Hampshire County Council Item 5

Regulatory Committee

23 March 2005

Claim for the addition to the Definitive Map of a footpath from Ringwood Road to the county boundary in the parish of Bransgore

Report of the Director of Recreation & Heritage

Contact: Colin Piper Ext. 6043 [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 -

(b) .... keep the map and statement under continuous review and as soon as reasonably 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 that event.

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

(b) the expiration... of any period such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path;

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

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

(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; or

(iii) that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification.

HIGHWAYS ACT 1980

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

(1) Where a way over 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 been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.

(2) The period of 20 years.... is to be calculated retrospectively from the date when the right of the public to use the way is brought into question....

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 of 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

1.1 Bransgore Parish Council has made an application to have a footpath over Cranemoor Common recorded as a public right of way. The majority of the path is in Hampshire but the route continues into Dorset. There is evidence that the path existed on the same route for over 100 years and that it had been used by substantial numbers of people from the 1960s onwards. However, the land crossed by the path has been held in strict settlement or trust for many years and therefore there is no landowner capable of dedicating a right of way. The application is therefore recommended for refusal.

2. Claimant:

Bransgore Parish Council

c/o Mrs S Owen

20 Bransgore Gardens

Bransgore

Hampshire

BH23 8JD

3. Landowners:

The Meyrick 1968 Combined Trust

Meyrick Estate Management Ltd

Estate Office

Hinton Admiral

Christchurch

Dorset

BH23 7DU

4. Description of the route (please see map attached to report)

4.1 The claimed path starts in the north at Ringwood Road in Bransgore, at the corner of Cat Plantation (point A). It passes through a wide gap in a hedge line and runs for 300 metres across what is now a large arable field, in a relatively straight line, to a bridge over the main London to Bournemouth railway line (point B). At the southern end of the railway bridge the path crosses over the current county boundary and enters Dorset (point C). It passes through woodland for 100 metres to join an east-west footpath that is recorded as a public right of way (point D). This recorded path (No.61) connects Hinton Admiral railway station in the west with Ringwood Road, Walkford in the east. The used path continues south from point D to connect with another recorded footpath (No.26) that runs from the edge of the common, at the old county boundary, (point E) to Cranemoor Avenue. The total length of claimed path is about 420 metres.

5. Background to the claim

5.1 The claimed path was originally a well defined track across an uncultivated common which was covered with scrub and trees. In 1986 the common and the path was ploughed for the first time and the land used to grow crops. Since that date the public has continued to walk across the northern half of Cranemoor Common but their use has been largely confined to a strip of land that has been left around the edge of the field between points A-X-B on plan. This route is still in use today, albeit as a permissive path.

6. Documentary evidence

6.1 1870 Ordnance Survey 25 Inch to 1 mile map

This is the first large-scale map of the English countryside and it shows Cranemoor Common as an area of rough grass, heath and fir trees. There are two paths or tracks running across the common, one from east to west and the other from north to south on the same alignment as the claimed path. Just to the north of Cranemoor Common the village of Hinton contains a pub (The Cat & Fiddle) a Post Office, a school and a church. To the south of Cranemoor Common there is a scattering of dwellings but no recognisable village centre or public facilities.

6.2 1883 Bournemouth Direct Railway plans

This document shows in some detail the route of the proposed railway line, from London to Bournemouth, together with a reference book that lists use and ownership of every parcel of land crossed by the intended railway. Cranemoor Common is described as "Rough land, pathways and stream" in the ownership of Sir George Eliott Meyrick Tapps-Gervis-Meyrick.

6.3 1895 Ordnance Survey 25 inch to 1 mile map

By this date the main London to Bournemouth railway line had been built right through the middle of the common in a deep cutting. A bridge has been built across the railway line to accommodate the path that runs from north to south and this has caused a slight realignment in the route of the path.

6.4 1908 Ordnance Survey 25 inch to 1 mile map

There is very little change in the depiction of the path and common from the previous map. The only point of note is that the paths or tracks running east to west and north to south have been annotated "F.P." for Footpath. The village of Highcliffe has become established about one mile to the south of Cranemoor Common and there are more houses in the locality.

