Hampshire County Council Item 5

Regulatory Committee

26 February 2003

Proposal to modify the definitive map to amend the position of

Crondall Footpath 45

Report of the Director of Recreation & Heritage

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.

1. Summary

1.1 An anomaly has been discovered in the depiction of Crondall Footpath 45 on the definitive map. Research has demonstrated that the route of the path has been shown in the wrong position and members are recommended to approve the making of a Map Modification Order that will rectify the problem.

2. Claimant:

2.1 There is no claimant in this case. The matter has been initiated from within the Rights of Way section.

3. Landowners:

3.1 The path shown on the definitive map runs through a dwelling known as "Milford House". The path as used on the ground runs between the garden of "Milford House" and the garden of another dwelling to the east called "Walden Woods House". The land crossed by the footpath does not appear to be within the registered title of either property.

4. Background

4.1 In recent months map review officers have been working on the production of a new consolidated definitive map showing public rights of way in Hart District. This exercise has highlighted anomalies between paths as recorded on the map and the paths actually used on the ground. One such discrepancy is Crondall Footpath 45.

4.2 The current definitive map which dates from 1964, shows this path taking a meandering route through land now occupied by the property now known as "Milford House" but shown on attached map as "Wilsland House". The route of this path seems to be derived from the Ordnance Survey map of 1930 which shows a footpath passing through woodland before houses were built on the site. The next Ordnance Survey map, surveyed in 1973, shows a different route, enclosed between fences, separating a house described as "Walden" (now Walden Woods House) to the east, from a house described as "Merton Cottage" (now Milford House) in the west.

4.3 The statement which accompanies the definitive map, describes the path in the following terms:

"From Road U247 through squeeze stile, northwards along earth path through woods enclosed 8 feet wide between wire fences, and through squeeze stile on to road A287."

4.4 This description would seem to fit the used path better than the path shown on the definitive map but it was not clear whether the anomaly is as a result of a definitive map error or as the result of an illegal diversion. However, having carried out a land registry search on the title of the two properties concerned, the officers are now firmly of the opinion that the definitive map is in error.

4.5 Within the title for Waldon Woods House (previously Walden) there is an entry which describes a personal covenant dated 1938. It reads:

"The purchaser hereby covenants with the vendor that she the purchaser will within three months from the date hereof erect and maintain a suitable fence to the satisfaction of the Vendor on the western side of the property hereby conveyed such fence to be a distance of six feet from the fence bounding the footpath already erected by the vendor and to run parallel to such existing fence."

4.6 It would therefore appear that the path was set out in its current position in 1938 and the route was shown incorrectly on the first and subsequent definitive maps, probably because the officers were working with maps that pre-dated the 1938 alterations. It is possible that the establishment of the path on the ground, in 1938, amounted to an illegal diversion of the old route through the woods. However, the mapping evidence pre-1938 is inconclusive as to the existence of a public right of way and, given that the first definitive map was compiled circa 1950, it is probable that what was intended to be recorded was the path in use today. This view is substantiated by the description of the path in the definitive statement.

4.7 It is also proposed to reduce the legal width of the path from 8 feet to 6 feet. Measurements between mature features on the ground confirm that the width of the path could not have been in excess of six feet for most of its length. For example, at its southern end, the path is bounded by a mature tree and a very old wire fence with a gap of six feet between. Enquiries with residents who have lived opposite the path for 30 years, confirm that the path has remained unchanged during that period. The width of the path, as described in the covenant, would seem to provide a more accurate description of the path as set out and used over the years.

4.8 Please note that this matter was previously reported to the Rights of Way Sub-Committee on 24 July 1986. At that time the County Recreation Officer wrote:

"The line shown on the 1964 Definitive Map cannot be reconciled with the 1964 statement of the right of way which appears to describe the route which is being walked on the ground" and recommended "that the line on the map be modified to that described in the statement." Members resolved to accept this recommendation but for some reason the Order was never made.

5. Consultations with other bodies

5.1 Crondall Parish Council

The Clerk has replied to say that "Following review, the Parish Council confirm that they support the County Council's proposed route amendment."

5.2 Hart District Council

No reply to the formal consultation but the planning department have responded to enquiries regarding planning applications on the site.

5.3 Councillor Mrs C Leversha - local member

No reply

5.4 The Ramblers Association

The local footpath secretary agrees with the proposed amendments. He also points out that there are no squeeze stiles at either end of the path, simply a gap, and suggests that the words "squeeze stile" be removed from the definitive statement.

6. Conclusions

6.1 The current definitive map shows the incorrect route for Crondall Footpath 45.

6.2 The route currently in use has probably been in existence since 1938.

6.3 The width of the used path has probably been no more than six feet.

6.4 It is desirable to remove the reference to squeeze stiles within the statement.

RECOMMENDATION

1) That a Definitive Map Modification Order be made on the grounds set out in the Wildlife & Countryside Act 1981 S53(3)(c)(i) and (ii) to amend the route of Crondall Footpath 45 to that shown on the attached map.

2) That the Definitive Statement be amended to record a path width of six feet and to remove the reference to "squeeze stiles".

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 Crondall Footpath 45 - Rights of Way Office, Mottisfont Court, Winchester