Archived decisions

    Hampshire County Council Item 5

    Regulatory Committee

    7 September 2004

    Claim for the addition to the definitive map of a footpath between Number 83 and Number 85 The Crescent, Andover

    Report of the Director of Recreation and Heritage

    Contact: Emma Noyce, extn. 5319

    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 -

    (b) the expiration, in relation to any way in the area to which the map relates, of any period such as 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;

    HIGHWAYS ACT 1980

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

    (1) Where a public way over any 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 actually been enjoyed by the public as of right and without interruption of 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 this period to dedicate it.

    (2) The period of twenty years referred to in subsection (1) above is to be calculated retrospectively from the date when the right of the public to use the way is brought into question, whether by a notice...or otherwise.

    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' 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 an application for the addition to the definitive map of a footpath between Number 83 and Number 85, The Crescent, Andover.

      There is no historic evidence to support the Applicant's case. A twenty year period of uninterrupted use immediately prior to a bringing into question cannot be satisfied, and it is recommended that the claim be refused.

2. Background

2.1 The claimed path runs between Number 83 and Number 85 The Crescent, and to the rear of Number 85 The Crescent, where it meets Footpath 38d, Andover. The path is shown between the letters A-B-C on the attached plan.

2.2 The claimed route is not recorded on any edition of the county's Definitive Map of Public Rights of Way.

2.3 The path forms a link between The Crescent and a footbridge over the Basingstoke to Exeter railway line. This footbridge affords access to the John Hansen School, public open space beyond the railway and amenities in Floral Way, a densely populated residential area.

2.4 Development of The Crescent began prior to 1941. The alleyway between Number 83 and Number 85 was one of a number of such alleys, providing residents with access to the rear of their properties.

2.5 In 1997, planning permission was granted by Test Valley Borough Council to the owners of Number 85 The Crescent, for an extension to the property and the path was temporarily closed whilst this work was undertaken.

2.6 During 1999, metal gates were erected on the route, this permanently stopping access.

2.7 In May, 1999, the Rights of Way section received an application to record this route on the definitive map as a footpath.

3. The Applicant and the Application

3.1 The Applicant is Mr John Leathley of The Crescent, Andover.

3.2 The formal application is to add a footpath to the definitive map.

3.3 Eighteen user forms have been submitted with this application.

4. The Landowner(s)

4.1 The landowner of the claimed route from point A to point B on the attached map is Mr Christopher Hegarty (owner of 83 The Crescent). The landowners of the route from point B to point C are Mr Michael Quincey and Mrs Christine Quincey (owners of 85 The Crescent).

4.2 Mr Hegarty became the owner of his property in March 2002. He objects to the application, but has no evidence to present which would assist in determining the claim.

4.3 Mr and Mrs Quincey have not responded to consultation.

5. The issue to be decided

5.1 The issue to be decided by this Committee is whether route A-B-C, on the attached plan, should be recorded as a public footpath on the definitive map.

5.2 Any changes to the definitive map must reflect public rights that already exist. It follows that changes to the definitive map must not be made simply because such a change would be desirable, or instrumental in achieving another objective. Therefore, before an order changing the definitive map is made, Members must be satisfied that public rights the route have come into being at some time in the past.

5.2.1 Historic and documentary evidence has been examined to see whether the past history and use of the path points to its having footpath rights as a result of dedication in the distant past.

5.2.2 Evidence forms and statements taken from those who have used the path, or have knowledge of it in living memory, can show that higher rights have been acquired as a result of a recent dedication at common law, or a deemed dedication under s.31 Highways Act 1980.

5.3 The burden of proof in these matters is `on the balance of probabilities', so it is not necessary for evidence to be conclusive before a change to the definitive map can be made. If there is genuine conflict in the evidence, for example between the evidence of users on the one hand and landowners on the other, Members should make an order so that the evidence can be tested at a public inquiry. However, this is appropriate only if an order could otherwise properly be made and it is not a step which should be taken simply to avoid making a difficult decision.

6. Consultation

    The following persons and bodies have been consulted about the application, namely the County Council (Environment and Highways), Ramblers Association, Open Spaces Society, Councillor Kirk the local member, Cyclists Touring Club and Test Valley Borough Council. The following responses have been received:

6.1 Test Valley Borough Council - has no evidence to offer

6.2 County Council (Environment) - has no evidence to offer

7 Historic and documentary evidence

7.1 Prior to the development of The Crescent, the land over which the claimed route lies was undeveloped agricultural land.

