WILDLIFE AND COUNTRYSIDE ACT 1981 – SECTION 53, SCHEDULE 14 APPLICATION TO SOMERSET COUNTY COUNCIL IN THE PARISH OF & 713m

Author: Claire Goodman-Jones (Birchill Access Consultancy Ltd) Date: 6th November 2019 (updated Jan 2020)

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CONTENTS

1. Introduction 2. The Application and supporting evidence 3. Relevant Legislation 4. Documentary Evidence 5. Landowner Evidence and Evidence from those against the application 6. Consultation and other submissions 7. Summary and Conclusion 8. Recommendation

2 1. Introduction 1.1 On 5th May, 2011 Bridleways Association made an application under Schedule 14 and Section 53(5) of the Wildlife & Countryside Act 1981 for an Order to amend the Definitive Map and Statement by adding a public bridleway as described in paragraph 2 below.

1.2 A public bridleway can be used by the public on foot, pedal cycle and horseback.

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

1.4 Private rights may exist, but have no place in this investigation and do not form part of the decision making process.

2. The Application

2.1 The application is based on documentary evidence. The applicant supplied a number of documents with the application, as follows:

• 1766 Manors map of Yeovil, Chilthorne Domer • 1811-1817 1st OS cassini reprint • 1822 Greenwoods map • 1825 Parish Map of Montacute • 1832 Map of Chilthorne Domer manor • 1832 Chilthorne Domer Inclosure Award • 1838 Montacute tithe map • 1863 Yeovil Highway Board Records • 1884 OS boundary sketch book • 1884 OS boundary sketch map • 1899 & 1919 OS Cassini reprint • 1910 Finance Act records

The application and supporting documents are held by Somerset County Council

2.2 No user evidence was submitted with the application. No evidence that the general public have used application route as a bridleway has been found during the investigation.

2.3 The claimed bridleway is shown coloured black on Appendix 1. The claimed route starts at Point A off the southern terminus of public bridleway Y17/25 near Windmill Farm and heads along a track in a south easterly direction to Point B before turning in a more northerly direction across fields and crossing parish boundaries (of Montacute & Chilthorne Domer) near Point C onto Point D before heading to Point E where it joins a public road C139 adjacent to a nursey and area called Grindlefield. A total length of 1,641 metres and approx. width of 10ft where following a defined track feature.

3 2.4 Photographs of the claimed route taken on in 2011 are at Appendix 2.

2.5 A land registry search identified that there are two registered owners for the claimed route. The Common Law presumption is that adjoining landowners own up to the centre point of the lane, in the absence of any evidence to the contary. The landownership of surrounding land is shown at Appendix 3.

3. Relevant Legislation

3.1 The Wildlife and Countryside Act 1981 specifies in Section 53(2)(b), that the County Council must keep the Definitive Map and Statement under continuous review and must make such modifications as appear to them to be requisite in the light of certain specified events. In this case section 53(3)(c)(i) is of particular relevance. This requires the Map and Statement to be modified where the County Council discovers evidence: -

“that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way such that the land over which the right subsists is a public path, a restricted byway or subject to Section 54A, a byway open to all traffic” (53(3)(c)(i)).

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

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

3.4 Section 32 of the Highways Act 1980 states that “a Court or other tribunal, before determining whether a way has or has not been dedicated as a highway, or the date on which such dedication, if any, took place shall take into consideration any map, plan or history of the locality or other relevant document which is tendered in evidence and shall give weight thereto as the Court or tribunal considers justified by the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or compiled and the custody in which it has been kept and from which it is produced”.

3.5 Any changes to the Definitive Map must reflect public rights that already exist. It follows that changes to the Definitive Map must not be made simply because such a change would be desirable, or instrumental in achieving another objective. Therefore, before an order changing the

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

4. Documentary Evidence The table below shows documentary evidence sources examined as part of this investigation.

4.1 Enclosure Records: 4.1.1 Explanation of the type of evidence Enclosure Awards are legal documents that can still be valid today. They usually consist of a written description of an area with a map attached. Awards resulted from a need by the landowners to gather together their lands and fence in their common lands. A local Act of Parliament was needed to authorise the procedure and an Enclosure Commissioner was appointed as a result to oversee the compilation of the award and map. Land was divided into individual plots and fields and redistributed amongst the existing owners. Enclosure Awards provide statutory evidence of the existence of certain types of highway. They enabled public rights of way to be created as necessary, confirmed and endorsed and sometimes stopped up. Enclosure Commissioners surveyed land that was to be enclosed and had the power to ‘set out and appoint public and private roads and paths’ that were often situated over existing ancient ways. 4.1.2 Chilthorne Domer Inclosure Award, 1832 SHC Q/RDE/9 Appendix: 4

