COMMONS AND RIGHTS OF WAY COMMITTEE 30 JANUARY 2007

AGENDA ITEM:

APPLICATION FOR A MODIFICATION ORDER TO RECLASSIFY ROADS USED AS A PUBLIC PATH (RUPP) NDM 2 AND NDM 6 TO BYWAYS OPEN TO ALL TRAFFIC (BOATs) PARISH OF DIDMARTON

JOINT REPORT OF THE GROUP DIRECTOR: ENVIRONMENT AND THE HEAD OF LEGAL AND DEMOCRATIC SERVICES

1. PURPOSE OF REPORT

To consider the following application:

Nature of Application: Reclassify Roads Used as Public Paths NDM 2 and NDM 6 to Byways Open to All Traffic Parish: Didmarton Name of Applicant: Kevin Biddlecombe, on behalf of the Trail Riders’ Fellowship Date of Application: 19 January 2005

2. RECOMMENDATION

That the Restricted Byways (formerly Roads Used as Public Paths (RUPPs)) NDM 2 and NDM 6 be reclassified as byways open to all traffic (BOATs)

3. RESOURCE IMPLICATIONS

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

4. SUSTAINABILITY IMPLICATIONS

No sustainability implications have been identified.

5. STATUTORY AUTHORITY

Section 53 of the Wildlife and Countryside Act 1981 imposes a duty on the County Council, as surveying authority, to keep the Definitive Map and

1 Statement under continuous review and to modify it in consequence of the occurrence of an ‘event’ specified in sub section (3). Any person may make an application to the authority for a Definitive Map Modification Order on the occurrence of an ‘event’ under section 53 (3) (b) or (c). The County Council is obliged to determine any such application that satisfies the required submission criteria in accordance with schedule 14 of the Act.

6. DEPARTMENTAL CONTACT

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

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

REPORT

7. DESCRIPTION OF PATH

7.1 A map at scale 1: 8,000 is attached (numbered ….A) showing the position of the claimed paths at Didmarton. The claimed paths are approximately 4½ miles south west of the town of . The area of interest lies within Ordnance Survey Grid Squares ST 8090, ST 8190, ST 8189 and ST 8289. This map shows the claimed path NDM 2 by a broken black line with arrows between points A and B; the claimed path NDM 6 is shown by a broken black line with arrows between points C and D. The path was inspected in March 2005 and in October 2006.

7.2 The claimed byway open to all traffic runs from the main Nailsworth to Bath road (A46) at point A. When inspected in March 2005 it was signposted at point A by a metal fingerpost as a road used as a public path; in October 2006 NDM 2 was instead signposted as a restricted byway.

7.3 The path runs in a generally south-easterly direction from point A across an arable field for approximately 600 metres; the path is approximately 2.5 metres in width and unploughed. For the next 100 metres the path is bordered on the southern side by a stone wall; the width of the path is still some 2.5 metres at this point. For the next 500 metres, the path runs along a grass headland, open to the north and bounded by a stone wall on the southern side. The claimed way NDM 2 then runs along the parish boundary between Didmarton and Leighterton. It is bordered on the north by a hedge and unenclosed on the southern side. The path is then crossed by public NDM 3 and NBL 8. At this point the path passes through a farm gate, 3 metres in width, which was propped open at the time of inspection in March 2005.

2 7.4 The definitive line of the path NDM 2 follows the south side of the hedge along a grass headland for approximately 200 metres before following a course across the field to point B, which is the junction with classified road 3/279 and a private metalled road to Park Wood Farm. At the time of inspection in March 2005, it was clear that vehicular traffic had been following a course along the perimeter of the field to point B instead of diagonally across the field on the definitive line of the path. The path NDM 2 was signposted at point B with a metal finger post as a Road used as a Public Path in March 2005; this sign had been replaced by one denoting a Restricted Byway by October 2006.

7.5 The claimed path NDM 6 runs between the public road 3/279, known as Leighterton Lane, at point C, in a generally easterly direction to point D, where it meets county road 3/280. At the western end of NDM 6 there is a stone pillar, which was presumably a gatepost. The gateway here is 12 foot in width (3.6 metres). Near to this gateway was a metal farm gate, lying against the hedge and not attached to the gatepost.

7.6 The path NDM 6 is a stoned track, some 2.5 metres in width. The path is bordered by a hedge on the northern side and open on the southern side for approximately 420 metres east from point C. The remaining 150 metres of the path east to point D is bordered by a hedge on the northern side and by a stone wall on the southern side. The width between the wall and the hedge is approximately 5 metres. The path is signposted at point D by a metal finger post. In March 2005 the path was signposted at this point as a Road used as a Public Path; in October 2006 the path was instead signposted as a Restricted Byway.

7.7 The existing restricted byway NDM 2 (A to B) is approximately 1,600 metres in length. Restricted byway NDM 6 (C to D) is around 570 metres in length.

8. BACKGROUND

8.1 Following a request from Kevin Biddlecombe of the Trail Riders’ Fellowship on 10 January 2005, an information pack and the application forms were sent to him on 13 January 2005.

8.2 Section 67(1) of the 2006 Natural and Environment and Rural Communities (NERC) Act extinguishes unrecorded public rights of way for mechanically propelled vehicles, with certain exceptions that are listed in subsections 67(2) and 67(3).

8.3 Section 67(3) of the Act provides that section 67(1) does not apply to an existing right of way if “before the relevant date, an application was made under section 53(5) of the Wildlife and Countryside Act 1981 (c.69) for an order making modifications to the definitive map and statement so as to show the way as a byway open to all traffic”. The relevant date for is 20 January 2005. This application, which was specifically for a byway open to all traffic was received on 19 January 2005 and hence the unrecorded motor vehicular rights are preserved under 67(3) and thus evidence of carriageway rights would result

3 in an order for a Byway Open to All Traffic (BOAT) rather than for a Restricted Byway.

8.4 Some of the land over which the claimed route runs historically formed part of Hawkesbury Parish. By the County of Gloucester Review Order, 1935, part of the parish of Hawkesbury was transferred to Didmarton. The section of path A to B formed part of Hawkesbury Parish until 1935; towards point B it was and is bordered on the north by the parish of . The section of path C to D historically formed part of Didmarton parish ; the land immediately adjoining the northern boundary of this route until 1935 formed part of Hawkesbury parish. Both paths now fall wholly within the parish of Didmarton.

8.5 The restricted byway NDM 6 (length C to D) is also shown on the list of highways maintainable at public expense (kept under section 36(6) of the Highways Act 1980 as a Class 6 road, number 61436. This list records the ways that are maintained by Gloucestershire County Council, which are classified according to their level of maintenance. When the ways were reclassified in 1939, the ways placed in Class 6 were “unmetalled tracks, bridle roads, and public footways maintainable by the County Council, but not including those suitable for wheeled traffic”. The list of maintainable highways records the standard of maintenance and is not evidence of highway rights.

9. APPLICATION

9.1 An application dated 17January 2005 was made by Kevin Biddlecombe, representing the Trail Riders’ Fellowship. The claim was to reclassify the Roads Used as Public Paths (RUPPs) NDM 2 and NDM 6 in Didmarton as Byways Open to All Traffic (BOATs). The application was received on 19 January 2005.

