REGULATORY BOARD COMMONS AND RIGHTS OF WAY PANEL 30 MARCH 2004 AGENDA ITEM: 5

APPLICATION FOR A MODIFICATION ORDER TO ADD A BYWAY OPEN TO ALL TRAFFIC AT BACK LANE, , PARISH OF AMPNEY CRUCIS

JOINT REPORT OF THE EXECUTIVE DIRECTOR: ENVIRONMENT AND THE COUNTY SOLICITOR 1. PURPOSE OF REPORT

To consider the following application: Nature of Application: Add Byway Open to All Traffic Parish: Ampney Crucis Name of Applicant: Mr J T Ducker Date of Application: 31St January 2003 2. RECOMMENDATIONS

(1) That no Modification Order be made to add the Byway Open to All Traffic to the Definitive Map due to evidence that the claimed route is a road (2) That the claimed path be added to the road records as a continuation of road 50898 3. RESOURCE IMPLICATIONS

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

4. SUSTAINABILITY IMPLICATIONS

No sustainability implications have been identified.

5. STATUTORY AUTHORITY

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

1 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 CONTACTS Mr Andrew Houldey, Modification Orders Officer, Public Rights of Way and Definitive Map Team, Environment Department. Telephone Gloucester (01452) 425522 E-mail: and rew.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 location map at scale 1: 10,000 is attached (numbered 5.A) showing the position of the claimed path at Ampney Crucis. The village of Ampney Crucis lies approximately 2 miles to the east of . The area of interest lies within Ordnance Survey Grid Square SP 0602

7.2 A large-scale map of the Ampney Crucis area at 1: 1250 scale is attached (numbered 5.B). This map depicts the claimed path by a crossed black line running between points A, B and C. The claimed path, generally known as Back Lane, adjoins County Class 5 Road number 50898 at its northern end (Ordnance Survey Grid Reference SP 0663 0238) at the point marked A on the aforesaid map. It then runs in a generally south south-west direction for approximately 225m to a security gate at point B (OS Grid Reference SP 0660 0222). It then continues to a wooden farm gate at point C (OS Grid Reference SP 0659 0218) where it terminates.

7.3 The north-south section of County Road 50898 is known as Batch Lane.; that part of road 50898 that runs west-east is known as The Lannocks. 7.4 The claimed route is not included on the County Road Records of maintainable highways or on the Definitive Map of Public Rights of Way. It varies in width between approximately 8 and 12 metres, is surfaced with stone and is suitable for use by vehicles. It is bordered on the west side by a stone wall that continues northwards along Batch Lane and on the east side by a post and rail fence and hedge. The total length of the claimed path is 225 metres. 7.5 The path was obstructed at point B in April 2002 by Wildmoor, the owners of the industrial premises called Park Close Units at the southern end of Back Lane, who

2 erected a locked security gate at point B. That part of the claimed route between points B and C was then incorporated into Park Close Units.

7.6 A gate had earlier been erected at point B in 1992 by the previous owner of Park Close, W E Berry. According to Mr Gerald Gaden, the tenant of land to the south of point C up until 1997, the gate was generally not locked. It was put there so Mr Berry could keep vehicles safe on his adjoining land. It was often left open, but Mr Berry gave Mr Gaden a key to use if it were ever padlocked. According to the applicant it was always possible to walk past the gate when it was locked as it was not such as to deny access to pedestrians. This gate was taken off its hinges when the land was sold in 2000.

7.7 A gate was also erected at point A at some time between 1971 and 1978 by Robin Saunders, one of the landowners of adjacent land. Mr James Tye, the tenant of land to the south of point C took it off its hinges, and left it on the side of the track. According to Mr Tye, Mr Saunders objected but did not do anything. Mr Saunders claimed that he was trying to improve control over his own fields. The gate was not installed again after it was removed.

8. BACKGROUND

8.1 The land at the southern end of Back Lane, Ampney Crucis, locally known as Park Close, has been owned by W E Berry and Sons since 1988. Before this, the plot was owned by Mr Saunders and family, who used the yard from the late 1940's until 1988. The Berry family rented the yard previous to 1988 from Mr Saunders, using it as a haulage and builders yard.

8.2 Park Close has been the subject of several planning applications during the 1990s. In 1990, Mr E Berry applied for planning permission to have a workshop, mess room and toilet facilities. Permission was granted by Council in September 1990.

8.3 In 1996 it became apparent to the District Council that the use of the yard had changed to accommodate heavy goods vehicles, and diesel storage tanks and portakabins had been erected. The Planning Enforcement Officer for Cotswold District Council became involved. After complaints regarding traffic dangers involving pedestrians/children and dogs along the narrow lanes, and change of use without planning consent, the decision was taken that the tanks be removed and that heavy vehicular activities cease. The site at this time was considered by Cotswold District Council to include part of `Back Lane' within its boundaries.

8.4 Following the decision, W E Berry appealed, and the hearing took place on 16th January 2001. The appeal site was described by The Planning Inspectorate thus:

"The eastern site boundary is well-treed, beyond which lies the extensive residential curtilage of a dwelling fronting the main village street. A low wall marks the southern boundary with a belt of trees and open grazing land beyond, while a post and wire mesh fence lines the northern boundary, separating the appeal site from paddocks. An unmade private track leading to the grazing land to the south forms the western site boundary, with open