7.2 The fourth edition of the Ordnance Survey Country Series map, dated 1937, illustrates houses numbered 1-35 (odd) and 2-24 (even). This map does not show the claimed route.

7.3 An aerial photograph of the area, dated 1948, shows that, by this date, houses numbering 37-91(odd) and 26-74 (even), had been constructed.

7.4 Bungalows in The Crescent, numbers 93-155 (odd) and 76-108 (even) were constructed between 1958 and 1960.

7.5 The first map on which the claimed route appears is the 1969 National Grid 1:2500. The boundaries to Number 83 and Number 85 are accurately surveyed on this plan.

7.6 A copy of the conveyance for 85 The Crescent, dated 1941, is relevant to the claim. (It is noted that the map provided with the conveyance agreement does not accurately reflect the boundaries of the property, as built.) This conveyance gives the owner of Number 85 the "particular right to pass and repass for all purposes over and along the lanes coloured Brown [points A - B] on the said plan the Purchaser paying a proper proportionate share of the cost of keeping the same in repair" and excepts and reserves "unto the Vendor and all persons authorised by him to pass and repass over and along the six feet path or lane situate at the rear of the premises hereby conveyed..." [points B-C]. Because it is stipulated that the purchaser shall pay towards the repair of the path from A to B, it would suggest a private right of access. However, this does not preclude the acquisition of public rights subsequent to this date.

8. Summary of the historic and documentary evidence

8.1 85 The Crescent, and presumably the claimed path, came into existence at some point between 1937 and 1941. Therefore, maps produced prior to 1941 do not assist in determining the claim. Maps produced after 1941 show the claimed route as a gap between two houses. They do not indicate what rights exist over this path. However, these maps may help support evidence of use during the relevant period.

9 Modern User Evidence

9.1.1 In certain circumstances the law will presume that a right of way has been dedicated through evidence of actual use by the public in recent years. Evidence of this use takes the form of statements, letters and forms, signed by witnesses.

9.1.2 Dedication of a public right of way may be presumed at common law if there is direct evidence that the landowner dedicated or intended to dedicate such a highway, or if use of the way was so widespread and notorious that that the only explanation for the landowner's failure to curb it is that he or she intended a way to become a public highway.

9.1.3 Alternatively, dedication may be presumed under s.31 Highways Act 1980 if certain criteria are fulfilled. The nature of the way must be such that it is a highway capable of being dedicated at common law. There must be an event which brings into question the use of the way by the public and this event must be directed at and made known to users of the way. There must be use of the way by the public at large for an uninterrupted period of twenty years prior to the event which brings use of the way into question. That use must be without force, without secrecy and without permission. If all these criteria have been satisfied the law will presume that the way has been dedicated, unless there is sufficient evidence, within the relevant twenty year period, that there was no intention to dedicate the right of way.

9.1.4 Events which can amount to sufficient evidence that the landowner did not intend to dedicate the way to the public can include the putting up of signs which show that no right of way is acknowledged, locking gates across the way and challenging users found on the way. These acts can also bring the right of way into question. Thus, in order to decide whether dedication can be presumed to have taken place it is necessary to look both at the amount of use of the way made by the public at large and at the actions or inactions of the landowner.

9.2 The user evidence

9.2.1 18 user forms and four letters have been received in support of this claim.

9.2.2 Eight witnesses have been interviewed, and their full statements, together with the various correspondence and user forms, can be inspected in the Rights of Way office.

9.2.3 The earliest recorded use of the claimed route is 1940. By 1960 11 witnesses claim to have been using it, by 1970 12 users, by 1980 13 users, by 1990 13 users and by 1997 14 users. Six users claim to have used the path between 1997 and 1999. There may, of course, be others who have walked along the route, and indeed, many of the witnesses refer to the path being used by other people who have not given evidence. 2 of the total 18 user forms do not specify dates for the use of the path. A graph, which generally summarises the user evidence, is attached.

