Hampshire County Council Item 5

Regulatory Committee

27^th November 2002

Application for the upgrading of Headley Footpath 48 to Bridleway

Application for the deletion of part of Kingsley Footpath 23

Report of the Director of Recreation and Heritage

Contact: Sylvia Seeliger, Ext. 6349

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 keep the map and statement under continuous review and as soon as reasonable 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 the occurrence of that event

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

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

(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.....

(iii) That there is no public right of way over land shown in the map and statement as a highway of any description....

HIGHWAYS ACT 1980

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

Where a way over any land, other than a way of such 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 deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.

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

This report concerns two applications. The first is an application for the upgrading of Footpath 48 in Headley, marked A-B-C on the map annexed, from the road C102 to a bridge over the River Slea at the parish boundary between Headley and Kingsley, to bridleway. The second is an application to delete part of Footpath 23 in Kingsley, running from south of Grooms Farm, through the farmyard to Mowlands Farm, at the parish boundary between Kingsley and Binsted, marked C-D-E on the map.

The applications are recommended for refusal.

2. The Route

Headley Footpath 48 (A to C) is continued in the parish of Kingsley as Footpath 23 (C to E), and this connects with Footpath 52 (E to F) in Binsted, the next parish, to form a single continuous route. The Officers consider that Kingsley Footpath 23 and Binsted 52 should also be investigated from the point of view of upgrading to bridleway, in the light of the application to upgrade Headley Footpath 48, as the three parts form a longer route from the C102 to A325. The three paths are described separately below.

2.1 Headley Footpath 48 is 599 metres long and is marked A-B-C on the map. It starts at the road C102, and runs, unenclosed, in a north-westerly direction across a field, utilising two stiles, for 91 metres, where it meets the metalled route that is the private drive to Trottsford Farm, marked G-B on the plan. Where Headley Footpath 48 meets the drive is an open gate, by the side of which is a sign stating `Public Footpath Only. No Horses or Unauthorised Vehicles'. The claimed route has a concrete surface where it runs past Trottsford Farm. Once past the farmyard, the track has an earth surface, with hedges on both sides, and there is a gate 304 metres from the start. The gate has a gap on one side, for pedestrians, and it has a hunting handle. The sign on it reads `Please close the gate'. The track continues at the same width between two lines of trees, after which it opens out, with woodland on the west side only, before reaching the parish boundary at the River Slea. The bridge over the River Slea is built substantially, from stone, with two arches, and is 3.3 metres wide. There are gates on either side. The most southerly of the gates has a sign on it reading `Keep Shut'.

2.2 The route continues as Kingsley Footpath 23, which is 641 metres long, marked C-E on the map. It continues from the bridge as a wide grassy track, with a gate 51 metres north of the bridge. Before reaching a metalled road, the track runs between two hedges, where it is a little narrower. North of the metalled road, the track has an earth surface for 123 metres. As it passes through the yard of Grooms Farm, via two open field gates, its surface changes to tarmac and the surface is potholed in places. It then runs past houses, with a fence to the west, then between hedges to the parish boundary with Binsted, at Mowlands Farm.

2.3 Binsted Footpath 52 (marked E-F), is metalled, though the surface is deteriorating, with grass verges and with hedges that contain mature trees on the east. North of Mowlands Farm, the track is about 6 metres wide. It runs straight for 289 metres, emerging at an angle on the road A325, which was formerly the Farnham to Petersfield Turnpike Road. The total length of the three paths is 1,519 metres.

2.4 The description of Footpath 48 in Headley in the present Definitive Statement is as follows:

`(Formally [sic] part of Footpath No. 3) From Road C 102 to Parish Boundary

From road C 102, through gap in wire fence and along earth path to Trottsford Farm, then northwards along farm lane and through field gate, to stone bridge at the Parish Boundary.'

Kingsley Footpath 23 is described thus:

`From Parish Boundary at Mowlands to Parish Boundary south of Grooms Farm

From Mowlands Farm southwards along metalled farm road enclosed 14 ft. wide between hedges through two field gates at Grooms Farm then along earth and cinder track approx. 12 ft. wide, enclosed between hedges to junction with No. 25, then along grass track to cattlebridge.'

Binsted Footpath 52 is described in the following way:

`From Road A.325 near Frithend House to Parish Boundary

From A.325 south eastwards along metalled road enclosed approximately 12 ft. wide between hedges to the Parish boundary at Mowlands.'

3. The Applicant and the Applicant's case

3.1 The application to upgrade Headley Footpath 48 was made on 7^th February, 1996, by Mrs. Comber on behalf of the Three Counties Bridleways Group. It refers to three footpaths to be upgraded to bridleway, namely Footpaths 3, 48 and 54 This is the last part of the three aspects of this application to be considered, the other two being applications to upgrade Headley Footpath 3 and Headley Footpath 54. The applications to upgrade Footpaths 3 and 54 have already been dealt with; Footpath 54 became Bridleway 54 by means of a Creation Order, in recognition of a proven need rather than on historical evidence. The application to upgrade Headley Footpath 3 was turned down by the Rights of Way Panel and the Secretary of State, on appeal. Thus, the only part of the application still outstanding is that relating to the upgrading of Footpath 48.

3.2.1 There are a number of aspects to Mrs. Comber's claim. The first relates to the way that the route is shown on the present Definitive Map. Prior to 1964, Headley Footpath 48 was part of a longer footpath known as Headley Footpath 3. When the 1964 Definitive Map was produced, Headley Parish Council applied to have the path upgraded to bridleway. Mrs. Comber draws attention to the original Arbitrator's recommendation on 1^st March 1965 that Footpath 3 (and other paths) be upgraded to bridleways. There was no objection to the upgrading of Footpath 3, but an objection to the upgrading of one of the other paths led to another hearing in November of that year, during which interval path numbers were altered. Mrs. Comber states that `there is no written evidence that the correct procedure was followed to enable these changes'. In her view, the notifications of changes to the public right of way network in the Parish of Headley in the Hampshire Telegraph of August 1965 `IN NO WAY REFLECT the recommendation of the 1^st March '65 hearing. Even if the changes were properly conducted it is doubtful if it is legitimate to change path numbers which are the subject of an Inquiry, between hearings'. Mrs. Comber contends that mistakes were made with the numbering of the bridleways. It is her view that Headley Footpath 48, being originally part of Headley Footpath 3, should now be upgraded to bridleway, in accordance with the Arbitrator's recommendation. Mrs. Comber has supplied a number of copy letters and other documents, mostly dating from the 1960s, concerning the Parish Council's claim to upgrade the footpaths over Broxhead Common, and these are discussed further at 6.25.1 and 6.25.2.

