Wildlife and Countryside Act 1981

WILDLIFE AND COUNTRYSIDE ACT 1981 – SECTION 53, SCHEDULE 14 APPLICATION TO ADD BRIDLEWAYS IN THE PARISH OF BROADWAY 568M, 569M AND 570M AND APPLICATION TO ADD A RESTRICTED BYWAY IN THE PARISH OF BROADWAY 571M

Author: Erica Darch Date: 14 February 2019

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CONTENTS Page 1. Introduction 3 2. The application and supporting evidence 3 3. Description of route 4 4. Relevant legislation 5 5. Documentary evidence 6 6. Landowner evidence and evidence from 29 those against the application 7. User Evidence 30 8. Consultation and other submissions 31 9. Discussion of the evidence 32 10. Summary and conclusion 36 11. Recommendation 36

1. Introduction

1.1. On the 22/09/2008 the South Somerset Bridleways Association (SSBA) made an application under Schedule 14 and Section 53(5) of the Wildlife & Countryside Act 1981, for an Order to amend the Definitive Map and Statement by adding bridleways as described in paragraph 2 below (568M, 569M and 570M).

1.2. On the 12/12/2008 the SSBA made an application under Schedule 14 and Section 53(5) of the Wildlife & Countryside Act 1981, for an Order to amend the Definitive Map and Statement by adding a restricted byway as described in paragraph 2 below (571M).

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

1.4. A restricted byway can, in addition, be used by the public with non- mechanically propelled vehicles (such as a horse and cart).

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

2. The Application

2.1. The application is based on documentary evidence and includes extracts of the following documents.

Document 568 569 570 571 Recent photographs of the route ● ● ● ● Neroche Forest Inclosure Award, 1833 ● ● ● ● Q\RDE/107 Broadway Tithe Map, 1844 ● ● ● ● Sale documents, Earl of Egromont’s Estate, ● ● 1852 DD\WY/9/2/144 OS Boundary Records. Circa 1885 ● Sales documents, 1887 DD/CA/181 ● OS Map, Cassini reprint, 1898 – 1900 ● ● ● ● OS Object Name Book, circa 1900. ● Finance Act 1910 records ● ● ● ● OS Map, Cassini reprint, 1919 ● ● ● ● Sale Documents D/P/ILT/23/10 - 13 ● ● Bartholomew’s map, 1927 ● ● ● ● OS War Revision Map, 1940 ●

Land Registry documents ●

2.2. No user evidence was submitted with the application. Evidence of use submitted during the investigation is discussed at section 7.

3. Description of Route

3.1. The application routes are shown on Appendix 1. The widths of the routes as measured during the site visit 11/12/2017 are shown on Appendix 2.

3.2. Application route 568M runs from point A at the vehicular highway known as Silver Street at Dingford Farm in a northerly direction for about 594 metres to point B on the south side of a vehicular highway known as Hare Lane, and then from the north side of Hare Lane for about 155 metres in a north north-westerly direction to point C at a junction with Long Drove. This route was overgrown and inaccessible between A and Ai. Between Ai and B and B and C the route has a metalled or gritted surface with grass verges to either side.

3.3. Application route 569M runs from point C in a generally north easterly direction through point D to point E on the south west side of the vehicular highway adjacent to Long Grove Farm. The surface is grass or bare soil / mud with hedges and trees to either side, with some metalling in the vicinity of point E. There is a metal field gate across the way between D and E.

3.4. Application route 570M runs from point F on Hare Lane at Hare Farm in an almost northerly direction for about 401 metres to point D on Long Drove. The surface is grass and bare soil/ mud with some metalling in the vicinity of point F. There are double field gates just north of point F, open at the time of the site visit.

3.5. Application route 571M runs from point G on Hare Lane in an almost northerly direction for about 422 metres to the vehicular highway at Newhouse Farm. The surface is gritted / bare soil with grass verges to either side.

3.6. Photographs of the claimed route taken on 11/12/2017 are at Appendix 3.

3.7. A land registry search was carried out on 24/11/2017. The land registry search identified that there were no registered owners for the claimed route, and 14 owners or joint owners of adjacent land. The landownership is shown at Appendix 4.

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

4. Relevant Legislation

4.1. The Wildlife and Countryside Act 1981 specifies in Section 53(2)(b), that the County Council must keep the Definitive Map and Statement under continuous review and must make such modifications as appear to them to be requisite in the light of certain specified events. In this case sections 53(30(b) and 53(3)(c)(i) are of particular relevance.

4.2. Section 53(3)(b) requires the Map and Statement to be modified on “the expiration, in relation to any way in the area to which the map relates, of any period such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path”.

4.3. Section 53(3)(C)(i) states that the Map and Statement should be modified where the County Council discover evidence which, when considered with all the other available evidence, shows “that a 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”

4.4. 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 Sections 53(3)(b) and 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 SSBA made their application.

4.5. The purpose of Section 53 of the Wildlife and Countryside Act 1981 is to add or delete from the record of public rights of way so that it accurately records the rights that exist. It is not to create or extinguish rights themselves. Therefore, practical considerations such as suitability of a route, security, and the wishes of adjacent landowners or user groups, cannot be considered under the legislation.

4.6. Twenty years use by the general public can give rise to the presumption of dedication of a way under Section 31 of the Highways Act 1980. The period of 20 years is measured backwards from the date of challenge by some means sufficient to bring it home to the public that their right to use the way is being challenged. Section 31 (1) states “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 actually been 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”.

4.7. Section 32 of the Highways Act 1980 states that “a Court or other tribunal, before determining whether a way has or has not been dedicated as a highway, or the date on which such dedication, if any, took place shall take

into consideration any map, plan or history of the locality or other relevant document which is tendered in evidence and shall give weight thereto as the Court or tribunal considers justified by the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or compiled and the custody in which it has been kept and from which it is produced”.

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

4.9. Any changes to the Definitive Map must reflect public rights that already exist. It follows that changes to the Definitive Map must not be made simply because such a change would be desirable, or instrumental in achieving another objective. Therefore, before an order changing the Definitive Map is made, SCC must be satisfied that public rights have come into being at some time in the past. This might be in the distant past (proved by historic or documentary evidence) or in the recent past (proved by witness evidence). The decision is a quasi-judicial one in which the decision maker must make an objective assessment of the available evidence and then conclude whether or not the relevant tests set out above have been met.

5. Documentary Evidence

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

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

5.3. Pre-Enclosure Maps

5.3.1. Plan of Neroche Forest, 1823. SHC (Somerset Heritage Centre) reference: A\BAV/43/5 Appendix: 5

Description of evidence

5.3.2. Labelled “Copied from a Survey made by W. Chilcott”. The key does not include roads or any other type of way.

5.3.3. The area through which the application routes run is shown as (according to the key) meadow and pasture and labelled Broadway Common. A route in approximately the position of the now public vehicular road Hare Lane is shown uncoloured with parallel broken casing lines for the majority of its length, with solid casing lines at either end of the mapped area, and labelled ‘To Buckland’ at the western end and ‘To Broadway’ at the eastern end. No route of any kind is indicated in the position of any of the application routes.

5.3.4. Map of the Forest Grounds and Broadway Common in the Parish of Broadway, circa 1830. SHC reference: DD\SAS/C1193/2 Appendix: 6

Description of evidence

5.3.5. There is no key. The area through which the application routes run is shown tinted green. The approximate route of the public vehicular road Hare Lane is shown between parallel broken casing lines with short sections of solid lines at either end. Hare Lane is not labelled. No linear ways of any kind are shown in the position of the application routes.

