Archived decisions

    Hampshire County Council Item 6

    Regulatory Committee

    24 November 2004

    Claim for the addition to the definitive map of a footpath between Great Mead and Gosport Lane, Lyndhurst

    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;

1. Summary

    This report concerns an application for the addition to the definitive map of a footpath between Great Mead and Gosport Lane, Lyndhurst.

      An area of land, including that on which the claimed route lies was formally dedicated as a highway maintainable at public expense in 1979, and accepted as such by Hampshire County Council in 1983. Officers recommend that part of the land subject to the adoption agreement, including the land on which the claimed route lies, should be added to the definitive map as a Byway Open to All Traffic (BOAT).

2. The Claimed Path

2.1 The claimed path forms a link between Great Mead and Gosport Lane, Lyndhurst. It is illustrated on Appendix 1 as route A-B.

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

2.3 The claimed route runs along the edge of a wide strip of largely undeveloped land, coloured in red on Appendix 1, hereafter referred to as "the red land". This land is currently used as informal public open space.

2.4 The red land has a width of between 21 and 41 metres. There is evidence of a path, with a width of approximately 1 metre, on the alignment of the claimed route.

2.5 The Rights of Way section received an application to record route A-B on the definitive map as a footpath in June 1999.

3. The Applicant and the Application

3.1 The Applicant is Lyndhurst Parish Council.

3.2 The formal application is to add a footpath from Great Mead to Gosport Lane to the definitive map.

3.3 Ten user forms have been submitted with this application.

4. The Landowner(s)

4.1 The landowners of the red land are Nationwide Construction Ltd. Nationwide Construction Ltd bought land, including that on which the claimed route lies, in 2003.

4.2 Prior to 2003, the land was owned by Taylor Woodrow Homes Ltd. It is understood that Taylor Woodrow Homes Limited have owned the land since at least 1978. Officers have not ascertained who owned the land prior to this date.

5. The issue to be decided

5.1.1 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 dedication or through evidence of use.

5.1.2 Evidence may disclose rights other than those claimed by the applicant. 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.

5.1.3 Any changes to the definitive map must reflect public rights that already exist. It follows that some issues, often of great importance to the parties involved, are not relevant and should not be included in the decision making process. Thus the need for a route of a particular status is irrelevant, as are matters relating to environmental protection, potential damage or the popularity of the decision.

6. Consultation

    The following persons and bodies have been consulted about the application, namely the County Council Environment and Highways), Councillor Kendal (the local Member), New Forest District Council, Lyndhurst 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 Hampshire County Council (Environment) - no main objection, but Ecology Officer expresses regret that highway rights exist over this land as it serves a useful role as a `green lung' in the centre of Lyndhurst. The Ecology Officer would prefer the route to be added to the definitive map as a footpath, but understands that the legal position may mean that this route has to be added as a BOAT.

6.2 Hampshire County Council (Highways) - state that when the adoption agreement was completed in 1983 it was intended that vehicular rights be allowed over the area in question. They agree this route be added to the definitive map as a BOAT. Officers mention that an application to extinguish highway rights from part of the land was made in the past.

6.3 Councillor Kendal -supports the addition of this route as a BOAT.

6.4 Lyndhurst Parish Council (in their capacity as both Parish Council and Claimant) - are concerned about the possibility that the claimed route be added to the definitive map as a BOAT and are unanimous in their opinion that this route should be added to the map as a footpath only.

7 Historic and documentary evidence

7.1 The land on which the claimed route lies is shown as undeveloped agricultural land on maps produced prior to 1979.

7.2 On the 24th January 1979 an adoption agreement was made between Taylor Woodrow Homes Limited (developer) and Hampshire County Council (highway authority), under section 40 of the Highways Act 1959.

7.2.1 The agreement contained the following clause:

        "...the Developer proposes to develop the Estate Site [the land situate at Shrubs Hill Road, Lyndhurst] as a building estate and intends to construct streets on the Estate Site in the position indicated on the said plan [Drawing No.165/2/x] coloured grey brown green and blue ("the coloured land") which it proposes to dedicate as highways and desires that the said streets shall on completion become highways maintainable at public expense."

      The red land was coloured green on the plan annexed to the adoption agreement.

