.14.13. The definitive statement for CH 24/5 reads “THE PATH IS A footpath IT STARTS AT the Chard R.D. boundary as a continuation of 24/14 and runs in a west north westerly direction along Gunner’s Lane to the Puckington county road.” (sic).

Description and interpretation of evidence 5.14.14. Between A and B the application route is in the parish of Puckington and was therefore in the former Langport Rural District Council area. From B to C the application route is in Stocklinch, part of the former

Chard Rural District Council. From A to B the boundary line between the two parishes and therefore the two districts corresponds with the southern casing line of Gummer’s Lane. This seems to have caused some minor confusion and duplication.

5.14.15. The underlining of C.R.F as well as F.P. on the parish survey card suggests there may have been some uncertainty about the status of the path being recorded, although the reference to use by farmers with their carts may indicate that the vehicular use was private – by those using the route to access land – rather than the general public. It raises the possibility that the route had the reputation of being a public vehicular route at some point prior to the parish survey, but because of the level of detail and language used it is difficult to place much weight on this.

5.14.16. Throughout the process of preparing the DMS there seems to have been some confusion regarding the status of Gummer’s Lane. The parish survey card suggests a foot path or a CRF (Cart Road used as a Footpath) as the type of highway and the Draft Map has green broken lines indicating a RUPP under the solid purple line indicating a footpath, as does the Definitive Map. On the Definitive Statement, CRF has been crossed out and replaced with ‘footpath’. However, there is no record of any objections at any stage of the preparation process and no record has been found of any changes to the DMS for this route. Ultimately, based on the evidence available at the time, the process concluded that the route was a footpath. The most likely explanation for the changes are that they were momentary mistakes, possibly stemming from the original parish survey card which raised the possibility of the route being a CRF, and then corrected at the time they happened

5.14.17. The DMS is definitive of what it shows, but not of what it omits and is therefore not evidence against the existence of unrecorded higher rights over the application route. It is, however, conclusive evidence that public footpath rights exist over the route.

5.15. District file for South Somerset held by SCC containing information relating to Rights of Way. Appendix: 24

Description and interpretation of evidence

5.15.1. An undated list filed with material from the 1950s titled “Chard Rural District C.R.F.s now shown as F.Ps” includes 24/14. No details are provided. This suggests that at some stage in the preparation of the DMS CH 24/14 was shown as a C.R.F. and was then changed to a footpath. As the reason for the change is unknown it is difficult to place any weight on this evidence. In the absence of evidence to the contrary it must be assumed that the DMS preparation process was carried out properly. However, this again raises the possibility that the application route had the reputation of being used by vehicles.

5.16. Parish file for Puckington held by SCC containing information relating to Rights of Way. Appendix: 25

Description and interpretation of evidence

5.16.1. The file contained documents dating from 1986 and 1987 relating to the Ilminster Local Plan consisting of:

– An annotated map - A summary of the proposed improvements to be made in relation to Gummer's Lane dated 05/12/1986 – A letter from South Somerset District Council (SSDC) to The County Surveyor dated 05/12/1986 – A memorandum from the County Solicitor to the County Surveyor regarding the plans, dated 08/01/1987 – A reply to SSDC from Somerset County Council dated 14/01/1987.

5.16.2. Gummer’s Lane is described by SSDC in their letter of 05/12/1986 as a well-used footpath, consisting in part of semi-woodland. The proposed improvements to Gummer’s lane included putting a fence and gate at point A, removal of rubbish, planting of flowers, grass and trees, hedgerow management and bi-annual cutting of the pathway. Discouraging vehicle access is also mentioned.

5.16.3. SCC advised that they were not the owners of the subsoil, and that SSDC should find out whether there were private vehicular rights over the route.

5.16.4. This is good evidence that in 1986/7 the application route only had a reputation as a public footpath with SSDC and SCC. However this was probably because the DMS only recorded public footpath rights.

5.17. Aerial photograph 1946. Appendix: 26

5.17.1. From point A to B there is a clearly visible feature on the ground between a northern and southern boundary (hedge or hedge and bank) corresponding with the application route. The surface appears to be grassed, with some larger vegetation in places possibly encroaching from the hedge line.

5.17.2. From point B to C the route is much less clearly defined and although a single boundary line is visible, it is not possible to discern a clear linear way. However, this may be because the orientation of the route changes at about this point and the shadows are cast in line with the application route, rather than across it, and because there are mature trees adjacent to part of the route obscuring it.

