Meeting documents

HCW/14/13

Public Rights of Way Committee

25 February 2014

Definitive Map Review

Parish of Sandford

Report of the Head of Highways, Capital Development and Waste

Recommendations: It is recommended that:

(a) an Order be made to modify the Definitive Map and Statement for the addition of a Restricted Byway as shown on drawing number HCW/PROW/13/11A between points A - B - C (Suggestion 3);

(b) an Order be made to modify the Definitive Map and Statement for the addition of a Restricted Byway as shown on drawing number HCW/PROW/13/12A between points C - F - G (Suggestion 4);

(c) an Order be made to modify the Definitive Map and Statement for the addition of a Restricted Byway as shown on drawing number HCW/PROW/13/12A between points C - D - E (Suggestion 5);

(d) an Order be made to modify the Definitive Map and Statement for the addition of and upgrading of Footpath No. 5, Upton Hellions to a Bridleway as shown on drawing number HCW/PROW/13/16A between points A - H - B - C - D - E (Suggestion 8 part).

1. Summary

The report examines the routes referred to as Suggestions 3, 4, 5 and 8 arising out of the Definitive Map Review in the Parish of Sandford in Mid Devon. Suggestions 1, 2, 6, 7 and 9 having been brought to previous committees.

2. Background

The original parish survey under s. 27 of the National Parks and Access to the Countryside Act, 1949 completed in autumn 1950, proposed 43 footpaths for consideration as public rights of way. Footpath Nos. 11, 26, 27, 35 & 43 were deleted as these were considered to be private footpaths and 38 footpaths were therefore included on the draft and provisional maps. As no objections to their inclusion or comments regarding omissions appear to have been received, the 38 footpaths were recorded on the Definitive Map and Statement for Sandford published, as part of the Crediton Rural District Council area in 1958.

Other changes were noted in a previous report.

The last Definitive Map review was initially opened in Sandford in 1996 and a consultation map of proposals for change was published in March 1997 but was not progressed further at that time apart from the addition of Footpath No. 26, Sandford by way of a Modification Order in 2004. The review was re-opened with a parish public meeting in October 2012.

3. Proposals

Please refer to Appendix I to this report.

4. Consultations

The consultation map of 9 suggestions was published in April 2013, to include a number of routes proposed by a user group representative in 1997 and Schedule 14 applications made in 2005 by the Trail Riders Fellowship. General consultations have been carried out with the following results in respect of the suggestions considered in this report.

County Councillor Margaret Squires - no response

Mid Devon District Council - no response

Sandford Parish Council - response received

Upton Hellions Parish Meeting - response received

Country Landowners' Association - no response

National Farmers' Union - no response

British Horse Society - response received

Ramblers' Association - response received

Trail Riders' Fellowship - response received

Devon Green Lanes Group - response received

5. Financial Considerations

The implications/consequences of the recommendation have been taken into account in preparing the report. Financial implications are not a relevant consideration to be taken into account under the provision of the Wildlife and Countryside Act 1981. The Authority's costs associated with Modification Orders, including Schedule 14 appeals, the making of Orders and subsequent determinations, are met from the general public rights of way budget in fulfilling our statutory duties.

6. Sustainability Considerations

There are no implications.

7. Carbon Impact Considerations

There are no implications.

8. Equality Considerations

There are no implications.

9. Legal Considerations

The implications/consequences of the recommendation have been taken into account in the preparation of the report.

10. Risk Management Considerations

There are no implications.

11. Public Health Impact

There are no implications.

12. Options/Alternatives

The County Council has a statutory duty to undertake a review of the Definitive Map and Statement under the Wildlife & Countryside Act 1981 and is undertaking this duty through the parish by parish review across the county.

13. Reasons for Recommendation/Alternative Options Considered

To progress the parish by parish review of the Definitive Map in the Mid Devon.

David Whitton

Head of Highways, Capital Development and Waste

Electoral Division: Newton St Cyres & Sandford

Local Government Act 1972: List of Background Papers

Contact for enquiries: Tania Weeks

Room No: ABG Lucombe House, County Hall, Exeter

Tel No: 01392 382833

Background Paper		Date	File Ref.
DMR/Correspondence File		1997 to date	DMR/Sandford

tw220114pra

sc/cr/DMR parish of sandford

04 100214

Appendix I

To HCW/14/13

Basis of Claim

Common Law presumes that at some time in the past the landowner dedicated the way to the public either expressly, the evidence of the dedication having since been lost, or by implication, by making no objection to the use of the way by the public.

The Highways Act 1980, Section 31(1) states that where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has actually been enjoyed by the public as of right and without interruption for a full period of 20 years, the way is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.

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

Wildlife and Countryside Act 1981, Section 53[3][c] enables the Definitive Map to be modified if the County Council discovers evidence which, when considered with all other relevant evidence available to it, shows

(i) that a right of way not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates.

(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.

The Wildlife and Countryside Act 1981, Section 56[1] states that the Definitive Map and Statement shall be conclusive evidence as to the particulars contained therein, but without prejudice to any question whether the public had at that date any right of way other than those rights.

Suggestion 3 Addition of a Byway Open to All Traffic along Yarmleigh Lane

Schedule 14 Application for the addition of a Byway Open to All Traffic from the county road south of West Pidsley for 1330 metres west south westwards, to Henstill Cross (GR SS 8128 0471 to SS 8011 0422)

Recommendation: It is recommended that a Modification Order be made to modify the Definitive Map and Statement for the addition of a Restricted Byway between A - B - C as shown on drawing number HCW/PROW/13/11A.

Suggestion 4 Addition of a Byway Open to All Traffic from Henstill Cross to West Henstill

Schedule 14 Application for the addition of a Byway Open to All Traffic from Henstill Cross south south eastwards for 420 metres to West Henstill (GR SS 8011 0422 to SS 8021 0386).

Recommendation: It is recommended that a Modification Order be made to modify the Definitive Map and Statement for the addition of a Restricted Byway from C - F - G as shown on drawing number HCDW/PROW/13/12A.

Suggestion 5 Addition of a Byway Open to All Traffic from Henstill Cross to Lower New Buildings

Schedule 14 Application for the addition of a Byway Open to All Traffic from Henstill Cross south westwards for 690 metres, to the end of the County Road at Lower New Buildings (GR SS 8011 0422 to SS 7970 0373).

Recommendation: It is recommended that a Modification Order be made to modify the Definitive Map and Statement for the addition of a Restricted Byway from C - D - E as shown on drawing number HCDW/PROW/13/12A.

1. Background

During the consultation for the 1996 Definitive Map Review, the Devon representative of the Byways & Bridleways Trust proposed that three additional routes in the vicinity of Yarmleigh and West Henstill Farms should be recorded as bridleways on the definitive map. The routes concerned lanes and a section of headland path where the hedge had been removed on one side. User and map evidence was submitted in support of these proposals. The Devon Trail Riders Fellowship also submitted evidence in support of the routes in 2003.

In December 2005 the TRF also submitted a Schedule 14 Application to the County Council for the addition of the routes to the Definitive Map as byways open to all traffic, supported by map and user evidence. These were three of a number of Schedule 14 applications made by local representatives of the Trial Riders Fellowship in 2005 prior to the NERC Act (Natural Environment & Rural Communities Act) that came into force in May 2006. The NERC Act would restrict the ways that new rights of ways for motorised vehicles in the countryside could be created or recorded. A right for motor vehicles was preserved under NERC if a Schedule 14 Application had been made prior to 20 January 2005, that is compliant with the regulations for Schedule 14 applications under the Wildlife & Countryside Act 1981, or the surveying authority has made a determination of an application for a BOAT before 2 May 2006.

The applications received for the addition of the routes as BOATs, were made after 20 January 2005 and were also not compliant with the regulations as notice of the application had not been served on the landowners. However, as applications had been received the proposals were included in the parish review as made for the addition of BOATs, as there are other limited exemptions in which vehicle rights may be preserved.

As the three routes converge at the point known as Henstill Cross and the sources of evidence for the suggestions will be the same, it was considered logical to discuss the three separate suggestions together.

2. Description of the Route

Suggestion 3 Yarmleigh Lane

The route is a hedged and defined lane throughout the majority of its length and starts at the section of county road between Pidsley Hill and Perryman's Hill, point A and proceeds generally south westwards along the lane to point B and the entrance to Yarmleigh Farm. The lane then narrows and continues generally west south westwards through the copse known as Henstill Brake and then along the north side of Henstill Copse before bearing south westwards along a wider section of lane to point C and the junction with suggestions 4 and 5 at Henstill Cross.

The lane has a minimum width of 2.5 3 metres throughout, a length of about 1,330 metres and has an improved surface from the county road to Yarmleigh Farm and then an earth and vegetation surface from the farm entrance to Henstill Cross.

Photographs of the route along the lane from the east end are included in the backing papers.

Suggestion 4 Henstill Cross to West Henstill

The route starts at Henstill Cross, point C and proceeds south south eastwards along the defined hedged lane for about 400 metres to point F and then turns westwards pass West Henstill House to join the end of the county road, point G.

The route has a width of 2.5 3 metres and an improved surface between points G and F and a surface of earth and vegetation along the lane.

Photographs of the route along the lane from the south/north end are included in the backing papers.

