COMMONS AND RIGHTS OF WAY COMMITTEE 20 SEPTEMBER 2007

AGENDA ITEM:

APPLICATION FOR A MODIFICATION ORDER TO RECLASSIFY PUBLIC FOOTPATH ZNA 58 TO A BYWAY OPEN TO ALL TRAFFIC (BOAT) THE LADDER, TOWN OF NAILSWORTH

JOINT REPORT OF THE GROUP DIRECTOR: ENVIRONMENT AND THE DIRECTOR OF LAW AND ADMINISTRATION

1. PURPOSE OF REPORT

To consider the following application:

Nature of Application: Re-classify public footpath to BOAT Parish: Nailsworth Name of Applicant: Mr David Rice Date of Application: 17 July 2006

2. RECOMMENDATION

That public footpath ZNA 58 be reclassified as a byway open to all traffic because of section 67(2)(e) of the 2006 Natural Environment and Rural Communities Act

3. RESOURCE IMPLICATIONS

Average staff cost in taking an application to the Panel- £2,000. Cost of advertising Order in the local press, which has to be done twice, varies between £75 - £300 per notice. In addition, the County Council is responsible for meeting the costs of any Public Inquiry associated with the application. If the application were successful, the path would become maintainable at the public expense.

4. SUSTAINABILITY IMPLICATIONS

No sustainability implications have been identified.

5. STATUTORY AUTHORITY

Section 53 of the Wildlife and Countryside Act 1981 imposes a duty on the County Council, as surveying authority, to keep the Definitive Map and Statement under continuous review and to modify it in consequence of the occurrence of an ‘event’ specified in sub section [3]. Any person may make an application to the authority for a Definitive Map Modification Order on the

1 occurrence of an ‘event’ under section 53 [3] [b] or [c]. The County Council is obliged to determine any such application that satisfies the required submission criteria in accordance with schedule 14 of the Act.

6. DEPARTMENTAL CONTACT

Andrew Houldey, Modification Orders Officer, Definitive Map Unit, Public Rights of Way Section, Environment Department. Telephone Gloucester (01452) 425522 E-mail: andrew.houldey@gloucestershire.gov.uk

Janet Smith, Senior Lawyer, County Legal Services. Telephone Gloucester (01452) 425095 E-mail: [email protected]

REPORT

7. DESCRIPTION OF PATH

7.1 A location map at scale 1:10,000 is attached (numbered ….A) showing the position of the claimed path at Nailsworth. The path is approximately ¼ mile east north-east of the town centre. The area of interest lies within Ordnance Survey Grid Square ST 8599.

7.2 A large-scale map of the area at 1: 2,500 scale is attached (numbered ….B). This map shows the footpath ZNA 58 by a broken black line with alternate Vs between points A, B and C.

7.3 The section of public footpath ZNA 58 between A, B and C is dually recorded. It is shown on the Definitive Map of Public Rights of Way (…..C) as a public footpath and also on the County Council’s list of publicly maintainable highways (also known as the List of Streets) as a Class 6 highway, numbered 61223 and named The Ladder. A copy of the map accompanying the list of streets can be seen at ….D.

7.4 The route runs steeply up Nailsworth Hill from point A to point B and then to point C. It joins a road known as the W, so called as its sharply angled turns resemble the shape of the letter W, at points A, and then B and again at point C. The W replaced the Ladder as the main route from Nailsworth to Minchinhampton Common in 1781 under a 1780 Turnpike Act.

7.5 On historical and recent Ordnance Survey maps The Ladder is shown as splayed at point A with one part of the way facing south-west towards Nailsworth and the other part facing south-east towards the road known as the W. The eastern splay is tarmaced and forms part of the tarmaced private road to The Hollies. The western splay is overgrown and obstructed by a building belonging to Transco Gas Installation. The road to The Hollies runs over a cattle grid at this point. On the adjoining gate are two signs, which read “Hollies Hill” and “Private Road No Through Way”. When the path was inspected on 6

2 September 2007 there was a notice attached to the opposite gatepost which related to an application concerning ‘Grasslands’, Hollies Hill, to the Lands Tribunal to modify a restrictive covenant.

7.6 The claimed route runs steeply up from point A, at some points reaching a gradient of 1 in 3. There is no sign at point A. The way has a rough stone surface and over the first section varies in width between 2.1 and 2.2 metres and is bounded by two stone walls. Halfway between point A and B the path opens out to around 2.7 metres and there is a pronounced stone ledge or ridge across the path. At this point a bench has been erected. The plaque reads: “In fond memory of Clifford Hooper Founder and Lifelong Member of Stroud & District Motor Club Rested Here, His Favourite Trials Hill July 2005”.

7.7 The track continues to climb towards point B. Close examination of the surface reveals that in addition to the stone surface there are traces of tarmac. Between the bench and point B the path is approximately 2.2 metres in width and is bounded on the northern side by a stone wall that separates The Ladder from the garden of the property known as Hollow Stones. At point B, The Ladder joins the middle part of the W and also a private road that forms the entrance to Hollow Stones, which is separated from The Ladder by a cattle grid flanked by two stone pillars.

7.8 Close examination shows that four concrete pillars have been erected across the claimed way at point B, at the start of the upper section of the Ladder, between the middle and the right hand upright of the W. The two middle pillars are placed close together, and metal tubular bars connect these with the two outer pillars, forming in effect a squeeze stile between the two middle pillars. It is uncertain as to who erected these pillars, but it is believed (but not confirmed) that they were put in place by the National Trust. In any event they represent an illegal obstruction of the highway. Users have taken a slight detour around these pillars, and the path continues as an unbounded track, approximately 2.1 metres in width.

7.9 The section of path between points B and C has a stone surface and varies in width between 2.0 and 2.1 metres in width. It is bounded along its whole northern side by a stone wall and by a stone wall on the southern side which bounds the property known as Little Cottage. On the northern side, there is an entrance to a farmyard and field, which is separated from the Ladder by two wooden gates which were padlocked at the time of inspection. To the north of Little Cottage there is another track, which forms the third side of a triangle between the Ladder and the W. This track and the remainder of the Ladder north to point C have been surfaced with gravel, and are presumably used to give access to Little Cottage and the farmyard. Little Cottage has a further entrance off the W.

7.10 At point C the Ladder joins the right hand upright of the W. At the point where the claimed route joins the W, the first few yards have been tarmaced. There is an entrance off the splay of the Ladder to the dwelling house known as Orchard Cottage. There are no signs indicating the route or the status of the Ladder at either point B or point C.

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7.11 No users of the path were observed when the path was inspected on 3 July 2007 or 6 September 2007. There were clear vehicular tracks over the path on both visits and signs of use by horses on the second inspection.

7.12 The path is approximately 165 metres in length between points A and B and approximately 160 metres in length between points B and C.

8. BACKGROUND

8.1 The application concerns the path known as The Ladder, which is shown on the Definitive Map of public rights of way as public footpath ZNA 58 and on the list of maintainable highways as a class 6 highway, numbered 61223. The applicant has applied to have the way reclassified from public footpath to byway open to all traffic.

8.2 The report considers whether: (a) there is evidence that the way was created by pre-1930 use by mechanically propelled vehicles, and hence should be recorded on the Definitive Map as a byway open to all traffic (NERC exemption 67(1)(e) has been met) (b) the main lawful use between 2001 and 2006 was by mechanically propelled vehicles (NERC exemption 67(1)(a) applies), in which case the list of maintainable highways would be annotated to record that motor vehicular rights have been preserved but the Definitive Map and Statement cannot be altered (c) any of the other exemptions to extinguishment under section 67(2) of NERC apply (d) the way carries historic carriageway (i.e. vehicular) rights. If this can be established, but none of the exemptions to extinguishment of public motor vehicular rights under section 67(2) of NERC have been met, then an order would be made for a restricted byway. A restricted byway carries a public right to walk, ride a horse, drive a horse drawn vehicle or ride a bicycle but not to drive a mechanically propelled vehicle. A private right of way for motor vehicles is retained under section 67(5) of NERC over ways carrying public vehicular rights, where the public motor vehicular rights were extinguished under Section 67(1) of NERC.

8.3 Part 6 of the 2006 Natural Environment and Rural Communities (NERC) Act sought to limit access by motorised vehicles to the Rights of Way network in England and Wales by extinguishing (with some exceptions) unrecorded motor vehicular rights and by ensuring that in the future a long period of use by mechanically propelled vehicles cannot give rise to public motor vehicular rights.

8.4 Claims for public vehicular rights based on historical evidence of carriageway status will legally only give rise to Restricted Byway status (rather than a Byway Open to All Traffic, or BOAT). Restricted Byways allow public use by horse drawn vehicles or bicycles but not by motor vehicles. Use of a way by motor

4 vehicles which is solely post-1930 will not give rise to vehicular (or lesser) rights.

8.5 Section 66(1) of the NERC Act deals with the creation of new public rights of way and makes it clear that NO public right of way for mechanically propelled vehicles (MPVs) is to be created after 2nd May 2006 unless: (a) it was created by an Act of Parliament or some document on terms expressly providing for it to be a right of way for such vehicles. This could include e.g. a Section 38 agreement (providing the wording was clear) or other express dedication, or; (b) it was created by actual construction as a way for MPVs using statutory powers. An example would be Gloucester South West Bypass using Section 24 Highways Act 1980.

8.6 Section 66(2) states that any use by MPVs after 2nd May 2006 is to be ignored for the purpose of creation of any other public right of way. This is to overturn the situation caused by the Bakewell ruling, whereby use of a way by motor vehicles could result in the establishment of public mechanically propelled vehicle rights.

8.7 Section 67(1) of the NERC Act extinguishes public rights for mechanically propelled vehicles over ways not shown in a definitive map or statement or shown in a definitive map and statement only as a footpath, bridleway or restricted byway, but this is subject to a number of exceptions that are listed in subsections (2) to (8). Subsection 2 applies to existing public rights of way; the exemptions to extinguishment listed in 67(2) are listed in full in the following paragraph, with an interpretation in italics within square brackets following.