9.2 Notice was served by the applicant on the following landowners or occupiers: Gloucestershire County Council, Shire Hall, Gloucester; and Thomas Victor John Hatherell of Burden Court Farm, Tresham, Wotton under Edge, Gloucestershire.

9.3 The application was acknowledged as correctly made on 28 January 2005. Permission was given for the applicant to erect signs at each end of NDM 2 and NDM 6 to give notice of the application, as it was considered that he had made reasonable inquiry to ascertain the names and addresses of the owners and occupiers of the land to which the application relates.

9.4 The notice to the landowner or occupier (form 2) that had been served on Gloucestershire County Council was forwarded to James Benham, the Rural Services Manager, on 28 January 2005 so that he could inform the County Council tenant of the farm over which part of the claimed route runs.

9.5 Mrs Nicola Braune, Area Land Agent for Gloucestershire County Council replied on 2 February 2005, indicating that there were two County Council tenants holding land in the area, Mr G J Beale of Castle Farm, Didmarton Road, Leighterton and Mr C Best of Poole Farm, The Street, Leighterton. It was

4 apparent from the map annotated by Mrs Braune that Mr Best of Poole Farm held land directly affected by the application.

9.6 The applicant drew attention to the following evidence in support of his claim to reclassify the way to a byway open to all traffic: Didmarton and Oldbury on the Hill Parish Inclosure Award 1829, in which the way is “shown as road from Wotton under Edge to Sherston. Public carriage road or highway of the breadth of 30 feet “; and Ordnance Survey First Edition. The applicant noted: “Used by T.R.F. members for more than 20 years. Evidence statements can be supplied if required. The lanes are classified as RUPPs, if they were thought to be footpaths or bridleways at the time of classification they would have been classified as such ”.

9.7 Information on the application and on the Definitive Map process was sent to James Hurford of Grange Cottage, Saddlewood, Morgan Hurford of Old Chapel, Chapel Lane, Old Sodbury, Tom Hatherell of Burden Court Farm, Dominic Burke of Park Wood Farm, Saddlewood, to Guy Wakefield and also to A Welton and Partners, representing Guy Wakefield.

10. LANDOWNERS’ EVIDENCE

The following landowners and tenants above were all consulted on 5 December 2006 and given the opportunity to comment upon a summary of the documentary evidence. The following are directly affected by the application: Thomas John Hatherell, Burden Court Farm, Tresham, Wotton under Edge, Gloucestershire GL12 7RW; Simon Dring, The Estate Office, Badminton, South Gloucestershire GL9 1DD; James Benham, Rural Services Manager, The Malthouse, Standish, Stonehouse, Gloucestershire GL10 3DL; and Mr C Best, Poole Farm, The Street, Leighterton, Tetbury, Gloucestershire GL8 8UN.

The following are not directly affected but requested that they were consulted: James Hurford, Grange Cottage, Saddlewood, Leighterton, Tetbury, Gloucestershire GL8 8UQ; Morgan Hurford, Old Chapel, Chapel Lane, Old Sodbury, Bristol BS37 6NG; Mr Dominic Burke, Park Wood Farm, Saddlewood, Leighterton, Tetbury, Gloucestershire GL8 8UQ, and Mr A Welton and Partners, Blanche House, Turkdean, Gloucestershire GL54 3NX (representing Mr Guy Wakefield).

10.1 Tom Hatherell, Burden Court Farm, Tresham Mr Hatherell wrote on 11 January 2007: I own the majority of the route of the length of NDM2. I would like to object to this reclassification on the following grounds. Environmental: the paths you are considering are across farmland and there use of them by vehicles would result in their deterioration into deep mudded tracks. At present they are tufted grass tracks which are a haven for wildlife, especially the grey partridge. The grey partridge will lay their eggs in the grass, and obviously any vehicle access would destroy this. Also the tracks provide environmental highway between two blocks of wood and a hedge, which is very important for smaller animals to move safely around the countryside.

5 Suitability: As I described above these tracks are across farmland, so have no hard base to them. If they were used by vehicles there would result in deep ruts. Would the council be liable for their maintenance? The tracks would become impassable for people riding horses and walkers. At present the tracks are used by large number of walkers and horse people from the village of Leighterton and Didmarton. Evidence of Right Way: we have farmed in this area for in excess of 40 years and these tracks have only ever been used for walkers and horse people Therefore considering the above I wish to strongly object to the reclassification of NDM2 and NDM6 as BOATs. If you wish further information about these tracks and their use for the environment and how they will be effect by the reclassification as BOATs please do not hesitate to contact me on above address or phone number.

10.2 Gloucestershire County Council Mrs Nicola Braune, Area Land Agent for Gloucestershire County Council, wrote on 2 February 2005 “the County Council is concerned that a pathway used as a bridleway could be given to use by all vehicles ”. James Benham, Rural Services Manager, was given the opportunity to comment on the application and a summary of the documentary evidence on 5 December 2006.

10.3 Mr C Best, Poole Farm, The Street, Leighterton Mr Best was consulted on 5 December 2006 and given the opportunity to comment on a summary of the documentary evidence.

10.4 Badminton Estate Simon Dring at the Badminton Estate Office was consulted on 5 December 2006.

10.5 Dominic Burke, Park Wood Farm, Saddlewood, Leighterton Mr A.E.O Welton FRICS of Antony Welton & Partners, Blanche House, Turkdean, Cheltenham e-mailed on 12 January 2007: “…. I write on behalf of my client, Mr Dominic Burke of the Whitley Stud at Park Wood Farm as above heading, formally to object to Mr Kevin Biddlecombe's Application to convert the existing RUPP to a BOAT, where it crosses over my client's land. I understand that his neighbours have or are also registering their objections to the Application.

Mr David Fitch-Peyton, Mr Burke’s Stud Farm Manager, e-mailed on 12 January 2007: “With regard to the application from Mr Kevin Biddlecombe on behalf of the Trail Riders’ Fellowship, to reclassify the restricted byways NDM / 2 and NDM / 6 as Byways Open to All Traffic (BOATs), Mr Dominic Burke being the rightful owner of Park Wood Farm, and a section of the presently named Restricted Byway number NDM / 2, and Mr David Fitch-Peyton, Mr Burke’s Stud Farm Manager, are vigorously objecting to the proposal of Mr Kevin Biddlecombe’s, on the grounds of noise, pollution, wear and tear of the ground through the property, potential damage by vehicles to the Stud fencing, all of which pose a threat to the well being of the valuable horse bloodstock near Byway NDM / 2. We trust our objection will be given the utmost consideration by yourself and colleagues.

