HAMPSHIRE COUNTY COUNCIL

Decision Report

Decision Maker: Countryside Access Group Manager

Title: Application for a Definitive Map Modification Order to record a public bridleway between Overton BOAT 501and BOAT 23 (Harrow Way), in the Parish of Overton

Contact name: Harry Goodchild

Tel: 01962 846044 Email: [email protected]

1 Executive Summary 1.1 This is an application, made under Section 53 of the Wildlife and Countryside Act 1981, to record a public bridleway over a route running between the Harrow Way and New Barn, north of the village of Overton. The claim is supported by historical documentary and recent user evidence which the applicant believes indicates that the route the public has acquired a right of way over the route. 1.2 Much of the evidence relating to this application affects the continuation of the route running southward from the Harrow Way to Northington Farm. As a result, although not claimed by the applicant, the status of this route has also been considered as part of this investigation. 1.3 It is considered that the evidence reviewed is sufficient for it to be inferred that, on the balance of probabilities, the routes running between A-D (either side of the Harrow Way) on the accompanying map have been dedicated as public carriageways. It is therefore recommended that a Definitive Map Modification Order made to record these routes as byways open to all traffic.

2 Legal framework for the decision

WILDLIFE AND COUNTRYSIDE ACT 1981 - Section 53: Duty to keep definitive map and statement under continuous review (2) As regards every definitive map and statement, the surveying authority shall: b) .... keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence.... of any of [the events specified in sub-section (3)] by order make such modifications to the map and statement as appear to them to be requisite in consequence of that event. (3) The events referred to in sub-section (2) are as follows: - b) the expiration… of any period such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path; c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows –

1 i) that a right of way which 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, being a right of way [to which this Part applies] ii) that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description iii) that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification.

PRESUMED DEDICATION AT COMMON LAW Use of a way by the public without secrecy, force or permission of the landowner may give rise to an inference that the landowner intended to dedicate that way as a highway appropriate to that use, unless there is sufficient evidence to the contrary. Unlike dedication under S.31 Highways Act 1980, there is no automatic presumption of dedication after 20 years of public use, and the burden of proving that the inference arises lies on the claimant. There is no minimum period of use, and the amount of user which is sufficient to imply the intention to dedicate will vary according to the particular circumstances of the case. Any inference rests on the assumption that the landowner knew of and acquiesced in public use.

NATURAL ENVIRONMENT AND RURAL COMMUNITIES ACT 2006 – Section 67: Ending of certain existing unrecorded public rights of way

(1) An existing public right of way for mechanically propelled vehicles is extinguished if it is over a way which, immediately before commencement— (a) was not shown in a definitive map and statement, or (b) was shown in a definitive map and statement only as a footpath, bridleway or restricted byway. (2) Subsection (1) does not apply to an existing public right of way if— (a) it is over a way whose main lawful use by the public during the period of 5 years ending with commencement was use for mechanically propelled vehicles, (b) immediately before commencement it was not shown in a definitive map and statement but was shown in a list required to be kept under section 36(6) of the Highways Act 1980 (c. 66) (list of highways maintainable at public expense), (c) it was created (by an enactment or instrument or otherwise) on terms that expressly provide for it to be a right of way for mechanically propelled vehicles, (d) it was created by the construction, in exercise of powers conferred by virtue of any enactment, of a road intended to be used by such vehicles, or (e) it was created by virtue of use by such vehicles during a period ending before 1st December 1930. (3) Subsection (1) does not apply to an existing public right of way over a way if— (a) 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, (b) before commencement, the surveying authority has made a determination under paragraph 3 of Schedule 14 to the 1981 Act in respect of such an application, or (c) before commencement, a person with an interest in land has made such an application and, immediately before commencement, use of the way for mechanically propelled vehicles— (i) was reasonably necessary to enable that person to obtain access to the land, or (ii) would have been reasonably necessary to enable that person to obtain access to a part of that land if he had had an interest in that part only.

2 3 The Application 3.1 The application was made in 2006 by a resident of the nearby village of Freefolk, and was supported by historical documentary evidence, and statements of use from 14 local horse riders.