6.5 1932 Ordnance Survey 25 inch to 1 mile map

Again there are very few changes to the depiction of Cranemoor Common and the surrounding locality. The claimed north-south path still exists on its original alignment.

6.6 1939 Ordnance Survey 25 inch to 1 mile map

There is no alteration from the previous map.

6.7 1952 First Definitive Map

This map was the first legal record of the existence of public paths and at this period Christchurch was part of Hampshire. The east-west path across the southern half of the common was recorded as a public footpath (Christchurch East No.1 - now No.61) on the first definitive map, as was a path to the south, from the edge of the common to join Station Road (Christchurch East No.26). The claimed route north of Footpath 1 was not recorded as a public right of way.

6.8 1959 Ordnance Survey 1/2500 map

The common and paths are still shown in the same way as the previous map, the one notable difference is that a significant number of houses have been built on the land just to the south of the common.

6.9 1977 Ramblers Survey

The Ramblers carried out a survey of all public footpaths in Hampshire and passed that information on to the County Council. The surveyor for Footpath 1 has written at the bottom of the sheet "Christchurch Path No.26 joins this footpath 500 metres from Hinton Station end and suggests that additional path is claimed north to Ringwood Road. Ref. 208.951. Start 100 metres from concrete steps, turn left on path, over railway bridge and then bear NE to above reference, this path is already well used."

6.10 1979 Letter from Bransgore Parish Council

In response to a letter from the County Council's Rights of Way Officer, headed "Definitive Map Review" and asking for details of any additional rights of way to be claimed by the parish, Bransgore Parish Council offered this information: "Suggested new path for designation as right of way, marked in green on map with following letters:- X-Y From junction with No.1 at 2062 9466 across Cranemoor Common to join C49. Leaving No.1at 2062 9466 this path heads NNE and after crossing railway line by brick bridge 7m wide turns NE to join C49 at 2080 9508. The surface is earth of varying width over heathy common. Total length approx. 500 m."

6.11 1984 Letter from Bransgore Parish Council

The Parish Clerk wrote to the Assistant County Secretary asking the following question "The Bransgore Parish Council sent on the 7^th June 1979 the map and summary of footpaths which had been undertaken by the Parish Council to Mr Bide, Rights of Way Assistant, which included suggestions for additional footpaths. I have been instructed by the Parish Council when the Map and Summary and request for the additional footpaths will be considered by the County Council?"

6.12 1986 Record of telephone conversation

The County Council holds a note of a telephone call made on 26 September by Mr Slightam, a local resident. The note is headed "Cranemoor Common path" and reads: "Concerned that NE part of path (formerly 3 metres wide grass track) has now been ploughed up."

6.13 1987 Letter from Mrs Hall

A local resident wrote to Bransgore Parish Council concerning "Footpath from railway bridge, Cranemoor Common, to the Ringwood Road." She stated: "This footpath, a grass one, was ploughed up etc. during the preparing and sowing of last Autumn. This cultivation is such, at all levels and in all directions, that it has been impossible to re-instate it by walking to and fro on it."

6.14 1991 County boundary alteration

In 1991 the boundary between Hampshire and Dorset was moved from the southern boundary of Cranemoor Common northwards to run along the southern boundary of the railway line. This means that the southern half of Cranemoor Common is now in Dorset.

6.15 1997 Declaration by landowner

On 4^th June 1997 the landowners made a declaration to the County Council under Section 31(6) of the Highways Act 1980 that they did not recognise the existence of any public rights of way over their land other than those shown on their map. This declaration protects the landowner from the public acquiring prescriptive rights over their land but it is not retrospective. However, on the map submitted, the path from Footpath 26, north to the railway bridge, has been coloured yellow to indicate that the landowner acknowledges the existence of public footpath rights on this route. The rest of the path, from the railway to Ringwood Road in Hampshire, is not similarly coloured.

7. User evidence (please see chart at back of report)

7.1 Mrs S Atyeo of Highcliffe

Mrs Atyeo used the path from 1950 onwards, both on foot and on a bicycle, for pleasure and exercise. She recalls that "My father and grandfather have lived in Hinton, Walkford and Highcliffe over the past 120 years. We were shown this walk by my father for as long as I can remember."