Suggestion 5 Henstill Cross to Lower New Buildings

The route starts at Henstill Cross and the junction with suggestions 3 and 4 at point C and proceeds generally south westwards along the field headland; the northern hedge of the original lane is believed to have been removed in the late 1960s, to point D. The route then continues south westwards uphill along a section of a deep cut lane to the end of the county road at Lower New Buildings.

The headland route along the position of the old lane would be considered to have a width of 2.5 3 metres and the section of lane leading to New Buildings a similar width. The surface is earth/grass along the field headland and soil and some stone/bedrock along the enclosed lane.

Photographs of the route from the east end are included in the backing papers.

3. Consultations

The following responses were received.

Sandford Parish Council responded as follows:

Suggestion 3 Yarmleigh Lane Restricted Byway is considered to be all that is necessary.

Suggestion 4 Henstill Cross to West Henstill - Restricted Byway is considered to be all that is necessary.

Suggestion 5 Henstill Cross to New Buildings No public access deemed necessary.

Devon Green Lanes Group supports the proposed suggestions. Copies of evidence in support of these routes and user evidence forms were sent in 1997 on behalf of the Byways and Bridleways Trust.

Mr R Drake responded on behalf of the Devon Group of The Trail Riders Fellowship. He advised that he had researched their records and found no evidence to conclude that the schedule 14 claims would be NERC exempt. They still feel that the routes have enough evidence to be considered for adding to the definitive map and would support the Council in any considered modification orders with the backing of the evidence previously submitted. In conclusion they/he support the proposed modifications of restricted byways for the routes.

The Chair of Creedy Walkers, Simone Romain, advised that they would be perfectly happy for the suggestions to be recorded as a restricted byways or bridleways. Members of the group use suggestions 4 and 5 from time to time.

The British Horse Society Devon representative advised that the suggestions are shown as excluded on the 1910 Finance Act Maps and therefore the BHS confirms support for the proposals.

4. Documentary Evidence

Ordnance Survey and Other Maps

The Ordnance Survey and other mapping do not provide evidence of the status of a route but can be evidence of its physical existence over a number of years.

Cassini Historical Maps 1809 - 1900

These are reproductions of the Ordnance Survey One-inch maps enlarged and rescaled to a scale of 1:50,000 (to match current OS Land Ranger maps) published in 2007. They reproduce the Old Series from 1809, the Revised New Series from 1899-1900 and the Popular Edition from 1919.

Old Series 1809

A defined lane/road is shown for suggestions 4 and 5 and for the west end of suggestion 3 (Yarmley Lane) from the farm to Henstill Cross. Access to Yarmley Farm appears to be along a lane from the south east, Lower Henstill. The depiction and width of the lane for the west end of suggestion 3 and suggestions 4 and 5 are a similar width to the surrounding lanes that are county roads of today.

Revised New Series 1899-1900

The current access to Yarmleigh has been constructed along the side of the stream and all three suggestions are shown as double lined routes which correspond to Unmetalled Roads.

Popular Edition 1919

All three suggestions are recorded as a solid black line corresponding to Minor Roads.

OS 1st Edition 25" to a mile 1880-1890

Suggestion 3 Yarmleigh Lane

The route is depicted as a defined lane with mature hedgerow trees shown along both sides of the lane for the majority of its length. Two bench marks are recorded in the western end of the land between Henstill Cross and Yarmleigh. The pecked line at the junction with Henstill Cross is believed to represent a change in surface, rather than a gate. The lane is named Yarmley Lane (alternative spelling) and has its own compartment number 1158 and area of 2.126 acres.

Suggestion 4 West Henstill to Henstill Cross

The route is shown as a defined lane with some orchard trees shown at the southern end. There is a pecked line at the end of the county road. The lane is not named but has a separate compartment number 1177, 2.081 acres.

Suggestion 5 Henstill Cross to Lower New Buildings

The route is shown as a defined lane throughout its length with two bench marks shown along the route. There is a pecked line at the junction with Henstill Cross but not at the junction with the county road at Lower New Buildings. The lane is not named but has a separate compartment number 1226 and area of 0.992 acres.

OS 1 inch to a mile maps of 1946, 1957-58 & 1967

On the 1946 maps all three suggestions are shown as defined lanes corresponding to Minor Roads in towns, drives and Unmetalled Roads. On the 1957-58 edition the east end of Yarmleigh Lane to Yarmleigh, suggestion 4 and the headland section of suggestion 5 are shown as a defined double sided lane (Minor Roads in towns, Drives and Unmetalled Roads) and the section from Yarmleigh to Henstill Cross and the south west end of suggestion 5 (along the lane) is shown as a dashed line (Footpaths and Tracks). On the later Exeter OS map of 1967 the west end of suggestion 3 and suggestion 4 are shown as a defined lane (Minor Road in towns, Drive or Track (unmetalled)). The east end of suggestion 3 and north east end of suggestion 5 is shown with a dashed line (Path).

OS Post War Mapping 1:2,500 scale 1970-1971

Suggestion 3 Yarmleigh Lane

The lane is depicted as a defined double hedged lane (apart from the short section through the small copse just west of the farm entrance. The eastern part of the lane is labelled Yarmleigh Lane (current spelling) and the western section is annotated 'track' with compartment number 1525, 1.12 acres.

Suggestion 4 West Henstill to Henstill Cross

The route is shown as a defined lane with a pecked line across the ends of the north to south section of the lane at Henstill Cross and east of West Henstill House. The lane fell on two separate map sheets and has the compartment numbers and areas of 1812 and 0.31 acres for the northern section and 2495 and 0.18 acres for the southern end.

Suggestion 5 Henstill Cross to Lower New Buildings

The route is shown as a defined lane, labelled track in three places, throughout its length from Henstill Cross to Lower New Buildings. There is a pecked line at the junction with the county road at Lower New Buildings and the lane has a compartment number 9106 and area 0.29 acres.

Surveyors of Highways Records 1810 - 1862

Old parish surveyors of the highways records deposited in the Devon Record Office (reference 1238/PS 1-26) contain a collection of loose leaf papers. Amongst these is a sheet headed 'A true List of fair Measurement of the Roads in the Parish of Sandford in the county of Devon taken by John Morgan and the four surveyors of the Highways in the year 1810'. The measurement was listed in miles, furlongs and poles and the list includes the roads described as:

"From Higher New Buildings to Pidsley Lane through Yarmley 1 mile 3 furlongs and 16 poles (2,293 metres)."

This is believed to describe the route from the county road from Sandford to Morchard Bishop at New Buildings north east along the county road to Lower New Buildings and then continuing north eastwards along the routes of suggestions 5 and 3 to the county road at Pidsley Hill. The distance from the county road at New Buildings to Pidsley Hill is approximately 2,290 metres.

"From Raymond's Henstill to Burrow Hill 5 Furlongs and 6 poles (1,036 metres)".

This is believed to describe the route from West Henstill (believed to be known as Raymond's Henstill in 1810) to the end of the lane north of Burrow, the old holding known as Burrow or Borough that was north west of Henstill Cross as shown on the older maps. The description includes suggestion 4. The distance from West Henstill to the end of the lane north of Borough, is approximately 1,034 metres.

In 1837 surveyors completed a return of roads in the parish which, excluding the Turnpike road, totalled 39 miles 5 furlongs and 12.25 poles used for wheel carriages. Of the total length of roads 13 miles 3 furlongs and 10 poles were repaired by private individuals. There was no list of roads with the return.

A document also includes a list of the Parish Roads of Sandford to be tendered for maintenance for a Term of 3 years from Lady Day 1852. None of the suggested routes were included in the list of roads although those listed in the North West District around Henstill correspond to county roads of today.

A poster of 1862 for the tender of roads for maintenance in the parish refers to a length of about 27 miles. This length would correspond to the 1837 total of 39 miles after deduction of the 13 miles of privately maintained roads.

Tithe Maps and Apportionments 1839

Tithe maps were drawn up under statutory procedures laid down by the Tithe Commutation Act 1836 and subject to local publicity, which would be likely to have limited the possibility of errors. Roads were sometimes coloured and colouring can indicate carriageways or driftways. Public roads were not titheable. Tithe maps do not offer confirmation of the precise nature of the public and/or private rights that existed over the routes shown.

Sandford Tithe Map 1839

On the Sandford Tithe Map all three suggestions are shown as defined lanes and on the same lines as they are today. They are also tinted in a similar manner to the neighbouring lanes that are now county roads.

The house at Yarmleigh is number 460 described as House Curtilage & Lane and state of occupation House Road etc. The section of suggestion 3, Yarmleigh Lane, which passes through the small copse, just west of the farm, is numbered 476 described as Waste Spot & Lane and state of cultivation as Road etc.

The end of suggestion 4 appears linked to West Henstill house with the apportionment number 1170 this is described as House Offices Yards and Bye Roads and state of cultivation as House Roads etc.

Application to Magistrates/Quarter Sessions 1843

In 1843 John Quicke of Newton House made an application, having obtained the approval of the Sandford Surveyors of Highways, as landowner of lands 'through which part of a certain highway lying between Middle Henstill Estate and Lower Newbuildings is intended to be diverted and turned do hereby consent to the making and continuing such new Highway through my said lands'.

The plan attached to the declaration showed the proposed diversion of the footpaths that are now recorded as Footpath Nos 4, 5 & 6, Sandford. The plan also shows connecting lanes including part of suggestion 5, north east of New Buildings and the lane is annotated 'To Yarmley' and part of suggestion 4, going north from West Henstill, which is annotated 'from Burrow'.