3 countryside lying further to the west. This unmade track runs northwards to meet the unclassified and un-surfaced County Road route no. 50898, known as Blatch Lane, which then runs eastwards to join the main village street." 8.5 Mr David Vessey of Ampney Crucis Parish Council contacted the County Council Public Rights of Way Unit on 26 April 2002. He stated that a landowner at the southern end of 'Blatch Lane' had incorporated a section into their own land, including part of Back Lane, and had obstructed the track at point B, preventing access to the landowner of the field south of point C. 8.6 As far as Mr Vessey was aware, this lane was "un-numbered and is known locally as 'Back Lane'. It is probably the original back drive to Ampney Park, but had been a cul-de-sac for some time, probably over 200 years". 8.7 Mr Vessey was concerned that if it were to be dedicated as a public right of way, then vehicular access would be required, but as Roads Used as Public Paths were to be abolished soon, he was unsure as to the course of action. 8.8 It was explained to Mr Vessey about how he could apply for a Modification Order, and get the track added to the Definitive Map through documentary evidence or user evidence. It was explained that Roads Used as Public Paths were to become restricted byways, unless vehicular rights could be shown, in which case they would be re-classified as Byways Open to All Traffic. 8.9 In July 2002 Ampney Parish Council expressed the view, following a meeting, that the Parish Clerk simply did not have enough time to get involved with the "inevitable paperwork", so it was suggested that the application be passed to Mr J T Ducker, who was the landowner directly affected by the obstruction as he owned the field to the south end of the track to which access had been prevented, at point C on the map. 8.10 Peter Kelly, Chairman of Ampney Crucis Parish Council submitted a series of documents to the County Council via Mr David Vessey on 17 July 2002. There were three maps and an extract from the deeds of conveyance for his property. The first map had been submitted by Wildmoor when challenging a recent planning decision. The map shows that they claimed to own the track from point B to a point just to the south of point B (but not the section that they have annexed by fencing between points B and C). The second map shows the boundary of Park Close when it was conveyed to Wildmoor, indicated by a dotted line: the whole of the claimed route is excluded from the conveyance. The third document submitted by Mr Kelly is an extract from the schedule to his own property deeds dated 1949 and is accompanied by a map dated 11 October 1945 (5..K). This map shows the property to be conveyed, which adjoins the claimed route on its western boundary. In the deeds, the property is described thus: "...and also all that close or inclosure of pasture ground commonly called or known by the name of Park Close containing by admeasurement 4 acres 3 roods and 15 perches (more or less) bounded on the North by land then or late of the Trustees of the said Eardley John Blackwell on the South by land late of the said Thomas King Radway and the before described orchard called the

4 Great Orchard on the East by land late of the said John Radway and on the West by a public road or lane..." 8.11 Mr Vessey also noted in his e-mail of 17 July 2002 that Ampney Crucis Parish Council had asked Wildmoor if they actually owned the track. He added "A simple `yes' or 'no' would have sufficed but they chose to query our right to ask the question and indicated that they might refer the matter to the Local Government Ombudsman." 8.12 It was confirmed by David Vessey on 15 November 2002, that the Parish Council had decided not to proceed with an application for a Modification Order but to pass the papers to the owners of Wych Elm as they were the people most likely to benefit from the application. 8.13 On 3 January 2003, Mr Ducker, the owner of Wych Elm, met County Council Officers to discuss how he should proceed with this matter. He had collected evidence of vehicular use that dated back to the late fifties from the present farmer, by the two tenants prior to that, and also use by the tenant of the previous owner going back to 1957. He also had evidence from older village residents. 8.14 Mr Ducker also presented the Council with a cartographic history of Back Lane, which outlined the documentary sources suggesting that Back Lane was a public right of way. 9. APPLICATION

9.1 On 31 January 2003 an application was submitted by Mr Ducker for an additional Byway Open to All Traffic at Back Lane, Ampney Crucis. He described the claimed path as running from "The Lannocks, Ampney Crucis (road no: 50898) to the field gate at the north end of field no: 6010". 9.2 Notice was served on the owners of the land adjoining the claimed way. These were Mr and Mrs N D Evans, c/o Unit 1, Park Close, Ampney Crucis; Mr and Mrs M Curtis, 14 Bowling Green Crescent, Cirencester; Mr and Mrs A T C Somerville of Ash House, Ampney Park, Ampney Crucis; Dr Andrew Chapple of 1 Berkeley Road, Cirencester; and Egham and Islay Tustees Ltd, St Mary's House, Magdalene Street, Taunton, Somerset. A map is attached showing the ownership of land by the respective owners. 9.3 The application was accompanied by a number of Statutory Declarations made by people who had knowledge of the track. The contents of these Declarations are summarised in the following section. No public path user evidence forms were submitted in support of the application. 10. STATUTORY DECLARATIONS

The following Statutory Declarations were submitted by Mr J Ducker in support of his application. The declarations were made by individuals who claimed use or knowledge of Back Lane, Ampney Crucis. These Statutory Declarations were made before P Morgan or S A Garget, Solicitors.

5 10.1 Raymond Henry Daniel Curtis Mr Curtis has lived in Ampney Crucis Village since 1928, with the exception of 1946- 1948 when he was away on military service. He is "well acquainted with the fields and lanes lying to the west of the village".

Until the last 10 years, the track was unrestricted of access as far as the wooden gate. It was used by farmers occupying land on either side and by villagers for "gaining access to various properties", and for "agricultural, recreational purposes and for blackberry picking". "The surface of the track was well worn and well used, encroached on in places by scrub on either side, but always fully accessible to the gate at C." "There was never a gate or obstruction across the track, and it was used without the use of force, without seeking or obtaining the permission of any person." Mr Curtis points out that there was a gate installed at point B on the map, but he has not been obstructed by this.

Mr Curtis has never heard of any claim having been made adverse to the existence of a public right of access along the track all the way to the gate at C. 10.2 Harold Henry Stevens Mr Stevens has lived in Ampney Crucis village since March 1932, with the exception of 1953-1955 when he was away on military service. He states that he also is "Well acquainted with the fields, lanes and tracks lying to the west of the village." Mr Stevens grew up in the village and was aware of the track being of unrestricted access as far as the wooden gate marked [C] on the plan attached. "In the early 1940's, the land on either side was farmed by Mr Radway at Park Farm and Mr W Doran and Mr Ashley Newman, between the village and the track." "A Mr Fred Saunders bought the land of Messrs Newman and Doran, and established a stockyard on part of it. His sons, Fred and Robin increasingly ran the farm, and another son, Edgar, had a builders yard at the end of the track".

"The track was used constantly for agricultural purposes, and for access to the builders yard". "Villagers could use the track for access to any property along the track as far as the gate marked [C]." At no time while Mr Stevens used the track were there any obstructions or gates across the track, and at no time did Mr Stevens seek or obtain permission from any other person.