Interpretation of evidence

5.3.6. Although there is no key including roads or ways on either map it was a common convention for maps of a similar date to show unfenced ways with broken casing lines and fenced ways with solid casing lines. These maps therefore suggest that Hare Lane was unfenced at the time of the surveys, which would be consistent with a route through a common.

5.3.7. Neither map shows any feature which might be a linear way in the position of the application routes under consideration here. This suggests that these routes did not exist as significant physical features prior to the area being enclosed (see 5.4, below).

5.4. Enclosure Records:

Explanation of the type of evidence

5.4.1. 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 often 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, confirmed and endorsed and sometimes stopped up as necessary. 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.

5.4.2. Neroche Forest Inclosure Act (1830) and Award (1833). SHC reference: DD\WY/8/7/20 and Q\Rde/107. Appendix: 7

Description and interpretation of evidence

5.4.3. The relevant act gave the Commissioner the power to continue or discontinue, stop up, divert, turn, or alter any of the carriage-roads, highways, bridle-roads or footways. The award also incorporated the Inclosure Consolidation Act of 1801 which set out a number of provisions which could be incorporated into future acts. This included giving the Commissioner the power to set out private roads, public roads, bridleways, footways, quarries, bridges, gates, stiles and a number of other features.

5.4.4. The application routes are shown on the plan with no lines across the routes separating them from each other or the now public vehicular roads which they join.

5.4.5. The award lists the routes numbered 1 to 14 under the heading ‘Public Carriage Roads’. The application routes are numbered in red on the plan 31, 33, 34, 35 and 36. They are all described as private roads.

5.4.6. Page 197 of the award states that the private roads are to be maintained at the expense of the owners and occupiers of the allotments set out in the award. There is also a schedule of private roads which includes details of who was made responsible for their maintenance. A column headed ‘Length of Roads in yards to be made and at all times for ever hereafter to be supported and kept in repair by each Owner and Proprietor for the time being’ gives the lengths each landowner or group of landowners was responsible for. In the final column, ‘Observations and Explanations’ brief descriptions of the locations of the routes are given. The application routes are all included in the schedule of private roads.

5.4.7. The Commissioner had the power to set out public carriage roads and highways as well as private roads, bridleways and footpaths. The award

clearly differentiates between public and private roads and identifies all application routes as private roads. In addition, the schedule lists the application routes as private roads with the ‘Owners and Proprietors’ with responsibility for maintenance of them. Although the act and award do not specify who could use the private roads, the same was true of the Dunlop1 case in which it was ruled that the term ‘private’ refers to the lawful class of user of a route (i.e. private roads were for the use of a limited, if unspecified, section of society rather than the public as a whole). While that judgement is only likely to be binding in relation the specific award being considered in Dunlop, the Planning Inspectorate advice that the term ‘private’ ‘when used with other local acts which derive from the 1801 General Act probably have the same meaning’ as that described in the Dunlop case2. There appears to be no reason to depart from this advice in the current case and so these documents are considered strong evidence that no public rights were set out over the application routes by the enclosure of 1833. They do not, however, preclude public rights coming into existence after enclosure.

5.4.8. It has been suggested that the public would have needed to use the private roads to reach their property and lands, but this use would be consistent with a private right limited to owners, occupiers and their invitees. It has also been suggested that the 14 public carriage roads set out in the award would be insufficient for the area, and that the public would therefore most likely have used the private roads as well. It is obviously very difficult to speculate on what would have been considered a ‘sufficient’ public road and rights of way network in the early 19th century, but presumably the commissioner considered the public roads he set out were enough. If there was sufficient unchallenged use of the application routes post enclosure this could give rise to a presumption of dedication, but there would need to be evidence to demonstrate that this was the case.

5.4.9. Particulars and Valuation of Allotments in the Forest of Ne Roach within the parish of Broadway, 1833. SHC reference: A/ALU/3. Appendix: 27

5.4.10. The plan is uncoloured. Plots of land are numbered and what appears to be area measurements given for many of the plots. There is no key.

5.4.11. The application routes are all shown, unlabelled and unnumbered. The plan may have been produced as part of, or in response to, enclosure, and shows the same layout of linear ways as the enclosure award. However, it’s purpose does not appear to be to show public or private rights over linear ways.

5.4.12. This document potentially confirms that the application routes

1 Dunlop v Secretary of State for the Environment and Cambridgeshire County Council [1995] 2 DMO Consistency Guidelines, 6th revision May 2015 Section 7.34, page 7

were physically laid out in accordance with the enclosure award (if it was not produced as part of the preparation for the award itself) but, in light of the conclusions reached with regard the Award, does not provide direct evidence for or against public rights over the application routes.

5.5. Tithe Records:

Explanation of the type of evidence

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

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

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

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

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

5.5.6. Broadway New Enclosures Tithe Map, c.1840. SHC reference: D\D/Rt/M/453. Broadway Tithe Map, 1844 (extract only) National Archives reference: IR30/30/64 Appendix: 8

Description and interpretation of evidence

Copy held by the SHT, understood to be the Diocesan copy.

5.5.7. All four application routes are shown on the tithe map coloured buff, un-numbered, and with no transverse lines across them. Roads which are today public vehicular roads, bridleway CH 2/20, part of footpath CH 2/3 and two routes with no recorded public rights leading north from the end of

application route 570M and north from the end of application route 568M are also shown in the same way as the application routes. One route leading to Venner’s Farm is shown un-numbered, uncoloured with a transverse line separating it from the public vehicular road.

5.5.8. Any unproductive land for which no tithe would be payable would be unnumbered on a tithe map, irrespective of whether the land was subject to a public or private right of way, or to no rights of way of any kind. The fact that the application routes are unnumbered is therefore evidence that they were unproductive and no tithe was payable in relation to them. However, it does not assist in determining whether they were public rights of way, or if they were, of what type. As the routes are unnumbered, the apportionment is of no assistance.

5.5.9. Although most of the other routes shown coloured buff in the same way as the application routes are today public vehicular roads, there are a number of exceptions within a relatively small area when compared with modern recorded rights. As there is also no key, it is therefore difficult to draw the conclusion that the surveyor coloured routes they believed to carry public rights buff. In any case, the tithe map did not claim to record public rights and was not produced for that purpose. In light of all the above, beyond confirming the physical existence of the application routes, this document is of little weight in this investigation.

National Archives Copy, probably the copy retained by the Tithe Commissioners.

5.5.10. All four application routes are shown coloured yellow and unnumbered as are other routes which are today public vehicular roads, and also bridleway CH 2/20, part of footpath CH 2/3 and two routes with no recorded public rights leading north from the end of application route 570M and north from the end of application route 568M.

5.5.11. The same conclusions are drawn in relation to this document as to the Diocesan copy.

5.6. Post Enclosure Maps

5.6.1. Draft plan of lands in the parishes of Beer Crocome, Asill, Whitelackington, Isle Abbotts, South Bradon, Ilton, Buckland St Mary and Broadway, belonging to the trustees of the late earl of Egremont, compiled from maps of the several parishes, 1852 SHC reference: DD\WY/9/2/144. Appendix: 9

Description and interpretation of evidence

5.6.2. The title shows the purpose of this plan was to show land in the ownership of the trustees of the late Earl of Egremont. The key identifies tenants but does not include linear ways of any kind. Nothing suggests it was intended to record public highways of any kind or that the purpose for which it was produced might result in the incidental recording of public rights.

5.6.3. Little detail is shown between the plots of land which are in the ownership of the trustees. The plots of land are coloured according to the key to indicate the tenant, but otherwise the map is black and white with almost no labels. All linear ways are uncoloured.

5.6.4. Most of application route 568M is shown, although the southern end is not. All of application route 569M is shown. Only the northern most ends of 570M and 571M are shown.