3.2.2 Mrs. Comber has submitted a number of documents with this claim which are intended to show the history of the route. These are discussed in section 6 of this report.

3.3 The application to delete part of Kingsley Footpath 23 was made in 2000, signed by Mrs. M. Comber, of Grooms Farm, Frithend on behalf of herself and Mr. D. Comber. Mrs. Comber cites problems with security in the farmyard, break-ins and vandalism, and arguments over dogs as reasons why she wished to have the path extinguished. These are not reasons that can be taken into account in a Definitive Map Modification Order. The path had already been the subject of a diversion order, which had been unsuccessful. She also states `Some time during last year we were researching the Binsted Enclosure Awards...we found an entry relating to the path in question. It clearly states that on Map A, GP to GA, which is Grooms Farm, the path is awarded a width of 6' footpath for the use of the landowner only. The owner at the time was Lord Sherborne. We are therefore able to say that the public have enjoyed for a considerable time a right which was not theirs to enjoy. We would draw your attention to a recent case, Trevelyan v Sec. Of State for the Environment in which it is established that the bare fact of the original inclusion in the Definitive Map is not powerful evidence of the right's existence'. She therefore asks that the public footpath rights on this part of Kingsley Footpath 23 be extinguished. This is discussed in detail at 6.11.

4. The Landowners

The landowners affected by these claims are Professor E. Arnott of Headley and Mr. and Mrs. D. Comber, of Frithend. Other persons affected who live in properties adjoining the route are Mrs. S. Harvey, Mr. D. Graham, Mr. A.J. Hicks, Dr. and Mrs. M.F. Hennelly, Mr. and Mrs. Button, Mr. R. Kirby, all of Frithend, and Mr. A. Jeffree of Headley.

5. Consultation

The following persons and bodies have been consulted about the claims, namely, Councillor W.J. Filer, the local member, East Hampshire District Council, Binsted Parish Council, Headley Parish Council, Kingsley Parish Council, the British Driving Society, the British Horse Society, the Trail Riders Fellowship, LARA, Byway and Bridleway Trust, the Open Spaces Society, the Ramblers' Association, the Council for the Protection of Rural England, Hampshire County Council County Surveyor, County Planning Officer and the Rights of Way Area Officer (North-East) and all the affected landowners. At the time of writing, the following responses have been received:

5.1 The County Planning Officer has no objection to the applications.

5.2 The Trail Riders Fellowship representative believes that the through route provided by the three paths is `what was the old road from Frith End to Sleaford and beyond'. He comments that the present day A325 is a more modern route, and that the `ancient stone built bridge over the Slea...would indicate that it was a general purpose highway of some importance and not merely a bridleway or footpath. I believe that the proper status for this route should therefore be Byway'.

5.3 The Ramblers' Association `resists the deletion of Kingsley FP23 and the upgrading of the 2 footpaths to bridleways'. Their representative expressed some concerns about the proposal, particularly as the three paths together form `a complete route for walkers', which would leave the north and south paths isolated should Kingsley Footpath 23 be deleted. They also point out that Binsted Footpath 52 emerges on to a road where the traffic generally travels at above the speed limit, which would be extremely dangerous for horses. The stiles on the southern part of Headley Footpath 48 would make equestrian use very difficult, and the surface would be cut up by hooves in wet weather.

5.4 Mr. David Graham, of Frithend, wishes to object in the `strongest possible terms'. He states that he uses Kingsley Footpath 23 on a regular basis, as do many other people, both his neighbours and the public at large. His view is that the claim for bridleway is illogical because it is in the interest of the claimant only, and he wishes that the status of the route should not be altered in any way.

5.5 Mr. Hicks, of Frithend, expresses himself to be `very against' the upgrading of the route to bridleway, and forsees that the next move could be to turn it into a byway open to all traffic. He and the other residents are opposed to this, as they have to maintain the track at their own expense. There is also a question of the conflict between horses and the traffic that uses the lane on a constant basis. Mr. Hicks can see no basis for the deletion of Kingsley Footpath 23, as he has known it as a footpath for the thirty-six years he has lived there, and it is part of a well-walked route between Headley and Binsted.

5.6 Binsted Parish Council believes that all the three footpaths under consideration should be maintained as a continuous route. As far as the deletion of Kingsley Footpath 23 is concerned, the Parish Council do not consider that it is part of a private driveway and `sees no point in the making a break in an established route that currently runs from Picketts Hill to the A325 at Frith End'.

5.7 Dr and Mrs. Hennelly of Frithend, wish to register their `strong objection to any part of Kingsley Footpath 23 being deleted, as we frequently use this footpath for walks, as do many other people who live in this area'. They also strongly object to the upgrading of the three footpaths to bridleway, which would be `totally unacceptable as it would mean horses using Grooms Farm Lane required by all local residents for access to their homes. Horses would be unacceptable for nuisance, safety and hygiene reasons'.