7.2 Mr & Mrs Baldwin of Hinton

Mr & Mrs Baldwin used the path from 1979 onwards, approximately twice a year. They do not recall any obstruction to their use.

7.3 Mr A Clarke of Walkford

Mr Clarke used the path from 1981 onwards for recreation, dog walking, bike riding and access to the Cat & Fiddle pub.

7.4 Mr L Coward of Walkford

Mr Coward used the path from 1954 onwards, every day, to walk the dog.

7.5 Mr K Hainsworth of Highcliffe

Mr Hainsworth moved to his present address in 1967 and first walked on Cranemoor Common, north of the railway line, in 1968, either for leisure walking or running. In those days Cranemoor Common, north of the railway line, consisted of rough grass, scrub, gorse and trees with some open ground between. There was a well defined path across the common, from the bridge to the Ringwood Road, more or less in a gently curved line rather than following the edge of the field as it does today. At the Ringwood Road end of the path there was a gap but on odd occasions there might have been an angled piece of wood across the gap but he thought nothing of it because it was easy to step over the lower end. Mr Hainsworth has never seen the Ringwood Road end of the path gated or obstructed to walkers. In his early days in Highcliffe he used the common path between once a week and once a month and he would see other people doing the same, usually a dog walker or couple per walk. Mr Hainsworth does not recall seeing any notices north of the railway line to say that he should not be there. Fire destroyed the vegetation on the north side of the common, in 1976, but that had no affect on his use of the path. For one year, in the late 1970s, someone used the path as a means of getting vehicles to Step Cottage on the south side of the Common, close to Station Road. The land north of the railway line has been used intermittently for agriculture since the late 1970s or mid 1980s. Since it was first ploughed, people have walked around the edge of the cultivated area rather than the more direct, original line. Mr Hainsworth has continued to use this path, until the present day, on average about once every two weeks and has never been stopped or challenged. He has no connection to the Meyrick Estate and has never asked for permission from them to use the path.

7.6 Mr R Hatton formerly of Hinton

Mr Hatton was born in 1909 and, until 1933, he lived at Hinton vicarage which used to be in Station Road. He used the common path from 1913 to 2002, about 25 times a year, for pleasure and natural history interest. In all the time that he has used the path he does not recall there being any locked gates, notices, or any type of obstruction to the route. Mr Hatton acknowledges that, as the son of the vicar to Sir George Meyrick, he had permanent permission to roam anywhere on the estate, so he took little interest whether the path was public or private. Nonetheless, Mr Hatton's evidence is important because it provides an eye witness account of the character of the path at a much earlier date then the other users.

7.7 Mr J Heaven of Walkford

Mr Heaven used the path from 1969 onwards, approximately 150 times a year, mainly to walk his dog.

7.8 Mrs M Homer of Highcliffe

Mrs Homer was born in Christchurch and moved to her present address in 1971. From that date she used to go for recreational walks with her children over Cranemoor Common. North of the railway line there was a main path across the Common in a direct line from the bridge to the Ringwood Road. There was gorse and heather on both sides of the path with other, minor paths in between the bushes. At the end of the main path, at the Ringwood Road, there was a gap in the hedge but Mrs Homer and her children usually turned back and retraced their steps the way they had come. In the 1970s Mrs Homer walked the main path about once a week and always used to see other people using the same route. She does not recall seeing any signs or notices to say that the land was private. In 1976 there was a fire on the Common which destroyed the vegetation but the path remained in use. In the late 1980s the land on the north side of the railway line was ploughed for the first time and this stopped Mrs Homer walking the old route and forced her to walk around the field edge instead. She has carried on using the path around the edge since the ploughing but at times it has been difficult because of farm vehicles churning up the surface of the path. She has used the Cranemoor Common path virtually every day, since 1983, to walk the dog and has never been stopped. Mrs Homer has seen Sir George Meyrick two or three times in the last few years whilst using path around the edge of the field and was not challenged.

7.9 Mrs M Hutchins of Hinton Admiral

Mrs Hutchins has used the path from 1980 onwards, about 40 times a year, for leisure and exercise with her daughter, mother, grandson, husband, friends and local children.

