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«Order Ref: FPS/P0430/7/39  This Order is made under Section 53(2)(b) of the Wildlife and Countryside Act 1981 (the 1981 Act) and is known as The ...»

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Order Decision

Inquiry held on 14 May 2013

Site visit made on 13 May 2013

by Barney Grimshaw BA DPA MRTPI(Rtd)

an Inspector appointed by the Secretary of State for Environment, Food and Rural Affairs

Decision date: 28 May 2013

Order Ref: FPS/P0430/7/39

 This Order is made under Section 53(2)(b) of the Wildlife and Countryside Act 1981 (the

1981 Act) and is known as The Buckinghamshire County Council (Byways Open to All

Traffic No. 6, Parish of Stowe and Nos. 11 (Part) and 12, Parish of Lillingstone Dayrell) Definitive Map Modification Order 2011.

 The Order is dated 10 May 2011 and proposes to modify the Definitive Map and Statement for the area by upgrading to Byway Open to All Traffic status an existing bridleway known as Holback Lane running between Bycell Road, Stowe and the Northamptonshire county boundary at Beckett’s Corner adjacent to Silverstone Racing Circuit, as shown in the Order plan and described in the Order Schedules.

 There were 77 objections outstanding at the commencement of the inquiry.

Summary of Decision: The Order is not confirmed.

Procedural Matters

1. I held a public Inquiry into this Order on Tuesday 14 May 2013 at The Old Town Hall, Buckingham. I made an unaccompanied site inspection on Monday 13 May when I was able to walk the whole of the Order route. It was agreed by all parties at the inquiry that a further accompanied visit was unnecessary.

2. In writing this decision I have found it convenient to refer to points on the Order route shown on the Order Map to which I have added two additional points (Points A1 and E1). I therefore attach a copy of this map.

3. Buckinghamshire County Council, the Order Making Authority (OMA) appeared at the inquiry in support of parts of the Order route being recorded as byway (Points A-A1 and C-D) but with regard to the remainder of the route it chose to adopt a neutral stance. Neither the applicant nor any other party appeared in support of the upgrading of other parts of the Order route (Points A1-C and DE).

The Main Issues

4. The requirement of Section 53(3)(c)(ii) of the 1981 Act is that the evidence discovered by the surveying authority, when considered with all other relevant evidence available, should show 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.

http://www.planningportal.gov.uk/planninginspectorate Order Decision FPS/P0430/7/39

5. Also, as the Order proposes that the Order route be recorded as a Byway Open to All Traffic (BOAT), it is necessary to have regard to the provisions of Section 67 of the Natural Environment and Rural Communities Act 2006 (the 2006 Act) which extinguished unrecorded rights of way for mechanically propelled vehicles (MPVs) subject to certain exceptions.

6. Common law may also require me to consider whether the use of the path and the actions of the landowners have been of such a nature that the dedication of the path by the landowners can be inferred.

Reasons Documentary Evidence

7. A range of historic documents were examined by the OMA in the course of investigating the claim for the Order route to be upgraded. The most significant of which are briefly considered below.

Old Maps

8. Jefferys’ map of Buckinghamshire (1770) shows the Order route as an ‘inclosed road’ in a similar manner to other routes, some of which are now recognised as public roads.

9. Bryant’s Map of Buckinghamshire (1825) also shows the Order route annotated as ‘Holback Lane’ and described as a ‘lane or bridleway’.

10. The depiction of the Order route on these small scale maps suggests that it has been regarded as a route of some significance since 1770 but the maps do not indicate whether there were public rights of any sort over the route.

Inclosure Awards

11. The Hasleborough Walk Inclosure Map (1824) does not show the Order route itself but does show its continuation northwards in Northamptonshire where it is annotated ‘Private Road’. The adjoining Whittlewood Forest Inclosure Map (1856) does not appear to provide any information helpful in determining the status of the Order route.