4 Landowner 4.1 The route under consideration runs within the ownership of the Middleton Estate (A-B), Network Rail (B-C) and the owners of Northington Farm (C-D).

5 Description of the Route (please refer to the map attached to this report) 5.1 The claimed route is shown between A-B on the Location Map. Commencing at a junction with Overton BOAT 501 near a property called ‘New Barn’, it proceeds in a generally southerly direction over a grass track (which is recorded as an adopted unmetalled route on the List of Streets Maintainable at Public Expense) for approximately 515 metres, before meeting the Harrow Way (which is recorded as Overton BOAT 23). From here, it continues southward for 375 metres on a grass track running between hedges, proceeding onto an unsealed track which continues for another 800 metres, crossing the London and South West Railway line over a bridge, before reaching Northington Farm (Point D).

6 Background to the claim 6.1 The claim is supported by user evidence from fourteen local people who have used the route on horseback. However, officers have also discovered a substantial amount of historical evidence during the investigation, and it is this evidence which forms the main basis of the recommendation in this report. 6.2 The status of the routes running between Whitnal Farm Lane and Northington Farm was the subject of much scrutiny during the 1970s and 1980s, and in-depth discussions at the time involved local people, the landowners and the County Council. These discussions were triggered by a dispute regarding the surface condition of, and public access to, the section running between A-B. When initial discussions failed to resolve the issue, a local resident, Jack Mills, served notice on the County Council under Section 56 of the Highways Act 1980, requiring it to admit whether the route was a public highway which it had a liability to maintain. The matter ultimately went before the local magistrates, whereupon the County Council admitted that the route was a public highway and, with the acquiescence of the affected landowners, carried out surface repairs to the whole route between A-D. 6.3 As a result of the above chain of events, the whole route between Whitnal Farm Lane and Northington Farm route was recorded on the List of Streets Maintainable at Public Expense in 1987, although it was not recorded on the Definitive Map. The route has been used by the public (predominantly walkers and equestrians) since that date, but further disagreement regarding the public status of the route (which its depiction on the List of Streets had not addressed) led to the submission of the application that is now under consideration.

3 7 Issues to be decided 7.1 The issue to be decided is whether there is evidence to show, on the balance of probabilities, that public rights subsist, or are reasonably alleged to subsist, on route A-D. 7.2 Under section 53(3)(c)(i) of the Wildlife and Countryside Act 1981, case law has decided that the burden of proof associated with confirming Map Modification Orders is on the ‘balance of probabilities’, so it is not necessary for evidence to be conclusive or ‘beyond reasonable doubt’ before a change to the Definitive Map can be made. However, in the first instance it must be determined whether there is clear evidence to show that public rights subsist or are reasonably alleged to subsist. 7.3 If this is shown to be the case, consideration must also be given to whether any of the exemptions contained in Sections 67(2) and (3) of the Natural Environment and Rural Communities (NERC) Act 2006 apply to those rights. Although not claimed in this case, evidence discovered as part of this investigation may point to the route having once been a full vehicular highway, and if exemptions under NERC can be shown to apply, the County Council would be under duty to recognise those rights by making an order to record the route as a byway open to all traffic. 7.4 Any changes to the Definitive Map must reflect public rights that already exist. It follows that changes to the Definitive Map must not be made simply because such a change would be desirable, or instrumental in achieving another objective. Therefore, before an Order changing the Definitive Map is made, it must be demonstrated that public rights have come into being at some time in the past. This might be the distant past (proved by historical documentary evidence) or in the recent past (proved by witness evidence). 7.5 Historical documentary evidence has been examined to see whether the history and use of the route point to it being public as a result of dedication in the distant past. Any such rights are not lost merely through disuse. Unless stopped up by due process of law, any rights previously dedicated will still exist, even if they are now neither used nor needed. This evidence must be looked at as a whole, it being unlikely that a single document or map will provide sufficient evidence to justify a change to the Definitive Map. The County Council is under a duty to record such rights as are found to exist, even if they are not claimed by the applicant.

8 Documentary Evidence Information on the background and evidential weight which should be attached to particular historical sources is included at Appendix 1, which should be read in conjunction with this section.