4.1.3 Description and interpretation of evidence

The Award was made under the Chilthorne Domer Inclosure Act 1826 which incorporated the General Inclosure Consolidation Act 1801. These Acts gave the Inclosure Commissioners the power to set out public highways (including bridleways).

The northern end of the claimed route from the parish boundary between Chilthorne Domer and Montacute (i.e. point D) is very clearly defined as a track feature on the Chilthorne Domer Inclosure Map. It is shaded pale brown (the same colour as adjacent allotment ‘2’) and labelled with the letter ‘C’. There is a line across the application route at its junction with the public vehicular highway at point E. The vehicular highway itself is coloured yellow. Where the south east boundary of the application route is adjacent to allotment ‘2’ the casing line is red, rather than the usual black.

The award sets out route C (i.e. the northern section of the application route described above) as a public bridleway. The section of the award relating to

5 the route states:-

Bridle Way – ‘also one bridleway of the breadth of ten feet marked C on the said map hereto annexed extending from the public highway leading from Yeovil aforesaid to in the said county of Somerset through a certain common field called Girdle Field unto and into the present public bridleway from Girdle Filed aforesaid to Montacute in the said County of Somerset.

This makes it clear that the northern part of the application route was to be set out as a bridleway. Furthermore, the Commisioner was clearly of the view that the continuation of the application route within Montacute (i.e. A-C) was also a bridleway as they refer to the route that they were setting out as leading ‘into the present public bridleway’.

The Commissioners were granted powers to create highways by an Act of Parliament. This map and the award therefore has very high value and they are very strong evidence that D-E was created as a bridleway in 1832 even if it had not existed as one beforehand.

The Commissioners did not have powers to create highways in the parish of Montacute and therefore the Award carries less weight in relation to A-D. Nevertheless, it would have been necessary for the Commissioners to have been well aquainted with the area in which they were working so as to ensure that the highways that they were creating fitted in with the surrounding network. Furthermore, before being finalised, the Award was subject to a considerable amount of consultation. Any errors are therefore likely to have come to light and been corrected. In this case, the Award demonstrates that the Commissioners were of the view that A-D was a pre-existing public bridleway. There is no evidence that any member of the public dissented from that view. In the circumstances, the Award is also strong evidence that A-D was a bridleway.

4.2 Tithe Records: 4.2.1 Explanation of the type of evidence Tithe maps and the written document which accompanied them, (the apportionment) were produced between 1837 and the early 1850’s in response to the Tithe Commutation Act 1836, to show which landowner owned which pieces of land and as a result how much they owed in monetary terms. The tax replaced the previous ‘payment in kind’ system where one tenth of the produce of the land was given over to the Church. A map was produced by the Tithe Commissioners which showed parcels of land with unique reference numbers, and these were referred to in the apportionment document, which contained details of the land including its ownership, occupation and use. Public roads which generated no titheable produce and were not given a tithe number. Some private roads, due to use could be equally not liable to a tithe. However, public and private roads could be subject to a tithe, if for instance, they produced a crop – grazing or hay cut from the verges.

6 The Map and Apportionment must be considered together. Roads were listed at the end of the apportionment; there was sometimes a separate list for private roads. Tithe maps and apportionments were not prepared for the purpose of distinguishing between public and private rights; they were intended to apportion a monetary rent in lieu of tithe payments in kind. Tithe maps provide good topographical evidence that a route physically existed and can be used to interpret other contemporary documents.

4.2.2 Monacute tithe map & apportionment 1838 Ref: SHC D/D/RT/M/109(map) & D/D/RT/A/109 (apportionment)

Chilthorne Domer tithe map & apportionment 1844 Ref: SHC D/D/RT/M/447 (map) & D/D/RT/A/447 (apportionment) Appendix:5

7 4.2.3 Description and interpretation of evidence The Map and apportionment for Montacute and Chilthorne Domer are dated 1838 and 1844 respectively. As with all tithe maps, three copies were produced, one for the Parish Council, one for the Diocese and a further copy for the Tithe Commissioners themselves. In this case only the Diocesan copies are available at the Heritage Centre.

