Hampshire County Council Item 10

Regulatory Committee

27^th April 2005

Dedication of Public Footpath along Workmans Lane, Warsash

Report of the Director of Recreation and Heritage

Contact: Sally Plummer, ext 6040

Extract from the Highways Act 1980

Section 25(1) - Creation of a Footpath or Bridleway by Agreement

A Local Authority may enter into an agreement with any person having the necessary power in that behalf for the dedication by that person of a footpath or bridleway over land in their area...

1. Summary

1.1 Hampshire County Council has received an offer for the dedication of a footpath along Workmans Lane, Warsash by the landowners, J F Ashton Ltd, shown from point A to point B on the attached plan.

1.2 Workmans Lane, currently unrecorded, links Hook Park Road, BOAT 512 and Footpath 11b to Footpath 29, creating a good link in the network and adding to the possibilities for circular walks in the area.

1.3 The Committee is recommended to accept the offer with thanks.

2. Background

2.1 In early 2004 a sign was erected at the end of Workmans Lane indicating that there was no public right of way.

2.2 Initial steps were then taken by local people towards the making of a claim to have the footpath recorded on the Definitive Map. One of the claimants approached the landowner to ask if the path could be dedicated to avoid the claim process and the landowner agreed.

3. Description of the new path

The proposed footpath will follow the lane from Hook Park Road, point A on the attached plan, south east to Footpath 29, point B on the attached plan. A total length of approximately 495 metres and a minimum width of 4 metres.

3. Summary of Consultations

3.1 Local Member Councillor Estlin

Councillor Estlin is supportive of the proposal.

3.2 Fareham Borough Council

The Council has no comments other than they presume that the maintenance of the path will become the responsibility of the rights of way section.

3.3 Warsash Residents Association

The Association is very glad that the matter has come to a successful conclusion. The Association states that it is indebted to the member who initiated the research into the status of the lane and to the County Council for progressing the legal procedures.

3.4 The County Council Highways Advisor

No comment.

3.5 The County Archivist

No response.

3.6 The County Council Chief Planning Advisor

No comment.

3.7 British Horse Society

The British Horse Society states that a previous BHS Officer asked for the route to be designated as a bridleway in the Fareham Local Plan as it would form an important link to the permissive riding route at Chilling. The Society believes that the route is suitable for both horseriders and cyclists and although this would require the upgrade of Footpath 29 to bridleway also, it would be a step towards creating a link from BOAT 512 to Chilling Lane.

3.8 The Ramblers Association

The Association supports the dedication and will be pleased to see this link as it will also provide a useful alternative to the Solent Way if the weather is rough during high tides.

3.9 Open Spaces Society

No comments.

3.10 British Driving Society

As British Horse Society.

3.11 National Farmers Union

No comment.

3.12 Cyclists Touring Club

The local representative states that this will not have any impact on cyclists locally. NCN (National Cycle Network) Route 2 will run somewhere through this area.

3.13 Trail Riders Fellowship

No comment

3.14 LARA

The representative states that the Ordnance Survey map already shows this path as a footpath.

3.16 All Wheel Drive Club

No response

3.17 Adjacent Landowner - Mrs S Cummins

Mrs Cummins makes the following points:

1) Over the past 45 years there has never been any objection to people walking along this lane. The only thing that has changed is the erection of the sign indicating no public right of way.

2) The lane is used by both private and commercial vehicles and there is a blind bend at the eastern end. Fareham Borough Council advised that the sign remain showing where responsibility would lie in the event of an accident.

3) Painting out the offending part of the sign would resolve the matter amicably and restore the status quo.

3.18 Adjacent Landowner - Mr A Lamburne

Mr Lamburne makes the following comments:

1) The lane is used by both private and commercial vehicles and is only one vehicle wide, with a blind bend at the southern end before it meets the existing footpath. Mr Lamburne cannot see the sense under health and safety reasons why anyone would want to divert pedestrians along a road with no foot path, especially when an existing public footpath exists only a few yards away, running through open fields.

2) Mr and Mrs Lamburne recently carried out major repairs to the lane, work which involved heavy machinery - not an area in which the public should be encouraged to walk. This lane requires regular privately funded maintenance so this is not a rare occurrence.

3) Last year Mrs Lamburne was advised by the Winchester office that the lane is not a public foot path and that as there is traffic regularly using the lane it would be a good idea to put up a sign warning the public that it is not a public right of way in case of any accidents.