6 A gate was installed at point B recently since the builders yard was sold to the Berry's in the 1980s. Mr Stevens had never heard of any claim having been made adverse to the existence of a public right access along the track all the way to the gate at C. 10.3 Deirdre Jenkins Ms Jenkins lived at Wych Elm, Ampney Crucis from about 1958 to 1966. The fields (marked in red on the plan) belonged to Wych Elm and were used for livestock. The track (coloured in blue) was accessible from point [C] at a gate. Ms Jenkins regularly used the track, for dog walking, picking blackberries and showing visitors around. Ms Jenkins' children also used it when they rode their ponies. It was "evident a gate had been at point A for many years and the track was well worn and well used, in fairly good condition and used mainly by those gaining access to Wych Elm fields for grazing". At no time was any claim made by others as to the ownership of the track, and there was no gate or obstruction across the track during the period Ms Jenkins lived there. The track was used "without force and without seeking or obtaining permission of any person", and Ms Jenkins has "never heard of any claim having been made adverse to the existence of a right of way over the track". 10.4 Mr James Tye Mr Tye lived at Pound Lane Houlden, Ampney Crucis from 1971 to 1978, which was rented and run as a livestock farm. From 1971 to 1978, Mr Tye rented a field from Mr and Mrs Ducker of Wych Elm and more land from other landowners in order to graze cattle during the months of April to October. The fields used by Mr Tye are shown on the map that he attached marked in red. The track is marked in blue, and it is this track that was used to take and fetch cattle, and to take them feed supplements and to gain access into the field to cut hay or weeds. The surface of the track was well worn and well used leading to and from Mr and Mrs Ducker's field. There was no difference in the track from one end to the other. The track was gated, at one time by Mr Robin Saunders, at point (A] on the map. Mr Tye took it off its hinges, and left it on the side of the track. Mr Saunders objected but did not do anything. He did not at the time claim that this was intending to prevent Mr and Mrs Ducker making use of their right of way, but to improve control over his own fields. The gate was not installed again after it was removed.

7 Mr Tye believed without question that the use of the track was included with his rights of grazing in respect of the fields. Mr Tye used the track openly as part of his contractual rights from Mr and Mrs Ducker. There was no force and no permission was sought or obtained and to Mr Tye's knowledge there has not been a claim that is adverse to the existence of a right of way over the track. 10.5 Gerald Thomas Gaden Mr Gaden lived at Brookfield Farm, from 1960 to 1997 which was run as a dairy and livestock farm. From 1980 until his retirement, Mr Gaden used the field belonging to Mr and Mrs Ducker as annual grazing for his calves. This ran from April to October. Mr Gaden is "well acquainted with the fields belonging to Mr and Mrs Ducker and the surrounding land." The field used for grazing the calves is edged in red on the map attached. The track is coloured blue and the gate into Mr and Mrs Ducker's land is marked at point [C]. The track was used to take and fetch cattle, feed them and to take machinery down to the fields in order to maintain the grassland. During the seventeen years there had been no gate or obstruction across the track. Approximately 10 years ago, a gate was placed across the track at point B on the attached plan. During Mr Gaden's occupation of the land, the gate was generally not locked. It was put there so a Mr Berry could keep some vehicles safe on his adjoining land. It was often left open, but Mr Berry gave Mr Gaden a key to use if it were ever shut. Mr Gaden believed "without question that the use of the track was included within my rights of grazing in respect of the fields and it has always been self-evident to me that there was a right of way up and down the track for the benefit of Mr and Mrs Ducker as owners of the field at Wych Elm." Mr Gaden used the track when grazing the fields at Wych Elm, and it was used as part of his contractual rights from Mr Ducker openly without the use of force, and without seeking or obtaining any other persons consent. Mr Berry did not impede Mr Gaden's use of the lane at any time.

To Mr Gaden's knowledge, he has never heard of a claim having been made adverse to the existence of a right of way over the track belonging to Mr and Mrs Ducker as owners of the fields.

8 10.6 John Derrick Beresford Has lived in the Parish since 1967. He was co-opted onto the Parish Council in Autumn 1975 and became: Chairman from May 1977 to May 1983 Chairman from November 1991 to November 1992 Chairman of Ward 8 (Cotswold District) Ratepayers' Association 1975 & 1976 Chairman of the local branch of Cirencester and Tewkesbury Conservative Association 1970 to 1976 Administrator of the Cripps Fund from 1980 to its dissolution in 1987 Author of the first two Editions of `A Guide to the Public Footpaths in Ampney Crucis' During his first few years in the Parish, Mr Beresford has had "no occasion to walk Back Lane" but became acquainted with it in connexion with planning applications by Mr Saunders, proposed development by Mr Schroder, complaints about unauthorized use by W C Berry & Sons and their successors, accumulation of derelict vehicles, damage to the surface of Batch Lane, drainage of water onto a small paddock behind Firs Farm House and search for the origins of Public Rights of Way BAC 1 and BAC 4, which were consequently deleted after lack of usage. In the early 1990s Back Lane was obstructed for a short time by a heavy steel gate at its north end. Apart from this period the track has been accessible. Up to the 1990s, Mr Beresford believed the track at Back Lane was part of the neighbouring parcel (284 - now 6230) to the east belonging to Mr Saunders. After seeing the Cadastral Map prepared under the Finance Act 1910, and a late version of the 1:2500 maps, Mr Beresford of the opinion that the track of Back Lane and the parcel of land (284 - now 6230) did not belong to Mr Saunders and his successors and that the slice along the eastern edge of parcel 284 (now 6230) has probably been apportioned. On the legality of the apportionment, Mr Beresford expresses no opinion. Mr Beresford submitted a map with his declaration. The parcel of land numbered 284 (now 6230) is shaded pink, Batch Lane is shaded orange, The Lannocks is shaded blue and Public Right of Way BAC 27 is shaded green. Mr Beresford suggests that the process of establishing BAC 27 as a Right of Way maintainable at the public expense bears some resemblance to that of establishing `The Track' as a highway maintainable at the public expense. He also attached a list of the streets in the Parish with their street numbers and recognisable names. 10.7 John Townshend Ducker Mr John Ducker is the owner of Wych Elm, Ampney Crucis, together with his wife. The property was acquired in 1967 from Mrs Daphne Hoskins, who herself acquired the house in 1946.

