Hampshire County Council Item 6

Regulatory Committee

10 April 2002

Claim for the addition to the Definitive Map of a footpath between Oaklands Way and North Road in the Parish of Hythe & Dibden

Report of the Director of Arts, Countryside & Community

Contact: Colin Piper Ext. 6043

WILDLIFE AND COUNTRYSIDE ACT 1981

53. Duty to keep definitive map and statement under continuous review

(2) As regards every definitive map and statement, the surveying authority shall -

(b) .... keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence.... of any of [the events specified in sub-section (3)] by order make such modifications to the map and statement as appear to them to be requisite in consequence of that event.

(3) The events referred to in sub-section (2) are as follows -

(b) the expiration... of any period such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path;

(c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows -

(i) that a right of way which is not shown on the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to which this Part applies;

(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; or

(iii) that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification.

HIGHWAYS ACT 1980

31. Dedication of way as highway presumed after public use of 20 years

(1) Where a way over 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 been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.

(2) The period of 20 years.... is to be calculated retrospectively from the date when the right of the public to use the way is brought into question....

Presumed Dedication at Common Law

Use of a way by the public without secrecy, force or permission of the landowner may give rise to an inference that the landowner intended to dedicate that way as a highway appropriate to that use, unless there is sufficient evidence to the contrary. Unlike dedication under S.31 Highways Act 1980, there is no automatic presumption of dedication after 20 years of public use, and the burden of proving that the inference arises lies on the claimant. There is no minimum period of use, and the amount of user which is sufficient to imply the intention to dedicate will vary according to the particular circumstances of the case. Any inference rests on the assumption that the landowner knew of and acquiesced in public use.

1. Summary

1.1 The parish council applied to have this route recorded as a public right of way in 1997, shortly after a resident, whose property adjoined the track, threatened to construct a wall across it. Since that date, a housing developer, who is also the owner of the track, has constructed a 3.0 metre wide tarmac path and entered into an agreement with the New Forest District Council to have the route adopted as a cycleway. There is strong evidence that the public has acquired a right of way on foot through the criteria set out in Section 31 of the Highways Act 1980, as well as a common law dedication. The application is therefore recommended for acceptance.

2. Claimant:

Hythe & Dibden Parish Council

25 St. John's Street

Hythe

Hampshire

SO45 6BZ

3. Landowner:

Persimmon PLC

Persimmon House

Brooklands Business Park

Weybridge

Surrey

KT13 0YP

4. Background to the claim

4.1 This claim was initiated by the Parish Council amid fears that a well used track was about to be obstructed by an adjoining resident. The person in question claimed to have suffered from acts of vandalism directed at his property and threatened to block of the route with a brick wall. He also claimed ownership of the track and that this gave him the right to maintain the route and put up structures on it.

4.2 A land registry search revealed that the developer of an adjoining housing estate owned the entire track. As part of a planning agreement with New Forest District Council, the company had consented to build a tarmac path for the use of pedestrians and cyclists and to have that adopted as a publicly maintainable highway. This path was completed in 2001. The track is particularly well used by children going to and from the nearby Secondary School, as well as residents from the new housing estates to the north west of the track.

4.3 The County Council entered into correspondence with the developer and the District Council to point out that the planning agreement by itself would not enable the County Council to record the path as a public right of way. The landowner was invited to dedicate bridleway rights over the entire route so that use by all types of users would be recognised and protected. The developer declined to enter into a dedication agreement with the County Council believing that the adoption of the cycle track was sufficient.

5. Description of the route

5.1 The path leaves Oaklands Way, at a point 30 metres south of its junction with Challenger Way, and runs west south west for about 70 metres to connect with a public road known as Cleveland Drive. It then continues from the other side of Cleveland Drive and runs south westwards for approximately 120 metres to meet the end of North Road, close to the entrance to Noadswood School.

5.2 The path consists of a 3.0 metre wide tarmac strip running down the middle of a wider lane enclosed by hedges and banks about 5 to 6 metres apart. Where the path meets the public road, at four locations, there are bollards to prevent vehicular access and standard metal signs informing the public that it is a footpath and cycleway. Street lamps light the whole route.

6. Documentary evidence

6.1 1907 Ordnance Survey 25 inch to 1 mile map

At this date, the area of land to the north west of Noadswood School mostly consists of woodland, within which is a large house called "Purlieu House". The cul-de-sac part of North Road is shown as an enclosed track but it does not continue into the woodland. Instead there is a solid line across the end and it is annotated "South Gate" which might apply to a proper gate or the dwelling house situated at the end of the lane. The south eastern half of the claimed path therefore, did not exist at this date. Further on into the woodland, closer to Purlieu House, the north western half of the claimed path is shown as part of a much longer woodland path. There is no indication on the map that this part of the claimed route is public.

6.2 1931 Ordnance Survey 25 inch to 1 mile map

By this date a track had been constructed from the end of North Road leading to "Purlieu House". The track follows the alignment of the claimed path and is enclosed for much of its length. The track is about 5 to 6 metres wide. The end of North Road is still defined by a solid line with a building alongside and it is still annotated "South Gate". This would indicate that the track was probably a private access road for the residents of Purlieu House.