5.6.5. The map indicates that the application routes, as far as they are shown, were unlikely to have been in the ownership of the trustees, and is strong evidence that they physically existed in 1852. Some of the tenants identified would have had to use B-C-D-E or parts thereof to access their land, and this would have been highly likely to include vehicular access. Therefore this plan is implied evidence that vehicular access was taking place over Long Drove at this time. However, this document would be compatible with public or private rights over the application routes.

5.6.6. Sales Particulars, 1866 (extract only). SHT reference: DD\SAS/C795/PR/463/2. Appendix: 10

5.6.7. The plan is in black and white with the lots of land for sale outlined in colour. Little detail is shown outside of the lots for sale, but the names of (presumably) adjacent landowners are given. The western end of Long Drove (569M), 568M between B and C, and a short distance south of B are shown. Two lots border the application routes; lot 10 to the west of C, and lot 11 to the east of B and C. No part of the application routes is included in the lots for sale.

5.6.8. The plan is very strong evidence for the physical existence of the application routes where shown in 1866, and also strong evidence that the sections of application route shown were not included in the lots for sale and therefore unlikely to be in the same ownership as those lots.

5.6.9. Whilst lot 11 might have been accessed from the public road, lot 10 would have required at least a private right over B to C for vehicular access. Even if no easement is mentioned in the particulars, the information provided is so brief that it could not possibly contain all the relevant information which a purchaser would wish to know and other documents, which may also have

contained details of easements, must have been available. It is therefore not safe to conclude that because vehicular access would have been required and no easement is mentioned, the relevant sections of the application routes must have carried public vehicular rights.

5.6.10. Sale Particulars, 1887. SHC reference: DD/CA/181. Appendix: 11.

Description and interpretation of evidence

5.6.11. The relevant section of the map which forms part of the sales particulars shows the whole of application route 571M. At the north end of the route short sections of the public vehicular roads leading north-west, north and south-east are shown with the destinations labelled. At the southern end of 571M short sections of Hare Lane leading east and west are shown, and a short section of bridleway CH2/20. All of these routes are shown uncoloured between solid casing lines of equal thickness.

5.6.12. Lot 9 is bordered on the west by application route 571M and on the north-east by a public vehicular road. A feature resembling a gate is shown on the boundary between lot 9 and the public road. No part of the application route is included in the land to be sold.

5.6.13. Lot 9 is described in the particulars as adjoining the main road leading from Broadway to Staple Fitz Paine. No mention is made of the application route. The conditions of sale state that all lots are sold subject to existing rights of way and easements but gives no details of any such rights.

5.6.14. These documents confirm the physical existence of a linear way over application route 571M in 1887. However, there is nothing to indicate the status of that way. It is not referred to in the particulars or labelled on the plan and all the linear ways are shown in the same way including one bridleway. Whilst all the other ways shown carry public rights, there is a limited basis for comparison. No public or private right of way would have been needed over the application route to access lot 9.

5.6.15. These documents would be compatible with the application route being a public vehicular road, a private road with or without lower public rights over it, or a public right of way with no private rights over it. Therefore, beyond confirming the physical existence of the application route, these documents are of limited assistance in this investigation.

5.6.16. Sales particulars, 1920. SHC reference: D/P/ilt/23/10. Appendix: 12.

Description and interpretation of evidence

5.6.17. Application route 568M is shown between point B and C. Application route 569M is shown between C and a point circa 227 metres north-east of point D. The whole of application route 570M is shown.

Application route 571M falls outside the mapped area.

5.6.18. All three routes are shown uncoloured between solid casing lines of equal thickness. Hare Lane (a public vehicular road) and a cul-de-sac leading north from Long Drove over which no public rights are today recorded are also shown in the same way.

5.6.19. No part of any of the application routes shown are included in any lot for sale. Lot 33 is bounded on the south by Long Drove (569M). The particulars for lot 33 do not mention public or private rights of way or any other detail of assistance to this investigation.

5.6.20. The general memoranda forming part of the conditions of sale includes statements that all lots are sold subject to existing rights of way and easements whether mentioned in the particulars or not, and that the vendor shall not be required to prove the title to any right of way by which the lots are approached nor to define any such rights of way. The conditions of sale again state that the property is sold subject to rights of way and easements, and also to the liability to repair or contribute to the repair of roads, bridges, dykes and other features.

5.6.21. These documents confirm the physical existence of the application routes as far as they are shown in 1920. However, there is nothing to indicate their status. The application routes are not referred to in the particulars or labelled on the plan in a way which indicates public or private rights, and all the linear ways are shown in the same way including public vehicular roads and at least one route with no recorded public rights.

5.6.22. Despite the caveats in the conditions of sale, some form of vehicular access, whether by virtue of a public right of way or private easement, would have been required over at least B-C and part of 569M and / or F-D in order to reach Lot 33. No such rights are referred to or indicated by anything in the sales particulars, but the particulars make it clear that details of the means of access to any particular lot would not necessarily be described.

5.6.23. These documents would be compatible with the application routes shown being public vehicular roads or private roads with or without lower public rights over them. Therefore, beyond confirming the physical existence of the application routes where shown these documents are of no assistance in this investigation.

5.6.24. Bartholomew’s Map, 1911 and 1927. Extract Only. Appendix: 13.

Description and interpretation of evidence

5.6.25. B

5.6.26. On the 1911 edition all four application routes are shown uncoloured between the narrowest spaced casing lines. The key states that ‘The uncoloured roads are inferior and not to be recommended to cyclists’ and ‘NB. The representation of a road or footpath is no evidence of the existence of a right of way’.

5.6.27. Some roads which are today public vehicular highways are shown uncoloured in the same manner as the application routes.

5.6.28. The application routes are shown in the same way on the 1927 edition, and the key contains almost identical statements in relation to uncoloured roads and rights of way.

5.6.29. Bartholomew’s map was considered in The Commission for New Towns and Worcestershire County Council v J.J. Gallagher Limited3. In that case it was considered that the implication was that the uncoloured roads on Bartholomew’s map were considered public carriageways. After referring to the disclaimer (see above) Neuberger J. went on to say “I do not consider that that means that one can cast aside what one could otherwise glean from Bartholomew as being of assistance, but the disclaimer underlines the fact that one cannot place much weight on Bartholomew’s Maps, or indeed on any map which does not have the positive function of identifying public carriageways.”

5.6.30. Following this interpretation, Bartholomew’s 1911 and 1927 map are evidence in favour of the application routes under consideration here carrying public vehicular rights, but can be given little weight.

5.7. Ordnance Survey Records:

Explanation of the type of evidence

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

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

OS boundary sketch map, 1885 (extract only) National Archives reference: OS27 4620 Appendix: 14

5.7.3. The plan shows features at the point they cross parish boundaries and

3 [2002]EWHC 2668 (Ch)

only the most minimal detail between. The purpose of these plans was not to record the status of ways, but to show features at parish boundaries.

5.7.4. Application route 568M is shown from point B to C, with a linear way continuing north north-west from C towards Swaddle’s Green Farm. No other part of the application routes are shown in any way. Nothing has been found which suggests that the OS did not record private roads when compiling the Boundary Remark books if such routes were suitably located.

5.7.5. Beyond confirming the physical existence of a linear way between B and C in 1885, this document does not weigh for or against public rights over the application routes.

OS County Series Maps Sheet No: LXXXVII.3 and LXXX.15 Survey Date: 1886 and 1901 Published: 1888 and 1903 Scale: 1:2500 Appendix: 15

1888

5.7.6. Application route 568M is shown from point A to the way leading west to Rydiness Farm (labelled point Ai on appendix 1) uncoloured between solid casing lines of equal thickness, with a broken transverse line at either end of this section. From Ai to point C the application route has a shaded casing line to the east, and a central strip is coloured sienna between broken lines. There is a broken line across the route at C.