The Tithe map for Montacute was not sealed by the Commissioner confirming that it is only a second class map. It is therefore only conclusive evidence in respect of the information it contains relating to tithes.

The Diocesan copy shows the claimed route very clearly from point A to D bounded by solid lines. The surrounding fields in the apportionment are merely referred to as pasture, arable, orchard etc.The claimed route is not numbered or referred to in the apportionment indicating that it was not considered to generate any titheable produce.

That part of the application route which falls within the parish of Chilthorne Domer is initially shown on that tithe map in the same way as on the one for Montacute. However, the most northerly 228 metres of the application route is not defined as a linear feature, but instead falls within apportionment 24. Apportionment 24 is described as being arable land owned by Hannah Terrell, occupied by Joseph Guppy and called ‘Girdlefield’. The remarks record that it is ‘Tithe Free’.

Those parts of the application route which were not numbered would not have been subject to a tithe. This could be because it was considered to be a public road. However it could equally have been because the land was unproductive for some other reason such as it being a private road which was not grazed and upon which no crop was grown..

Taken on their own the Tithe documents provide excellent evidence that much of the claimed route physically existed in the 1830s and 1840s. Where the route is not shown (i.e. through apportionament 24) it is harder to reach any conclusion as to the its physical existence. While the map is certainly not positive evidence in favour of the route existing, it should not necessarily be seen as evidence that the route did not exist. It is unlikely that less significant landscape features, such as a trodden route across a field, would have been depicted on maps such as these.

In any case, the tithe documents were never intended as a record of public rights and as such are less helpful in determining the status of any given route. In this case, even when read together, the map and apportionment give little indication as to why the majority of the claimed route was considered unproductive ie did they carry public or just private rights?

8 4.3 Ordnance Survey Records: 4.3.1 Explanation of the type of evidence The Ordnance Survey (OS) are generally accepted as producing an accurate map depiction of what was on the ground at the time of a survey. OS Maps cannot generally be regarded as evidence of status. However, they indicate the physical existence of a route at the date of survey. 4.3.2 OS Boundary Remark Book Ref: TNA OS26 /9435, OS27/4624 and OS26/9435 “1884” Appendix 7

Collectively these three maps show that part of the claimed route from the south from Windmill Farm to point D. It is depicted by two solid lines and it is marked as continuing over the parish boundary. 4.3.3 OS County Series 1st edition 25” on microfiche Ref: LXXXII:11 and LXXXII:12 “1887” Appendix 6

The claimed route is clearly shown as a clear lane feature at the southern end by Windmill Farm and proceeds north as a lane feature for most of its length crossing and running along the old parish boundary between points C and D.

Between point D and E the claimed route exits from a lane feature into a field . Bracing between the end of the lane and field demonstrates that it would have been in the same landownership at the time of survey.

4.3.4 2nd Edition , 25 inch: 1 mile OS map “1901 “ Ref: LXXX11 NE Appendix 9

The claimed route is clearly shown as a clear lane feature at the southern end by Windmill Farm and proceeds north as a lane feature for most of its length crossing and running over the parish boundary between points C and D.

Between points D and E the lane feature ends with the remainder of the claimed route not being depicted. Although the point of termination is not coloured blue on this uncoloured map there are three traverse lines. As with the first edition map bracing marks clearly join the adjacent fields with the end of the land feature. Bracing between the end of lane and field demonstrates all in same landownership at time of survey.