6.3 1965 Ordnance Survey 1/2500 map

This map shows that Noadswood Secondary School had, by 1965, been built on land to the north east of North Road and vehicular access to it is from the end of the cul-de-sac. A solid line no longer marks the end of the road although there is still an adjoining building annotated "South Lodge". The road or track continues as before to "Purlieu House" and this time the extension is named as "North Road". There are at least two other properties within the woodland plus the "New Forest Caravan Park" close to the main house. The access road would seem to serve all of these properties and also continues to the north west to eventually connect with Claypits Lane. There are no physical obstructions along the claimed route and therefore it is feasible that it was being used by the public, on foot.

6.4 1983 Agreement between New Forest DC and Frederick Powell & Son

Under paragraph 8 of this agreement, made under the Town & Country Planning Act 1971, the developers, Frederick Powell & Son, entered into a covenant with the District Council for the following:

"As and when directed by the Highway Authority so to do to retain the access to the said land from the existing road known as North Road as an access for use by pedestrians and bicycles only from the position indicated on the attached Plan A denoted by the bollard."

On the accompanying plan, both parts of the claimed route are shown and annotated "Public Footpath" and "Track to be made good for adoption by Dibden Parish Council". The bollard referred to above is positioned at the end of the publicly maintainable highway known as North Road. However, the bollard symbol and annotation has been deleted in ink and re-positioned about 30 metres to the north west. It is believed that the plan was amended in this way to ensure that the property known as "Autumn Lodge" retained private vehicular access from North Road. The agreement also states that "...the covenants shall be...binding on and enforceable against the successors in title of the Developers...".

6.5 1991 Letter from Hythe & Dibden Parish Council to Area Surveyor

"I have recently been in contact with Ideal Homes with regard to the gravel track between North Road and Cleveland Drive. They have now indicated their willingness to carry out works to the track and have asked whether the Parish Council would accept responsibility for it when the work has been completed to a satisfactory standard. This is not a responsibility which the Parish Council would normally accept, and I would be glad if you would let me know whether the County Council would be willing to do so."

6.6 1992 Letter from New Forest District Council to Area Surveyor

"The gravel track is not part of the proposed highway covered by the Section 38 Road making Agreement and therefore, the choice to adopt it or not is ours. I have no objection in principle, but wish to make the following comments:

1. I envisage that street lighting will be required.

2. Appropriate physical barriers are likely to be required to prevent motor vehicles from using the track as a possible "rat run". These barriers will also need to prevent cyclists emerging at speed into the paths of vehicles using Cleveland Drive and/or North Road.

3. The design and specification of the improvements to the track must be acceptable to yourself."

6.7 1993 Letter from Area Surveyor to Headteacher of Noadswood School

"Thank you for your letter...in which you bring my attention to the condition of the private track at the end of North Road. You may already have noticed that the pot holes you refer to have been filled in. This work was carried out by New Forest District Council but has already raised comment from residents of Cleveland Drive at the other end of the track because of increased cyclist and vehicle speeds. The track is in private ownership although there are public footpath rights along it. The planning permission for the Broseley residential estate required the track to be closed for vehicular use, retaining it as a footpath only. However, one of the residents who has a right of vehicular access over the track was not prepared to give up this right and closure of the track has not yet been possible. I understand that ownership of the track is now with Ideal Homes and they may be able to advise on any current attempts to close the track to vehicular traffic."

7. User evidence

7.1 The County Council received 80 user evidence forms completed by local residents. For a visual representation of use please see the chart attached at the back of this report. The earliest claimed use is in 1950 with three other people starting in that decade. The user evidence increases through the decades until 1997 by which time 77 people are using the path. The use is mainly by pedestrians who also used it on a bicycle. Four people claimed use on horseback. There is no claimed vehicular use other than by those gaining access to adjoining properties.

7.2 People have used the path for a variety of reasons. In the early days the path was primarily used for recreational walks but as the area developed it took on a more functional purpose. In particular, it enabled children with or without their parents to get to and from Noadswood Secondary School in North Road and Orchard Junior and Infant Schools in Water Lane. Another main destination has been the Applemore Recreation Centre and College to the west of the path. The route has also been used by people walking to Dibden Purlieu village centre, to visit the shops, post office and church.

7.3 Not one of the users recalls being stopped or challenged whilst using the path or the existence of any barrier that prevented access by walkers and cyclists. Several do mention the erection of bollards in more recent years and notices which said either "No through road for vehicles - access for pedestrians and cyclists only" or a variation on that wording. Canon Miles was born in 1912 and is the oldest person to complete a form. In reply to the question Why do you regard this way as public? He has written: "Has been used by the public since c1950. Owners of Purlieu House never objected. Originally part of drive way linking North Road to Claypits Lane."