8.8 “Subsection (1) does not apply to an existing public right of way if- (a) it is over a way whose main lawful use by the public during the period of 5 years ending with commencement was use for mechanically propelled vehicles [ways that have been lawfully used more by motor vehicles than by other users e.g. walkers, cyclists, horse riders and horse drawn vehicles, over the period 2001-2006]. (b) immediately before commencement it was not shown in a definitive map and statement but was shown in a list required to be kept under section 36(6) of the Highways Act 1980 (c.66) (list of highways maintainable at public expense), [ways that are recorded on the list of streets but are not recorded on the Definitive Map of Public Rights of Way. Thus there is a presumption that motor vehicular rights have been extinguished over dually recorded routes (ways that are on both sets of records) unless one of the other exceptions at section 67(2) applies. Public motor vehicular rights have not been extinguished over byways open to all traffic (BOATs)]. (c) it was created (by an enactment or instrument or otherwise) on terms that expressly provide for it to be a right of way for mechanically propelled vehicles [for example by a Section 38 agreement, provided that the wording was clear, or other expressed dedication] . (d) it was created by the construction, in exercise of powers conferred by virtue of any enactment, of a road intended to be used by such vehicles [for

5 example Gloucester South West Bypass using Section 24 Highways Act 1980], or (e) it was created by virtue of use by such vehicles during a period ending before 1st December 1930” [there is evidence of use by motor vehicle prior to 1930, when it first became an offence to drive off-road]

8.9 The guidance notes to the act issued by Defra (paragraphs 21 and 22 of version 4, November 2006) clarify that the burden of proving that mechanically propelled vehicular rights have not been extinguished is on the user. The user would have to establish both that the way carried vehicular rights as of 2 May 2006 and secondly that those rights had not been extinguished because one of the exceptions listed at section 67(2) applies.

8.10 A private right of way for motor vehicles is retained under section 67(5) of NERC over ways carrying public vehicular rights, where the public motor vehicular rights were extinguished under Section 67(1) of NERC. These public vehicular rights may be unrecorded, and they needn’t necessarily have been exercised for this provision to apply, provided that there was a reasonable need for access.

8.11 Section 70 of NERC gives persons with an interest in the land immunity from prosecution if they are driving a motor vehicle over a former Road Used as a Public Path or RUPP (now a Restricted Byway), provided that the way was in use for accessing land prior to 2 May 2006. This provision does not apply in this case as the route was not a road used as a public path as of 2 May 2006.

8.12 The Definitive Map of Public Rights of Way was compiled under the provisions of the 1949 National Parks and Access to the Countryside Act. The Draft Map for Nailsworth Urban District Council, which includes the town of Nailsworth, was completed on 10 April 1953, the Modified Draft on 2 November 1972, the Provisional Map on 1 March 1973 and the Definitive Map on 7 June 1973.

8.13 The public footpath ZNA 58 is also shown on the list of streets kept under section 36(6) of the Highways Act 1980. The 1980 Act requires every highway authority to make, and keep up to date, a list of streets within its area which are highways maintainable at public expenses. ‘Street’ is defined in section 329 of the 1980 Act as including ‘any highway, and any road, lane, footpath, square, court, alley, or passage’. The list of maintainable highways records the standard of maintenance and is not evidence of highway rights. The ways recorded on the Gloucestershire County Council’s list of streets are classified according to their level of maintenance. When the ways then being maintained by the county council were reclassified in 1939, the ways placed in Class 6 were “unmetalled tracks, bridle roads, and public footways maintainable by the County Council, but not including those suitable for wheeled traffic”.

8.14 The definitive map records only the public’s rights; the list of streets records only the highway authority’s maintenance liability. Since most rights of way shown on definitive maps are also maintainable at public expense, it follows that there is likely to be a considerable overlap between the contents of the two documents. But the entries on the two will not be identical. For example, a

6 highway that satisfies the description of byway open to all traffic but which is not publicly maintainable will appear on the definitive map but not on the list of streets; a carriageway that is publicly maintainable and is used principally by vehicular traffic will appear on the list of streets but not on the definitive map.

8.15 The maintenance of minor roads in urban district council areas was the responsibility of the Urban District Council until 1972 when the County Council took over responsibility for such ways under the 1972 Local Government Act. A 1938 Report of the Nailsworth Urban District Council Sub-Committee on Highways notes “All roads maintained by this Council are unclassified. Should a road in an urban area become of sufficient importance or “traffic value” as to be classified as “A” or “B” it would then be maintained by the County Council….”

8.16 The entry in the list of streets is as follows: 61223 commences from 3/265 south-west of “The Hollies”. Described as “the Ladder” running to 3/265 south of “Orchard Cottage” total length 0.21 miles. The accompanying map shows the Ladder as running over the western part of the splay at the western end and crossing over the private road to the Hollies. The base map is a 1970s 1:2,500 map.

8.17 The western section of the claimed way is included within the boundaries of the registered common CL58. A map is enclosed (….E) that shows the extent of registered common. The applicant disputes that this part of the way should have been included within the registered common as it forms part of a highway, which is contrary to the definition of ‘common land’ given in section 22 of the 1965 Commons Registration Act. However, there are other examples of highways crossing commons which legally and technically exist.

8.18 The entry in the Register of Common Land (date of entry 4 January 1968) for CL 58 is as follows: “The tract of about 538 acres consisting mainly of Minchinhampton Common and including St Chloe’s Green, Littleworth Common, Watledge Hill, Iron Mills Common, Besbury Common, Hyde Common, Old Common and several small unnamed pieces of land in the parish of Minchinhampton and Urban District of Nailsworth, Gloucestershire, as marked with a green verge line inside the boundary and tinted dark green on sheets SO 80 SE, SO 80 SW and ST 89 NE of the register map and distinguished by the number of this register unit. Registered pursuant to application number 90 made 12th September 1967 by the National Trust for Places of Historic Interest or Natural Beauty, West Midland Area Office, 12 Church Street, Ross-on-Wye, Herefordshire.

8.19 Commons rights were registered in 1968 for the following (amongst others): G A Lloyd, The Hollies, Nailsworth, to graze 8 beasts in accordance with the rules and regulations of the Minchinhampton Committee of Commoners, over the whole of the land comprised in this Register Unit [i.e. Minchinhampton Common] Mr D C Walker, The Firs, Nailsworth, to graze 2 beasts

8.20 Historically the claimed route was in the parish of Minchinhampton. The parish of Nailsworth was created in 1892 out of parts of the ancient parishes of

7 Avening, Horsley and Minchinhampton. The parish took in the south-west corner of Minchinhampton, including the hamlet of Watledge. Nailsworth was converted from a parish council to an urban district under the Local Government Act of 1888.

9. APPLICATION

9.1 An application was made by David Rice of The Cutlers, St Chloe Green, Amberley, Gloucestershire GL5 5AW on 16 July 2006 to reclassify the existing public footpath ZNA 58 to the status of byway open to all traffic, or BOAT. Notice was served on the following landowners and occupiers: Laurie Clark, The National Trust, Wessex Regional Office, Eastleigh Court, Bishopstrow, Warminster, Wiltshire BA12 9HW; David White, Hollowstones, Nailsworth Hill, Nailsworth, Gloucestershire GL6 0AW; Brian Lee, The Hollies, Nailsworth Hill, Nailsworth, Gloucestershire GL6 0AW; and Mr King, Sylvan, Nailsworth Hill, Nailsworth, Gloucestershire GL6 0AW.

9.2 Mr Rice completed a public path evidence form in support of his application. He stated that he had used the full length of the route in a motor vehicle at least twice a year between 1991 and 2006 and noted the existence of a sign at the southern end of the route in 1994 that said “Byway”1. Mr Rice drew the authority’s attention to the evidence of use by motor vehicles from before 1930 to the present time, which he had detailed in a previous letter of 4 July 2006.

9.3 David Rice had written to David Rees, then Assistant Head of Legal Services at Gloucestershire County Council on 4 July 2006 querying the showing of the Ladder on both the Definitive Map of Public Rights of Way and on the list of highways maintainable at public expense. A copy of this letter accompanied the Definitive Map Modification Order application that he subsequently made on 16 July 2006.

9.4 In this letter Mr Rice firstly pointed out that as a result of the 1929 Local Government Act the county council only became responsible for roads within the former Rural District Councils and principal roads. The roads in towns (including Nailsworth) remained the responsibility of the Urban District Councils until 1972 and the passing of the Local Government Act.

9.5 Mr Rice referred to the minutes of the Stroud Rural District Highway Committee meeting of 30 July 1931, which contains a list of the maintainable highways within their area, which are classified X, Y and Z, with the lowest category being designated Z. There were 24 class Z roads out of 187 highways. Mr Rice pointed out that where their status was only that of a footpath this was noted, and the balance should be regarded as having higher rights. The 1931 minutes record 2 “footpaths only” out of 24 class Z highways (numbers 71 and 78) so that as one would expect from a list of roads, “footpaths only” were generally

1 No further information has been found on this sign; there is no sign presently indicating the status of The Ladder

8 excluded from the list, unless there was evidence of a specific maintenance responsibility for a footpath.

9.6 Concerning routes that are dually recorded on the list of maintainable highways and the definitive map, Mr Rice asserted that this situation normally resulted from a mistake, as the instructions to surveyors in 1950 stated that in constructing the first definitive maps, “existing roads” should not be entered as footpaths, bridleways or RUPPs. There is no obvious benefit to any way’s inclusion in both the list of streets and the Definitive Maps when almost all ways on the Definitive Map are not also on the List of Streets.

9.7 Referring specifically to the Ladder, Mr Rice comments: “Clearly ‘The Ladder’ has always been a right of way for all purposes and not a footpath: (a) it was the main and only road between Nailsworth and Minchinhampton before Nailsworth Hill, ‘The W’ was built by the Turnpike Act (1780). Accordingly it was used for ‘all purposes’ and has never been extinguished or ‘stopped up’ by legal process. (b) Nailsworth Urban District Council recognised it as a highway with vehicle rights (but not advisable as such). In this respect see attached photograph of signs that were located on the way (….P). (c) It has been in use as a highway for motorised vehicles for as long as most people can remember. In this respect see attached photographs of use which date back before the First World War. (d) A simple search of the internet for ‘The Ladder Nailsworth’ will reveal events of recreational motor vehicle use of ‘The Ladder’ from before the First World War to the present time. (e) various recreational users with motorised vehicles frequently write to Nailsworth Town Council as a courtesy to advise them of their intended use which has never been objected to.