5.8 Headley Parish Council consulted Robin Smeeton, the footpath walker for their area, for his views. He considered that `these three footpaths should be considered as one, as they make a natural path that can be used for a round walk by using other paths' and he felt that `it would be very bad if Hampshire County Council deleted Kingsley 23, as this would make Headley footpath 48 almost useless'. In his opinion, both the Kingsley and Binsted footpaths are suitable as bridleways, but the Headley footpath would need a gate in place of the stile at Picketts Hill at the southern end, where the present arrangements would make emerging on horseback dangerous. He felt that this end of the route was less suitable as a bridleway `as it descends in the old quarry and rises again to meet the drive of Trottsford Farm', and he foresaw objections by owners of the farm, where there is a notice on the private drive of the farm indicating `no horses'. Headley Parish Council had also spoken to a long term resident of the area, who informed them that all the paths in question had been walked, `and even ridden' for anything up to 30 years. Local opinion is that Kingsley Footpath 23 should not be deleted, and the Parish Council agreed with this. They also were of the opinion that all three paths should be considered together `as one footpath or bridleway'. The Council `objected most strongly' to the proposal for deletion, which would `literally make footpaths Nos 45 and 52 into cul-de-sacs'.

5.9 Mr. Russell Kirby, also of Frithend, has no objection to the upgrading of the route to a bridleway. Kingsley Footpath 23 and Binsted 52 form the access to his property.

5.10 Kingsley Parish Council feels itself unable to `supply any evidence of use of any of these routes as Bridleways but would like to express support for the creation of a single contiguous Bridleway running between Picketts Hill and Frith End along the route shown'. The Parish Council feels that this would help walkers, riders and cyclists avoid the need to use the very busy A325, and provide a safe connection between Broxhead Common and Alice Holt Forest. `Even if this is not practicable, we would not like to see FP 23 deleted.'

5.11 East Hampshire District Council reports that one local Councillor formally objects to the proposals `in the absence of any detailed justification' and members have voiced concerns about the application to delete part of Kingsley Footpath 23 `as it will prevent a longer distance walk from being maintained'. East Hampshire District Council would be `very unlikely to support the proposal to delete Kingsley 23 as a definitive right of way'. The Council seeks to encourage the creation of longer distance linking routes for walkers, riders and cyclists and `so the deletion of Kingsley 23 would actively prevent the existing longer distance route from Sleaford to Frith End from being maintained and possibly extended'. The Council further comments that the upgrading of Headley Footpath 48 would make little sense unless the other two footpaths are also upgraded. The Council supports the upgrading of all three routes, though with the following concerns. A local Councillor draws attention to the damage that horses will do to the surface of the footpaths, citing examples near Frensham which have become very muddy, and asks what can be done to ensure that the routes can be maintained in good condition. The Council supports the use by cyclists of the potential bridleways. It also suggests that the upgrading could be taken further, even to the creation of a circular route, since the A325 is a very busy road and Picketts Hill (C102) is fairly narrow.

6. Historical and Documentary Evidence

In the following evidence, material relating to Binsted Footpath 52 has also been considered, because it follows on from Kingsley Footpath 23 and forms part of a longer, through route, between the A325 and Picketts Hill.

6.1 Isaac Taylor's Map (1759)

This is a commercially produced map printed at a scale of one inch to the mile. It is not possible to be clear whether there is a route corresponding to that under consideration shown on this map.

6.1 Survey and valuation of the estates of Grooms Farm and Oxney Farm (1781, HRO 63M48/578)

This map was made by George Cobbett for the Right Honourable Henry Lord Stawell, and shows both farms separately. It is very faded. A note to the right of the cartouche states that `The horse and cart roads are shadowed with brown', and `The foot roads are shadowed with blue'. Kingsley Footpath 23 is shown on the map outlined in brown, and the north end is marked `Road to Holt Forrest'. It is gated on either side of Grooms Farm buildings and farmyard, and the bridge over the River Slea is gated at its north end. Beyond the bridge, going to the south west is a road, shown in solid brown. Near to this is the word `Road'. The present-day bridge is unlikely to be the bridge shown on this map. The current bridge is estimated to have been built in the early nineteenth century, according to the Bridges Section of Hampshire County Council, and judging by its similarity to the bridge nearby at Huntingford, described in Bridges of Hampshire of Historic Interest (Hampshire County Council, January 2000) as being built at this time.

6.2 Thomas Milne's Map (1792)

This was a commercially produced map, where the route is shown clearly, on the line G-D-F. The legend indicates that it is shown as an `enclosed road', commencing to the south west of Trottsford Farm in the south, crossing the River Slea and passing through Grooms Farm, terminating at the south of Goose Green in Binsted. The Farnham to Petersfield Turnpike Road (the present-day A325) was not in existence at this time.

6.3 Ordnance Survey 2 inch drawing (1808)

This map shows Sleaford Bridge and the River Slea. A road (approximating to the present C102) runs from Sleaford Bridge to Headley Park, and branching out of this in a north-easterly direction appears to be a short section of road, terminating at a building in approximately the location of Trottsford Farm. This is on the line G to C, or the present day drive to the farm, though the route shown on this maps stops at Trottsford Farm, since there appears to be no crossing of the River Slea at this point on this map.

6.4 Ordnance Survey Old Series 1 inch map (c.1810)

This slightly later map shows the same small section of road, terminating at Trottsford Farm, and branching out of the Sleaford Bridge to Headley Park road, on the line G to C.

6.5 Plan of the Line of the Intended Turnpike Road from Farnham Surrey to Petersfield in Hampshire (1825, HRO DP/43/1)

The map is signed in the bottom right hand corner by J. Harding and is dated 1825. The scale is 4 inches to the mile, and is somewhat diagrammatic in its nature. It is a plan of the route of the new road, assigning numbers to the plots of land that it passes through. These plots are detailed in the accompanying field book. The projected road comes up through Broxhead Common, passes through Sleaford Farm, `Freeth End' and northwards through Goose Green Lodge. A route is shown, with pecked lines, running eastwards from Sleaford Farm and Sleaford Bridge, towards Headley Park, which is on the eastern edge of the plan. Branching out of this road, to the north, is another route, which is the route under consideration. The first small section is pecked, until it meets a boundary running from east to west, after which it is shown by solid lines passing to the west of Trottsford Farm. The route continues in a northerly direction, crossing over a diagrammatic representation of the River Slea, to run through the middle of Grooms Farm and beyond, to another boundary, after which it is depicted with pecked lines once more. It now bends in a north westerly direction, before joining with another route shown with pecked lines north of `Freeth End'. Alice Holt Forest is shown to the north, where the characteristic wide swathes between the areas of trees still visible today are present.