7.10 Mr D Inns of Walkford

Mr Inns has used the path from 1942 onwards, between six and eighteen times a year, for family outings and picnics in the summer months.

7.11 Mr C Mathews of Highcliffe

Mr Mathews used the path from 1982 onwards, on a weekly basis, to get from home to the forest and the Cat & Fiddle pub.

7.12 Mr & Mrs Mitchell of Hinton

Mr & Mrs Mitchell used this path from 1979 onwards, about twice a year, to get from home to the railway station.

7.13 Mr J Murphy of Hinton

Mr Murphy was born in Walkford in 1943 and as a child he would go for walks, sometimes with his parents and sometimes with friends, over Cranemoor Common. They used to walk from the Ringwood Road across the railway bridge and then either on the path to Hinton Admiral station or the other way to Walkford. Later in life Mr Murphy would use these same paths, with his own children, as part of their usual Sunday afternoon walk. The path from Ringwood Road to the railway bridge was a grassy ride, wide enough for a car, with trees and scrub on both sides. The common, north of the railway line, was ploughed in the mid-1980s. After the ploughing he continued to walk from the bridge to Ringwood Road, around the edge of the cultivated field, but it was difficult to use because of the uneven surface. Mr Murphy has continued to use this path until about a year ago. His father was employed by the Meyrick Estate but he died in 1954 and from that date Mr Murphy has not had any connection with the landowner. In all the time that he has lived in this area, 37 years in Walkford and 24 years in Hinton, he has never been stopped from walking between the railway bridge and Ringwood Road. Mr Murphy has never seen any signs or notices to say that he shouldn't be there. He knew that Cat Plantation was private but he always thought that he was entitled to use the footpath.

7.14 Mrs N Murphy of Walkford

Mrs Murphy has used the path from 1958 onwards, about 40 times a year, for walking the dog and taking her children blackberry picking.

7.15 Mr P Murphy of Walkford

Mr Murphy was born in 1936 and spent his early years in Glenville Road in Walkford. From about the age of five he used to play with his friends upon Cranemoor Common. In those days the area of land north of the railway line was covered with birch trees, ferns and scrub. There was a track that crossed the common that led from the railway bridge to Ringwood Road. This track was about as wide as the railway bridge. He and his friends would use this track to get from the south side of the railway line to Ringwood Road, sometimes on foot and sometimes by bicycle. From the Ringwood Road he would sometimes carry on north to Hinton and sometimes down the Ringwood Road back to Walkford. Mr Murphy's father worked for the Meyrick Estate but he died in 1952 when the son was 16. Mr P Murphy has never been employed by the Meyrick Estate. In 1966 he moved to his present address and continued to use the track across Cranemoor Common for recreational walks. There was a heat wave in the summer of 1976 that caused a big fire on Cranemoor Common and all the vegetation was destroyed. Shortly after this event the Common was ploughed for the first time but it was left as grass for a while and then cultivated at a later date. After the ploughing Mr Murphy continued to walk in the area but kept to a narrow path around the edge of the field rather than the line of the old track. This path was uneven but it was useable at most times. About 20 years ago he got his first dog and took it for walks about twice a week across Cranemoor Common to Ringwood Road and then back to Walkford using the road. In all the time that he has used this path, from the early 1940s to the present day, he has never seen any signs or notices to say that it was private. There have never been any stiles or gates along the route and nobody has stopped him from using the path. Mr Murphy has seen many other people use the same route and he always considered that it was public.

7.16 Mr R Murphy of Walkford

Mr R Murphy has used the path from 1976 onwards, about six times a year, for business and pleasure.