8.1 Early maps and plans

8.1.1 Ordnance Survey Map – 1808 (1 inch to 1 mile) The OS map of 1810 is the first to clearly show the route between A-D. The route is shown forming a junction with the route now known as ‘The Lynch’ at ‘Norington F.’ (Northington Farm), proceeding northwards through the intersection with the Harrow Way to ‘New Barn’. Most of the route is shown by pecked parallel lines, 4 indicating that it was unenclosed, although the entire eastern side of the route that runs north of the Harrow Way, and a short section near Northington Farm (also on the eastern boundary) are shown by solid lines (indicating a solid boundary). The route proceeds no further, with the last few metres turning north-westward on a tangent to the rest of the route. A line across the end of this section appears to indicate a barrier of some description. Whitnal Farm (‘Wetmell’) is shown to the west of New Barn, but no route is shown connecting the two. The 1810 map records the route as a feature on the ground at the date of the map, forming an unobstructed connection with The Lynch at D and the Harrow Way at B and C. 8.1.2 Christopher Greenwood’s Map of Hampshire – 1826 (1 inch to 1 mile) Greenwood’s map shows A-D on a similar alignment to the 1810 OS map. Again, the western boundary of the track north of the Harrow Way is shown to be fenced or hedged, but the remainder of the route is open. Northington Farm is again labelled (‘Northtn Fm’), as is New Barn. In contrast to the OS map, the north- easterly spur at New Barn is shown as open-ended, suggesting the possibility of a continuation of the route (albeit one that is not depicted). The junctions with The Lynch and the Harrow Way are again shown to be unobstructed.

8.1.3 Tithe Map and Award – 1843 The Overton Tithe Map depicts a longer route (coloured ochre in the same fashion as other routes which are now public highways) running between A-D, shown by solid boundary features. As suggested (but not detailed) on Greenwood’s map, the route is shown running through Point A and continuing northwards for two kilometres towards the route now recorded as Cole Henley Road (previously referred to as ‘The Ridgeway’), stopping a few metres short of a junction with that road. Unlike some other tithe awards, the Overton award doesn’t identify individual routes set out in the Roads and Waste section, and so this document is useful only in identifying that there was a route on the ground corresponding with the alignment of the claimed route at the time of the award.

8.2 Deposited plans

8.2.1 London Salisbury and Yeovil Junction Railway – 1845 This plan shows the intended line of the railway proposed for construction (and which was subsequently built). The line intersects with that part of the route running south of the Harrow Way between C-D, and is labelled ‘30’. The book of reference records this parcel number as a ‘Highway from Overton to Kingsclere’, and lists the owner/occupier as the ‘The Surveyor of the Highways of the Parish of Overton’. The deposited plans provide good evidence that the route between C-D was a public highway, and through the labelling of the route as a highway to Kingsclere, offers indirect evidence that the route north of the Harrow Way was also public highway.

5 8.3 Ordnance Survey large-scale maps

8.3.1 Ordnance Survey County Series 1st Edition - 1871 (25 inches to 1 mile) The route is depicted on a similar alignment as the Tithe Map, although it now terminates approximately 900 metres north of New Barn, apparently rendering the route a dead end at this point. Between A-B the route is shown as being open on its western boundary, but hedged (or fenced) on the eastern side, mirroring the depiction on OS map of 1810 and Greenwood’s map of 1826. The continuation south from C to D is shown as enclosed on both sides all the way to Northington Farm. The Book of Reference accompanying the map records both A-B (parcel no. 61) and C-D (no. 95) as ‘Road’. There are no solid lines indicating the existence of a gate or other barrier. For the first time, the existence of a track proceeding westward from New Barn towards Whitnal Farm is depicted, as shown by parallel pecked lines heading towards the parish boundary with Laverstoke (now part of Whitchurch). The route continues as a more established track, enclosed on its northern boundary, westward to meet Whitnal Farm Lane.

8.3.2 Ordnance Survey County Series 2nd edition – 1894 (25 inches to 1 mile) There is no change in the depiction of the route between A-D when compared with the earlier map of 1871, although the route between B-C that crosses the Harrow Way is now detailed by parallel pecked lines. In contrast to the 1871 map, the route is now shown terminating a few metres north of New Barn, and no continuation is shown north of Point A.

