21

Hampshire County Council Item 5

Regulatory Committee

27 April 2005

Claim for the addition to the definitive map of a footpath between Derby Road and Desborough Road, Eastleigh

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;

HIGHWAYS ACT 1980

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

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

PRESUMED DEDICATION AT COMMON LAW

Use of a way by the public without secrecy, force or permission of the landowner may give rise to an inference that the landowner intended to dedicate that way as a highway appropriate to that use, unless there is sufficient evidence to the contrary. Unlike dedication under s.31 Highways Act 1980, there is no automatic presumption of dedication after 20 years' public use, and the burden of proving that the inference arises lies on the claimant. There is no minimum period of use, and the amount of user which is sufficient to imply the intention to dedicate will vary according to the particular circumstances of the case. Any inference rests on the assumption that the landowner knew of and acquiesced in public use.

1. Summary

This report concerns an application for the addition to the definitive map of a footpath between Derby Road and Desborough Road, Eastleigh.

The use of the claimed path was first brought into question, within the meaning of Section 31 Highways Act 1980, in June 2002. There is evidence of the use of this path by the public in every year from 1982 to 2002. There is no evidence that the landowners have ever taken any steps to prevent the acquisition of public rights over the claimed route, and no evidence that the landowners did not intend to dedicate public rights over the claimed route prior to 2002. It is therefore recommended that the claimed route be added to the definitive map as a footpath with a width of 1.8 metres.

2. The Applicant and the Application

2.1 The Applicant is Mr Keith Field of the Cranbury Road and Desborough Road Residents' Association.

2.2 Sixteen user forms and a number of photographs of the route have been submitted with this application.

3. The Landowner(s)

3.1 Eastleigh Housing Association Limited (`the Housing Association') is the registered owner of the land on which the claimed route lies. This land was transferred to The Association from Eastleigh Borough Council on 18^th March 1996. Officers have not established when Eastleigh Borough Council acquired the freehold, but it is presumed that they have owned the land since 1970, when local authority maisonettes were constructed adjacent to the path.

4. The claimed route

4.1 The claimed route is an urban path which forms a link between Derby Road and Desborough Road, Eastleigh. The path is illustrated in Appendix 1 as route A-B-C.

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

4.3 Prior to 2005, the claimed route consisted of a path with a tarmacadam surface. Two streetlights were situated at the western edge of the path (between point A and point B). In the early part of 2005, as part of the redevelopment of the adjacent land, the surface of the path and the associated street-lights were removed.

4.4 Between approximately 1970 and 1996, both the surface of the path and the streetlights were maintained by Eastleigh Borough Council. Since 1996 the surface of the path has been maintained by the Housing Association. Streetlights have continued to be maintained by Eastleigh Borough Council.

5. The issue to be decided

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

6. Consultation

The following persons and bodies have been consulted about the application, namely the County Council (Environment and Highways), Councillor Davis-Dear (the local Member), Eastleigh Borough Council, Ramblers Association, Open Spaces Society and the Cyclists Touring Club. The following responses have been received:

6.1 Hampshire County Council (Environment) - no objection

6.2 Hampshire County Council (Highways) - comment that the footpath, together with a strip of grass, was transferred to Eastleigh Housing Association when the Borough Council disposed of its housing stock. State that there are no obvious restrictions to public use of the path, which has the benefit of street lighting. Comment that although there is an acceptable alternative route of identical length (the north footway of Derby Road and the west footway of Desborough Road), there is no objection to this route being added to the definitive map.

6.2 Rambler's Association - comment that the footpath is, in its view, one where highway rights have been established. State that it is not so connected with the nearby dwellings that it could be regarded purely as a back way serving those dwellings, and comment that it has lighting columns and all the appearances of a route which the public were expected and permitted to use.

7 Historic and documentary evidence

7.1 There is no evidence that the claimed path has ancient or historic origins.

7.2 The 1:1250 Ordnance Survey National Grid map, surveyed in 1950, shows terraced houses on the western side of Desborough Road, and semi-detached houses on the eastern side of Cranbury Road. The land between the two rows of houses is largely undeveloped, except for an area at the southern end of this land, on which two houses (which front onto Derby Road) are illustrated. Two paths are shown leading north from Derby Road to the open land between Cranbury Road and Desborough Road: one passing to the west of the two properties fronting onto Derby Road; and one passing to the east of the same properties, in the same location as the claimed route. A terraced house occupies the land on which the section of the claimed route between point B and point C lies, no access is depicted from point B to Desborough Road.

