Archived decisions

    Hampshire County Council Item 6

    Regulatory Committee

    23 March 2005

    Claim for the addition to the definitive map of a bridleway from Flexford Lane, Sway, to Silver Street, Hordle

    Report of the Director of Recreation and Heritage

    Contact: Emma Noyce ext. 5319 e-mail: [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:-

    (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

    32. Evidence of dedication of a way as a highway

      A court or other tribunal, before determining whether a way has or has not been dedicated as a highway, or the date on which such dedication, if any, took place, shall take into consideration any map, plan or history of the locality or other relevant document which is tendered in evidence, and shall give such weight thereto as the court or tribunal considers justified by the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or compiled, and the custody in which it has been kept and from which it is produced.

    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 Footpath 9, Sway, and Footpath 743, Hordle, to bridleway.

      There is some merit in the claim, as there is some historic evidence to suggest that the claimed route may have carried public rights higher than that of footpath. However, it is felt that, on balance, this evidence is not sufficient to support the application, and it is recommended that the claim be refused.

2. The claimed route

2.1 The claimed route runs from Flexford Lane, Sway, to Silver Street, Hordle. It is illustrated on Appendix 1 as route A-B-C-D.

2.2 The parish boundary between Sway and Hordle crosses the route at point B. From A to B, the route is shown on the definitive map as Footpath 9, Sway. From B to D, the route is shown as Footpath 743, Hordle1.

2.3 The current definitive statement for Footpath 9, Sway reads:

        "From Road U.146 at Flexford Bridge to Parish Boundary

        Footpath

        From U.146 south-westwards along gravel road 7ft. wide enclosed 22ft. to 22ft. wide between hedges, along earth track 7ft. wide between farm building and hedge, through field gate, southwards along track enclosed approx. 26ft. wide between hedges, over plank and earth culvert, and along track enclosed 20ft. between hedges to Parish Boundary."

2.4 The current definitive statement for Footpath 743, Hordle reads:

        "From road C.430, north of Arne Wood, to borough boundary

        Footpath

        From C.430 north westwards along path to borough boundary."

      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.

2.5 The present claim, made under s.53(5) of the 1981 Act, was made in July, 1999.

3. The Applicant and the Application

3.1 The Applicants are Mrs Fiona Bruce and Mrs Sally Wiggins.

3.2 The formal application is "to upgrade to a bridleway the footpath from Silver Street to Flexford Lane, Sway"

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

4. The Landowner(s)

4.1 The land is currently unregistered. It is understood that Mr Bourne, of Bridge Farm, Sway, owns the route in its entirety.

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 Footpath 9, Sway, and Footpath 743, Hordle, should be shown on the definitive map as a public bridleway.

5.2 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 the claimed route 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.

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

5.4 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, 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.

5.5 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 are encouraged to 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 Alan Rice and Councillor Ken Thornber (the local members), New Forest District Council, Sway Parish Council, Hordle 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 County Council (Highways) - no comment.

6.3 Councillor Alan Rice - supports the application and comments that he has questioned the legality of the gate at the south end of the route.

6.4 Councillor Ken Thornber - supports the application.

6.3 New Forest District Council - supports the application.

6.5 Sway Parish Council - no objection

6.6 Hordle Parish Council - supports the application. Believe a sign indicating that the route was a bridleway was present some years ago.

6.5 British Driving Society - supports the application and comments that there appears to be historical evidence which would suggest this route is a BOAT.

6.6 Ramblers Association - supports the application, but comments that due to

      possible encroachment, the route is hardly passable on foot, let alone with horses.

6.7 Trail Riders Fellowship - comments that historical evidence would suggest

      that this route should be considered as a Byway Open to All Traffic (BOAT).

7. Historic and documentary evidence

7.1 1759 - Taylor's map

7.1.1 This is a small scale map which is one of the earliest commercially produced maps to 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. However, these maps do not, of themselves, prove whether the routes shown on them are public or private, footpaths or bridleways.

7.1.2 Silver Street and the River Avon are shown clearly on this map, as are Sway Mill and Girdleton (Gordleton) Mill. The claimed route is shown clearly, on its present alignment, as an enclosed road. It is part of a much longer route which forms a link from Flexford Lane in the north to Milford in the south.