OS Object Name Book 1903-1904 (PRO reference OS 35/1749)

The OS name books gave the definitions of features, houses, rivers, places, lanes printed on the large scale OS maps. The definitions were typically authorised by the owner where an object (say a farmhouse or gentleman's residence) was privately owned and by the district overseer/surveyor or someone in a public position where they were in public ownership.

An entry for Yarmley Lane was signed for by Mr S Pridham, District Surveyor, Cheriton Fitzpaine and described as 'a lane extending in a North Easterly direction from Henstill Cross to a junction of roads situate about 28 chains N of Cobley's Henstill' (Cobley's Henstill is now East Henstill and 28 chains equates to 563 metres. This distance north from East Henstill corresponds to the junction of the north east end of Yarmley Lane with the county road at point A). The description for Yarmley Lane describes the route of Suggestion 3.

An entry for Henstill Cross was also signed for by Mr S Pridham and described as 'applies to a cross roads situate about mile north of West Henstill'. Henstill Cross is the junction for suggestions 3, 4 and 5 at point C.

An entry for Hawkins Pool, at point D on the route for suggestion 5 was also signed for by Mr S Pridham and described as 'applies to a hollow in parish road situate about 12 chains S. E. of Enfield'. Twelve chains equate to about 240 metres and point D is this distance south east of Endfield.

The lanes or old lanes described as suggestions 4 and 5 were not individually named on the OS maps and therefore did not have an entry in the name books. On the summary sheet at the end of the book the list of names signed for by Mr Pridham, District Surveyor includes the above mentioned names and also Pidsley Hill, Perryman's Hill and Gipsies Lane which are county roads.

Finance Act Plans and Field Books 1910

The Finance 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. It was a criminal offence for any false statement to be knowingly made for the purpose of reducing tax liability. If a defined lane/road is not included within any hereditament there is a possibility that it was considered a public highway, as it had not been claimed as belonging to an adjoining landowners' holding, but there may be other reasons for its exclusion. If public rights of way were believed to cross their land, landowners could bring this to the attention of the valuers/surveyors and the hereditament (holding) could be given an allowance for the public right of way, which would then be deducted from the total value of the hereditament.

The allowance given was often on the basis of a figure such as a 1 times 25 yp. The yp refers to years purchase, a method of valuation used to convert a property's income flow (rent) into an appropriate capital sum on the basis that the capital value of a property is directly related to its income producing power. This method of valuation is often seen in Finance Act valuations which were undertaken at a time when a large proportion of property and particularly farms and land would have been tenanted.

Yarmley Farm is hereditament number 171 and included the section of suggestion 3 from the farm north eastwards to the county road. On the plan the colouring breaks where the lane joins the county road and on the farm's boundary at the western end of the lane north of Henstill Brake (just west of point B). The holding of 126 acres was owned by Mr Pope and recently occupied by Mr Graham. The property is described as 'Poor quality farm with bad aspect, approaches to farm premises very bad'. No reference is made to any public rights.

West Henstill falls under hereditament number 115 and the total holding including hereditaments 116 and 117 totalled 330 acres. Hereditament number 115 included the south western end of suggestion 3 and all of suggestions 4 and 5. The colouring breaks on the boundary with Yarmley Lane (just west of point B), at the boundary with the lane leading from Lower New Buildings (point D on suggestion 5), and also at the northern boundary across the lane leading to Borough. The holding was occupied by Mr Kelly.

In the field book under the heading Fixed Charges, Easements, Common Rights and Restrictions is written Road Occupation Road 1 mile repairable ratione tenurae (The word "ratione" is defined as meaning "by reason of" and the phrase "ratione tenurae" is likewise defined as "by reason of one's tenure"). In a different colour and writing it states P R Way 20 x 25 = 500. On page 2 under Charges, Easements and Restrictions affecting marked value of Fee Simple it includes Public Right of Way 20 x 25 yp = 500. The sum of 500 is then carried down to the item Restrictions at the bottom of the page.

Within the field book an additional sheet has been inserted which states 'Upkeep of Road between Hawkins Pool & Yarmley is a tenant's liability. Upkeep of Road from Borough to West Henstill is a tenant's liability, as also the Road from West Henstill to the Nursery 456.' The Roads described as being a Tenant's Liability include the south western end of suggestion 3, all of suggestion 4 and suggestion 5 from points C to D, but not the section of lane leading to New Buildings (points D to E).

The notes then continue 'The Road from West Henstill to Ridgeway Cross is a Parish Road. The Branch road from Ridgeway Cross to Lower Newbuildings is a private occupation road; the liability of upkeep resting on Tenant. Upkeep of road from South Eastern corner of Farm to Middle Henstill is a tenant's liability'.

A final paragraph on the sheet says 'Public Right of Way from Lower Newbuildings through West Henstill to Middle Henstill & then to Cobley's Henstill' (this describes the route of the recorded Public Footpath Nos. 4, 5, 6, 7 & 8, Sandford). On the final page of the field book the sum of 500 is recorded under deductions for Public Rights of Way or User. The sum of 500 is considerably more than is usually seen as deductions for Public Rights of Way across land. It appears to have been calculated using the years purchase method on the basis of a 20 reduction in the annual rental value of the farm, due to the tenant's liability for repairing the roads described in the field book and the other public rights of way declared. The actual rent for the farm was stated as being 350 at 1910 including the shooting rights ( 20 in 1910 would equate to nearly 2,000 in 2013).

5. Parish Survey under National Parks & Access to the Countryside Act 1949

The Parish Council survey of their public rights of way to be considered for inclusion on the Definitive map was undertaken in 1950 and no parish survey forms were completed for any of the suggestions. On the parish survey map no annotations were made to any of the lanes.

6. Devon County Council Uncompleted Reviews of 1968, 1977 & 1996

In the 1968 review the Parish Council claimed no additional public rights of way. There appears to be no correspondence from the Parish in connection with the 1977 review.

Following publication of the 1996 review consultation map the local representative of the Byways and Bridleway Trust proposed that the routes currently being considered as suggestions 3, 4 and 5 should be recorded as bridleways. The BBT subsequently forwarded some completed user evidence forms for all routes and other documentary evidence to support the routes being recorded as bridleways.

In February 2003 the local representative of the Trail Riders Fellowship wrote to claim the routes as Byways Open to All Traffic, listing supporting map evidence.

In November 2005 Schedule 14 applications for all three suggestions were received from the Trail Riders Fellowship together with a list of documentary, mainly map, evidence and some user forms.

7. Vestry and Parish Meeting Minutes 1828 - 2008

The Vestry Meeting minutes from 1828 - 1900 are held at the Devon Heritage Centre.

A meeting was called on 27 April in 1843 to take into consideration an application made by John Quicke Esq for diverting or turning a certain footpath or highway, leading from Middle Henstill Estate to New Buildings both in this parish. The subsequent application to the Quarter Sessions and Magistrates was referred to above.

The Parish Council minutes from 1896 1975 and from 1993 2008 are held at the Devon Heritage Centre. The minutes are missing between 1975 and 1993.

In the meeting on 24 August 1946 the clerk read a letter from the Crediton Rural District Council asking for details of public footpaths in use in the parish. After a long discussion it was agreed to forward a list.

A photo of the list is included in the backing papers. None of the eighteen paths listed described any of the suggestions but path 14 is described as from Borough (the old farm north west of Henstill Cross) to Henstill Lane and 15 as Yarmley to Cobley's (now East) Henstill. The start or end point of these paths as described could only be accessed by using parts of the route in suggestion 3 and either suggestions 4 or 5 depending on what is meant by Henstill Lane.

On 7 November 1996 under item 5) Replies it was reported that the Mid Devon District Council was unable to confirm the ownership of the track at Lower New Buildings. Members felt it was already a public footpath and the clerk was asked to contact Wendy Paine (DCC P3 officer) for assistance on this matter. This could refer to the lane at the south west end of suggestion 5 rather the other tracks in the vicinity which were county roads or recorded footpaths.

Sandford Parish has been a member of the Parish Paths Partnership (P3) scheme since 1993 and the local co-ordinator was Mr Ken Sharman for fourteen years. Mr Sharman undertook work on the public rights of way in the parish and would submit claims for expenses to the parish council. Although the parish minutes record that Mr Sharman be advised that he should only carry out works on the recorded footpaths; Mr Sharman has advised that all the routes were familiar to him. With respect to suggestion 3 Yarmleigh Lane he wrote 'I remember this simply because I was expected to keep it clear as the track formed part of the Sandford Revel ten kilometre run. Sometimes very hard work!!' In respect to the plan for suggestions 4 and 5 he commented 'Yes I recall this path, it started at my then neighbour Colin Nott from (West Henstill) farm and it was regularly looked after and way marked by me'.

8. Aerial Photography

The 1946 aerial photography shows the three suggestions as defined double hedged lanes with some hedgerow trees and trimmed hedges. The surface of the lane is visible for suggestions 4 and 5.

By 1999 the field hedge on the north west side of suggestion 5 has been removed but suggestion 4 and that part of suggestion 3 not by the copse are seen as defined lanes with trimmed hedges.