4.3.5 OS Cassini maps o Old Series – 1811-17 o Revised New Series – 1899 o Popular Edition - 1919 Original scale: 1:63360 (one inch to the mile)

Appendix 10

9 Three sets of Cassini reprints of old OS maps were examined. The Old Series map of 1811 only shows the short section of lane running W-E above Windmill Farm roughly corresponding to points A to B. The two later maps clearly show a lane running all the way up to and a little over the old parish border (i.e. between points D and E)

4.3.6 Description and interpretation of evidence

The majority of the claimed route appears as a very clear physical lane feature from the southern end of the route by Windmill Farm from the early 1800’s on including the OS original Boundary Sketch Map. The lane appears to come to an end before reaching point E on all the maps examined and no physical feature as such is marked for the last field the claimed route crosses. On the 1st and 2nd edition County Series maps a clear field boundary is marked which is in line with the alignment of the claimed route at its northern end and bracing between the end of the lane and the field would at least indicate that the lane and field were in the same ownership at time of survey. Overall at least ¾ of the claimed route has been present as a very clear physical feature on the ground from the early 1800’s. OS maps are good evidence of depicting physical features at a point in time but do not necessarily provide evidence of status of any physical route marked and these maps need to weighed up in conjunction with other documentary evidence.

4.4 1910 Finance Act 4.4.1 Explanation of the type of evidence The Finance Act of 1910 provided, among other things, for the levy and collection of a duty on the incremental value of all land in the United Kingdom. Land was broken into land ownership units known as hereditaments and given a number. Land could be excluded from payment of taxes on the grounds that it was a public highway and reductions in value were sometimes made if land was crossed by a public right of way. Finance Act records consist of two sets of documents which are:- • Working Plans and Valuation Books. Surviving copies of both records may be held at the Local Records Office. Working maps may vary in details of annotation and shading. The Valuation Books generally show records at a preparatory stage of the survey. • The record plans and Field Books (small bound books) are the final record of assessment and contain more detail than the working records. The Record Plans and Field Books are deposited at The National Archives, Kew. While the Valuation and Field Books were generally kept untouched after 1920, many of the working and record maps remained in use by the Valuation Offices and sometimes information was added after the initial Valuation process. The 1910 Finance Act material did not become widely available until the mid1980’s. It cannot therefore have been considered during the Definitive map making process and can be considered “new evidence”, if it is relevant.

10 4.4.2 Record Plan: IR128/9/1009 & 1010 Field Book: IR58/82749 Appendix 11

4.4.3 Description and interpretation of evidence

The Finance Act map shows the southern end of the route, from point A to point D, excluded from the surrounding coloured field boundaries. Whereas the northern end of the route, from point D to point E, runs within hereditaments (fields) 13 and 3436.

Where a route is excluded from the surrounding hereditaments this is normally a strong indication that the route was a public highway, usually, but not necessarily vehicular. There are other potential reasons for exclusion, including where a route was set out at inclosure as a private road for the use of multiple people.

Where a right of way ran through a hereditament (as in the case of D to E) the landowner was entitled to a deduction in the total value of their property. Such deductions were to be recorded in the field book. Although the field book entry for hereditament 13 has not been viewed, the applicant was able to provide an extract of the book relating to the other hereditament through which the claimed route passes; i.e. hereditament 3436. This records a £5 deducation for rights of way. However, the size of the hereditament is such that it is not possible to identify which route(s) the deducation is being made for; it may or may not relate to D-E. The finance book rarely confirms the exact location or status of any public right of way so this needs to be all weighed up with the other evidence in this report.

The Finance Act documentation is certainly not inconsistent with the existence of public rights and arguably might be in favour of such rights. However, before attributing any weight to these documents it is important to consider them in relation to all of the other evidence.

4.5 Highway Road Records held by the County Council 4.5.1 Explanation of the type of evidence The Local Government Act 1929 transferred the responsibility for maintenance of highways from Rural and Urban District Councils to County Councils. At that time ‘Handover Maps’ and schedules were prepared showing all roads to be maintained by the County Council at this point. Subsequent maps showing roads for which the County Council was liable to maintain were produced in the 1930s, 1950s and in the 1970s. 4.5.2 1929 Handover Map and Schedule Appendix 12

The majority of the claimed route is shown as a clear lane feature on the OS

11 base mapping. However, it is not marked as a public road of any kind.

4.5.3 1930 Road Records Appendix 13

The majority of the claimed route is shown as a clear lane feature on the OS base mapping. However, it is not marked as a public road of any kind.

4.5.4 1950 Road Records Appendix 14

The majority of the claimed route is shown as a clear lane feature on the OS base mapping. However, it is not marked as a public road of any kind.

4.5.5 1863 Yeovil Highway Board Records Ref: D/R/YEO32/4/1, Appendix 15

The claimed route spans two extracts of this map. A-C is shown on the map covering Montague while C-E is shown on the Chilthorne Domer sheet. In each case the route is coloured green. The key to these maps states that highways are coloured yellow, turnpikes are coloured red and halterpaths are coloured green.

