21

Hampshire County Council Item 7

Regulatory Committee

24 November 2004

Claim for the addition to the definitive map of a footpath between Kingsfield Gardens and Forge Close, Bursledon

Report of the Director of Recreation and Heritage

Contact: Emma Noyce, extn. 5319 email: [email protected]

WILDLIFE AND COUNTRYSIDE ACT 1981

53. Duty to keep definitive map and statement under continuous review

(2) As regards every definitive map and statement, the surveying authority shall keep the map and statement under continuous review and as soon as reasonable practicable after the occurrence .... of any of [the events specified in sub-section (3)] by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event

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

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

(iii) that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which that map relates, being a right of way to which this part applies;

PRESUMED DEDICATION AT COMMON LAW

Use of a way by the public without secrecy, force or permission of the landowner may give rise to an inference that the landowner intended to dedicate that way as a highway appropriate to that use, unless there is sufficient evidence to the contrary. Unlike dedication under s.31 Highways Act 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 Forge Close and Kingsfield Gardens, Bursledon.

The landowner, Eastleigh Borough Council, has indicated a desire that this path be adopted by Hampshire Highways, as a highway maintainable at public expense. Although the proposed adoption has not yet taken place, it is felt that Eastleigh Borough Council has demonstrated a clear intention to dedicate this path as public, and it is therefore recommended that the claimed route be added to the definitive map as a footpath.

2. The Applicant and the Application

2.1 The Applicant is Mrs Diane Andrewes

2.2 Seventeen user forms and a petition have been submitted with this application.

3. The Landowner(s)

3.1 Eastleigh Borough Council is the registered owner of the land on which the claimed route lies.

3.2 The majority of the claimed path has been owned by Eastleigh Borough Council since at least 1991. Prior to 2000, a small part of the land, to the south of point A, was owned by Infobuild Limited (Compco Holdings Plc). Eastleigh Borough Council acquired the freehold to this land in April 2000.

4. The claimed route

4.1 The claimed route is an urban path which forms a link between Kingsfield Gardens and Forge Close, Bursledon. The path is illustrated in Appendix 1 as route A-B.

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

4.3 The path is currently surfaced with tarmac. The width of the path is between 2.8m and 4.0m wide.

4.4 The path is currently maintained by Eastleigh Borough Council.

5. The issue to be decided

5.1 The issue to be decided by this Committee is whether or not the public has acquired a right to use the claimed route, either through express or implied dedication.

6. Consultation

The following persons and bodies have been consulted about the application, namely the County Council (Environment and Highways), Councillor House (the local Member), Eastleigh Borough Council (in their capacity as landowner and District Council), Bursledon Parish Council, British Horse Society, Ramblers Association, Trail Riders Fellowship, Open Spaces Society and the Cyclists Touring Club. The following responses have been received:

6.1 Hampshire County Council (Environment) - no comment

6.2 Councillor Keith House - supports the claim

6.3 Bursledon Parish Council - supports the claim

6.4 Ramblers' Association - supports the claim

7 Historic and documentary evidence

7.1 The first map to show Kingsfield Gardens is the National Grid 1:2500 series, surveyed in 1976. This map shows many of the paths to the north of the claimed route. Forge Close is not illustrated, and the claimed route is not shown. The paths to the north of the claimed route are illustrated in such a way as to suggest that there was no through route from Kingsfield Gardens to the area of land on which Forge Close was constructed.

7.2 In 1984, the National Grid Map was amended to reflect changes which had occurred in the area. This version of the map shows Forge Close. The illustration pf the paths to the north of the claimed route has been amended to indicate a route continuing from Kingsfield Gardens towards Forge Close. The claimed route is not itself illustrated, but is shown as part of an area of undeveloped land.

8. Modern user evidence

8.1 Seventeen user forms and a petition have been submitted in support of the application.

8.2 The user forms were completed in 1999 and 2004. The earliest use of the path was in 1970. There is evidence of the use of the path in every year between 1970 and 1999. The majority of users claim to have used the path at least weekly, if not daily.

8.3 All those who have given evidence have used the path on foot. Two individuals have also cycled along the claimed route.

8.4 The petition, dated 19^th October, 1983 is addressed to the Director of Technical Services (Eastleigh Borough Council). It states that:

"The following residents of Kingsfield Gardens, Bursledon, regularly use the connection between Kingsfield Gardens and Forge Close and request that a proper surfaced footpath be provided:- (This does not include Numerous visitors by foot and also the Postwoman)"

The petition is signed by (or on behalf of ) 99 residents of Kingsfield Gardens.