8.3.3 Ordnance Survey County Series 3rd edition – 1909 (25 inches to 1 mile) The 1909 map shows no change to the route between A-D, but the entire route westward to Whitnal Farm is now shown to be a more significant feature in the landscape, as it is by now enclosed on its northern side. The northern extent of the route has been further revised southward, bringing it level with New Barn.

8.3.4 Ordnance Survey New Popular Edition – 1945 (1 inch to 1 mile) This map records the route between A (annotated ‘New Barn’) and D (‘Lynch’) with solid boundaries, a depiction which is described in the legend as “Minor Roads in towns, Drives and Unmetalled Roads (Unfenced Roads are shown by pecked lines)”, and is thus distinguished from ‘Footpaths & Bridle Paths’, which are shown by single pecked lines. The route to Whitnal Farm is shown in similar fashion to the County Series maps – unfenced on its southern boundary.

8.3.5 Ordnance Survey National Grid Series Map – 1974 (1:2,500) A-D is shown as an enclosed ‘Track’ for its full length, with pecked lines indicating a useable route about 3 metres wide within wider boundaries, varying between 8 and 11 metres to the north of the Harrow Way (A-B), and between 5 and 9.5 metres to the south (C-D),. Solid lines are shown at Point A, and at the western end of the route to Whitnal Farm, possibly indicating the existence of gates, although no barrier is apparent at B, C or D. NB – This map, along with current OS mapping, has been used to calculate the width of the route between A-D running between solid boundary features.

8.3.6 Summary of Ordnance Survey evidence The Ordnance Survey provides evidence of the route between A-D as a vehicular route for a century between the 1870s and 1970s, providing a connection to a 6 public highway at its southern end and, latterly, via the route to Whitnal Farm at its northern end.

8.4 County/District Highway and Planning records – 1929–1946

8.4.1 Highways Handover Map (Whitchurch Rural District Council) – 1929 This map was prepared by Kingsclere and Whitchurch Rural District Council to show those routes that it considered publicly maintainable highways at the time responsibility was transferred to the County Council. A-D is not highlighted, and it can therefore be inferred that the Rural District Council, acting as the Highway Authority, did not consider the route to be a publicly maintainable highway at the time the responsibility was handed over to the County Council. This document was not subject to public scrutiny, and so is not necessarily a comprehensive record of public highways in the locality at this time (see 8.5.2). It is not known how much research into public rights took place when it was compiled.

8.5.2 Joint Planning Scheme Map (Kingsclere and Whitchurch District) - 1937 In 1933 Joint Planning Committees were established in Hampshire to implement the requirements of the Town and Country Planning Act 1932. The Committee for North West Hampshire included representatives from the County Council and Andover, Kingsclere and Whitchurch and Winchester Rural District Councils. Each rural district set up its own planning sub-committee which produced draft plans detailing proposals which included new streets, the widening of existing roads, land use and development densities. These plans also show existing highways which were placed into three categories: classified roads (shown by brown colouring), highways repairable by the inhabitants at large (shown by orange colouring) and highways over which the public had a right of way (shown by yellow colouring). The map produced by the Kingsclere and Whitchurch sub- committee covering the Overton area shows the Harrow Way and Whitnal Farm Lane coloured orange to indicate that they were highways repairable by the inhabitants at large. C-D is shaded yellow, indicating that it was considered to be a public right of way, but not a route maintainable at public expense (which is consistent with the depiction on the Handover Map). Neither A-B nor the route from Point A to Whitnal Farm are shaded. Due to the transparent and consultative manner in which it was prepared, this document provides good evidence that C-D was considered to be a public highway at that time.

8.5.6 Highways Maintenance Map (Kingsclere and Whitchurch Rural District Council) – 1946 This map was prepared by the County Highways Surveyor to show those routes that were considered to be publicly maintainable. As with the 1929 Handover Map, A-D is not shaded, indicating that that the County Surveyor did not consider its maintenance to be their responsibility. Again, this was an internally produced document that was not subject to public scrutiny, and it is not known what material was examined when decisions were made regarding maintenance liabilities.