4.5.6 Description and interpretation of evidence

The road records from 1929 to the 1950s show that the Highways Section of the County Council did not consider the claimed route to be a public road maintainable at public expense. However, this does not mean that rights did not exist. It may be that the County Council were simply unaware of them. Furthermore, the road records typically do not record bridleways or footpaths. They were also records of maintenance rather than rights, and a public right of any kind over a privately maintained route may not have been shown on these maps. As such these documents are not necessarily evidence against the existence of public rights. Interestingly the earlier Yeovil Highway Board records of 1863 provides a very clear map that marks the route on both sides of the old parish boundary as a lane feature and is coloured green which is referenced as a ‘halter path’ on the key. Historically the word halter path is often believed to have meant a route the public can ride or lead a horse and is therefore consistent with the reference already noted in the Chilthorne Domer Award of 1806 referring to the route as a ‘Bridle Way’.

4.6 Definitive Map and Statement preparation records 4.6.1 Explanation of the type of evidence The Definitive Map and Statement were produced after the National Parks and Access to the Countryside Act 1949 placed a duty on County Councils to survey and map all public rights of way in their area. The process was undertaken in four

12 statutory stages: • Walking Survey Cards and maps - Parish Councils were required to survey the paths they thought were public paths at that time and mark them on a map. The route was described on a survey card, on the reverse were details of who walked the route and when. Queries for the whole parish are often noted on a separate card. • Draft Map – Somerset County Council produced the Draft Map from the details shown on the Survey Map. These Maps were agreed by the County Works Committee and the date of this Committee became the ‘relevant date’ for the area. The map was then published for public consultation. Any objections received were recorded in a Summary of Objections found in the District file. • Draft Modification Map – This stage in the process was non-statutory. SCC produced a map to show any proposed changes as a result of objections to the Draft Map. Any objections received were recorded in a summary of Counter Objections to the Draft Modification map, found in the District file. • Provisional Map – This map incorporates the information from the Draft Maps and the successful results of objections to the Modification Maps. These were put on deposit in the Parishes and District Council offices at this point only the tenant, occupier or landowner could object, • Definitive Map and Statement – Any path shown is conclusive evidence of the existence and status of a public right of way until proved otherwise. The Definitive Map is without prejudice to other or higher rights. 4.6.2 Montacute & Chilthorne Domer Survey Maps Appendix 16

Shows the claimed route as per OS maps as a physical lane feature on the base mapping for most of its length from Windmill Farm but does not mark it as a public right of way of any kind.

4.6.3 Yeovil Provisional Map Appendix 17

Shows the claimed route as per OS maps as a physical lane feature on the base mapping for most of its length from Windmill Farm but does not mark it as a public right of way of any kind.

4.6.4 Definitive Map Appendix 18

The Definitive Map for this area does not mark the claimed route as a Public Right of Way hence the reason for the claim. The nearest public rights of way shown is the public bridleway Y17/25 near Windmill Farm.

13 4.6.5 Description and interpretation of evidence

The draft map for the area covered by the former Yeovil Rural District has not been found. However, neither the Definitive Map nor any of the other preparation documents show the claimed route as a public right of way. While this is certainly not evidence in favour of the existence of public rights it does not necessarily mean there are no public rights as the Definitive Map is under continuous review by law and therefore public rights could have been omitted.

4.7 Other Sources 4.7.1 Section 31 Statutory Declaration Appendix 25

Two sets of Statements and Plans made under Section 31(6) of the Highways Act 1980 and relating to the route in question have been deposited with the County Council. The first was deposited on 11 May 2004 and the second on 29 June 2016. Both relate to large areas of land but only affect that part of the application route shown B-C. In order to be fully effective, statements of this nature need to be followed by a statutory declaration. No such statutory declaration has been made in this case. Furthermore, the effect of a deposit properly made under section 31(6) is to show that the landowner has no intention to dedicate additional rights of way over their land. While this can offer landowners a great deal of protection in terms of preventing new rights from being acquired, it has no retrospective effect. In other words it only covers the period forward from the date the application was made and does not extinguish any rights which may already exist. These deposits only really negate any user evidence from the time they are deposited so in this case are irrelevant as no user evidence was submitted. In addition this would not negate any substantial historical evidence that comes to light eg Inclosure Award evidence during investigations.

