Hampshire County Council Item 6

Regulatory Committee

20 October 2004

Claim to upgrade part of Footpath 46 to a bridleway and to add to the definitive map a bridleway from Footpath 46 to Bridleway 18, Owslebury.

Report of the Director of Recreation and Heritage

Contact: Emma Noyce ext. 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:-

(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

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 20 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 such as is mentioned in subsection (3) below or otherwise.

(3) Where the owner of the land over which any such way as aforesaid passes-

(a) has erected as sign in such a manner as to be visible to persons using the way a notice inconsistent with the dedication of the way as a highway; and

(b) has maintained the notice after the 1^st January 1934, or any later date on which it was erected,

the notice, in the absence of proof of a contrary intention, is sufficient evidence to negative the intention to dedicate the way as a highway.

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 to upgrade part of Footpath 46 to bridleway and add to the definitive map a new section of bridleway from Horsham Copse to Bridleway 18, Owslebury.

There is no historic evidence to support the Applicant's case, although there has been use of the path on horseback for the last forty years at least. From 1976 onwards there is evidence that the landowners did not intend to dedicate the route as a bridleway. Although there is evidence of use of this path over a full period of twenty years from 1956 to 1976, the very small number of users during part of this period do not represent "the public". It is therefore recommended that no order be made.

2. Background

2.1 Prior to 2002, Footpath 46 ran from Lower Farm, on Whaddon Lane, to Bridleway 18, following the route illustrated as A-B-C on Appendix 1. In 2002 this route was diverted, by legal Order. The new, and current, route of Footpath 46 follows route A-B-D. The claimed route follows the route of Footpath 46 from A to B, but deviates from the definitive route at point B. Instead of running through the middle of Horsham Copse, the claimed route skirts the north of Horsham Copse, on the edge of an open field. It then passes through a wooded area known as West Copse where it meets Bridleway 18, at point E.

2.2 The current definitive statement for Footpath 46 reads:

"From Road C.139 at Owslebury Lower Farm to Parish Boundary at Horsham Copse

From C.139 south-westwards along 12ft. wide gravel farm road enclosed between hedges, through field gate, along concrete road through farm yard, through field gate, then along 10ft. wide unmetalled track and through field gate at Horsham Copse, then along grass track following south eastern boundary of Horsham Copse and through field gate following Parish Boundary."

2.3 The definitive statements for the county's rights of way network were not re-written on either of the two reviews that have taken place except where necessary to reflect a change in the network following a diversion or other legal change. The present (1964) description therefore reflects the path as it appeared in the early 1950s. The current definitive statement does not yet reflect the 2002 diversion.

2.4 The claimed route from point B to point E is not recorded on the definitive map.

2.5 In 1979 an informal claim was made to upgrade route A-B-C to a bridleway. A letter and fourteen user forms were submitted to the Rights of Way section at Hampshire County Council, but no action was taken prior to the implementation of the Wildlife and Countryside Act 1981.

2.6 The present claim, made under s.53(5) of the 1981 Act, was made in October, 1998.

3. The Applicant and the Application

3.1 The Applicant is Mrs Carol Shoopman.

3.2 The formal application is "to upgrade to a bridleway Footpath 46 from Bridleway Number 8, Owslebury to Whaddon Lane, Owslebury, Winchester", although the Applicant appears claiming a route which partly follows Footpath Number 46 and is partly unrecorded on the Definitive Map.

3.3 50 user forms and a signed petition have been submitted in support of the current application.

4. The Landowner(s)

4.1 A number of landowners each own part of the claimed route. At the Whaddon Lane end of the route Mr and Mrs Bowes, Mr and Mrs Baker and Mrs Winstanley each own part of the route. Much of the route, where it passes through open farmland, is owned by Mr John Knowles. The Marwell Preservation Trust, of which Mr Knowles is the Honorary Director, owns Horsham Copse, and a short section of the claimed route to the north of point B. The southern end of the route, where it passes to the north of Horsham Copse, and through West Copse (B-E), is owned by Mr Andrew Rigg.

5. The issue to be decided

5.1 The issue to be decided by this Committee is whether or not there is evidence to show that part of Footpath 46 and part of an unrecorded path should be shown on the definitive map as a public bridleway.

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 over and above those presently recorded have come into being at some time in the past. This might be in the distant past (proved by historic or documentary evidence) or in the recent past (proved by witness evidence). It follows that some issues, often of great importance to the parties involved, are not relevant to the decision making process. Thus the need for a route of a particular status is irrelevant, as are matters relating to health and safety, potential damage or the popularity of the decision.

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 bridleway or higher rights as a result of dedication in the distant past. Any such rights are not lost merely through disuse. Unless stopped up by due process of law any rights previously dedicated will still exist, even if they are now neither used nor needed. This evidence must be looked at as a whole, it being unlikely that a single document or map will provide sufficiently cogent evidence to justify a change to the definitive map and statement. This type of evidence may disclose rights other than those claimed by the applicant, for example in this case they may show that Footpath 46 is an old road for vehicles, not merely a footpath or bridleway. The County Council is under a duty to record such rights as are found to exist, even if they are not claimed by the applicant.

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 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.

5.4 The originals of many of the documents referred to in this report are only available in public record offices, but copies, transcripts or tracings of most documents are available for inspection in the offices of the Rights of Way Section, as are witness evidence forms and statements. Members may inspect these, or the originals, when considering this report.

6. Consultation

The following persons and bodies have been consulted about the application, namely the County Council (Environment and Highways), Councillor Peter Mason (the local member), Winchester City Council, Owslebury Parish Council, British Horse Society, British Driving Society, Ramblers Association, Byways and Bridleways Trust, Trail Riders Fellowship, Open Spaces Society, Cyclists Touring Club and LARA. The following responses have been received.

6.1 County Council (Environment) - no comment

6.2 Councillor Peter Mason - comments that bridleway signs would need to be provided on Whaddon Lane.

6.3 Winchester City Council - no objection

6.4 Owslebury Parish Council - supports the application

6.5 British Driving Society - comment that route would make a good BOAT, but can offer no evidence in support.

6.6 Ramblers Association - no objection

6.7 Cyclists Touring Club - support application, but have no evidence to offer

6.8 British Horse Society - supports the application

7. Historic and documentary evidence

7.1 1759 - Taylor's map

This is a small scale map which is one of the earliest commercially produced maps which show roads. As with Milne and Greenwood, the scale of this map is such that only routes of some significance are likely to be shown. Moreover, these maps do not prove whether the routes shown on them are public or private, footpaths or bridleways. Owslebury is shown clearly on this map. Marwell Hall is depicted, but neither the claimed route, nor any routes in the near vicinity of the claimed route are mapped.

7.2 1792 - Milne's map

This map clearly shows the route which was to become Whaddon Lane. At the north end of Whaddon Lane a building is marked on the map, to the west of the road. This building is likely to be Lower Farm. The claimed route is not illustrated on this map. A dotted line passes to the south of the building, on approximately the same alignment as the claimed route. On this map, dotted lines, as indicated by the key to the map, represent administrative boundaries; not necessarily paths or roads.

7.3 1810 - Ordnance Survey one inch map and drawing

This map reflects the greatly improved mapping techniques that were practised by the Ordnance Survey and as a result much more reliance can be placed on it as an accurate representation of the topographical features present at the time of the survey. The map was derived from a survey and drawing at two inches to the mile and reflects a landscape in which large tracts of land were open, and roads and tracks across them unenclosed. Water Lane, to the north of the claimed route, is clearly shown, and Owslebury Lower Farm is depicted. On this map, a road is clearly shown on the same alignment as part of the claimed route. This road originates on Whaddon Lane, and continues in a south westerly direction past Lower Farm. At a point half way between Lower Farm and Horsham Copse, the route ceases to be depicted. The northern boundary of the road continues as an unbroken line, south of Horsham Copse, to Hensting Lane. The southern boundary of the road turns sharply southwards for a very short distance, and then appears to stop. The fact that this road or track is only partly depicted on this map does not necessarily mean that the route was a dead end, it may just reflect the fact that part of the route was unenclosed. However, the map offers no indication of the status of routes depicted on it.

7.4 1826 - Greenwood's map

This map carries the same evidential weight as Taylor's and Milne's map, considered above. Lower Farm is clearly depicted. Once again a route is shown leaving Whaddon Lane, through Lower Farm, on the approximate alignment of part of the claimed route, and once again this route is not depicted past the point approximately half way between Lower Farm and Horsham Copse.