5.17.3. Whilst this photograph is a useful record of the physical condition of the route in 1946 it does not assist in determining what, if any, public rights exist over it.

5.18. Chard Rural District Council Highways Committee Minutes. SWHT reference: D\R\ch/3/3/3. Appendix: 27

5.18.1. The minutes of 24th September 1937 refer to the reinstatement of water trenches at Gummer’s Lane. Although a third party was to pay for the work, it was determined that it should be done and charged to the County Roads account.

5.18.2. Whilst it is possible Gummer’s Lane was being monitored and repaired as a footpath or bridleway, the use of the ‘County Roads’ account seems more likely for a route considered to have vehicular rights. Minutes relating to footpaths and bridleways were often dealt with in these minutes under a more specific heading such as ‘rights of way’, but again, this does not preclude them being discussed under other headings (such as ‘Reinstatement of Water Trenches’ as here) where it was appropriate.

5.18.3. Without additional detail this minute can be given little weight, but it does appear to be more in favour of public vehicular rights than lower rights.

5.19. Other sources of Primary Documentary Evidence which either did not cover the relevant area or did show the claimed route but do not assist in determining the status include:

Particulars of Puckington Lands, undated (D/P/puc/23/2) Map of the Ilchester almshouse estate in Stocklinch Magdalen and Stocklinch Ottersay, 1897 (D\B\il/3/13) Plan of the Puckington Estate, Somerset, 1920 (DD\FO/5/1) Maps of glebe lands exchanged between the incumbent and Lord Portman, 1852. (DD\FO/1/2/3 and DD\FO/1/2/4)

6. User Evidence

6.1. Puckington Parish Council submitted two user evidence forms, and commented that one of their older residents thought that people may have ridden the route when they were younger, but photographic evidence of this could not be found.

6.2. User 1 (U1) had used the route daily, on foot and on bicycle, for five years. No dates were specified so it is assumed the 5 years are those preceding the signing of the User Evidence Form (UEF) on 29/08/2018.

6.3. User 2 (U2) had used the route between 2010 and 2018. They had used the route on foot, by bicycle, with vehicles (to access land in their ownership) and “ridden a few times”. They refer to vehicular access at each end.

6.4. Some of U2’s use may have been by virtue of a private right to reach their land and is therefore not ‘as of right’.

6.5. As there is not evidence of 20 years use of the route there is insufficient evidence to raise the presumption of dedication under Section 31 of the Highways Act 1980.

7. Landowner Evidence

7.1. This section of the report includes information provided by landowners or adjacent landowners.

Landowner and response Landowner A

Returned the plan with the land they owned marked. Have no historical evidence or knowledge of the footpath ever being a bridleway. Raised the concern that if the route became a bridleway it will become wider and be more vulnerable to fly tipping, thus having an adverse effect on the land adjacent to the application route owned by landowner A.

Landowner B

Returned the plan with the land they owned marked. Raised concerns about the application route becoming a bridleway on safety grounds as the footpath is too narrow to be a bridleway, is inclined to flood, and would need more maintenance as the trees would need to be regularly pruned.

Landowner C

Returned the plan with the land they owned marked, but had no comments to

make.

Landowner D

Returned the plan with the land they owned marked. Presumed the path was already a bridleway, but have no evidence to support this.

7.2. Comments on the Landowner Evidence

7.3. Whilst the concerns raised regarding the need for maintenance, potential increased risk of fly tipping and the effect on wildlife are perfectly understandable concerns, they cannot be considered as part of this investigation.

7.4. If rights of way existed at some point in the past then, unless they have been legally stopped up, they will still exist today. Therefore the fact that the route is unsuitable for particular types of traffic today is not necessarily of any relevance to the current investigation. What can be relevant is the historic condition and character of the route. For example, if historic documents have consistently shown a route to be too narrow to take vehicles then this might be considered evidence against it being a public vehicular road. The relevance of the historic character of the application route is discussed below.

7.5. The belief of an adjacent landowner that the route is a bridleway is supportive of bridleway rights, but it can be given only limited weight, as can the belief of other landowners that it is not.

8. Consultations and other submissions

8.1. Consultations regarding the claimed route were sent out to all landowners or adjacent landowners and relevant local and national user group organisations on 26/07/2018 or 08/08/2018. The table below shows who was consulted and gives brief details of replies that were received. Responses received from individuals not representing any organisation have been called ‘Respondent 1’ etc.