7.3 The 1:2500 Ordnance Survey National Grid map, surveyed in 1968 was produced after the terraced properties on the western side of Desborough Road were demolished, but before the Housing Association flats were constructed on the same land. The land on which it lies is shown as open and undeveloped, no paths are illustrated over this land.

8. Modern user evidence

8.1 21 witness forms, providing evidence of 23 users have been submitted in support of the application. A number of photographs showing the claimed route have also been submitted.

8.2 The user forms were completed in 2003 and 2004. The earliest use of the path was in 1968. There is evidence of the use of the path in every year between 1968 and 2004. A full summary of the use of the path is given in Appendix 2.

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

8.4 The majority of those who have given evidence claim to have used the path very frequently. 17 users claim to have used the path at least daily: one of these 17 claims to have used the path on average six times a day, whilst another claims to have used the path four times a day on average.

8.5 Two users have provided information regarding the width of the tarmac path prior to its removal. Mr Field states that the path was 1800mm wide, whilst Mrs D McAdam states that the path was approximately six feet wide. Modern digital Ordnance Survey mapping shows that the tarmac surface of the claimed route was approximately 1.8 metres wide.

8.6 Six witnesses have been interviewed. Their statements are summarised below.

8.6.1 Mrs Benjamin

Mrs Benjamin has lived in Derby Road for approximately 45 years. She recalls that before the Housing Association flats were constructed there was an unsurfaced path in the same location as route A-B which served as a rear access for the Desborough Road properties. Mrs Benjamin states that the claimed route was laid out when the Housing Association flats were constructed, possibly in 1967 or 1968. She remembers that the path was surfaced with tarmac and that street lighting was installed soon after the flats had been built. Mrs Benjamin states that people began using the path almost immediately. She never saw any signs or other indications that the path was private. Mrs Benjamin began using the claimed route in 1970. She used the path almost daily, at least once a day if not more. Sometimes she used the path on her own and sometimes she was accompanied by friends or relatives. She has witnessed many other people using the path, including parents taking their children to school and college students. Mrs Benjamin believes that the path was well used as it was a pleasant and safe route to use.

8.6.2 Mr Field

Mr Field has been a resident of Cranbury Road since 1974. He states that the claimed route has been present since at least 1974, and that since 1974 he has used the path every day, at least twice a day. Mr Field states that the path is very well used: by local residents; by schoolchildren and their parents (travelling to and from Cherbourg Primary School); and by students of Eastleigh College. He believes that the claimed route is well used because it is safer than the alternative route along Derby Road and Desborough Road, and more pleasant. Mr Field stated that he never had any reason to doubt that the path in question was a public footpath. It was surfaced with tarmac, had street-lighting and benches were positioned adjacent to the path. Mr Field believes that Eastleigh Borough Council were responsible for maintaining the streetlights on the route, and states that it would be unusual for a Borough Council to spend public money on maintaining a private path. Mr Field believes that Eastleigh Housing Association have only claimed that the path is private since they recently decided to develop the surrounding land. Mr Field does not recall any signs on the route stating that it was not for public use, and believes that if the developers had intended that the path should be private, they should have indicated this in some way at the point where the path meets the pavements of Derby Road and Desborough Road.

8.6.3 Mrs Hassell

Mrs Hassell has lived in Cranbury Road since 1956. She recalls the area prior to the construction of the Housing Association flats, when it was occupied by terraced houses. She recalls an alleyway in the same location as section A-B of the claimed route, and states that, although unsurfaced, this path was used by many people. Mrs Hassell states that the Housing Association flats were constructed in 1967, and that the footpath was laid out and surfaced at the same time as the flats were constructed. Mrs Hassell recalls that route A-B-C has always been very well used. Between 1970 and 1995 she used the path almost daily, and though since 1995 she has used the path less frequently, she still continues to use it regularly. Mrs Hassell has used the path for a number of reasons including as a short-cut to visit her mother, and as a way of getting to the shops in Eastleigh. She believes that many other people used the path, including schoolchildren and pensioners, as it was a safe, pleasant, short-cut. Mrs Hassell states that no-one has ever suggested that the route is private, and there have never been any fences or gates to prevent public access. Mrs Hassell states that even now, as the land is being redeveloped, she has never been stopped from using the path by the developer's Project Co-ordinator.