5.7.7. Application route 569M is shown from point C for about 323 metres north-east (labelled Ci on appendix 1) with a shaded casing line to the south and a central strip coloured sienna between broken lines. The rest of the route is shown uncoloured between casing lines of equal thickness.

5.7.8. Application route 570M is shown uncoloured between casing lines of equal thickness with a transverse broken line at D and F.

5.7.9. Application route 571M is shown uncoloured between casing lines of equal thickness with a transverse broken line at H and G.

1903

5.7.10. The map is uncoloured but the application routes are shown in much the same way as on the 1888 edition, except that the whole of each route is now shown with casing lines of equal thickness.

OS Revised New Series map, 1898 - 1900 Cassini Timeline reprint (extract only) Original scale: 1:63,360 (one inch to the mile) Appendix: 16

5.7.11. All the application routes are shown uncoloured between solid casing lines of the narrowest spacing, except B to C which is shown uncoloured between slightly wider spaced casing lines. The key identifies the narrowest spaced casing lines as ‘Unmetalled Roads’ and the slightly wider casing lines as ‘Metalled Roads: Third Class’.

OS Object Name Book The National Archives Ref: OS35/6422 (1901) and OS35/6412 (1902) (extract only) Appendix: 17

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

5.7.13. Application route 569M is called Long Drove and spans two OS maps sheets and therefore appears in two Object Name Books.

Map Sheet Description LXXXVII.NE An unmetalled road extending from a few chains NE of (1901) Roach Farm in a S. Westerly direction for nearly a mile. The description of this drove in the O.N.B. is incorrect.

Authority for the modes of Spelling Mr. G. Warry. Asst. Overseer Broadway

LXXX.SE Description (1902) A public road extending from 9 chains north east of Roach Farm to the junction of roads on the south west.

Authority for the modes of Spelling As above. [Entry above reads: Mr [or Mrs] J. Snell Owner Wick Glastonbury]. 80/15 Parish and Owners Name A road on the north west of the above farm. [The above farm is Roach Farm). Signature Julian [or Julia] Snell Wick Glastonbury 87/3 Parish and Owners Name Ph of Broadway Signature George Warry Asst Overseer

5.7.14. The description of the location of Long Drove is relatively accurate. The north east end of the route is about 8.6 chains north east of Roach (or Roche) Farm, and runs from there in a south westerly direction for 0.8 of a mile. The applicant states that the incorrect description referred to was in an earlier object name book which does not survive today. As it is unknown what the incorrect description was, this is of no assistance in this investigation.

5.7.15. The term ‘road’ used in 1901 might refer to either a public or a private way, but the term ‘public road’ used in 1902 is explicitly descriptive of public rights. The term ‘road’ would usually be taken to describe a route over which there were vehicular rights, but at a time when horses were still a significant mode of transport the possibility that it was referring to a bridleway must also be considered.

5.7.16. No evidence has been provided to suggest that the other application routes were recorded in the Object Name Book.

OS ‘popular edition’ Map 1919 (extract only) Cassini Timeline reprint Original scale: 1:63360 (one inch to the mile) Appendix: 18

5.7.17. All four routes are shown uncoloured between solid casing lines of the narrowest spacing, except B to C which is shown uncoloured between slightly wider spaced casing lines.

5.7.18. The key identifies single broken lines as ‘Bridle and Footpaths’, narrow uncoloured routes as ‘Minor Roads’ and wider uncoloured routes as roads under 14’ wide, bad. It also includes the statement that ‘Private Roads and uncoloured’.

5.7.19. The surveyor therefore identified 568M between B and C as a road under 14 feet wide which was either ‘bad’ or private (or both), and the rest of the application routes as minor roads, which may or may not have been private.

1940 OS War Revision Map, 5th Edition (extract only) Appendix: 19

5.7.20. All of the application routes are shown uncoloured between the narrowest spaced casing lines. There is no key.

Description and interpretation of evidence

5.7.21. The OS was concerned with recording physical features rather than the public or private status of the routes depicted. As such the OS maps and records confirm the physical existence of the application routes at the time of the surveys, but rarely offer direct assistance in determining what, if

any, public rights exist over them.

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

5.7.23. It has been suggested that, when such maps were made for sale to the public, they would be unlikely to show routes which the public could not use. However, it is clear that the OS did map private roads (keys and instructions to surveyors refer to such features) and to omit any significant physical feature such as a private road would be contrary to the approach of the OS. The OS accurately recorded physical features but paid little attention to rights (public or private) which might correspond with a physical feature, but which themselves have no physical existence.

5.7.24. Parts of the application routes are shown with a shaded casing line on the 1888 25 inch map. In relation to thickened casing lines the Planning Inspectorate’s Consistency Guidelines state that “From 1884 onwards, on the large scale plans, those metalled public roads for wheeled traffic, kept in proper repair by the local highway authority, were to be shown with shaded or thickened lines on the south and east sides of the road.”6

5.7.25. From 1885 OS surveyors were instructed that all Metalled Carriage Drives will in future be shaded but with shading not quite so prominent as on Public Roads. In the late 19th century ‘carriage drive’ appears to have meant ‘private vehicular route’ to the OS7. This would mean that some public and some private roads would be shown on OS maps with a shaded casing line, albeit with those shaded lines being of different thicknesses. In this case, it has not been possible to discern two distinct thicknesses of shading and thus differentiate between the two reasons for shading. Whilst the vast majority of ways shown with a shaded casing line are today public vehicular roads, there are examples of private routes leading through grounds to large houses being shown both shaded and coloured sienna8. For example, the continuation west from point Ai towards Rydiness Farm and a route leading to Hermitage Farm are cul-de-sacs which were unlikely to have carried public vehicular rights and over which no public rights are today recorded, but as access to properties are likely candidates for being ‘metalled carriage drives’.

4 Oliver, R. (2005) Ordnance Survey Maps, a concise guide for historians, The Charles Close Society, London 5 Moser v Ambleside Urban District Council (1925) 89 JP 118 at 119, Pollock MR 6 DMO Consistency Guidelines, 6th revision May 2015 Section 12.26, page 8 7 Hodson, Y. , ‘Roads on OS 1:2500 plans 1884 – 1912’ in Rights of Way Law Review, July 1999, Section 9.3, p.109 8 Burnt sienna was used on the First Edition 1:2500 plans to indicate a metalled surface. Hodson, Y., ‘Roads on OS 1:2500 plans 1884 – 1912’ in Rights of Way Law Review, July 1999, Section 9.3, p.109

5.7.26. Therefore, although the most common explanation for a thickened casing line will be that the route was considered public, there is an alternative explanation which, in light of the fact that the route was set out as private in the enclosure award, is very plausible in this instance. In any case, there are two important caveats in relation to this piece of evidence. Firstly, even in so far as the thickened casing line relates to status, it may be no more than the view of the surveyor at the time9. Secondly, any inference that is to be taken from the thickened casing line is only relevant to Ai to Ci. The rest of the application routes have casing lines of the same thickness.

5.7.27. Taking all the above into account the way in which the application routes are shown on, or indicated by, the OS maps are broadly as consistent with the existence of private rights as they are with public rights.

5.7.28. The Object Name Book (ONB) of 1901 refers to Long Drove as an ‘unmetalled road’ which would be compatible with a public road or a private road with or without lower public rights running over it, and in 1902 as a ‘public road’. The term ‘public road’ is explicit and unambiguous and therefore strong evidence in favour of public rights over Long Drove, very probably vehicular.

5.7.29. The entry for Long Drove in the 1901 Book was corroborated by the Assistant Overseer [of the Poor]. Whilst this was an official position, they were primarily responsible for the collection of rates and did not usually have any particular responsibilities relating to highways.

