21

Hampshire County Council Item 3

Regulatory Committee

8 June 2005

Claim for the addition to the definitive map of a bridleway between Boarhunt Footpath 1 and Hundred Acres, Boarhunt.

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-

(i) 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 bridleway between Boarhunt Footpath 1 and Hundred Acres, Boarhunt.

The use of the claimed path was first brought into question, within the meaning of Section 31 Highways Act 1980, in July 1999. Although there is evidence of the use of this path by the public on foot, on horseback and with vehicles between 1979 and 1999, the claimed route itself is not capable of being a public highway at common law or under Section 31 of the Highways Act. It is recommended that the claim be refused.

2. The Applicant and the Application

2.1 The Applicants are Mr and Mrs D Wiggins of Hundred Acres.

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

3. The Landowner(s)

3.1 Mr Derek Harris is the registered owner of the land on which the claimed route lies. Mr Harris purchased part of the land on 6^th August 1981 from Mr Ron White, and part of the land in 1984 from Mr Wiggins.

3.2 The owners of part of the land immediately to the east of the claimed route are a company called C D Jordan Limited. C D Jordan Ltd also claim the title to the land of route A-B, and are currently involved in litigation to this effect. For the purposes of this investigation, officers have assumed that the registered owners, Mr and Mrs Harris, own the lawful title to the land of route A-B. Should C D Jordan prove their title to the land, the recommendation will remain unchanged.

3.3 C D Jordan Limited have been informed of the current claim.

4. The claimed route

4.1 The claimed route is illustrated in Appendix 1 as route A-B.

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

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 as a highway, either through express or implied dedication.

6. Background

6.1 It is normal (though not always the case) that the termini of public rights of way are other public rights of way. Alternatively, a route may be recorded on the definitive map where it terminates at a point of legitimate interest to the public.

6.2 In this case, the claimed route leads from a public footpath (point A) to an area of land known as Hundred Acres (point B), over which no public rights are recorded. The land at Hundred Acres is privately owned; there is no obvious place of public resort at point B.

6.3 There are a number of routes over Hundred Acres, which form a link between point B and Hundred Acres Road (a public carriageway). If the use of route A-B is sufficient to infer a deemed dedication of highway rights, in order for route A-B to be capable of being recorded on the definitive map, there must be sufficient evidence that the public has also acquired a right of way over one, or more, of the routes leading onwards from point B.

7. Consultation

The following persons and bodies have been consulted about the application, namely the County Council (Environment and Highways), Councillor Felicity Hindson (the local Member), Winchester City Council, Boarhunt Parish Council, Soberton Parish Council, Ramblers Association, Open Spaces Society, Cyclists Touring Club, British Horse Society, Byways and Bridleways Trust, British Driving Society, Trail Riders Fellowship and LARA. The following responses have been received:

7.1 Winchester City Council - no comment

7.2 Boarhunt Parish Council - support the application

7.3 Rambler's Association - do not support the application

7.4 British Horse Society - comment that the path would only be a useful link if rights were shown to exist on the paths at either end of it.

7.5 Trail Riders Fellowship - has no evidence to offer, but comment that the area is particularly poor in bridleways, and would therefore support the application to enhance the network.

8 Historic and documentary evidence

8.1 1814 Forest of Bere Inclosure Award

Parts of the Forest of Bere were formally enclosed in 1814. The land on which Hundred Acres now lies was allotted to George Garnier Esquire. As part of this inclosure, a public footpath was set out, the line of which is now recorded as Footpath 31 Soberton and Footpath 1 Boarhunt. The claimed route was not set out as part of this process and is not illustrated on the map which accompanies the award.

8.2 1841 Boarhunt Tithe Map and Apportionment and 1842 Soberton Tithe and Apportionment

The claimed route is not illustrated on either map. Both maps show the area now occupied by Hundred Acres as undeveloped woodland.

8.3 Circa 1870 Ordnance Survey County Series Map First Edition

The properties and allotments on Hundred Acres are depicted on this map. Route D-C-F-H-I is depicted. Route B-C is also shown, though the eastern end of this path follows a different alignment to the current alignment route B-C (see Appendix 1). The claimed route (A-B), route H-E and route B-E are not illustrated on this map.

8.4 Circa 1895 Ordnance Survey County Series Map Second Edition

The second edition of the County Series Map is very similar to the first. The claimed route is not depicted. Route B-C follows the same alignment as shown on the First Edition of the map.

8.5 Circa 1908 Ordnance Survey County Series Map Third Edition

The third edition of the County Series Map is the first map to show route C-B on its current alignment. The claimed route is also depicted for the first time. It may be that the claimed route was laid out as part of the changes which took place when the eastern end of route C-B was modified. Neither route B-E or route E-H are depicted.