9.8 Accordingly, and based on evidence of motorised vehicle use before 1930, as required by the Natural Environment and Rural Communities Act 2006, I claim that ‘The Ladder’ is a Byway Open to All Traffic…”

9.9 Mr Rice enclosed the following items of evidence with his application:

A copy of a photograph showing a sign at the top of the Ladder from page 71 of The Story of Hampton Cars by Trevor G Picken (1997) and originally included in the periodical Motor Sport which reads as follows:

The Ladder This hill track with a gradient of 1 in 3 is very dangerous and entirely unsuitable for all wheeled traffic. Motorists and others use it only at their own risk. Owing to the nuisance caused by excessive noise motorists are requested not to use this hill track on Sundays. By order Nailsworth Urban District Council

Copies of the following, taken from The Story of Hampton Cars:

9 A photograph of a Hampton car being driven down the Ladder, which is entitled “1914 Early Hampton with temporary bodywork descending Nailsworth Ladder” p.69 picture of “Hampton’s first climb, driven by William Paddon” p.69 “From the Nailsworth valley a road climbs steeply to Minchinhampton Common via a twisting series of hairpin bends called the Nailsworth ‘W’. Near the bottom of the hill, a rough, narrow and very steep track, 220 yards long, goes directly up the side of the hill to rejoin the road near the top. No normal motorist would dream of attempting to take his car up this forbidding climb for not only has the middle section a gradient of one in two and a half but the surface is stony, slimy in wet weather and worst of all, has several steps of rock which threaten to break the springs of the stoutest vehicle. Nevertheless, since motoring began, there have been drivers who have enjoyed pitting their driving skill and the qualities of their cars against such hazards. William Paddon, however, decided to bring his new 1914 creation, the Hampton Car for more positive reasons than pure enjoyment: climbing Nailsworth Ladder was his objective. This particular test had become a favourite venue in sporting trials of the day for both cars and motor cycles and as can be seen from the diagram was a severe climb [gradient chart shows ascent varying from 1 in 2½ to 1 in 5]. Local people turned out in great numbers to watch and enjoy the antics of a wide variety of competitors attempting to make clean ascents of the Ladder. After the war the Light Car and Cyclecar Magazine vigorously promoted the Annual Nailsworth Ladder August event with both previews and reports accompanied by two page spreads of action photographs…” p.72 Baughan cyclecar being driven up The Ladder in 1921 p.73 Hampton car being driven up The Ladder in 1914 p.74 advertising poster for 10-16 HP Hampton Car, described as “the first and only car with 2, 3 and 4 passengers to climb the Nailsworth Ladder, a gradient of 1 in 2.5” p.74 List of Clean Ladder ascents [by motor car] by year: 1914 10 hp Morgan 10 hp Singer 8 hp G.N. 8 hp Warren-Lambert 10 hp Aston Martin 8 hp Morgan 10 hp Douglas 10 hp Hampton 8 hp Carden 8 hp A.V. 1919 8 hp Morgan 1921 10 hp Hampton 10 hp Hampton 10 hp Eric-Campbell 8.7 hp Crouch 8 hp Carden 8 hp Baughan 10 hp Warren-Lambert 1920 10 hp Enfield-Alldays Sport 10 hp Hampton 8 hp T.B. 10 hp Warren-Lambert 8 hp G.N.

10 12 hp A.B.C. 7 hp Carden 8 hp Morgan 10 hp Horstman (Sports)

Picture of a T.B. ‘Sports Model’ climbing Nailsworth Ladder during the M.C.C. London to Land’s End Trial of 1921, taken from www.localhistory.scit.wlv.ac.uk/Museum/Transport/Cars/Tbawards.htm

Photograph of Volkswagon car climbing Nailsworth Ladder, during the 2001 Cotswold Clouds motor trial, posted on [email protected]

Picture of motorcycle climbing The Ladder, captioned “The Ladder, Nailsworth Hill. Motorcycles were frequently tried out on this most testing of gradients. The one shown here is a Bradbury 3½ H.P., dating from around the start of the First World War” on page 54 of Around Nailsworth and Minchinhampton from the Conway Collection in the Old Photographs Series.

9.10 Mr Rice wrote to the County Council on 14 May 2007, enclosing further evidence in support of his claim:

9.11 Signs Placed on the Route: Mr Rice states: “I have located an additional photograph of the sign which used to be located on ‘the Ladder’ [this was attached]. This photograph clearly shows that the sign was installed ‘by order’ of the [Nailsworth] District Council. This sign reaffirms the status of the route to be one with rights for mechanically propelled vehicles”.

9.12 Recent User Evidence: Mr Rice adds that “Unclassified road 61223 is used by a number of motor clubs for endurance trials. Their use is claimed ‘as of right without let or hindrance’. The most recent evidence I can identify for this is the attached note, which was distributed to residents adjoining unclaimed road 61223. This particular note was given to me by David White of Hollowstones.”

9.13 The letter from Martin Wear on behalf of Stroud and District Motor Club reads as follows:

“Dear Household, Re: Cotswold Clouds Trial 4th February 2007 Once again the Stroud and District Motor Club would like to advise you that the annual Cotswold Clouds Trial will be travelling along the public road adjacent to your property on Sunday the 4th February 2007. The competitors in various cars ranging from vintage to modern will be passing spasmodically along the road for one or two hours. This is not a speed event and the vehicles will be passing quietly and slowly and therefore we trust will cause you as little inconvenience as possible”.

9.14 Older User Evidence: Mr Rice attached further photographs which evidence user: (a) 1920 advertisement for the Nash 6 motorcar. Entitled “Hill Climbing Extraordinary” it reads “The manner in which the Nash Six climbed the

11 Nailsworth Ladder called forth admiration from the spectators. The performance was one of the most impressive climbs of the day”. (b) Picture of motorcar climbing The Ladder entitled “A Singer climbs Nailsworth in the late thirties…” (c) Two pictures of cars climbing the Ladder entitled “Action on Nailsworth Ladder 1957” (d) MG Owners’ Club article about a 2000 re-run of the 1934 Abingdon to Abingdon Trial which states “We were however able to visit one of the famous test sections- the notorious Nailsworth Ladder”

9.17 Also enclosed was an extract from Nailsworth Turnpike Trust Minutes of 7 June 1781: “Such agreement shall take place that we sell up to said Mr Wm Smith the present old road now leading up Hampton that shall adjoin the said land separated from Highbeaches after subtracting sufficient land from the said old road for the purposes of a road to the Nest estate now in the occupation of Mr Wm Bigges of Nailsworth at the road of twenty shillings per annum and twenty six years purchase”.

9.18 Mr Rice comments: “Further evidence that the National Trust do not own “The Ladder”. It was sold to William Smith in 1781 (formerly of the Nest Estate, later The Hollies). This is clear root of title with no evidence it was subsequently conveyed to the Lord of the Manor of Minchinhampton, who sold the manor (the Common) to the Trust in 1913”.

9.19 Mr Rice concludes: “I hope this additional input is helpful and wish to reiterate that my claim is founded on user evidence, pre-1930, as required by the NERC Act. It is also my belief that the route has been mostly used by mechanically propelled vehicles for the five years preceding enactment of the NERC Act. I can find no person who contests this”.

10. LANDOWNERS’ EVIDENCE

The occupiers of the following properties, which are adjacent to the claimed route, were consulted in connection with the claim on 2 May 2007. They were all sent a summary of the documentary evidence and of the evidence supplied by the applicant in support of the claim.

10.1 National Trust Mr Tim Barter, Senior Rural Surveyor with the National Trust, was consulted on 23 August 2007; no response has been received.

10.2 Mr David White, Hollow Stones, Nailsworth Hill Mr David White responded by letter on 30 August 2007: “The Ladder is occasionally used by people on vehicles both 2 & 4 wheel, therefore it would seem logical to reclassify this public footpath to a Byway Open to All Traffic. This usage is very low due to the easier route on the ‘W’. One would not wish to encourage further use of this route by motorised vehicles, but at least reclassification would allow lawful usage by those vehicles that currently do use this route. I believe that

12 reclassification would not change the volume of traffic/usage, and I would have no objection if this route was reclassified as a BOAT”.

10.3 Mr Brian Lee, The Hollies, Nailsworth Hill Mr Brian Lee was consulted on 23 August 2007; no response has been received.

10.4 Mr King, Sylvan, Nailsworth Mr King was consulted on 23 August 2007; no response has been received.

11. DOCUMENTARY EVIDENCE

The County Archivist has examined sources in the Gloucestershire County Record Office to see if this path is marked in any way and has identified other sources which might be useful in establishing the status of any right of way along this route. These sources have then been checked by the Modification Orders Officer.

The parish of Nailsworth was created in 1892 out of parts of the ancient parishes of Avening, Horsley and Minchinhampton. The parish took in the south-west corner of Minchinhampton, including the hamlet of Watledge and the area around the Ladder.

11.1 Inclosure Awards No inclosure award for Minchinhampton parish

11.2 Tithe Map and Apportionment Tithe Map for Minchinhampton, 1839 (P217/1 SD 2/1a) (….H) Shows the lower part of the claimed route by two full lines between plots 877 and 891, both of which are identified in the accompanying apportionment as plantations. The upper section of the claimed way is not shown where it crosses Minchinhampton Common. The W is shown by double pecked lines. The status of the route is undefined. Insular encroachments from the common with houses are shown as plots 872, 889 and 890. The dwelling houses now known as Little Cottage and Hollowstones occupy plots 872 and 889 respectively.

11.3 Ordnance Survey 25” to 1 mile map, 1885 edition, sheet numbers Glos 49.15, 16 (….I) The western section of the route to the middle of the W is shown by two full lines and then one full and one pecked line. At the western end the route is splayed with a small triangle of rough grazed land between the two parts of the route. The section of the way from the middle to the right hand top of the W is shown by one full and one pecked line and then by two full lines. It is given the plot number 711; it is unclear owing to the overprinting of the plot numbers over mapping features as to whether this plot number applies to the whole route, or whether the lower section forms part of plot 702. In either case the land use or state of the ways is not recorded in the accompanying Ordnance Survey Area Book, only the extent. 711 contained 0.174 of an acre, 702 0.388 of an acre. Sheet 49.15, which includes almost all of the route is a coloured edition, and the route is shown coloured sienna.

13 11.4 Ordnance Survey 25” to 1 mile map, 1921 edition, sheet numbers Glos 49.15, 16 (….K) The 3rd edition OS maps of 1921 show the western section of the route between the left hand and the centre part of the W by two full lines and by a full and a pecked line and numbered 261. The section between the middle and the right hand upright of the W is shown by two full lines and then by a full and a pecked line.

11.5 Ordnance Survey 1” to 1 mile, 1st edition, surveyed 1817 The W is clearly shown; the Ladder is not depicted although two houses or buildings along the course of the Ladder are shown.

11.6 Bryant Map of Gloucestershire, 1824 Area not shown accurately, but the route appears to be shown, although this is unclear owing to the scale of the map.