6.7 Greenwood's Map (1826)

Although reputed to have relied heavily on survey information compiled by the Ordnance Survey, some re-surveying work had clearly been done for the preparation of this map. The route which is the subject of these applications is shown clearly, passing through Grooms Farm and ending at `Freeze End'. It appears to pass to the west of Trottsford Farm. The legend indicates that it is a `cross road', and it does appear to fulfil the function of the present day A325, linking Sleaford Bridge to Alice Holt Forest.

6.8 Kingsley Tithe Map and Apportionment (1841, HRO 21M65/F7/134/1-2)

The Kingsley Tithe Map shows the whole of Kingsley Footpath 23, plus Binsted Footpath 52, taking the route onto the Farnham to Petersfield Turnpike Road. The route begins slightly to the west of the bridge over the River Slea, joins with another route to coalesce and pass in a north easterly direction through Grooms Farm. It then passes what is the present day Kingsley Footpath 26 and continues in a more northerly direction to the parish boundary, where it continues in Binsted. Kingsley Footpath 23 is tinted in brown, and is depicted at a similar width and in a similar manner as the Farnham to Petersfield Turnpike Road, Cradle Lane, which is now a byway open to all traffic, and another route which is what would appear to be an occupation road. Binsted Footpath 52 is shown with pecked lines, also tinted brown. Neither shows a plot number. The apportionment shows no separate section for roads and waste, and the area given in the preamble as common or waste land is 180 acres.

6.9 Binsted Tithe Map (1843, HRO 21M65/F7/20/2)

The Binsted Tithe Map is not very helpful as it shows only a very small part of the most northerly part of the whole route, where it meets the Farnham to Petersfield Turnpike Road. The Turnpike is marked `to Petersfield' and is shown with solid boundaries until it reaches the Binsted parish boundary. Beyond this, it has pecked boundaries, as has the very small part of the present day Binsted Footpath 52 that is shown on the map. These sections of road are all tinted brown and are without any plot numbers.

6.10 Headley Tithe Map (1846-1847, HRO 21M65/F7/113/1-2)

The Headley Tithe Map shows the whole of the lane from the C102 to the River Slea. The route branches out in a north easterly direction from what road, corresponding with the drive to Trottsford Farm (G to C), with a fork branching in a north westerly direction, corresponding to the present day Headley Footpath 48 (A to B). The track shown on the Tithe Map follows the same course as the footpath, passing through Trottsford Farm. It is shaded brown, with two sections having pecked lines, and the rest with solid boundaries. It is shown in very much the same way as the lane that is now the road C102, which is shown between pecked lines. The lane has a plot number, 519a, and is shown on the apportionment as being owned and occupied by John Clear, and described as `Trotsford' Lane, with an extent of 2 roods and 21 perches. It is therefore privately owned and occupied. However, to the north of its crossing of the Slea the map is marked `to Farnham', suggesting that it is part of a longer through route. Roads and rivers are given in the apportionment as 120-3-08.

6.11 Binsted Enclosure Award and Map (1852 map, 1857 award, HRO Q23/2/12/1-2)

6.11.1 The Binsted enclosure documentation consists of two maps, A and B, dated 1852, along with the award. Map A shows the land that was actually enclosed in the award, and Map B shows the land in respect of which the claims for allotments were made. Map B depicts Trottsford Lane, having the plot number 2125, and an extent of 2 roods and 2 perches (0-2-02). This is the equivalent of Headley Footpath 48 between points B and C, but follows the drive route between G and B. The route then continues past Grooms Farm and up to Mowlands Farm and stops at the boundary with Binsted. It is coloured yellow and is depicted in a very similar way to the Turnpike Road from Farnham to Petersfield.

6.11.2 Map A shows the land directly affected by the enclosure. Binsted Footpath 52 is shown on Map A branching out of the Petersfield to Farnham Turnpike Road and ending at the parish boundary, which is marked `Grooms Hatch'. The word `Hatch' means gate. The track itself is shown by the means of two pecked lines coloured black, within two solid lines, coloured red. The whole route is here shown at a similar width as the `Frieze End and Abbotts Wood' road (the present day C98) which runs in a south easterly direction from a point near to the end of the claimed route. The Frieze End and Abbotts Wood road has solid boundaries, the north being predominantly black and the south being red. It could be argued that the black lines represent the boundaries of old enclosures, and the red lines represent boundaries put in place or confirmed as the result of the enclosure award. The various allotments made in the award are given numbers, and the Valuer also used letters to denote the location of roads, other highways and watercourses laid out under the provisions of the award. None of the 173 paragraphs in the award dealing with the public and private roads, footways watercourses refers to Binsted Footpath 52. It is not known why this was not formally set out.

6.11.3 Mrs. Comber contends that Kingsley Footpath 23 was set out in this award as a private footway between the letters GP to GA. However, no part of the Parish of Kingsley is allotted in this award, and the letters GP are found at a location to the north of Goose Green Inclosure, and are used in conjunction with three separate watercourses. The letters GA refer very clearly to Mowlands Farm and to a path coming in from the east, not running north to south.

6.12 Extract of a Map of the Property of the Revd William Legge (1857, HRO 38M79/E/P1)

This is a post-enclosure survey of the Revd Legge's land in Binsted and it shows the northern extension of the two routes which are the subject of these applications. The Petersfield to Farnham Turnpike Road is shown, marked `to Petersfield'. The path which is now Binsted Footpath 52 is shown with unbroken boundaries marked in red, and it is signed `to Grooms Farm'. Nearby Cradle Lane is also shown, with solid black boundaries, and this is also signed `to Grooms Farm'.