9 In 1986, the field adjacent to Wych Elm was acquired by Mr Ducker from Mr David Cox, whom had himself acquired it in 1976 from Mr Saunders. Mr Ducker and his wife lived at Wych Elm from May 1967 until December 1969 when Mr Ducker went abroad in connection with work. They returned permanently to in August 1992. Whilst abroad Mr and Mrs Ducker returned to England every other year on holiday and lived at Wych Elm during these visits, averaging two months. Tenancies were arranged for Wych Elm in order to make this possible. In 1979, Mr and Mrs Duckers children returned to school in England, and Mrs Ducker visited them at half term, three times a year and Mr Ducker when ever he was back in England. During these visits, Mr and Mrs Ducker regularly walked Back Lane (otherwise known as `The Track) to inspect the plantations of young trees. Since 1967, Mr Ducker has become very well acquainted with the property of Wych Elm and the surrounding land. Mr Ducker was presented with a plan marked JTD 1 upon which he could see the fields belonging to Wych Elm edged red, the field acquired from Mr David Cox hatched in red, and a track coloured blue on the plan referred to in the declaration as `The Track'. A gate is marked on Mr Duckers property marked [C], giving access to 'The Track'. As long as any one can remember, this gate has been there. There is evidence this gate has been at the point marked for over 200 years. There used to be a gate off the western side of Back Lane, between points B and C, was used by the owners of Ash House (then One Ash) Mr and Mrs Watson, until the early 1970s and subsequently by Sir Anthony and Lady Bonham; and by farmers gaining access to their fields for grazing [this is the plot numbered 283 on the Ordnance Survey 1903 and 1921 editions]. For some time, since the early 1990s there has been a gate at point [B]. The land known as Park Close is edged in purple. Mr and Mrs Ducker had used the Track, for various purposes with the exception of one short period in 1997 when W E Berry and Sons were excavating stone tiles from the land immediately beyond the gate [between points B and C] before he sold it. A hole was excavated for the purpose and not filled in when the land was sold. After discussion with the new owners, Mr and Mrs Evans, we filled in the hole using the spoil stacked on their land. The use of the track had been without the use of force and without the permission of any person and Mr Ducker has never heard of any claim having been made adverse to the existence of a right of access along the track to the gate at [C]. Mr and Mrs Ducker walked up the track for recreational purposes and to pick wild fruit in the season, and it was used via Land Rover to drive to and from Mr Duckers field.

10 Various contractors and statutory bodies as well as farmers gaining access to the land for grazing, include the following: (a) Electricity and Telephone Companies for installation on the land at Wych Elm, for maintenance, renewal and tree cutting. (b) Contactors of Gloucestershire County Council when tree planting was carried out after Dutch Elm Disease killed off the Elms in the area. This took place in 1980 and 1986. (c) Contactors delivering stone for walling and building at various times. (d) Contractors replacing gates and fences and repairing walls on our land. (e) Services provided by contractors at their daughter's wedding in 1998.

The gate at point [B] on the plan was installed by W E Berry and Sons in 1992 at the time Mr Ducker returned from abroad. Mr Berry, who acquired Park Close in 1988 from Mr F C Saunders, told Mr Ducker he had difficulty in establishing what rights of access he had to his land. This is evident from his title. This shows that the new owners had the following rights: `Together with full right and liberty (so far as the transferor can grant the same) for the transferees and the persons deriving title under them and their tenants and servants in common with the owners and occupiers for the time being of the adjoining land and premises and all persons authorised in that behalf by them from time to time and at all times and for all purposes to pass and repass with or without trucks or similar vehicles over and along the lane of a width of twenty- one feet over the area of land shown coloured red and fourteen feet shown coloured green on the said plan annexed hereto the transferees and their successors in title paying a proportion of the cost of keeping such a right of way in repair and TOGETHER ALSO WITH such rights for the supply of water and all other rights easements and provision of a like nature which at the date hereof subsist for the benefit of the said land' (emphasis added). The transferor was Frederick Charles Saunders. Mr F C Saunders is presumed to have inherited the land known as Park Close from his mother Mrs Cynthia Saunders who had acquired it with her husband Mr F C Saunders (senior) from Mabel Ellen Newman in October 1945. Mr and Mrs Saunders had acquired the land as part of a larger area of land, which included Mr and Mrs Duckers field (purchased from Mr Cox). Mr Ducker's deeds for his field included the deed whereby Mr and Mrs Saunders bought this land and it makes it clear that the conveyance to them did not include the track, and the clause above by which Mr F C Saunders purported to convey rights over it to W E Berry and Sons was not supported by evidence of ownership having its origin in the 1945 conveyance. Mr Ducker adds "it would appear that he had no more right to pass over this land than anyone else seeking access to land from the track, or indeed anyone else wishing to walk along the track."

11 Mr Berry told Mr Ducker that the gate, which was installed at point B, was done so in order to improve security of equipment and materials he was storing there. He fully accepted that the owners of Wych Elm had a right of access along the track to the fields at Wych Elm and he didn't use the gate to impede Mr Ducker's usage of the gate to his field. The gate was padlocked mostly but at times it was unlocked. Mr Ducker did not have key, but according to Mr Ducker "the absence of such a key was not a handicap to our use of the track at that time, it was always possible to walk past the gate when it was locked as it was not such as to deny access to pedestrians". Farmers and contactors were also able to use the track when required. Whenever there was work on at Park Close the gates were open, which was most of the time, so there was no "impediment to access to Wych Elm". Mr Ducker asked Mr Berry to move the gate onto his land but he never got round to it. When the land was sold however, the gate was removed from its hinges and stacked against the wall. W E Berry and Sons attempted in 1996 to move their transport depot to Park Close, but the move was found to be in breach of planning regulations and enforcement action was taken by the Cotswold District Council to prevent it. In 1997 E G Berry appealed, but to no avail. Even at this time, pedestrians had no difficulty in going around the gate to walk up the track. Before Berry's appeal against the enforcement action, Park Close came up for sale and Mr Ducker looked at the site plan for it. The plan showed the land extended to include part of the track lying to the west of Park Close. Mr Ducker queried this and a revised plan was sent to him excluding that part of the track. With the revised plan was a letter from Halifax Property Services: "I have pleasure in enclosing a plan showing the extent of the land available for identification purposes. You will note that it excludes a small section on the western edge of the land owned by W E Berry and Sons. I understand that a right of way is held over this land (to give access to Park Close), the owner of which is a Mr Saunders. Mr Saunders has allowed Berry's Yard to place temporary structures on this land although of course these do not obstruct the access to the adjacent field... you should liase direct with Mr Saunders if you are interested in purchasing the freehold of the lane therefore". The temporary structures included the gate at B and a diesel oil tank between points B and C; the Cotswold District Council subsequently ordered that the oil tank should be removed. The letter makes clear that while the temporary structures were still in place, they "did not obstruct the access to the adjacent field." Mr Ducker believes that Mr Saunders did not own the track as he has seen no evidence that any of the Saunders family or their parents who brought the property in 1945 ever owned the track.

