«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 ...»
34. Under the National Parks and Access to the Countryside Act 1949, county councils were given the duty of recording public rights of way in their area. In common with other counties, Buckinghamshire was surveyed on a parish basis for this purpose.
35. The Order route was not included on the survey map prepared for Lillingstone Dayrell parish. However, a note in the county council’s parish file provides a list of “rights of way that are defined on the ordnance sheet” that had not been listed in the survey. This includes “The footpath from the Fox and Hounds Public House, via Holback Lane Farm to Chapel Green”, which would appear to relate to most of the Order route within Lillingstone Dayrell parish. After the list the entry states “there is some doubt as to whether the footpaths as listed are bridleroads or private carriageways”.
36. The Stowe parish map includes the southernmost section of the Order route (Points A-A1) as part of Stowe Bridleway No. 6 and the survey sheet describes it as “This last section of the Roman Road follows the Holback Lane..”. This http://www.planningportal.gov.uk/planninginspectorate Order Decision FPS/P0430/7/39 section of the Order route was shown on the original definitive map as a bridleway, the remainder of the Order route did not appear. Lillingstone Dayrell Bridleway No. 11 was added to the map subsequently as a result of the 1963 MOT order (see para. 33).
37. A special review of the definitive map was commenced in 1978 and a claim was submitted to add a bridleway linking Stowe Bridleway No. 6 to Lillingstone Dayrell Bridleway No. 11 (that is Points A1 –E1). This route was included on a draft map which was placed on deposit for public inspection and objection. No objection was made but, as a result of changes in legislation, the review was abandoned and the route was not added to the definitive map until 1986/1987 when modification orders adding it as a bridleway were made.
38. A plan of the Tilehouse Estate (1773) shows part of the Order route but provides no indication of its status.
39. An Estates Sales Catalogue (1855) includes details of two lots being offered for sale which incorporated sections of the Order route; one is described simply as ‘pasture’ and the other refers to the route as ‘lane’. Again this document provides no indication of the status of the route.
40. In 1935 the owner of the Tilehouse Estate deposited a plan showing the rights of way that he acknowledged running through his estate. The only part of the Order route that was included was the southernmost section of Stowe Bridleway No. 6 (Points A-A1).
41. An academic project of the University of Leicester, The Whittlewood Project, states that Holback Lane, which follows the course of a Roman road for a short distance, became a more important route in the later Middle Ages as it provided access to the chapel dedicated to St Thomas Becket.
42. In my view, these documents provide little help in determining the current status of the Order route.
Conclusions with regard to the Documentary Evidence
43. The Order route, or a route similar to it, appears to have been in existence for a very long time, at least from the late 18th century and possibly for much longer. Much of the available documentary evidence is inconclusive with regard to the status of the route; however, it has been recognised as a public bridleway since 1986/1987.
44. The most significant evidence suggesting the possible existence of higher public rights over the route relates to the diversion of a relatively short section of the route in the 1840s. As indicated above, these records suggest the existence of public vehicular rights but are open to alternative interpretation. However, this evidence must be considered along with all the other evidence available and this does not indicate the existence of public vehicular rights over the whole Order route and some of it, such as the Finance Act records, tends to indicate the absence of such rights. Accordingly, even if it were accepted that the diverted section of the route might carry public vehicular rights, it is impossible to determine how the public could gain access to and from this section in vehicles. I also note that if the Order were confirmed the Order route would still be a cul de sac for vehicles terminating at the county boundary with http://www.planningportal.gov.uk/planninginspectorate Order Decision FPS/P0430/7/39 Northamptonshire from where there is no evidence available to me to show how vehicular traffic might continue northwards although it is conceivable that the former chapel might itself have been regarded as an appropriate terminus for the route at one time.
45. Overall, it is my view that on the balance of probabilities, the evidence available is insufficient to show the existence of public vehicular rights over the Order route or any part of it.
46. An inference that a way has been dedicated for public use may be drawn at common law where the actions of landowners (or lack of action) indicate that they intended a way to be dedicated as a highway and where the public have accepted it.
47. In this case, I have seen little evidence of public vehicular use of the Order route or of actions on the part of landowners that might indicate an intention to dedicate it as a public byway. It would not therefore be appropriate to infer that it has been so dedicated.
The 2006 Act
48. This Act 2006 had the effect of extinguishing unrecorded rights for the use of routes with mechanically propelled vehicles (MPVs) subject to certain exceptions. The only exception that might have applied in this case is that contained in Section 67(3)(a) of the Act as an application for it to be added to the definitive map was made before 20 January 2005. However, in the light of a subsequent judgement in the Court of Appeal1, it appears that this application did not comply with all the relevant requirements. Accordingly, even if I had concluded that public vehicular rights over the Order route existed, it would have been necessary for the Order to be modified so as to describe the route as a Restricted Byway rather than a BOAT. However, in the light of my conclusion reached above, this is not necessary.
49. A number of concerns were raised by objectors relating to problems that might result if vehicles were allowed to use the Order route. These included potential danger to walkers and horse riders from vehicles on the same route, possible damage to the surface of the route and consequent maintenance expenditure and the possible detrimental effect on wildlife. I understand these concerns but, as they lie outside the criteria set out in the 1981 Act, I have given them no weight in reaching my decision.
50. It was submitted on behalf of some objectors that the Order should not be confirmed as no new evidence had been discovered since the Order route was recorded on the definitive map as a bridleway. It was however accepted that the term ‘discovered’ as used in the 1981 Act has been interpreted to include evidence which, although available at the time, had not previously been considered. On behalf of the OMA it was explained that after the abandonment of the review of the definitive map and the introduction of the 1981 Act, routes that had previously attracted no objections were added to the map after very R. (on the application of Warden and Fellows of Winchester College and Humphrey Feeds Ltd v Hampshire CC  EWCA Civ 431.
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little further research and in this case, there was no indication that much of the evidence now adduced had previously been taken into account. In these circumstances, I have no way of knowing whether all the evidence now submitted was considered before it was decided to add the Order route to the definitive map as a bridleway. I have therefore reached my decision on the basis of this evidence.
51. Having regard to these and all other matters raised, I conclude that the Order should not be confirmed.
52. I do not confirm the Order.
INSPECTORhttp://www.planningportal.gov.uk/planninginspectorate Order Decision FPS/P0430/7/39
APPEARANCESFor the OMA
1. Statement of Case and supporting documents, BCC.
2. Proof of Evidence of Michael Walker.
3. Statement of Case and Proof of Evidence of Graham Plumbe (on behalf of GLPG and LDPC) and Summary of case.
4. Supplementary Statement of Graham Plumbe (on behalf of GLPG and LDPC).
5. Statement of Case and Proof of Evidence of Neil Newbery.
6. Proof of Evidence of Andrew Clutterbuck.
7. Statement of Roslynne Rendell.
8. Legal Submission on behalf of GLPG and LDPC.
9. Legal Submission on behalf of BCC.
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