6.13 Ordnance Survey County Series 1:2500 First Edition (1870)

The route under consideration is shown on the first edition of the Ordnance Survey County Series, and each of the three sections of the route will be considered separately. This edition of the map has a book of reference in which each plot has a description.

6.13.1 The route now forming Headley Footpath 48 branches out of a road indicated by pecked lines. This road is the present day C102, and both the drive to Trottsford Farm and the public footpath are shown on the map, with pecked lines. Five tracks meet where Broxhead Common ends and Trottsford Farm begins. This track passes through the farm, between solid lines until south of the River Slea. There is what appears to be a gate at the northern end of the farmyard itself, and this is braced, indicating that both sections of the route are to be considered as one entity, in this case plot 10, given in the book of reference as an `Occupation Road'. The width of the track is between 6 and 8 metres. The last portion of Headley Footpath 48 is shown by pecked lines, and crosses plot 11, which is a pasture, and meets with a bridge over the River Slea. The bridge is shown by solid lines, and reaches into Kingsley Parish.

6.13.2 Kingsley Footpath 23 is shown connecting to the northern side of the bridge over the River Slea, and is shown along its length as between solid lines. The southern portion, between the bridge and Grooms farmyard is given as plot 95, in the book of reference described as `Occupation Road'. At Grooms farmyard there appears to be a gate, and another gate on the northern side of it, forming an enclosed area which is plot 85, given in the book of reference as `Houses, gardens and yards'. The route then continues in a northerly direction, as a track with a grass verge or some other marker, between hedges or other solid boundaries (shown as pecked lines between solid lines). This plot is 66, having brace marks to indicate that the verges are included in its extent, and this is described in the book of reference as `Occupation Road' .

6.13.3 At the parish boundary, the route becomes Binsted Footpath 52. On the first edition County Series Map it is depicted in a similar way as the northern part of Kingsley 23, that is with pecked lines between solid lines. The western boundary may, at this date, have been a wall, since the annotation `F.W.' (Face of Wall) is placed against it. This part of the route is plot 965, which is described in the book of reference as a `public road'. At its northern end it meets the Farnham to Petersfield Road (the modern A325), which is depicted as pecked lines between solid boundaries, and is described in the book of reference as plot 324, `public road'.

6.14 Windsor, Aldershot and Portsmouth Railway Line Plan (1881, HRO DP/392)

This map shows a projected railway line between Windsor and Portsmouth, and is dated 1881. It passes through the parish of Kingsley, close to Trottsford Farm, which is shown within the area of land to be affected by the construction of the line. Part of the route under consideration is shown on this map, where it has been given the plot number 25. The book of reference accompanying this plan gives plot 25 as being `Private road and shrubberies', in the ownership of Jane Kingdon. The cross section, shown directly underneath the map of the line itself, refers to a road that is crossed by the projected line. This is at the seven mile marker, and is described in the cross section as `Public road to be raised 3 feet in Cross Section No. 5'.

6.15 Ordnance Survey County Series Second Edition (1895)

The second edition of this map was printed in 1895 and shows the whole route in a very similar way to the first edition. Some of the plot numbers are changed, and there is no reference book to this edition. Headley 48 has two plot numbers on this map, instead of the one, shown on the former map.

6.16 Conveyance of Two Freehold Cottages and Land near Grooms Farm (1902, copy provided by Mrs. M. Comber)

This conveyance of two freehold cottages and land near Grooms Farm from Mr. A.J. Harding to Henry John Dutton Esq., dated 24^th June 1902, includes a plan, which shows what is now Grooms Farm Cottage and Coltfield Cottage. The frontage of these properties is Kingsley Footpath 23, and this is shown on the plan and marked as `Road' and as `From Kingsley' in the south and `To Bentley' in the north, indicating it is part of a through route. The cottages are described within the text of the conveyance as being `on the east side of the road leading from Kingsley to Bentley and having a frontage thereto of one hundred and sixteen feet or thereabouts'.

6.17 Sales Particulars of Trottsford Farm (1909, HRO 79M78/C322/7)

Trottsford Farm was put for sale by auction on 3^rd June 1909, and the literature produced to support this sale has a map based on the second edition of the Ordnance Survey County Series map. This shows gates in the same positions and gives the two plot numbers on the route passing through the farm as plot 26, which is described as `Road' and plot 371, also described as `Road'. These are the same plot numbers as on the OS map.

6.18 Ordnance Survey County Series 1:2,500 Third Edition (1910)

This map, published in 1910 shows the route in much the same way as the previous editions, although the route through the farmyard at Grooms Farm is now more clearly delineated, with the two gates still in place on either side of it. North of this, the route to Mowlands Farm is shown between solid boundaries and the pecked lines are no longer employed.

6.19 Finance Act Map and Valuation Books (1910, PRO Kew IR 125/4/325 and IR 125/4/329: HRO 152M82/1/2; 15 2M82/1/7; 12M82/1/11))

These maps and reference books were compiled for the Finance Act of 1910. Ordnance Survey sheets were hand coloured to show what land was included within hereditaments for valuation purposes. Public roads, not being taxable, were not shown to be part of private land, and are uncoloured on the maps, though they could also be shown within a private landholding if they were unenclosed. Tax deductions could be claimed for public rights of way, through landowners did not always claim them (Rights of Way Law Review, 1990, Section 9.3, pp. 17-18). On the maps of the route under consideration, all that part north of the farmyard at Grooms Farm to the junction with the Farnham to Petersfield road is not within hereditaments and is therefore uncoloured, while all that south of the farmyard's northern boundary was within two hereditaments, 279 and 340. It is shown on the map in the same way as the public carriage roads in the vicinity. There is a blue line down the centre of all the roads on Sheet XXXVI.7, but this is not continued on Sheet XXXVI.11. It is not known what the significance of this line is. The valuation book shows hereditament 279 as in the occupation of John Clear Loe, and that a claim for a deduction of £10 was made for rights of way user. The valuation book does not show to which specific right of way this deducation relates. Hereditament 340 was in the ownership and occupation of Thomas Smith and no deduction was made for rights of way user.