12 Halifax Property Services did not succeed in selling Park Close, and in May 1999 it came up for sale again through Roderick and Wightman Estate Agents. The particulars of the land included the following: "From the entrance gate, the western boundary stonewall is not owned nor is the 12' from that wall. This belongs to the owner of the access approach road through which there is a right of way to paddock which is little used". The owner of the track was not identified and the statement is actually at variance with the land registry entry for W E Berry and Sons' title and for that of Mr and Mrs Evans, which refer to the right of way into Park Close being 14 feet wide. It is not clear on what basis Roderick Wightman arrived at the 12' figure. During the period of ownership of Park Close by W E Berry and Sons, the gate was considered by those involved to be temporary and was not intended to prevent Mr Ducker's continued use of the track to gain entry to his field.

When Mr Evans acquired Park Close in April 2000 an application was submitted to construct a laboratory and two houses in site. The plan showed the site was accessed via a gate situated on the site itself and the land to the west of the site over which the track in question passes was not included on the plan. The planning application was rejected. Mr Evans appealed, but lost this he decided to clear up the site and repair the remaining buildings. The gate was reinstalled and locked.

In May 2001, Mr Ducker contacted Mr Evans to suggest the gate be moved on to Mr Evans' land. This was not agreed, as Mr Evans was concerned about costs. On 22 May 2001, Mr Ducker wrote to Mr Evans trying to find a solution as to how to keep Park Close secure without interfering with the rights of neighbouring property owners and the general public. No reply was received and the gate was reinforced, cutting out pedestrian use and consequently closing access to Mr Ducker's field for the first time. Mr Evans has said that Mr Ducker can pass through the gate to his land when required and suggested a written agreement. Mr Ducker feels this implies his use of the track as conditional and on Mr Evans' permission. Mr Ducker does not accept that Mr Evans' rights of access are superior to his and that he has no right to place barriers in the way of his use of the track or that of the general public. Furthermore, the gate installed on land that Mr Evans doesn't own could be equally well met by the construction of a fence and gate on his own land. On the advice of solicitors, Mr Ducker placed a caution against first registration of the track under title number GR244139. This was a precaution until such time as the issues surrounding the track have been resolved. 10.8 Patricia Ducker Mrs Ducker has lived with her husband Mr Ducker as owners of Wych Elm, Ampney Crucis since April 1967, when it was acquired from Mrs Daphne Hoskins.

13 In 1986 Mr and Mrs Ducker purchased the field adjacent to Wych Elm from David Cox, who in turn had purchased it from Mr R A Saunders in 1976. "My husband and I lived at Wych Elm from May 1967 until December 1969 when we went to live abroad in connection with his work until August 1992, but I made regular visits back to Ampney Crucis. My husband and I together with our children stayed at Wych Elm every other year for `home leave'. I came ahead with the children to arrange for any necessary maintenance to be done on the house and I decorated some of the rooms. We regularly walked along the track and on to the tracks beyond. This was a safe country walk for children and avoided walking along the main village street. In 1979 when our children started to attend schools to the north and south of Cirencester I returned to England for the half term holidays three times a year and we visited Ampney Crucis on a regular basis. We did not wish to disturb the tenants living at Wych Elm so walked down the track picking blackberries in season, to see the condition of the fields and to inspect new tree plantations for which we were responsible. At no time was my access along the track impeded." Mrs Ducker agrees with her husband's Statutory Declaration [section 10.7] and with the comments that he has made with regard to the documentary evidence [section 14]. 11. LANDOWNERS' EVIDENCE

11.1 Nigel Evans, Unit 1, Park Close, Ampney Crucis Mr Evans confirmed on 12 February 2003 that he had been served notice of a Modification Order application by Mr J Ducker. The public, according to Mr Evans "do not use the lane- it is a dead end; only providing access to our premises". Mr Evans also confirmed that he was aware there was "no road, byway or path across our land and would object to a proposal to modify this". However, Mr Evans did add that he would 'reconsider' his objections if the applicant were to consider "allowing the public access across his land" and needed to cross Mr Evans' in order to "gain access". On 19 February 2003, Mr Evans wrote again to "extend his objection to the complete application". According to Mr Evans, a gatepost can be found at point A, and he believes that this proves that the track was "historically gated at this point" and that it had been "in place for over 20 years" (according to Cotswold District Council planning records). Due to there being a gate at point A, Mr Evans can see no good reason why the public should enjoy free access over the track if they have never done so before, and the planning records show this. He thinks that if the application was in the interest of the public then it would gain his support, but as it is, the track does not lead anywhere.

14 Mr Evans was concerned about the health and safety aspects should the Modification Order go ahead, especially regarding fly tipping, the old stone tile quarry, and the security of Wildmoor's equipment. After completing a Landowner Evidence Form and map, Mr Evans noted that there was "substantial user evidence provided for the existence of a footpath, and did not object to that. He also found "clear evidence" on the historical maps that a gate at point [A] existed "for at least .100 years" and pointed out that Mr Gaden had also confirmed that gates existed at points [A B and C] on the attached map. Mr Evans wrote that "these gates have provided an obstruction to public vehicular traffic." Mr Evans confirmed that he does not claim ownership of the track and has not "prevented access by adjoining owners or their agents." He has however, together with previous landowners locked the gates and prevented public vehicular access. The track is a dead end, and Mr Evans's premises only provide access beyond point [B] to Wildmoor premises and Mr Ducker's.

Mr Evans is aware that should the Modification Order go ahead then it will "open up the land beyond our boundary to residential development." He does not believe that any user evidence or historic documents have been produced to justify opening up the lane to public vehicular traffic. 11.2 Mr and Mrs Curtis, 14 Bowling Green Crescent, Cirencester Mr and Mrs Curtis state that they "have a right of way to this private no through road" according to their deeds. They believe that points [B] to [C] on the map are part of a private no through road and believe this has been the case for "many, many years." At point [A] on the map, Mr and Mrs Curtis wrote that a gate, which was originally hung across the beginning of the road, displayed a private sign. The gatepost is still there at present and "would prefer to see this gate re-instated to enable us to secure and protect our property and livestock." 'They also confirmed that the gate at point B has "been in situ for years." From 1987 to date, together with Mr Berry (previous landowner) and now with the owners of Wildmoor, Mr and Mrs Curtis have undertaken the cost of upkeep and maintenance of this road. Mr and Mrs Curtis state that "we do not wish the private status of this road or access to be altered in any way." 11.3 Dr Andrew Chapel, 1 Berkeley Road Dr Chapel confirmed that notice of the application was served on him in January 2003. He was sent a summary of the documentary evidence regarding the application on 29 May 2003 and asked if he would like to make comment.