5.7.30. The authority for the mode of spelling in 1902, Mr/s J. Snell, is described as the owner. As such, they would be considered a very good authority for any details they supplied or corroborated, and would be unlikely to describe a route they owned as a public road unless they thought it was so. However, the land over which Long Drove runs is not registered with the land registry today, no owner could be satisfactorily identified during the commons registration process, and no individual owner was assigned Long Drove in the enclosure award. In what capacity Mr/s Snell was considered the owner of Long Drove is therefore uncertain.

5.8. 1910 Finance Act

Explanation of the type of evidence

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

5.8.2. Land was broken into ownership units known as hereditaments and

9 District Surveyors may have checked the depiction of roads on OS maps from as early as 1884, but this was not mandatory at that time. Ibid.

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

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

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

5.8.4. The 1910 Finance Act material did not become widely available until the mid 1980s. It cannot therefore have been considered during the Definitive map making process and can be considered “new evidence”. This is of particular importance for meeting the requirements of section 53(3) of the Wildlife and Countryside Act 1981 which requires the ‘discovery’ of new evidence (i.e. evidence not considered when the Definitive Map was originally drawn up or last reviewed) before an order to amend the definitive map can be made.

5.8.5. Finance Act Record Plan, 1910. NA reference: IR128/9/981 and IR128/9/1054. Appendix: 20

Description and interpretation of evidence

5.8.6. The working plans for the area have not been divided into hereditaments, and only isolated numbers appear on the map. The working plans and valuation books are therefore of no assistance in this case.

5.8.7. All four routes are excluded from the surrounding hereditaments and are un-numbered on the record plans.

5.8.8. Exclusion of a route from the surrounding hereditaments raises a strong possibility that it was considered to be a public highway. However, there are other possible reasons for the exclusion of a route, one of which is that it was laid out as a private road for multiple users in an enclosure award.10 In this case, the application routes were laid out in the enclosure award as private roads. The award does not say who could use the private roads, but does set out which individual allotment holders were responsible for their maintenance.

10 DMO Consistency Guidelines – 5th revision July 2013 Section 11.7 page 4,

5.8.9. Therefore, although exclusion from valuation on a Finance Act map is usually good evidence for public rights, usually, but not necessarily, vehicular, in this case there is a plausible alternative reason. In order to determine why the application routes have been excluded it is therefore important to consider the record plans in the context of all the other documents.

5.9. Highway Road Records held by the County Council

Explanation of the type of evidence

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

1929 Handover Map

5.9.2. None of the application routes are coloured to indicate they are roads maintainable at public expense on the 1929 handover map.

1930 Road Records

5.9.3. None of the application routes are coloured to indicate they are roads maintainable at public expense on the 1930s road records.

1950 Road Records

5.9.4. None of the application routes are coloured to indicate they are roads maintainable at public expense on the 1950s road records.

Description and interpretation of evidence

5.9.5. These maps are records of maintenance liability, not of public rights, and did not usually indicate non-vehicular public rights of way even if they were known to exist. As such, these records are excellent evidence that the application routes were not considered to be public vehicular roads maintained at public expense and provide no evidence in support of public rights. However, they do not weigh against the existence of such rights either.

5.10. Definitive Map and Statement preparation records

Explanation of the type of evidence

5.10.1. The Definitive Map and Statement were produced after the National Parks and Access to the Countryside Act 1949 placed a duty on

County Councils to survey and map, all public rights of way in their area. The process was undertaken in a number of stages:

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

Description and interpretation of evidence

5.10.2. None of the application routes are recorded as public rights of way of any kind today, none are shown on any of the preparation maps, and no evidence has been found that they were considered during the process of drawing up the DMS.

5.10.3. However, the DMS is definitive only of what it shows, not of what it omits. Therefore, although the DMS and preparation documents provide no evidence for public rights over the application routes, they are also no evidence against the existence of public rights.

5.11. Commons Register, Unit No.200. Held by Somerset County Council. Appendix: 21

Description and interpretation of evidence

5.11.1. Application route 568M between points B and C and the whole of 569M and 570M are registered as Common Land (reference CL200). Although the land registered as Common extends beyond the application routes, the width of the registered common corresponds with the width of the linear ways over which the application routes run.

5.11.2. Point A to B and application route 571M (G to H) are not registered as common land.

5.11.3. The Commons Register for CL200 records rights to estovers and turbary (to take wood and cut turf or peat for fuel) attached to land forming part of Venner’s Farm, Broadway. There was an objection to the registration of these rights, but the objection was effectively withdrawn without a public inquiry and the evidence supporting the claim was therefore not examined by the Commons Commissioner. The evidence supporting the claim has not been found and cannot therefore be examined as part of this investigation. Registration of CL200 was confirmed in 1976.

5.11.4. The Commons Registration Act 1965, states that common land does not include land which forms part of a highway (section 22(1)). Therefore this is very clear evidence that (where registered as common), the application routes were not believed to be public highways in 1976. However, that belief may in part have been based on the DMS, which does not record any public rights of way over the application routes. The DMS is not definitive of what it omits and is therefore not evidence that no right of way exists where one is not recorded.

5.11.5. The rights recorded on the commons register, particularly the right of turbary, would seem to be incompatible with use of the land as a public highway (or a private right of way), and particularly as a vehicular route and to a slightly lesser extent a bridleway (public or private). However, it does not actually preclude the two rights existing simultaneously.

5.11.6. The parts of the application routes which are registered as Common are now also open access land by virtue of section 1 and 2 of the Countryside and Rights of Way Act 2000 (CROW) meaning any person is entitled to enter and remain on the land for the purposes of open-air recreation, subject to restrictions and exceptions specified in the Act. These restrictions include the prohibition of the use of vehicles, or of bringing any animal onto the land other than a dog. These restrictions only apply to the right of access, and not to any underlying right of way. They do not, therefore, preclude any type of public right of way existing over the application routes.

5.11.7. Overall, therefore, registration of parts of the application routes as commons is evidence against public rights of way over the application routes between point B-C-D-E and F-D, but can be given only a little weight. It is no evidence for or against public rights over 568M between A-B or 571M (G-H).

5.11.8. Ministry of Food National Farm Survey, 1941 – 2 (extract only). NA Reference: MAP73/36/80 and MAP73/36/87. Appendix: 22

5.11.9. The survey was carried out to assist with increasing food production during the Second World War.

5.11.10. Where the application routes run between different coloured holdings, they are excluded from those holdings. Other routes which are today public vehicular roads are similarly excluded. However, it is unknown whether the only reason for exclusion of a linear way was that it was considered to be a public vehicular road or whether, for example, routes with no identified owner were also excluded.

5.11.11. The Consistency Guidelines state “It is possible that information regarding rights of way might arise from the Survey, although, from an investigation of the records for several areas of the country, it seems unlikely”11. In any event the primary purpose of the records should be borne in mind when determining the weight to be given to any evidence arising. Whilst the proximity to public roads and condition of any farm roads was included in the survey, it was not the primary purpose of the survey, and these documents are potentially consistent with the application routes being public roads, or private roads with or without lower rights running over them.

5.12. Aerial Photograph, 1946. Appendix: 23

Description and interpretation of evidence

5.12.1. All the application routes are clearly defined on the aerial photograph and appear to be grassed, except for B to C (and the continuation of this way north north-west to Swaddles Green Farm) which appears to have a narrow metalled surface.

5.12.2. This is excellent evidence for the physical existence of the application routes in 1946, but is of no assistance in determining public or private status.