7.2 1773 - Mortgage

7.2.1 On 5th July 1773 John Rickman raised a mortgage to secure £700 on properties in the Little Arnewood Estate, Hordle. The mortgage refers to various parcels of land, including:

        "...those two closes or parcels of meadow and pasture ground lying adjoining together near Flexford Bridge in Arnewood aforesaid totalling by estimation twelve acres (be it more or less)...bounded by the Kings Highway on the West and a small river or stream running from Sway Mill to Gorleton Mill on the East..."

      This land is likely to be the same as that illustrated on the Hordle Tithe Map in the ownership of Joseph Rickman, adjacent to the claimed route.

7.2.2 The route described as the `Kings Highway' on this mortgage is very likely to be the claimed path. Although the term `highway' is legally held to mean a way over which the public have a right to pass and repass, and does not of itself offer any indication of the status of the route, the use of the term `Kings Highway' in 1773 is suggestive of a route of some significance, which may have been a way capable of use by all types of traffic.

7.3 1792 - Milne's map

7.3.1 This map clearly shows the claimed route to the south-west of Sway Mill and to the west of Girdleston (Gordleton) Mill. The route is depicted as an enclosed road. The claimed route is again depicted as part of a longer through route.

7.4 1810 - Ordnance Survey one inch map and drawing

7.4.1 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.

7.4.2 The claimed route is clearly shown on this map as an enclosed road. The southerly continuation of the claimed route is shown.

7.5 1826 - Greenwoods' map

7.5.1 This map carries the same evidential weight as Taylor's and Milne's map, considered above. The claimed route is clearly depicted as an enclosed road, lying within the boundary of Milford Parish. The route continues to the south.

7.6 1828 - Map of the Manors of Milford Barns, Milford Montague, Milford Baddesly, Leyton and Keyhaven

7.6.1 If the claimed route was part of a longer through route, one would expect the southern continuation of the route to carry public rights.

7.6.2 This map is an early large scale map of the area to the south of the claimed route. Both the cartography and the plot numbers are very similar to the Milford Tithe Map, (discussed in paragraph 696). Although the claimed route is not within the boundaries of the map, the continuation of the claimed route (to the south of Silver Street) is illustrated.

7.6.3 Whilst many of the routes on the map are shown in colour, some routes are uncoloured. Only the uncoloured routes are given plot numbers. The colouring of these routes is very similar to the colouring of routes on the Milford Tithe Map; one possibility is, therefore, that the routes which are coloured were considered to be public, whilst the uncoloured routes were considered to be private. The southerly continuation of the claimed route is not coloured and is given a plot number; this may suggest that it was considered to be private.

7.7 1840 - Tithe Map and Apportionment

7.7.1 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.

7.7.2 The Hordle tithe map shows the claimed route in its entirety, on its present alignment. The sections of the route from A to B and from C to D are coloured brown, and are not recorded as titheable. This offers an indication that these sections of the claimed route were considered to be public highways.

7.7.3 The route from B to C is not coloured brown. A structure is illustrated to the south of point B, within the boundaries of the claimed route. The land between B and C is given Plot number 57, and described in the tithe apportionment as "cottage and garden", under the ownership of William Blake. It is possible that by 1840 the part of the claimed route between point B and point C was not considered to be part of the public highway. However, it is also possible that this part of the claimed route was considered to be a public highway, which also had a titheable value.

7.7.4 Much of the land to the east and west of the claimed route is recorded as in the ownership of Joseph Rickman.

7.7.5 The Milford Tithe Map, produced in approximately 1842, shows the southerly continuation of the claimed path. Whilst part of the route is coloured in brown, much of the route is uncoloured and is given the plot numbers 18 and 30. Both plots are in the private ownership of Frederick West Esquire; plot 18 is described as "Drove", and plot 30 is described as "Road". This offers a further indication that the southerly continuation of the claimed path was considered to be private, and does not support the suggestion that, in 1842, the claimed path was part of a longer through route.

7.8 circa 1870 - Ordnance Survey County Series Map First Edition

7.8.1 This map is very useful in providing a detailed picture of the landscape at the time of the survey. The claimed route is clearly illustrated on the map. The route from A to B is shown as a wide enclosed road, and described in the accompanying book of reference as "public road". The section of the claimed route from B to D is described as "houses, gardens and road".