7 8.6 National Parks and Access to the Countryside Act 1949 (Definitive Map of Public Rights of Way)

8.6.1 As part of the preparations for drafting the first Definitive Map of Public Rights of Way (as required by the 1949 Act), all parishes in Hampshire were asked to submit a map showing the routes that they wished to be included on the map. The claimed route is not shown on the maps submitted by Overton Parish Council, and thus it was not included on the Definitive Map for the area, which was published in the early 1950s. It is possible that the parish considered the route to be a vehicular highway, and therefore unsuitable for inclusion on the Definitive Map, but the reason for its omission is unclear, and there is no reference to it in any of the parish correspondence held by the County Council. The route was not claimed during any of the successive reviews (c1958 and 1964).

8.7 Post-Definitive Map Evidence

As described at 6.2, during the 1970s and 1980s the status of A-D and the route to Whitnal Farm was the subject of much debate, and as a result the County Council holds a substantial amount of correspondence detailing how the matter unfolded - the text below provides some insight into the discussions that took place at the time.

8.7.1 1969 - 1970 On 18th October 1969, the Footpaths and Rights of Way representative of Overton Parish Council wrote to the County Council regarding an obstruction on the route:

“Re the path shown from Northington Farm – New Barn This has been the subject of controversy over the past few months as the present owner…has been endeavouring to close the path…many of the older residents remember using this way for their walks and their parents and grandparents as well. Will you please advise if this is a public right of way…”

The Clerk of the County Council wrote to the landowner on 14th November 1969, following an investigation into the status of the route:

“…The rights of way representative of the Overton Parish Council has recently written to the County Land Agent in connection with the road from Northington Farm to New Barn and has advised me that the road is obstructed by a strand of barbed wire and by string. This road is not shown on the definitive map of public rights of way either as a footpath, bridleway or as a road used as a public path. Accordingly the County Surveyor was requested to carry out an investigation of the status of the road and his investigation revealed that the road is clearly a public highway. You will appreciate, since the road is a public highway, it is an offence for you to obstruct free passage along the road….I should, therefore, be most grateful to receive your confirmation that you will arrange for these obstructions to be removed….”

A reply was received from the Laverstoke Estate on the 18th November 1969:

“Our tenant…has given me your letter of the 14th November, in which you state that your investigation has revealed that this track is a public highway. 8 This track has always been regarded by the Estate as private, the public highway ending at Northington Farm cottages. I have a copy of the original rights of way map, made under the 1949 Act, and on this the track was not coloured beyond the cottages, whereas all public footpaths, bridleways, roads used as public paths and County Roads were coloured. This matter was gone into at the time, with the result that the track was not coloured because it was private, and the position has not altered since then, as confirmed by the Definitive Map. I therefore cannot accept your statement that it is a public highway, and we have informed [our tenant] that it is private and therefore there can be no question of obstruction. Major Wells, Agent to the Ridgeway Estate, informs me that the track from the Harroway to New Barn Farm is also private.”

The County Council responded on 2nd February 1970:

“…Since this matter was first investigated I have received a number of statements from local people all to the effect that they have known and used the track for many years and in one case since 1900. These statements together with the evidence which I already have lead me to the conclusion that there is no doubt as to the status of the track as a public highway. I must, therefore, reiterate my request to [your tenant] that the obstructions on the highway should be removed without further delay.”

A further letter to the Estate was issued on 10th February 1970:

“Thank you for your letter of the 5th February 1970, from which I was pleased to note that the obstructions to the above highway have now been removed. I am sorry if you cannot accept that the track is a public highway…I cannot stress too strongly that the fact that the track which we are now considering was not coloured on the 1949 map has no bearing on the status of the track…. …From the evidence which has been obtained it is clear that the track, is in fact an ancient highway for all purposes and to which the public at large have a right of access. In investigating the status of this particular highway I have gone to rather greater pains than usual and have arranged for statements to be taken from local people regarding this knowledge and past use of the track. The evidence in the statements serves to reinforce my belief that the track is an ancient highway…”

8.7.2 1986 - 1988 Between 1986 and 1988, the question of the status of the route was again raised. The full range of correspondence that ensued is too copious to recount in full, but the below provides an insight into what was discussed.