11.7 Inland Revenue, maps compiled under the Finance Act 1910 (D2428) Based on Ordnance Survey 25” to 1 mile c.1902 edition, marked up by the Inland Revenue c.1915, and reference books or files. Neither the maps nor the reference books/forms 37 have been deposited at the Gloucestershire Record Office. The relevant map sheet 49.15 does not survive at either the Gloucestershire Record Office or at the National Archives at Kew. The map sheet 49.16 (….M) shows the north-east section of the Ladder close to point C. The Ladder is shown as uncoloured and outside hereditament boundaries, whereas the W is shown as forming part of hereditament 1206, which also includes Minchinhampton Common.

11.8 Maps deposited with County Planning Officer under Rights of Way Act, 1932 Section 1,3 (CP/D) Not relevant.

11.9 Parish Council file, Rights of Way Act 1932 P223a PC 1/1-27 Town Council minutes, 1973-2003 (27 volumes). Not checked.

11.10 Duplicate copies of tithe or inclosure awards GDR T1/120 Diocesan copy of tithe map, in poor condition P217/SD2/1b Parish copy of tithe map D1347, Minchinhampton Reduced size copy of tithe map PC1232/1-3 Negative copy of tithe map PC 1812/120a Modern hand drawing of tithe map

11.11 Parish Rating Maps and Valuation Books Minchinhampton Parish Council have deposited in the Gloucestershire Record Office poor rate valuation books for 1804, 1830 and 1840 and poor rate valuation plans for 1803 and 1830.

Plan of Minchinhampton Parish, 1803 (P217a VE1/1) (….F) The 1804 valuation is entitled “Survey and Valuation of the Lands in the Parish of Minchinhampton… made in order to equalize the Poor’s Rate by us whose Names

14 are under written”. The accompanying map of 1803 was surveyed by Samuel Keene. The key distinguishes different categories of land (for example, waste, gardens, roads) through the use of colours. Gardens, bartons and roads are coloured yellow. The map is faded, so that most of the colouring is no longer visible, with the exception of blue for waste and brown for arable. It is impossible to see the colouring on any of the roads in the parish.

Western end of the route shown marked by two full lines leading on to Minchinhampton Common. The remainder of the route where it crosses the common is not depicted. The W is shown by double pecked lines. Status is not defined.

The valuation book lists owners and occupiers, describes the state of cultivation and gives a field name for each numbered plot on the map. It also gives a valuation for each plot.

Plan of Minchinhampton Parish, 1830 (P217a VE1/2) There are also poor rate valuations for Minchinhampton for 1830 and 1840. The poor rate valuation of 1830 is accompanied by a plan of the parish for 1830, surveyed by Y and J P Sturge; the map was amended in 1840, when it formed the basis of the revised apportionment for that year. The lower section of the Ladder leading on to Minchinhampton Common is shown between point A and halfway to point B by two full lines. The remainder of the way is not distinguished from Minchinhampton Common.

11.12 Private Estate Maps Plan of Nailsworth, 1820 (D1406/Thomas) (….G) The western portion of the route is depicted by narrow full lines, with a splay and centre triangle at the western end. The eastern half (between the centre and the right hand upright of the W) is not shown, although the northern boundary of this section of the route is shown by a dashed line. The W is shown by two full lines. Some routes on the map are coloured and named (the Bath Road, Bristol Road, London Road, to Gloucester, Cheltenham and Stroud). The W is not coloured, and neither is the claimed route. There is no key to the map. The map forms part of an uncatalogued collection of solicitor’s papers.

11.13 Footpath or highway diversion orders deposited with Clerk of the Peace (Q/SRh) Nailsworth 1799C/1; 1820D/2; 1821A/3 1799 C/1 Highways and footpath diversions. Ink plan on paper of footway from John Bemmington’s mill to the highway from Nailsworth to Horsley to be stopped up. 1820 D/2 Highways and footpath diversion at Nailsworth, concerning intended new road or footpath through premises of Mr J V Day 1821 A/3 Nailsworth: highways and footpath diversions. Plan of ‘an intended new road through the premises of Mr J V Day

15 Minchinhampton 1788C/1; 1797A; 1797C; 1801A/2; 1812A/2; 1816C; 1830A; 1838B; 1864C; 1886A; 1886B Q/SR 1804B; 1830A; 1830D; 1858B; 1858C; 1869D; 1885B 1788 Michaelmas Minchinhampton and Rodborough: highway and footpath diversions. Detailed small ink plan on paper, of footpath between lands of Sir George Onesiphorous Paul, baronet, to be diverted. Shows horse and footway from Hill House to Amberley Farm, running through woods on the boundary of Rodborough and Hampton Commons. 1797A Highways and footpath diversions. Ink plan on paper of highway from the Bourne and Burley to be diverted through wasteland. Plan shows route to be diverted that forms the third side of a triangle with the turnpike road from Chalford to Tetbury and Minchinhampton and the highway from the Bourne to Tetbury and Minchinhampton 1797C Ink plan on paper of roads from Hampton-Avening, and turnpike road Hampton- Tetbury showing Gatcomb Wood, inclosures, workhouse and Long Stone Field. Diversion of road between Minchinhampton and Avening 1801A/2 Highways and footpath diversions. 2 ink plans on paper showing the footpaths and public high road through the parks of Phillip Sheppard Esq., of Hampton Park. Stopping up of footpath running parallel with the road from Minchinhampton Market House to the Blue Boys as unnecessary and of two footpaths across Upper and Lower Park to the turnpike road. 1812/A/2 Highway diversion. Ink drawn plan on parchment showing old road to be stopped up and new road near Longford Mills (routes run off turnpike road between Minchinhampton and Nailsworth) 1816/C Rodborough, Minchinhampton: highways and footpath diversions. Ink plan on paper of footway leading from the Bath to Gloucester turnpike opposite the junction with the road to Woodchester. Diversion of footway away from house and farm called Little Britain to a point in Brittain Field belonging to Onesiphorous Paul Bt., in Rodborough. Also shown is a horse road to Minchinhampton. 1830/A/2 Highways and footpath diversions. Ink plan on paper showing situation of roads from a survey taken in 1829. Stopping up of two roads and creation of one new road between Watledge Hill Common and the road from Amberley Bank to Pinfarthings. 1830/A/3 Highways and footpath diversions. Plan in ink on paper showing re-alignment of Steps Lane which led to Avening off the Minchinhampton-Tetbury turnpike road, across land forming part of Gatcombe Park. 1838/B Not in catalogue 1864/C/1

16 Amberley: highways and footpath diversions, involving re-alignment of road from Amberley to Nailsworth at junction with road to Pinfarthings, close to entrance to Amberley Court 1886/A,D Minchinhampton: highway and footpath diversions All of the above were searched, not relevant

11.14 Plan of public schemes deposited with Clerk of Peace (Q/RUm) Checked, nothing relevant. Records relating to turnpike roads commence from 1808.

11.15 District Council Clerk’s Correspondence) DA 11/111/1-8- Highways Committee minutes, 1908-1940 (8 volumes). Not checked DA 11/512- Highway rate book, 1899 (1 volume). Not checked DA11/133/11- Clerk’s Highways correspondence file, 1959-69 Checked, not relevant

11.16 County Council Solicitor’s Correspondence Nothing relevant

11.17 County Surveyor: papers relating to survey of footpaths under National Parks and Access to the Countryside Act, 1949 (K687) K687/1/11 Parish Submission K687/1/11- 2 draft maps exist in this file for Nailsworth Urban District. On one, presumably the Urban District Council’s own submission map (….N) the route is not claimed at all. On the second map (….O) it is shown coloured purple, numbered 58 in pencil, and the map is annotated to say “FP UDC”. In the handwritten schedule it is recorded as being “Not submitted by Urban District Council but maintained by UDC as FP. On Glos OS No.49 1924 edition. Local Name The Ladder, N[orth] part Birophalt maintained”. K687/2/9/5 Objections to Draft Map There are none relevant to this route. K687/3/12 and 3/33 Provisional Map and Statement The provisional map and statement repeat the information on the draft map and schedule.

11.18 Nailsworth Urban District Council Report of Sub-Committee on Highways, 1938 (Copy filed under K687/1/11) Report of Sub-Committee on Highways, following resolution passed 27 July 1937 “to draw up a programme of road and footpath conditioning and improvements that are urgently needed in the Urban area and the estimated cost of same…” Report of Reconstruction and Repairs and Cost “We have carefully inspected over 16 miles of highways, comprising 47 separate roads or streets and 44 separate footpaths. For the purpose of reference we have

17 divided the Urban District into five sections- A, B, C, D and E…The term “ordinary repairs” refers to those minor roads or footpaths that are not waterproofed or tarsprayed but which we consider should be maintained passable and clear of any overgrowth, dead leaves etc, and repaired if necessary with loose stone or gravel.”

“All roads maintained by this Council are unclassified. Should a road in an urban area become of sufficient importance or “traffic value” as to be classified as “A” or “B” it would then be maintained by the County Council….” Signed G H Brinkworth, A D Newman and O J V Jeffery 25th July 1938 Schedule Schedule is divided A to E; and within each section the list is divided into roads and footpaths. Roads are numbered, footpaths are lettered. For both the sections listing the Roads and the Footpaths, the headings are number, name, requirements and capital cost D Section Watledge, Pinfarthings & Nailsworth Hill. (Between Stroud – Avening Road & Minchinhampton Common) Number 11 is The Ladder. Road, Ordinary repairs, bottom, C.G. [cold grouted with tar emulsion], capital cost nil Under Footpaths letter l is Upper Ladder. Maintain as tarsprayed.

This document was used as the basis for the submission by Nailsworth Urban District Council under the 1949 National Parks and Access to the Countryside Act.

11.19 Minute Books of the Nailsworth, Woodchester and Dudbridge Turnpike Trust, 1780-1877, deposited by Messrs A E Smith & Son Solicitors, 30 August 1962 (D1911) 30 March 1780 Resolved to make the roads in the following order: 1. The main road from Dudbridge to Tiltups End 2. A new road from Nailsworth bridge to the Fives Court (at Box) on Minchinhampton Common. This was to be called the W. 3. A road from Nurlsgate on Selsley Common to the valley bottom at Woodchester and then up the opposite side of the valley to the Bear Inn on Rodborough Common 4. A road from Dudbridge up Selsley Hill past Stanley End (now Selsley) along the edge of Selsley Common and past Buckholt Wood to meet the old road up Frocester Hill 5. Nailsworth Bridge via Holcombe and Well Hill to Minchinhampton The minute book gives details about the purchase of land for this new Hampton Hill road, and compensation for damages particularly mentioning fruit trees 7 June 1781 “Such agreement shall take place that we sell up to said Mr Wm Smith the present old road now loading up Hampton that shall adjoin the said land separated from Highbeaches after subtracting sufficient land from the said old road for the purposes of a road to the Nest Estate now in the occupation of Mr Wm Biggs of Nailsworth at the rate of twenty shillings per annum and twenty six years purchase”.