7.8.2 At least three structures are illustrated within the bounds of the route, between B and C. These buildings are in approximately the same location as those shown on the Hordle Tithe map. This part of the path is gated in three places: at B, at C and at a point between B and C. Although the boundary of the claimed route is still shown on either side of the buildings, a small pecked path is illustrated, running within the boundaries of the road, to the east of the structures, between point B and point C.

7.8.3 The continuation of the claimed route, to the south of Silver Street, is shown, in part. The depiction of the route is not consistent with the suggestion that the claimed route was, in 1870, part of a longer through route. The book of reference describes part of this route as "occupation road", and part as "wood". Neither description would suggest that the southerly continuation of the claimed route was considered to be a public highway.

7.9 circa 1895 - Ordnance Survey County Series Map Second Edition

7.9.1 Again this map shows the claimed route. The part of the claimed route between A and B is gated in one place, approximately 100m to the south west of point A. The southern part of the route, between point B and point D is illustrated in a similar fashion to the Ordnance Survey First edition; there are three buildings within the boundaries of the claimed route and the route is gated in three places. The narrow pecked path to the east of the structures is once again illustrated on the map, and is this time annotated with the letters F.P. (given as Foot Path in the legend).

7.10 1910 - Ordnance Survey County Series Map Third Edition

7.10.1 The claimed route is illustrated on this map in much the same fashion as illustrated on the second edition. The route is gated in three locations, once to the south east of point A, once at point B and once at point C. No gate is shown between point B and point C. Only two structures are illustrated within the bounds of the route, with a pecked path passing them to the east. This path is not annotated. Broadmead Cottages, at the southern end of the route, are illustrated for the first time. The claimed route from C to D is no longer bracketed with the land from B to C; instead, this land is bracketed with Silver Street, the route to the south of the claimed path.

7.11 Other Ordnance Survey maps

7.11.1 The Ordnance Survey National Grid 1:2500, surveyed in 1969, shows the entire claimed route as a wide enclosed track with a narrow pecked path along its centre. Gates or fences are depicted over the route at point B and point C. No buildings are present within the boundaries of the route.

7.12 In summary, all of the Ordnance Survey large scale mapping between 1870 and 1962 shows a route on the same alignment as that claimed. Although the majority of the route is depicted as an unenclosed road on each map, and the book of reference accompanying the first edition of the map describes the section from A to B as "public road", each edition of the map shows that the part of the route from B to C was occupied by buildings. The book of reference which accompanies the first edition of the map describes the route from B to D as "Houses, Gardens and Road". The second edition of the County Series Map shows the route between point B and point C as a footpath.

7.13 National Parks and Access to the Countryside Act 1949

7.13.1 In approximately 1948, Lymington Rural District Council claimed the route between point B and point D as a footpath. There is no evidence that this classification was contested.

7.13.2 Parish records show that in August 1948 Sway Parish Council claimed the route between A and B, as a right of way. It is not clear what rights were claimed, the route on the Parish Council's map is annotated, in pencil, with the letters "BW" and the number "216". The letter which accompanies the map states:

        "Our records show the following 9 Rights of Way, which were claimed in 1934...

        ...District No 216 Flexford Br and Polecat Lane to Silver Street"

7.13.3 A letter from Sway Parish Council, dated 31 July 1953, apparently to New Forest Rural District Council, states that the Definitive Map and Statement were considered and that the Parish Council comments:

        "No 9. We consider that the status of this Right of Way should be a Bridle Road (including Driftway for cattle).

          Southwards from the parish boundary, within the Borough of Lymington, the status should be the same. In the latter portion two stiles have recently been placed by the Borough, the remainder of the passageway being blocked by a barbed wire fence which is in our opinion an obstruction.

          This Right of Way is known locally as Polecat Lane and though of late years little used, it is held to be a through way capable of use by animals."

      On the 12th August 1953 this letter is acknowledged by Major Hunt of New Forest Rural District Council, who states that a formal representation has been noted against the status of No.9, Polecat Lane.