5.13. Other Sources

11 DMO Consistency Guidelines – 5th revision July 2013 Section 11.14, page 5

Chard Rural District Council, Minutes of the Highways Committee. SHC reference: D/R/ch/3/3/3 Appendix: 24

5.13.1. The minutes for 8th May 1936 record that Broadway Parish Council sent a petition requesting the Highway Authority take over the roadway between Hare Road and Newhouse Farm because it would shorten the distance travelled from the Hare end of the village to Taunton and relieve the traffic at Broadway cross roads.

5.13.2. The minutes for 5th June 1936 record that the lane was inspected by a sub-committee, but they were unable to make any recommendation regarding the highway authority taking over the lane. The following page gives a rough estimate of what it would cost to make up the roadway and states that the Waterworks Contractor’s attention should be called to the state of the lane after the laying of the water main.

5.13.3. No further reference to the matter was found in the minutes.

Broadway Parish Council Minutes. SHC reference: D/PC/broad/1/2/1 and D/PC/broad/1/2/1. Appendix: 25

5.13.4. Minutes for the 12th April 1936 refer to a petition asking for “public authority” to take over “the lane from Hare Road [near] Red Barn to New House Farm House on the Curland Road”. It was resolved to write to the Rural District Council (RDC) setting forth “that it would be a great advantage to the public as it would save a good distance in going from the Hare end of the Village to Curland + Taunton also it would take a good deal of the traffic at Broadway Pound which is a rather dangerous corner”.

5.13.5. Red Barn Farm is on the southern side of Hare Road immediately south of point G. The route described corresponds with 571M from G to H.

5.13.6. The minutes of 21st March 1967 for the annual parish meeting and then the parish council meeting record that the possibility of reopening existing bridlepaths was raised. The issue was discussed at a number of following meetings between 1967 – 1971. Obstructions at Dingford Farm, Long Drove, Ding Drove, and Cabbage Cross to Long Drove are mentioned, and it was recorded that evidence supporting the claim that the routes were bridlepaths was sent to the Rural District Council (R.D.C).

5.13.7. The minutes for 24th November 1969 summarise a reply received from the Clerk of the County Council in which it is stated ‘the basic evidence tended to indicate that these were not public rights of way’ although some of the evidence pointed in a different direction, and further investigation would be needed to reach an answer.

5.13.8. The minutes of 15th March 1971 summarise a further

communication from the Clerk of the County Council and includes the statement ‘The written evidence already supplied referred only generally to a number of claimed rights of way’.

Rights of Way Parish file for Broadway held by SCC. Appendix: 26

5.13.9. Letters of 22nd March 1967 to 19th February 1971 regarding Broadway parish council’s desire to add routes to the DMS. The enclosure award is referred to. Of particular relevance to this investigation are the following;

04/11/1970 – Broadway Parish Council to SCC. Refers to a footpath / bridleway at Dingford Farm, a schedule of bridleways including Dingford Farm sent by the parish council to the R.D.C. in 1968, and to “seven local people [who had] furnished evidence that they had used the various ways”.

09/02/1971 – Clerk of the County Council to the County Surveyor. Includes a plan indicating that the route referred to as ‘Dingford Farm’ by the parish council corresponds with application route 568M between A and B.

5.13.10. Letter of 23rd March 1975 from a member of the public who attempted to walk from point E to D and then to F complaining about the state of the route. The member of the public apparently believed the route to be a public right of way carrying higher rights than as a footpath because it was shown on a map as an ‘unmetalled track’.

Description and interpretation of evidence

5.13.11. The RDC and Parish Council minutes from 1936 show that local residents wanted to use application route 571M, G to H, presumably in vehicles. The ‘taking over’ of the route by the highway authority might refer to maintenance but this is not specified, and neither are the rights which were thought to exist over the route at that time (if any). It may therefore equally have been a request to establish rights that were not already thought to exist. The language does imply public use was not already taking place (“it would be a great advantage to the public … it would save a good distance … it would take a good deal of the traffic” my emphasis). The brief information in the relevant minutes does not preclude public rights over 571M, but neither can it be said to be supportive of the existence of such rights. Nothing in the minutes suggests the request was exceeded to and public vehicular use commenced.

5.13.12. By 1967 Broadway parish council clearly believed more public bridleways existed than were recorded on the DMS, and that this included application route 569M (Long Drove), Cabbage Cross to Long Drove and application route 568M between A and B. The location of Cabbage Cross has not been identified, but presumably the parish council also felt application route 568M between B to C should be included, otherwise Long Drove would have

been a cul-de-sac. Cabbage Cross may therefore be at point B. Point F is another potential location for Cabbage Cross.

5.13.13. The parish council sent evidence to the RDC and Somerset County Council supporting their assertion that these routes were public bridleways, including evidence from seven local residents. Although the detail of that evidence and the extent of any investigation is unknown, the assessment of the evidence included the enclosure award as well as evidence of seven users. Somerset County Council’s conclusions at the time seems to have been “the basic evidence tended to indicate that these were not public rights of way, and whilst the information which had been supplied indicated that there may be evidence which pointed a different way, one could not be satisfied without a great deal of additional work and investigation as to the true position.”12

5.13.14. The weight that can be given to the belief of the parish council that the claimed routes were bridleways is therefore increased by the supporting evidence they were able to gather and the evidence from the member of the public who attempted to walk E-D-F in 1975. However, the evidence gathered by the parish council has not been found. The assessment of that evidence at the time suggests it was at least slightly supportive of public rights, but not strong enough as it failed to demonstrate that such rights actually existed. As it cannot be assessed as part of this investigation it adds only a very little weight to the belief of the parish council.

5.13.15. The 1967 to 1971 parish council minutes and associated documents and the 1975 letter could not have been considered when the DMS was originally drawn up as they are later. They may therefore be considered ‘new evidence’ in relation to section 53(3) of the Wildlife and Countryside Act 1981 which requires the ‘discovery’ of new evidence (i.e. evidence not considered when the Definitive Map was originally drawn up or last reviewed) before an order to amend the definitive map can be made.

5.14. Other sources of Primary Documentary Evidence which either did not cover the relevant area or did show the claimed route but do not assist in determining the status include: - Plan of a Proposed Canal from Beer Harbour in the County of Devon to the Taunton & Bridgwater Canal at Hyde Farm in the parish of West Monkton, 1822 (Q\Rup/68). - Plan of Part of the Line of the Proposed English and Bristol Channels Ship Canal, 1825 (Q\Rup/81). - Ilminster Turnpike, Somerset, 1831 (Q\Rup/113). - Chard Turnpike, 1831 (Q\Rup/114). - Ilminster Highway Board Minutes (D\R\CH/32/2/1).

12 Broadway Parish Council Minute 50, 24/11/1969. See Appendix 25.

- Yeovil District Council Minutes (D\DC\S.Som/2/1/1)

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

6.1. This section of the report includes information provided by the landowners.

Landowner and response Landowner F

Provided information and evidence to demonstrate their private right to use part of the application route.

Landowner I

Confirmed they owned land adjacent to application route 568M, A – B.

“With regards to the status of the route we have been residents at this address for 16 years and at no point has it been used as a bridleway/restricted byway. The previous owner ………….. would also confirm that at no point had the route been used during … residence of 20+ years. A survey of the route would confirm that it is impassable due to mature trees and bushes which prohibit any passage by any persons. The route is a haven for wildlife as it is never disturbed and acts a nursery for a local deer population. Additionally the route is adjacent to a natural spring/pond which at this time of the year will inevitably overflow into the route causing maintenance problems if the route was re-established. We understand that generations ago that the route was a drove… …During our residence it has been proposed by South Somerset that the drove would be re-established but this aim was abandoned due to financial constraints. We are ambivalent to the route being updated on any Definitive Map as without serious investment the route will never be patent. If however it was re-established it might serve as an advantage to a few ramblers/horse owners but to the detriment of much currently undisturbed wildlife. We also observe that locally there is no shortage of alternative routes.”