8.5 Three witnesses have been interviewed. Their statements are summarised below.

8.5.1 Mrs Greta Clare and Miss Marie Clare

Mrs Greta and Miss Marie Clare moved to their property in Kingsfield Gardens in 1986. They recall using the claimed route at least once or twice a week from this date onwards. They use the path for a number of reasons, all deriving from the fact that the path is substantially more convenient and easier to use than the road entrance to Kingsfield Gardens. Both are aware that the path is, and has been, well used by other people, including members of their family, visitors, other residents of Kingsfield Gardens and strangers. Neither Mrs Greta Clare or Miss Marie Clare recall any signs, notices or otherwise, to indicate that this was not a public path. Both Mrs and Miss Clare remember that the path was once unsurfaced, but, in approximately 1999, Eastleigh Borough Council undertook work to improve the path. They recall a newspaper article detailing the improvements to the route which was accompanied by a photograph of residents and local councillors, celebrating the surfacing of the path.

8.5.2 Mrs Dutton

Mrs Dutton moved into her property in Kingsfield Gardens in 1976. She recalls that when she moved in there was a well worn track in the same location as the claimed route, leading into a field. The field was used by local residents as informal public open space. Mrs Dutton has used the claimed route almost every day, sometimes as many as five or six times a day, since 1976. Mrs Dutton uses the path of a wide variety of reasons, all based on the fact that the path provides access to Portsmouth Road, and is more convenient for Mrs Dutton to use than the road entrance to Kingsfield Gardens. Mrs Dutton is aware that the path is used by many other people, including residents of nearby roads. Mrs Dutton recalls that her husband and children were once told that this was not a public footpath by a local resident, but because this resident did not own the path, Mr Dutton took no notice.

9. Landowner evidence

9.1 There is no evidence to suggest that Eastleigh Borough Council has ever questioned the right of the public to use this route as a footpath.

9.2 Prior to 2000, the claimed route was unsurfaced.

9.2.1 On the 12^th November 1998, Councillor Diane Andrewes submitted a motion to the Bursledon, Hamble-le-Rice and Hound Local Area Committee, requesting that the path be made up to an adoptable standard, added to the Chalist, (the list of highways maintainable at public expense kept under section 36 Highways Act 1980), and formally dedicated as a public footpath. This motion was submitted in response to concerns regarding the surface and safety of this path.

9.2.2 On the 3^rd June 1999 the Head of Engineering of Eastleigh Borough Council, Mr Duncan McVey, took a report for consideration to the Local Area Committee, in response to Councillor Andrewes' motion.

9.2.3 Mr McVey's report is a useful document, in that it gives a brief history of the path in question. It also sets out Eastleigh Borough Council's recommendations for the path. In paragraph 7, Mr McVey states that "The route is obviously well used as there is a well worn path across the land". Mr McVey goes on to discuss the options available for managing this route. He discusses the addition of this route to the definitive map and states that "...it will only secure the right of way but will not result in any improvement of the actual surface of the right of way.". There is no evidence to suggest that Eastleigh Borough Council objected to the use of this path as a public right of way.

9.2.4 The report indicates that difficulties were experienced in contacting the then landowners of part of the claimed route. The recommendations of the report were threefold:

(1) The Head of Property Services commences negotiations with Compco Holdings plc to purchase a strip of land between Kingsfield Gardens and Forge Close;

(2) If the negotiations are successful, the Head of Engineering constructs a bituminous surfaced path over the route; and

(3) The Committee identifies funding of £2,500 for the above action from its devolved budgets.

9.2.5 Photographs taken on the claimed route in May 2004 show the path to be well maintained. The entire path is surfaced with tarmac and staggered gates are present at the southern end of the route. This would indicate that the recommendations made Mr McVey's report had been carried out.

9.3 Eastleigh Borough Council were consulted about the current claim in May 2004. In response to the consultation, in a letter dated 8^th June 2004, Mr Kevin Warren, Principal Valuer in the Property Services of Eastleigh Borough Council, wrote::

"I believe that the claim is no longer relevant, since in April 2000 the Borough Council acquired the land necessary to complete the footpath link from Forge Close to Kingsfield Gardens and subsequently constructed a footpath which was to be adopted as a highway, maintainable at public expense"

Included with this letter was a copy of the Notice of Completion pertaining to the acquisition of part of the land on which the claimed route lies. The date of completion is the 25^th April 2000.

9.4 From May 2004 to the present date, correspondence has taken place between officers from this section, representatives of Eastleigh Borough Council and Hampshire Highways, Eastleigh.

9.4.1 On the 23^rd June, 2004, in an e-mail, Mr Warren indicated that the Area Co-ordinator had been asked to put into place funding to enable the adoption to proceed.