7.13.4 Further correspondence indicates that Sway Parish Council lodged an official appeal under Section 29 (5) of the National Parks and Access to the Countryside Act, 1949, claiming that Footpath 9, Sway, and [Footpath 743, Hordle] should be recorded on the definitive map as bridleways. However, on the 6th June 1954, Sway Parish Council wrote to withdraw their appeal. The Chairman of Sway Parish Council writes:

        "My Council have not been able to obtain satisfactory evidence

        regarding the status of [Sway Footpath 9 and Hordle Footpath 743]. They therefore wish to withdraw their claim that it should be classed as a Bridleway in place of a Footpath."

7.13.5 On 6th January 1980, Hordle Parish Council wrote to Hampshire County Council regarding a review of the definitive map. In this letter, Hordle Parish Council indicate they would like to see [Footpath 743] upgraded to bridleway.

7.14 Ramblers' Association Survey

7.14.1 The Ramblers' Association have undertaken three informal surveys of the rights of way in the area of the claimed route; in 1977, 1986/7 and 1989.

7.14.2 The 1977 survey states that Footpath 743 was between 4 and 6 metres wide, and mentions a stile (located at point C). The same survey states that Footpath 9, Sway, consisted of a 2m wide gravel path between hedges 7 metres apart, and then an earth path within hedges 7/8 metres apart. A stile is mentioned at point B.

7.14.3 The 1986/7 and the 1989 surveys are very similar to that of 1977, and offer no further information of relevance to the claim.

7.15 Other relevant sources

7.15.1.1 In his statement (paragraph 11.3.1 ) Mr Bourne describes an old photograph of the cottage that once stood on the claimed route, which he gave to a local historian. Hampshire Record Office has in its possession a photograph, taken in 1897 and described as a cottage on Polecat Lane, Gordleton. This photograph is almost certainly the photograph described by Mr Bourne.

7.15.1.2 It is likely that the cottage pictured is the structure shown on both the tithe and the Ordnance Survey mapping, immediately to the south of point B. A narrow path is visible passing in front of the cottage, and a female figure appears to be sat on a gate or stile a the northern end of this path. However, the quality of the image is poor, and the photograph itself cannot illustrate what rights existed on the claimed route.

7.15.2.1 The record office has in its possession an annotated copy of an Ordnance Survey 6" map showing the area in the vicinity of the claimed route. This map is entitled "Hordle Parish Council (Public Footpaths)". Although the map itself is dated to 1909, there is no indication as to when the annotations were made (Hampshire Record Office gives an estimated date of 1910).

7.15.2.2 The claimed route is annotated as "Number 4" and described as running from "Downton Lodge to Flexford Bridge". A field gate is marked, in red ink, on the claimed route just to the north of its junction with what has since become known as Footpath 8, Sway.

7.15.2.3 The inclusion of the claimed route on a map produced by Hordle Parish Council which was specifically intended to show public footpaths, offers a strong indication that at the date when the map was produced, the claimed route was only considered to be a public footpath.

7.15.3.1 The minutes of Hordle Parish Council contain a number of references to Polecroft Lane, Hordle. (It is probable that the name Polecat Lane derives from Polecroft Lane). Two references are particularly relevant to the claim:

7.15.3.2 On the 22nd January 1913 it is minuted that:

        "Polecroft Lane Mr G Marsh called attention to an unoccupied house, the property of Mr J Rawlins, South Hayes, Lymington which was dangerous to pedestrians and has already been condemned by Dr Martin and that the Clerk be required to write to the owner asking him to kindly have this matter attended to. This was seconded by Mr W Ingrem. The state of the footpath was also referred to but this is to have the attention of the next council."

    It is likely that the structure referred to is the cottage which stood to the south of point B.

7.15.3.3 On the 10th January 1928 it is minuted that:

        "Polecroft Lane to Flexford Bridge Major Bright drew attention to the state of this Road owing to flooding and was instructed to write to the [District Council] directing their attention to the matter with a view to removing the cause of the complaint."

      There is currently a culvert on the claimed route approximately 150 metres to the north of point B.

7.15.3.4 No further references to the route have been found in either the Parish or District Council minutes.

7.15.3.5 The minutes of Hordle Parish Council support the evidence provided by the Ordnance Survey County Series Maps, that is to say that the part of the route to the north of point B was considered to be a public road, and the part of the route to the south of point B, adjacent to the structures, was considered to be a public footpath.