7.17 Mrs S Owen of Bransgore

Mrs Owen moved to Bransgore, with her family, in 1938 when she was only a few months old. Her father worked as a gamekeeper for the Meyrick Estate. They lived on the estate in a cottage known as The Kennels to the north of Hinton Admiral House. In 1940 the family moved to Keepers Cottage in Waterditch on the west side of the village. At the age of eight or nine, in 1946 or 47, they moved again, this time to a tied cottage belonging to the Meyrick Estate on the Ringwood Road opposite Cat Plantation. After the war her father no longer worked as a gamekeeper but was employed by the estate in the greenhouses. From this date Mrs Owen started to use a path over Cranemoor Common to get to Hinton Admiral railway station and to visit a friend who lived in what is now Hinton Woods Avenue. From Ringwood Road she was able to gain access to Cranemoor Common through a large gap in the hedge line. At that time the Common consisted of heather, gorse and a few small trees: it was a haven for wildlife. The path was a worn unenclosed track, about 3 metres wide, that led across the Common to a bridge over the railway line. The path continued south of the railway bridge to what is now Cranemoor Avenue but she usually turned to the west before Cranemoor Avenue, on what is now a recorded public footpath, to get to the station and the main road. Occasionally Mrs Owen would use the path to get to the south side of Cranemoor Common to collect chestnuts and take her dog for a walk. As a young girl she used the path across the common about two or three times a week. There were no gates or stiles, or any barriers, anywhere along the path and there were no signs or notices to say that the path was public or private. She was never stopped or challenged whilst using this path and it was a regular occurrence to see other people using the same route. Mrs Owen used this path regularly until she was 12 years old when she moved with her family to Downton. Mrs Owen moved back to Bransgore in 1993 to live at her present address. Soon after moving back she visited Cranemoor Common to see how it had changed and was surprised to find that the heather and gorse had been replaced by an arable field. The farmer had left a strip of land unploughed around the edge of the field that could be used to get to the railway bridge. In 1994 she joined Bransgore Parish Council and took on responsibility for the rights of way in the parish. She has visited Cranemoor Common to use the path occasionally since then. The path that is there today is the same path that she observed in 1993.

7.18 Mr D Pilley of Highcliffe

Mr Pilley used the path from 1943 onwards, every week, for pleasure and to visit a friend in Hinton.

7.19 Mrs G Pitt of Highcliffe

Mrs Pitt often used the path from 1964 to 1984 for dog walking.

7.20 Mr G Redfern of Highcliffe

Mr Redfern used the path many times from 1982 onwards.

7.21 Mrs D Smith of Highcliffe

Mrs Smith moved to her present address in 1970 and very soon afterwards she started to explore the area looking for places to take recreational walks. She discovered a path that led from Hinton Wood Avenue, opposite the station, down some steps and through the woodland south of the railway line. This path led to cross roads where she turned left and over a pedestrian bridge over the railway line. From the end of the bridge there was a well used path, with trees to the left and open ground on the right, that led to the Ringwood Road. There was a gap in the hedge where the path met the Ringwood Road. Mrs Smith then walked down the Ringwood Road to Amberwood Drive and back home through the woodland on the south side of the railway line. From then on, in the early 1970s, she walked this path about twice a week and used to see other people using it all the time. In 1976 Mrs Smith took up running and used the Cranemoor path as part of her training circuit, about three times a week. That same year a fire destroyed the vegetation on the Common north of the railway line but that did not affect her use. She remembers Cranemoor Common, north of the railway line, being ploughed but she is not sure of the date. After the ploughing she tried to walk the route of the old path but it was very difficult because the ground was rough. Mrs Smith then started to walk around the edge of the ploughed area but that too was difficult because you had to pick your way across the rough ground. The line of the used path changed as a result of the ploughing from a fairly straight line to one around two sides of the field. Her use of the Cranemoor Common path was very frequent until about 1990 when she started running elsewhere in the New Forest. She has continued to use the path after that date, up to the present day, but less frequently, about once every six to eight weeks. In the 34 years that Mrs Smith has lived in Highcliffe she has never been stopped from using the Common path. She has never seen any signs or notices on the route to say that she should not use the path and there has always been a gap at the Ringwood Road. She does not have any connection with the Meyrick Estate.