9.3 A number of witnesses have been interviewed, and their recollections are summarised below.

9.3.1 Mr John Leathley (claimant)

    Mr Leathley became a resident of The Crescent in 1960. He used the claimed route almost daily from 1960 to 1967 for dog walking, for taking his grandchildren (from Ashtree Road) to school and as a short cut to the Floral Way Post Office. He frequently observed others using the route, including employees if the Chapel River Press. Prior to 1997, Mr Leathley was never stopped or challenged in his use of the route. Mr Leathley never sought, and was never given permission to use the route. The first time Mr Leathley recalls being stopped from using the route was in 1997. He recalls that the path was blocked at point A and point B with boards and wire, and a handwritten sign was erected, stating words to the effect of "closed for health and safety reasons by Order of Test Valley Borough Council". Mr Leathley later learned that this closure was not authorised by Test Valley Borough Council. He recalls that the path remained shut and impassable until 1999. When the building works were completed, the path was reopened for two weeks. At the end of this two week period, metal gates were erected at point A and point B on the route. These gates were padlocked, and the route remains impassable.

9.3.2 Mr Leslie Berry

      Mr Berry has been a resident of The Crescent since 1959. He used the claimed route occasionally from 1960 to 1965, but became a regular user from 1965 to 1970. Between 1965 and 1970 Mr Berry owned a dog and used the path daily. Between 1970 and 1988 Mr Berry did not own a dog and did not use the route frequently, but the path was regularly used by his children. In 1988 Mr Berry once again became a dog owner, and resumed his daily walks along the claimed route. Mr Berry frequently witnessed others using the route for a variety of reasons, including accessing the Chapel River Press factory. Mr Berry was on nodding terms with the owner of 85 The Crescent, but never sought, or received, permission to use the route, and, prior to 1997, was not aware of any indication that the owners of either 83 or 85 did not want people using the route. Mr Berry recalls that during the building works, in 1997, the path was still passable, though with some difficulty. He recalls having to squeeze past scaffolding to make his way through. He does not recall fences at point B, but thinks there may have been some wire across the route at point A. He does not recall any notices. Mr Berry understands that metal gates were erected on the route subsequent to the completion of the building works. He is aware that, since 1999, some children still try to use the route as a way of getting to and from the John Hanson School.

9.3.3 Mr and Mrs Hansen

      Mr Mike Hansen and Mrs Valerie Hansen became residents of The Crescent in 1959. Prior to the 1960s development of The Crescent, Mr Hansen understands that the land was occupied by piggeries. He believes that the land was private and fenced off, and therefore, prior to 1960, the route between 83 and 85 The Crescent was the most direct way for people living in the near vicinity to access the level crossing across the railway. Mr and Mrs Hansen also understand that the path to the rear of their property (Footpath 38d, Andover) was owned by Mr Shaw-Porter. They recall that Mr Shaw-Porter did not like people using this route, employing a man to patrol the woods and discourage walkers. Therefore, most people tended to use the claimed route to get to the level crossing, as it was uncontested. Mr Hansen began to use the claimed route frequently from 1960. He was an employee of the Chapel River Press, and used the route as a shortcut to and from work, two or three times a week. Mr and Mrs Hansen would also use the route as a way of getting to the Chapel River Press Social Club, approximately once a week. They also recall using the path occasionally to get to St Michaels Church and to the fields beyond the railway. Mr Hansen stopped working at the factory in approximately 1984, but he and his wife continued to use the route as a way of getting to the social club until the late 1990s. Mr and Mrs Hansen frequently saw others using the route, including children from the neighbourhood. They also recall that the route was used by railway personnel as a way of getting to and from work. Mr and Mrs Hansen both knew Mr and Mrs Chick, previous occupants of 83 The Crescent. They feel that if Mrs Chick had objected to people using the path, she would have made her objections felt. She did not do so. Mr and Mrs Hansen had stopped using the route frequently by the time the building works started. They cannot recall the exact sequence of events which led to the final closure of the route, but Mr Hansen recalls an orange plastic fence was erected, at point A, in approximately 1997. He believes that the fence was often taken removed by people using the route, and that this fence was frequently replaced. Neither Mr or Mrs Hansen can recall any notices on the route.