Dominic Burke wrote on 12 January 2007: “As owner of Park Wood Farm I write to formally oppose the application being submitted in relation to the request to

6 convert the RUPP to a BOAT. We have spoken to a number of local residents who confirm that in living memory, the route has only ever been used either by foot or by horse-back, and it is only in recent times that we have seen motor cross bikes use this RUPP. In the 2½ years we have been at the property, on only one occasion has a driven vehicle utilised the RUPP, and this was Mr Biddlecombe in a convoy of trail riders”…………………

10.6 James Hurford, Grange Cottage, Saddlewood, Leighterton Mr James Hurford was consulted on 5 December 2006

10.7 Morgan Hurford, Old Chapel, Chapel Lane, Old Sodbury Mr Morgan Hurford was consulted on 5 December 2006

11. DOCUMENTARY EVIDENCE

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

The claimed route A to B (NDM 2) runs over land which historically formed part of Hawkesbury Parish. By the County of Gloucester Review Order, 1935, part of the parish of Hawkesbury was transferred to Didmarton. The section of path A to B formed part of Hawkesbury Parish until 1935; towards point B it was and is bordered on the north by the parish of Boxwell with Leighterton. The section of path C to D historically formed part of Didmarton parish ; the land immediately adjoining the northern boundary of the way C to D also formed part of Hawkesbury parish until 1935. The modern parish of Didmarton was created in 1935 from the historical parishes of Didmarton and Oldbury on the Hill, with the addition of the Saddlewood area of Hawkesbury Parish. Both paths now fall wholly within the parish of Didmarton.

11.1 Inclosure Awards Didmarton and Oldbury on the Hill (Q/RI 54) 1829 (….B) Coloured map showing the parish of Didmarton in pink and the parish of Oldbury on the Hill in green. Houses are coloured red, buildings black and roads in brown. Individual fields are given plot numbers which are identified in the award. The whole length of the claimed route C to D is shown within Didmarton parish, its status undefined but coloured brown as are other known roads. The route to the west of C marked as “from Wotton under Edge” and to the east of D as “ Wotton under Edge and Sherstone road ”. The roads which the claimed way joins at points C and D seem to be marked as subsidiary to the claimed route. The length A to B is not depicted on the map, that area being marked as being in the parish of Hawkesbury. The roads coloured brown are all named (e.g. Leighterton Lane). Additional roads seem to be shown, for example the one leading north from Oldbury church and the one running west-east, north of Park Wood which are coloured in the same background colour as the rest of the map (i.e. green or pink). Reference to the Award shows that these are roads that were stopped up by the Award. Cross-field paths are marked in brown by a narrower line than that used

7 for the roads. Only one is labelled, as “Oldbury Church path”. Reference to the Inclosure Award shows that those paths marked in brown were public footways created by the Award.

The Award, which is dated 12 January 1830 and was deposited with the Clerk of the Peace on 5 June 1830, states that it is made under “An Act for inclosing Lands in the Manors and Parishes of Didmarton and Oldbury on the Hill in the County of Gloucester”. The Award describes how the marks and meres that distinguished the furlongs and lands therein had been ploughed up and obliterated and that in 1789, by agreement of the parishioners and occupiers of land, an Act was to be published to allow the lands in the open and common fields to be inclosed, exchanges to be made of land and for the boundary of the two parishes to be effectively determined. The local Inclosure Act refers to Inclosure Acts made 41 Geo III [1801] and a further act passed “2 present sovereign ” [2 Geo IV, 1821].

The document awards, sets out and appoints “the following Public and Private Carriage Roads Highways Drift Roads Bridleways and Footways through and over the Commonable Lands and Waste Grounds within the said Manors as the same are now severally made or marked and staked out (that is to say)… One other Public Carriage Road or Highway of the breadth of thirty feet called Leighterton Lane branching out of the Tetbury Bath Turnpike Road at Joyces Pool and extending northwards to join the Sherston and Wotton Underedge Road One other Public Carriage Road or Highway of the breadth of thirty feet called Sherston and Wotton Underedge Road branching out of the Tetbury and Bath Turnpike Road near Knockdown and extending north westward into the Parish of Hawkesbury….”

The Commissioner directs that “the said public carriage roads or highways shall be and remain respectively of the respective widths and shall be forever hereafter amended and kept in repair by such persons and in like manner as the other public roads within the said parishes of Didmarton and Oldbury on the Hill are by Law… ”

There are several references to allotments that adjoin the claimed route (C to D) for example an allotment of land to Duke of Beaufort of land in East Field of 240 acres 3 roods 10 perches bordered on the north-east by Sherston and Wotton under Edge Road.

The Award then goes on to list those roads that are to be stopped up.

Act for Inclosing Lands in the Manors and Parishes of Didmarton and Oldbury on the Hill, 1829 (P114/1 SD 1/1) Local act which received royal assent on 13 April 1829, and which refers to the General Inclosure Act 41 Geo 3 c.109 [1801] and to “An Act to amend the Law respecting the inclosing of Open Fields, Pastures, Moors, Commons and Waste Lands in England” 2 Geo IV c.95. Sets out the reasons for inclosure and the powers of the commissioner. In the same bundle is a notice given by Mr William Ruddle Brown, the Inclosure Commissioner, of a meeting to be held on 20 July

8 1839. This meeting was for anyone claiming right of common or other rights over the land that was to be enclosed. The notice states “that I have set out and appointed to be continued the following roads….” which list includes the Sherston and Wotton under Edge Road.

Draft Didmarton inclosure map, 1828 (D591) (….C) Shows both parishes, annotated working copy, on which some roads and ways are coloured red or brown. The key states that the red routes are “to be discontinued and stopped up”. “Roads and footways to be continued set out and confirmed are coloured brown ”. Length C to D and its eastern continuation are marked as Sherston and Wotton underedge Road, coloured brown and annotated “ to be repaired by Didmarton parish” and “to be repaired by Oldbury parish “ where the way passes through the two respective parishes.

Hawkesbury (Tresham) (Q/RI 78) 1827 Section of the route A to B marked as being on Saddlewood Estate but this area is not shown on the map as it was not the subject of the Inclosure Award.

11.2 Tithe Maps and Apportionments Didmarton Tithe Map, 1839 (P114/1 SD 2/1) (….I) Map embossed with stamp of the Tithe Commissioners signifying that it was a First Class Map. Coloured map, no key but roads and ways coloured yellow, arable fields in brown, pasture in green, watercourses in blue and houses in pink. Gates are shown pictorially. Claimed route shown between points C and D, marked “Sherston and Wootonunderedge Road ”, coloured yellow and given a plot number 250. The route is bordered by a solid line on the whole of the northern side and by a pecked line on the south side. Route is labelled “from Wotton under Edge ” at the western end and shown continuing east from point D. Leighterton Lane is shown (and named) south of point C, as secondary to claimed route. Boundary features are shown across the route at the field boundary immediately west of point D and at point D but no symbol representing a gate is shown.

Tithe Apportionment (P114/1 SD 2/2) In the accompanying apportionment, under the section “Roads” plot number 250 is identified as “Adjoining West Peak ” and 123 (the continuation of the claimed route to the east) as “ Wotton Road ”.

Hawkesbury Tithe Map, 1840 (P170 SD 2/1) (….K) Second Class Map, no key, although roads are coloured brown, water blue, and fields are edged brown or green according to their state of cultivation. The colouring seems to have been used to show untithable roads and ways. The route A to B is shown running unenclosed across four fields, with which it is included for tithe purposes by tie marks. The route A to B is depicted mostly by double pecked lines except where the route runs along the field adjoining the parish boundary with Boxwell and Leighterton, where it is shown by a solid and by a pecked line. The way is shown crossing three field boundaries between points A and B and as crossing a further boundary at point C. C to D is also depicted, although outside the parish, by double pecked lines, uncoloured. The present

9 Leighterton Lane (the road joining points B and C) is also depicted by double pecked lines, uncoloured, and unenclosed from the land over which it passes.