8.6.4 Mr and Mrs Nias

Mr and Mrs Nias have been residents of Cranbury Road for approximately 36 years, and are familiar with the claimed route. Mrs Nias has used the path daily from 1968 to 2004 and Mr Nias used the path once or twice a week between 1968 and 1990, but daily since 1990 when he retired. They use the route as a way of getting to the amenities in Eastleigh town centre. Neither Mr or Mrs Nias has ever been prevented from using the path, and neither has seen any signs or notices to suggest that the path was not for public use. Both believe that the path has always been well used by many people.

8.6.5 Miss Tarry

Miss Tarry has lived in Derby Road since she was born in 1942. She remembers that the flats were constructed in approximately 1973, and the path was laid out at the same time. This path was tarmac'ed and street-lit. Miss Tarry states that the path has always been particularly well used, particularly by mothers taking their children to school, schoolchildren and students. Miss Tarry used the path approximately one or two times a week prior to her retirement in 2000. Since 2000 she has used the path every day. Miss Tarry has never seen any signs on the path, nor any indication that the path was not meant to be used by the general public.

8.7 Fifteen photographs, taken between 2002 and 2004, have been provided in support of the claim. The photographs, taken by the claimant, each show pedestrians using the claimed path. A total of 32 individuals are photographed using the path. These individuals include schoolchildren and adults with young children.

8.8 In light of the witness statements and photographs, officers suspect that the number of individuals who have used the path is considerably higher than the number of completed user forms would suggest.

9. Landowner evidence

9.1 On 5^th June 2002, Eastleigh Housing Association applied to Eastleigh Borough Council for planning permission to redevelop land to the west of Derby Road. The development plan (reference 38663) shows that the land on which the claimed route lies was to be redeveloped and incorporated into the curtailges of the new properties to be constructed on Desborough Road. Permission for the development was granted on 7^th August 2002.

9.2 On 9^th August 2004 a revised planning application was submitted by Eastleigh Housing Association. Although the previous application had been successful, of the new application, in a letter dated 22^nd July 2004, Mr Julian Jones of Barratt Homes Limited writes:

"The reason for the re-plan was initially borne from the Village Green Application which was unsuccessful, however this did highlight a Rights of Way issue through the site that could not be accommodated within the current Planning Approval"

In the same letter Mr Jones states that the proposals for consideration include:

"Splitting up of terrace of 8 houses to create public access to adjoining road."

9.3 The development plan which accompanies the proposal (plan number P290/EXT/101) shows that the claimed route between point B and point C was to be retained. However the claimed route between point A and B is not accommodated within the development plan; it is again proposed that this land be incorporated into the curtilages of the properties.

9.4 On the 25^th August 2004 the Rights of Way section was asked to comment on this application. In a letter dated 8^th September 2004, an officer from the Rights of Way section wrote to inform Eastleigh Borough Council that although the revised plans accommodated the claimed route between point B and point C, they did not accommodate the claimed route between point A and point B. The officer advised that the applicant should either accommodate the claimed route in its entirety, or, apply to divert what rights may exist (under the Town and Country Planning Act).

9.3.2 In October 2004 the development plan was again amended. The amended plan (P290/EXT/101 revision A) accommodates the claimed route in its entirety. The key to the plan indicates that the plan was amended as follows:

"Rear boundaries to plots to be moved to accommodate existing footpath"

9.4 In a letter of the 7^th November 2004, the Development Project Manager of Eastleigh Housing Association writes:

"Our views are that the footpath was constructed for the sole purpose of accessing the back entrances to the nine blocks along Desborough Road, and has been maintained by the Housing Association as such. The path marked on your plan is for use of the residents of these properties only and the general public can be served by a path that runs on the south side of these properties along Derby Road and on the east side of the properties, along Desborough Road."