7.5 1840 - Tithe Map and Apportionment

The Tithe Commutation Act of 1836 introduced a scheme whereby all tithes were converted from a payment from the produce of land to a money payment. The maps and awards prepared under this Act were prepared under statutory authority and were open to public scrutiny and are thus a reliable source of information about land use. Although they do not provide conclusive evidence about the existence of public highways, they can nonetheless provide indirect or supportive evidence about the history and status of a route, not least because public highways which were not titheable are generally found outside titheable plots.

7.5.1 The Owslebury tithe map shows the land on which the claimed route lies. Whaddon Lane and Lower Farm are depicted. A short stretch of road is shown leading from Whaddon Lane to the eastern corner of Lower Farm. This stretch of road is not recorded as titheable. It does not continue through Lower Farm. At the southern corner of Lower Farm a road resumes, on the same alignment as that mentioned above. However, the two stretches of road are not contiguous. The latter stretch of road follows the alignment of the claimed route for approximately 400 metres. It then stops abruptly. This road is given plot number 340. It is titheable and listed under the private ownership of Caleb Owton. It is named as `Roadway', and its description is `Arable'. The description of this road as arable may be a scribal error, or it may indicate that the route was rarely used and available for cultivation.

7.5.2 The tithe map does not show any roads continuing from plot 340. A narrow strip of land is illustrated, continuing south west from plot 340 to Horsham Copse, on approximately the same alignment as the claimed route. This land is given plot number 434 and called `Hedgerow'. The land is owned by Corpus Christi College and leased by Walter Long. The land is described as `Wood'. On the tithe map land, including that from B to C, on the claimed route is given plot number 344. It is called `West Copse', owned by Caleb Owton and described as `Wood'.

7.5.3 Neither the map nor the award prove that public highway rights existed across the claimed route. However, the tithe commissioners were concerned only with matters which would have affected the value of tithes and would not necessarily have recorded rights which had no effect on the tithes payable. Therefore this map does not prove whether or not public rights existed over the claimed route.

7.6 circa 1870 - Ordnance Survey County Series Map First Edition

This map is very useful in providing a detailed picture of the landscape at the time of the survey. Owslebury Lower Farm is illustrated on the map, as are Horsham Copse and West Copse. Once again, a road is shown leading from Whaddon Lane to the eastern corner of Lower Farm. This road does not continue through the farmyard, but appears to resume at the southern corner of the farm and continue in a south-westerly direction along the approximate alignment of the claimed route. There is an alternative track, represented by parallel dashed lines which leaves Whaddon Lane at the point A and continues, in a straight line, to the rear of the farm buildings. It rejoins the claimed route a short distance to the south west of Lower Farm. The part of the route between Lower Farm and Horsham Copse follows the approximate direction of the claimed route, though the course of the claimed route is much straighter than the route illustrated on this map. This map illustrates a thin strip of woodland extending from the north eastern point of Horsham Copse. On this edition of the map the route from Owslebury Lower Farm to Hensting Lane passes to the north of this wooded strip. The claimed route is located approximately 25m to the south of this part of the path recorded on this map. The map does illustrate a route leading from the approximate position of point B to point E along a roughly similar line to the claimed route. The status of this route is not indicated.

7.7 circa 1895 - Ordnance Survey County Series Map Second Edition

Again this map shows a track leaving Whaddon Lane and extending towards Lower Farm. This track appears to continue through Lower Farm and towards Horsham Copse, again taking a slightly less straight route than that claimed. This edition of the map does not illustrate a route passing to the south of Lower Farm. At a point just to the north of Horsham Copse, the trackway illustrated on this edition of the map changes course slightly and follows a route to the south of Horsham Copse, approximately on the alignment of Footpath 46 before it was diverted. Where it passes to the south of Horsham Copse, this track is annotated with the letters F.P. F.P. is a conventional annotation used on Ordnance Survey maps, and refers to Foot Path. Once again a track is shown leading from Hensting Lane at point E and through West Copse on approximately the same alignment as the claimed route. However this route does not continue past West Copse and does not meet up with the trackway to Lower Farm.

7.8 1910 - Ordnance Survey County Series map third edition

This map clearly shows a route following a very similar course to the original route of Footpath 46. This route is annotated as F.P. in two locations: once between points A and B and once between points B and C. Again a path is shown through West Copse on approximately the same alignment as the claimed route, but once again this path does not extend past West Copse to link with the track to Lower Farm.

7.9 Other Ordnance Survey maps

7.9.1 The fourth edition of the County Series map, published in 1939 depicts the route from Lower Farm almost exactly as depicted in the third edition.

7.9.2 The Ordnance Survey National Grid 1:2500, surveyed in 1962 and published in 1964, is the first map to show the claimed route in its entirety. This map does not give any evidence as to the status of the route between B and E. The original course of Footpath 46 between points B and C is partially shown, and is labelled F.P.

7.9.3 In summary, all of the Ordnance Survey large scale mapping between 1870 and 1962 shows a route between Lower Farm to Hensting Lane approximately along route A-B-C. Most maps annotate this route with F.P. The only map which shows the claimed route in its entirety is the 1962 National Grid 1:2500. This map does not indicate the status of this path.

7.10 National Parks and Access to the Countryside Act 1949

The Rights of Way section's parish files show that in November 1948 Owslebury Parish Council claimed Footpath 46, between Whaddon Lane and Hensting Lane, as a Right of Way. There is no evidence to show what class of right of way was intended, but the path was shown on the first definitive map as a footpath, and there is no evidence to suggest that this status was disputed at that time. The claimed route from B to E, to the north of Horsham Copse and through West Copse, was not recorded on this map. No change was made to the route of this path until it was diverted in 2002.

7.11 Other relevant sources

7.11.1 Various maps, relating to the Mildmay estate, dating to the early and mid nineteenth century, show the land to the west of Hensting Lane. None of the maps show the claimed route, but many illustrate Hensting Lane, and indicate routes leaving this lane. The area surrounding point E on the attached map is illustrated. Water Lane (to the north of the claimed route) and Thompsons Lane (to the south of the claimed route) are partially illustrated, but no routes are illustrated on the alignment of the claimed route.

7.11.2 In 1872 an Order was made to stop up and divert part of a Highway from Lower Farm to Hurst Common. A map accompanies this order, as does the notice which was erected on the route. There is a Justices Certificate to certify the completion of this diversion. This highway was diverted from a route which passed through the farm on the same alignment as the claimed route, to a route which passed to the south of the farm buildings, approximately the same path as shown on the first edition of the Ordnance Survey County Series Map. The map describes the route as a `Public Footway'.

7.11.3 In 1948 a survey of footpath obstructions in the Parish of Owslebury was undertaken. It is not known who undertook this survey, but it is likely that it was undertaken by, or on behalf of, the Parish Council, possibly in anticipation of the National Parks Act in 1949. This survey reads:

"Footpath through Lower Farm to Fisher's Pond. This path runs through the garden of the farm cottage and continues at the back of Lower Farm Stables. The gate leading to the cottage garden has been removed and a macrocarpa hedge planted. Where the stile was, a Dutch Barn has been erected and the pathway permanently blocked. There is an alternative footpath through the farmyard and this is used considerably but people have been stopped. To put this matter in order the diversion should be brought before the Quarter Sessions."

7.11.4 In 1978 the Ramblers' Association undertook an informal survey of the rights of way in the Owslebury area, and produced descriptions of paths as they appeared. These descriptions were reviewed in 1980. The 1978 description reads:

"From road C139 (wooden `Footpath' board) SW on metalled track, 5 metres wide, for 350 metres, continuing onto grass track, 180 metres, 3 metres wide, for 750 metres, entering copse (5050.2250). After 50 metres path turns S for 30 metres. (Dutch barn on left), and then turn SW on ill-defined grass track that winds alongside Horsham Copse, on right, for 265 metres, width variable, 1-2mm, [sic] to stile with steps (5025.2180) then 25 metres by grass track to Parish Boundary at junction of Bridleways 20 and 18 (Colden Common). ".