9.3.4 Mr Reeves

      Mr Reeves moved into The Crescent in 1969. He used the path regularly from 1960 until 1994. He worked at the Chapel River Press from 1960 until 1985, and used the path at least twice a week as a way of getting to work. He and his wife also used the path from 1969 as a way of getting to the social club. From 1963 until 1968, Mr and Mrs Reeves owned a dog, and would frequently use the claimed route when walking the dog. Occasionally, Mr Reeves would use the claimed route as a short cut to the Floral Way Post Office. Mr Reeves sometimes saw other people using the route. Mr and Mrs Reeves installed a gate to the rear of their property in 1984, thus giving them access to Footpath 38d and the level crossing. However, they continued to use the claimed route as an alternative to Footpath 38d; Footpath 38d was often muddy. Mr Reeves never received permission to use the route. He was never stopped or challenged when using the route, nor does he believe that any member of his family was ever challenged. Mr Reeves had ceased to use the claimed route after 1994. Therefore, he does not recall the sequence of events which led to its closure.

9.3.5 Mr Smith

      Mr Smith has been a resident of Cypress Grove since 1991. He used the path approximately four or five times a week from 1991 to 1994 and from 1995 to 1997. Mr Smith used the path as a way of getting from his property to shops on Weyhill Road, and as part of his dog walking route. He believes that the ownership of Number 85 changed shortly prior to the path being closed. Mr Smith recalls building works starting at Number 85 in either the late part of 1997, or the early part of 1998. He remembers that the path was not immediately closed at the commencement of these works, but was closed shortly after the works had begun. He recalls that the path was blocked, possibly with a gate, which may have been padlocked shut. Mr Smith remembers a handwritten notice on the route which indicated that the path would be shut for a specified period of time. It did not mention why the path was shut, but his understanding was that it was closed for health and safety reasons. Mr Smith believes the gates which are now present on the route were erected when the building works were finished. He does not recall any period, between the end of the building works and the erection of the metal gates, when the path was passable.

9.3.6 Mrs Blairs

      Mrs Blairs has used the claimed route since 1945. Since this date she has lived in a number of addresses, all but one in the near vicinity of the route. From 1945 to 1972 and from 1996 to 1997, the frequency of Mrs Blairs's use of the route has varied between weekly and daily. Between 1972 and 1976, Mrs Blairs did not live in the immediate vicinity of The Crescent, though continued to use the claimed route occasionally. The reasons why Mrs Blairs used the route changed with time. Initially she lived to the south of the railway, in Abbotts Ann, and used the route as a short cut to the shops. Later, she moved to the north of the railway and became a dog owner. Mrs Blairs then used the route as a way to access the fields beyond the railway, for the purposes of dog walking. Mrs Blairs witnessed many other people using the route, and believed that it was a public path. She was never stopped, or told not to use the route. The first time Mrs Blairs recalls the route being blocked was in approximately 1998, when building works began in Number 85. She believes a typed notice was erected on the route which said that the footpath was to be closed for health and safety reasons. She remembers that the sign gave a date when the path was due to be reopened. Mrs Blairs cannot remember what this date was, but does remember that the path was not reopened by the date stated. She recalls that the barrier to the path was removed. The path was open for a short period, and Mrs Blairs tried to use the path, but it was too narrow and dangerous to pass through, so she turned back. Approximately a week after Mrs Blairs had attempted to use the route, metal gates were erected at either end of the path.

10.3.7 Mrs Reeves (not related to Mr Reeves)

    Mrs Reeves has lived in The Crescent since 1959. From this date, she had young children who used the route almost daily as a way of getting to the fields beyond the railway. From 1959, Mrs Reeves used the route approximately once a fortnight in order to visit her friend in Abbotts Ann. In 1990 she became a dog owner, and began to use the claimed route almost daily. Prior to the closure associated with the building works, Mrs Reeves had never been stopped from using the route, and never had any reason to believe that the path was not public. She thinks that the path was first closed in 1997 or 1998 when the building works at Number 85 began. She was surprised to find that planning permission had been granted, considering that the new boundary wall to the property appeared to encroach on what had previously been the path. Mrs Reeves does recall notices on the route. These notices were handwritten and indicated that the path was to be closed for a period of time. She cannot remember the exact period specified, but does remember that the building works continued for a longer period than indicated on the sign. The notices disappeared after a few days. Mrs Reeves remembers that, after the building works, the path was reopened for a very short period of time. However, the path was too narrow to use. Shortly after the path had been reopened, metal gates were erected at either end of the route.