18 11.20 Nailsworth from 1500 to 1900: four centuries of history by A B Pavey- Smith. p.6,10 (RQ 210.4) “Under the turnpike acts companies were given Parliamentary powers to make roads, put up gates and toll bars and make a charge on the road users for road maintenance. Act obtained in 1780 ‘for making and maintaining a Road from Tiltups Inn in the parish of Horsley to join the Turnpike Road leading from Cirencester to Dudbridge at or near Dudbridge in the Parish of Rodborough, and another from the Bridge at Nailsworth in the Parish of Avening to Minchinhampton Common’. The latter was what we know as ‘the W’….

In addition to having improved roads Nailsworth began to benefit from the opening of the Stroud Canal in 1783. While the new road was being made along the valley bottom work had started on the ‘W’. This was planned to take the place of the old pack-horse track up ‘The Ladder’. It is described in the Turnpike Minutes as ‘from the Bridge at Nailsworth in the Parish of Avening to the house called the Half-way House or Five’s Court on Minchinhampton Common’. Detailed plans are given and on June 1st 1781, an agreement was signed by Dennis Edson, Engineer, ‘for the whole to be done and executed in a good and workmanlike manner for the sum of two hundred and twenty pounds to be paid him at the discretion of the Surveyor in proportion as he proceeds in his work the whole to be finished in the space of six months.’ Here follows the signature of Dennis Edson.

The 1870s saw the end of the turnpikes. In 1864 a Parliamentary Committee had condemned the system, and it was gradually replaced by Highway Districts under a Highway Board. The Nailsworth Turnpike Trust was finally wound up in December 1877, the gates removed and the tollhouses sold. The final minute, signed by William Playne, chairman, ends as follows:- ‘The Clerk was instructed to forward the Balance Sheet to the Local Government Board and do all things necessary to complete the winding up of the Trust’.

11.21 ‘Building the Nailsworth Turnpike’ by Christopher Cox in Gloucestershire Society for Industrial Archaeology Journal 1979, pp.21-38 Article on the administration, financing and construction of the Nailsworth turnpike roads from 1779 to 1782. “A start was made in June 1781 on the improvement of the link with Minchinhampton. This is the road known as the W, from its sharply angled turns, and though steep it is better than the near vertical ‘Ladder’ route previously in use”.

11.22 Turnpike Act, 1780 Royal Assent given on 21 March 1780 20 George III c.84. An Act for making and maintaining a Road from Tiltups Inn, in the parish of Horsley; to join the Turnpike Road leading from Cirencester to Dudbridge, at or near Dudbridge, in the parish of Rodborough; and from the bridge at Nailsworth, in the parish of Avening, to Minchinhampton Common; and several other Roads therein mentioned, all in the County of Gloucester.

11.23 Cox, Christopher: the turnpike system in the Stroudwater area, 1725-1875, thesis compiled for PhD (London)

19 “Edson was given one more commission- that of the road from Nailsworth bridge to the Fives Court (sometime also known as the Half Way House) on Minchinhampton Common. This road, the W as it came to be known from its double hairpin bend, replaced the old steep pull uphill known as the Ladder. The estimate for this new road was £220, and payments recorded to Edson for this task, from 2 February to 27 March 1782, do in fact come to this total.

12. CONSULTATIONS

12.1 Nailsworth Town Council John Nicholson, Environment Committee Chairman of Nailsworth Town Council responded by e-mail dated 5 September 2007: “….The above was discussed at last night’s NTC Environment Committee Meeting, and its view can be best summed up as we would wish to see the status quo preserved, i.e. access to The Ladder to remain exactly as at present. However, whether that is achieved by making it a BOAT or not is less clear. The history on this is that Mr Rice (the applicant) addressed NTC at his request something like two years ago about the effect the draft NERC Act would have on the area. His concern related to Class 6 Highways or ‘dually recorded’ footpaths (those with both foot and vehicular access) which is how The Ladder is described in the letter from Andrew Houldey dated 23 August. Mr Rice felt NERC would automatically extinguish vehicular rights to these unless one of the other exemptions provided for in the act apply. (This interpretation seems to be confirmed as correct by P2 of Mr Houldey’s letter where he quotes the exceptions in Sec 67(2) para (b) of the NERC Act). If this is the case, it seems Mr Rice’s application seeks to retain vehicular access to The Ladder (because NERC does not automatically extinguish vehicular use of BOATs) as this appears to be the only way of maintaining the limited vehicular access to The Ladder as at present, i.e. the status quo. There are wider implications to this application. Many properties in the Nailsworth area (mine and my neighbours included) only have vehicular access over Class 6 / dually recorded footpaths, where it would be very difficult to prove one of the exceptions required by Sec 67(2) of NERC. At various levels of local government for some years we have sought to encourage off-street parking in semi-rural areas (e.g. through the planning process) to combat the problems created by on-street parking caused by the increase in car ownership. This would be dramatically reversed at a stroke if all the properties currently obtaining vehicular access over Class 6 highways were prevented from doing so and all those vehicles were being parked on the streets. It seems by trying to restrict vehicular access to the public footpath network (a laudable objective) central government has created a much more complex problem for local government to sort out. One other thing. Mr Rice believes that action taken by GCC some years ago means that all its Class 6 highways are caught by the NERC Act (possibly by dual recording them all?) and thus are outside the exemptions under Sec 67(2) (b). It would be worth enquiring if this were in fact the case and, if so, could it be reversed. If not, it seems GCC is facing an avalanche of similar applications. I believe it would be unwise to treat this application as frivolous and a ‘one-off’ by someone wishing to preserve the annual vehicle trial up The Ladder. There are much wider implications for the whole of the County and it would seem a sensible use of officer / councillor time to perform as full an investigation as possible at this stage…”

20

12.2 Stroud District Council James Rachel, Senior Legal Executive at Stroud District Council replied by e-mail dated 5 September 2007: “I refer to your consultation letter dated 23 August 2007 and confirm this council has no comment to make in respect of the application”.

12.3 County Councillor Councillor Stan Waddington replied by e-mail dated 5 September 2007: “With regard to Mr Rice’s application, my views as local member are the Ladder serves no useful function as a through route having been superseded by the W many years ago. It is a very narrow and steep track up a picturesque part of the escarpment. My concern is that if it were to be reclassified as a BOAT then it could attract the attention of 4 wheel drivers looking for a challenge and scramble bikes. This could cause substantial damage and turn the Ladder into an ugly scar. Moreover there is a significant risk of accident with pedestrians and possibly horse riders. That said there is an annual vintage car climb held on the Ladder in February and the upper section appears to provide vehicular access to a field part way down the hill. Provided the existing access rights, whatever they may be, can be protected and that there is a mechanism by which the occasional organised rally event can be sanctioned, then I would favour extinguishing the route for motorised vehicles. I appreciate this may not be possible and that the application will be determined on legal grounds based on historical usage”.

12.4 Ramblers’ Association The South Cotswold Group Footpath Secretary Mr Michael Poole was consulted on 23 August 2007; no response has been received.

12.5 British Horse Society Mr William Reddaway, County Access and Bridleways Officer, was consulted on 23 August 2007; no response has been received.

12.6 Cyclists’ Touring Club Colin Palmer of the Cyclists’ Touring Club was consulted on 23 August 2007; no response has been received.

12.7 Trail Riders’ Fellowship Damon Northeast, the Trail Riders’ Fellowship representative replied by letter dated 30 August 2007: “Thank you for the information regarding the Nailsworth Ladder. All of us in the TRF would fully support a modification to a full Byway. It has been used extensively by vehicles for at least a century, including before 1930 and during the five years prior to the NERC Act. Would it help to have individual members detail their use? I personally ride it at least 4 times per year accompanied by at least one other motorcyclist…”

12.8 Divisional Highways Manager Julian Wilson the Gloucestershire Highways Divisional Highway Supervisor at Stroudwater confirmed verbally on 7 September 2007 that other than clearing out the debris that washes down the Ladder onto the private road to The Hollies, he understood that the County Council had not carried out any significant maintenance on the Ladder.

21

13. APPLICANT

Mr David Rice was advised that the landowners had been consulted over this application. His comments on the application can be found in Section 9. He telephoned and faxed the County Council on 6 September to state that the summary of the documentary evidence and of the evidence submitted in support of his application was good work. He drew the attention of the officers to the fact that the north-east section of the Ladder is shown outside hereditament boundaries close to point B on the 1910 Finance Act map. He further noted how the map accompanying the list of streets shows the Ladder joining the W at point A along the left hand or western splay, but the Definitive Map shows the Ladder starting at the point where the two splays meet. He also commented on the extent of highway, and stated that there was a presumption that the highway extended from boundary to boundary, and that over the section A to B the boundaries of the highway were the two adjoining walls.

14. OTHER OBSERVATIONS

14.1 Mr J Knight, 45 Shepherds Leaze, Wotton under Edge Mr Knight wrote on 2 September 2007: “I am writing to you regarding the modification order for the right of way commonly known as the Nailsworth Ladder. I have ridden various motorcycles on the right of way for at least 25 years. I have usually ridden the route at least once a month- excepting of course the Foot & Mouth outbreak in 2001. I understand that my evidence of use supports an exception within the recently bought [sic] in NERC Act and should be useful in consideration for this road’s proposed byway status”.

14.2 Mr G R Brown, 4 The Grove, Chelworth, Malmesbury Mr Brown wrote on 31 August 2007: “Further to the application for a modification order for the road which I understand is known as the Nailsworth Ladder. Please be advised that over the last eight years I have ridden my road legal motorcycle along this route in approximately three times per year on average. I understand that this evidence of use supports an exception within the NERC Act and might be useful in your consideration of this road’s byway status”.

14.3 John Williams, 35 South Street, Uley Mr Williams wrote on 3 September 2007: “…I am writing to you with regard to the modification order on the “Nailsworth Ladder”. I have ridden my motorcycle on the right of way for the last 9 years- approximately once a month (except during the Foot & Mouth outbreak in February 2001). I believe that my evidence of use supports an exception within the NERC Act and may be useful in your consideration of this road’s byway status”.

14.4 Guy Adams, Deben House, Park Road, Stroud Mr Adams wrote on 31 August 2007: “I would like to offer my user evidence in support of the above modification order on the Nailsworth Ladder. During the period Jan 2004 to May 2006 I used the route in question approximately once a

22 month, nearly always at the end of a local ride out. I believe that my evidence of use supports an exception within the NERC Act and may be useful in your consideration of this road’s byway status”.