6.20 Rural District Council of Alton Highway Committee Minute Book (1926, HRO 24M74/DDC52)

On 12^th March 1926 there was discussion of a report from the surveyor, who had received several complaints about the condition of bridlepaths between Frithend and Farnham Rural District, and who had inspected them as it appeared to him `unlikely that these were repairable by the Council'. He reported `the track leading from the main Farnham-Bordon road past Mowlands and Grooms Farm to Trotsford Farm is I find a private road and is repaired by the farmers.' Another track was `a grass grown lane known as `Cradle Lane', which ends near Huntingford Bridge. The old roadman, who is 74, and the local Council Haulier who has known it for 30 years, both say the Council have never repaired it. It appears to the Committee that the first mentioned way is an occupation road not repairable by the Rural District Council, and the second road does not appear to be repairable'. The surveyor's report was to be inscribed in full in the Minutes to provide a permanent record.

6.21 Rural District Council of Alton Highway Committee Minute Book (1928, HRO 24M74/DDC53)

Three farmers had been maintaining a route described as an `occupation road near Frith End' and `the private road which leads from the main Farnham-Petersfield-Portsmouth road to Frith End', and were asking the Council to take over the responsibility for its maintenance. The matter came to the attention of the Committee in November 1928, and the surveyor drew attention to the fact that the matter had already before the Committee in March 1926, when it was decided that the road was not repairable by the Council, as it was an occupation road. Therefore, the application was not to be entertained.

6.22 County Maintenance Maps

These maps, produced in 1929 and 1946, show the routes thus: the 1929 shows Binsted Footpath 52 and Kingsley 23, to just past Grooms, as dotted black. The rest of Kingsley 23 and Headley 48 are shown dotted green. These designations fall under the heading `Public Footpaths (other than those at side of Carriageways' `Repairable by District Council'. Sub-section (b) corresponds to dotted green (south of Grooms) and denotes that the route is `repairable by the Parish Council'. Sub-section (c) corresponds to dotted black (Binsted Footpath 52 and part of Kingsley 23 to just past Grooms) and is marked in the key `not repaired'. On the 1946 map of publicly maintainable streets, the route is shown with black and yellow dashed lines, which the key gives as meaning `prospectively maintainable private street'.

6.23 Conveyance of Grooms Farm (1949, provided by Mrs. Comber)

This conveyance was drawn up on the 14^th April 1949 and is concerned with the property known as Grooms Farm, in the parish of Kingsley. The document includes a plan, based on the Ordnance Survey third edition 1:2,500, and there is reference in the text to `all the right title and interest the Vendor may have in and to the roadway or bridle paths numbered 95 and 100 on the said plan'. Plot 100 is a road branching out of plot 95 and leads to the sand pit and Ranks Hill, and is therefore not relevant to this investigation. Plot 95 stretches from the farmyard of Grooms Farm to the bridge over the River Slea, and is now Kingsley Footpath 23.

6.24 The Definitive Maps of 1954 and 1958

As discussed in 3.1 the Definitive Maps of 1954 and 1958 show Headley Footpath 48 as the northern section of Headley Footpath 3, which runs from the C102 at Linstead Farm north westwards past Headleywood Farm, through Great Wood, between Mountfield Wood and Ten Acre Copse, where it meets Headley Footpath 4 at Free Piece, then across Free Piece and Broxhead Common, the C102 Picketts Hill, and onto the route being considered for upgrading, ending at the parish boundary at the River Slea. Kingsley Footpath 23 and Binsted Footpath 52 are shown in their present positions.

6.25 Events at the time of the compilation of the 1964 Definitive Map

6.25.1 The second quinquennial review of the Definitive Map took place in 1964, and the last date for objections to the draft map was 30^th October 1964.

6.25.2 Few records relating to the 1964 review survive, but there remains a book which was used to record objections to the draft and provisional maps, and the results of the relevant arbitration proceedings. This book of objections records that Headley Parish Council wanted Footpath 3 to be shown on the new Definitive Map as a bridleway. This formal request was made on 20^th August 1964. However, a modifying letter was sent by Headley Parish Council on 28^th February 1965 (the day before the hearing into objections to the draft Definitive Map) requesting that only that part of Footpath 3 south of C102 be so reclassified. It is clear from the Arbitrator's decision letter that he had taken this letter into account in his deliberations. He recommended that Footpath 3 (along with others, including Footpath 4) be upgraded to bridleway, but we do not at what map he was looking when he made this decision. We know that, at some unknown date at the time of this review, Headley Footpath 3 was split into Footpath 3 and 54 on Broxhead Common, with Footpath 48 being the continuation north of the C102. It is not clear from the surviving correspondence, or the way the decision letter is expressed, whether the Arbitrator was referring to the original longer Footpath 3, or that which remained after the path was split. The advertisement of the changes resulting from the first hearing on 1^st March 1965, placed in the Hampshire Telegraph on 12^th August 1965, does not appear to upgrade Footpath 3, and the reference to Footpath 3 in the advertisement is to a change of length only.

6.25.3 The Forestry Commission then lodged an objection, concerning Footpath 4, leading to a second hearing on 9^th November 1965. Headley Parish Council wrote another letter, dated 8^th November 1965, similar to that which they had written on 28^th February of that year, expressing the recommendation that the part of Footpath 3 north from its junction with Footpath 4 to its junction with the road C102 only be shown as bridleway. The section of Footpath 3 that the Parish Council was referring to here had been shown `as No. 4 on the recently published Revised Draft Map'. The appeal against the upgrading of Footpath 4 was successful. It is clear that the Parish Council was seeking to secure `a single crossing of Broxhead Common from South to North'. It seems that the preparation of these letters by Headley Parish Council, for the attention of the Arbitrator, each time the day before a hearing, was a deliberate action to draw attention to that part of Footpath 3 which they wished to upgrade to bridleway, and that they were interested in establishing a bridleway crossing of the main body of Broxhead Common. Officers are satisfied, from the surviving correspondence, that the section of Headley Footpath 3 north of the C102, now known as Headley Footpath 48, was not upgraded to bridleway.