Consultee and response South Somerset Area Highways Office Had no information of assistance.

Ramblers' Association Area Secretary Had no information of assistance.

South Somerset Ramblers’ Association (Western area) “I have no relevant knowledge about this route although I have walked it many times”

Puckington Parish Council

Response to the initial application in 2013: They believe the route to be physically unsuitable for use by horses, cyclists and traffic.

Response to the consultation in 2018: Provided the following documents; Extract of OS map sheet ST31 published in 1958 Extract from Somerset Archaeology and Natural History, (1998, 36) showing a plan of a survey of the manor of Puckington carried out in 1525 Two user evidence forms Extract of OS map sheet LXXXI.10, published 1887

Stocklinch Parish Council

Referred to an OS map of 1904 which shows Gummer’s Lane as a foot path on the base mapping.

Minutes are only held from 1985 onwards. No relevant information was found.

Stocklinch Parish Council also provided a summary of historic documents relating to Gummer’s Lane provided to them by a third party. All the documents listed are either discussed in this report, or did not contain information regarding Gummer’s Lane.

Respondent 1

Respondent 1 uses the route regularly. They did not believe Gummer’s Lane was physically suitable as a bridleway. It has not been used as anything other than a footpath for a long time, is narrow, slopes towards a deep ditch, functions as a stream for much of the year which will be made worse by increased traffic, vegetation encroachment is a problem, the work required to make is useable as a bridleway would involve felling trees and diverting a stream, which would be a considerable expense. Respondent 1 also raised concerns about wildlife.

Respondent 1 suggested considering designation of an alternative route as a bridleway which would be more suitable. They also recognised the hazards of traffic for horse riders and others and the desire for bridleways.

8.2. Comments on the consultation responses

8.3. The two OS maps submitted by Puckington Parish Council are discussed with the other OS maps at 5.11. The black and white plan of the 1525 survey appears to be a modern hand drawn plan derived from the survey with the names of tenants typed in. It is impossible to tell from the plan how much detail was copied from the original, or how abstracted or simplified the plan is. There is no key and nothing appears to indicate the status of the linear ways shown. ‘Gummers Lane’ is typed next to the application route but it is unknown whether this was copied from the original survey or was a

completely modern insertion. This document is therefore of little, if any weight and is not discussed in detail with the other documentary evidence. The user evidence forms are discussed in section 6.

8.4. The 1904 OS map referred to by Stocklinch Parish Council has not been investigated further as a number of OS maps of a similar date and probably based on the same survey are discussed at 5.11.

8.5. This investigation is to determine whether or not higher rights already exist over Gummer’s Lane. It’s physical suitability as a route for horses or vehicles today, the cost of maintaining the route as a bridleway, and concerns about wildlife, whilst perfectly understandable, cannot be considered. Similarly, whether or not a nearby route is dedicated as a bridleway will not affect the status which Gummer’s Lane already has. The potential availability of a new, nearby route is therefore not a consideration in this investigation.

8.6. No response was received from the following organisations; Natural England British Horse Society Auto Cycle Union All Wheels Drive Club Open Spaces Society The Ramblers’ Association British Driving Society Cycling UK Club Zulu Train Riders Fellowship Byways and Bridleways Trust South Somerset District Council Local Member

8.7. A draft of this report was circulated to interested parties, including landowners / adjacent landowners, parish council’s and local and national user groups, on 01/11/2018. The following response was received:

“Having read your consultation report on the potential upgrading of the status of Gummers Lane, I can only say that I find your conclusions to be on very shaky ground.

There appears to be very little evidence that the route, except for the portions giving field access from either end, was anything other than a footpath.

The evidence that you present is mostly unconvincing and appears to be based on data from map makers who would have had little interest in accurate documentation of rights of way, or in great accuracy.

The actual evidence on the ground is that starting from each parish there is access for a few hundred metres into local fields (now, the access is mostly blocked up as unnecessary and because of the difficulty of climbing a steep bank).

Between these points a footpath exists. What would be the point of taking a horse or cart through the muddy narrow sloping stretch in between when there are far better routes into most of these fields through Peelmead, and elsewhere? As for traffic between the two parishes, there are easier flatter routes which would not have been difficult to use.

I think that is easier to conclude from the evidence that Gummers Lane is a footpath rather than that higher rights exist.”

8.8. Comments on the draft report consultation response

8.9. It is considered that the points raised by the respondent have been fully considered in the report.

9. Discussion of the evidence

9.1. Insufficient evidence of use was submitted to raise the presumption of dedication under Section 31 of the Highways Act 1980.