Boxwell and Leighterton Tithe Map, 1839 (GDR/T1/36) (….L) Second class map. Neither of the two claimed sections are depicted but the north- south route (Leighterton Lane) that joins the claimed routes at points B and C is shown coloured brown and enclosed by two full lines, with the exception of the southernmost section, closest to the parish boundary with Hawkesbury, which is depicted by closer double pecked lines running across plot number 140 and is separated from the remainder of the route by a boundary feature. This latter section is annotated “from Oldbury ” at the parish boundary. There is no key, but this section of Leighterton Lane appears to be of lesser status than the remainder of the route, although the way may be depicted in this manner to show that it was tithable.

11.3 Ordnance Survey 6” to 1 mile, 1st edition, 1889, sheet Glos 65 (M) A to B marked by double pecked lines except for a short section close to point B where the route is shown by a pecked and a solid line. The pecked lines indicate that the route was unenclosed from the surrounding field. Boundary features (presumably gates) are shown where route A to B crosses the two field boundaries roughly mid way between points A and B. Route C to D is shown by two lines, one solid and one pecked. A boundary feature is shown running across the route where it crosses a field boundary towards point D. Boundary mereing R.H. refers to the root of the hedge and F.W. to the foot of the wall. No indication is given as to status.

11.4 Ordnance Survey 25” to 1 mile, 3rd edition, 1921, sheet Glos 65.6 The 3rd edition map of 1921 shows A to B by double pecked lines, with boundary features shown crossing the claimed route at point A and at the three points where the claimed route crosses field boundaries. The way seems to be open to the road at point B. The route C to D is shown by double pecked lines, with boundary features separating the way from the road at point C and also where it crosses a field boundary towards point D. The section from this field boundary east to point D is shown to be enclosed by field boundaries on both sides. The route is shown open to the road at point D. No indication is given as to status.

11.5 Ordnance Survey 1” to 1 mile, 1st edition, surveyed 1817 (….E) The way A to B is shown mostly by double pecked lines, apart from a section that is shown by a full and a pecked line, in common with other lesser routes, but its status otherwise undefined. The route C to D is not shown.

11.6 Isaac Taylor’s Map of Gloucestershire, 1777 (….D) Map of the county at 1” to 1 mile scale. Shows the more important roads in full, the less important routes as stubs off the main roads. Section of the claimed route shown running east from point A by two pecked lines, to the north of “Settlewood ” [Saddlewood]. It is unclear whether the section C to D is shown, but its continuation over the county boundary towards Sherston is depicted.

10 11.7 Bryant Map of Gloucestershire, 1824 (….H) Both routes shown uncoloured in common with other lesser routes. The section of path A to B is shown by double pecked lines. The section of path C to D is shown, by a solid and a pecked line, but not following exactly the current alignments. The route is identified in the key as a lane or bridleway.

11.8 Greenwood Map of Gloucestershire, 1824 (….G) Both sections of the claimed route are shown by a mixture of double pecked and solid lines. They are identified in the key as “Cross Roads”.

11.9 Inland Revenue, maps compiled under the Finance Act 1910 (D2428) Based on Ordnance Survey 25” to 1 mile 1903 edition, marked up by Inland Revenue c.1915, and reference books or files D2428/2/61- Form 37. Map not held, so form 37 not checked. The valuation plan Glos 65.6 (IR 128/4/490) is held by the National Archives at Kew: sections A to B and C to D are both shown as part of the adjoining hereditaments.

11.10 Maps deposited with County Planning Officer under Rights of Way Act, 1932 Section 1 (CP/D) Nothing relevant.

11.11 Parish Council file, Rights of Way Act 1932 P114a PC 1/1-5 Parish Council minutes, 1894-1987 (5 volumes). Not checked. P114a PC 12/7 Minutes of proceedings of Highway Committee of County Council, 6 September 1913 (1 document). Not relevant P114a PC 39/1 Correspondence re: from King’s Arms to Creephole, 1913 (6 documents). Not checked. P114a PC 39/2 Questionnaire and circular re: 1932 Rights of Way Act (3 documents) Not relevant P114a PC 39/3 Preliminary survey of Rights of Way 1950-51 A to B numbered 24 and described as ‘C.R.B.’ C to D numbered 29 and also described as ‘C.R.B.’

11.12 Duplicate copies of tithe or inclosure awards PC 1812/135 Modern hand-drawing combining Hawkesbury (Tresham) Inclosure Map and Didmarton tithe map. Not produced accurately. D1086/P5 Duplicate copy of Hawkesbury (Tresham) inclosure map D170/SD1 Duplicate copy of Hawkesbury (Tresham) inclosure map GDR T1/97 Diocesan copy of Hawkesbury tithe map, in poor condition Similar to Parish Copy, but claimed route A to B shown by a wider and bolder dashed line. MF 1127/101 Microfilm copy of Hawkesbury tithe map MF 1127/66 Microfilm copy of Didmarton tithe map

11 11.13 Private Estate Maps Photocopy of Beaufort Estate Map, 1755 (Photocopy 252) Four maps of the central part of Didmarton and Oldbury on the Hill parishes. Show strips in open fields, some field names, acreages and names of occupiers. Map of East Field appears to show claimed route between points C and D by two full lines running along the northern edge of the East Field.

Plan of Manor of Tresham, 1800 (D1086/P4) Does not extend to area of interest which is marked “Saddle Wood Farm”. Searched, not relevant.

11.14 Footpath or highway diversion orders deposited with Clerk of the Peace (Q/SRh) Didmarton none Hawkesbury 1819C/3, 1937D Checked, not relevant

11.15 Plan of public schemes deposited with Clerk of Peace (Q/RUm) 114, 337, 382. Checked, not relevant

11.16 District Council Clerk’s Correspondence DA 36/185/1,2 Draft map and schedule for 1948 Act (2 volumes). Not checked

11.17 County Council Solicitor’s Correspondence (K596/25) Nothing relevant

11.18 County Surveyor: papers relating to survey of footpaths under National Parks and Access to the Countryside Act, 1949 (K687) Didmarton Parish Submission (K687/1/12) A to B numbered 2 (numbers 24 and 28 refer to survey P114a PC 39/4) and C to D numbered 6 (29 ditto). Both paths described on accompanying original submission documents as ‘C.R.B.’ and C to D also described as a County Road Class 6 no. 61436.

Objections to Draft Map (K687/2/10) No relevant objections

Provisional Map and Statement (K687/3/19 and 3/40) Reproduce the same features as draft statement and map.

Definitive Statement NDM 2 is described as a CRB [carriage road used as a bridleway], commencing from the A46 on the south-east side of the Stroud to Bath Road, 200 foot north- east of Tresham Road Junction and running in a south easterly direction to county road 279 at the west side of Leighterton to Didmarton Road, 3,750 foot approximately south of “The Gables” Leighterton, via Ordnance Survey parcel numbers 1291, 1293, 1306 and 1309. It is described in the particulars as “Submitted by Parish Council and shown on 6” OS Glos 65 Edition of 1923”

12 NDM 6 is described as a CRB, commencing from county road 279 at the east side of Didmarton to Leighterton Road, 2,700 foot approximately WNW of “Waste Barn ” and running in a south-westerly direction to county road 280 at the west side of Leighterton to Knockdown Road, 1,000 foot approximately west of “Waste Barn” via Ordnance Survey parcel numbers 10 and 11. It is described in the particulars as “Submitted by Parish Council and shown on 6” O.S. Glos 65 Edition of 1923. Also a County Road Class 6 number 61436 ”.