7.3 On 21st December 1983 a certificate was issued under section 38 of the Highways Act, 1980. This certificate is addressed to Taylor Woodrow Homes Limited. The document states:

        "I certify that the County Council has adopted as highway(s) maintainable at public expense the carriageway(s) (coloured orange), footways(s) and footpath(s) (coloured brown), verges (coloured green), surface water drainage (coloured blue) and street lamps (shown by red dots) as delineated by the adoption plan (Drawing No 165/2/x) appended hereto"

      and:

        "The Agreement under Section 38 of the Highways Act 1980 is now completed..."

      The certificate is signed by the County Surveyor, A.W.Jacomb.

7.4 The adoption agreement and certificate are accompanied by a plan, referred to as "Drawing No. 165/2/x" and titled "Engineering Layout". The original date of the plan is 1/7/78, though further amendments were made on the drawing until 23/2/82.

7.4.1 The red land is clearly shown as part of the land subject to the adoption agreement on this drawing. On the drawing the red land is shaded in green ink; the key to the drawing indicates that the colour green represents `verge'. Part of the red land is annotated "Line of possible future link road". There is no mention of the addition of this annotation in the table of amendments, so it is assumed that this annotation was part of the original drawing, produced in 1978.

7.4.2 The drawing was further amended in 1983. It bears the stamp of Hampshire County Council with the wording "LAID BEFORE THE ROADS AND DEVELOPMENT SUB-COMMITTEE 19 DEC 1983".

7.4.3 The width of the land dedicated ranges from approximately 21 metres in the east to approximately 41 metres in the west.

7.5 In 1998 an application was made by Taylor Woodrow Homes to extinguish highway rights over the coloured red on Appendix 1. This application was unsuccessful, due to unresolved objections from New Forest District Council.

7.6 In March 1999 correspondence took place between Hampshire County Council and New Forest District Council, relating to modifications to the local plan. This correspondence proposed the following changes to the local plan:

        "Delete policy LH-1 (Open Space in Lyndhurst)

        but with the text changed to say:-

        "D13.29 - An area of 0.67 hectares of land at Great Mead between Gosport Lane and Shrubs Hill Road is presently used as informal open space and as an informal footpath link. The County Council originally acquired rights over this open, grassed area for the purposes of a possible future link road between Gosport Lane and Shrubs Hill Road. The land is no longer required for this purpose, but it is important that the existing informal pedestrian link across the land is retained. This is provided for in policy DW-T17. A cycleway along this route may also be promoted as a result of studies currently being undertaken as part of the New Forest Transportation Strategy. The District Council would also wish to secure the use of the land as public open space in view of the shortfall in Lyndhurst".

8. Modern User Evidence

8.1 Ten user forms have been submitted in support of the application. These user forms were completed in 1998. The earliest use of the path was in 1981. There is evidence of the use of the path in every year between 1981 and 1998. The majority of users claim to have used the path over 200 times a year.

8.2 All those who have given evidence have used the path on foot. One individual has cycled along the claimed route. There is no evidence to suggest that the path has been used either with a horse or with a motorised vehicle.

8.3 Due to the formal agreement which pertains to the claimed route, it has not been necessary to interview users.

9. Landowner Evidence

9.1 The current landowners, Nationwide Homes Limited, have not formally responded to consultation.

10. Discussion

10.1 There is no evidence that the claimed route, or the Shrubs Hill Estate, existed prior to 1979. The 1979 adoption agreement is worded as to suggest that development of the estate had not yet begun. The 1983 certificate indicates that the roads, and presumably the estate, had been completed by this date. Therefore it is assumed that the red land was established as a highway in 1983, although, at that time no engineering works had been carried out to create the link road..

10.2 It is clear that all of the red land was dedicated as a highway maintainable at public expense in 1979, and accepted as such by Hampshire County Council in 1983. This adoption agreement does not make explicit exactly what rights were dedicated over this land, only that this land was dedicated as highway. However, evidence would suggest that the dedicated land was originally intended to form a link road between Shrubs Hill Road and Gosport Lane, possibly in anticipation of linkage to Route 4 of the proposed Lyndhurst Bypass. This view is confirmed by discussion with both New Forest District Council and Hampshire Highways. Hampshire Highways understand that this route was dedicated with full vehicular rights.