7.4 A census of people using the path was conducted by the author of this report on Thursday 11^th May 2000. The census was timed to coincide with children leaving the nearby secondary school and was taken at the point where the claimed path crosses Cleveland Drive. In a half-hour period between 15.10 and 15.40 the author counted 159 walkers and 24 cyclists using all or part of the path. Not all of the users were schoolchildren although they did form the majority. The use of the path by the public is so heavy and obvious that it is considered unnecessary to conduct interviews of those who completed user evidence forms.

8. The landowner

8.1 In a letter dated 22 August 2001 the Company Solicitor for Persimmon Homes wrote:

"...having referred the matter to the Company's South Coast Office in Fareham, I understand that the Company's Technical Manager, and the Engineer, will be pursuing the adoption of the footpath."

9. Consultations with other bodies

9.1 New Forest District Council

No objection

9.2 Hythe & Dibden Parish Council

No objection

9.3 Councillor B Dash - local member

No reply

9.4 The Ramblers Association

Support the application

9.5 Open Spaces Society

No reply

9.6 Noadswood Secondary School

The Headteacher has written to say:

"I can confirm that ever since the school opened in1960, the track you mention has been used by pedestrians and cyclists. These are often pupils or parents of pupils in the school but by no means exclusively."

9.7 Mr J Burgess - adjoining landowner

No reply

9.8 County Surveyor

No objection

9.9 County Planning Officer

No objection

10. Analysis of the evidence

10.1 The Ordnance Survey maps demonstrate that the claimed path started life as an access track leading to Purlieu House. This track was built sometime between 1908 and 1931 and physically changed little until 2001 when a tarmac path was built down the middle. Use of the original track was controlled by a gate and lodge at the end of North Road and it is unlikely that the public used this route whilst the house and woodland was in the occupation of a single landowner.

10.2 At some point after the war, the Purlieu House Estate was broken up and the gate at the end of North Road was removed. This allowed the public to walk along the track and continue to the north west to connect with Claypits Lane. Recorded use of the path by the public starts in 1950 and grows as more dwellings were built in the locality. The opening of Noadswood Secondary School in 1960 created a need for the public to use the path. Public use has grown to such an extent that it has now become a vital link in the network of paths that serve the large residential area constructed between Nash Road and Claypits Lane. It is especially important as a means of communication between the schools and houses.

10.3 There is no evidence that the public has ever been stopped from using this path. There has been public use for 50 years and heavy use for 20 years. The public's right to use the path was brought into question for the first time in 1997 when an adjoining landowner threatened to construct a wall across the path. This led the parish council to collect evidence of use from the public. Section 31 of the Highways Act 1980 requires the highway authority to consider evidence of use within the period of 20 years leading up to the bringing into question, that is 1977 to 1997. 22 people claim use of the track for the whole 20-year period.

10.4 The importance of the route was recognised by the District Council as early as 1983 and they endeavoured to have the path made up and adopted by the various developers of houses in the vicinity. The original agreement with Powell & Sons provide strong evidence of an intention on the part of the then landowner to dedicate a public right of way. It is believed that the route was not physically created at that time because the land changed hands on several occasions. Nonetheless, Persimmon Homes who eventually purchased the land were bound by the agreement of 1983 and have completed their obligations by constructing a 3.0 metre wide tarmac path down the middle of the old lane with standard traffic signs, bollards and street lights.

10.5 There is no provision to record a cycle track on the Definitive Map of public rights of way. It is considered appropriate that this route should be recorded as a public footpath only, because there is insufficient evidence of use by horse riders to justify the making of an Order for bridleway status. Although in the eyes of the law, a bicycle is a vehicle and therefore its use could lead to the acquisition of Byway status, there is evidence within the 20-year period of 1977 to 1997 that notices were displayed on the track prohibiting vehicular access. It is considered that this provides evidence of an intention on the part of the landowner not to dedicate public vehicular rights and therefore it is not appropriate that this path should be recorded as a Byway Open to All Traffic.

11. Conclusions

11.1 Use of the path was brought into question in 1997 by the threat of an obstruction, closely followed by a formal application to record it as a public way.

11.2 In the 20-year period from 1977 to 1997 there was sufficient use of the path for it to be considered by the public at large.

11.3 There is no evidence in the period from 1977 to 1997 that the landowner had no intention to dedicate public footpath rights.

11.4 The public has acquired a right of way on foot over the entire width of the old track through the criteria set out under Section 31 of the Highways Act 1980.

11.5 There is insufficient evidence of use by people on horse back for the acquisition of public bridleway rights.

11.6 The public has also acquired a right of way through a common law dedication post 1983 when the then owner of the track entered into an agreement to provide a footpath and cycleway and the public continued their use of the track thereafter.

RECOMMENDATIONS

That an Order be made for the paths from Oaklands Way to Cleveland Drive and from Cleveland Drive to North Road, as shown on the attached map, to be recorded as public footpaths having a width of 5.0 metres.

Section 100D - Local Government Act 1972 - background papers

The following documents disclose facts or matters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of this report.

NB The list excludes (1) published works and (2) documents which disclose exempt or confidential information as defined in the Act.

File CR629 - Rights of Way Office, Mottisfont Court, Winchester