11 Summary of the recent user evidence

11.1 Evidence suggests that the route became well used from 1960 onwards.

11.2 There appear to be a number of reasons given for using the claimed route. The main reason for using the route was that it was the most direct way to get from The Crescent to the level crossing (now replaced by a footbridge) over the London to Exeter railway line, and vice versa. Reasons cited for the use of this path and the level crossing include accessing the fields and woodland beyond the railway for a variety of purposes including dog walking and leisure. Employees of Chapel River Press (Kelly's Directories) would use the route as a way of getting to the nearby factory, and members of the social club attached to the factory also used this route. Users have also cited the claimed route as a short cut from The Crescent, and nearby roads, to the Floral Way Post Office (which is the nearest Post Office to provide services such as vehicle licensing).

11.3 No users recall being challenged in their use of the route prior to 1997.

11.4 Most users confirm that access to the path was initially closed in 1997, and that this closure coincided with the building works which took place in Number 85 The Crescent. Users who recall the path being closed are in agreement that the path was closed at this time for health and safety reasons.

11.5 Mr Leathley, Mrs Reeves and Mrs Blairs recall that the path was opened for a very brief period in 1999, between the completion of the building works and the erection of the metal gates.

11.6 All interviewed agree that the path was permanently shut in approximately 1999. Metal gates were erected at point A and point B on the route, and these gates were locked.

12 Landowner Evidence

12.1 When looking at the user evidence, it is necessary to identify which period of twenty years is relevant for the purposes of s.31 of the Highways Act, 1980, and to do this, it is necessary to see what acts or events may have brought into question the public right to use the claimed route. The actions of landowners are particularly relevant, although not the only means by which the cut off date can be ascertained.

12.2 The current landowner of 83 The Crescent, and the claimed route from A to B on the attached map, is Mr Christopher Hegarty. Mr Hegarty became the owner of the property in March 2002. From 1986 to 2002 the owners were Mr Alan and Mrs Christine Jones. Before 1986 it is thought that the property was owned by Mr David and Mrs Ann Thomas. The Rights of Way office has been unable to ascertain ownership prior to this.

12.3 The current owners of 85 The Crescent, and the claimed route from B to C on the attached map, are Mr Michael and Mrs Christine Quincey. It is thought that Mr Quincey may have lived in the property since childhood, but they have not responded to consultation.

12.4 The Rights of Way office has only been able to interview Mr Hegarty and Mr Jones. Their statements are summarised below.

12.4.1 Mr Hegarty

      Mr Hegarty was made aware of the claim over the route when he bought the property. The gates at point A and point B were present when Mr Hegarty became the landowner. From conversations with his neighbour, Mr Quincey, Mr Hegarty believes the gates were erected to stop crime. Since 2002, Mr Hegarty has witnessed frequent acts of vandalism to the rear of his property. Mr Hegarty has had one encounter with a lady who believed she had a right to use the path. When Mr Hegarty informed her that the route was private, she became abusive.

12.4.2 Mr Jones

      Mr Jones became owner of 83 The Crescent in 1986. From this date onwards he was aware that the path was widely used by the general public. He believes that, although there are a number of similar alleys between houses on The Crescent, the route between 83 and 85 was the route people generally used, as it afforded the most direct and convenient access to the level crossing over the railway and amenities beyond. Mr Jones frequently cut vegetation along the route as he was worried that, should a member of the public using the route have an accident, he would be liable as landowner. Prior to 1997, Mr Jones had never challenged anyone using the route, although he does recall a conversation with a user who mentioned that the previous owner of the property was rumoured to have turned people back. He does not know the identity of the previous owner, nor the person who told him of the rumour. Mr Jones is quite clear that he first closed the route on the 6th September 1997. The reason he can be so specific is that it was the same date as the funeral of Diana, Princess of Wales. Mr Jones confirms that his initial reason for closing the route was to protect public health and safety; at this time Mr Quincey had just started building works to extend his property adjacent to the path, and the path was obstructed by building materials. Again, this was because as landowner, Mr Jones feared he would be liable should anyone have an accident. Mr Jones therefore sealed off the route with orange and white plastic tape. Mr Jones did not erect any signs. When the building works were completed, Mr Jones and Mr Quincey decided that they enjoyed the peace and quiet afforded by stopping public access to the path. Therefore, Mr Jones contacted the Rights of Way office. He was informed that this route was not recorded on the definitive map, and therefore, by mutual consent, Mr Jones and Mr Quincey erected a metal gate at each end of the route. These gates were erected in the early part of 1999. The problems associated with the public use of the path contributed to Mr Jones' ill health and were the main reason that he and his wife decided to sell the property.