Tithe Maps

12. Under the Tithe Commutation Act 1836, tithes were converted to a fixed money rent. In most areas this required detailed surveys to be carried out in order to apportion the amount of tithe payable among the landowners of a parish. Tithe documents that were prepared had the sole purpose of identifying titheable or productive land. They are statutory documents which were in the public domain but were not produced to record public rights of way, although they can sometimes be helpful in determining the existence and status of routes.

13. The Lillingstone Dayrell Tithe Map (1839) shows the northern part of the Order route coloured brown. It is variously described as ‘Lane’ and ‘Road’ and as ‘Part of Hoback Lane’ and would appear not to have been subject to payment of tithe. The significance of the colouring of the route is not known with regard to this map but it does not necessarily indicate that the route was regarded as a public highway of any sort.

http://www.planningportal.gov.uk/planninginspectorateOrder Decision FPS/P0430/7/39

14. The Stowe Tithe Map (1845) shows the southern part of the Order route. The route is uncoloured and crosses plots that are variously described as ‘close and pasture’, lane and waste’ or ‘Hoback Riding Lane Pasture’. Again, the depiction of the route on this map does not necessarily indicate that it was regarded as a public highway of any sort.

Quarter Sessions Records

15. In 1841 an application to divert part of the former route of Holback Lane was considered by the Quarter Session of Midsummer. It is presumed that the application was made on behalf of the landowner, the Duke of Buckingham, and the section of the route affected was diverted to the present line of the Order route between Points C and D. Copies of the application itself and of the order made by the court have not been found but I have seen copies of the certificate and plan issued by the Justices after viewing the proposal and the later completion certificate issued after the diversion had been carried out.

16. The route to be diverted was described by the two Justices who viewed the proposal as “a certain Highway or Cartway” and it was stated that “a nearer drier and more commodious Highway or Cartway of the width of thirty feet” was proposed to be created. A map, dated 27 May 1841 (the same date as the Viewing Certificate) described the proposed alternative route as a “New Road”.

17. Subsequently, two Justices inspected the new highway which was said to have been ordered by the Quarter Sessions “to be and for ever thereafter to continue a Public Highway”. The Justices then certified that “the said Highway is completed and put into good Condition and Repair” on 28 September 1844.

18. It was argued on behalf of the OMA that the route must have carried public rights at the time, otherwise there would have been no need to apply to the court to divert it, and that the use of the terms “Highway or Cartway” and “New Road” indicated that it was regarded as a vehicular route. They therefore concluded that these records were strong evidence that this section of the Order route had public vehicular rights over it. On the other hand, it was argued on behalf of objectors that the terms “Highway” and “Road” were generic terms which could have been used to describe routes of all types including those not available to vehicles. They also surmised that although the term “Cartway” may have been used in the original application, it was significant that it did not seem to have appeared in the actual order made (as recited in the completion certificate).

19. It was also suggested that the width of the new route being thirty feet tended to indicate that it was intended to be a vehicular route otherwise such width would have been unnecessary. However, objectors argued that this may have been specified as this was the width of the existing route and, in any event, it was not contested that there may well have been private use of the route by carts and carriages but this did not necessarily mean that there were also public vehicular rights over it. Such private use might also explain the use of the term “Cartway” in the application.

20. It is my view that these records provide strong evidence that this section of the Order route was a public highway of some sort in the 1840s; they are also suggestive of the possibility that there may have been public vehicular rights over it. However, as this evidence relates only to a relatively short section of the Order route, it is necessary to consider it in the context of all the evidence http://www.planningportal.gov.uk/planninginspectorate Order Decision FPS/P0430/7/39 available regarding the whole of the route before reaching a conclusion as to its correct status.

Ordnance Survey (OS) Maps

21. The 1st Edition OS map (1870s) shows the whole of the Order route. It appears to be crossed by gates at 6 points and in the north it ends at Chapel Green. No route is shown continuing across the Green. It is argued on behalf of objectors that the route shows characteristics of being an old drove road and that Chapel Green could have been an overnight resting place for animals.