6.26 Miscellaneous Documents relating to Headley Footpath 48, from East Hampshire Distric t files, various dates

6.26.1 L. Maynard wrote to the Council on 13^th August 1952 to inform it that `the footpath from Pickets Hill...across Broxhead Common...past Trotsford and Grooms Farm to Frith End, is not shown on the map at Alton. I used this way to go to Bentley 3 times weekly during the Boer war'. Mr. Maynard refers to the manorial mill on this route as working at that time, but being closed soon after, with a `No Road' sign posted. As a member of the footpath committee, he was aware of the owner attempting unsuccessfully to close the route prior to the 1930s.

6.26.2 Kingsley Parish Council wrote to the County Surveyor in Winchester on 1^st November 1957 in response to a circular in relation to the National Parks and Access to the Countryside Act 1949 Survey of Public Rights of Way. The Parish Council made an observation that `Footpath 23 should be a bridle path, not as marked'.

6.26.3 The County Surveyor wrote to Kingsley Parish Council on 19^th November 1959, making reference to this suggestion. The County Surveyor stated that `The proposed exchange of status of Footpath No. 23 was considered by the Footpaths Sub-Committee, but was turned down for lack of evidence of its undisputed use by riders for the requisite period of 20 years. I believe the Clerk of the County Council suggested that the Parish could make representations when the revised Draft Map was placed on deposit, but I note that your Council made no such representation, so I assume that the necessary evidence was not available and that the question is now closed'.

6.26.4 A letter was written on 22^nd February 1991 by Stevens and Bolton, Solicitors, on behalf of Mr. and Mrs. Arnott, owners of Trottsford Farm to Mr. Adams of the Rights of Way Section regarding the status of Footpath 48. They were seeking assistance as to the exact designation of the path, and stated `We believe that at one time this footpath was in fact the old Farnham Road, but it was later down-graded to a bridleway and then a footpath'.

6.26.5 Mrs. Gwen Barlow of Littleton, aunt of the present owner of Grooms Farm, wrote to the Rights of Way Officer of East Hampshire District Council on 27^th October 1992 to complain about the erection of stiles and padlocked gates on Footpath 48, and informed her that `this highway had been the only access to the Farm [Grooms] until the beginning of this century, when the road from Bordon through Frith End to Farnham was built...This ancient highway is marked on Grooms deeds as "road and bridle path"'.

6.26.6 Mrs. Barlow followed this with another letter dated 17^th November 1992. Here she said that her sister `also told me there is a legend that Grooms Farmhouse used also to be an inn in Georgian times, and was used as a hideout for highwaymen!' She goes on to describe part of the interior of the farmhouse, and then says `I must say I like the thought of coaches lumbering over the little bridge and highwaymen would not be likely to frequent a mere footpath would you think'.

7. Landowner Evidence

7.1 Professor Arnott's son filled in a Hampshire County Council Landowner Form on his behalf, and Professor Arnott gave a statement in April 2002.

7.1.1 The Landowner Form - Apart from the section of the route marked G to B, Professor Arnott accepts the public status of Headley Footpath 48, and has seen members of the public use it on foot and on bicycles. The only usage of the path on horseback was by Mrs. Comber, who has acquired prescriptive rights over it on horseback. Professor Arnott had given permission to the tenants of Stone Cottage to access their field on horseback using part of the private drive to Trottsford Farm.

7.1.2 In answer to the question of whether members of the public have ever been turned back or stopped from using the path, Professor Arnott states that `the public have never been stopped using the path', on foot . However, he further states that he `on countless occasions tried to stop Mrs. Comber from riding down drive before she successfully brought a case claiming prescriptive rights'. This refers to a case in 1996 where it was determined by a court that Mrs. Comber had acquired prescriptive rights to ride a horse along Headley Footpath 48. A sign saying `No Horses or Unauthorised Vehicles' was put up in 1992, at the suggestion of the District Council. Shortly after the purchase of the property, vegetation that had been impeding access to the path was cleared, and in the early 1980s East Hampshire District Council repaired the bridge over the River Slea to make it safe for pedestrians.

7.1.3 Statement - Professor Arnott gave a statement on 30^th April 2002, amplifying the information given on the form discussed above. When he and his late wife purchased Trottsford Farm in 1978, part of Headley Footpath 48 to the north of the farm was impassable, with barbed wire across the route. Therefore, horses could not use the path. In 1981, the vegetation was cleared as far as the bridge, and the footpath was opened up. The mineral extraction company ARC had put in stiles in the most southerly section of the footpath in 1972. In or around 1978, the bridge, which had had holes in it for many years, collapsed due to a major flood. Only the parapet could be negotiated, on foot. It was about three years after this that the District Council repaired it, though only the floor was replaced and the buttress was not strengthened, making the bridge suitable for use by walkers but not by horses. Since this repair, another crack has appeared, and it would need strengthening if it were to be used by horses. Following a query about the legal position with regard to occasional use of a horse by Mrs. Comber, Mrs. Arnott was advised by East Hampshire District Council in 1992 to put up a sign saying `No Horses' `to exonerate us in the case of any injury sustained while using the footpath on horseback'. Professor Arnott states that there has been `no appreciable horse use on the footpath since we have lived here'.

7.1.4 Professor Arnott further states that `in view of the fact that there is a well established bridleway at Cradle Lane, which is less than a mile away, we know of no other party or parties (apart from Mrs. Comber), be they private riders, equestrian centres or local hunts who have ever sought to use footpath 48 as a bridleway'. Professor Arnott is of the opinion, having talked to both his neighbours and path users, that it is `in the public's best interest for footpath 48 to remain as a footpath and not zoned as a bridleway', citing the churned-up and impassable condition of Cradle Lane for half the year as an example of the consequences of vehicular and equestrian use. He also points out the emergence of the northern end of the route onto the A325 is on to `a very fast and dangerous road, where there are regular fatalities'. Professor Arnott does not want the droppings and the damage to the surface that will be the consequence of horse traffic on the part of his drive that is presently private, and predicts that the hazel avenue will `become a quagmire and impassable on foot for many months of the year, like Cradle Lane. Thus, the many who currently enjoy the benefits of it will be deprived of their uninterrupted use'.