14.5 Jasper Wade (no address supplied) Mr Wade wrote on 31 August 2007: “It has come to my attention that a modification order has been applied for the above to change its status from a dual status footpath to a BOAT. In support of this application I would like to inform you that I have ridden this lane every couple of weeks since 2002. I believe my evidence should support an exception within the NERC Act and would be grateful of your consideration of this road’s status”.

14.6 Richard Simpson, 236 Stroud Road, Tuffley, Gloucester Mr Simpson wrote on 4 September 2007: “I write with regard to the modification order on the route commonly known as the Nailsworth Ladder. I have ridden my motorcycle on this right of way for the last 10 years on a roughly monthly basis, except during the outbreak of foot and mouth disease in 2001. My evidence of use supports an exception within the NERC Act and must be taken into consideration during your deliberations over this road’s true status as a byway open to all traffic. I am given to understand that a wealth of photographic and documentary evidence showing legitimate historic and recent vehicular use has already been provided to yourselves, and trust that this will be the first of many routes on which vehicular status will be confirmed under the relevant clauses of the NERC Act”.

14.7 Simon Woolls, The Croft, Midway, Chalford Hill Mr Woolls wrote on 6 September 2007: “Please could you take into consideration my user evidence of the Nailsworth Ladder over the last twenty five years. I have ridden motorcycles up and down the Nailsworth Ladder on an average of fifteen to twenty times a year, and during a period of three years while working in the valley I rode that way at least once a week. I hope this will help with the status decision of this road”.

14.8 Greg Hughes, 5 Langford Close, Fivehead, Taunton, Somerset Mr Hughes wrote on 3 September 2007: “I am writing to you with regard to the modification order on the Nailsworth Ladder. Over the last 7 years I have travelled to this area often to enjoy the rights of way network including riding often on the Nailsworth Ladder. I believe that my evidence of use supports an exception within the NERC Act and may be useful in your consideration of this road’s byway status”.

14.9 Elizabeth Law (by e-mail to Councillor Waddington) Elizabeth Law e-mailed Councillor Waddington concerning The Ladder on 31 August 2007: “….I recognise the difficulties of The Ladder being classified as a BOAT in terms of it possibly being used as a highway by certain vehicles. It is very stony with large stone and trees overhanging the track which is muddy and narrow in places. The bottom end is so steep and tricky so that few vehicles would actually be able to negotiate it. The second stretch above the Hollies is now overgrown and as far as I can see only used by tractors from the top to access the field half way down. The access from the bottom is also quite difficult to

23 manoeuvre into. It was as you know the route from Nailsworth to Minchinhampton for horses and carriages and on to the London road until the Turnpike Trustees built the ‘W’ at the end of the 18th century. There is a quote in ‘Where the Cow is King’ that the Ladder “…is steep, with a very rough surface of rock outcrop…and a reputation as one of the more difficult for road trials. In parts it rises one in two and a half”. To my knowledge the vintage car rally The Cotswold Cloud is held on the first Sunday in February and may be there is a motorcycle scramble at another time some years. Interestingly when I put in directions to a sat-nav from my house it says ‘Go down the Ladder’ and we sometimes have motorists stopping to ask if they are on the right road as their directions were up the Ladder, not up the ‘W’. The issue seems to me to be an historic one of access to the Hollies across land the National Trust may be registering as Common Land. If highway rights were accepted into The Hollies and that whilst that historically the Ladder was a vehicular route up the hill as we know from pictures and there has been uninterrupted right of access to the Hollies for more than 20 years then perhaps the issue could be solved. There is a case for The Ladder to be classified unsuitable for vehicles, but as a bridleway and footpath, with occasional usage for recreational vehicular purposes granted by the relevant local parish council. It still begs the issue of who owns the subsoil and it is unclear since the 1910 Finance Act map for this part of the area is lost who was the original owner of the track since it goes back into the annals of time. Maybe registered as in the ownership of Nailsworth Parish Council might be way forward. However as you say it will probably be the courts who make a judgement if they have all the historic facts”…

14.10 Charlie Morriss, the Bell, Brimscombe Hill, Burleigh, Stroud Mr Morriss wrote on 31 August 2007: “I understand that there is an application for the old road called the Ladder at Nailsworth to be shown on the Definitive Map and Statement as a Byway Open to All Traffic. I also understand that you are gathering user evidence of its use by mechanically propelled vehicles. May I affirm that I have used this route in both directions over the past 18 years by motorcycle. Since I live nearby, at Brimscombe Hill, I use it regularly to travel to and from Nailsworth as it forms a quicker shortcut to the tarred W when I am on motorcycle…”

14.11 Mark Holland, Corn Farm, Devauden, Chepstow, Monmouthshire Mr Holland e-mailed on 6 September 2007: “…Reference the highway known as the ‘Nailsworth Ladder’, a more direct route than the zig-zags between Nailsworth and Minchinhampton Common. Approximately ST 853997 to ST 854999. I have partaken of quiet enjoyment on this highway I believed and still believe as of right since 1991 using the locomotion of a mechanically propelled vehicle or carriage- a road-legal motorcycle. The frequency of use was three times a year, except during the voluntary embargo during the 2001 Foot and Mouth outbreak. I have passed and re-passed to enjoy the special qualities, explore and survey this and many of the unsealed public carriageways in the area. Myself or all or part of my companion group have never been stopped and/or challenged on this highway. Further, I have never seen other users on the route. However, I am concerned that horse riders enjoying this route may be considered by many to be doing so illegally. Thank you for supporting us in protecting our heritage of ‘byways’ by seeking to clarify the status. Let’s hope the status is confirmed so the route may

24 be properly signposted / waymarked, sympathetically maintained, and appropriately managed…”

15. LEGAL COMMENTS AND CONCLUSIONS

15.1 Section 53(3) (c) (ii) of the Wildlife and Countryside Act 1981 allows for ways presently shown on the Definitive Map and Statement as footpaths and bridleways, but which enjoy vehicular rights, to be upgraded to Byways Open to All Traffic.

15.2 Section 56 (1) (a) of the Wildlife and Countryside Act 1981 states that where the Definitive Map shows a footpath, the map shall be conclusive evidence that there was at the relevant date a highway as shown on the map and that the public had thereover a public right of way on foot.

15.3 Section 66(1) of the Wildlife and Countryside Act, 1981 defines a byway open to all traffic as “a highway over which the public have a right of way for vehicular and all other kinds of traffic, but which is used by the public mainly for the purpose for which footpaths or bridleways are so used.” [i.e. by walkers and horse riders]. Section 54(7) of the 1981 Act states that nothing obliges a highway authority to provide, on a way shown on the definitive map as a byway, a metalled carriageway or a carriageway which is by any other means provided with a surface suitable for the passage of vehicles.

15.4 Section 31(1) of the Highways Act 1980 states that where a way over any land, other than a way of such character that use of it by the public could not give rise at Common Law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it. The period of 20 years in sub-section (1) is calculated retrospectively from the date when the right of the public is brought into question whether by a notice or otherwise.

15.5 Section 31 (9) of the Highways Act 1980 says that nothing in this section operates to prevent the dedication of a way as a highway being presumed on proof of user for any less period than 20 years. If there is no presumption of dedication under Section 31 of the 1980 Act, then we will also consider whether the evidence is such as to establish, again on a balance of probabilities, dedication at Common Law. Before making an order, the surveying authority must be satisfied that the evidence discovered by the Council, when considered with all other relevant evidence available, shows that, on the balance of probabilities, the Definitive Map and Statement require modification because a right of way which is not shown on the Map and Statement subsists, or is reasonably alleged to subsist.

15.6 The conditions for classification of a byway open to all traffic have been clarified by the Court of Appeal’s judgement [Masters v the Secretary of State for the Environment, Transport and the Regions (2001)]. The Court stated that it is not a precondition for a carriageway to be a BOAT for there to be equestrian or

25 pedestrian use or that such use is greater than vehicular use. The test for a carriageway to be a BOAT relates to its character or type and in particular whether it is more suitable for use by walkers and horse riders than vehicles. In summary, a byway open to all traffic is a carriageway and thus a right of way for vehicular traffic, but one that is used mainly for the purposes for which footpaths and bridleways are used, i.e. by walkers and horse riders.

15.7 In the Masters case (2000) it was stated that a byway should not be removed from the Definitive Map because the use made of the way by the public had ceased or the balance between the various uses made by the public of the way had changed. Parliament intended that ‘full highways or cart ways’ which might not be listed as highways maintainable at the public expense under the Highways Act 1980, should be included in the Definitive Map and Statement so that rights of way over such highways should not be lost. If a highway was more suited to horse riders or pedestrians, then, as in the Masters case, it was made obligatory by parliament that they continue to be shown on the maps and statements.

15.8 Use without lawful authority of mechanically propelled vehicles adapted or intended for use on the roads on footpaths, bridleways and elsewhere than on roads became a criminal offence in 1930. The Countryside and Rights of Way Act 2000 extended this provision to all mechanically propelled vehicles.

15.9 Section 67(1) of the 2006 Natural Environment and Rural Communities (NERC) Act extinguishes existing public rights of way for mechanically propelled vehicles that existed immediately before commencement. The exceptions to extinguishment are set out in sections 67(2) and (3). The tests in these subsections can only be applied once it has been established that a public right of way for vehicles exists. In this respect the process of determining whether a public right of way for mechanically propelled vehicles is extinguished is a two- part test.

15.10 It has firstly to be established that a public right of way for mechanically propelled vehicles existed immediately before commencement on 2 May 2006. Before that date no distinction was made in public rights of way classifications between mechanically propelled vehicles and non-mechanically propelled vehicles. Thus it is necessary to establish that a public right of way for vehicles existed before commencement rather than a right specifically for mechanically propelled vehicles.

15.11 Under Section 32 of the Highways Act 1980, when 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 such weight thereto as the court or tribunal considers justified in 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. The Committee’s attention is drawn to the report on documentary evidence at section 11.

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15.12 If it can be established that a public right of way existed at any past date, that right continues today. The right cannot be lost by disuse. It can only cease to exist if the public right to use the route was lawfully removed: until recently that required an order from the justices of the peace. Lack of modern user evidence does not obstruct such claims.

15.13 The minutes of the Nailsworth Turnpike Trust for 1780 and 1781 make it clear that the W was built as a road linking Nailsworth with Minchinhampton in place of the Ladder. This interpretation is shared by the Victoria County History, and the local historians A B Pavey-Smith and Christopher Cox. No evidence has been uncovered that the Ladder was stopped up at this time although there is evidence that part of the “old road” was to be sold to Mr William Smith to build a way to the Nest Estate (now the Hollies).