In the 2006-2007 photograph the situation is similar and the section of suggestion 3 north east of Henstill Cross is visible as a lane following the apparent removal of some trees.

9. Land Registry

Yarmleigh Lane (suggestion 3) between points A and just west of point B is registered to Yarmleigh Farm. The remainder of Yarmleigh Lane to point C is unregistered.

The complete length of suggestion 4 from Henstill Cross to West Henstill, points C to G is unregistered.

With regards to suggestion 5 the section of the route along the lane from points D to E is unregistered. The part along the field headland between points C and D was registered to West Henstill Farm in February 2000, following an application to register the route of the old lane made by the previous landowner Mr G E Tucker. Prior to Mr Tucker's application the area of land that would have been the old lane was not registered.

10. Planning Applications

In September 2003 the County Council was contacted by Stags on behalf of Mr G E Tucker at West Henstill in connection with the diversion of Footpath No. 4, Sandford to enable the conversion of an old barn on the farm to a dwelling and construction of a new driveway that would be necessary to serve the original farmhouse and remaining buildings. Following meetings and communications with Stags, Mr Tucker agreed to the dedication of bridleways at West Henstill that correspond to the suggestions 4 and 5. Other adjoining landowners were contacted in respect of suggestion 4 and the section of suggestion 5 that was not registered and their agreement was also acquired.

The dedication agreements were not proceeded with as following their communication sent to the Council in 2003, the Trail Riders Fellowship advised that they felt these routes should be recorded as BOATS not bridleways as they were old roads. If dedication agreements were entered into they would not have an opportunity to object as when a route is added by way of a modification order.

As the subsequent Natural Environment & Rural Communities (NERC) Act 2006 was expected in the foreseeable future, which was likely to prevent the recording of routes for motorised routes in the countryside, the matter was left to be considered as part of the Sandford Definitive Map Review. Sadly Mr G Tucker has died in the interim and West Henstill was sold in 2011 by the beneficiary of the estate.

11. Sales Particulars

West Henstill Farm was advertised for sale in the summer of 2011. The property particulars included the usual wording to the effect that ' the property is sold subject to and with the benefit of any public or private rights of way or bridleways etc'.

Although the selling agents were the same firm that had previously been involved with the proposed diversion of Footpath No. 4, Sandford and planning application for the new driveway to enable the old barn to be developed; the buyer of the farm was not advised of the previously proposed creation agreements for bridleways across and in the vicinity of the farm.

12. User Evidence

A number of user evidence forms were submitted by the Byways & Bridleways Trust in 1997 1998, completed in 1993-1998, in support of the routes being used as and considered to be public bridleways. Some of the users had included references to suggestions 3 and either or both suggestions 4 and 5 on the one form as Yarmleigh Lane would also be used in connection with either suggestion 4 or 5.

The TRF submitted some user evidence forms with their schedule 14 claims of 2005 and five user evidence forms were received following the opening of the current definitive map review for Sandford in 2012.

The user evidence forms received have been recorded on separate charts for each suggestion and equate to 32 users for suggestion 3, 21 in respect of suggestion 4 and 23 in respect of suggestion 5. Most of the forms completed in the 1990s related to use on horseback with some users reporting weekly use to use once or twice a year by a walker. Their use covers the period from the late 1940s to 1993-1998 when the forms were completed.

The users all considered the route to be public through local knowledge, word of mouth or riding friends. No users report ever seeing any notices or anything else to indicate that the lane was not public or having permission. Some users refer to obstruction by fallen trees or branches during hedge trimming and several believe the landowners or adjacent landowners were aware the routes were being used and some had spoken to them when using the ways.

The use with motorcycles covers the period 1986 to 1997 by two users and by one in 2002 to 2003. The forms completed in 2012 and 2013 refer to use on foot only from 1991 to the present. These users do not report ever seeing any notices or anything else to indicate that the lane was not public, being turned back or stopped or having permission. They all refer to either the recently locked gate (2013) at the end of the lane from Lower New Buildings (point D) or at Henstill Cross. No recent use of the suggestions has been received by horse riders although hoof prints were observed on suggestions 3 and 4 when the routes were inspected in 2012. The section of lane from D to E on suggestion 5 was overgrown and the sloping lane eroded to the bedrock in places when inspected in 2003 and it is considered possible that it was not being used by horse riders at that time.

The user evidence is summarised on the following charts and overall records use of all three suggestions on a regular basis by members of the public between the 1940s and the present day on foot, horseback and motorcycle.

13. Landowner Evidence

All the landowners/occupiers adjoining the routes were contacted and informed of the suggestions. Some of the landowners/occupiers were previously contacted in connection with the uncompleted review in 1998, following proposal of the routes as bridleways. Some of the landowners were also contacted in 2004 in connection with the proposal for the dedication of the bridleways along the routes of suggestions 4 and 5 and creation of new driveway to West Henstill farm.

Mr W J Crooke has farmed the field south of point A on suggestion 3 for 44 years. He does not believe the lane to be public but has seen horse riders weekly using the way. He has not required people to ask permission, stopped or turned anybody back, erected any signs or obstructed the way. He comments that the lane has been "used by horse riders regularly and occasional walkers. Never by motors between points B and C in my opinion it is unsuitable for this as it is very wet in winter."

Mr S Shakespeare resides at West Henstill and has owned land on the north side of Yarmleigh Lane between points B and C since 2005. He believes the lanes proposed as suggestions 3 and 4 to be a bridleway and sees walkers and horse riders approximately 5 10 times a month. He comments that there have been problems in the past with off road vehicles using the lane in a careless and dangerous manner. In a covering letter he advises that the lanes are important to him for accessing his land, but are also used by the public. He supports public access for walkers and horse riders but feels it would be wholly inappropriate if reclassified as a 'BOAT'.

J Nott and Sons were the owners of West Henstill Farm in 1998 and owned the field north west of the west end of Yarmleigh Lane. In respect of suggestion 3 Yarmleigh Lane they advised that they considered the way to be a bridleway and were aware of use on horseback rarely. They had not required people to ask permission, stopped or turned anybody back, erected any signs or obstructed the way.

J Nott and Sons also completed two further separate land owner evidence forms in 1998 in connection with the routes from Henstill Cross to West Henstill and from Henstill Cross to Lower New Buildings. They advised that they considered the ways to be a bridleways and had seen or were aware of the public on horseback rarely. They had not required people to ask permission, stopped or turned anybody back, erected any signs or obstructed the way.

White and Son, having owned Yarmleigh Farm since 1988, responded in 1998 and advised that they did not believe the way to be public but that they have never objected to it being used as a bridlepath while they owned the appropriate section. They have seen walkers occasionally and horse riders a couple of times a week. They advise that in the mid 1990s they stopped a motorbike as it is too narrow for motorbikes and walkers/horses to share safely. They have not told anyone it was not public or erected notices. They have only obstructed the way for periods of 30 minutes for safety reasons whilst moving livestock.

Mr J B White of Yarmleigh Farm replied in 2013 and considers the lane to be a bridleway and has seen people on foot and on horse once or twice a week. He has turned back anyone in a motorised vehicle and advised them that it was not public. They had obstructed the track at point B to stop motor vehicles. In a covering letter he writes that after point B the surface deteriorates badly, narrows, and there is a muddy sticky stream; it is only suitable for horses and foot traffic. He would strongly object to Yarmleigh Lane becoming a BOAT, either a bridleway or at a push a restricted bridleway are the only safe and logical uses for this path.

In 2013 Mr T White, one of the two co owners of Yarmleigh Farm wrote and was strongly against any vehicle use of the section of lane leading to the farm as they have to maintain this lane for their own vehicles. He would also object to use on the other sections of lane as there would be nowhere to pass for a vehicle including a horse drawn one. With reference to suggestion 5, there has not been a track for a very long time, is across an open field and could be hazardous in the wrong conditions. The New Buildings end is also unsuitable for motors. He concludes by saying that he is certainly not against pedestrian and horse users, provided they behave sensibly.

Mr F J White has owned Middle Henstill since 1981 which includes about half the land adjoining the south side of Yarmleigh Lane (suggestion 3) and all the land on the east side of the lane from Henstill Cross to West Henstill (suggestion 4). He believes the lane to be a green lane so footpath/bridleway and have seen both lanes used occasionally by walkers and horse riders. He has not required people to ask permission, stopped or turned anybody back, erected any signs or obstructed the way. Mr White comments that the lanes are unsuitable for motorbikes and off road vehicles because they are so narrow. Vehicles would be a danger to other users and damage the hedgerows.

West Henstill House, west of point F on suggestion 4, has been owned by Mr C and Mr K Jecks since 1976 and they have considered the lane to be a bridleway throughout their ownership. They have been aware of/seen irregular walkers and horse riders and they have not required people to ask permission, stopped or turned anybody back, erected any signs or obstructed the way. In a supplementary email Mr C Jecks advises that the application to turn the lane (suggestion 4) gives them cause for concern as they have always understood the lane to be a bridleway. He subsequently confirmed that he would be happy with the restricted byway definition in which motorised vehicles are excluded other than adjacent landowners.

Mr J Sanders has occupied Endfield Farm for nearly fifty years and farms the land on the north west side of suggestion 5 between points D and E. He considers the way to be a BOAT and has seen or been aware of walkers, horse riders and quad bikes all year round on a fairly regular basis. He has not required people to ask permission, stopped or turned anybody back, erected any signs or obstructed the way. Gates on the way were never locked.