15 Dr Chapel replied on 23 June 2003, confirming that he had owned all of the land to the west of Back Lane since 1968. On the Landowner Evidence Form that he completed he wrote "I have always regarded this as a public right of way and have seen people walking it and vehicles using it". 11.4 Egham and Islay Trustees Ltd Egham and Islay Trustees were consulted on 19 February 2003. On 25 July 2003 a reply was received from Payne Hicks Beach Solicitors, on behalf of the Trustees, together with a landowner evidence form and map outlining the land in their ownership. They have owned land in the parish since 1986, but purchased the parcel of land that is adjacent to the track in 1990. 12. 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 identified other sources which might be useful in establishing the existence of a public right of way along this route. These sources have then been checked by the Modification Orders Officer. 12.1 Inclosure Award 1770 (Q/Ri5) Award only. No map. The Award makes allotments from former open fields, wastes and commons, and creates public roads, footpaths and private carriage roads. Searched, does not seem to relate to the claimed path or surrounding land. 12.2 Tithe Award, 1838 Covers Wiggold Farm in Ampney Crucis only.

12.3 Ordnance Survey 25" to 1 mile, 1St edition, 1884 Shown as southwards extension of what is now Class 5 Road 50898. Both included within plot number 270. A path marked "F.P" is depicted running alongside the western boundary of the claimed route and continuing southwards towards Ampney Park. (b.G)

12.4 Ordnance Survey 25" to 1 mile, 2nd edition, 1903 Claimed route shown as a double pecked line within plot number 284; status is undefined. (.57.H)

12.5 Ordnance Survey 25" to 1 mile, 3rd edition, 1921 Claimed route shown as a double pecked line within plot number 284; status is undefined. Plot number 284 includes the section of County Road 50898 that runs north-south. (.5.I)

12.6 Ordnance Survey 1" to 1 mile, 1817 It would appear that the claimed route might be shown as part of a continuous route, which continues southwards onto the Ampney Park Estate. The claimed route is depicted by a continuous double line. (.5.E)

16 12.7 A Plan of the Several Parishes of Ampney Crucis, Ampney Mary and Ampney Peter ...1771 (131388/105) According to the Archivist at Gloucestershire Record Office this was a parish survey, most probably compiled for poor rating purposes. There is no key to the map, but the claimed way is indicated by a double continuous line and shaded brown, in a manner consistent with other known roads. An accompanying Terrier lists owners, occupiers, describes the state of cultivation and gives a field name for each numbered plot on the map. It also gives a valuation for each plot and details of the lives upon which copyhold estates are held. No number is allotted to Back Lane or any of the other roads. Back Lane is of the same extent as is now claimed. (5.C)

12.8 Map of part of Ampney Crucis parish, including the village, c.1830 (D674b/B6) Shows the village with buildings in block plan, woodland, gates, fields, including acreage and the names of some owners and of adjoining landowners. Fields are numbered but there is no schedule. Fields are coloured in buff or green, roads in yellow. Back Lane is shown by a double continuous line, coloured yellow, as are other known roads. Section of current road 50898 that now runs west-east is not marked as a road, instead as a dashed track. Back Lane of same extent as the claimed route. (5..D)

12.9 Inland Revenue, maps compiled under the Finance Act, 1910 (132428) Based on Ordnance Survey 25" to 1 mile map, 2nd edition c.1903, marked up by the Inland Revenue c.1915 and reference books or files. Plot is shown uncoloured and omitted from the valuation. (5J)

12.10 Bryant Map of Gloucestershire, 1824 The route is shown by two full lines, in a manner consistent with other known roads in the area. (.S..F)

12.11 Maps Deposited with County Planning Officer under Rights of Way Act, 1932 (CP/D1/14) The area in question is shown but the route is not claimed, although a right of way is shown to join it at the north.

12.12 Parish Council file, Rights of Way Act 1932 Nothing deposited.

12.13 Footpath or highway diversion orders deposited with Clerk of the Peace (Q/SRh) None

12.14 County Surveyor: papers relating to survey of footpaths under National Parks and Access to the Countryside Act, 1949 (K687)

K687/1/3 Original Parish Submission The area in question is shown, but no route is claimed.

17

K687/3/4 Provisional Map Area shown, route not marked as right of way

K687/2/2/9 Objection Files Ampney Crucis- two files of objections: searched, not relevant to this route

12.15 County Road Records The route is not included on the map of roads maintainable by the County Council, or on an earlier draft of this map.

12.16 Ordnance Survey 1: 2,500 Map, Sheet SP 0602/0702 (1977) Route shown by two full lines between points A and C. Boundary feature shown separating claimed route from County Road 50898 at point A. (5 L)

13. CONSULTATIONS

13.1 Cotswold District Council Mr Tony Hawkins responded on 3 March 2003. He had no evidence to offer regarding the historical use of the track, although he maintained it was a "well known site". Mr Hawkins was also concerned that there may be an "ulterior motive" behind the application as it had in the past been the subject of public inquiries.

13.2 Parish Council Mrs H E Tonks, Clerk to Ampney Crucis Parish Council was consulted on 6 February 2003, but to date no reply has been received.

13.3 County Councillor Councillor Theodoulou was consulted on 6 February 2003, but to date no reply has been received.

13.4 Trail Riders' Fellowship Mr Damon Northeast replied by e-mail and letter dated 21 February 2003 stating that he held no objection to the application. He pointed out that Back Lane is uncoloured on the 1910 Finance Act Map, indicating that it is a road.

13.5 Open Spaces Society Mr Gerry Stewart of the Open Spaces Society was consulted on 6 February 2003 regarding the claim. Mr Stewart replied and said he had no knowledge of this lane, but he thought it looked as though it was part of a through route historically.

13.6 British Horse Society Mr W Reddaway of the British Horse Society was consulted on 6 February 2003 but no reply was received.

13.7 Ramblers' Association Mrs Coralie Dustin, Group Footpath Secretary for the Cirencester area replied on 7 May 2003 to say that the Ramblers' Association "have no objections to the above track being made into a Byway Open to All Traffic".