8 Summary of the historic and documentary evidence

8.1 The claimed path is shown on its current course and alignment on each map produced between 1759 and the present date. Although early small scale maps show the claimed path as part of a longer through route from South Sway to Everton and Milford, which may have been a route capable of use by vehicles, large scale maps of the area to the south of the claimed route produced after 1828 seem to suggest that the southerly continuation of the claimed route was not considered to be a public highway.

8.2 Each map produced between 1840 and 1910 shows a number of buildings between point B and point C. The buildings include at least one habitable cottage, likely to be the subject of a photograph taken in 1897.

8.3 No evidence has been found to suggest that any highway rights which may have existed over this part of the claimed route were formally extinguished prior to the construction of the buildings. It is, therefore, entirely possible that these buildings were illegally constructed within the boundaries of a pre-existing public highway. If so, then any rights which may have existed on the claimed route prior to the nineteenth century still exist, unless those rights have been stopped up by due process of law.

8.4 On each map produced between 1870 and 1910 a narrow path is shown running to the east of the buildings between point B and point C. On the second edition of the Ordnance Survey County Series Map, this path is annotated as a footpath.

8.5 Documentary evidence supports the suggestion that whilst the claimed route to the north of point B may have been considered to be a public road, the part of the route to the south of point B was only considered to be a public footpath.

8.6 Cartographic evidence produced from 1840 onwards would suggest that since this date there have been gates or barriers over the claimed route in various locations. If there were gates on the route, there is no evidence that these were ever locked. There is however, documentary evidence that there were two stiles on the route in 1953. The presence of these stiles does not support the suggestion that the path was capable of use by horses or vehicles after 1953.

8.7 In 1953 an appeal was lodged, by Sway Parish Council, against the depiction of the claimed route on the definitive map as a public footpath (Sway Parish Council were of the opinion that this route should be shown as a bridleway). This appeal was withdrawn in 1954 due to lack of evidence.

9. Modern User Evidence

9.1 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 form, signed by witnesses.

9.2 Seven user forms have been submitted in support of this claim. The evidence submitted on one of the seven forms will be disregarded, as the form relates to a route distinctly different to that claimed.

9.3 One user has ridden the path on horseback, from 1979 to 1981. One further user has ridden the path with a donkey, from 1947/8 to 1968. Four of the users claim to have ridden the path on a bicycle, the earliest use being 1933, and three of the users claim to have used the route with a vehicle. The earliest vehicular route of the path dates to 1968.

9.4 Although Parliament have granted the right for cyclists to use bridleways, use of a path by a cyclist cannot give rise to the presumption that a path has been dedicated as a bridleway. However, as bicycles are recognised at common law as vehicles, it may be that the use of a way by cyclists can give ride to the presumption that a way has been dedicated as a byway open to all traffic.

9.5 User Statements

9.5.1 Mr RE Jones

      Mr Jones moved to Sway in 1960. He was the manager for Broadmead Orchards and lived in 1 Broadmead Cottages, a tied house. He remembers the claimed route as an old trackway adjacent to the house. He recalls riding his bicycle up and down this route. He has seen people walking on the route, but does not recall riders, other cyclists or vehicles using the route. He recalls the track being completely unobstructed along its length until at least 1970. Mr Jones recalls that Mr Bourne put up three scaffolding pipes over the route in an attempt to stop his cattle from wandering down the track. Mr Bourne placed a stile by the side of these poles. Mr Jones was thus prevented from cycling the route, and complained to Sway Parish Council. As Mr Bourne did not claim to own the route, Mr Jones presumed the route was owned by the District Council. Mr Jones moved away from Broadmead Cottages in 1987. He believes that the scaffolding barrier was still across the route when he moved. Mr Jones also believes that the new owners of 1 Broadmead Cottages erected a gate across the track and effectively narrowed the width of the path.

9.5.2 Mr John Selwood

      Mr Selwood was born in 1 Broadmead Cottages on 9th December 1931. His father was a farm hand at Gordleton Farm. One of Mr Selwood's earliest memories is of getting from the cottage to a steam engine which was often parked in the claimed route when roads in the area were to be repaired. Mr Selwood also remembers horses and carts using the bridleway as a shortcut to South Sway. Mr Selwood has only known the route as an open bridleway. He moved to South Sway Farm in approximately 1937.