Mrs J Page has owned the land to the south east of the lane between points D and E on suggestion 5 since 1996. She has considered the route to be an unmarked footpath and observed very regular use by dog walkers and others from 1996 to 2004 and less regular use since then. She had not required people to ask permission, stopped or turned anybody back, erected any signs or obstructed the way. The gate at the bottom of the track was not locked in the past. Mrs Page advised that at Parish Council Meetings she has participated in discussions and agreed to help maintain this track as a footpath in the past few years.

Mr Hutchings purchased West Henstill Farm in March 2012. His land adjoins the west side of suggestion 4 and is crossed by the headland path section of suggestion 5. The section of suggestion 5 along the lane from points D to E, although not owned by West Henstill Farm, was cleared of overhanging trees and scrapped to provide tractor/agricultural access to West Henstill from the county road at New Buildings. In respect of suggestion 4 Mr Hutchings advised that he considered the lane to be a public right of way for many years. He had seen or been aware of members of the public using the way and had not required people to ask permission, stopped or turned anybody back, erected any signs or obstructed the way.

With respect to suggestion 5 Mr Hutchings does not consider the way to be public and has not observed any use. He advised that the way had been blocked and overgrown at the New Buildings end for many years. The gate at the New Buildings end of the field was locked after clearing the lane and gate at Henstill Cross chained shut. Under further information he advised that no trace of track remains.

In a meeting with the officer prior to receipt of the landowner evidence forms, Mr Hutchings advised that he would object to suggestion 5 as this crosses his open field and is not a hedged lane throughout. It would permit dogs to have access to the field used for grazing cattle. Due to the gate at point D (at the end of the lane leading to Lower New Buildings) being left open, he has locked this on occasions. He has also had problems with cattle been infected with worms, believed to have been caught from dogs using Footpath No. 4, Sandford which also crosses the farm. Mr Hutchings advised that he would be prepared to dedicate Footpath No. 4 as a bridleway as an alternative to suggestion 5. This would provide horse riders with an alternative route to West Henstill and then to Henstill Cross using suggestion 4.

14. Rebuttal Evidence

A number of local people either saw the consultation notices or heard about the BOAT proposal for the lane from friends, family or neighbours. This produced a number of emails and letters to the County Council against the recording of the lanes/routes as BOATs and their use by motorised traffic apart from local farmers.

The comments received included:

Concern for damage to flora and fauna;

Safety for walkers and riders using the lane;

Suitability for traffic;

Effect on the public's enjoyment of the route.

These views and concerns are not factors which can be taken into consideration when determining whether public rights exist under present legislation. Several responders also commented on their own use of the lane or use by others on foot or horseback in their letters or emails.

Most of the people who wrote to or emailed the County Council were contacted and the circumstances explained about why the BOAT proposal had been made. Many of them either subsequently confirmed that they would be happy for the lanes to be designated as bridleways or restricted byways or proposed this status in their initial communication.

15. Discussion

A claim for a public right of way can arise through use by the public under section 31 of the Highways Act 1980, if twenty years use can be shown after the public's use of the route is called into question. If the schedule 14 applications are considered to have called into question the public's use of the routes, the user evidence received is not sufficient in the required twenty year period in all three suggestions to enable existence or otherwise of a right of way to be considered under section 31 of the Highways Act 1980 in respect of the claims. A claim for a right of way may also exist at common law. Evidence of dedication by the landowners can be express or implied and an implication of dedication may be shown at common law if there is evidence, documentary, user or usually a combination of both from which it may be inferred that a landowner has dedicated a highway and that the public has accepted the dedication.

These three suggestions were initially proposed as bridleways by a local representative of the Byways & Bridleways Trust in 1996 and user and map evidence was forwarded in support. The TRF proposed the addition of the suggestions to the definitive map as Byways Open to All Traffic in 2003 and forwarded map and some user evidence in support. Schedule 14 applications for the addition of the routes as a Byways Open to All Traffic were subsequently made by the Trial Riders Fellowship in 2005 also including map and user evidence in support of their claims. In consideration of the schedule 14 claims the connected routes were proposed as byways open to all traffic as suggestions 3, 4 and 5 in the consultation map and schedule for the Sandford Definitive Map Review.

There has not been any other calling into question of the public's use of the two routes along the defined lanes (suggestions 3 and 4) and so the existence or otherwise of public rights of way is considered at common law. With regard to the cross field headland path, suggestion 5, the field gate at point D has been locked periodically in 2013. However, the user evidence recorded during the twenty year period immediately before this, is considered insufficient to satisfy the requirement under Section 31 of the Highways Act 1980 and the existence or otherwise of public rights of way will also be considered at common law.

The documentary map evidence records the existence of suggestion 3 as a defined lane since before 1839 (Tithe map) and of suggestions 4 and 5 as defined lanes since before 1809 (Cassini Old Series). Prior to the removal of the northern side hedge in the late 1960s (based on user evidence form information and OS map of 1971) of the section of lane from points C to D on suggestion 5, the maps record the continued existence of the lanes although their description goes from unmetalled roads in 1946 to parts being path/track in 1967. On the large scale maps parts of the lanes had their own compartment references.

On the Tithe Map 1839 the routes are tinted in a similar manner to the county roads of today and part of suggestion 3 at Yarmleigh (point B) and the south end of suggestion 4 at West Henstill (point F) are described as Road/Bye Road and state of cultivation as Road.

Although there is not a plan with the Surveyors of Highways records from 1810 1862 the road described as from Higher New Buildings to Pidsley Lane through Yarmley is considered to include the whole of suggestions 3 and 5 within its description and length. A further entry describing the road from Raymond's Henstill to Burrow Hill may also include the whole of suggestion 4 within its length. The inclusion of these roads in a list prepared by the surveyors of highways would indicate that the routes were used by the public at that time. The return of roads completed in 1837 recorded that over 13 miles of roads in the parish were repaired by private individuals.

The description of the section of Yarmleigh Lane signed for by the District Surveyor in the OS Name Book of 1903-04 corresponds to the whole length of suggestion 3. An entry for Henstill Cross is also signed for by the surveyor. The lanes referred to as suggestions 4 and 5 were not named on the large scale OS maps but an entry for Hawkins Pool near point D described as a hollow in parish road is signed for by Mr Pridham. This evidence is considered to indicate that suggestions 3 and 5 were considered public/parish roads at that time.

The information in the Finance Act 1910 field book entry relating to West Henstill is very detailed and refers to a Road Occupation Road 1 mile repairable ratione tenurae. The roads described as being a tenant's liability correspond to the south western end of suggestion 3, all of suggestion 4 and the now headland section of suggestion 5 from points C to D. The entry further describes and differentiates other roads across the hereditament as a parish road and private occupation road, with the upkeep of the latter also falling on the tenant. The allowance for public rights of way on the total valuation is 500, which appears to have been calculated on the basis of a reduction in the rental value of the holding of 20 per year ( 2,000 in today's money) in respect of the presence of the rights of way and the tenant's liability to maintain the road.

The plans that accompany the field books show the colouring that depicts three different holdings breaking across Suggestion 3 Yarmleigh Lane and suggestion 5 at point D. All of suggestion 4 was included within the hereditament.

The finance act plans and field book information support all three suggestions been considered to be roads used by the public as it is not usual to include details of a landowner's/tenant's liability for the upkeep of any lanes that would be just used as access to fields belonging to that holding. It is understood that the information on rights of way or other restrictions or easement that could affect the value was provided by the owner of the property concerned.

The lanes were not proposed to be recorded as public rights of way in the original parish survey in 1950 nor in subsequent reviews. As in the neighbouring parish of Morchard Bishop it appears that Sandford only proposed cross field footpaths for inclusion in the definitive map and no bridleways or rupps (roads used as public footpaths) were included. In 1946 the Parish Council at the request of the Crediton Rural District Council, prepared a list of public footpaths in use in the parish. For two of the paths included, these paths could only be accessed by using suggestion 3 and either suggestions 4 or 5. This could suggest that the lanes were already considered to be public as the footpaths were not described as starting/finishing on a county road.

Sandford Parish Council has been a member of the County Councils Parish Paths Partnership Scheme since 1993 and the co-ordinator has confirmed that he undertook works on suggestion 3 and possibly the other two. Although it was not permitted to claim labour costs for the works on the footpaths under the scheme, any tools and material used would have been purchased with the grant and the parish council minutes record that regular 'expenses' claims were submitted for works on footpaths in the parish. It would appear that public money has been spent on suggestion 3 at least.

Part of suggestions 3 and 5 and the whole of suggestion 4 are unregistered, although the adjacent land is registered. The headland part of suggestion 5 was registered to West Henstill Farm in 2000 at the request of Mr Tucker the landowner at that time. Often lanes that are considered to be public will be unregistered although if the lane is also a boundary to a holding, as in these routes, the owner may only claim, or deeds may only record, ownership to the field hedge and not the lane the other side.

In 2003, the then owner of West Henstill Farm, Mr Tucker, was willing to dedicate a bridleway across land in his ownership that equates to the headland section of suggestion 5 (points C to D) and land adjacent to suggestion 4. Although this was agreed in connection with the proposed diversion of Footpath No. 4, Sandford to permit development to occur; it is possible that Mr Tucker was already aware of the routes' use as public rights of way.