13.8 Divisional Highways Surveyor

18 Richard Tombs, the Area Highway Supervisor -for Cotswold Division was consulted. He confirmed on 12 March 2004 that Back Lane was not maintainable by the County Council. He had no records that suggested that the claimed route had been publicly maintained. 14. APPLICANT

When the application was submitted on 31 January 2003, Mr Ducker drew attention to the Ordnance Survey Map, which showed the track of Back Lane ending at the gate into Park Close and not at the field number 6010. Ordnance Survey were contacted by Mr Ducker and informed of the anomaly.

In a letter dated 24 August 2003 Mr Ducker made comments on a summary of documentary evidence prepared by the Officers. Regarding the Ordnance Survey 1" to 1 mile, 1817, Mr Ducker notes "difficulties about this dating", and concludes that the "map must have been printed by the Ordnance Survey in 1817, but the actual map must be a revision from a date after the railways had been built." Therefore, Mr Ducker suggests the date that the map held at the Gloucestershire Archives was published is questionable. [Note- Ordnance Survey 1 " maps were reprinted in the 19th century with the addition of railways, without any other revision] Mr Ducker also noted that the small scale of the 1817 map means detail is difficult to depict. Yet he does note that the track was "part of the local road network at that time, whereas the track known today as the Lannocks which leads from the Pound tree to the north end of the track, did not exist." Regarding the Bryant Map, Mr Ducker notes the track is shown as being "part of the road network". Mr Ducker concluded his comments by saying, "in our view, these additional pieces of evidence do not alter the conclusion that we came to before, which was indicated in our submission to you. Indeed, in several ways they add to the evidence supporting that conclusion, which is that the track has been for many years a public road and it would now be appropriate to recognise that by adding it to the inventory of public highways." Comments on Landowners' Evidence On 24 October 2003, Mr and Mrs Ducker submitted their final comments regarding their application. They confirmed they had "no comments to make on the submissions made by Dr Andrew Chapel and the Egham and Islay Trustees Ltd." Mr and Mrs Ducker noted the comments made by Cotswold District Council in their letter of 3 March 2003, and replied that they "do riot know what kind of ulterior motive was inferred". They also added that there has been "no intention on our part to make use of the track to gain access to our land for purposes of development." According to Mr Ducker, Cotswold District Council refused applications for development on the west side of the village and on land adjacent to the track, and hope that this will be continued.

19 The sole purpose of the application, is, according to Mr Ducker, to "retain for public use, including our own use, a track which we have concluded from its history has been and still is a public road." Comments on Nigel Evans' Evidence Mr Ducker notes that he submitted a copy of the Land Registry entry in respect of the Evans'. Regarding the evidence of Nigel Evans, Mr Ducker notes that in respect of the acquisition of their property and land search, Mr Evans' land does not include any part of the track down to the gate into the field number 6010. The language of the Property Register clarifies that the transferor's right to grant the right of access was unclear; Mr Evans was unable to substantiate ownership, and the map attached to Mr Evans' letter of 19 February 2003 shows the track correctly. Mr Ducker also draws attention to the errors on the Ordnance Survey Map, which shows the southern boundary of the site to include more than is owned by Mr Evans. Mr Ducker reported this to Ordnance Survey who sent an officer to look at and correct it. Mr and Mrs Ducker do not "dispute the right of Mr and Mrs Evans to use the track to gain access to their property. We do dispute their right to restrict the access of the public over any part of the track. They can secure their premises equally well by constructing a secure fence on their own land, which is where it used to be."

Reference was made to a stone tile quarry between points B and C by Mr Evans in his letter dated 19 February 2003. Mr Ducker feels that the comments made by Mr Evans "overstate the nature of the excavation". The excavation was "only about two feet deep at this point and not more than about ten feet square, adjacent to the gate into the field 6010 and temporary". Mr Ducker states that it was a "continuation of stone tile excavation which took place over the years of Berry's ownership along the entire southern end of the property". Mr Evans' letter of 19 February 2003 in which he states that the "public have never enjoyed free access over the track" is not accepted by Mr and Mrs Ducker who believe there is "ample evidence that they (the public) have enjoyed such access". According to Mr Ducker, with regards to the evidence submitted by Mr and Mrs Curtis, the track provides a "right of way over the land". However, there is no mention of landownership of the track. He does not dispute that the Curtis' use the track to gain access to their land, but doesn't accept their claim that they "have a right of way to this private no-through road"...or that "this road is a private nothrough road and has been for many years". In fact a previous owner, Mr Saunders applied for planning permission to develop Park Close. When asked if he owned any adjoining land he stated "no". The plan which Mr Saunders attached to his application clearly shows that the track has not been included as part of Park Close. Mr and Mrs Curtis also made reference to a gate at the northern end of the path, and Mr Ducker agrees there was one there, but it was placed there by Mr Robin Saunders, though he was not entitled to do so.

20 That works have been carried out by Mr and Mrs Curtis for the upkeep of the track is accepted by Mr Ducker, but he considers this is "not adequate evidence of ownership". 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 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 66 (1) of the Wildlife and Countryside Act 1981, states that a `byway open to all traffic' means 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 and bridleways are so used. 15.3 The conditions for classification of a byway open to all traffic have been clarified by the Court of Appeal's judgement [Masters v the Secretary of State for the Environment, Transport and the Regions (2001)]. The Court stated that it is not a precondition for a carriageway to be a BOAT for there to be equestrian or 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. 15.4 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 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. 15.5 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 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 complied, and the custody in which it has been kept and from which it is produced. 15.6 If a public highway was in existence on 31 August. 1835, it is publicly maintainable by virtue of section 23 of the Highways Act 1835.