Landowner Z

Responded to confirm the location of their property but had no other information to add.

6.2. Comments on Landowner Evidence.

Private rights of way over a route do not preclude the existence of public rights of way over the same route.

6.2.1. Concerns regarding the cost of reinstatement and maintenance, the physical suitability of a route, availability of alternative routes and concerns about wildlife are perfectly understandable, but under the current legislation have no bearing on this investigation.

6.2.2. The comments of landowner I accord with the comments of User 1(see 7.4) regarding the inaccessibility of A-B.

7. Analysis of the User Evidence

7.1. Under Section 31 of the Highways Act 1980 20 years ‘as of right’ use of a route by the public can raise the presumption of dedication, unless there is sufficient evidence that there was no intention during that period to dedicate it.

7.2. According to the Planning Inspectorate Consistency Guidelines there is no statutory minimum level of user required, however it is clear that there must be a sufficient level of use for the landowner to have been aware of it and have had the opportunity to resist if he choose.

7.3. The relevant 20 years is calculated backwards from a date of challenge. In this case no other event was identified as a date of challenge to the public use of any of the routes and therefore the submission of the applications to modify the DMS constitutes the date of challenge. The relevant 20 years is therefore 1988 – 2008.

7.4. Evidence of use by five individuals was either found or submitted;

- The letter of 23rd March 1975 (see 5.13.10, appendix 26) shows that at least one person was attempting to use part of 569M (Long Drove) and 570M on foot, and that they believed the route to be a public right of way of a higher status than footpath. - User 1 filled in a User Evidence Form (UEF). They used 568M, 569M, 570M between B-C-D-E and F, and 571M from 1975 to 1981 on horseback, and between 2000 to present on horse and on foot. Their frequency of use was weekly from 1975 – 1981, and every few months from 2000 – present. They also recalled seeing “other horse riders on regular basis – so regular that the route B-C-D would get muddy, churned up by hoof prints.” They also recalled that A-B was not a passable route in the late 1970s and early 1980s. This accords with the comments of landowner I who describes the route as having mature trees growing on it now. - User 2 provided evidence in the form of a letter, and did not fill in a UEF. They recalled use by themselves and one other person walking and horse riding between 1976 and 1982, and from 2004 walking “along the drove at New House Farm and from Hare Farm to Winsford” and running twice a week

in the summer “along the drove from New House Farm”. This would be most consistent with 571M, 570M and D to E of 569M. They also recalled that riding stables at Dingford Farm used the routes. - Evidence of use was also submitted by a representative of the South Somerset Ramblers’ Association (Western area) who had walked and driven over G – H (571M) “a few times”.

7.5. The 1975 letter provides evidence of use which falls outside of the relevant 20 year period. No evidence of use has been submitted which was stated to have taken place from 1988 to 1999. Since 2000 land registered as Common has also been Access Land, allowing any person (amongst other things, and subject to certain restrictions) to walk on it. Any public use on foot of the parts of the application routes registered as Common since 2000 has therefore been by virtue of this right of access and not ‘as of right’.

7.6. Therefore, there does not seem to be sufficient evidence of ‘as of right’ use by the public to raise the presumption of dedication under Section 31 of the Highways Act 1980.

7.7. However, this does not mean the evidence of use which has been submitted provides no support for the existence of public rights over the application routes or parts thereof.

7.8. No users recalled being given permission, seeing signs prohibiting use, or being challenged. Some obstructions or potential obstructions were mentioned but no event which might reasonably be considered a date of challenge was recalled.

7.9. User 1 and 2 refer to use by other horse riders. This evidence cannot be further tested and neither user 1 or 2 were using the routes between 1988 and 1999 and are therefore unlikely to have observed any of this use during that time. It is, nevertheless, evidence of additional use on horseback, even if it can be given only very little weight.

7.10. All the users appear to have believed the routes they were using were public rights of way, although the user evidence in relation to A to B is particularly weak.

7.11. Although the evidence of use which has been submitted is insufficient in isolation to demonstrate dedication at Common Law, it is still in favour of public rights.

8. Consultations and other submissions

8.1. Consultations regarding the claimed route were sent out to all landowners and relevant local and national user group organisations in November and December 2017. The table below shows who was consulted and gives brief details of replies that were received. Landowner’s responses are discussed in section 6.

Consultee and response South Somerset Highways

No observations to make. Ramblers' Association Area Secretary

“The only section I have knowledge of is G – H (claimed restricted byway) which I have walked and driven over a few times.”

South Somerset Ramblers’ Association (Western area)

Had no comments to make, except to suggest that SCC also look at footpath CH3/30 [which joins the linear way north of point C] because it is currently a cul-de-sac.

No response was received from the following organisations;

Broadway Parish Council South Somerset District Council Local County Councillor British Horse Society Auto Cycle Union Cyclists Touring Club All Wheel Drive Club Open Spaces Society Natural England The Rambler’s Association British Driving Society Byways and Bridleways Trust Trail Riders Fellowship.

9. Discussion of the evidence

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

9.2. The pre-enclosure maps and enclosure documents show that the application routes were first set out by the enclosure award in 1833. No evidence has been found which supports pre-existing rights over the application routes.

9.3. The enclosure award clearly differentiates between public and private roads and sets the application routes out as private roads, without public footpath or bridleway rights over them. This does not preclude public rights having come into existence after enclosure, however, there would need to be positive evidence of a dedication or creation before an order to modify the Definitive Map could be made. That evidence would collectively need to

indicate public rights, rather than simply being consistent with those private rights known to exist as a result of the enclosure award.

9.4. A number of post enclosure maps confirm the physical existence of the application routes but depict them in a way which, while not incompatible with public rights, is entirely consistent with the private rights set out at enclosure. Those documents include the Broadway Tithe Map (1840), Draft Plan of land in the ownership of the trustees of the Earl of Egremont (1852), Sales Particulars (1887), Sales Particulars (1920), most OS maps13, SCC Highway Records and the 1946 aerial photograph. The Definitive Map, whilst it does not record any public rights over the application routes, is only definitive of what it shows, not of what it omits, and is therefore no evidence for or against public rights over the application routes.

9.5. Several documents which identify the owners of land exclude the application routes, or parts thereof (for example, the 1852 draft map discussed at 5.6.1 and sales particulars, 5.6.6 – 5.6.23) and no document identifies a landowner with certainty. It has been suggested that this is because the routes are public highways. However, ownership of the application routes was not assigned at enclosure and this would also explain why no landowner was identified for them on later documents.

9.6. Having considered the strong evidence in favour of the existence of private rights and the large number of documents which are consistent with that status, this report now turns to the evidence which might support the existence of public rights.

9.7. Evidence in favour of public rights over 570M and 571M is very weak. Both routes are excluded from the surrounding hereditaments on the 1910 Finance Act record plans which would normally be a strong indication that the routes were public highways, usually, but not necessarily vehicular. However, both routes were also set out as private roads for the use of a number of landowners in the enclosure award, and this is considered another very plausible explanation for exclusion from surrounding hereditaments on Finance Act documents. Bartholomew’s maps are in favour of public vehicular rights over these routes but can be given very little weight. There is some evidence of public use of both routes which is supportive of the reputation of the routes as public rights of way but this is insufficient to raise the presumption of dedication. Evidence from 1936 shows there was a desire for public vehicular rights over 571M but implies that use was not taking place at that time, and is ambiguous as to whether public rights were already thought to exist over the route. When all the evidence is considered together it is insufficient to reasonably allege public rights over 570M or 571M.