7.24 Mr & Mrs Thornton of Highcliffe

In June 1981 Mr Thornton and his wife moved to their present address on the south side of Cranemoor Common. From that date they started to explore the area looking for recreational walks and places to exercise their dog. From their house they would walk across the south side of Cranemoor Common to the pedestrian railway bridge and then across the north side of the Common to Ringwood Road. When Mr & Mrs Thornton first moved there, the land on the north side of the railway was covered with small trees and scrub which formed quite a jungle. However, there was a clearly delineated footpath that went straight from the railway bridge to the north corner of the Common at Ringwood Road. This path was quite wide, at least six feet perhaps more, with dense vegetation on both sides. Hard core or rubble of some sort had been put down on the path, in places, to fill in the holes. In their early days in Highcliffe, Mr & Mrs Thornton walked to the Ringwood Road and then back the same way, two or three times a day. It was a common occurrence to see other people using the same path, mostly dog walkers but others with bicycles who perhaps were going to and from work. In the past they have also used this route to get to the Cat & Fiddle pub in the evening and then back the same way. At the Ringwood Road there has always been a gap in the hedge and this has never been blocked or obstructed. One morning, in the 1980s, Mr Thornton went for a walk on the Common and discovered that the vegetation north of the railway line had been completely removed and that the land had been ploughed, including the line of the footpath. To start with they walked across the ploughed field, to redefine the route of the original path. Other people did the same in an attempt to preserve the right to use the path. However, after a while they gave up trying to use the original route and instead took an easier path around a paddock to the west of the ploughed area. The ploughing displaced the walkers who had used the old path to the edges of the cultivated land. About five years ago signs went up near the railway bridge to say that conservation measure were being taken to protect plant species. At the same time a fence was erected running from the west side of the bridge to the corner of Cat Plantation which stopped people walking around the paddock. From the date that the fence went up, their walks have been confined to the strip of land left around the edge of the arable field. Mr Thornton understands that this strip of land has also been used by vehicles delivering feed to cattle in the adjoining field. In the last 5 years a sign was also put up on the south side of the railway bridge saying something like: Meyrick Estate - people are allowed to use this land for legitimate reasons with the permission of the Estate. Mr & Mrs Thornton still walk the current path, around two sides of the field north of the railway line, about two or three times a day but not necessarily the whole distance to Ringwood Road. In all the time that they have lived in the area they have never been stopped from using the paths at Cranemoor Common.

8. The landowner - The Meyrick 1968 Combined Trust

8.1 The County Council has been provided with evidence which shows that, apart from the years 1835-1842, the Estate was in strict settlement between 1790 and 1968. Being in strict settlement means that, at any given time, there is no one who owns the land outright and who is capable of dedicating a new highway. A strict settlement might be created, for example, by a landowner who gives his estate to his son, but directs that after his son's death the land is to pass to a grandson, and after his death to a great-grandson and so on. Neither the son, grandson, nor later generations will own the land outright (they each will only have a life interest) and, therefore, they cannot grant any rights that will continue after their respective deaths. A dedication could occur if the current owner and all future owners are adults and agree to the dedication, but it is difficult to presume such a dedication without specific evidence that such an event actually took place.

8.2 After 1968 the Meyrick Estate was conveyed to Trustees upon certain discretionary trusts. This has a similar effect to the strict settlement. In this case however, the legal title to the property is owned by Trustees who could (in theory) have dedicated a highway, but as they are under a duty to preserve the value of the land for the beneficiaries of the trust, it becomes difficult to presume that they did so.

9. Consultations with other bodies

9.1 Bransgore Parish Council

The Parish are the claimants in this case.

9.2 New Forest District Council

No comment

9.3 Councillor J Waddington - local member

Disappointed with the recommendation but understands why it has been made and accepts it.

9.4 The Ramblers Association

No evidence or relevant comment other than to note the existence of the current path around the field edge.

9.5 Environment Department

No comment

9.6 Hampshire Highways

No comment

10. Analysis of the evidence

10.1 There are six Ordnance Survey large-scale maps, spanning the period 1870 to 1959, which all show the path on the same route, both before and after the construction of the railway line. This path remained intact until 1986 when a local resident reported that the common and the path had been ploughed for the first time. The maps are consistent in showing a gap in the field boundary at the north end of the path and connecting paths south of the railway bridge. There were few dwellings in the locality until large-scale housing development took place south of Cranemoor Common in the late 1950s, although there was a pub, post office, school and church, in Hinton, before the Second World War.