8. User Evidence

Mrs. Comber submitted five forms with her claim to upgrade Headley Footpath 48 and two statutory declarations. Two user statements were prepared as a result of personal interviews. One form was completed by Mrs. Comber herself, but could not contribute towards her case, as she has acquired a personal prescriptive right to ride over the route on horseback in a private capacity. Two users, Mrs. Nancy White and Mrs. Sarah Austin said that they had never actually ridden the route, so could not contribute any evidence. The remaining two riders, Miss Suzanne Henwood and Miss Pamela Kerr, live to the south of the route, and mainly used it together for recreational purposes, as part of a circular ride. These ladies were interviewed, but their statements are not considered here in detail since the public use that they represent is insufficient. The statutory declarations have been made by people who claim to have seen horseriders on this footpath. As this is not evidence by the users themselves, comparatively little weight can be given to it.

9. Conclusions

9.1 As far as Mrs. Comber's application to upgrade Headley Footpath 48 to bridleway is concerned, it can be seen that the decision made in 1965 to upgrade related only that part of the original Headley Footpath 3 to the south of the C102 at Picketts Hill. The user evidence supplied by Mrs. Comber is not enough to give rise to a presumption of dedication under common law or section 31 of the Highways Act 1980, and therefore her claim cannot succeed on two of the grounds made out in her application. The historic evidence is discussed at paragraphs 9.3 to 9.8.

9.2 The evidence that Mrs. Comber puts forward for the removal of part of Kingsley Footpath 23 from the Definitive Map is not relevant and her interpretation of the Binsted Enclosure award is not supported by the evidence, so her application for deletion on these grounds must fail.

9.3 However, the County Council is under a duty to modify the Definitive Map if there is evidence that shows that the Map should be amended, even if this is for reasons which are not part of the applicant's original claim. Even though Mrs. Comber's case must fail on the grounds that she has put forward, the historical evidence does warrant close examination because, in places, it suggests that the route from the C102 to the C98 might have been an old road. In this case, the evidence is inconsistent: on the one hand, there is some evidence of carriageway status, but there is other evidence that suggests that the route is a private road, with no public status higher than that of footpath.

9.4 The evidence which suggests that the route may have been an old road is contained in a number of maps and documents dating between 1781 and the beginning of the twentieth century. These show that it was in existence before the turnpike road from Farnham to Petersfield (the present day A325). The map of 1781 (see 6.2) shows it as a horse and cart road; the plan prepared for the Farnham to Petersfield Turnpike Road in 1826 shows it as one of two routes flanking the proposed route of the turnpike, and clearly these were both the existing through-routes to take travellers over an area of unenclosed common and woodland; Greenwood's Map of 1826 shows the route as a `cross road', a designation that can be argued to be a general purpose highway; the Binsted path is described as `public road' on the Ordnance Survey County Series map of 1870; part of the route is uncoloured and outside hereditaments on the Finance Act Map of 1910, and this could be argued to show that that part of it had public carriage road status.

9.5 The fact that most of the evidence suggesting public carriageway status is early rather than later may suggest that it was a public road which fell into disuse as a result of the construction of the turnpike road.

9.6 However, there is also evidence throughout this period which contradicts that view. For example, the Kingsley and Binsted sections of the route are not even shown on the Ordnance Survey early edition of 1810; the Headley Tithe Map which shows that the Headley section of the route was an occupation road; Binsted Footpath 52 is shown on the Binsted Enclosure award, but it is not set out as a public road, or indeed anything, while nearby Cradle Lane is set out as a public carriage road; the Ordnance Survey County Series 1870 map which describes that both the Kingsley and Headley sections as `occupation road'; by the 1920s, Alton Highway Board were of the firm opinion that the route was privately maintainable.

9.7 The contradiction in this evidence is most clearly shown in the railway plan of 1881, which refers to the route as both private and public in the one document. In the section mapping the course of the proposed railway, the section of the route running past Trottsford Farm is described as `Private road and shrubberies', while the cross section under the map describes Trottsford Lane as `public road to be raised 3 feet'. It is difficult to know how to interpret this information.

9.8 If Members are satisfied that this route was an old road, then they should resolve that an Order be made to record it on the Definitive Map as a byway open to all traffic. Evidence justifying a change in status need not be conclusive, but it must show that a change is justified on the balance of probabilities. Officers are concerned that the inconsistency in the evidence prevents even this burden of proof being discharged. One would expect that the construction of the turnpike road would result in a decline in the use of unimproved routes serving a similar purpose, but in this case there is conflicting evidence as to its status both before and after the turnpike came into use. Since there is so much inconsistency in the evidence available in this investigation, on balance it is felt that the status of the three footpaths should not be changed.

RECOMMENDATION

The applications to upgrade Headley Footpath 48 to bridleway and to delete part of Kingsley Footpath 23 be refused.

Section 100 D - 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 the report. NB The list excludes: (1) Published works; (2) Documents which disclose exempt or confidential information as defined in the Act.

File: Application for upgrading of Headley Footpath 48, Kingsley Footpath 23 and Binsted Footpath 52 to bridleway, ref. 502

Rights of Way Office, Mottisfont Court, Winchester.

Application to delete part of Kingsley Footpath 23, ref. 688

Rights of Way Office, Mottisfont Court, Winchester.

Application for upgrading of Headley Footpath 54 to bridleway, ref.. 512

Rights of Way Office, Mottisfont Court, Winchester

Application for upgrading of Headley Footpath 3 to bridleway, ref. 598

Rights of Way Office, Mottisfont Court, Winchester