On 24th April 1986, the county Council received a letter from Mr Jack Mills:

“In 1969 I encountered an obstruction across a highway over which I regularly drove. I wrote to the County Council requesting they secured free passage. After investigations carried out by the County Surveyor and the submission of statements of use by members of the public I received a letter from your Council stating they considered the track was an ancient highway for all purposes….the landowner removed the obstructions.

9 Then in 1971 a second landowner placed an obstruction. I wrote on 22 January 1972 and was informed by the County on 24 February 1972 that the County Surveyor would take action. The obstruction remained but I was able, and did, use the highway.

Last year the landowner placed stumps of roots across the highway and blocked access. I now cannot use the highway by vehicle….

…I request that the County council secure the removal of the existing obstructions so that I can once again freely use the highway....”

Having received written to the Middleton Estate seeking the removal of the obstruction, the County Surveyor received a reply on 27th August 1986:

“…The content of your letter comes as a complete surprise to me and, indeed, this is the first time I have been made aware that this track is considered to be an ancient highway.

As a result of your letter, I visited the Recreation Department of the Hampshire county Council and inspected the various plans which I consider show a definitive plan of all public rights of way. The track to which you refer is not shown on these plans. Furthermore, from discussion with the staff on the rights of way department, I believe that there is no conclusive evidence to support your view….I remain convinced that the track is private until such time as you can produce conclusive evidence to the contrary.”

During the months that followed, it was established that user evidence collected for the County Council in 1969 and 1970 had inadvertently been destroyed during the 1970s. As a result, and in light of landowner’s denial of public rights, the County Secretary wrote to Mr Mills to ask that he collect additional user evidence.

Throughout 1987, correspondence between the County Council and interested parties continued (including with the local MP, Mr David Mitchell, and local resident Lord Denning, both of whom were pressing the County Council to take action to open up the route). In March 1987, Mr Mills provided additional user evidence and, at the suggestion of Lord Denning, served notice on the County Council under Section 56 Highways Act 1980, requiring the County Council to admit whether the route was a highway which it was liable to repair. The County Surveyor subsequently wrote to the Middleton Estate on 31st March 1987:

“The purpose of this letter is to advise you of the evidence available to the County Council, and to seek the Estate’s co-operation in removing the obstructions. Having received the Section 56 Notice and having responded to it on the basis of the evidence available to us, the county Council has no alternative but to ensure that the north/south section is put into proper repair and the obstructions removed. From what Mr Mills has said, it is clear the the Middleton Estate have for many years accepted public use, not only of the north/south route, but the section to Whitnal Farm and previous agents…were well aware of public use of the whole route and they never challenged it.

On 30th April, the Middleton Estate replied:

“…As a result of the evidence produced we can only agree with the view that the track from the Harrow Way to New Barn is a highway. No doubt you will advise me, 10 in due course, of what work is considered necessary to the track and to let me have a plan of operation which your County Surveyor will prepare…”

A letter had also been sent to the Laverstoke Estate in similar terms, from which a reply was received on 28th April 1987:

“…Most of the maps you sent me simply show the tracks as physical features and do not necessarily imply public rights. However, I accept some of the evidence you gave me in your earlier letter, that the track from Northington Farm to New Barn is a publicly maintainable highway. I have no doubt that its classification should be byeway [sic] open to all traffic as opposed to ‘U’ road…”

8.7.3 Magistrate’s Hearings – October 1987 Having reached agreement that the route either side of the Harrow Way was public, attention turned to how best to deal with the Section 56 notice, which was due to be heard by Basingstoke Magistrates in October. A report from the County Secretary to the Rights of Way Sub-Committee dated 17th November 1987 summarised what transpired:

“Following two adjournments by the Basingstoke Magistrates, the County Surveyor carried out repairs to the track in August and September which, in our view, made it reasonably passable. The County Council’s case and evidence was that the track was indeed reasonably passable for the ordinary traffic of the locality…Lord Denning and Mr Mills were not satisfied that the County Council had done enough to meet the common law standard. Both sides appeared before Basingstoke Magistrates on 5th October. The Magistrates dismissed the complaint in view of the condition in which they found the track…”

A memo from the County Secretary to the County Surveyor on the same date requests that the track be marked with a ‘U’ classification on the County Surveyor’s Road Map. This was done, and the route has been recorded on the List of Streets Maintainable at Public Expense since this time.