9.8. Evidence in favour of public rights over 568M between A and B is a little stronger, but still weak. Again, the route is excluded from surrounding hereditaments on the 1910 Finance Act record plans and is also set out as a

13 Part of the application route shown on the 1888 OS County Series might have been depicted with a thickened casing line because it was considered public. However, it is also consistent with the route being shown as a metalled carriage road.

private road in the enclosure award. The route is also shown on Bartholomew’s maps in a way which is in favour of public vehicular rights, but again this can be given little weight. However, there is stronger evidence of the route having the reputation of a public bridleway supplied by Broadway parish council’s clearly held belief in the late 1960s and early 1970s. The fact that they were able to gather evidence in support of public rights does suggest that the parish council were not alone in their belief that the route carried public bridleway rights, suggesting the route had the reputation, at least amongst a small group of people, as a public right of way. However, that evidence has not been found and therefore cannot be assessed as part of this investigation.

9.9. The parish council minutes and Bartholomew’s maps are the only pieces of evidence which positively indicate public rights over the route rather than being equally consistent with the private rights set out over A-B at enclosure. In the circumstances, when all the evidence is considered together, it is insufficient to reasonably allege public rights over 568M between A and B.

9.10. The strongest evidence for public rights over any of the application routes is for Long Drove, 569M, and by implication B to C of 568M. As with the other application routes, it is set out as a private road in the enclosure award, excluded from the surrounding hereditaments on the 1910 Finance Act documents, shown in a way which indicated public vehicular rights on Bartholomew’s maps and was claimed in the late 1960s and early 1970s by Broadway Parish Council as a bridleway. However, it is also described as a public road in the 1902 OS object name book and has additional evidence of public use.

9.11. Although the object name book was not created to record the public or private status of routes, the language used is explicit of public rights. J. Snell (who was the authority for the mode of spelling) seems to have been considered to be the landowner or an adjacent landowner, and this further strengthens this evidence as they would have been unlikely to have admitted to a public road over or adjacent to their property if one did not exist.

9.12. While only Long Drive (i.e. C-D-E) is recorded as a public road in the object name book, it is unlikely that it would have been considered a cul-de- sac which terminated at point C. To meet with another public highway, the public road described by the OS would have to have continued over one of the connecting routes. The 1902 ONB description (“to the junction of roads on the south west”) is most compatible with this connection being over C to B. Therefore, the object name book is also considered to be slightly in favour of public rights over C to B.

9.13. Although insufficient to raise the presumption of dedication under section 31 of the Highways Act 1980, the evidence for use of B – C and Long

Drove by horse riders is a little stronger than for the other application routes14. Some of that evidence dates from the mid 1970s, including the 1975 letter which demonstrates a member of the public at that time believed at least part of Long Drove had a higher status than footpath. The evidence of use provides some corroboration of the parish council’s belief that B – C and Long Drove (C – E) carried public bridleway rights in the late 1960s and early 1970s.

9.14. The registration of B-C and Long Drove as Common is of some, but very little, weight against these routes carrying public highway rights. Under the Commons Registration Act 1965, land which forms part of a highway cannot be registered as Common and therefore when these routes were registered as Common they were obviously not considered to be highways. However, that belief was likely to be in part based on the DMS which, as discussed above, would not have shown any rights over the application route. However, this is not to say that no such rights existed. Furthermore, there does not seem to have been a detailed examination of the evidence in favour of registering the land as common at the time as the objection to the registration was effectively withdrawn.

9.15. Whilst the registration as Common itself is of little assistance to this investigation, the rights which were registered do have some relevant implications. It would have been particularly difficult for vehicular rights and the registered rights of common to have both been exercised over the same piece of land. Use of the route as a bridleway or footpath would have been more compatible with the right to cut turf.

9.16. Although not powerful enough in themselves, when combined with the 1960/70s parish minutes and Bartholomew’s Map, the object name book and additional user evidence are considered sufficient to demonstrate that a public right is reasonably alleged to subsist over B-C-D-E. This is the case despite the counter evidence of the routes registration as common land.

9.17. It is more likely that the type of public right over this route would be a bridleway. Private vehicular rights were set out by the enclosure award, and any public rights would have to have been dedicated later. The parish council referred to the routes as bridleways, and no evidence of public use with vehicles has been submitted. The rights of common would be particularly incompatible with vehicular traffic. It is accepted that Long Drove was called a public road (my emphasis) in the ONB. This term might ordinarily be used to refer to routes which carry vehicular rights. However, the term ‘road’ can also be used in relation to routes with lower rights (e.g. a bridle road). In the context of all of the above this second meaning, while less common, appears more likely in the case of Long Drove.

9.18. Overall while the evidence in support of the claimed route carrying public rights is finely balanced, it is sufficient to reasonably allege the

14 See 7.4. Evidence of use for 569 and 570 is very similar, but User 2 specifically refers to the amount of horse riding on B-C-D (part of 568 and 569) causing the route to become muddy.

existence of public bridleway rights over B-C-D-E, but not public vehicular rights.

10. Summary and Conclusions

10.1. There is insufficient user evidence for public rights to be reasonably alleged under Section 31 of the Highways Act 1980. Similarly, the first hand accounts of use are insufficient by themselves to infer dedication at Common Law.

10.2. Public rights were not set out over any of the application routes under consideration here by the enclosure award of 1833. This does not preclude public rights having been dedicated at a later date.

10.3. Although there is some evidence in favour of public rights over 568M between A and B, 570M and 571M most is consistent with the private rights set out in 1833, and is ultimately insufficient for public rights to be reasonably alleged over these routes.

10.4. The evidence in favour of public rights over B-C-D-E is stronger in that it includes the object name book and additional evidence of public use. While these documents are not sufficient in themselves, when considered alongside the evidence which also relates to the rest of the application routes, it is enough to reasonably allege a public bridleway exists over 568M between B and C, and over 569M (Long Drove) between C and E.

10.5. 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 B- C-D and 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 iv. The application to add a public bridleway between A and B and D and F Shown on Appendix 1 is refused. v. The application to add a restricted byway between G and H shown on Appendix 1 is refused.

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, Ai, B, C, D, E, F, G and H present on Appendix 1 to maps to help the reader identify the sections of the route the document is depicting. Red symbols 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. Plan showing widths of the claimed routes 3. Photographs of the claimed routes 4. Landownership Plan 5. Plan of Neroche Forest, 1823 6. Map of the Forest Grounds and Broadway Common in the Parish of Broadway, circa 1830 7. Neroche Forest Inclosure Act (1830) and Award (1833). 8. Broadway New Enclosures Tithe Map, c.1840 and Broadway Tithe Map, 1844 9. Draft plan of lands belonging to the trustees of the late earl of Egremont, compiled from maps of the several parishes, 1852 10. Sales Particulars, 1866 11. Sale Particulars, 1887 12. Sales particulars, 1920 13. Bartholomew’s Map, 1911 and 1927 14. OS boundary sketch map, 1885 15. OS County Series Maps, Sheet No: LXXXVII.3 and LXXX.15, 1888 and 1903 16. OS Revised New Series map, 1898 - 1900 Cassini Timeline reprint 17. OS Object Name Book 18. OS ‘popular edition’ Map 1919, Cassini Timeline reprint 19. 1940 OS War Revision Map, 5th Edition 20. Finance Act Record Plan, 1910 21. Commons Register 22. Ministry of Food National Farm Survey, 1941 – 2 23. Aerial Photograph, 1946 24. Chard Rural District Council Minutes of the Highways Committee 25. Broadway Parish Council Minutes 26. Rights of Way Parish file for Broadway held by SCC 27. Particulars and Valuation of Allotments in the Forest of Ne Roach within the parish of Broadway, 1833