Under the heading `Notices' the survey identifies a "No Horses" board at grid reference 509 227. The 1980 review of this survey removes the reference to the notice and indicates that the footpath sign at the Whaddon Lane end of the route was also missing. The following comments were added:

"It has been suggested that this footpath be upgraded to bridleway status. The appalling state of bridleway 18 (Colden Common) which used to be a very pleasant attractive walk before there were so many horse in the area, makes me very much against this. There is already bridleway 42 around the Marwell Wildlife Park, and bridleway 9 (Water Lane) to cater for horses."

8 Conclusions from the Historic Evidence

8.1 The evidence provided by maps and other documents between 1759 and 1962 is insufficient to prove the existence, or status, of a bridleway on the claimed route. The claimed route is first illustrated, in its entirety, on the 1962 Ordnance Survey National Grid Map. This map gives no indication of what rights exist on this route.

8.2 Any rights which may have existed on either route A-B-C or route A-B-E

during, or prior to, the nineteenth century were extinguished by a legal Order, relating to the part of the route where it passes through Lower Farm, in 1872. Any rights which exist on this part of the claimed route must have been re-established, since this date.

8.3 There is no historic or documentary evidence to suggest that bridleway rights

have been acquired on any part of the route subsequent to 1872.

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 evidence that the landowner expressly 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 intended a way to become a public highway.

9.1.3 Alternatively, dedication may be presumed under s.31 of the 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 the landowner did not intend 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 As previously discussed in paragraph 2.5, an informal claim was made to record a route between Lower Farm and Horsham Copse as a bridleway in 1979. This claim referred to route A-B-C. Although this route is not the same as the route currently being claimed, both routes follow the same alignment from point A to point B on the attached map. Therefore, although the 1979 user forms cannot give evidence as to use of route A-B-E as a whole, they are useful for assessing the volume of user on the part of the route from A to B. Moreover, any challenges identified in the 1979 evidence to the section of track from A to B are relevant to the current claim

9.2.1 The combined number of users is 69. The evidence of Miss Burnell has been included in the breakdown of user volume for both the 1979 claim and the 1998 claim because she filled out a form in both 1979 and 1998.

9.3 1979 user evidence

9.3.1 In 1979 the Rights of Way office received a letter from Mrs CM Griffin informally requesting that a track between Lower Farm and Horsham Copse be upgraded to bridleway. This letter was accompanied by 14 user forms.

9.3.2 The letter accompanying the informal claim is dated 4^th April 1979. It states

that:

"The path has been used as a bridleway for many years and until two years ago horseriders and walkers alike had enjoyed the track. However, as you will see from the forms several of us have been stopped by employees of `Mr Marwell' and indeed at one time notices conveying the message `No Horses' were in evidence. However upon my last inspection of the area these had disappeared."

9.3.3 Evidence from the 1979 user forms is shown in Appendix 2¹. The earliest use

of the route claimed in 1979 (route A-B-C) dates to 1951. By 1960 8 users claim to have been using the route, by 1970 12 users claim to have been using the route and by 1979 14 users claim to have been using the route. All fourteen users claim to have used the route on horseback, ten of the fourteen claim to have used the route both on foot and on horseback. As a result of the layout of these early user forms, it is not clear whether these ten users used the route both on horseback and on foot during the entire period of their usage, and how frequently they used the route on foot compared to on horseback.

9.3.4 During the course of investigating the current claim, the Rights of Way office

has made efforts to contact a number of people who filled in user forms in 1979. Six of these users have been interviewed, and their statements are summarised below. Mr Cook has not been interviewed, but has provided signed evidence that he used route A-B-E from 1947 onwards.

9.4 1998 user evidence

9.4.1 47 user forms, a petition and 5 letters were included with the current application in 1998. A further three user forms were submitted in 2004. One of these forms was submitted by Mr Cook, this evidence has been assessed in section 9.3. The other two forms have been assessed in paragraph 9.5.

9.4.2 The volume of user on route A-B-E, based on evidence from the 1998 forms is shown in Appendix 3²: The earliest use of the claimed route by horseriders, based on evidence from 1998, was in 1962. By 1970 four users were riding on the route, by 1980 19 users, by 1990 35 users and by 1998 38 users. At the date of this report, riders continue to use the route.

9.5 Other users

9.5.1 In the course of investigating the claim, a number of users have contacted the Rights of Way office to give information as to their memories of the claimed route. These users did not complete evidence forms in either 1979 or 1998.

9.5.2 Eight of these users have been interviewed. Among these users, the earliest use of the claimed route is 1949. Two further users submitted evidence forms but have not been interviewed. The evidence of these users is summarised in Appendix 4.

9.5.3 Further users have provided details of their knowledge of the path. Although this information may not have been specifically referred to, it has been taken into account during the preparation of this report.

9.6 Statements

9.6.1 Mr Bowden (completed a 1998 user form)

Mr Bowden has lived in Owslebury since 1964. He has been riding in the area since this date and has followed the claimed route approximately three times a week. Mr Bowden has occasionally seen other riders on the route. He has never been told that it was not a bridleway and never been turned back. He recalls signs erected on route A-B-C, possibly by Marwell Zoo. He cannot recall the exact wording of these signs, but believes they are still present on the route.

9.6.2 Miss Burnell (completed both a 1979 and a 1998 user form)

Miss Burnell has kept horses in the vicinity of the claimed route since 1962. She has ridden along the claimed route, approximately once a week, since 1964. Miss Burnell has frequently seen other riders on the route. She has never been challenged when using the route, but thinks that it is possible that the claim in 1979 was made because someone was told the route was not a bridleway. In the late 1990s, Miss Burnell heard that riders were being challenged by Mr Wilde, at the Whaddon Lane end of the route. Miss Burnell has seen signs on the route. She believes that a sign was erected, at point A on the route, in 1998. This sign is still present, and says "Footpath only, no horses". She also recalls a sign in the same position, erected prior to the 1979 claim. She believes this said "no horses", though she cannot be sure. Miss Burnell does recall gates at the Whaddon Lane end of the route, but believed these gates were never locked.

9.6.3 Mrs Conyngham (completed a 1998 user form)

Mrs Conyngham has lived in Owslebury, on and off, since 1965. From 1965 to 1971, she rode either route A-B-C or route A-B-E approximately once a week. From 1971 to 1973, Mrs Conyngham rode either route A-B-C or route A-B-E approximately once a month. She did not ride in the area from 1973 to 1976. From 1976 to 1980 Mrs Conyngham rode either of the two routes weekly. From 1982 to 1982 she rode the routes monthly and from 1987 onwards Mrs Conyngham rode either route A-B-C or route A-B-E once a week. When route A-B-C was blocked, in the late 1990s, Mrs Conyngham began using route A-B-E more frequently. She frequently saw other riders on the route, and believed it to be a public right of way. Mrs Conyngham recalls a sign saying `footpath only' at the Whaddon Lane end of the route in approximately 1999. She does not recall any gates on the route. Although Mrs Conyngham has never been stopped or challenged when using the route, she understands that members of her livery have been told the route is not a bridleway.

9.6.4 Mr Fowle (completed a 1979 user form)

Mr Fowle began riding the claimed route in either 1953 or 1954. He moved away from the area in 1985. He rode to Owslebury approximately once a week. He used either route C-B-A or route E-B-A, but tended to use route C-B-A more frequently as it was the most direct route from Colden Common to Owslebury. In the 1950s Mr Fowle was sometimes accompanied by members of his family or members of his stables. He cannot recall ever being challenged or stopped from using the route prior to the 1970s. Mr Fowle remembers that in the mid 1970s Marwell Zoo took action to stop riders from using the route, by erecting signs and turning people back. He cannot recall where these signs were or how they were worded.

9.6.5 Mr and Mrs Frearson (no user form)

Mr and Mrs Frearson began riding route A-B-C and route A-B-E in 1949. The last time they rode either route was in approximately 1984. They rode either route A-B-C or route A-B-E approximately once a week. They recall riding through Lower Farm when it was owned by Mr Stern. They also recall the Moldon family. Mr and Mrs Frearson remember other people using the claimed route in the 1950s, including Mr John Cook. Mr and Mrs Frearson remember Mr Cook owned stables from approximately 1947 onwards, and they think that clients of his stables used the claimed route from the early 1950s onwards. They also remember Denny Fowle, Barbara Burnell, Janet Jefferis, Mick Reeves and Harry Trigg using the claimed route. Mr and Mrs Frearson have never been turned back or prevented from using the route and they have never asked for, or received, permission to use the route. They do not remember signs and notices on the route. Mr and Mrs Frearson believe that Mr Knowles took action to deter horse riders from using the claimed route, probably prior to 1979, which resulted in the 1979 claim being made.

