Writes Maureen Comber

I am advised by Mr David Corner from the National Audit Office to write to you over two issues concerning Hampshire County Council, namely:

• its adherence to the law
• and the costs generated by this failure not only to itself as a public body but to me personally and other local tax payers.

The issues are these:

1. Misleading information put about by Hampshire County Council.

Over the last forty years they have told the public that:

• The records of the 1910 Finance Act for Broxhead Common had been burnt in the blitz. I eventually discovered that they had not been and are to be found in the National Archives and Hampshire Records Office.
• That 80 acres of Broxhead Common were allowed to be fenced by order of the High Court. In fact that turned out not to be true. What they were referring to was a Consent Order in the Court of Appeal 1978.
• I obtained various copies of this Consent Order but it was only within the last twelve months that I discovered that the pages had not been mis-numbered as I had thought, but page 3 was in fact missing!
• The Schedule to the Consent Order was for Hampshire County Council (HCC) to support the application for the fencing to the Secretary of State if the “landowner” rented the other 100 acres to HCC for an SSSI and incidental use by the public for “air and exercise”. In addition, five acres of the common would be let to them for a sports ground for the village of Lindford.
• This is what subsequently happened and it has taken me all of these years to find out exactly what the situation should have been.
• Having searched in HCC Registration and Legal Filing Departments and even the Appeal Court itself and latterly an EIR request, and drawn a blank with regard to the missing page three of the Consent Order, it eventually turned up through a colleague who had made an FOI a couple of years previously.
• The page was important because it confirmed that the Appeal Court had dismissed the case out of the Court and had not looked at any evidence or made any judgment whatsoever. The Schedule was dependent on the “landowner” withdrawing his objection to the registration. This he had done and the effect was that the whole of the common CL147 became registered common land on 24th May 1978.
• Notwithstanding no application for the fencing has been made.??
• Even worse is the fact that HCC removed the 80 acres from the register. This is a criminal offence!
• They have subsequently renewed their lease of the 100 acres every twenty years although I believe they renewed it last time earlier than was necessary.
• No exchange land has been given for the five acres of common land taken for the sports field.
• Horse riders have been told that they do not have the right to ride on the common under the terms of the lease. That lease is completely ultra vires.
• So HCC have permitted fences to be erected obstructing all the little paths and tracks that the public had a right to access, without application to the Secretary of State and in defiance to the wishes of the Commoners and surrounding Parish Councils!
• They have recently put up signs telling horse riders to keep to the bridleways, such as they are.
• They have fought eight or nine Public Inquiries with regard to bridleway claims over the common which I have been forced to make in order to try and regularise the use of the common for horse riders in the face of the obstructing fences. Naturally the evidence they have provided has been misleading and inaccurate to say the least and led to the wrong decisions being made.
• The cost to me has been approximately £100,000 over the years in lawyers fees. So what of the cost to the public whose money has been misappropriated fighting against a volunteer whose only aim was to improve public access especially for horse riders to Broxhead Common?
• What of the rent paid for the 100 acres over the last thirty odd years which is in any case common land with a customary right of access?

I believe that this is something that the Audit Commission should interest itself in.

The failures of HCC to do its Duty of care to Broxhead Common with regard to the unauthorised fencing and then spend public funds renting the common and fighting for the landowner’s interests rather than those of the public who pay them, cannot be right. It is certainly not democratic.

They have not answered my letters concerning these points even though the LGO has requested them to do so. In fact they have sent me a letter to say that they “may have to implement their policy on ‘Unreasonably persistent and unreasonable complainant behaviour’ if I contact them before I have had a response. !!

This is not only unreasonable on their part it is entirely unacceptable.

Sadly the Commons Commissioners have been wound up, a fate which could, as I understand it, soon befall yourselves? However as no date has been announced I would therefore be grateful if you would look into this matter asap please.

As I write I have just received notice of a consultation on the future management of Broxhead Common from HCC which I enclose. Please note the only people with a legal interest in common land are the owners (if they exist) and the commoners. I have to wonder why the public are being consulted as a priority?