A reasonable number of user evidence forms were received in 1997, which remain valid, for all three routes to support the subsistence of the routes as bridleways. There is limited evidence of use by motorcycles. Recent user evidence received is in respect of use on foot only. The users confirm that their use (until the gate was locked periodically on suggestion 5 in 2013) was 'as of right', without force, secrecy or permission and that they believed the routes to be public. The user evidence is not sufficient (generally look for at least six individuals throughout the twenty year period preceding the date of calling into question) to support a claim under Section 31 of the Highways Act 1980 following the locked gate at point D in 2013 on suggestion 5.

The condition of the lane and the user evidence forms completed in 2012-2013 indicate that suggestion 5 may not have been used by horse riders in recent years.

In respect of suggestions 3 and 4 the landowners or adjacent landowners where the route is unregistered have indicated that they mostly consider the lanes to be bridleways or if not considered to be a public right of way have observed use by the public on foot and horseback. They would object to the routes becoming BOATS as they are unsuitable, would be a danger to other users and cause damage to the hedgerows.

With regard to suggestion 5 Mr Sanders at Endfield considered the way to be a BOAT and has been aware of use by walkers, riders and quad bikes on a fairly regular basis. Mrs Page at Shoplands, near point E, considers the route to be an unmarked footpath and had observed regular use by walkers and others from 1996 to 2004 but less regular use since then. As an adjacent landowner she had helped maintain the track.

In 1998 J Nott and Sons the then owner of West Henstill Farm considered the route of suggestion 5 to be a bridleway and had seen or been aware of horse riders rarely. Mr Tucker, the landowner in 2003, had agreed to the dedication of a public bridleway in connection with the diversion of Footpath No. 4, Sandford to permit development in the farmyard.

Mr Hutchings purchased West Henstill Farm in 2012 and does not consider suggestion 5 to be a public right of way and has not observed any use. The gate has recently been locked at point D and the gates tied at point C.

The evidence, particularly the Surveyors of Highways Records and Finance Act Field Book, considered and discussed above would support designation of the suggestions as BOATs. Evidence of vehicular use cannot be considered to support a vehicular public right of way post NERC. The introduction of the NERC Act in 2006 and confirmation from the current TRF representative, that none of the exceptions are considered to apply, means that the routes could only be recorded on the definitive map and statement as restricted byways. If the lanes are recorded as restricted byways, landowners and occupiers would retain a private right of access to use the routes in vehicles.

Although there is no one piece of evidence to provide conclusive evidence of dedication of the routes as public right of ways at common law, it is considered that the evidence supports the existence of public rights of way, namely restricted byways, along the three routes described as suggestions 3, 4 and 5. The implied dedication of the routes has occurred at some time in the past by the landowners at that time. The dedication has also been accepted by the public as shown through their use of the ways over many years.

The addition of the three suggestions as bridleways or restricted byways to the definitive map is supported by the Devon Green Lanes Group, Devon Group of Trail Riders Fellowship (who accept that the routes cannot be recorded as BOATs), Creedy Walkers and British Horse Society. Sandford Parish Council supports the addition of suggestions 3 and 4 as restricted byways but in respect of suggestion 5 advise no public access deemed necessary.

The current landowner and the parish council do not support the recording of a public right of way on the route of Suggestion 5, from Henstill Cross to Lower New Buildings. The landowner has suggested upgrading Footpath No.4, Sandford as an alternative. A Modification Order has to be made for the route that the evidence supports although the Draft Deregulation Bill currently proceeding through parliament has proposed that there will be an opportunity to make modifications to the route at the request of the landowner (the proposal is for a modification consent order). However, at present it is proposed that this could only apply in respect of routes based solely on historical evidence which would not the case with the evidence for suggestion 5.

A possible alternative option is already available under current legislation through the Highways Act 1980. If the upgrading of Footpath No. 4, Sandford to a bridleway was undertaken through a Section 25 Creation Agreement then an Extinguishment Order could be made for the route of Suggestion 5 on the grounds that this was no longer needed for public use, as an alternative exists. The Extinguishment Order would have to be advertised and if objected to is unlikely to be confirmed. Informal consultations would be undertaken on the proposal before making the Order and it is proposed that such consultations are completed before the Modification Order is made for suggestion 5.

16. Conclusion

With respect to suggestions 3, 4 and 5 it is considered that the documentary evidence when taken as a whole supports implied dedication of the routes as public rights of way many years ago. There is also sufficient evidence of acceptance by the public as indicated by the user evidence to show that a right of way, namely a restricted byway, on the basis of the documentary and user evidence, can be reasonably alleged to subsist at common law for the three suggestions.

It is therefore recommended that the Modification Orders be made to modify the Definitive Map and Statement to for the addition of Restricted Byways as shown on drawings number HCW/PROW/13/11A, Suggestion 3 and HCW/PROW/13/12A, Suggestions 4 and 5; but that the Modification Order for Suggestion 5 be not made immediately, pending further discussions, and informal consultations with interested parties as mentioned above.

Suggestion 8 Addition of and the upgrading of Footpath No. 5, Upton Hellions to a Byway Open to All Traffic

Schedule 14 Application for the addition of a BOAT and the upgrading of Footpath No. 5, Upton Hellions to a BOAT from the east end of the unsurfaced county road at Northlakes for 1330 metres eastwards to the county road at The Old Mill at Upton Hellions (GR SS 8374 0319 to SS 8390 0323) and the diversion of Footpath No 5 Upton Hellions at The Old Mill & Mill House, Upton Hellions & diversion of Footpath No. 25, Sandford, west of The Old Mill.

Recommendation: It is recommended that a Modification Order be made to modify the Definitive Map and Statement for the addition of a bridleway and upgrading part of Footpath No. 5, Upton Hellions to a bridleway from A - H B C D - E as shown on drawing number HCW/PROW/13/16a.

1. Background

In the County Council review of 1996, proposal 5 was for the variation of particulars of the Definitive Map and Statement of Footpath No. 5, Upton Hellions to confirm that part of Footpath No. 5 was also partly in Sandford Parish. Subsequently the Devon representative of the Byways & Bridleways Trust proposed that the public right of way extending from the end of the unclassified county road, across the parish boundary and into Upton Hellions parish is at least bridleway status. User, map and other documentary evidence was subsequently submitted in support of this proposal.

In December 2005 the TRF submitted a Schedule 14 Application to the County Council for the addition of the lane to the Definitive Map as a byway open to all traffic, supported by map and user evidence. This was one of a number of Schedule 14 applications made by local representatives of the Trial Riders Fellowship in 2005 prior to the NERC Act (Natural Environment & Rural Communities Act) that came into force in May 2006.

As with the previous suggestions, the application received for the addition of the lane as a BOAT, was not exempt from the NERC provisions as it was made after 20 January 2005 and was also not compliant with the regulations as notice of the application had not been served on the landowners. However, as an application had been received the proposal was included in the parish review as made and for the addition of a BOAT, as there are limited exemptions in which vehicle rights may be preserved.

The diversions of Footpath Nos. 25, Sandford and 5, Upton Hellions that were also included in the suggestion and shown on the plan can be dealt with by delegated powers and so have not been discussed within this report.

2. Description of the Route

The route is a hedged and defined lane throughout its length and starts at the end of the unclassified, unsurfaced county road, east of Northlake in the parish of Sandford (point A). The route crosses the river Creedy at the ford and proceeds northwards to the junction of Footpath No. 5, Upton Hellions and Footpath No. 25, Sandford. It continues northwards and then south eastwards along the defined lane that is recorded as Footpath No. 5, Upton Hellions, although this section of the lane is partly in Sandford Parish (the parish boundary lies 0.91 metres from the right hand hedge bank). The lane/path bears eastwards and then south eastwards, now wholly in Upton Hellions parish (from point B) to join the end of the unclassified county road south east of The Old Mill (point E).

The lane has a minimum width of 2.5 3 metres throughout and has a surface of gravel/stone across the ford and some stone with earth/grass along the remainder of the lane.

On the day of inspection there was evidence of use by horses. Photographs of the route along the lane from the ford at the western end are included in the backing papers.

3. Consultations

The following responses were received.

Sandford Parish Council replied that they felt this route should be kept as a footpath.

Upton Hellions Parish Meeting replied that the meeting was in favour of the path being designated as a bridleway, was unanimously opposed to the path becoming a BOAT and could see no merit in the path being designated a restricted byway open to horse drawn carts as there is no such present use.

Devon Green Lanes Group supports the proposed suggestion. Copies of evidence in support of this route and user evidence forms were sent in 1978 on behalf of the Byways and Bridleways Trust.

Mr R Drake responded on behalf of the Devon Group of The Trail Riders Fellowship. He advised that he had researched their records and found no evidence to conclude that the schedule 14 claim would be NERC exempt. They still feel that the route has enough evidence to be considered for adding to the definitive map and would support the county in any considered modification orders with the backing of the evidence previously submitted. In conclusion they/he support modifications as suggested for the route.

The Chair of Creedy Walkers, Simone Romain, advised that they would be perfectly happy for the suggestion to be recorded as a restricted byway or bridleway. The group use the route citied in suggestion 8 with some frequency.

The British Horse Society Devon representative advised that the suggestion is shown as excluded on the 1910 Finance Act Maps and therefore the BHS confirms support for the proposal.