9.6.6 Mrs Gearing (completed a 1979 user form under her maiden name of Munday)

Mrs Gearing has lived in Colden Common all of her life, and although the form she completed in 1979 states that she used the claimed route from 1958 onwards, she believes she did not start riding on the route until 1967, when she began keeping a pony at Mr Cook's stables in Brambridge. Approximately once a month she rode to Owslebury along either route C-B-A or route E-B-A. Mrs Gearing was often accompanied by her friend, Miss Burnell. She always believed that this track was a bridleway, and does not remember any gates along the route. On her 1979 user form Mrs Gearing mentioned `No Horses' signs along the route. She cannot remember the location of these signs.

9.6.7 Mr Griffin (completed a 1979 user form)

Mr Griffin is the husband of the late Carole Griffin, who made the claim in 1979. Mr Griffin began riding in 1975, his wife began in 1972. He remembers that his wife wrote to the Rights of Way office, requesting that route A-B-C be upgraded to a bridleway in 1979. Mrs Griffin filled out a user form in 1979 on behalf or herself and her husband. Mr Griffin confirms that the contents of the letter and the information on the user forms is accurate. Mr Griffin thinks he and his wife rode both route A-B-C and route A-B-E, although he recalls riding A-B-C more clearly. Mr Griffin recalls the route being well used. He does not recall hearing that employees of Marwell turned people back, and does not recall gates on the route. Mr Griffin does remember that his wife wrote to the Rights of Way office as a result of actions taken by the owner of Marwell Zoo. He thinks Mr Knowles began erecting signs on the route, he remembers these signs going up in 1976. Mr Griffin recalls the signs being taken down very soon after they appeared. The signs Mr Griffin remembers were in Horsham Copse, near to some jumps which had been constructed in the woods. The signs said something like "No riders". Mr Griffin cannot remember signs between point A and point B - he has a vague recollection of a water trough on the track with signs on it, but his recollections of this are to vague to be relied upon.

9.6.8 Mrs Irving-Bell (completed a 1998 user form)

Mrs Irving-Bell has lived in the area since 1964. She rides approximately five days a week, and rides to Owslebury approximately once a fortnight. Mrs Irving-Bell recalls that access to route A-B-C was blocked in the early 1990s. Prior to this date she used either route A-B-C or route A-B-E. Since this date she has had no choice but to ride A-B-E. Mrs Irving-Bell recalls that the farmer has always left an unploughed strip to the north of Horsham Copse, and thinks that Bishops Waltham Riding Club may have done some work to clear vegetation along the route in the 1980s. Mrs Irving-Bell was once stopped when using the route, in the late 1990s. After the incident she learnt that the man who had stopped her was Mr David Rees [tenant farmer]. He said words to the effect of "you shouldn't be riding up here, it's not for horses". Mrs Irving-Bell understands that Mr Rees occasionally stopped other riders in the same way. Mrs Irving-Bell recalls a wooden rail on the path, which a notice on it which said "private, no horses". She believes that this barrier was erected near Lower Farm, but cannot remember exactly how the barrier was constructed. She cannot remember when this barrier first appeared, but believes it disappeared in the late 1990s. In the late 1990s, Mrs Irving-Bell recalls a new sign at point A. She believes this sign said "footpath only, no horses".

9.6.9 Mrs Jefferis (completed a 1979 user form)

(Interviewed at the same time as Mrs Smith, Mrs Wellby and Mrs Sabine. Mrs Jefferis is the mother of Mrs Wellby and Mrs Smith)

Mrs Jefferis began riding both route A-B-C and route A-B-E in 1956. Her late husband, Mr Roy Jefferis, began riding the route a year earlier, in 1955. She rode either route A-B-C or route A-B-E approximately three or four times a week, depending on the season. Mrs Jefferis rode each route with equal frequency. Mrs Jefferis recalls both routes being well used by riders. In 1974 Mrs Jefferis took a group of Spanish students riding, they rode along route A-B-E. Mrs Jefferis knew Mr Moldon (snr) very well. She recalls him being a nice man who would sometimes stop to pass the time of day with riders. Mrs Jefferis believes that the owners of Marwell Zoo started to take action to prevent riders from using the claimed route as a result of an incident when the hounds from the local hunt gained access to a field of Przewalski Horses owned by the zoo. Mrs Jefferis does remember a sign displayed at point B, relating to the route between point B and point C on the map. She cannot recall the wording of the sign, but believes it was written in the red lettering on white chipboard, and said words to the effect of "Marwell - do not enter". On the user form filled out in 1979, Mrs Jefferis mentioned being turned back by an employee of Marwell. She cannot recall much about this incident, but is quite sure that the man approached her between A and B, on the claimed route. She remembers that after she was told not to ride along the track, she went to find the farmers wife, to apologise for trespassing for all these years. The farmers wife said that she didn't mind, but that the route was not an official bridleway. Mrs Jefferis recalls the post and rail fence over the route. She is sure that the fence was erected to stop travellers gaining access to the land, and was definitely not intended to stop horses.

9.6.10 Mrs Pam Page (no user form)

Mrs Page began helping at Mr Cook's stables in approximately 1950. She began riding the claimed route at this time. She remembers riding both route A-B-C and route A-B-E. She recalls riding one or other of the routes approximately once a week, and recalls that Mr Cook took members of his stables on one of the routes more frequently. Mrs Page's daughters began riding in the 1970s. Mrs Page stopped riding in approximately 1975. She cannot recall any signs or gates on the route prior to this date, and is not aware of anyone being turned back.

9.6.11 Mrs Sabine (no user form)

(Interviewed at the same time as Mrs Jefferis, Mrs Wellby and Mrs Smith)

Mrs Sabine has been riding in Owslebury since 1975 when she moved to the area. She rode either route A-B-C or route A-B-E once a month. Mrs Sabine tended to ride A-B-E more frequently than A-B-C, and rode route A-B-E exclusively when Mr Knowles erected a fence at point B in the 1990s. She has never been stopped or told not to use the route, although she does recall hearing that one of the families who lived at the Whaddon Lane end of the route did once try to stop riders in the late 1990s. Mrs Sabine recalls signs around Horsham Copse, one situated at point B and relating to the route between B and C. These signs said words to the effect of "Do not enter wood". She thinks these signs may have been erected because of the pheasant shoot in the wood. Mrs Sabine recalls an incident where the local hunt gained access to Mr Knowles' land, and believes that Mr Knowles took action to stop riders as a result of this incident. She recalls a fence on the route at point E, probably erected in the 1990s. Mrs Sabine does not think the fence stopped riders - they simply diverted round it through a gap in the trees. She also recalls a post and rail fence over the route in the early 1990s. This fence had a gap in it which enabled riders to get through, and Mrs Sabine believes it was not intended to stop riders. She stopped riding the route when part of the track through Lower Farm was gravelled.

9.6.12 Mrs Smith (completed a 1979 user form)

(Interviewed at the same time as Mrs Jefferis, Mrs Wellby and Mrs Sabine, Mrs Smith is the sister of Mrs Wellby and daughter of Mrs Jefferis)

Mrs Smith began riding in approximately 1954, at the age of five. She began riding on her own in either 1959 or 1960. Mrs Smith believes she would have ridden the claimed route, accompanied by her mother, from 1954 onwards. She stopped riding in 1996. Mrs Smith rode the route approximately once a month, though her usage varied with the weather. She rode either route A-B-C or route A-B-C, using each route with equal frequency. She recalls the claimed route being well used and well known, and believed that both route A-B-C and route A-B-E were bridleways. She often rode the route with family and friends, and her two sons began riding the route with her in 1972 and 1973. Mrs Smith remembers a wooden pole fence across the route in the late 1980s or early 1990s. She remembers that there was a gap left in the fence which was wide enough to allow horses through. Mrs Smith has never seen signs or notices on the route.

9.6.13 Lady Torrington (no user form)

Lady Torrington moved to Owslebury in approximately 1982. She has always known the route to be a footpath, and recalls it being signposted as such from the 1980s onwards. When she first got ponies for her children, lady Torrington asked Mr Moldon permission to use the route. He granted permission, but Lady Torrington was clear that this was completely at his largesse. Lady Torrington recalls that only a small number of riders used the route in the 1980s, and believes they used it in the knowledge that it was a footpath. She believes that because there were only a small number of riders, the Moldon family would have known each of them and would not have objected. She is aware that the number of riders using the route has increased greatly in recent years.

