The Case for Hampshire County Council – PART 164

In 1974 (nearly two hundred years after 1787), the Chief Commons Commissioner reasoned as follows.

Rights on the common west of the B3004 were accepted by the landowner concerned (the MOD) and they duly became final and conclusive. The owner of the land to the east of that road made no such concession.  After a complicated examination of the records, the CCC could show that at least two of the claims originated on the east side by devolution of title rather than prescription.  In fact, the CCC did not accept that any rights had been acquired by prescription or lost modern grand – ie by modern user. 

This evidence is enormously significant for the purposes of this Inquiry.  It

demonstrates that the CCC’s view of the user evidence in 1974 was that it was of public user of the common rather than of the more restricted user by a defined class of commoners with properly registrable rights. Such user was too general in nature to create rights by prescription for particular commoners; but, so long as confined to specific alignments, it is precisely the kind of evidence required to establish a claim to a public right of way.

As for the length providing access from the North to the rest of the common, there can be no doubt that the “use by the general body of inhabitants” over the common generally acknowledged by the CCC in 1974 will have taken place over this specific narrow alignment.

The applicant specifically submits that, under common law (and even without relying on section 31 of the 1980 Act), the body of map evidence combined with the evidence from the decision of the CCC in 1974 is sufficient to establish the public status of the section of the route E – B.

The map evidence overall suggests a through route of some kind across the common to Lindford. Additionally, the evidence from the Finance Act map and supporting documents, and that since the OS County Series 25 inch 1909, a track or fence line has been clearly present along both of the claimed stretches, B – A and B – D. These sections of the claim are shown continuously, for example on OS Maps from 1939 and 1971. B – A is now clearly shown as a track.

Next time: the user evidence.

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