10.2 The earliest user evidence is from Mr Hatton who claims that he first walked this path in 1913. Mr Hatton acknowledges that, because his father was vicar to Sir George Meyrick, he had permission to walk anywhere on the estate. His evidence is, nonetheless, valuable because Mr Hatton cannot recall there being any obstruction, notice or impediment to use of the path from 1913 onwards. The number of users, not unnaturally, increases with time and the residential development of Highcliffe. Not one of the 24 users who have submitted evidence recall there being any obstacle or challenge to their use of this path before 1986 and the ploughing of the common.

10.3 After 1986 some users tried to use the original line of the path but gave up in favour of alternative routes that were easier. The public continued to walk from the bridge to Ringwood Road but used a variety of routes that took them in that general direction. About five years ago a new fence was erected from the north side of the railway bridge running northwards to the field boundary. This stopped walkers crossing land west of the bridge and concentrated use around the field edge which has now developed into a pleasant three metre wide grass track left undisturbed by cultivation.

10.4 The volume of user evidence is sufficient for that use to be considered to be by the public at large. Although Mr Hatton had a close link with the Meyrick Estate the other users did not have such a relationship that their use could be considered permissive during their period of use. For claims based on Section 31 of the Highways Act, that is 20 years use, it is necessary to identify an action which brings the public's right to use the path into question. It might seem reasonable to consider the ploughing of the common in 1986 as a bringing in to question as it caused the public to complain that it interrupted their use of the path. However, in a previous case on this very issue, in 1957, (Owen v Buckinghamshire County Council) it was decided that the ploughing up of a footpath was not a challenge to the public.

10.5 The only other action that could be considered a bringing into question is the serving of notice in 1999 by Bransgore Parish Council, under Section 53 Wildlife & Countryside Act. This would mean a 20 year user period from 1979 to 1999. However, in 1997 the Meyrick Estate made a declaration which denied the existence of a public right of way, in Hampshire, and this provides sufficient evidence the owner had no intention to dedicate. Therefore a claim based on 20 year use, before 1999, must fail.

10.6 It might also seem reasonable to consider that there has been a common law dedication of the path at some point in history. In other words use of the path must have been so obvious and heavy that the owners would have been aware of this activity and, because they took no steps to stop it, then it was always intended to dedicate the path to the public. Certainly use of the path has been overt and significant, especially from the 1950s onwards, and there is no evidence of challenges to that use until 1997.

10.7 The evidence from the Meyrick Estate, that the land has been held either in strict settlement or in trust almost continually since 1790, makes the acquisition of a public right of way in Hampshire, through a common law dedication, almost impossible to achieve. The law holds that without a landowner capable of dedicating a public highway such a dedication cannot take place. Even if there are identifiable landowners or trustees, because of the legal constraints upon their actions, it cannot be presumed that they intended to dedicate public highway rights.

10.8 The circumstances for the path in Dorset are different from that in Hampshire. The declaration made in 1997 by the Trustees of the Meyrick 1968 Combined Trust, acknowledged the existence of a public footpath, south of the railway line, in Dorset. This evidence is not inconsistent with the denial of a public footpath in Hampshire because, at that time, the original cross-field path was under cultivation and there were a number of other routes, north of the railway line, that were being used by the public. It remains to be seen if Dorset County Council are prepared to make a Map Modification Order to record the footpath within its jurisdiction.

11. Conclusions

11.1 The documentary evidence demonstrates that the claimed path existed on the same route from at least 1870 to 1986.

11.2 There is evidence of use of the claimed path from 1913 to 1986, that use increasing with housing development in the 1960s.

11.3 The users consistently say that there has not been any challenge or obstruction to their use of the path.

11.4 The ploughing of the path in 1986 is not recognised by the law as a bringing into question.

11.5 The application for a Map Modification Order made in 1999 can be considered to be a bringing into question.

11.6 The declaration made by the landowner in 1997 defeats any claim based on 20 years use because it provides evidence of an intention not to dedicate within the relevant 20 year period.

11.7 The amount of user evidence is sufficient to support a case for a common law dedication before 1997.

11.8 It is unsafe to presume that there has been a dedication at common law in view of evidence that the Estate has been in strict settlement, or subject to a trust, almost continuously since 1790.

RECOMMENDATION

That the application for a Map Modification Order 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 CR660 - Rights of Way Office, Mottisfont Court, Winchester