13. Summary of the Landowner Evidence

13.1 Mr Jones was aware that this was a well used path prior to 1997.

13.2 Mr Jones did not challenge the public right to use the path between his property and his neighbours' prior to 1997. Other than a conversation where he was told that a previous owner once challenged users, he is not aware of any other owner having challenged public rights.

13.3 Mr Jones maintained the route regularly through the cutting of vegetation.

13.4 Mr Jones first closed the path in September 1997. He did this as he was concerned that building works on the adjacent property might endanger the users of the path. He was concerned that, as landowner, he would be liable for any accidents.

13.5 Mr Jones and his neighbour, Mr Quincey, enjoyed the peace and quiet afforded by the closure of the path. Therefore, after ascertaining that this route was not recorded on the definitive map, they erected a gate at either end of the route. These gates were locked, and owners of adjoining properties were given keys.

14. Analysis of the evidence

14.1 The evidence would suggest that between 1960 and 1997 the claimed route was frequently used, both by occupants of The Crescent, and other members of the public. There is no user evidence that suggests anyone was ever challenged in their use of the route prior to 1997.

14.2 There is no evidence of an express intention, on the part of the landowners, to dedicate a footpath between 83 and 85 The Crescent, and it is considered that the amount and degree of use is not sufficient to justify a deemed dedication at common law.

14.3 For the purposes of the Highways Act, 1980, it is necessary to identify a twenty year period of use, immediately prior to the public right to use the route being brought into question. In this case, the specific event which brought these rights into question is of particular importance.

14.3.1 Mr Jones recalls a conversation with a user who mentioned that the previous occupants of 83 the Crescent were rumoured to have turned people back. The previous owner cannot be traced and Mr Jones does not know the identity of the user with whom he spoke. Users who have been interviewed do not confirm this rumour, and therefore it is too remote to be relied upon without corroboration from another source.

14.3.2 The date given by Mr Jones for the initial closure of the route, the 6th of September 1997, is supported by a number of witnesses. There is also documentary evidence which corroborates the date. A letter from Mrs S Smith to Test Valley Borough Council, dated 10th October 1997, complains that the path has been closed for "over four weeks". A letter from Mr Leathley, dated 18th February 1999, indicates the temporary closure was present until three weeks prior to the date of the letter, when the path was re-opened. Witness statements and user forms confirm these approximate dates. It is clear that the closure of the route was sufficiently overt to make it known to the public that this path was closed. However, Mr Jones stated that the 1997 closure of the path was intended as a temporary measure to protect the health and safety of the public. Witness statements and user forms confirm that the public understanding was that this path was closed for health and safety reasons. The Rights of Way section feel that the closure of the path on the 6th September 1997 cannot be interpreted as a bringing into question, as the closure did not challenge the public right to use the path.

14.3.3 The permanent closure of the route in 1999 was clearly intended to stop public access to the path. This date is confirmed by the statement of Mr Jones and a number of witnesses. A letter from Mr Jones to Test Valley Borough Council, dated 9th April, 1999, indicates that Mr and Mrs Jones had already "erected a 2 metre high metal gate at the rear of the path". Furthermore, the letter from Mr Leathley to Test Valley Borough Council, dated 18th February, 1999, refers to "a seven foot metal gate....padlocked at the southern access" being erected a week prior to the date of the letter. The statement from Mr Jones confirms that these gates were erected to prevent public access to the route, and witnesses clearly indicate that they understood these gates to be a permanent measure, taken to prevent access to the route.

14.3.4 Although there may be an alternative interpretation, the Rights of Way section believe that the closure of the route in 1997 was not intended to challenge any public right to use the route, and cannot be classed as a bringing into question. However, it is felt that the closure of the route in 1999 was intended to challenge the public right to use the route. Therefore, Rights of Way section believe the relevant period, necessary to satisfy s.31 of the Highways Act is from January 1979 to January 1999.