4. Documentary Evidence

Ordnance Survey and Other Maps

The Ordnance Survey and other mapping do not provide evidence of the status of a route but can be evidence of its physical existence over a number of years.

Cassini Historical Maps 1809 - 1900

These are reproductions of the Ordnance Survey One-inch maps enlarged and rescaled to a scale of 1:50,000 (to match current OS Land Ranger maps) published in 2007. They reproduce the Old Series from 1809, the Revised New Series from 1899-1900 and the Popular Edition from 1919.

Old Series 1809

The map shows the route as a defined lane from Northlake across the river and mill leat to the mill. The route is shown in a similar way to the county roads it connects to.

Revised New Series 1899-1900

On this edition the route is just visible as a defined lane corresponding to an unmetalled road.

Popular Edition 1919

The route is shown as an uncoloured lane, an indifferent or bad minor road.

OS 1 inch to a mile maps of 1946, 1957-58 & 1967

On the 1946 edition the lane is shown as a white defined lane corresponding to road under 14' metalling - Bad and in the same manner as the two county roads the lane joins at either end. The ford and Mill are annotated. On the 1957-58 and 1967 editions the route is shown as a defined white lane which corresponds to 'Road under 14' of metalling, Untarred' and in the same manner as the two county roads the lane joins at either end. No reference is made to the ford or mill on the maps.

OS 1st Edition 25" to a mile 1880-1890

The route is depicted as a defined lane with mature hedgerow trees shown along both sides of the lane. The ford across the river and adjacent footbridge are shown. The route appears to have its own compartment number 1453 and area of 0.162 acres.

OS Post War Mapping 1:2 500 scale 1970

The lane is depicted as a defined double hedged lane with the ford and footbridge. It has its own compartment number 8525 and area of 0.11 acres.

Tithe Maps and Apportionments

Tithe maps were drawn up under statutory procedures laid down by the Tithe Commutation Act 1836 and subject to local publicity, which would be likely to have limited the possibility of errors. Roads were sometimes coloured and colouring can indicate carriageways or driftways. Public roads were not tithe able. Tithe maps do not offer confirmation of the precise nature of the public and/or private rights that existed over the routes shown.

Sandford Tithe Map 1839

On the Sandford Tithe Map the route is shown on the Sandford side, along the present day line and as a defined lane. The lane is not coloured or tinted and the section that is now the unclassified county road by Northlakes has the apportionment number 2050. The number was not included in the listing for Northlakes.

Upton Hellions Tithe Map 1840

On the Upton Hellions Tithe Map the section of lane from the ford to the Mill is colour washed brown in a similar manner to roads that are public today. The lane does not have its own apportionment number but the description for the field north of the route, apportionment number 8 under Hellions Barton, was described as Market Marsh and Lane and state of cultivation as pasture.

Finance Act Plans and Field Books 1910

The Finance 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. It was a criminal offence for any false statement to be knowingly made for the purpose of reducing tax liability. If a defined lane/road is not included within any hereditament there is a possibility that it was considered a public highway, as it had not been claimed as belonging to an adjoining landowners' holding, but there may be other reasons for its exclusion. If public rights of way were believed to cross their land, landowners could bring this to the attention of the valuers/surveyors and the hereditament (holding) could be given an allowance for the public right of way, which would then be deducted from the total value of the hereditament.

The section of lane included within the suggested addition and upgrading falls within hereditament number 394 Upton Hellions Mill. On the plan the colouring is clearly broken where the boundary crosses the lane east of point B, west of point G and west of point A. The excluded section of lane appears consistent with the section of lane not registered under current Land Registry records.

5. Parish Survey under National Parks & Access to the Countryside Act 1949

Sandford Parish Council survey of their public rights of way to be considered for inclusion on the Definitive map was undertaken in 1950. The survey form for Footpath No. 25, Sandford which sat wholly in the parish of Sandford, stated 'used by public for over 50 years, repaired in past by Parish Council, footbridge renewed in 1948. Most useful path, being a short cut between Upton Hellions and Sandford. In Constant use.' The Parish description of the path noted that the lane was very muddy and the field gate from Orchard waterlogged in winter.

The District Surveyor walked the route of Footpath No. 25 in 1957 and described the lane as an accommodation road. It was confirmed that the footpath continued in Upton Hellions as Footpath No. 5, Upton Hellions. The County Council noted 'DCC Surveyor says Accommodation Road but this from map appears improbable. Portion likely to be disputed (across the orchard, point G to B) but Parish Council has in past repaired footbridge'. The recommendation was for the path to be included in the draft map and the path was recorded as Footpath No. 25, Sandford on the Definitive Map.

Upton Hellions Parish Meeting undertook their survey in 1950 and the form for Footpath No. 5 was signed for by P W Vasey Chairman of the Parish Meeting. The path was described as in regular use and repaired by no one. The Parish description of 'From Church to Hellions Mill through Orchard to Foot Bridge' appeared to describe a route across the field (possibly along the route proposed as Footpath No. 25 in Sandford) rather than along the lane.

The statement for the path reads 'Starts from opposite Buckstone Cottage and proceeds west across two pasture fields, then along a Private Accommodation Road leading to Hellions Mills and to the footbridge, where it joins Path No, 25 in Sandford Parish'. This describes a route along the lane and on the map submitted by the parish, the line of Footpath No. 5 is shown along the lane but only to the parish boundary at point B and not continuing along the lane to the junction with the west end Footpath No. 25, Sandford or south end Footpath No. 4, Upton Hellions. On the draft definitive map the route was shown as continuing along the lane to the junction with Footpaths No 4 and 25 and as it appears that no representations were made to this, Footpath No. 5 has been included on the Definitive Map on this line.

6. Devon County Council Uncompleted Reviews of 1968, 1977 & 1996

In the 1968 review Sandford Parish Council and Upton Hellions Parish Meeting claimed no additional public rights of way. There appears to be no correspondence from either Parish in connection with the 1977 review.

In the 1996 Sandford Parish review, one of the suggestions proposed on the consultation map published by Devon County Council was for the variation of particulars of the Definitive Map and Statement to note that part of Footpath No. 5, Upton Hellions was also partly in Sandford parish. In response to the consultation the local representative of the Byways and Bridleway Trust proposed that the whole length of the lane from the end of the county road to Upton Hellions Mill should be considered as a bridleway or byway. The BBT subsequently forwarded some user and other documentary evidence in support.

In the 1996 Upton Hellions review the officer noted that Footpath No. 5 needed correction as shown as described as going to footbridge over Creedy.

In 2002 the Trail Riders Fellowship asked whether the route had been looked at as possible BOAT. A list of map evidence was subsequently received and a letter in support of the claim.

7. Vestry and Parish Meeting Minutes 1828 - 2008

The Sandford Vestry Meeting minutes from 1828 - 1900 and the Sandford Parish Council minutes from 1896 1975 and from 1993 2008 are held at the Devon Heritage Centre. The minutes are missing between 1975 and 1993.

At Sandford Parish Council meetings reference to the footbridge across the river between Northlakes and Upton Hellions Mill was raised nine times between August 1916 and April 1943. In August 1946 the footpath described as number 12. Hellions Barton to Northlake was included in the list of public footpaths in use in the parish that was sent to the Crediton Rural District Council.

In July 2002 under Correspondence - Mr Sharman explained that as the leat, which previously serviced Hellions Mill, was no longer functioning the surplus water was now draining away on to the green lane. The way to avoid it was to walk the footpath across the field rather than up the lane.

8. Aerial Photography

The 1946 aerial photography shows the suggestion/Footpath No. 25 as a defined double hedged lane with trimmed hedges where not obscured by the mature trees. By the 1999 and 2006 photography the trees have grown and the majority of the route is obscured except for the section south west of The Old Mill near point D.

9. Land Registry

A search at HM land Registry confirms that the part of the lane excluded from the adjoining hereditaments on the Finance Act 1910 plan (west of point G to point B) is excluded from the adjoining registered land ownerships.

10. User Evidence

A total of 24 user evidence forms were received in the 1990s, having been completed in 1993 to 1998. These recorded use of the route mostly on horseback from the mid 1950s to the late 1990s when the forms were completed. The extent of use varied from once or twice a year to 3-4 times a week by residents of Hellions Barton. Some users refer to the route being flooded on occasions and deep mud necessitating a diversion but all users considered the way to be public and that it had been for many years. Some users referred to overgrown vegetation and sometimes a gate but this was always unlocked, and believed to be there to prevent livestock straying from the adjoining fields where the hedges/fences were in poor condition.

All use is as 'of right' that is without force, secrecy or permission and although only one user has attached a map to their form the description of the route used as given by users is considered to relate to the route A - H - B - C - D - E as suggested.

Ms Keogh of Upton Hellions wrote and advised that she is a regular dog walker of this track. She comments that it is lovely to have walkers and horse riders using the route but to allow motor vehicles would ruin it for all existing users.

Mr Palmer of Upton Hellions advised and his wife and he use the footpath most days of the week and have their three dogs and sometimes grandchildren with them.

Mr & Mrs Shetler Jones of Upton Hellions wrote advised that they use the footpaths almost every day with their dogs. They objected to the proposed status as a BOAT, considering a bridleway the best designation.