4.7.2 Parish Files (held by Somerset County Council (SCC) and relating to PROW issues)

Whilst there is reference to maintenance /obstruction issues of nearby bridleways Y 17/1, Y/25 & Y/17/12 north west of Windmill Farm and linking with claimed route there is no mention in any of the parish /district /rural files of the claimed route as such only general discussions about formation of definitive map /reviews etc. 4.7.3 Day and Masters 1782 Appendix 19

Published in 1782, this commercial map included very little detail typically only depicting settlements, major roads (particularly those in and between settlements), and rivers. It is therefore unsurprising that the claimed route is not shown on the map which neither confirms nor removes the possibility that the route existed in the late 18th century.

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4.7.4 Chilthorne Domer, property of the Hon. Elizabeth Bing, London, made by Samuel Donne of Melbury Osmond. 1766 Ref: DD/S/BG/1 Appendix 26

The application route is shown from approximately point D to about 268 metres south of point E as a linear way with solid casing lines. At the southern end of the mapped area it is labelled ‘Girdlefield Lane’. At the northern end the application route forms part of a plot of land labelled ‘Girdle Field’ which is divided by broken lines into multiple strips of land running approximately north-south. The strips are labelled with names, numbers and / or letters. The width of the strips varies, but several are about the same width as the application route where shown between solid casing lines.

4.7.4 Greenwoods Map 1822 Appendix 20

Greenwoods map of 1822 is far more detailed than Day and Masters showing the claimed route from A-D. The northern end, from D-E, is not shown.

Despite some criticism relating to the accuracy of Greenwoods maps, it provides good evidence that the route physically existed at the time of the survey and, possibly, that the surveyor considered the route to be of some importance. Whether it was marked to depict a public or private route is difficult to deduce however it is very likely the surveyor would have placed more importance on depicting those routes they believed to be publically accessible or useful for the public in some other way. Consequently, no definitive conclusions can be drawn from this map other than the claimed route was at least partly a clear physically defined route as far back as the early 1800’s.

4.7.5 Map of Montacute 1825 Ref: SHC DD/SAS/H/528-18 Appendix 21

This map clearly shows the southern section of the claimed route in Montactue from Windmill Farm north (i.e. A-C) as a clear lane shaded green.The key does not shed light on the green shading in this instance but at the northern end text clearly says ‘to Chilthorne Domer’ at the end of the lane indicating this was a clear through route into the parish of Chilthorne Domer.

4.7.6 Map of the Manor of Chilthorne Domer Domer belonging to H W R W Halsey, Esq 1832 Ref SHC DD/S/BG Appendix 22

This map is much the same as the one used in the inclosure award. It only covers the northern end of the claimed route. A short section (approximately

15 174 metres in length) is shown as a lane feature and coloured pale yellow. The yellow line continues past the end of the lane into Girdle Field and along the claimed route to point E (the yellow colouring is similar to that of the nearby road). At its southern end, before reaching point D, the lane stops at the edge of the mapped area and is annotated with the wording ‘to Montacute’ indicating the route was a through continuation route between Chilthorne Domer and Montacute parishes.

In attributing this document any weight it is important to bear in mind that the primary purpose of this map was to record land ownership. It is unknown whether the map was intended to record public rights or just physical features. Having said this the route is shown in such a way as to imply that the surveyor believed it to be a through route used to travel between settlements. This evidence of reputation weighs slightly in favour of public rights.

4.7.7 Aerial photograph 1946 Appendix 23

It is difficult to make out the lane feature as such on the aerial photography although more visible at the southern end but none the less the field boundary shapes match up well with the OS mapping examined previously and confirm the general physical presence of a route on the ground.