10 Summary of the recent user evidence

10.1 User evidence would suggest that the claimed route was unobstructed, and capable of use by horses and vehicles until the early or mid 1970s.

10.2 The level of user on this route is very low, and there is insufficient user evidence to give rise to a presumption of dedication.

11 The actions of the Landowner

11.1 The current landowner of the claimed route is Mr Bourne.

11.2 Mr Bourne became the owner of Bridge Farm, and the claimed route, in approximately 1958. The rights of way office have been unable to establish who owned the route prior to 1958.

11.3 Statement of the landowner

11.3.1 Mr Bourne

      Mr Bourne recalls three gates being present on the route when he bought the land in 1958. He knew the previous owner, and believes that these gates were present from at least 1953 onwards. In 1999 Mr Bourne gave permission for a further gate to be erected adjacent to Broadmead Cottages. Mr Bourne has never observed riders using the claimed route. Mr Bourne has never given permission for anyone to use the route as a bridleway - Mr Bruce once asked if his daughters could use the path with their ponies, but Mr Bourne refused, fearing that if he gave permission for one rider to use the route, then many more would ask. Mr Bourne also felt the track, where it passed through his farm yard, would be too dangerous to allow horse riders to use. Mr Bourne claims to have received permission from New Forest District Council to erect a barbed wire fence on the claimed route some time ago. Mr Bourne recalls the cottage on the claimed route. He thinks it was derelict in the 1950s and demolished soon afterwards. He remembers owning an old photograph of the cottage, which he gave to a local historian. The photograph was not returned to Mr Bourne.

12 Summary of the landowner evidence

12.1 Mr Bourne is not aware that the path has been used by anything other than walkers.

12.2 There is no evidence that Mr Bourne intended to dedicate a bridleway over the path.

12.3 Mr Bourne erected a barbed wire fence along the route, between points B and C. He recalls receiving permission from New Forest District Council to erect this fence.

13 Discussion

13.1 There is insufficient user evidence to found a claim based on section 31 of the Highways Act, 1980 under common law.

13.2 Though the claimed path is shown on a number of maps produced before 1840, and is likely to be the route classed as the "Kings Highway" in a mortgage of 1773, this evidence is not, of itself, sufficient to support the allegation that prior to 1840 the claimed path carried equestrian or vehicular rights.

13.3 Whilst there is evidence that the route between point A and point B, may have been considered to be a public road from 1870 onwards, on balance the evidence would suggest that, after 1840, the route between point B and point C was only considered to be a public footpath.

13.4 In order for a route to be recorded on the definitive map, it is usual that the route forms a link between two public highways of equal, or higher, status. It is possible to record a cul-de-sac on the map, but if so, it must be demonstrated that the highway terminates at a point of public resort. Although there is some evidence that the route from A to B may carry public vehicular rights, this route is not capable of being recorded on the definitive map, as there is no place of public resort at point B.

13.4 It is clear that the status of the claimed route was an issue debated during the publication of the first definitive map. Documentary evidence shows that at this time the path was not frequently used by people on horseback, and the appeal against the designation of this path as a footpath (rather than a bridleway) was formally withdrawn due to lack of evidence.

13.5 On balance, and when taken as a whole, although there may be some evidence that the claimed route carried rights higher than that of footpath before 1840, and some evidence that part of the route was considered to be a public road after this date, this evidence is not considered sufficient to recommend a change to the definitive map.

14. Comments from the Applicant and the Landowner

    A draft of this report was given to the landowner and the applicants 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.

15. Conclusions

15.1 The majority of available documentary evidence post-dates the Hordle Tithe Map of 1840, and suggests that whilst part of the route may have been considered to be a way used by vehicles, part of the route was only considered to be a public footpath. The part of the route which may have been used by vehicles is not capable of being recorded on the definitive map as it forms a cul-de-sac, with no point of public resort at its termination (point B). The small amount of evidence which predates the Hordle Tithe Map may suggest that the claimed path was a significant route, but this evidence is considered to be insufficient to support the claim. Therefore, although the claim is not without some foundation, it is recommended that there is insufficient evidence with which to recommend a change to the definitive map.

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 CR664 - Rights of Way Office, Mottisfont Court, Winchester