Mr & Mrs Veale of Upton Hellions advise that they have resided in the parish for twenty five years and are a regular user of Footpath No. 5, Upton Hellions. They would be against the upgrading to a BOAT but would support the suggestion that Footpath No. 5, Upton Hellions be classified as a restricted byway and bridleway only.

In 2003 the TRF forwarded a letter from M Finning of Shobrooke who advised that when her father was employed at the mill he used a horse and cart on the lane and across the ford in the river. With the Schedule 14 application of 2005, the TRF forwarded seven user forms relating to use with a motor cycle or vehicle between 1973 and 2005. The frequency of use is mainly once or twice a year with Mr Padley advising various and Mr Smart 10 or so. A vehicle user refers to a bollard in the east end of the lane in 2005 and two others the No Motor Vehicle signs that appeared about the same time. Mr Sussex advised that they spoke to the landowner in the early 2000s and he did not attempt to stop them or say that should not have been using the route.

The user evidence forms confirm use by walkers, horse riders, some cyclists and occasional vehicle/motorcycle users as observed by the landowners.

11. Landowner Evidence

All the landowners/occupiers adjoining the lane were contacted and informed of the suggestion. Some of the landowners/occupiers were previously contacted in 1998 in connection with the proposal.

In 1998, Mr Caryer of Hellions Barton advised that they considered the way to be a grist road and had observed use by the public. Under further information he advised that a gate and stile was put up by the footpath officer because they felt that using by motorbikes might encroach up the lane. Mr Turner then complained that he had a right to use the lane with his tractors if necessary so the fence and gates were taken down.

Mr & Mrs Bell have owned The Mill House, by point F, since November 2006 and also own the field south of the lane between points G and C, the section of lane from point B to C and the lane and river bed from west of point G to point A. Mr Bell would be happy to have the path designated a bridleway open to walkers, horse riders and pedal cyclists but sees no advantage in having the path designated a restricted byway. He was strongly against designation as a road open to motorised vehicles.

During their occupation of the property they have regularly observed walkers, runners, horse riders and some cyclists. Four wheel drive vehicles or motorcycles have been seen on four to five occasions and tracks of such vehicles on other occasions. Vehicles have previously got stuck or stalled in the river and had to be towed out. He has never seen horse drawn vehicles on the path. Motorised vehicles would bring noise to a quiet area, damage the surface and banks of the path are at a risk of being swept downstream. If the path is maintained at a width and state suitable for a horse and cart, this would be a temptation to unlawful use by motorised vehicles.

Mr & Mrs Rodd purchased and subsequently converted The Old Mill, by point D, in 1993. Following scraping of the lane about 10 years ago the path was increasingly used by walkers, groups of walkers, dog walkers, runners, the odd cyclist and horse riders. The habitat is a haven for wildflowers such as garlic, periwinkles and orchids and birds nest along the lane. Mr Rodd cannot recall seeing a horse and cart on the road and is in favour of a bridleway option in preference to the restricted byway.

In 1998 Mr Rodd had advised that he considered the way to be a bridleway and had observed use by walkers and horse riders.

Mr Snow wrote to advise that he owned land from Northlake Cottage down to the river and was also a Sandford parish councillor. Natural England is interested in the hedges either side which have been estimated to be over 500 years old. He considered that if vehicles were allowed access to the footpath and bridleway, used by many walkers and riders, it would have a detrimental effect on the hedges and path. Mr Snow subsequently confirmed that he would support the restricted byway and bridleway access for the suggestion.

Mr & Mrs Jewell of Northlake in Sandford own land adjoining the unclassified county road in Sandford, west of point A. They have problems already with vehicles driving down the road, turning or winching around and going back to the surfaced road by Northlake. This creates noise, dislodges stones from the walls/hedges and damages the structure and integrity of their property. A bridleway/footpath is a far better idea.

12. Rebuttal Evidence

A number of local people either saw the consultation notices or heard about the BOAT proposal for the lane from friends, family or neighbours. This produced a number of emails and letters to the County Council against the recording of the lane as a BOAT and its use by motorised traffic apart from local farmers.

The comments received included:

Concern for damage to flora and fauna;

Safety for walkers and riders using the lane;

Spoiling the peach and quiet of the countryside;

Unsuitability of the lane and the river crossing for traffic;

Effect on the public's enjoyment of the route.

These views and concerns are not factors which can be taken into consideration when determining whether public rights exist under present legislation. Several responders also commented on their own use of the lane or use by others on foot or horseback.

Most of the people who wrote to or emailed the County Council were contacted and the circumstances explained about why the BOAT proposal had been made. Many of them either subsequently confirmed that they would be happy for the lane to be designated as a bridleway or restricted byway or proposed this status in their initial communication.

13. Discussion

A claim for a public right of way can arise through use by the public under section 31 of the Highways Act 1980, if twenty years use can be shown after the public's use of the route is called into question. If the Schedule 14 application is considered to have called into question the public's use of the route, the user evidence received is not sufficient in the required twenty year period to enable existence or otherwise of a right of way to be considered under Section 31 of the Highways Act 1980 in respect of the claim. A claim for a right of way may also exist at common law. Evidence of dedication by the landowners can be express or implied and an implication of dedication may be shown at common law if there is evidence, documentary, user or usually a combination of both from which it may be inferred that a landowner has dedicated a highway and that the public has accepted the dedication.

The proposed variation of Footpath No. 5, Upton Hellions to note that part of the path was actually in both parishes was proposed in the County Council's review in 1996. The local representative of the Byways & Bridleways Trust responded and proposed that the whole lane should be recorded as a bridleway and forwarded user evidence and maps in support. A Schedule 14 application for the addition of the route as a Byway Open to All Traffic was subsequently made by the Trial Riders Fellowship in 2005. The TRF also forwarded map and user evidence in support of their claim.

There has not been any other calling into question of the public's use of the lane and as the application made by the TRF in 2005 is not considered sufficient to do so, the existence or otherwise of a public right of way is considered at common law.

The map evidence indicates that the lane has been in existence for over two hundred years and Natural England has estimated the hedges on the lane between Northlake and the river to be over 500 years old. The lane would be a logical link between the two parishes and would presumably have been used by Sandford residents to access the mill, to take or collect corn/flour. Maps record the physical existence of a route but do not usually provide evidence of status.

The lane was tinted on the Upton Hellions Tithe map in a similar manner to the adjacent county roads of today and the colouring broke on the Finance Act plan indicating that it may have been considered public at that time. Since 1910 part of the lane and the ford/river bed was and currently is included in the registered title of The Mill House and part is unregistered.

Footpath No. 25, Sandford was proposed by the parish council for inclusion in the definitive map in 1950 and the parish council minutes make several references to the footbridge over river from 1916. Although on the parish submission map of 1950, Footpath No. 5, Upton Hellions was only drawn to point B at the east end of Footpath No. 25, Sandford, on the draft and conclusive definitive map the path has been continued along the lane to the junction with the west end of Footpath No. 25, Sandford and south end of Footpath No. 4, Upton Hellions.

The footpaths are considered to have been used by the public for many years and the user evidence submitted in 1997-8 records use by the public of the lane and part of Footpath No. 5, Upton Hellions as a bridleway from the 1950s. There is also some evidence of vehicular use that would not be exercising a private right.

The landowners confirm observing use by horse riders, cyclists and occasional vehicle but consider the route should be recorded as a bridleway only as if the lane was maintained in a suitable state for horse and cart these would make it also suitable for motorised vehicles.

The lane has existed in its present form for many years and would have undoubtedly been used by horse and carts and subsequently vehicles to access the mill. If the lane was not considered to be a public vehicular way, this use would have been permissive as it would have been in the mill owner/occupier's interest to encourage customers from the adjoining parish. In the parish submissions for the definitive map the lane was referred to an accommodation road and private accommodation road and part of the lane is included within the ownership of the Mill House. The recording of part of Footpath No. 5, Upton Hellions along the lane indicates its status as a private accommodation road as if it was considered to be a public accommodation road, public rights of way were usually not recorded along such roads.

This evidence, together with the absence of any other evidence, apart from possibly the Finance Act plan, indicates that the lane was not considered to be part of the public road network. It does seem contradictory that the lane on the Sandford side of the river is an unclassified county road but it may have been in the interest of Sandford parishioners that this lane was publically maintained to enable them to access the ford, mill and Upton Hellions.

The use by horse riders as of right over a number of years indicates that the landowner/s have at some time in the past accepted their use and an implied dedication of a bridleway is deemed to have occurred and has been accepted by the public. The evidence of vehicular use on its own is not considered sufficient to support the existence of a BOAT/Restricted Byway and following the NERC Act cannot be considered as evidence of use.

14. Conclusion

If the schedule 14 application is considered to have called into question the public's use of the route, the user evidence received is not sufficient in the required twenty year period to enable existence or otherwise of a right of way to be considered under section 31 of the Highways Act 1980. It is considered that the documentary evidence when taken as a whole is also insufficient to support implied dedication of the lane as a road; but that there is sufficient user evidence and acceptance by the public to show that a public bridleway, can reasonably be alleged to subsist at common law over part of Footpath No. 5, Upton Hellions.

It is therefore recommended that a Modification Order be made to modify the Definitive Map and Statement to for the addition of a bridleway between A and G and the upgrading of part of Footpath No. 5, Upton Hellions to a bridleway between G B C D E as shown on drawing number HCW/PROW/13/16a.