4) There are many parts of the lane where there is not enough room for both pedestrians and vehicles to pass particularly in the summer when the hedges grow into the lane. At this time of year Mr and Mrs Lamburne employ farm contractors to rip back the hedges and trees to allow access, again not a good mix for the public and machinery. The lane is also lined with a large number of trees many of which are in poor condition; in fact, four blew down last week which Mr Lamburne cleared. He would like to know who would be responsible for this if it were a footpath.

5) Mr Lamburne does not think that mixing people, dogs and vehicles is sensible. He would like to know who would be responsible in the case of an accident. Would it be the council for encouraging people to walk in the road, Mr Lamburne for driving down a lane to his house, or the person walking down the lane?

4. Comments on consultation responses

4.1 Fareham Borough Council

The council wish to know about future responsibility for the footpath. The surface of the route will become vested in the Highway Authority for maintenance to footpath standard only.

4.2 British Horse Society

The landowners agent has been approached with the suggestion that the route be dedicated as bridleway, however the landowner is unwilling to do so.

4.3 Cyclists Touring Club

The Club raised the proposed route 2 of the National Cycle Network. This follows Hook Lane, over 600 metres to the east of the proposed dedication

4.4 LARA

The Ordnance Survey Landranger Map does indeed have this route (wrongly) shown as a public footpath. The error is not repeated on the larger scale Explorer map however. The Ordnance Survey will be asked to correct their maps once the outcome of the proposed dedication is known.

4.5 Adjacent Landowner - Mrs S Cummins

4.5.1 Mrs Cummins suggests that the sign should be removed. If a claim is made to have a route recorded as public (the claim was initiated following the sign going up) we are obliged to investigate this and record those rights that are found to exist. Removing the sign at this stage would not prevent such an investigation being made.

4.5.2 In response to Mrs Cummins concerns regarding responsibility in the event of an accident; if the people involved are using the route legitimately, ie exercising either public or private rights, it would entirely depend upon who is at fault in any given situation.

4.5.3 As far as the landowner is concerned, if the public are using a route that is not recorded as a public highway and are therefore, trespassers, a landowner still has a duty of care under the Occupiers Liability Act 1984 in respect of dangers he is aware of or has reasonable grounds to believe exist. If the route becomes a public footpath under section 25 Highways Act 1980 it becomes publicly maintainable and thus vests in the highway authority. Usually, an owner of land has a duty of care to visitors/those permitted to be on his land, under the Occupiers Liability Act 1957, but it has been held that in respect of public highways, persons exercising public rights of way are not to be visitors within the meaning of the Occupiers Liability Act 1957, the rationale for this being that since the landowner has no power to control the use of the highway by the public, he is not to be burdened with responsibility for defects in the highway.

4.6 Adjacent Landowner - Mr A Lamburne

4.6.1 Regarding the vehicular use and repair of this route, this does not particularly present any more of a risk to users than many other rights of way within the county. The nature of rights of way is such that they often form part of a private access also. The route has been in use for many years and there have been no recorded incidents so far.

4.6.2 I am unable to locate the person that Mrs Lamburne spoke to at the Winchester Office who suggested the placing of a sign indicating no public right of way. It is unlikely that we would have suggested that a sign be erected if we were aware that the path was being used as a public footpath. The erection of such a sign would be, as suggested above, a calling into question and we would be aware that this might lead to a claim for a public footpath.

4.6.3 Mr Lamburne asks about responsibility for clearing fallen trees. When a tree blows down over a public highway, the person responsible for its removal is the owner of the land on which that tree stood. Therefore if the tree grew within the highway, it is the responsibility of the County Council. If the tree were to fall from an adjacent landowners property, then that landowner would be required to remove it.

4.6.4 In answer to Mr Lamburne's queries regarding liability, the comments made in response to Mrs Cummins (paragraph 4.5.2 and 4.5.3) apply.

5. Financial Implications

The future maintenance of the surface of the route will be the responsibility of the County Council. Although we will have a duty to maintain it to footpath standard only, the fact that the route is used by vehicles will result (as it does now) in increased deterioration of the surface. The Council will not be responsible for maintaining the surface to vehicular standard, however experience elsewhere shows that private vehicular users of rights of way do often endeavour to seek higher public maintenance.

This being said, it is felt that the public benefit of having this path dedicated as public footpath outweighs these implications.

6. Conclusion

This dedication will provide a positive link in the footpath network, providing an appropriate alternative to the Solent Way if required. The route has been used for many years by walkers, having the route formally recorded as a public footpath will clarify the situation for both the public and for local landowners.

7. Recommendation

The Committee is recommended to accept the dedication with thanks.

Section 100 D - 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 the report:

File: Dedication: Workmans Lane, Warsash Fareham

Rights of Way Office, Mottisfont Court, Winchester