9.2. The earliest evidence for the physical existence of Gummer’s Lane which has been found is the Survey of Stocklinch Magdalen of c. 1792 (discussed at 5.3), with a modern copy of a 1525 survey suggesting even earlier evidence might exist. These documents, and the majority of the maps which depict Gummer’s Lane, confirm the routes physical existence but do not indicate the public or private status of the route. Therefore, they are of little assistance in this investigation as they would be compatible with a public vehicular road, or a private road with or without lower public rights running over it.

9.3. No document has been found which explicitly describes the route as private or as having no public rights running over it (for example, it is not labelled as an ‘occupation’ road on any document). Gummer’s Lane is recorded as two public footpaths on the DMS and this is conclusive evidence of the existence of public footpath rights over the application route, but is not evidence against the existence of higher rights.

9.4. Documents which provide implied evidence against higher rights are quite weak.

9.5. A number of maps record physical features which would be inconvenient to public vehicular rights, and to a lesser extent to use of the route as a public bridleway. These include the tanks, pond and possible fence or culvert at point A and the sudden narrowing of the route at point B. These features would not, however, have prevented the use of the route, merely made it less desirable. The tanks, particularly, may simply have been located on land which did not form part of any highway.

9.6. The documents relating to the Ilminster Local Plan (see 5.16) show that in 1986 and 1987 Gummer’s Lane had the reputation of a footpath only with

SCC and South Somerset District Council, but this is hardly surprising given that it is recorded as a footpath on the DMS.

9.7. The evidence which supports higher public rights over the application route is stronger.

9.8. The 1881 plan and section relating to a pipe in Puckington, whilst not explicit, do treat Gummer’s Lane in the same way as the public roads they depict and in contrast labels a route with no recorded public rights as an occupation road, implying (although not explicitly stating) Gummer’s Lane was considered to be a public road by the surveyor. This conclusion is strengthened because it was the District Surveyor for the Ilminster District Highway Board who produced the plan and section.

9.9. The OS Object Name Book describes Gummer’s Lane as a public road. Whilst the primary purpose of this document was not to describe or record public rights of way, it nevertheless uses language which is explicit of status. The District Surveyor was the authority for the mode of spelling, and he would be expected to know the status of the roads in his area and not to have used the term ‘public road’ carelessly or imprecisely.

9.10. Gummer’s Lane is excluded from the surrounding hereditaments on the 1910 Finance Act record plans. Where a route is excluded from the surrounding hereditaments there is a strong possibility that it was considered a public highway, normally but not necessarily vehicular.8 There are other plausible reasons why a route might be excluded, for example, if it was laid out in an enclosure award as being a private road for the use of multiple persons but not the general public. However, although Gummer’s Lane would have provided access to multiple plots of land no enclosure award has been found. Furthermore, no other document offers a likely alternative reason for exclusion. There are some exceptions where routes which are not today recorded as public vehicular roads are also excluded from the surrounding hereditaments (see 5.12). This is particularly the case where a lower public right passes over a defined and enclosed linear way, and exclusion would therefore potentially be consistent with the current recorded status of footpath. However, when considered with the description in the object name book of Gummer’s Lane as a public road and the 1881 pipe plan and section, the most likely reason for exclusion is that the route was considered to be a public road. As the Finance Act documents would not have been available at the time the DMS was being prepared, they also constitute the discovery of new evidence.

9.11. The 1937 Highway Board minutes are strong evidence in favour of public rights over Gummer’s Lane (as otherwise the Highway Board would be unlikely to concern itself with the route at all). Whilst they can be given only a little weight (it is possible the route was being maintained as a footpath or bridleway, although public vehicular rights seem more likely in the context),

8 DMO Consistency Guidelines – 5th revision July 2013 Section 11 page 4

they do provide some limited further support for the existence of public vehicular rights.

9.12. Finally, documents related to the preparation of the DMS refer, either in writing or cartographically, to both a CRF and RUPP in relation to Gummer’s Lane (see 5.14 and 5.15.1). It must be assumed (in the absence of evidence to the contrary) that the DMS preparation process was carried out properly. However, there does seem to have been some consideration of vehicular rights of some sort over Gummer’s Lane in the 1950s, even if the eventual decision based on the evidence available at the time was that the route only carried public footpath rights.