9.5 On the 29^th of November 2004, Mr David Smith of Eastleigh Housing Association was interviewed. His statement is summarised below:

9.5.1 Mr David Smith

Mr Smith was the Director of Housing for Eastleigh Borough Council between 1986 and 1996. He had specific responsibility for the estate on which the claimed route lies. Mr Smith transferred to Eastleigh Housing Association in 1996. Mr Smith states that the claimed path was laid out as private access for residents of the adjoining Derby Road flats. He states that he was not aware that the path was used by the public, and feels that had it been used as a public footpath, this would have been brought to his attention, as his office often dealt with complaints about people misusing private property. Mr Smith states that neither the Housing Association, nor the Borough Council erected signs on the route to discourage users because they were not aware that it was used by the public, and that they certainly did not intend for it to become a public right of way.

9.5 Officers in the rights of way section have approached Eastleigh Housing Association to discuss whether or not the Housing Association would be prepared to dedicate the claimed route as a public footpath. In an e-mail dated 15^th November 2004 indicated that they were unwilling to dedicate the footpath unless it was confirmed to be a right of way.

9.3 Part of the claimed route was enclosed by fencing in December 2004 and January 2005. The fencing was constructed to facilitate the demolition and redevelopment of the site.

10 Discussion of the evidence

10.1 There is no historic evidence to support the claim.

10.2 The Eastleigh Housing Association development plan, submitted on the 5^th June 2002 clearly shows that the landowner (Eastleigh Housing Association) intended to redevelop the land on which the claimed route lies. This development plans was freely available to the public for viewing, and can be classed as a bringing into question within the meaning of the Highways Act 1980.

10.3 The relevant twenty year period necessary to satisfy section 31 of the Highways Act 1980 is therefore from June 1982 to June 2002.

10.4 Use must be as of right. This means that use must be without force, without secrecy and without permission. There is no evidence that force has ever been employed by users of the path. Although Mr Smith of Eastleigh Housing Association states that he was not aware that the path was used by the public, all of the users appear to have used the path openly, during the day, so it can be said to have been without secrecy. There is no evidence that users of the path have received permission to use the path.

10.5.1 Use must be by the public. 20 users claim to have used the route during the relevant 20 years period. 13 witnesses claim to have used the route in 1982, 16 witnesses claim to have used the route in 1992 and 20 witnesses claim to have used the path in 2002.

10.5.2 Although there are a small number of users for the period between 1982 and 2002, the majority of those who have given evidence as to their use of the path claim to have walked the path daily. This level of usage is considered particularly high. Furthermore, officers suspect that the number of users who have walked the route is likely to be considerably higher than the number of signed user forms would suggest.

10.5.3 The level of user in each year of the twenty year period is deemed sufficient to satisfy the requirement that the path has been used by the public at large.

10.5 Section 31 of the Highways Act states that dedication of a path may presumed if the necessary tests are fulfilled, unless there is sufficient evidence that there was no intention during that period to dedicate it. In order to rebut a presumption of dedication under the Highways Act, evidence must provided that during the relevant period the landowner did not intend to dedicate the route as a pubic right of way. In a letter dated November 2004, Eastleigh Housing Association state that the claimed path was provided as private access and not intended for public use. However, this letter was written after the relevant twenty year period had elapsed. It is therefore not sufficient to rebut a presumption of dedication for the period between 1982 and 2002.

12. Comments from the Applicant and the Landowner

A draft of this report was given to the landowner and the applicant to afford them the opportunity of submitting further evidence or making further comment. Neither Mr Field nor Eastleigh Housing Association have any comments to add.

13. Conclusions

13.1 The use of the claimed path was first brought into question in June 2002. There is no evidence that Eastleigh Housing Association or Eastleigh Borough Council have ever tried to prevent the public from using the path, and no indication that the path was not intended for public use prior to 2002. The twenty year period relevant to the claim is therefore from June 1982 to June 2002. There is evidence of use of the path by the public in each year of this twenty year period. Though the number of witness forms provided in support of the claim is not particularly high, the number of users who have provided evidence is deemed sufficient to satisfy the requirement that the path has been used by the public at large. There is, therefore, sufficient evidence that the requirements of Section 31 of the Highways Act 1980 have been satisfied. Although reluctant to formally dedicate the path, Eastleigh Housing Association have now changed their development plans to accommodate the claimed route.

RECOMMENDATION

That an Order be made to add the claimed path to the definitive map as a footpath, with a width of 1.8 metres.

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 CR772 - Rights of Way Office, Mottisfont Court, Winchester