9.4.2 On 24^th June 2004, in an e-mail, Mr Eric Reed, the Principal Development Engineer for Eastleigh Borough Council, indicated that there was no objection to the path becoming a right of way.

9.4.3 Further discussion has focused largely on whether or not there is a need for the path to be added to the definitive map in light of the fact that Eastleigh Borough Council wish for the path to be formally adopted as a highway, maintainable at public expense.

9.4.4 In October 2004, officers from Hampshire County Council contacted both Hampshire Highways, Eastleigh and Eastleigh Borough Council, to enquire as to the progress of the adoption agreement. At the time of writing this report, no reply has been received.

10 Discussion of the evidence

10.1 Mrs Dutton recalls that prior to the construction of Forge Close, there was a path which ran between properties in Kingsfield Gardens to Portsmouth Road, on the approximate alignment of the claimed route. It is therefore thought that a route between Kingsfield Gardens and Forge Close may have been physically established in 1969, when properties in Kingsfield Gardens were constructed. However, there is no historic or documentary evidence to suggest that this route was on the same alignment as that claimed. Map evidence would suggest that the properties in Forge Close were constructed between 1976 and 1984, and that the claimed route was physically established on its present course and alignment between these dates.

10.2 The number of users who have provided signed evidence forms is not particularly high, but it is felt that this is not a true reflection of the number of people who may have used the route, and it is understood that many of the individuals who regularly use the path have not completed user forms.

10.2.1 All witnesses appear to have used the route as of right. There is no evidence that any user has ever been stopped or challenged, by a landowner or one of their employees, whilst using the route.

10.3 There is strong evidence to suggest that Eastleigh Borough Council recognises that the claimed route is a public right of way. Recent correspondence with Eastleigh Borough Council indicates that it knew of, and acquiesced in, public use of the claimed path, and facilitated that use by the acquisition of land and the construction of a sealed surface and lighting.

10.4 In light of the above, it is felt that deemed dedication of this path can be inferred under common law. There is, therefore, no need to consider whether or not the user evidence would satisfy the statutory requirements of section 31 of the Highways Act, 1980. The making of an Order to add this path to the definitive map will not prejudice the subsequent completion of any adoption agreement.

10.5 Eastleigh Borough Council has indicated that it feels there is no need for this route to be added to the definitive map - this appears to be because it wishes to secure the adoption of this route as a publicly maintainable highway to be included on the Chalist, and believes that the inclusion of the route on the definitive map would thereby be an unnecessary duplication of work, public rights having been conferred through the adoption agreement.

10.6 Officers in the Rights of Way section of Hampshire County Council do not concur with the opinion that inclusion of this route both on Chalist and on the definitive map would produce an unnecessary duplication of work. It is fact that Chalist and the definitive map serve different purposes. The definitive map is a record of legal rights and Chalist is a record of highways maintainable at public expense. The two are not mutually exclusive. Whether or not the path is shown on the Chalist, the County Council is under a duty to record the claimed path on the definitive map, if footpath rights exist, which, it is considered, they do.

11. Other footpaths in Kingsfield Gardens

11.1 During the investigation of this claim it has become apparent that there are a number of unrecorded footpaths in the Kingsfield Gardens area which are suitable for inclusion on the definitive map. These paths are included in a formal adoption agreement which pertains to Kingsfield Gardens. Some of the paths which are included in the adoption agreement are illustrated on Chalist, others are not. Most obvious is the path immediately to the north of the claimed route, which has been formally adopted, but is not illustrated on Chalist. These can be added to the definitive map by a legal event Order and it is proposed that this should be done at a later date, as part of a wider programme of recording unrecorded paths.

11.2 With regards to the definitive map, as part of its obligations under the Wildlife and Countryside Act 1981, the County Council is under a duty to record such rights as are found to exist, even if these are not claimed by the applicant. However, it is felt that the addition to the definitive map of those paths in Kingsfield Gardens which are subject to a formal adoption agreement should not be considered in this report; instead, it is recommended that the recording of these paths should take place at a later date, as part of a wider programme of recording unrecorded paths.

12. Comments from the Applicant and the Landowner

A draft of this report was given to the landowner and the applicant to afford them the opportunity of submitting further evidence or making further comment. At the time of writing this report, no responses have been received.

13. Conclusions

13.1 Eastleigh Borough Council, acting within its legal capacity as landowner, has displayed a clear intention to dedicate the claimed route as public. The public have accepted dedication through use. There is sufficient evidence to justify a deemed dedication at common law, and it is recommended that this route be added to the definitive map as a footpath.

RECOMMENDATION

That an order be made adding the claimed path to the definitive map as a footpath, with a width of between 2.8m and 4.0m.

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 CR651 - Rights of Way Office, Mottisfont Court, Winchester