12. CONSULTATIONS

12.1 Didmarton Parish Council C G Jackson, Parish Councillor for Didmarton Parish Council, responded by letter received 29 March 2005: “Further to our recent conversation with Andrew Houldey regarding the above matter, enquiries indicate that the above footpaths have, and continue to be used for the sole purpose for which they were intended. The paths are popular with and regularly used by walkers. There are signs that vehicular traffic of some description has also used the footpath, particularly where it exits onto the A46 highway. The Parish Council suggests that the footpath has been used by such vehicular traffic without authority, and certainly not for the period of time required to establish any claimed rights. It is noted that Members of the Public Rights of Way Committee may not take environmental considerations or the effect on property interests into account when considering the application, however the Committee ought to be made aware that the County Highways Department Officers expressed considerable concern about farm and horse riding establishment vehicular traffic entering from and exiting onto the A46 at that precise location when considering a recent planning application. It seems that the footpath in question merges with a roadway leading to Paynes Barn and Saddlewood Farm that permits legitimate vehicular use and the Parish Council suggests therefore that consultation should also take place with Gloucestershire County Highways Department on the question of road safety “.

12.2 Council Mrs J Lodge of Cotswold District Council was contacted on 16 February 2005. No response has been received.

12.3 County Councillor Councillor Anthony Hicks was consulted on 16 February 2005; no response has been received.

12.4 Ramblers’ Association The South Cotswold Group Footpath Secretary Mr Michael Poole responded by e- mail dated 28 February 2005: “It is our opinion that these roads which are useful to walkers in their current status are not suitable for vehicular use by the public. We would therefore be very likely to oppose any order upgrading their status to BOAT ”.

12.5 British Horse Society Mr William Reddaway, County Access and Bridleways Officer, was consulted on 16 February 2005 but no response has as yet been received.

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12.6 Cyclists’ Touring Club Colin Palmer, the CTC Offroad Right to Ride Representative replied by letter dated 2 March 2005. He stated that the Cyclists’ Touring Club had no objection to the order and added that “the CTC has no evidence to offer, but will normally support the reclassification of RUPPs to BOATs”.

13. APPLICANT

The applicant has not commented on the evidence submitted by the landowners.

14. OTHER REPRESENTATIONS

14.1 Penelope Panton, Fox Cottage, Leighterton Following a telephone conversation regarding this claim, Mrs Panton wrote on 14 March 2005, expressing concern about how the condition of the surface of the way had deteriorated as a result of use by vehicles. She also noted, as a horse rider, the safety aspect of vehicles using the route coming into contact with horses.

14.2 John Burgess, 29 Berthas Field, Didmarton Mr Burgess e-mailed in response to the notice erected at the start of the claimed route. He stated “I wish to object to this application. If passed, it would allow the right of way to be used by noisy dirt motorcycles which already run riot in an adjacent field (private land)”.

15. LEGAL COMMENTS AND CONCLUSIONS

15.1 Section 53 (3) (c) (i) of the Wildlife and Countryside Act, 1981 relates to the discovery by the Authority of evidence that shows that a right of way that is not shown on the map and statement subsists, or is reasonably alleged to subsist, over land in the area to which the map relates.

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

15.3 Section 66(1) of the Wildlife and Countryside Act, 1981 defines a byway open to all traffic as “a highway over which the public have a right of way for vehicular and all other kinds of traffic, but which is used by the public mainly for the purpose for which footpaths or bridleways are so used.” [i.e. by walkers and horse riders].

15.4 Section 31(1) of the Highways Act 1980 states that where a way over any land, other than a way of such character that use of it by the public could not give rise at Common Law to any presumption of dedication, has been actually enjoyed

14 by the public as of right and without interruption for a full period of 20 years, the way is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it. The period of 20 years in sub-section (1) is calculated retrospectively from the date when the right of the public is brought into question whether by a notice or otherwise.

15.5 Section 31(9) of the Highways Act 1980 says that nothing in this section operates to prevent the dedication of a way as a highway being presumed on proof of user for any less period than 20 years. If there is no presumption of dedication under Section 31 of the 1980 Act, then we will also consider whether the evidence is such as to establish, again on a balance of probabilities, dedication at Common Law. Paragraph 12 of Annex B of the Department of Environment Circular 2/93 states that before making an order, the surveying authority must be satisfied that the evidence shows on the balance of probability that a right of way of a particular description exists.

15.6 The issue is whether the evidence discovered by the Council, when considered with all other relevant evidence available, shows that, on the balance of probabilities, the Definitive Map and Statement require modification because a right of way which is not shown on the map and Statement subsists, or is reasonably alleged to subsist.

15.7 Section 67(1) of the 2006 Natural and Environment and Rural Communities (NERC) Act extinguishes unrecorded public rights of way for mechanically propelled vehicles, with certain exceptions that are listed in subsections 67(2) and 67(3). Section 67(3) of the Act provides that section 67(1) does not apply to an existing right of way if “before the relevant date, an application was made under section 53(5) of the Wildlife and Countryside Act 1981 (c.69) for an order making modifications to the definitive map and statement so as to show the way as a byway open to all traffic…”. The relevant date for England is 20 January 2005. This application, which was specifically for a byway open to all traffic, was received on 19 January 2005 and hence the unrecorded motor vehicular rights are preserved under 67(3). Thus evidence of carriageway rights would result in an order being made for a Byway Open to All Traffic (BOAT) rather than for a Restricted Byway.

15.8 The conditions for classification of a byway open to all traffic have been clarified by the Court of Appeal’s judgement [Masters v the Secretary of State for the Environment, and the Regions (2001)]. The Court stated that it is not a precondition for a carriageway to be a BOAT for there to be equestrian or pedestrian use or that such use is greater than vehicular use. The test for a carriageway to be a BOAT relates to its character or type and in particular whether it is more suitable for use by walkers and horse riders than vehicles. In summary, a byway open to all traffic is a carriageway and thus a right of way for vehicular traffic, but one that is used mainly for the purposes for which footpaths and bridleways are used, i.e. by walkers and horse riders.

15.9 In the Masters case (2000) it was further concluded that a byway should not be removed from the Definitive Map because the use made of the way by the public had ceased or the balance between the various uses made by the public

15 of the way had changed. Parliament intended that ‘full highways or cart ways’ which might not be listed as highways maintainable at the public expense under the Highways Act 1980, should be included in the Definitive Map and Statement so that rights of way over such highways should not be lost. If a highway was more suited to horse riders or pedestrians, then, as in the Masters case, it was made obligatory by parliament that they continue to be shown on the maps and statements.

15.10 The 1949 National Parks and Access to the Countryside (NPAC) Act provided that on the definitive map of public rights of way there should be included, in addition to every footpath or bridleway, those unmetalled tracks sometimes referred to as green lanes which, notwithstanding that it was believed that they carried vehicular rights, were in practice suitable for, and mainly used by, walkers and horse riders. This category of way was termed by the Act a “road used as a public path ” (RUPP). NDM 2 and NDM 6 were, until a change in legislation introduced in 2 May 2006 (for which, see paragraph 15.15), shown on the Definitive Map of Public Rights of Way as roads used as public paths.