2. Cradle Lane is Byway Open to all Traffic (BOAT) which has suffered from a lack of maintenance over the last forty years

Hampshire County Council (HCC) decided to incorporate it into a project known as The Shipwrights Way which is a trail for non-motorised use.

Repairs to the lane were scheduled to be implemented on the back of this initiative but between 2008-12 under the RTRA 1984 they made nine temporary Traffic Regulation Orders to close the road to all traffic. However sec. 15 says that closure cannot be for more than six months or in the case where there is a utility reason such as the laying of BT cables etc, then the Secretary of State may agree to an extension not exceeding eighteen months at the most. The latter does not apply in this case.

Why this waste of public money? Having made the TRO’s on the basis of preventing all motorised traffic they then changed the Order in 2012 to allow the use by motor bikes.

They stated that they did not have enough evidence to ban motor cycles.??

I suggested to them that there was such evidence which they should look for considering it was they who had upgraded this bridleway to a Byway in 1987.

They refused to do so saying that the Definitive Map was definitive.

I reminded them that they have a Duty to amend the Definitive Map where it is found to be inaccurate. Still they would not help but told me I should put in a claim for a Definitive Map Modification Order if I thought this was the case, and adding that they have a six year waiting list for determining claims. Even I know that the statutory time limit is one year so the question is why are they allowed to ignore the Statute?

My research has confirmed that the advice from Defra to all responsible Authorities in 1996 says that wheel tracks are not evidence of vehicle rights and 20 years use before 1930 is required. Minutes from the 1987 decision to upgrade this path and many others to BOAT, confirm that the upgrade had been determined merely on the basis of wheel tracks.!

In addition, Highway Committee minutes for 1926 confirm that Cradle Lane was a bridleway and therefore there cannot be 20 years lawful use by motor vehicles before 1930.

Why, when there can be no possibility that there are rights for motorised vehicles on this lane and they have been informed that they made a mistake to upgrade it in 1987, are HCC continuing to make expensive and unnecessary decisions with regard to its use and the making of nine consecutive TRO’s? I rather doubt that any application to the Secretary of State for these TRO’s was actually made which would make them illegal in any case, but because they do not answer my letters I cannot confirm.

Naturally there is a cost involved because they have had two consultations, I do not know why one was not enough, plus advertising etc. as well as the ongoing cost of repairs incurred on the fragile clay surface by motor vehicles

When the latest Order was advertised in the local paper of 29th March this year it said objections should be made to the High Court by 18th May 2012. This seems to have avoided any objection period to the Council itself. I believe this was wrong information and deprived the public of objecting to the Order.

One must also consider the lack of proper maintenance even to bridleway standard over the last forty years which deprived the public of the pleasure of the primary use for walking, horse riding and cycling. That is not to say that it could not be used but it was unpleasant to use until 2006 when it became too dangerous for anyone to use having been trashed by motor vehicles.

One has to ask why, after designating the way as part of the Shipwrights Way, a trail for non-motorised use, they have gone to such lengths to include motor cycles which somewhat defeats the object and will no doubt give rise yet more maintenance costs than would otherwise be the case; that is to say if HCC can ever be persuaded to carry out their statutory duty in this regard in future bearing in mind the recent repairs have taken all of forty years to achieve.

All of these issues must be a cost on the public purse both from the inappropriate use of public funds and also to those of us who are trying to see that the law is adhered to. I sometimes wonder if Hampshire County Council has forgotten that their address is The Castle, Winchester rather than Westminster, when it comes to their adherence and interpretation of English law.

The Local Government Ombudsman, Parliamentary Ombudsman and the Planning Inspectorate all advise that these matters should be taken to the High Court but that begs the question as to why they are there? Surely it is to address these sorts of problems? It is common knowledge that ordinary people do not have the means to go to the High Court for every discrepancy local Councils make. So where is the value in having these organisations if they do not perform their duty to the public by investigating the issues complained of? Their impartiality is definitely in question.

I would be most grateful if you could look into these matters please.

Enc. Copy of notice from the Bordon Herald re Cradle Lane

Broxhead consultation
Letter to HCC CEO and compliance officer Judith Downing (no reply received)
Letter to Judith Downing Compliance Officer re excessive number of TRO’s etc. (no reply received).