9.6.14 Mr Trigg (no user form)

Mr Trigg has ridden the claimed route since 1943. He recalls that in 1943 he asked permission to use the route. Permission was granted by Mr Edward Stern, the then landowner. Mr Trigg believes that there were very few riders in the area in the 1940s and 1950s. He believes that those that did ride were much like him; they either rode on designated bridleways, or asked landowners' permission to ride. Mr Trigg is not aware of any signs or notices on the route, but he does remember that Mr Knowles was concerned about riders on the route. There was a spell when he did not ride the on the route, just after Mr Knowles bought the land; Mr Knowles was concerned that riders were using the track, and asked Mr Trigg not to ride there.

9.6.15 Mrs Wellby (no user form)

(Interviewed at the same time as Mrs Jefferis, Mrs Smith and Mrs Sabine, Mrs Wellby is the sister of Mrs Smith and daughter of Mrs Jefferis)

Mrs Wellby began riding in 1965 when she was four years old. She has been riding to Owslebury for as long as she can remember, and presumes she has ridden the claimed route since 1965 when accompanied by her mother. She has ridden a number of routes including A-B-C and A-B-E. Since she began riding in the area she has used one of the two routes approximately twice a week, more frequently between 1982 and 1992 when she owned a horse which was hunter fit. Mrs Wellby rode route A-B-C and route A-B-E with equal frequency until part of the route from B to C was gated, in the late 1990s. She then rode route A-B-E exclusively. There have been short periods of time when Mrs Wellby hasn't rode the claimed route, these being when she was heavily pregnant and her children were very young. Her children are now 17, 10 and 7. Mrs Wellby cannot remember being stopped or challenged on the route. She recalls Mr George Moldon very well, and recalls that he was a kind man who would often stop to exchange pleasantries. She particularly remembers one warm evening when Mrs Moldon made her and her friends a drink as it was so hot to be riding. Mrs Wellby recalls an incident where the hounds from a local hunt got into Mr Knowles' field of Przewalski horses. After this event, she thinks Mr Knowles became active in his efforts to discourage riders from using his land. She does not recall any signs on the claimed route, but does recall a sign in the trees at point B. This sign was positioned so that it was visible to riders following the route from E to B and related to the track from B to C. She cannot remember the wording on the sign, but thinks it said "Marwell, do not enter". Mrs Wellby understood this sign to mean that riders weren't allowed to use Horsham Copse, not that they couldn't used route A-B. Mrs Wellby recalls a barrier at Lower Farm in the late 1980s. This barrier consisted of a wooden fence. Mrs Wellby is confident that this fence was not intended to stop riders, in fact, she recalls a conversation with the farmer who told her not to worry, that he had made it wide enough for horses to get through.

10 Summary of the recent user evidence

10.1 The earliest use of the claimed route was in approximately 1947. The volume of riders using the route between Lower Farm and Hensting Lane appears to have been relatively low until the 1970s.

10.2 As Mr Trigg and Lady Torrington received permission to ride the claimed route, their use was not "as of right". Their evidence cannot be used when assessing the total volume of user.

10.3 A informal claim to upgrade route A-B-C to a bridleway was made in 1979. This claim was made as a result of challenges made to riders using the route.

10.4 A number of users recall seeing signs. Some recall gates and some recall being told that the route was not a bridleway. Many users do not recall seeing signs. The earliest date for challenge to the use of the route appears to be approximately 1976. On a 1979 user form, Mr and Mrs Griffin mentioned "No Horses" signs "along track and in wood" appearing in 1976. When interviewed, Mr Griffin confirmed that the signs appeared in 1976. He remembered the signs in the wood, but not those on the track. Mr Fowle recalled that Marwell Zoo began to challenge riders from the mid 1970s onwards. A detailed list of challenges made to riders on the claimed route is contained in Appendix 4.

11 The actions of the Landowners

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

11.2 The current landowners of the claimed route are listed in paragraph 4.1.

11.3 Prior to 1989 Mr George Moldon owned all of the path where it passed through Lower Farm. Mr Moldon bought the land in 1959 from Colonel Harrison, who in turn bought the land from Mr Stern. Mr Stern is understood to have farmed the land during the Second World War .

11.4 Mr Knowles bought Marwell Hall, including the part of the claimed route

from Lower Farm to Horsham Copse, in 1969. Mr Knowles has since donated some of the land, including Horsham Copse to the Marwell Preservation Trust, of which he is the Honorary Director. The Rights of Way office has been unable to establish who owned this land prior to 1969.

11.5 It is understood that Mr Baker bought his property from Mr and Mrs Wilde.

Mr and Mrs Wilde lodged a statutory declaration under section 31(6) of the Highways Act, 1980, on the 21^st August, 1997. This declaration covers the claimed route where it passes through Lower Farm. The document acknowledges the footpath status of the definitive route. It declares that no other ways have been dedicated, and that the landowners have no intention to dedicate any further public rights over their land.

11.6 A petition was handed to the Rights of Way office as part of the claim. This

petition is in the form of a signed letter. It reads:

"This is to confirm that we, the undersigned, have no objection to the responsible riding of horses past our properties at walking pace"

This petition was signed by the following residents: JA Webb, Paul & Penny Bowes, P Morse, R Wills, L Chapman, Kate Winstanley, RH Webb, GA Windebank, HC Bendall and J Winstanley. Of these signatories, Paul and Penny Bowes and Mrs Winstanley each own part of the claimed route.

11.7 Mr and Mrs Baker are represented by Pitmans solicitors. In a letter dated 22^nd

June 2004 objecting to the present application they set out grounds of opposition to the claim. They argue that objections have been raised against the bridleway use of the path for many years.

11.8 Mrs Winstanley has not responded to consultation.

11.9 The Rights of Way office have interviewed Mr Knowles, Mr Rigg and Mr & Mrs Bowes. Mr George Moldon has now passed away, but his son, David, has been interviewed. Two employees of Mr Knowles - Mr Harding and Mr Powell - have also been interviewed.

11.10 Statements of the landowners and their employees

11.10.1 Mr and Mrs Bowes

Mr and Mrs Bowes became the owners of Lower Farm House in 1989. Part of the claimed route passes through their land. They understand that the public has the right to use part of the route on foot, but do not believe any higher public rights exist on the route. They do believe that some individuals have private rights to drive vehicles along part of the claimed route. Since moving into the property they have frequently observed riders along the claimed route, and describe the volume of use as "several riders, several days a week". Mr and Mrs Bowes have once seen a quad bike on the route, which they believe to have followed route A-B-E. Mr Bowes has challenged riders on the route occasionally, since 1989. Generally, Mr Bowes says words to the effect of "Do you realise this is not a bridleway?". Mr and Mrs Bowes have not erected gates on the route, though their deeds do refer to gates along the track at the boundaries to their property. They recall that Mr Winstanley erected a barrier across the route in 1989-1990, and have provided photographs of this barrier, taken between 1990 and 1991. Mr and Mrs Bowes are aware of a sign at the Whaddon Lane end of the route. This sign was erected by Mr Wilde, and said words to the effect of "footpath only, no horses". This sign was removed, and replaced with the current sign which reads "footpath only". Mr and Mrs Bowes understand that Mr Wilde, Mr Rigg and Mr Rees have all raised objections to riders using the route.

11.10.2 Mr Harding

Mr Harding began working for Colonel Harrison, in the vicinity of the claimed route in approximately 1960. Prior to this date he had knowledge of the area. In the late 1970s Mr Harding began working as a carpenter for Mr Knowles. Mr Harding was a gamekeeper, in the vicinity of the claimed route, in his spare time (this was a hobby). Mr Harding recalls that until the mid 1970s it was very rare to see riders on either route A-B-C or route A-B-E. He recalls seeing only one or two riders a year, and whenever he did see them, as instructed by his employers, told them to turn back. Mr Harding told them that the track was not a bridleway and that they should use Water Lane instead. He remembers putting up signs on the route. Mr Harding cannot remember where these signs were, but he thinks they may have said something like "No horses". He cannot recall the exact date when he first started putting up signs, but thinks it could have been in the mid 1970s. Mr Harding remembers that riders became more of a problem on the route when riding schools were established in the area. Eventually, in an effort to stop riders using route A-B-C, a gate was erected just north of point B (Appendix 1). This gate was placed across the track, with a stile on one side to allow pedestrian access to route A-B-C. He cannot recall exactly when this gate was erected, but it was before Mr Harding's retirement in 1990.