15.11 Unfortunately the 1949 NPAC Act failed to make it clear whether or not RUPPs were subject to public vehicular rights. Section 27 defined a Road Used as a Public Path as a “highway, other than a public path, used by the public mainly for the purposes for which footpaths or bridleways are so used ”. As public path was defined in Section 27(6) as “a highway being either a footpath or a bridleway ” then the implication of this definition was that RUPPs did carry vehicular rights. However, Section 32(4) (b) provided that the showing of a way as a RUPP on a definitive map was conclusive evidence only that the public had “a right of way on foot and a right of way on horseback or leading a horse [but] without prejudice to any question whether the public had…a right of way other than the rights aforesaid ”.

15.12 The uncertainty as to whether RUPPs carried vehicular rights or not has caused problems ever since. It cannot be presumed that classification of a way as a RUPP is in itself evidence of the existence of public vehicular rights. A circular from DETR, 22 July 1997, referred to the definition of RUPPs in the 1981 Act which included the words “so however that this paragraph shall be without prejudice to any question whether the public had any right of way other than those rights” concluding that this did not signal that vehicular rights attached to RUPPs. Paragraph 52 of DOE Circular 2/93 had previously explained that the phrase “does no more than protect other rights, where they exist, against the conclusive evidential effect of the definitive map ”. The 1997 DETR circular concluded that vehicular rights couldn’t accrue over a RUPP through the use of vehicles in the belief that its status conferred rights of vehicular access.

15.13 Justice Sullivan in Stevens v Secretary of State for the Environment (1998) stated “the fact that the track was classified as a RUPP tells one that it was used mainly for one or other of those purposes [i.e. for the purpose for which footpaths or bridleways are so used]… it does not mean that there were any additional rights over the track. Such rights would have to be proved to exist by dedication or by prescription ”. He asserted that the issue of whether the public enjoyed any vehicular rights was deliberately left open by the 1949 Act.

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15.14 Section 54(1) of the 1981 Wildlife and Countryside Act required every surveying authority to review all RUPPs shown on its definitive map and make one or more reclassification orders to reclassify them as a byway open to all traffic (BOAT), as a bridleway, or as a footpath. The test for deciding into which category a RUPP should be placed was solely on the existence or otherwise of rights. If vehicular rights are shown to exist over a RUPP then it should be reclassified as a byway open to all traffic. If no vehicular rights are shown to exist, a RUPP should be reclassified as a bridleway, unless bridleway rights are shown not to exist, in which case it should be reclassified as a footpath. Neither NDM 2 nor NDM 6 has been the subject of such a review.

15.15 Sections 47 and 48 of the 2000 Countryside and Rights of Way Act of 2000 provide for a general redesignation of RUPPs, which are instead to be treated as shown in definitive maps and statements as restricted byways. All RUPPs will become restricted byways and surveying authorities will be relieved of their current duty (under Section 54(1) of the Wildlife and Countryside Act) to reclassify RUPPs. A restricted byway will carry rights for all types of traffic except motorised vehicles. This provision came into force on 2 May 2006.

15.16 The public have a right of way over a restricted byway on foot, on horseback or leading a horse, and a right of way for vehicles other than mechanically propelled vehicles, thereby giving a right of way for pedal cyclists and drivers of horse-drawn vehicles.

15.17 Under Section 32 of the Highways Act 1980, when determining whether a way has or has not been dedicated as a highway, or the date on which such dedication, if any, took place, shall take into consideration any map, plan or history of the locality or other relevant document which is tendered in evidence, and shall give such weight thereto as the court or tribunal considers justified in the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or compiled, and the custody in which it has been kept and from which it is produced. The Committee’s attention is drawn to the report on documentary evidence at section 11.

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

15.19 The 1829 Inclosure Award for Didmarton and Oldbury on the Hill sets out and confirms roads and footways and discontinues and stops up other ways. The ways that are to be set out are described in the Award and shown on the accompanying map. Also in existence is a draft Inclosure map which shows the position of the ways to be stopped up (which are described in the Award but not annotated as stopped up on the official map). The way C to D is shown , although it may have been a pre-existing route, whereas the length A to B was in existence before this award was made.

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15.20 The way C to D was set out in the 1829 Didmarton and Oldbury on the Hill Inclosure Award as “one other Public Carriage Road or Highway of the breadth of thirty feet called Sherston and Wotton Underedge Road branching out of the Tetbury and Bath Turnpike Road near Knockdown and extending north westward into the Parish of Hawkesbury. . .” The Commissioner directed “that the said public carriage roads or highways shall be and remain respectively of the respective widths and shall be forever hereafter amended and kept in repair by such persons and in like manner as the other public roads within the said parishes of Didmarton and Oldbury on the Hill are by Law. . . “

15.21 An Inclosure Award is a primary source of evidence being almost conclusive evidence of the path’s status as a public carriageway. Inclosure Awards took effect as legal documents to create new rights of way, and in some cases to extinguish old ones. If a right of way is created by an Inclosure Award and is properly shown in that award, that is not just evidence of the existence of a right of way, it is a legal event which conclusively declares the right of way to exist at that date. The award is rebuttable only by evidence of subsequent legal stopping up.

15.22 Under the 1801 Inclosure (Consolidation) Act and the subsequent 1836 and 1845 Acts there was an express obligation to set out and appoint roads. Landowners had a strong influence over the Inclosure process and had obvious reasons for wishing to minimize the number of public highways. Equally the parish as a whole would have wished to minimise the costs to the parish of public highway repair, which prior to the 1835 Highways Act automatically attached to public rights of way which had been set out. Furthermore, Inclosure Awards were open to public scrutiny or challenge. Thus, considerable value should be placed on Inclosure Awards as evidence.

15.23 The facts set out in an inclosure award carry significant evidential weight. In Roberts v Webster, 1967 66 LGR 298, Widgery J considered an 1859 inclosure award made under the Inclosure Act 1845: “It seems to me that the inclosure award of 1859 is very powerful evidence indeed to support the view that Pipers Lane at that time was reputed to be a public highway. . . If they (the justices) concluded, as they did, that the inclosure award was such a powerful piece of evidence that they should infer from it that a highway existed over this road in 1859, I can see no fault in their doing so. Indeed, speaking for myself, I am prepared to say that had I been sitting with the justices at quarter sessions, I feel sure that I should have adopted the same view”.

15.24 In 1801 Parliament determined to simplify the process of Private Bills by standardising the clauses most frequently used so that these would be automatically incorporated into Local Acts, thus making them shorter and allowing for more efficient progress through the Parliamentary process.

15.25 Sections 8 and 9 of the 1801 Act included a set of provisions relating to public carriage roads including a minimum width requirement (30 feet) and the appointment of a surveyor to oversee the making up of the roads to a satisfactory standard followed by a declaration to that effect by the Justices.

18 Section 44 of the 1801 Act applied its powers and provisions to all local Acts (passed after 2 July 1801) unless the latter specified otherwise. In such cases the provisions of both the local Act and the 1801 Act need to be examined.