22. An OS Boundary Sketch Map and Remark Book (1875/76) show the route annotated ‘C Lane’, indicating that a parish boundary ran along the centre of the lane. The OS Object Names Book (1899) lists Holback Lane as “A lane extending from about 6 chs. South of Chapel Green in a southerly direction”.

23. The 2nd Edition OS map (1900) again shows the Order route as far as Chapel Green form where it links only with routes annotated as footpaths or bridleways.

24. OS maps are regarded as good evidence of features that existed on the ground at the time they were surveyed but they do not indicate the status of routes shown or the existence of public rights over them. They do not therefore assist in determining whether any public vehicular rights exited over the route except in so far as they raise doubts as to how vehicles might have continued northwards from Chapel Green. The presence of gates across the route arguably also suggests the absence of public vehicular rights but does not in my view preclude the possibility that such rights exist.

Finance Act 1910

25. This act imposed a tax on the incremental value of land which was payable each time it changed hands. In order to levy the tax a comprehensive survey of all land in the UK was undertaken between 1910 and 1920. This survey was carried out by the Board of Inland Revenue under statutory powers and it was a criminal offence for any false statement to be made for the purpose of reducing liability. The existence of public rights of way over land had the effect of reducing the value of the land and hence liability for the tax; they were therefore recorded in the survey.

26. In this case, a short section of the Order route, north of Point D, is shown uncoloured, excluded from adjoining hereditaments and not therefore liable to tax. This is usually the manner in which public vehicular routes were shown, as public footpaths and bridleways were often dealt with by means of deductions from the value of land. However, such exclusion does not necessarily mean that public vehicular rights were thought to exist.

27. The remainder of the Order route is shown as being included within various hereditaments, only some of which are recorded in accompanying Field Books as having deductions from their value in respect of public rights of way.

28. Overall, although a relatively short section of the Order route is shown in a manner consistent with it having been regarded as carrying public vehicular rights, the rest of the route is shown in a way that strongly suggests that it was not regarded as having such rights over it.

http://www.planningportal.gov.uk/planninginspectorate Order Decision FPS/P0430/7/39 County Road Records

29. A map that is untitled, undated and without any key is held in the County Record Office. This is said to have been prepared at some time between the 1930s and 1960s and appears to show the road network. Many routes are indicated by a solid line but the Order route is depicted by a broken line as is the continuation of the route to the south of Bycell Lane where it is annotated ‘U409’. The significance of this map is unknown but the route south of Bycell Lane is currently recorded as a bridleway as is the Order route.

30. A document said to be a copy of a ‘County Road Register’ from the 1940s or 1950s clearly refers to the Order route as part of an unmetalled section of a longer route, unclassified road, U409. A ‘County Roads Map’ of 1952 also shows the route annotated ‘409’. The route is included in the current List of Streets (maintainable at public expense) as a bridleway.

31. In my view it would not be appropriate to attach any significant weight to these documents as their meaning is not clear and they would appear to be internal working documents which have not been subjected to any external scrutiny and which are concerned with the maintenance of highways rather then their status.

Stopping Up Orders

32. In 1945 an order was made to stop up all highways crossing the Silverstone Royal Air Force Station (now Silverstone Racing Circuit). This did not directly affect the Order route but it can be adduced from a later order that it was intended that Holback Lane would provide an alternative to the routes closed.

33. In 1963, a further order was made by the Minister of Transport to permanently stop up the routes closed in 1945. In exchange a new bridleway was to be recorded around the edge of the airfield. This route became Lillingstone Dayrell Bridleway No. 11 (Points E to E1). Although the new route was defined as a bridleway, this does not preclude the possibility that higher rights might have existed but it would suggest that the Ministry of Transport (MOT) was unaware of any such rights.

The Definitive Map

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