15.14 The claimed way is first shown on an 1803 Minchinhampton Parish Rating map. From the mid 16th century to 1834 the parish was responsible for the care of the poor and were empowered to levy a parish poor rate. This rate was the basis of all later civil rates. Under the 1834 Poor Law Amendment Act, parishes were required to come together in groups to form Poor Law Unions, although some unions had existed prior to this date. From 1835 the rate was then collected on a district (Poor Law Union) basis, which developed in the twentieth century into the district rate. It was administered by district councils after 1925.

15.15 Tax was charged on the notional value of the occupation or use of land and property. The poor law rate book identified each property and recorded a value for it, for the purpose of assessing the parish poor rate. Rates were based on these valuation lists, which were completely reassessed at intervals.

15.16 The assessment of the rate in each parish was normally in the hands of the Overseer of the Poor, an office created by the 1572 Poor Law Act. Following the 1601 Poor Law Act, the churchwardens and two or more substantial landowners were to act as Overseers of the Poor and to collect the poor rate. Overseers were elected by the vestry subject to the approval of the Justices of the Peace. The overseer’s assessment was subject to the overriding decision of the vestry. The vestry, too, successfully claimed the right to determine which, if any, of the inhabitants should be excused the payment of rates. From 1801 (41 Geo III, c.23 (1801)) the justices of the peace were, in addition to the power to annul a poor rate, allowed to amend it, and to alter particular names and assessments.

15.17 Assessments and surveys of the parish, made for rating purposes, are not uncommonly found among parish records. Where the poor rates appeared to be irregular or disproportionate, land surveyors were appointed to make a fresh valuation and assessment. Minchinhampton Parish Council have deposited in the Gloucestershire Record Office poor rate valuation books for 1804, 1830 and 1840 and poor rate valuation plans for 1803 and 1830.

15.18 The maps and schedules are public documents, commissioned by the Overseers of the Poor, who were officials appointed by the Vestry, the

27 governing body of a parish. The surveyors valued each holding, field by field, so that the parish rate could be apportioned on each owner and occupier according to the value of his property. The maps show all cultivated land, arable and pasture, as the poor rate was levied on the value of the land. The maps distinguish between such cultivated land and wasteland and roads, as the rate was not apportioned on these. Several features of the Poor Rate Assessment process lend weight to the evidential value of the documents: the public and statutory nature of the process, the public scrutiny given to the assessment by the vestry and the justices, the possibility of appeal to the vestry by landholders, and the official custody in which the records have been kept.

15.19 The 1804 valuation is entitled “Survey and Valuation of the Lands in the Parish of Minchinhampton… made in order to equalize the Poor’s Rate by us whose Names are under written”. The accompanying map was surveyed in 1803. The key distinguishes different categories of land (for example, waste, gardens, roads) through the use of colours. Gardens, bartons and roads are coloured yellow. The map is faded, so that most of the colouring is no longer visible, with the exception of blue for waste and brown for arable.

15.20 The valuation book lists owners and occupiers, describes the state of cultivation and gives a field name for each numbered plot on the map. It also gives a valuation for each plot. The route is shown by two full lines over the first section from A to roughly halfway to point B. Beyond that point it is not distinguished from Minchinhampton Common.

15.21 The claimed way does not seem to be shown on the Ordnance Survey 1” to 1 mile, First Edition (surveyed in 1817), although the route appears to be depicted on the Bryant map of 1824. An 1820 plan of Nailsworth shows the claimed way by two full lines between points A and B. A dashed line is shown between points B and C, but this appears to depict the boundary of the common..

15.22 There are also poor rate valuations for Minchinhampton for 1830 and 1840. The poor rate valuation of 1830 is accompanied by a plan of the parish for 1830. The map was amended in 1840, when it formed the basis of the revised apportionment for that year. The way is shown on the 1830 map by two full lines from A to a point roughly midway between points A and B. The remainder of the route is undepicted where it crosses Minchinhampton Common. The bends of the W are shown by two pecked lines but its course is not depicted where it crosses the main body of the Common.

15.23 A similar distinction between the lower enclosed section and the section of the way where it crosses the Common is also apparent on the 1839 Tithe Map. Tithe maps provide important evidence as to the existence of a public right of way. The maps were drawn up under statutory authority by the Tithe Commissioners under the provisions contained in the Tithe Commutation Act of 1836 to show all cultivated land, arable and pasture, as tithe was payable on land producing crops. They also had to show waste land and roads, because tithe was not payable on these. Thus a distinction is made between tithable and untithable land, with roads clearly marked as untithable. Several features of the Tithe Commutation process lend weight to the evidential value of the

28 documents: the public and statutory nature of the process, the external and internal checks carried out at the time, the impartiality of the process, and the official custody in which the records have been kept.

15.24 Tithe Maps were concerned solely with identifying tithable lands, and not with roads and their status, so cannot be used as definitive evidence regarding public roads. However, Tithe Maps do mark roads quite accurately and, taken in conjunction with the schedules, provide useful supporting evidence. As tithes were not payable on public highways, these are often shown in a special colouring on the plans.

15.25 In the case of Maltbridge Island Management Company v Secretary of State for the Environment, 31st July 1998, Sullivan considered that:

“The Tithe Map and apportionment evidence is undoubtedly relevant as to both the existence, and physical extent, of a way at the relevant time. Both public and private roads were not tithable, the mere fact that a road is shown on, or mentioned in a Tithe Map or Apportionment, is no indication as to whether it is public or private.”

Sullivan went on to consider whether a tithe map and apportionment could be evidence of the status of a road:

“But if detailed analysis shows that even though he was not required to do so, the cartographer or the compiler of this particular map and apportionment did in fact treat public and private roads differently, whether by the use of different colours, the use or non-use of plot numbers, or other symbols, or in schedules or listings, I do not see why evidence based on such analysis should not be admissible as to the existence or non-existence of public rights of way. … Since it was not one of the purposes of the 1836 Act to distinguish between public and private roads, such information as can be derived for the Tithe Map and Apportionment cannot be conclusive, and must by its very nature be tentative…”

15.26 Lack of full depiction should not be taken as evidence that the route was not in existence or being used. The purpose of both the tithe and the poor rate assessments was to distinguish between agricultural land that could be taxed and non-assessed land. As the upper portion of The Ladder ran across open unfenced common at this time, it is likely that the valuers saw no difference between the common and an unfenced and unenclosed track if both were capable of being grazed.

15.27 It would appear that The Ladder survived as a road after the construction of The Ladder, serving the insular enclosures and dwelling houses that can be seen on the Tithe Map. As the Nailsworth Turnpike Trust was not wound up until the 1870s the Ladder presumably continued to be used by travellers wanting to avoid toll duties that would be payable on the W.

15.28 Ordnance Survey Maps have carried a disclaimer since 1889 that any representation of a road, track or path is no evidence of the existence of a right

29 of way over it. However, they do provide evidence of the physical existence and extent of a way, suggesting (but not proving) that the path has been in use for a longer period than that for which user evidence is available.

15.29 The First Edition 25” to 1 mile Ordnance Survey map (1885) shows the route, running along its present course between A and C. It is coloured brown, as are other known roads. Both parts of the splay at point A are shown coloured. It is unclear as to the significance of the colouring, in particular whether it was used to distinguish between private and public roads; it has been stated by a former Director General of the Ordnance Survey that the colouring was then used to distinguish roads from surrounding features and by another former Director General that the use of colouring simply denoted a metalled surface. The Ordnance Survey’s contemporary policy statements however indicate that colour was used consistently after 1880 to depict publicly maintained roads. However, as an 1884 memo states that colouring should also be used to depict better maintained private carriage roads then no conclusions can be drawn on whether a route was private or public on the basis of the use of colour after that date. Thus for the period 1880 to 1884, it would appear that colouring was used to show publicly maintained roads, based on information supplied to the Ordnance Survey by Parish, District and County Highway Surveyors. The map sheets for The Ladder were published in 1885; for a map of this date, we can only conclude from the colouring that the way was either a public road or a well- maintained private carriage road.

15.30 The 1938 Minutes of the Nailsworth Urban District Council record the routes within the urban district council area that the council maintained and also give details of their level of maintenance and estimated cost of repair. Routes are divided into two categories: roads, which are numbered and footpaths, which are identified by letters. In the Road section, number 11 is listed as The Ladder. Road, Ordinary repairs, bottom, C.G. [cold grouted with tar emulsion], capital cost nil. Within the footpath section, letter L is Upper Ladder. Maintain as tarsprayed.

15.31 The 1938 Highway Committee minutes were used as the basis for the submission by Nailsworth Urban District Council (c.1952) under the 1949 National Parks and Access to the Countryside Act. Routes recorded as footpaths in 1938 were claimed for inclusion on the Definitive Map, but those recorded as roads in 1938 were not claimed. The Ladder was not initially claimed as a path by Nailsworth Urban District Council, and was added to the original parish submission by the County Surveyor. The notes in the original statement record: “Not submitted by Urban District Council but maintained by UDC as FP. On Glos OS No.49 1924 edition. Local Name The Ladder, N[orth] part Birophalt maintained”.

15.32 It is generally recognised that The Ladder was formerly the main route between Nailsworth and Minchinhampton Common, until it was superseded by the newly constructed and turnpiked W in 1781. There is no evidence that the Ladder was stopped up at this time. The Ladder continued in use, although less convenient on account of its severe gradient, to serve several dwelling houses along its route and also presumably to avoid the payment of tolls. As we will

30 see, its inconvenient nature and sharp gradients that had made it so desirable to replace the route in the early 19th century were an attraction to early motor sports enthusiasts in the early decades of the 20th century, for testing their vehicles, formally or informally.

15.33 Having established that a public right of way for vehicles existed as of 2 May 2006, the tests in subsections 67(2) and 67(3) of NERC can then be applied to establish whether the public right of way for mechanically propelled vehicles have been retained as one of the exceptions to extinguishment applies. The exemptions to extinguishment at 67(2) are listed in full at paragraph 8.8.

15.34 The first exception to extinguishment [s.67(2)(a)] is where the main lawful use by the public during the period 2001 to 2006 was by motor vehicle. Paragraph 24 of the Guidance Notes states that "The term ‘main lawful use’ is not defined in the Act. It is for local highway authorities, and other relevant authorities, in their own areas of jurisdiction, to adopt a pragmatic approach and arrive at a judgement as to what has been the main use of the way by the public in the five years leading up to 2 May 2006. Where necessary, authorities should assess the evidence available on the relative volumes of walkers, horse riders, cyclists and motor vehicles and other users, to see whether it can be shown, on the balance of probabilities, that lawful use of the routes by the public over the five years up to 2 May 2006 has been predominantly by mechanically propelled vehicles".