10.3 In order for a right of way to come into existence, the dedication of a way must be accepted by the public.

10.3.1 New Forest District Council comment that the route has not, to their knowledge, been used by vehicles or horse riders, and therefore, the public have only actually accepted the dedicated highway as a footpath.

10.3.2 Officers in the Rights of Way section do not subscribe to this view, and are of the opinion that a highway authority has the capacity to formally accept a dedicated route on behalf of the public. Actual use of the route by the public is therefore unnecessary. This view is borne out in the case of The Secretary of State for Environment, Transport & the Regions and Baylis (Gloucester) Ltd (2000). In this case Mr Kim Lewison QC (sitting as deputy judge of the Chancery Division) found that evidence of acceptance by a highway authority is "capable of amounting to proof of acceptance by the public". Mr Lewison QC further judged that acceptance could be "proved by showing that the highway authority had agreed in writing to accept the dedication".

10.3.3 As discussed in paragraph 7.3, in 1983 the County Surveyor issued a certificate confirming that it had adopted, as highway, the land specified in the 1979 agreement. It is the view of officers that this certificate confirms that the highway authority, acting within its statutory powers, have accepted the red land as a public highway, and is therefore proof that all rights dedicated over the land in question were accepted, at law, on behalf of the public. Actual evidence of use of the red land by the public is therefore not necessary to prove the establishment of the highway.

11. Recent events

11.1 Part of the red land is currently being developed. The approximate area of development is indicated on Appendix 1.

11.2 New Forest District Council granted planning permission for this development on 27th May 2004, (ref. 72920). An agreement entered into prior to the grant of planning permission, under section 106 of the Town and Country Planning Act 1990, requires the freehold of the remaining red land be handed to New Forest District Council as public open space, free from encumbrances. For the purposes of this agreement, highway rights over the land would be viewed as an encumbrance.

11.3 The landowners have not yet applied to extinguish highway rights over the land currently under development. Unless highway rights are extinguished, the new developments are unauthorised structures on a highway, and Hampshire County Council may consider enforcement action under section 143 of the Highways Act 1980. Furthermore, as long as highway rights exist on the remainder of the red land, the landowners will be unable to fulfil their section 106 obligations.

11.4 The landowners have been advised to contact their solicitors with regards to this matter. It is not, as yet, known what course of action the landowners will take, but it is likely that they will apply to extinguish highway rights from all of the red land, subject to the retention of a four metre wide bridleway, on the approximate alignment of the claimed route. New Forest District Council may then take a report to their members, requesting a modification to the section 106 agreement, to accommodate this right of way.

11.5 As the highway status of the red land may change in the near future, it would seem appropriate to defer any change to the definitive map until such matters have been resolved.

12. Comments from the Applicant and the Landowners

    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. The responses are summarised below.

12.1 Nationwide Construction Ltd - response attached to the report as Appendix 2.

12.2 Lyndhurst Parish Council - would like to reiterate comments made in paragraph 6.4.

13. Conclusions

13.1 Although the claim made by Lyndhurst Parish Council was to add a footpath to the definitive map, evidence would suggest that higher rights exist over the claimed route:

    _ The red land was formally dedicated as a highway under s.40 of the Highways Act 1959. The agreement was made in 1979, as part of a wider adoption agreement covering the Shrubs Hill Estate.

    _ Evidence strongly suggests that the land in question was dedicated with full vehicular rights, with the intention that it should one day become a link road between Shrubs Hill Road and Gosport Lane.

    _ The dedicated land has a minimum useable width of approximately 21 metres, and a maximum of approximately 41 metres.

13.2 It is therefore recommended that this land be added to the definitive map as a Byway Open to All Traffic, with a width of 21 metres at the western end, and 41 metres at the eastern end.

13.3 Members are asked to approve the Order in principle. However, in view of the issues discussed in paragraph 11, officers propose that the actual making of the Order be deferred until it is known whether or not highway rights will be extinguished.

RECOMMENDATION

    i) That an Order be approved in principle to add the land shaded in red on Appendix 1 be added to the definitive map as a byway open to all traffic with a width of between 21 and 41 metres.

    ii) That the making of the Order be deferred until such time as officers deem appropriate, to allow the landowner to apply for an extinguishment of highway rights over part of the land and the extinguishment of vehicular rights over the remainder.

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 CR662 - Rights of Way Office, Mottisfont Court, Winchester