8.7.4 Dedication of Byway Open to all Traffic – New Barn to Whitnal Farm – 1988 In 1988, the Middleton Estate dedicated the route between New Barn and Whitnal Farm as a Byway Open to All Traffic. The dedication arose in the context of the proceedings regarding the route between New Barn and Northington Farm. The route was subsequently recorded on the definitive map as Overton BOAT 501 and Whitchurch BOAT 501.

9 User Evidence

9.1 The application was supported by evidence of use on horseback and on foot from fourteen people, dating back to the late 1950s. It provides an insight into how the route has been managed during the latter part of the 20th century. Users indicate that they used the route regularly, without permission or challenge. The evidence consists of signed statements, completed in 2005 and 2006. Seven user evidence forms collected by Jack Mills in the late 1980s also remain on file. They record use by the public on foot, horseback and in vehicles dating back to 1919.

11 9.13 Summary of User Evidence From the user evidence provided it is apparent that the claimed route has been used by members of the public on foot, bicycle, horseback and in motorised vehicles since at least the early part of the 20th century. Based on the accounts of witnesses who provided evidence, this use appears to have been without force, permission or challenge. Whilst this evidence would undoubtedly have a bearing on the application in the absence of any further information, officers have not undertaken any further researches in this area due to the strength of the documentary evidence.

10 The Landowner

10.1 The Middleton Estate has indicated that, given the events that took place in the 1980s, it will not object to the application. It has however expressed concerns about abuse of the rights of way network by motorised vehicles and people using it to commit theft on land within its ownership. The Countryside Service has a rolling programme of seasonal closures on the byway network connecting to the Harrow Way to protect their surface, and it is quite feasible that a similar protection could be extended to the application route.

10.2 Network Rail, whose land is traversed by a bridge crossing the live railway line, has acknowledged that the bridge was built to carry a public road over the railway, and on this basis has indicated that it would not object to an order.

11 Consultations

11.1 The following people and organisations have been consulted on this application: The Ramblers, Auto Cycle Union, British Driving Society, British Horse Society, Byways and Bridleways Trust, Cyclists’ Touring Club, Open Spaces Society, Overton Parish Council, Basingstoke and Deane Borough Council (including local borough councillors), County Councillor Anna McNair Scott, and officers within Hampshire County Council (Hampshire Highways and the Area Countryside Access Manager).

11.2 Cycling UK Cycling UK supports the application, stating that: “The List of Streets is not conclusive of level of rights, therefore it is our belief that the route should be recorded on the definitive map according to the evidence rather than allowed to remain as list of streets/white road/unclassified county road. It is accepted by DEFRA that a route can be recorded on both Definitive map and List of Streets without contradiction. Additionally, this has the effect of making rights clear and transparent to the public, since display on the definitive and subsequent ordnance survey maps is of significant value in promoting use to the public, who may not be aware of the legality of use or rights if it remains on the list of streets.”

12 11.3 Trail Riders’ Fellowship TRF representatives have stated that to record the routes as bridleway would not be the appropriate status, given that motorised rights will have been preserved by virtue of the route’s inclusion on the List of Streets. They also indicate that they have used the route on motorcycles on an infrequent basis.

11.4 Basingstoke and Deane Borough Councillors Cllr Ian Tilbury questions the need to record the route on the definitive map, given that it was recorded on the List of Streets following the proceedings in the 1980s. He also states that there is ample evidence that the route was in regular public use, and describes his own use of them.

Cllr Keith Watts supports the application. He states that “the through route through Whitnal (in Whitchurch parish) to the Harroway and onward to Northington is extensively used by walkers and I have seen evidence of use by horse riders.”

Cllr Colin Phillimore also supports the application…”having known Jack Mills personally and his affection and dedication to the old footpaths and bridleways of Overton and beyond.”

No other comments have been received.