14.4 Use must be as of right. This means that it must be without force, without secrecy and without permission. All users of the route appear to have used the path openly, during the day, sometimes in sight of the landowners, so it can be said to have been without secrecy. There is no evidence that permission was given to anyone to walk along the route. As far as the first element - force - is concerned, the path was blocked between September 1997 and February 1999. Although some users, including Mr Berry, claim to have used the route in this 18 month period, and Mr Reeves' statement confirms that some people still used the route at this time, this use involved either squeezing past builders' materials or removing an orange plastic barrier. The repeated removal of the barrier by users, and its reinstatement by landowners, may constitute a use of force.

14.5 Use must be without interruption. If Members agree that the twenty year period of use, relevant to the claim, spans from 1979 to 1999, then consideration must be given to the eighteen month period, commencing in September 1997, during which the path was blocked. 6 users claim to have used the route during this period, although only one of these users, Mr Berry, has been interviewed and has been able to confirm use of the path during the period when the building works were taking place. Therefore, it may be argued that use of the path was interrupted.

14.6 Use needs to be by the public, so there must be a sufficient number of people using the path to constitute the public at large. In this case, the volume of use by pedestrians is not particularly high; in total 19 (Mr and Mrs Hansen submitted a joint user form), 13 of whom were using the path in 1979 and 6 of whom were using the path by 1999. 6 users claim to have used the path for the full twenty year period. 2 of the total 19 users did not specify dates for their use of the path. The amount of use varies between fortnightly to almost daily. There is evidence of use prior to 1979, which shows that the path had been used by pedestrians over a long period of time and adds some credibility to the witness testimony for later years.

14.5 There are no hard guidelines about how much use it is necessary to have before the tests in s.31 can be satisfied. Consideration needs to be given to the location of the path, and whether it is in a remote, rural location, or on the urban fringe, as one would expect to find a greater number of users on a path in a more densely populated area. Its usefulness to the community as a strategic link in the local network is also a factor. Members may feel that the volume of users and the amount of use is somewhat on the low side, but the picture painted by the users is that for many years, prior to 1997, the path has been a well used local route. Officers consider that, prior to 1997, on balance, there is proof of use by the public at large sufficient to satisfy this element of s.31. However, only six user claim to have used the path from September 1997 to February 1999. Whether or not Members consider that use of the path was interrupted during this period, Officers feel that, on balance, the volume of users during this period does not constitute the public at large.

14.7 The Rights of Way section feel that the level of use of this path does not satisfy the tests in section 31. Therefore, it is felt that there is not sufficient evidence to confirm that this route was used by the public at large, for an uninterrupted period of twenty years, immediately prior to the bringing into question.

14.8 The evidence cannot give rise to a presumption of dedication of a right to walk along the claimed route, based upon the tests in section 31. There is no other evidence of a bringing into question prior to the closure in 1997 too which the tests could apply.

13. Comments from the Applicant and the Landowners

    A draft of this report was given to each of the landowners and the applicant to afford them the opportunity of submitting further evidence or making further comment. The responses are summarised below.

13.1 Mr Hegarty (Landowner)

      Mr Hegarty is satisfied with the content of the report and has no further comments to add.

13.2 Mr and Mrs Quincey (Landowners)

      No response.

13.3 Mr Leathley (Claimant)

      No response.

14. Conclusions

14.1 The early historic and documentary evidence does not suggest that there was any right of way over the claimed route prior to the construction of 83 and 85 The Crescent.

14.2 The conveyance of 83 The Crescent, dated 1941, would suggest that the alleyway between 83 and 85 was intended as a private right, providing access to the rear of properties. However, this does not mean that public rights cannot have been acquired subsequent to 1941.

14.3 There is a clear period of uninterrupted use, from 1960 to 1997. The 1997 closure of the path was not aimed at questioning the right of the public to use the path. Hence, it cannot be classed as a bringing into question. The public right to use the path was questioned in February 1999. Therefore, the twenty year period relevant to the claim is January 1979 to January 1999. Although there is evidence of user throughout this period, between September 1997 and February 1999 the path was temporarily blocked. It is felt that the number of users between September 1997 and February 1999 is extremely low. As a result, the statutory requirement that the path has been enjoyed by the public for a full period of twenty years, immediately prior to a bringing into question, cannot be satisfied.

RECOMMENDATION

That the application be refused.

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 CR659 - Rights of Way Office, Mottisfont Court, Winchester