9.13. Although the above evidence tends towards public vehicular rights over Gummer’s Lane in the past there is another very significant piece of evidence, which is the physical characteristics of the lane itself. Apart from the short stretches at either end, vehicular access would be impossible at present and access with a horse would be seriously hampered. A mature tree (see photograph at appendix 2) strongly suggests vehicular use of Gummer’s Lane as a through route has not occurred in the last 60 – 80 years and descriptions of the route in 1950 (the parish survey card, 5.14.2) suggest it was in a similar condition at that time and for some time before. This is good evidence that public vehicular rights have not been exercised since the middle of the 20th century (possibly because better maintained alternatives were available), but not that they did not come into existence before this. If the route was at any time in the past a public vehicular road and has not been legally stopped-up, no amount of non-user will have removed those rights.

9.14. The route is bounded on either side by a ditch and / or bank. Although they may have been subject to erosion or infilling over the years, the available width between them is unlikely to have been significantly greater. Measuring the exact width is difficult because of the vegetation but stretches are around 3.5 metres wide, and at some points as little as 2.6 metres between the base of the bank and the edge of the ditch. OS maps show a wider route, but the northern boundary on the 25 inch maps represent the root of the hedge, and the available width would therefore have been less than that shown between the casing lines. The width would have meant that any vehicular use must have been limited, but the route would have been able to take single file traffic with the occasional passing space not unlike many public roads today.

10. Summary and Conclusions

10.1. Much of the evidence is compatible with either a public vehicular road, or a private road with or without lower public rights over it.

10.2. There is no explicit evidence against higher public rights over Gummer’s Lane.

10.3. The evidence which indirectly suggests Gummer’s Lane does not carry higher public rights is weak.

10.4. Although no individual piece of evidence is sufficient by itself, when considered together the documentary evidence tends towards public vehicular rights. The physical characteristics of the route which are unlikely to have altered significantly over time (unlike the vegetation, which could alter very quickly) show that vehicular use of Gummer’s Lane as a through route must have been of a limited nature, but does not preclude the existence of vehicular rights.

10.5. The NERC Act 2006, Section 66 and 67, extinguished rights for mechanically propelled vehicles (MPV’s) over any routes that were recorded on the Definitive Map as a footpath, bridleway or restricted byway. Therefore, Gummer’s Lane no longer carries rights for mechanically propelled vehicles. Rights for non-mechanically propelled vehicles (such as a horse and cart) were not extinguished by the NERC Act 2006.

10.6. On the balance of probabilities, therefore, Gummer’s Lane is a restricted byway.

11. Recommendation

I therefore recommend that………

i. an Order be made, the effect of which would be to add to the Definitive Map and Statement a restricted byway between points A, B and C on appendix 1. ii. if there are no unwithdrawn objections to such an order it be confirmed iii. if objections are maintained to such an order, it will be submitted to the Secretary of State for Environment, Food and Rural Affairs

12. List of Appendices

Please note that the document reproductions in the appendices are not to scale. The report writer has added the red letters A, B and C present on Appendix 1 to maps to help the reader identify the sections of the route the document is depicting. Red circles, stars, arrows and labels have also been added to some appendices to indicate the area of the claim where lettering is not appropriate.

1. Plan showing claimed route 2. Photographs of the application route 3. Survey of Stocklinch Magdalen, c. 1792 4. Greenwood’s Map, 1822 5. Map of Stocklinch Magdalen, Stocklinch Ottersey, 1834 6. Drainage – correspondence and plans, 1881 7. Bartholomew’s Map, 1911 and 1927 8. Puckington Tithe Map, 1837 9. Stocklinch Magdalen Tithe Map, 1845 10. Sales Documents, The Puckington Estate, 1920 11. Ministry of Food National Farm Survey, 1921 – 42 12. OS ‘old series’ map c. 1807 13. OS County Series 1st Edition Map, 1887 14. OS County Series 2nd Edition Map, 1903 15. OS Boundary Remark Book and Map c. 1882/3 16. OS Boundary Remark Map c. 1885 17. OS Revised New Edition Timeline reprint, 1898 – 1900 18. OS Object Name Book 1902 19. OS Popular Edition Timeline reprint, 1919 20. OS Provisional Edition, 1958 21. Finance Act Record Plans, 1910 22. Highway Road Records held by the County Council 23. Definitive Map and Statement preparation records 24. District file for South Somerset held by SCC 25. Parish file for Puckington held by SCC 26. Aerial photograph 1946 27. Chard Rural District Council Highways Committee Minutes