12 Conclusions to be reached from the evidence

12.1 The whole route between Northington Farm and New Barn first appears on the OS map of 1810. It is also shown on the tithe map of 1843, and Section C-D is recorded as a public road on the London, Salisbury and Yeovil Junction Railway plan of 1845.However, it is apparent that the highway authorities of the late 19th and early 20th century did not consider it to be their responsibility, as the route is not recorded in any of the minutes of the Kingsclere and Whitchurch Highway Board, nor is it shown on the Handover or Maintenance Maps of the early 20th century.

12.2 The user evidence supports the documentary evidence in portraying the claimed route as part of the local highway network. There is evidence of use by members of the public on foot, horseback, bicycle and in vehicles dating back a century.

12.3 The proceedings of the late 1980s provide strong evidence for the proposition that the public has acquired a right of way for all purposes on the route between A-D. The County Council, in its capacity as highway authority was forced to admit the status of the route pursuant to a notice served under Section 56 of the Highways Act 1980, and following engagement with the affected landowners (who admitted that the route was a highway), carried out repairs to the route to render it suitable for all users (including recreational vehicle use).

13 13 Natural Environment and Rural Communities Act 2006

13.1 There remains to be considered whether motorised vehicular rights have been extinguished by the NERC Act 2006. They will have been unless one of eight exceptions contained within Sections 67(2) and 67(3) of the Act applies. These exceptions are set out in Section 2 and are examined in turn below.

13.2 Section 67(2) – rights for mechanically-propelled vehicles will not have been extinguished on an existing public right of way if:

(a) it is over a way whose main lawful use by the public during the period of 5 years ending with commencement (2001-2006) was use for mechanically propelled vehicles. Notwithstanding the anecdotal reports of use of the route by motorcyclists and other consultees, there is little evidence of use of the route by the public in motor vehicles during this period, and it is apparent that the majority of use of the route during this period was on foot, horseback or by non-motorised vehicles.

(b) immediately before commencement it was not shown in a definitive map and statement but was shown in a list required to be kept under section 36(6) of the Highways Act 1980 (c.66) (list of highways maintainable at public expense). The route was not recorded on the Definitive Map on 2nd May 2006, but it was recorded on the List of Streets on this date.

(c) it was created (by an enactment or instrument or otherwise) on terms that expressly provide for it to be a right of way for mechanically propelled vehicles. There is no evidence to suggest that the claimed route came into being as a result of an express dedication or under statute.

(d) it was created by the construction, in exercise of powers conferred by virtue of any enactment, of a road intended to be used by such vehicles. The route was not constructed as a road specifically for motorised vehicles. There is evidence to suggest that the route was in use as a public carriageway prior to the introduction of motorised vehicles.

(e) it was created by virtue of use by such vehicles during a period ending before 1st December 1930. There is evidence that the route existed before mechanically-propelled vehicles became commonplace, so it cannot be said that public vehicular rights were created as a result of use by such vehicles. They are more likely to have been created as a result of use by horse-drawn vehicles.

13.3 The exceptions in Section 67(3), which require that the application to record the route as public be made to the County Council prior to 20th January 2005, do not apply in this case.

14 14 Conclusions

14.1 There is evidence that the claimed route has existed as a physical feature in the landscape since at least the beginning of the 19th century.

14.2 There are various documents which, when taken as a whole, indicate that the route formed part of the local public highway network throughout the 19th century.

14.3 The route has been used by members of the public on foot, horseback, bicycle and in motorised and non-motorised vehicles within living memory.

14.4 The correspondence from the 1980s indicates that a common law dedication of the claimed route as an all-purpose vehicular highway has occurred, with the County Council (by carrying out repair works on the route) accepting the dedication on the part of the public.

14.5 The provisions of the NERC Act 2006 have preserved rights for mechanically propelled vehicles, as s67(2)b of the Act applies in this case.

15 Recommendation

15.1 That authority is given for the making of a Definitive Map Modification Order to record a byway open to all traffic with a width varying between 8 and 11 metres, on the route shown between A - B on the accompanying plan.

15.2 That authority is given for the making of a Definitive Map Modification Order to record a byway open to all traffic with a width varying between 5 and 9.5 metres, on the route shown between C – D on the accompanying plan.

15