11.10.3 Mr Knowles

Mr Knowles bought Marwell Hall and the surrounding land in 1969. This land included the majority of the claimed route. In 1978 he donated the land which is now the Zoological Park to the Marwell Preservation Trust. Subsequently he gave Horsham Copse to the Trust. He sold the remainder of this land. Almost from 1969, Mr Knowles was aware that the Moldon family, and Mr George Moldon in particular, were totally against horses riding through their farm. Mr Knowles believes that Mr George Moldon took steps to prevent riders using the route, for example, he recalls that Mr George Moldon erected a gate at the southern boundary of Lower Farm in either 1974 or 1975. Mr Knowles instructed his employees to erect signs along route A-B-C more or less continuously from 1969 onwards. He cannot recall the exact wording of the signs, but remembers that they were designed to stop horses from using the route. He cannot recall where these signs were located, but the signs were designed to stop people riding through Lower Farm. Prior to the mid 1970s Mr Knowles did not take any further action to stop riders from using the route, mainly because riders rarely used the route. In 1972, Marwell moved their Przewalski horses onto the field adjacent to the route. He remembers that a couple of years after this, Marwell became more active in their efforts to discourage riders from using the route, continuing to erect signs and turn riders back. Mr Knowles is sure that he has personally told riders to turn back at least twice, and confirms that in the mid 1970s he instructed his employees to tell riders they were not allowed to use the route.

11.10.4 Mr David Moldon

Mr David Moldon is the son of the late Mr George Moldon, owner of Lower Farm. Mr George Moldon bought Lower Farm in 1959. Mr David Moldon moved away from Lower Farm in 1994. For many years Lower Farm was a working farm. Mr David Moldon is sure that the path would have been gated, though he cannot recall the location of these gates. He cannot recall his parents taking any specific action to stop horses on the route, mainly because there were hardly any horses on the route. Mr Moldon only recalls seeing about half a dozen horses per year on the route prior to the establishment of riding schools in the area. Mr Moldon recalls that when Mr Knowles bought the land for Marwell Zoo he became concerned about riders using the route. Mr Moldon believes that this was because Mr Marwell kept Przewalski horses adjacent to the route. Mr Moldon is sure that "no horses" signs were erected on the route, and believes that this was a result of Mr Knowles' concern. Mr Moldon recalls the exact location of one of these signs, it was on the claimed route, at a point to the north of Horsham Copse, facing riders who would be travelling in the direction of Lower Farm. He does not recall exactly when these signs were erected, although thinks it was possibly in the early 1970s. Mr Moldon believes they were definitely in place by the mid 1970s. Mr Moldon began converting the barn at Lower Farm to residential dwellings in the late 1980s. He was on site every day, immediately adjacent to the claimed route, but recalls hardly any horses using the route at this time. Mr Moldon sold one of the converted properties to Mr Wilde. He understands that Mr Wilde was unhappy about horses on the route as he kept dogs. He also believes that another of the persons who lived at the property, Mr Winstanley, was unhappy about horses on the route, so erected a wooden post fence across the route which had a gap that enabled pedestrian access. He has passed a copy of a photograph of this fence to the Right of Way office. He believes the fence was erected in 1989. Mr Moldon did not take any action to stop horses using the route, and he cannot recall his parents taking any action. Mr Moldon states that this was because action was unnecessary as so few riders used the route.

11.10.5 Mr Powell

Mr Powell has been employed by Marwell Zoo as a member of their ground-staff since 1972. He has knowledge of this area prior to this date. He is aware that there has always been controversy about the use of the route between Lower Farm and Hensting Lane by riders. As far back as he can remember he has been aware that this route was not a bridleway. Mr Powell recalls a gate across the route at the southern boundary of Lower Farm in the late 1950s. He cannot recall whether or not this gate was locked. Mr Powell recalls that riding on the route was not a big issue in the 1970s, simply because there were so few riders in the area. The few riders that did use the route from Lower Farm to Horsham Copse tended to use route A-B-C. Mr Powell recalls notices on the route from at least 1972 onwards. He cannot recall the location of these notices, but thinks they may have said words to the effect of "No Horses". Since working for Marwell, Mr Powell has often turned people back when he has seen them using the route. Mr Powell recalls installing a gate across the route approximately 18 years ago. This gate was located a few hundred yards to the north of Horsham Copse, and went right across the path with a stile on the southern side to allow pedestrian access. The gate was locked and Mr Powell cannot remember when the gate was removed.

11.10.6 Mr Rigg

Mr Rigg is the freeholder of much of the land to the north of the claimed route. He is also the landowner of the claimed route where it passes from point B to point E. He bought the land in 1989. Mr Rigg is aware that the public has a right to use route A-B-D on foot. He understands that he has a private right to use route A-B-E with a vehicle. He is not aware of any public rights over the route from B to E. He has witnessed a number of riders using a number of different routes across his land. He believes these routes are used by the riders fairly frequently. Mr Rigg comments that prior to 2002 (when FP46 was diverted), although a few rides used route A-B-E, the majority used route A-B-C. When the path was diverted, the volume of riders using route A-B-E increased. Mr Rigg has given permission to one rider to use the route from B to E. He does not know the identity of this person. He has not challenged anyone using the claimed route. Immediately after the diversion of the footpath, Mr Rigg erected signs at point B and point E. These signs were designed to stop riders using route B-E and to divert them through Horsham Copse. He cannot recall the exact wording, but believes they said something like "No Horses". These signs were removed shortly after they were erected, when kissing gates were erected on the route between point B and point D, thus rendering it impassable for riders. Mr Rigg recalls "footpath only" signs at point A approximately six years ago. Mr Rigg has not erected any gates on the route, though remembers a barrier adjacent to Mr Bowes' property and a gate next to the track just to the north of point B. He cannot recall the gate ever being closed. Mr Rigg has observed horse-jumps which have been erected on the claimed route, where it passes through West Copse. He believes that riders who do not wish to use these jumps deviate around them, thus widening the route. He is concerned about the damage this causes to West Copse, which is a Site of Interest to Nature Conservation (SINC). Mr Rigg is also concerned about the claimed route where it passes through open ground to the north of Horsham Copse. This route is ill defined and unsurfaced, and the damage caused by riders on the route covers a wide swathe. Mr Rigg has not ploughed this path as it forms part of an Arable Margin, under a Countryside Stewardship Agreement. This agreement, which Mr Rigg has signed, states that "Margins should not be used for the storage of materials, be used as access tracks or damaged by other means". Strict limitations on Mr Riggs own access to this area are imposed, and Mr Rigg is concerned that the use of this route by riders may damage the Margin and affect the agreement.

12 Summary of the landowner evidence

12.1 Many of the landowners agree that, prior to the establishment of local riding centres, the volume of riders using either the claimed route, or route A-B-C, was very low. The Rights of Way office has established that the Marwell Activity Centre, still used for livery, was founded in 1982.

12.2 There is a good deal of evidence, in the form of notices or verbal challenges, dating back to at least the mid 1970s, to suggest that the landowners of the route did not intend to dedicate a bridleway over either route A-B-C or route A-B-E. This evidence is summarised in Appendix 5.

12.3 A statutory declaration was made in 1997. This declaration, made under section 31 (6) of the Highways Act 1980, declares footpath rights over the claimed route where it passes through Lower Farm. The declaration states that landowners of this part of the route, Mr and Mrs Wilde, did not intend to dedicate any additional public rights over their land.

12.4 Consideration has been given to whether the petition described in paragraph 11.6 above may be evidence of an intention to dedicate on behalf of the landowners who signed the document, or whether the petition may give riders permission to use the claimed route. Due to the wording of the document, this distinction is not clear. On balance, it is felt that the document may give riders permission to use the claimed route. However, the distinction matters little to the claim; the document is not signed by Mr Knowles, Mr Rigg or Mr Wilde, each of whom owned much of the land over which the claimed route lies.

