Contact: Richard Jackson, Ext. 6891

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:-

(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.....

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 there is no automatic presumption if dedication after 20 years of public 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 of the assumption that the landowner knew of and acquiesced in public use.

1. Summary

Members are asked to approve the making of an order to add to the definitive map a footpath between Ketelbey Rise and a point 272 metres south of Brighton Way in Brighton Hill, Basingstoke. The path is believed to have been in use by the public since the mid 1970s when the surrounding land was developed for housing.

2. Background

2.1 It is intended that the route which is the subject of this report will be recorded on the definitive map in place of a section of Basingstoke Footpath 16, a right of way which runs between Winchester Road (GR: 6160 5039) and Hatch Warren Lane (GR: 6239 4942) (Point E on the attached plan) and which has been recorded on the definitive map since 1954.

2.2 For many years the definitive line of Footpath 16 has been obstructed by as many as 16 dwelling houses and/or gardens on the Brighton Hill estate. It is believed that these properties were constructed in the mid 1970s, along with the estate roads and paths which serve the properties. Although Footpath 16 should have been diverted or extinguished at that time the relevant phase of the Brighton Hill Estate was built, an exhaustive search has failed to find any trace of an order stopping up that part of the path which is affected by the development. Thus, the legal line of the path remains on its original route and is a serious impediment to value and saleability of the houses through which it runs.

2.3 With a view to removing the difficulties that this causes, Basingstoke and Deane Borough Council is proposing to make an order to extinguish the affected part of Footpath 16. This proposal has attracted objections to the effect that, if a length of the path is to be extinguished, a new path should be recorded on the definitive map in its place. This report proposes the addition to the map of a footpath just to the northeast of this part of Footpath 16 which appears to have been constructed to serve the same purpose.

3. The Route

The `new' footpath is shown on the plan annexed. It runs northwestwards from Ketelbey Rise (GR: 6252 4940) (Point A on the attached plan), under Hatch Warren Lane by means of an underpass or subway and joins the existing route of Footpath 16 at the playground near to the new retail development on Chopin Road (GR: 6207 4978) (Point C on the attached plan). The total length of the proposed route is 629 metres. The surface of the footpath is tar macadam or stone slabs, which shows signs of being maintained in the past.

4. The Landowner

It has not been possible to identify the owner of the path. A Land Registry search shows that the land is unregistered. However, Basingstoke and Deane Borough Council admits responsibility for the maintenance of the entire route.

5. Consultation

Basingstoke and Deane Borough Council has been consulted, in accordance with Schedule 15, Wildlife and Countryside Act 1981. At the date of preparation of this draft report, no response has been received, but it is anticipated that the proposal is to be welcomed in order to facilitate the progress of the extinguishment order.

6. Historic and Documentary Evidence

There is no evidence to suggest that the path existed prior to the development of the Brighton Hill Estate.

7. Evidence of Dedication

7.1 It is hard to argue that the route is not public. Evidence for this is found in the fact that along its length there is street lighting, signage directing pedestrians to various local services and bins providing for the disposal of dog waste. There are no signs to indicate that there is no public right of way along the path and when officers from the Rights of Way Section visited the site, people were seen to be freely using it. Furthermore, Basingstoke and Deane Borough Council maintains the route as a public footway. In view of this, it is not considered necessary to investigate a period of twenty years use, as would be the case if reliance were being placed on a presumed dedication under s.31 Highways Act 1980.

7.2 The Brighton Hill development has a very extensive network of paths of the same style as this route, none of which are shown on the Definitive Map as footpaths but which nonetheless appear to have been constructed to serve, and are now in use by, local people. It was discovered whilst on a site visit that there are few roadside pathways within this part of the Brighton Hill Estate, which adds to the importance of this infrastructure of paths as a means of public movement within the area. It is likely that at some point these paths too will need to be added to the definitive map. The route currently under consideration is being considered for inclusion now only in order to facilitate the proposed extinguishment of Basingstoke Footpath 16.

7.3 The path varies slightly in width but has a minimum width of 2.55 metres.

8. Conclusions

It is not necessary to prove use over any particular period under common law rules relating to dedication. However, these rules require proof of an intention on the part of the landowner to dedicate a public right of way and acceptance of that dedication by the public. The relevant intention can be inferred by the landowner's actions in setting out the path. Indeed, it is hard to imagine that the route in question, being an integral part of the design of the estate was set out for any other purpose than to serve as a means whereby the public can pass on foot through and within the estate. Use and enjoyment of the way by the public, as of right, is immediately apparent from a site visit.

RECOMMENDATION

That an order be made to add to the definitive map a footpath between Ketelbey Rise (GR: 6252 4940) (with a spur to GR: 6242 4945) (Point D on the attached plan) and the existing route of Footpath 16 at the playground near to the new retail development on Chopin Road (GR: 6207 4978) (Point C on the attached plan).