15.26 In this case a local inclosure act is operating within the provisions of the Inclosure Consolidation Act 1801. The significance to rights of way cases arises from the evidential value of inclosure awards as legal documents giving effect to the creation or extinguishment of public highways, depending on the powers given to the Inclosure Commissioners. Awards and maps may also provide supporting evidence of other matters, such as the existence or status of public rights of way over land adjacent to but outside the awarded area.

15.27 An Award based on the 1801 Act and not shown to be ultra vires [beyond the authority conferred in law] is very strong evidence of the legal status of the highways described, although in Jacombe v Turner (1892) 1QB 47 and Collis v Amphlett (1918) 1Ch 232 an inclosure award was found to be only conclusive as to matters within the Commissioners’ jurisdiction. In the 1893 case of Micklethwaite v Vincent where an inclosure award dated 1808 was at issue, the Court of Appeal held that “Even if the Commissioners in this case have acted ultra vires, it would be impossible to hold that the award at this distance of time could be impeached ”.

15.28 R v SSE ex parte Andrews [1993] JPL 52, considers the issue of ultra vires awards. In Andrews, Schiemann J decided that: the 1801 Act did not give Commissioners acting under the Act the power to set out new public carriage roads and highways of less than 30 feet in width over the land being inclosed. Such a power must be found in the local acts, otherwise an awarded carriageway less than 30 feet wide was ultra vires ”. However, Kay, J in Buckland and Capel v SETR [2000] directed that the lack of an appropriate power by Commissioners to create new highways is not necessarily fatal to the possibility that the public may have acquired a right of way by other means.

15.29 The Award and accompanying map allow us to draw the following conclusions: 1. The way C to D was expressly laid out as a public carriageway or highway to a width of 30 feet, and that this was intra vires (within the relevant powers) of the 1801 Inclosure (Consolidation) Act and the local act. 2. The way was to be kept in repair by the same persons and in the same manner as the other public roads in the parishes of Didmarton and Oldbury on the Hill (i.e. it was to be publicly maintainable). The route C to D and its southern continuation to Knockdown are annotated “road to be repaired by Oldbury Parish ” and “to be repaired by Didmarton parish ” on the draft Inclosure Map 3. The way C to D is described in the award as the Wotton under Edge and Sherston road and as continuing into Hawkesbury parish at its western end 4. The inclosure map shows the way in brown as continuing south into Wiltshire to Knock Down and at the western end it is annotated “from Wotton under Edge ”. 5. It is unclear from the Award and Map as to whether C to D followed the course of an existing route or not. The key to the draft inclosure map identifies it as a road or footway “to be continued set out and confirmed ”

19 which leaves the issue open. There is evidence from other sources that the route C to D physically existed before 1839, which we will examine in due course. 6. The route A to B and then C to D is depicted as the main road, and the present county roads 3/279 (Leighterton Lane) and 3/280 are shown as subsidiary to it.

15.30 Thus the evidence for the length of path C to D being set out as a public carriageway by the 1829 Didmarton and Oldbury on the Hill Inclosure Award is clear. Furthermore, there is no evidence that the route has been subsequently stopped up. The length A to B was not set out by 1839 Award, although its status as a public carriageway forming a westward continuation of the way C to D can be inferred from the description of the route in the Inclosure Award itself (Sherston and Wotton under Edge Road) and from its depiction on the accompanying map (to Wotton under Edge). The evidence from other sources is that the section A to B was an old highway which predated the inclosure award.

15.31 The length of way A to B is first shown (in part) on Isaac Taylor’s 1777 map of Gloucestershire, upon which it is depicted leading off the main Bath to Nailsworth road at point A, and continuing north of Saddlewood Farm, which is named. It is shown by double pecked lines, indicating that it was unenclosed from the surrounding land. Taylor’s map does not depict all highways in existence at that time, and generally represents only the main roads, and shows routes joining the main roads by a short stub. The length C to D is not shown, possibly because it was not close to a main road, but its continuation towards Knockdown and Sherston is shown.

15.32 The way A to B is next shown on the Ordnance Survey 1st edition 1” to 1 mile map, surveyed in 1817, mostly by double pecked lines, in a manner consistent with other known roads. The way C to D is not shown.

15.33 The 1824 Bryant and Greenwood maps both show the route A to B as an unenclosed way. Both maps also depict the section C to D, showing that it physically existed prior to its setting out by the 1829 Inclosure Award. The key to Bryant ’s map identifies the way as a lane or bridleway. The key to Greenwood’s map identifies both sections of the way as cross roads. Further evidence of C to D being an existing route that was set out to 30 feet width by the 1829 Inclosure Award is provided by a 1755 Beaufort Estate map which appears to show the way by two full lines running along the northern edge of the East Field.

15.34 Evidence of the existence and status of section A to B is provided by the tithe maps for Hawkesbury, Didmarton and Oldbury on the Hill and for Leighterton. Tithe maps provide important evidence as to the existence of a public right of way. The maps were drawn up under statutory authority by the Tithe Commissioners under the provisions contained in the Tithe Commutation Act of 1836 to show all cultivated land, arable and pasture, as tithe was payable on land producing crops. They also had to show waste land and roads, because tithe was not payable on these. Thus a distinction is made between tithable and

20 untithable land, with roads clearly marked as untithable. Several features of the Tithe Commutation process lend weight to the evidential value of the documents: the public and statutory nature of the process, the external and internal checks carried out at the time, the impartiality of the process, and the official custody in which the records have been kept.

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

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

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

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

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

15.37 The Didmarton Tithe Map of c.1839 shows the claimed route C to D by double lines, open at each end, and coloured yellow, as are other known roads. The route is marked Sherston and Wotton under Edge Road and given a plot number (250). The route is shown continuing westwards, where it is labelled “ from Wotton under Edge ” and also shown continuing east from point D. Leighterton Lane is shown (and named) south of point C, as secondary to claimed route. In the accompanying apportionment, under the section “Roads ” plot number 250 is identified as “Adjoining West Peak ” and 123 (the continuation of the claimed route to the east) as “ Wotton Road ”.

15.38 In the case Robinson Webster (Holdings) Ltd v Agombar, 9th April 2001, Mr Justice Etherton gives very clear views on the weight to be accorded to the Tithe award, notably the presumptions of correctness and accuracy in the original making. In that case, the claimed route was coloured the same as other

21 principal routes in the area, numbered on the map and in the schedule is shown as being in the occupation of “Parish Officers ”. He notes,

“This is important evidence. On the face of it, this is evidence that in 1875 [the claimed route]…was a public highway within the responsibility of the parish officers. This could only be on the basis that [the claimed route] was dedicated and adopted following the Highways Act 1835 or, alternatively, had been the responsibility of the parish officers since before the coming into force of that Act. In the latter case, the parish officers would only have assumed responsibility if there had been evidence of dedication and acceptance of the road by the public.” He continues: “The map and schedule clearly show [it] was then in the occupation of the parish officers. It is this fact, rather than the issue of whether [the claimed route] or the surrounding land were tithable, that is significant. In this connection, it must be borne in mind that tithe maps are public documents and that the Commissioners, under whose authority and control the tithe map was prepared, had power to examine witnesses on oath.”