13 Other Interested Parties

13.1 A number of people who do not own land on which the claimed route lies, and have not ridden on the claimed route, have offered evidence which is relevant to the claim. Their statements are summarised below.

13.1.1 Mrs Molly Bailey

Mrs Bailey has lived in Owslebury since 1958. She has been involved with the Parish Council for many years, and spent some years acting as the Parish Council's Footpath Secretary. Mrs Bailey has walked route A-B-C for many years. She has not walked from B to E as she is aware that the route is not a public right of way. Mrs Bailey walked route A-B-C two or three times a week, (depending on the weather), from 1958 onwards. Mrs Bailey remembers that in the 1950 and 1960s it was very rare to see either horses, or evidence of horses, on the route. The few riders that Mrs Bailey did see were local people, and Mrs Bailey understands that they had permission to ride. She recalls the issue of permission actually being raised twice with the parish council. Mrs Bailey believes that the number of riders on the route has increased greatly in recent years. Mrs Bailey recalls that when Mr Knowles took over Marwell Hall, he began to put up signs on the route. Mrs Bailey particularly remembers all over the "wooded bits" near Horsham Copse. Mrs Bailey also remembers a gate over the route, somewhat to the north of point B. Mrs Bailey remembers that the gate was locked and had a stile at the side. She recalls it being erected in the 1980s. Mrs Bailey also recalls a fence across the route adjacent to Mr Winstanley's property. She believes it was put as a result of some sort of issue regarding access to the properties. Mrs Bailey remembers Mr and Mrs Wilde. She recalls that they put up signs which said "No Horses, No Bikes".

13.1.2 Mrs Bampton

Mrs Bampton moved in to Lower Farm Cottage in approximately 1946, when she was 10. She lived there for seven or eight years. Mrs Bampton's mother worked on the farm. She thinks that the farm was owned by Mr Stern, who subsequently sold the farm to Colonel Harrison. She doesn't recall the path being used as a bridleway at all between 1946 and 1954. She believes that riders in the area as whole were very rare, and those which did ride were the farmers. In approximately 1980, Mrs Bampton began working as a child minder for Mr David Moldon. Although she did not live at Lower Farm full time, she spent every working day at the farm. She used the path very regularly and recalls walking Mr Moldon's child up and down the route in the push-chair. Mrs Bampton very rarely saw horses at this time. She doesn't remember any signs, but has a vague recollection of a gate over the route, about 150 yards to the north-east of Horsham Copse. She cannot recall this gate being closed. Mrs Bampton moved away from the farm in either 1982 or 1983 and believes that it is only since she has moved that riders have started using the route frequently.

13.1.3 Mrs Harfield

Mrs Harfield has been familiar with the claimed route and the Owslebury area since the 1950s. He is aware that the claimed route is part of Footpath 46, Owslebury. Mrs Harfield believes that the path was used by some riders in the 1950s, but these riders were given permission by the landowners to use the track. She is only aware of around five horses in the Owslebury area at this time. Mrs Harfield believes that the number of riders using the route has increased greatly since the 1970s, and when the number of riders using the claimed route increased to double figures, the then landowner, Mr Wilde, erected a sign which said "Footpath Only"

13.1.4 Mr Pritchard

Mr Pritchard has known of the track between Lower Farm and Horsham Copse for approximately twenty five years. He used to cut hay for Marwell Zoo, so drove his tractor along route A-B-C, with permission from the landowner. He does not recall gates on the route and has not seen signs or notices on the route either. He does remember a wooden pole fence across the route in the 1990s. Mr Pritchard believes that Marwell have always tried to stop riders from using the route.

13.1.5 Mr Thatcher

Mr Thatcher has lived in Owslebury for 73 years and has walked along the track between Lower Farm and Horsham Copse regularly for many years. The first farmer of Lower Farm that Mr Thatcher can recall is Mr Charles Anstey. Mr Thatcher believes that Mr Anstey probably rented the farm from the Marwell Estate. Mr Thatcher recalls that Mr Stern then bought the farm. Mr Thatcher is quite sure that Mr Stern resided in the farm during the war as Mr Stern was head of the Home Guard. Mr Thatcher remembers that Mr Stern then emigrated to Canada, having sold the farm to Colonel Harrison. Colonel Harrison then sold the farm to Mr Moldon. Mr Thatcher remembers that the claimed route was a farm track, and he cannot remember horses using the track until relatively recently. The only person that he remembers using the claimed route in the 1940s and 1950s was Mr Harry Trigg. Mr Thatcher cannot remember any signs or gates on the route.

13.1.6 Mr and Mrs Windebank

Mr and Mrs Windebank moved to Lower Farm Cottages in 1965. Mr Windebank worked for Mr Moldon. They are both very familiar with the route. They feel certain that riders did not use the route much in the 1960s. They recall it being a farm track, fenced on either side. They think the fencing deterred riders from using the route - there was nowhere safe for riders to pass vehicles. They do not think Mr Moldon was keen on riders using the track. Both Mr and Mrs Moldon recall signs on the route. They clearly recall one sign on the track at a point approximately 150 yards to the north-east of point B. Mr Windebank thinks it was erected when Marwell took ownership of the route, in 1969, and Mrs Windebank thinks it may have been present even before then, but it was definitely present by 1969. The sign said "No Horses" and was positioned so as to be visible to riders travelling from A to B, pertaining to route B-C and route B-E. Mrs Windebank also remembers a sign on the south-western boundary of the land now owned by Mr Bowes. She recalls the sign being quite tatty. Mrs Windebank believes the sign said "No Horses" and was present in the 1970s. Mr and Mrs Windebank have a daughter who, from 1978, sometimes tried to ride route A-B-E. They vividly remember her coming into the house a number of times, telling them that she had been told off for using the route by employees of Marwell. They would say to her "You're not allowed to come down here, it's not for horses". Mr and Mrs Windebank are of the opinion that every time Marwell employees saw riders on the route they would turn them back. They recall Mr Knowles' Przewalski Horses, but do not recall any problem with them. Mr and Mrs Windebank remember the pole fence across the route, erected by Mr Winstanley, in the late 1980s, and gave their photographs of it to Mr Bowes. They think a local man, Jimmy Green, put the fence up for him. They also remember Marwell erecting a gate and stile over the route. This gate was to the north of point B and would have stopped riders using A-B-C and A-B-E. They recall the gate was hung on old gateposts which were already in place. They think it went up in the 1980s. They recall the gate was padlocked, and a stile was provided to one side for walkers. They remember some riders getting past the gate, they would take a slightly different route, leaving the path just to the north of the gate, travelling parallel to the tack on land owned by Mr Rigg, and rejoining the path past the gate. They cannot remember when the gate went, but feel that when the gate went many more horses started to use the route. Mr and Mrs Windebank have witnessed two nasty accidents on the route. They do not object to riders on the route, as long as they are sensible.

14 Summary of interested parties' evidence

14.1 Mrs Bailey, Mrs Bampton, Mrs Harfield, Mr Thatcher and Mr and Mrs Windebank all agree that the number of riders using the claimed route has increased sharply in recent years. They do not recall many riders at all using the path in the 1950s.

14.2 Mrs Bailey. Mr Pritchard and Mr & Mrs Windebank recall the owner of

Marwell Zoo taking steps to stop riders from at least the 1970s onwards. Furthermore, Mr and Mrs Windebank recall employees of Marwell regularly telling their daughter not to use the path as it wasn't for horses, whenever she tried to ride along the claimed route.

14.3 Both Mrs Bailey and Mrs Harfield are of the understanding that those that did

use the route in the 1940s or 1950s, did so with the permission of the landowners. Mrs Bailey recalls an incident when the question of permission was brought up.

15 Discussion

15.1 There is no evidence of an express intention on the part of the landowners to dedicate bridleway over route A-B-C or A-B-E and it is considered that the amount and degree of use is not sufficient to justify a deemed dedication at common law.

15.2 There is evidence that riders have used both route A-B-C and route A-B-E from 1949 to the present day. There is evidence of user on the claimed route, in each year from 1949 to 2004.

15.3 For the purposes of the Highways Act, 1980, it is necessary to identify a twenty year period of use, prior to the public right to use the route being brought into question.