21 15.7 The 1771 Map and accompanying detailed land schedule are presumed by the County Archivist to have been drawn up for parish rating purposes. The map depicts the claimed route as a southward continuation of Batch Lane, giving access to a number of fields in different ownership and occupation. The eastwest part of current road 50898, now known as The Lannocks is not depicted at all. An east-west route is depicted further to the north. The map and schedule are public documents, used to assess the amount of rent charge to be apportioned on various lands within the parish and hence must be accorded a high evidential status. The date that the document was produced is significant, a year after the Inclosure Award came into effect. All of the plots or fields in the terrier are referred to as inclosures; presumably the map and schedule were commissioned to apportion a revised rate charge amongst the landowners, many of whose holdings increased substantially as a result of the inclosure of the parish's commons and open fields. 15.8 The estate map c.1830 shows the whole of Ampney Crucis village and identifies adjoining landowners. Fields are coloured in green or brown, presumably to indicate the state of cultivation and roads are depicted in yellow. Back Lane is shown in a manner consistent with other known roads, and is again depicted as a continuous southward extension of what is now Batch Lane (road 50898). The Lannocks is not shown as a road. 15.9 Ordnance Survey Maps carry 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 has been in use for a longer period than that for which user evidence is available. A way is shown on the 1817 1" map which appears to continue southwards beyond point C. The route is shown as a continuation of Batch Lane on the Bryant Map of 1824 to point C, with a possible southward continuation as a path. The Lannocks is not depicted. The claimed way is depicted on the Ordnance Survey 25" to 1-mile editions of 1889, 1903 and 1923 as an enclosed track terminating at point C but open at the northern end where it is shown as a continuation of the present road 50898 (Batch Lane). The three Ordnance Survey 25" maps depict The Lannocks as a track, open to the adjoining field on the northern side, with a boundary feature separating it from Batch Lane. 15.10 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. 15.11 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

22 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. 15.12 The Finance Act Map shows the claimed route as uncoloured and outside property boundaries. This is indicative of there being no owner of the land crossed by the claimed ways and that they were considered to be a highway at that time, although their status cannot necessarily be inferred. The fact that road is uncoloured points strongly to the conclusion that the road was recognised as a highway at the time, usually bridle or vehicular, but, viewed in isolation, the fact that the road is uncoloured leaves open the question of whether it was recognised as a public carriage road or as a lesser highway. The Finance Act map does provide good corroborative evidence regarding the status of a way, but this evidence is not conclusive. 15.13 There is no owner of the land over which the claimed track runs, according to a Land Search conducted in February 2003. Mr Nigel Evans of Wildmoor Construction claims to own the track but does not have title and a caution has been registered with the Land Registry by the applicant against any claim on the route. When the land was transferred from F C Saunders to W E Berry in 1988, the title deeds referred to the right to use Back Lane thus: in common with the owners and occupiers for the time being of the adjoining land and premises and all persons authorised in that behalf by them from time to time and at all times and for all purposes. " The title deeds of Park Close, a property adjoining Back Lane to the east describe its bounds in 1949 "...and also all that close or inclosure of pasture ground commonly called or known by the name of Park Close containing by admeasurement 4 acres 3 roods and 15 perches (more or less) bounded on the North by land then or late of the Trustees of the said Eardley John Blackwell on the South by land late of the said Thomas King Radway and the before described orchard called the Great Orchard on the East by land late of the said John Radway and on the West by a public road or lane..." The accompanying map, dated 1945, shows this public road or lane to be Back Lane. 15.14 The Finance Act Map and Valuation Book, the 1830 Estate Map and the 1771 Parish Rating Map and Schedule are strong evidence that Back Lane is a highway. Other early sources such as the Ordnance Survey 1" Map (1817) and Bryant's Map (1824) are consistent in their depiction of Back Lane. The route is depicted on the rd Ordnance Survey 1St, 2nd, and 3 edition 25" maps and the Finance Act map in a manner consistent with the other nearby ways (such as Batch Lane and the Lannocks) that were added to the County Road Records in the 1930s. 15.15 The documentary and physical evidence indicate that the way under investigation was a public carriage road, forming a continuation of what is now Batch Lane (now public road 50898) from at least 1771. All sources are consistent in depicting the way as a continuation of Batch Lane (50898) and there is no evidence to suggest that it has been severed from that highway. As a public highway in existence on 31 August 1835, it instill publicly maintainable by virtue of section 23 of the Highways Act 1835. The decision for Members is

23 whether to add the way to the Definitive Map as a Byway Open to All Traffic or to the County Road Records as a Class 5 road and this is dependent on the interpretation that is placed on the Masters judgement (see sections 15.3 and 15.4). 15.16 The Masters judgement establishes that the test for a carriageway to be a Byway Open to All Traffic relates to its character or type and in particular whether it is more suitable for use by walkers and horse riders than vehicles. 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. In this case, the way is a no through route, terminating at a farm gate, and gives access to fields along its length. Use is predominantly for accessing land and industrial premises presumably by vehicle rather than recreational as the route forms a cul de sac. It could thus be considered that the route is more suitable for use by vehicles than by walkers and horse riders. There is no objective test laid down in the Masters judgement or subsequently as to character or type, but Back Lane is similar in width and surface to the County Road 50898, of which historically it once formed a part. It is thus recommended that the application to add the route as a Byway Open to All Traffic be refused as the way does not meet the Masters tests of suitability and character and that the route be added to the County Road Records as a maintainable highway as it was a public highway in 1835. 16. ENCLOSURES A. Site Location Plan 1:10,000 B. Claimed Route Map 1:1250 C. Parish Rating Map, 1771 D. Ampney Crucis Map, c.1830 E. Ordnance Survey 1" to 1 mile map, 1St edition, 1817 F. Bryant Map of Gloucestershire, 1824 G. Ordnance Survey 25" to 1 mile map, 1St edition, 1884 H. Ordnance Survey 25" to 1 mile map, 2nd edition, 1903 I. Ordnance Survey 25" to 1 mile map, 3rd edition, 1921 J. Finance Act Map, c.1915 K. 1949 Title Deed Extract and accompanying 1945 map. L. Ordnance Survey map 1:2500, 1977 17. BACKGROUND PAPERS A. Cartographic History, as supplied by the applicant B. Statutory Declaration made by Raymond Curtis and accompanying map C. Statutory Declaration made by Harold Stevens and accompanying map D. Statutory Declaration made by Deirdre Jenkins and accompanying map E. Statutory Declaration made by James Tye and accompanying map F. Statutory Declaration made by Gerald Gaden and accompanying map G. Statutory Declaration made by John Beresford and accompanying map H. Statutory Declaration made by John Ducker and accompanying map I. Landowner Evidence and map supplied by Nigel Evans J. Landowner Evidence and map supplied by Mr and Mrs Curtis

24 K. Landowner Evidence and map supplied by Dr Chapel L. Landowner Evidence and map supplied by Egham and Islay Trustees M. Map supplied by Mr Saunders in support of planning permission

25

26

27

29

30

31

33

34 35

36 37

38 39

40 41

42

Title Deed Extract 1949 5K(i)

43

44 45

46