15.39 In this case, the Tithe Map and apportionment must be considered together as complimentary evidence. The colouring, the use of plot numbers allowing identification provide confirmation that the route C to D was a public road, as was its continuation southwards to Knockdown. The route is depicted as a road connecting the towns of Wotton under Edge and Sherston, and it is shown continuing westwards towards Wotton. The reasonable conclusion is that this westerly continuation of the Sherston to Wotton road was along the claimed route A to B. The only other road at this point is Leighterton Lane, which heads north to Leighterton rather than westerly towards Wotton. It is most probable that the Wotton to Sherston route went through Alderley, Tresham, along the claimed routes A to B and then C to D and then south to Knockdown. The route can be seen on the 1817 Ordnance Survey 1” map and on the 1824 Greenwood and Bryant maps.

15.40 The Hawkesbury Tithe Map shows the way A to B by double pecked lines, but uncoloured. It should be stressed that the purpose of the map was to distinguish between tithable and untithable land, rather than to identify rights of way. The route is shown between points A and B included within the adjoining parcels of land, as an unenclosed road across the downs, unsurfaced, and presumably capable of being grazed and hence subject to a tithe charge.. The way C to D, which had been set out by the Didmarton Inclosure Award of 1829 as a public carriageway, and also the current county road known as Leighterton Lane are also shown by double pecked lines, uncoloured, and as part of the adjoining plots.

15.41 The Leighterton Tithe Map shows the area immediately to the north of the section A to B. The claimed route is not depicted, but it does show Leighterton Lane, the county maintained road that connects NDM 2 and NDM 6 between points B and C. Most of Leighterton Lane is shown by two full lines, coloured brown, as are other known roads, and untithable. The section closest to the parish boundary and point C is shown by thinner double pecked lines, and is included within the adjoining plot. It is marked “to Oldbury ” at the parish

22 boundary. It can be tentatively concluded that this southern section is of lesser status or that it is shown differently as it was unenclosed from the surrounding land, and was presumably tithable.

15.42 Ordnance Survey maps have since 1889 carried a disclaimer that any representation of a road, track or path is no evidence of the existence of a right of way over it. However they do provide evidence of the physical existence and extent of a way, suggesting (but not proving) that the path had been in use for a longer period than that for which user evidence is available. The 1889 6 ” to 1 mile map and the subsequent revisions of 1903 and 1923 show the way as a mostly unenclosed way running across farmland and passing through gates where it crossed field boundaries.

15.43 The Finance Act of 1910 imposed a tax on the incremental value of land when it changed hands. In order to levy the tax, the Board of Inland Revenue was required to ascertain the site value of all land in the , which meant plotting and recording every piece of land, and resulted in the most comprehensive record of land ever prepared. All private land including private roads was assigned an assessment number. Valuers would have been extremely reluctant to show any land as a public road if it could be assessed for duty. Indeed they would have been negligent to do so.

15.44 In view of the financial implications, many landowners and occupiers would have been anxious to ensure that public highways were correctly recorded on the plans and all rights of way were properly recorded in the Field Book. It was an offence to knowingly make any false statement of representation, punishable by up to six months imprisonment. The threat of criminal sanction and the fact that the survey was carried out by a public body under statutory powers are relevant in giving the survey documents weight.

15.45 The Finance Act Map shows the whole of the route as coloured and within hereditament boundaries. This does not necessarily mean that the way was not public. It is indicative of the changed characteristics of the way, as it has fallen into decline, that as a cross-field path it has been included within the surrounding hereditaments. It is possible that a deduction was claimed for the right of way in the accompanying field books, although it is impossible to identify for which path a deduction has been claimed, owing to there being more than one path crossing the individual hereditaments.

15.46 On some definitive maps and on many parish submissions compiled in connection with the 1949 National Parks and Access to the Countryside Act, RUPPs were shown as a ‘CRB ’ (carriage road used mainly as bridleway) or as a ‘CRF ’ (carriage road used mainly as footpath). A memorandum entitled Survey of Rights of Way was produced by the Commons, Open Spaces and Footpaths Preservation Society in collaboration with the Ramblers’ Association in January 1950. This was issued by the Ministry of Town and Country Planning for the use of local authorities and contained information on how to prepare a rights of way map. It contained the advice that “highways which the public are entitled to use with vehicles but which, in practice, are mainly used by them as footpaths or bridleways, should be marked on the map C.R.F. or C.R.B.

23 as explained in section 4 below, with a note in the schedule also that their main use is as a footpath or bridleway as the case may be”. The route is marked on the Parish Submission Map and Schedule for Didmarton as C.R.B. (carriage road used mainly as a bridleway). The terms CRF and CRB have no legal significance.

15.47 The road seems to have fallen into disuse as a through route for vehicles at some stage after 1840, when there was no longer any need to maintain the route in a condition suitable for vehicular traffic. Since it was first recorded in the 18th century, the route was an open way across the downs, unenclosed from the surrounding farmland, and gated at each field boundary.

15.48 Committee members are reminded that even if the route fell into disuse it does not mean that any public rights attaching to the route ceased to exist; such rights would need to be removed by a legal stopping up order. There is no evidence that the way has been the subject of such a stopping up order. The evidence for the section C to D is clear: it was laid out and confirmed as a public carriageway by the 1829 Inclosure Award. There is no evidence that the way has subsequently been stopped up. The section A to B was in existence by 1777, and is shown on the 1829 Inclosure Award and the Didmarton Tithe Map as forming part of a through route between Sherston and Wotton under Edge.

15.49 The conditions for classification of a byway open to all traffic clarified by the Masters judgement have been outlined in paragraphs 15.8 and 15.9. The test for a carriageway to be a BOAT relates to its character or type and in particular whether it is more suited for use by walkers and horse riders. It is necessary to consider the character of the claimed route as a whole. Both NDM 2 and NDM 6 are old cart ways that have gradually fallen into disuse as more convenient routes have come into being. The way C to D is recorded on the list of highways maintainable at public expense (kept under section 36(6) of the Highways Act 1980) as a Class 6 Road. When the highway records were re- classified in the 1930s, the County Surveyor listed highways in this category as “unmetalled tracks, bridleroads and public footpaths maintainable by the County Council, but not including those suitable for wheeled traffic”. Use of the two paths is predominantly by walkers and horse riders, and their unsurfaced, open character makes them more suited for use by pedestrians and equestrians. Thus, the tests under Masters for suitability and character are met and the way should be recorded on the Definitive Map and Statement as a Byway Open to All Traffic.

15. APPENDICES A. Map of claimed paths at Didmarton 1: 8,000 B. Didmarton and Oldbury on the Hill Inclosure Map, 1829 (Q/RI 54) C. Draft Didmarton and Oldbury on the Hill Inclosure Map (D591) D. Isaac Taylor’s Map of Gloucestershire 1777 E. Ordnance Survey 1” to 1 mile map, 1st edition (surveyed 1817) F. Ordnance Survey 1” to 1 mile map, 1st edition, enlarged section G. Greenwood’s Map of Gloucestershire 1824 H. Bryant ’s Map of Gloucestershire 1824

24 I. Didmarton Tithe Map 1839 (P114/1 SD2/1) J. Enlarged sections of Didmarton Tithe Map K. Hawkesbury Tithe Map, 1840 (P170 SD 2/1) L. Boxwell and Leighterton Tithe Map M. Ordnance Survey 6” to 1 mile map, 1st edition (1889)

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