15.35 Paragraph 25 states: "It is not incumbent on the local highway authority to undertake a detailed investigation or survey of "main lawful use" on every way. As with all the exceptions, the onus is on the user of the way to prove that rights have not been extinguished where they disagree with the judgement of the local highway authority. It should be noted that for this exception to apply, the main lawful use must have been ‘by the public’. This means that it is irrelevant for the purposes of this test that the way might have been used during the relevant period by landowners or their visitors under any form of licence or easement by any means whatever, whether on foot, horseback or mechanically propelled vehicle".

15.36 What the act and guidance notes do not lay down is a procedure for determining whether any of the exemptions to extinguishment applies, and in particular how we can assess or infer what the main lawful use was over the five years prior to commencement, a period that has now elapsed. It has been clarified by Defra in paragraph 44 of the Guidance Notes that lawful in this context means that the way carried vehicular rights at commencement (2 May 2006). The second part of the test relates to the main use; the Defra guidelines clarify that use by adjoining landowners (unless it be by licence or easement) should be counted as use by the public (paragraph 25 of the guidance notes).

15.37 The investigation into whether exception 67(2)(a) applies should take into account: (a) evidence of use supplied by motor vehicular users, landowners, local councils and user groups, where this has been provided, including any surveys

31 (b) the character of the way (its surfacing, width, any structures or obstructions) which can provide useful supporting evidence as to predominant use. (c) county council records- highway records, maintenance by highway divisional surveyors, area rights of way officers (which include maintenance and photographic evidence)

15.38 In terms of its character, the Ladder is steep, roughly stoned and over the section A to B unsuitable for ordinary motor vehicles. However, the challenging nature of the route has proved to be an attraction to motor vehicular users wishing to test their vehicles. Formal trials are organised over the Ladder for motorcars and motorcycles. The Cotswold Cloud Hill Climb is organised by Stroud & District Motor Club every February. In 2007 the event attracted 76 entries. There is no evidence that such use for trailing vehicles has been with permission or licence. In addition, evidence has been supplied by members of the Trail Riders’ Fellowship that they have used the path recreationally. This evidence is listed in section 14.

15.39 No survey has been undertaken of use of the way. On two site visits undertaken on 3 July 2007 and 6 September 2007 during an hour period there was no observed use by pedestrians, equestrians or by vehicles. There was evidence that the path had been used by horses. The only landowner who has responded to the consultation attests that the way is used by motor vehicles but such use is low. Evidence has been supplied of use by trail riders; however evidence of use by motor vehicles does not in itself meet this exemption. The issue is whether use by motor vehicles is greater than use by other categories of user.(i.e. walkers and horse riders). No evidence has been supplied by other users and hence we cannot assess what the main lawful use had been in the five years leading up to commencement.

15.40 Parts of the way have been used by vehicles to access properties. There is no evidence that such use was by licence or easement. The private road to The Hollies uses one of the splays at point A; access to Little Orchard and the farmyard close to point C is by the section immediately west of point C. Access to Hollow Stones is across part of The Ladder at point B.

15.41 If it is decided that the way meets exemption 67(2)(a), then it must fail the Masters test, and hence could not be recorded on the Definitive Map as a Byway Open to All Traffic. The only available option is to annotate the entry on the List of Streets to state that motor vehicular rights have been preserved. The advice from Defra is that no legal mechanism exists to remove a footpath or bridleway from the Definitive Map when it is clearly an all-purpose highway.

15.42 The exception to extinguishment in subsection 67(2)(b) that the way is on the list of streets is not applicable as the way is also recorded on the Definitive Map of Public Rights of Way as a public footpath.

15.43 The exception 67(2)(c), Express Creation, ensures that where a public right of way for mechanically propelled vehicles was expressly created by primary or secondary legislation or by an instrument, it will not be extinguished by the

32 operation of section 67. This preserves public rights of way for mechanically propelled vehicles that were created as part of the ‘ordinary roads network’. There have to be express words in order for this exception to apply.

15.44 This exception to extinguishment has not been met. The Ladder was an ancient highway linking Nailsworth and Minchinhampton and in existence by 1780, when it was effectively replaced by a new section of turnpike road, known as the W. There is no evidence that any existing rights over the Ladder were stopped up at this time.

15.45 The exception 67(2)(d), Creation by Construction, ensures that a public right of way for mechanically propelled vehicles will not be extinguished by the operation of section 67 where it was created by the construction of a road intended to be used by mechanically propelled vehicles. This provision inextricably links the construction (of a road intended to be used by such vehicles) to the creation and so these must have taken place at the same point in time. Therefore any subsequent re-construction or maintenance, to whatever standard, of a way that had not already been created for mechanically propelled vehicles would not qualify a way from exemption. In particular, the carrying out by a highways authority of its duty to maintain under section 41 of the Highways Act 1980, whenever carried out, will not give rise to an exception from extinguishment. It is not considered that this exception has been met, as the road was not constructed with the intention of it being used by mechanically propelled vehicles.

15.46 The applicant asserts that a public right for mechanically propelled vehicles over The Ladder has been preserved by subsection 67(2)(e), Pre 1930 Dedication. The latest Defra guidance notes (Version 4 issued 27 November 2006) state in paragraph 20 “Subsection 67(2)(e) excepts from extinguishment ways that had been in long use by mechanically propelled vehicles before 1930, when it first became an offence to drive ‘off-road’.” Paragraph 31 gives further guidance on the operation of this exception: “This exception preserves any public rights of way for mechanically propelled vehicles that might have been established before 1 December 1930, when it first became an offence to drive a mechanically propelled vehicle ‘off-road’. The combined effect of this exception and section 67(1) is to ensure that, in generally [sic], no past use by mechanically propelled vehicles may give rise to a public right of way for mechanically propelled vehicles unless it was before 1 December 1930”.

15.47 Paragraph 32 addresses the question: At what point does the creation of a public right of way occur? Defra’s view is that “creation occurs at the point in time when the public right of way comes into being, either through a legal instrument (such as a creation order or dedication) or through a qualifying period of use (deemed dedication). With deemed dedication, the dedication must be presumed to have taken place at the beginning of the process, followed by the qualifying period of use, with creation at the end of that period of use (a public right of way cannot exist in law- and therefore cannot have been created – until after the qualifying period of use is complete). This is reflected in the way subsection 67(2)(e) of the NERC Act is framed; it excepts: ‘an existing public right of way [for mechanically propelled vehicles] if… it was created by

33 virtue of use by such vehicles [mechanically propelled vehicles] during a period ending before 1st December 1930’.”

15.48 There is no requirement for there to have been evidence of twenty years’ use of the path by motor vehicles prior to 1930 for rights to have come into being. The statutory position of presumed dedication following twenty years user was introduced by the 1932 Rights of Way Act. For use prior to 1930, the Common Law test would apply. Furthermore, evidence from the period following 1930 should not be discounted. In the case Stevens v Secretary of State for the Environment, the judge examined how evidence of post 1930 vehicular use should be considered. It was agreed that it would be wrong to start from the premise that any post 1930 use by motor vehicles must be simply disregarded. This would be to assume from the start that the way was not a carriageway. The judge stated: “In conducting the review it would not be right to refuse to take into consideration any evidence of post 1930 use…In such a case it would be right to look at the evidence of vehicular use, both pre and post 1930, because evidence of user in the latter period may give added credibility to evidence of user in the former. If having looked at the evidence overall, including both evidence of user and the documentary evidence, the Inspector is satisfied that there was no dedication of the way for vehicular use at common law or by 20 years user prior to 1930, then, and only then will it be possible to say that evidence of post 1930 use should be excluded because such use would have been unlawful.”

15.49 The evidence of use, although related to the testing of cars, can be considered as use by the public. The key point is that use was not by licence or permission. It is unusual in that we can effectively date the first use by motor vehicles of this way, and that such use has been so well documented both by early motoring enthusiasts and by the manufacturers of motor vehicles. It was a boast of such early car manufacturers as Hampton Cars and Nash that their vehicles were capable of climbing the Nailsworth Ladder. There has been regular and well documented use of the way since then, both prior to and after 1930.

15.50 The way was publicly maintained as a road by Nailsworth Urban District Council in 1938. A sign was also erected by the Urban District Council at one end of the Ladder. The wording of the sign is as follows:

The Ladder This hill track with a gradient of 1 in 3 is very dangerous and entirely unsuitable for all wheeled traffic. Motorists and others use it only at their own risk. Owing to the nuisance caused by excessive noise motorists are requested not to use this hill track on Sundays. By order Nailsworth Urban District Council

15.51 Nailsworth Urban District Council, who erected the sign, were until 1972 the highway authority responsible for the Ladder. The sign does not prohibit use of the Ladder by motor vehicles, it only warns that the way is unsuited for such use, and requests that motorists don’t use the way on a Sunday because of the

34 excessive noise. The erection of the sign is an indication that the way was being used by motor vehicles.

15.52 The documentary evidence suggests that the claimed way carries vehicular rights but it is unclear as to whether the way is used mainly for the purpose for which footpaths and bridleways are so used, i.e. by walkers and pedestrians. Considering the physical characteristics of the way, the claimed route has a roughly stoned surface, is muddy in winter and owing to its gradient is more suitable for walkers and horse riders rather than vehicles. Thus, the tests under Masters for suitability and character are met.

15.53 Thus to summarise, it is the view of the officers that: (a) That the claimed path is an historical carriageway (b) motor vehicular rights have been preserved over the length of path from A to B to C, by virtue of section 67(2)(e) of NERC Act (pre-1930 use by motor vehicles), and that the Definitive Map and Statement be modified to show the Ladder as a byway open to all traffic

15. APPENDICES A. Location Map 1: 10,000 B. Detailed map of the route 1: 2,500 C. Map accompanying List of Streets D. Extract from Definitive Map E. Extract from Commons Register Map F. Parish Rating Map, 1803 G. 1820 Plan of Nailsworth H. Minchinhampton Tithe Map, 1838 I. Ordnance Survey 25” to 1 mile map, Glos 49.15 / Glos 49.16 (1885) J. Ordnance Survey 25” to 1 mile map, Glos 49.15 / Glos 49.16 (1903) K. Ordnance Survey 25” to 1 mile map, Glos 49.15 / Glos 49.16 (1923) L. Ordnance Survey 1: 2,500 map, c.1972 M. Finance Act Map Glos 49.16 N. Parish Submission Map, initial submission from Urban District Council O. Parish Submission Map, as amended by County Surveyor P. Copy of sign erected by Nailsworth UDC at the foot of The Ladder

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