4.7.8 Description and interpretation of evidence

Whilst the old parish files and old Days & Masters maps don’t shed much light on the status of the claimed route, the Greenwoods Map of 1822 and Aerial photography of 1946 do at least show most of the route as a physical feature. The Map of Montacute dated 1825 and Map of Chilthorne Domer 1832 however very clearly indicate that the claimed route was mapped with the intention that this was a through route between the two parishes. The fact that, in each case, the surveyor highlighted the claimed route as a way between settlements suggests that it was of some importance and likely to have been widely used (had it only been for private use why would it have been necessary to label it as leading to a settlement?). It should be noted that the existence and location of public rights was not central to the task of either surveyor. Furthermore, even if they did consider the route to be public there is nothing to suggest that that belief was held more widely (it seems unlikely that the maps in question would have been consulted upon). Nevertheless, these maps remain evidence that the route had the reputation of being public at least among the surveyors in question.

4. 8 Other sources of Primary Documentary Evidence which either did not cover the relevant area or did show the claimed route but do not assist in determining the status.

• Quarter sessions SHC - Q/SR/598/2-6, Q/SR/364/3/14- 15,Q/ST/364/4/25.

16 • Council rights of way files – 5/GEN File 1,2&3 • Rural District Council files 1-4 (1930-2002) • Chilthorne Domer parish files RW5/26

5. Landowner Evidence & Evidence from those against the application.

5.1 This section of the report includes information provided by the landowners. Factual first hand evidence carries more weight than personal opinion, heresay or third-party evidence.

Landowner and response Landowner A –supplied a photograph taken in 1964 (see Appendix 24) which they believe shows no trackway between point A-B of the claimed route. They also state that if the claimed route ever existed it would have been extinguished and diverted onto the current Leyland Trail, Kissmedown Lane which runs parallel to the new application (bridleway Y17/25 ). However, the photo appears to show some sort of track feature in our opinion although it is not clear from the photograph if that track extended past point B.

Landowner B – solicitors acting on behalf of deceased landowner make reference to Section 31(6) Deposit sent to Council in 2016 in respect of client’s land covering this location. They state that they are currently looking at pre-regsitration title deeds and other documents to see if anything of relevance to claimed route.

Comments on Landowner Evidence. Landowner A states that they don’t believe there to be any physical trackway between A-B of the claimed route. This may be the position now that a track is not as visible as once it was but whilst routes can get overgrown and change over time the old OS mapping and other documents have all clearly evidenced that historically there has always been a track /lane feature between A-B and beyond A-B to the north. The comment about the route being diverted onto the nearby bridleway is interesting but no legal confirmed diversion order has been found during investigations to confirm this so without any further evidence this is difficult to consider.

Landowner B’s solicitor makes reference to a Section 31(6) deposit submitted last year relating to section B-C of claimed route but these only really negate any user evidence from the time they are deposited so in this case are irrelevant as no user evidence was submitted. In addition, this would not negate any substantial historical evidence that comes to light eg Inclosure Award evidence during investigations.

17 6. Consultations and other submissions

6.1.1 Consultations regarding the claimed route were sent out to all landowners and relevant local and national user group organisations in January 2017. The table below shows who was consulted and gives brief details of replies that were received.

Consultee and response Parish Council – responded that they could find no record of any bridleway in the parish records and the councillors many of who were born in the village have no knowledge or evidence to support that there is an existing bridleway in the area.

No response was received from the following organisations:-

• District Council • Local Member • Ramblers Association – Somerset Office • British Horse Society – Somerset Office • Trail Riders Fellowship – Somerset Office • All Wheels Drive Club • Open Spaces Society – National Office • Somerset Environmental Records Centre • Somerset and Avon Constabulary • English Nature – Somerset Office • Ramblers’ Association – National Office • British Horse Society – National Office • British Driving Society – National Office • Ramblers’ Association – Local Area Representative • British Horse Society – Local Area Representative • CPRE – Somerset Office

6.1.2 This report was also sent out to consultation in December 2019 to all relevant consultees including the applicant, affected landowenrs, local councillors, parish council, user groups and other relevant bodies. Very few responses were received other than from Historic England to state none of their assests were affected by the recommendation and they had no further comments. In addition, the Trail Riders Fellowship also responded to say they had no comments but were impressed by the detail and depth of information within this report.

7. Summary and Conclusions

Two Section 31(6) deposits have been lodged with the council in the last 16 years. However, this is irrelevant in this case given it would only rebut evidence from the date of deposit onwards. In this case there is no user evidence submitted and the investigation focuses solely on investigation of the historical evidence.