15.4.1 As outlined in Appendix 5, since 1976 a number of events have taken place on the route which have brought the use of this route into question. These can also provide evidence of the landowners lack of intention to dedicate, the two most well documented events being the statutory declaration made in 1997 and the evidence provided with the claim lodged in 1979. Although several of these events could amount to a bringing into question for the purposes of section 31, a successful claim could not be sustained relying on the previous twenty years use because of the ample evidence during that period that the landowners did not intend to dedicate the route as a public bridleway (see Appendix 5).

15.4.2 Officers believe that the earliest event which can securely be classed as a `bringing into question' on the claimed route took place in 1976. Although some witnesses refer to signs and challenges made on a route between Lower Farm and Hensting Lane from the late 1960s onwards, Officers feel that there is insufficient corroborative evidence to substantiate these events. The first clear evidence for a "No Horses" notice on the claimed route, observed by a user, is 1976. This date is referred to by the late Mrs Griffin, who filled out a user form in 1979 on behalf of herself and her husband, and identified 1976 as the date when they first saw signs on the route. It is clear that these notices were understood as a challenge to the bridleway use of the path as these signs appear to have prompted the claim, made by Mrs Griffin, in 1979. The signs identified by Mrs Griffin were located "along track and in wood". It is probable that the signs referred to by Mr and Mrs Griffin were the same signs as identified by Mr Moldon and Mr and Mrs Windebank. Mr Moldon was able to pinpoint the location of one of these signs exactly: it was on the claimed route, just to the north east of point B (shown on Appendix 1). Furthermore, these signs are likely to be those erected under the instruction of Mr Knowles, who clearly intended to stop riders using the route. In total, sixteen of the interviewed witnesses confirm that it is their understanding that the owners of Marwell wanted to stop riders from using the route from the 1970s onwards.

15.4.3 Recent correspondence has taken place between officers and the claimant. The claimant feels that the evidence that the "No horses" notices on the route were placed between point B and C, and did not pertain to route A-B-E. Officers agree that "No horses" signs were most concentrated between point B and C. However, officers also believe that there is strong evidence to suggest that "no horses" signs existed on the claimed route between A and B from 1976 onwards. In addition to the evidence submitted in paragraph 15.4.2 above, officers would draw members attention to the "No horses" board at grid reference 509 227 as indicated by the Rambles Association survey on 15^th January 1978. It is felt that the presence of this sign strongly substantiates the evidence provided in paragraph 15.4.2. The location of the sign is shown on Appendix 1.

15.4.4 The Rights of Way section therefore believe that the relevant period, necessary to satisfy s.31 of the Highways Act, is from 1956 to 1976.

15.5 Use must be as of right. This means that use must be without force, without secrecy and without permission. As far as the first element - force - is concerned, some witnesses referred to gates on the route. Although Mr Powell, Mr Harding, Mrs Bailey, Mrs Bampton and Mr & Mrs Windebank recall that gates over the route were locked, none of the users refer to locked gates. It is therefore considered that riders did not employ force when using the claimed route. All of the riders appear to have used the route openly, during the day, sometimes within sight of the landowners, so it can be said to have been without secrecy. Lady Torrington and Mr Trigg both recall asking permission to use the claimed route and Mr Rigg claims to have given permission to one rider. Mr Trigg, Mrs Bailey and Mrs Harfield are of the opinion that the riders who use the route in the 1940s and 1950s would have had permission from the landowners. As discussed, the petition signed by some of the landowners may be interpreted as an act of permission. However, the majority of riders who used the route during the relevant period do not recall asking for permission and, on balance, there is no evidence that permission was given to the public at large to use the route prior to 1976.

15.6 Use must be by the public, so there must be a sufficient number of people using the route to constitute the public at large, in each year of the twenty year period relevant to the claim. 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 of a path in a more densely populated area. Its usefulness to the local community as a strategic link in the network is also a factor. The remoteness of the twenty year period is also an important consideration: the start of the relevant twenty year period is now nearly fifty years ago and it is inevitable that finding users becomes more difficult as time passes. Consideration must also be given to the evidential weight of the user evidence. Testimony from a married couple may be of less evidential weight than testimony from two completely independent users, when assessing whether or not the route has been used by the public at large.

15.6.1 Six users have provided statements testifying to their use of the claimed route in 1956. This figure includes the evidence of Mrs Smith, who was seven years old in 1956, and remembers riding the route with her mother. Mr Cook has recently signed a user evidence form confirming that he used route A-B-E from 1947 onwards. A further user, Mr Jefferis, provided evidence in 1979 that he used route A-B-C. Mr Jefferis has since passed away. Mrs Jefferis confirms that her husband, Mr Jefferis, used route A-B-E from 1955 onwards.

15.6.2 It is felt that the volume of user who can testify to riding the claimed route between 1956 and 1976 is extremely low for the first five years. Only seven witnesses have given evidence of use between 1956 and 1961. A further one rider is likely to have used the route. Eleven witnesses claim that very few riders used the route for much of the relevant period, and many suggest that those that did use the route were local people, known to the landowners. The user profile is corroborated by evidence from Mrs Griffin in 1979. Mrs Griffin provided 14 user forms accompanied by a letter. In her letter, dated 10^th April 1979, Mrs Griffin says "you will note that several of the signatories have been using the track for over 20 years and I can obtain the names of people who have somewhat less claim but who are equally as enthusiastic". Officers believe that should Mrs Griffin have been aware of other riders who had been using the track for the full 20 year period prior to 1979, she would not have included the phrase "somewhat less claim" when she offered to provide further witnesses.

15.6.3 As discussed above, the passage of time inevitably makes it more difficult to find witnesses who can testify to use of the route. Notwithstanding this fact, officers feel for the first five years of the relevant period, evidence would suggest that the route was only used by a very small group of local people. There is little evidence to suggest that, prior to the early 1960s, the path was used by anyone other than those who have provided evidence to this investigation.

15.6.3 The paucity of user evidence means that, officers consider, on balance, there is not enough proof of use by the public at large, during the relevant period, to satisfy the tests required in section 31. There is, therefore, no need to consider what actions may have been taken by the landowners during this period.

16. Comments from the Applicant and the Landowner

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.

16.1 The Landowners

16.1.1 Mr Baker

No comment

16.1.2 Mr and Mrs Bowes

"We believe that there are Health and Safety implications involved in any change of use of Footpath 46, which really should be taken into consideration.

Do the Acts take into account concerns about safety for pedestrians and horse riders alike, when the horses are in the vicinity of the dwellings and parked cars at the northern end of Footpath 46?

It is an accepted fact that there has been a significant increase in recent years in the number of horses being ridden along Footpath 46, and from point B to E, on the map.

Should the Committee also be aware of the physical changes that have occurred at Lower Farm in recent years?

Sent with this letter is an aerial photograph, taken in 1969, showing Lower Farm, its agricultural buildings, Lower Farm Cottage and opposite, two semi detached homes.

Since 1988 the semi detached homes, and Lower Farm Cottage have been extended considerably. The Agricultural buildings have been converted into two substantial dwelling places.

Thus, in sixteen years Lower Farm has changed from a working farm to a hamlet.

In the last few years there are many people living here, happily including young children. Due to the limited public transport service to the village, a high population of motor vehicles is based on Footpath 46. Add to the use of private cars and increased number of delivery vehicles, plus walkers, and the northern end of the path is already very busy, before a greater number of horse rides uses the route, should a Bridleway be established.

Do he Acts have any bearing on the safety of those people and animals using the route?"

16.1.3 Mr Knowles

No comment

16.1.4 Mr Rigg

No comment.

16.1.6 Mrs Winstanley

Is unable to submit a response in time for the final submission of this report.

16.2 The Applicant

See Appendix 6

17. Conclusions

17.1 There is no historic evidence to suggest that a highway of any description existed on the claimed route.

17.2 There is a good deal of evidence to suggest that, from at least the mid 1970s, the landowners did not intend to dedicate a bridleway over either route A-B-C or route A-B-E.

17.3 Whilst many riders have used the claimed route in the last thirty years, the number of riders who have used the claimed route prior to 1970 is low. The public right to use the route was first questioned in 1976. Therefore the period relevant to the claim spans from 1956 to 1976. Although there is user evidence throughout this period, for five of the relevant twenty years only seven users have given evidence that they used the claimed route. There is evidence that one further user is likely to have used the claimed route at this time. This volume of user is extremely low. The statutory requirement that the route has been enjoyed by the public for a full period of twenty years 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 CR219 - Rights of Way Office, Mottisfont Court, Winchester