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The application route has been present on the ground as a clear physical lane feature for most of its length since at least 1766 as demonstrated by the old OS mapping and various other commercial maps, aerial photography, old estate and manor plans as well as highway records. However, the same maps consistently show the lane terminating between points D and E. It is therefore clear that this section of the claimed route has not existed as a significant landscape feature in the same way as the rest of the route. While this is noteworthy, it does not in itself mean that D to E was not being used by the public. Argueably it could be evidence that there was little or no public vehicular use, but use on foot or horseback would not necessarily need or create a feature (such as a lane/track) which would have been significant enough to appear on the above mentioned maps.

The Chilthorne Domer Inclosure Award 1832 and Yeovil Highways Board records of 1863 both indicate that the route does have historical pubic rights of way status along its length and was also a continuous route from one parish to the next. In the case of the Inclosure Award, bridleway rights were legally created over D-E. Furthermore, the Commissioners, being well acquainted with the local highway network and having consulted widely on their proposals, refer to A-D as being a public bridleway. The fact that the route has been clearly identified with bridleway status on an Inclosure Award is of very high evidential value to evidence public rights.

This is supported by the 1832 Highway Board map which was produced by those responsible for maintaining highways in the area. They would have been generally well informed about highway law and, given the financial implications, would not have accepted liability lightly. Furthermore, they would have had little or no interest in marking private routes on their maps. Inclusion of the route on this document as a halterpath is therefore strong evidence that the route carried public equestrian rights. While of significantly less evidential weight, the 1825 Parish Map of Montague and the 1832 Manorial Map of Chilthorne Domer both strongly indicate that the claimed route was a way used to travel between the two settlements in question. This is suggestive of a public, rather than a private, right of way.

In many cases, the Finance Act records would also be strongly supportive of the existence of public rights. The exclusion of a route from the valuation raises a strong possibility that it was private. However, in this case, that part of the claimed route which did not follow a physical lane (i.e. that part which approaches point E) was not excluded. It may be that this change in depiction from ‘excluded’ to ‘included’ can be explained simply by the changes in physical character. Where the bridleway left the enclosed lane it was dealt with by way of deducation rather than exclusion from the valuation. However, it is also possible that the valuer chose to exclude that part of the route which carried multiple private rights and that no such rights existed over the northern section of the claimed route. Given the evidence of the inclosure award and the highways board map, it seems more likely in this case that the route was excluded on account of it being a bridleway which followed an enclosed lane. However, the possibility of multiple private rights reduces the weight which

19 might ordinarily be attributed to this set of documents. Furthermore, even if the claimed route was excluded on account of the existence of private rights, this would not in itself be inconsistent with the route also being a bridleway.

In fact, the only piece of evidence which is potentially inconsistent with the existence of a bridleway is the blue shading on the route between points D and E on the first edition of the OS’s County Series map. This would seem to indicate the existence of a body of water. However, there is nothing to show that that water was not traverable and it does not in itself outweight the strong body of evidence in favour of the claimed route being a bridleway.

8. I therefore recommend that………

i. an Order be made, the effect of which would be to add to the Definitive Map and Statement a public bridleway between points A-B-C-D-E as shown on appendix 1. ii. if there are no unwithdrawn objections to such an order it be confirmed iii. if objections are maintained to such an order, it will be submitted to the Secretary of State for Environment, Food and Rural Affairs for confirmation iv. the route is maintained at public expense.

List of Appendices

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

1. Plan showing claimed route 2. Photographs 3. Landownership plans 4. Chilthorne Domer Inclosure Award 1832 5. Tithe Map & Apportionment 6. 1st edition OS 25” map 7. 1884 OS Boundary Sketch Book & Maps 8. 1st edition OS 6” map 9. 2nd edition OS 25” map 10. OS Cassini Maps 1811-1919 11. Finance Act & Field Book

20 12. 1929 Road Handover map 13. 1930 Road records map 14. 1950s Road records map 15 Yeovil Highway Board records 1863 16. Montacute & Chilthorne Domer Survey maps 17. Yeovil Provisional Map 18. Definitive Map 19. Days & Masters map 1782 20. Greenwoods Map 1822 21. Map of Montacute 1825 22. Map of Manor of Chilthorne Domer 1832 23. Aerial photo 1946. 24. Aerial photo of Windmill Farm 1964 25. Section 31 Deposit (2016) 26. 1766 Manorial Map

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