8.6 1930/1940 Ordnance Survey County Series Map Fourth Edition

The fourth edition of the map shows all of the routes in Hundred Acres on their present alignment, including the claimed route.

8.7 1928 Sale Particulars of the Rookesbury Estate, Wickham

8.7.1 Portions of the Rookesbury Estate were offered for sale on the 18^th, 19^th and 20^th July 1928. Included in the sale particulars is a detailed list of the properties on Hundred Acres, which outlines the access rights enjoyed by each property. It is clear that the trackways within Hundred Acres were all considered to be "Private Roads", with the exception of the route of Footpath 31 Soberton/Footpath 1 Boarhunt, which was considered to be a "Bridle Road".

8.7.2 The sale particulars are accompanied by a map which shows the trackways over Hundred Acres, including the claimed route. Route D-F, F-E and B-C are all illustrated on the sale plan as uncoloured. The claimed route, A-B, is coloured brown and included with Lot 90 (Little Forest). There is no indication that the claimed route was considered to be public, and no adjacent landowners were given a private right of access over it.

8.8 1964 Ordnance Survey National Grid 1:25000 Combined Sheet 5811-5911

The 1964 National Grid Map shows the claimed route on its current course and alignment. The map offers no indication as to whether this path, or any of the other paths on Hundred Acres, were considered to be public or private.

8.9 2005 Hampshire County Council List of Highways Maintainable at Public Expense (Chalist)

Route D-C-F-H-I is currently recorded on Chalist as an unadopted, unclassified Highway. Although Chalist is a record of maintenance responsibilities and not public rights, the depiction of route D-C-F-H-I on Chalist in such a manner would suggest that it is considered to be a private road. No other tracks on Hundred Acres are recorded on Chalist.

8.10 Additional evidence

The first map to show the properties and network of paths on Hundred Acres is the 1870 first edition Ordnance Survey County Series Map. However, it is likely that the properties and some of the paths on Hundred Acres were developed some years previously. Many of the cottages in Hundred Acres all bear the initial `W.G. 1845'. A widely held local belief is that the cottages were constructed in 1845 by William Garnier of Rookesbury Park, for the purpose of re-homing itinerant woodland families who had been displaced by the Forest of Bere inclosure process. The cottages were each allotted land within Hundred Acres, and it is likely that the formal network of paths and trackways within Hundred Acres was laid out at this time.

9. Modern user evidence

9.1 A total of sixteen user forms have been provided in support of the claim, providing evidence on behalf of seventeen individuals. Mrs Joan Wiggins has provided a signed statement, though has not completed a user evidence form. Graphs depicting the level of use on the claimed path, on foot, on horseback and with a vehicle are given in Appendices 2, 3 and 4.

9.2 Mr Wiggins, Mrs Joan Wiggins and Mrs Denise Wiggins have all provided evidence of their use of the claimed path. For the purposes of this investigation, the evidence of Mr Wiggins must be discounted for the years prior to 1984, as he was the owner of part of the route, and as such, exercised a private right over it. Likewise, Mrs Joan Wiggins was married to Mr Wiggins until 1984, and enjoyed the same private right until 1984. Finally Mrs Denise Wiggins rented land from Mr Wiggins between 1979 and 1984, and as tenant, exercised a private right over part of the route during this period.

9.3 Route A-B (the claimed route)

9.3.1 A total of eighteen individuals have given evidence of the use of route A-B. The earliest claimed use of the route was in 1925.

9.3.2 Seventeen users have claimed to have walked route A-B. There is evidence of use of the route in every year from 1925 to 1999.

9.3.3 Five users claim to have ridden the route on horseback. There is no clear period of twenty years use of the path by horse-riders.

9.3.4 Six users claim to have used the route with vehicles. There is evidence of vehicular use of the route in every year between 1925 and 1990 and from 1993 to 1999. There is no evidence that the route has been used with a vehicle in 1991 or 1992.

9.4 As stated in paragraph 6.3, there are a number of paths over Hundred Acres which form a link between point B and a public carriageway, the most obvious being route B-C-D, illustrated on Appendix 1. Evidence has also been provided that routes B-C-F-G and B-E-F-G have been used as a shortcut to the Forest of Bere (to the north-west of Hundred Acres) and route B-E-F-C-B has been used by those individuals wishing to follow a circular route around Hundred Acres.

9.4.1 Route B-C-D

Four individuals have provided evidence of their use of this route. Of these four, three have a private right of access along part, or all, of this particular route. Their use of the path, therefore, cannot be used as evidence to illustrate the acquisition of a public right of way. The remaining one user has used the path as of right, and has no private access rights over it.

9.4.2 Route B-C-F-G and route B-E-F-G

Two individuals have provided evidence of their use of both of these routes. Neither individual has a private right of access along either of these routes.

9.4.3 Route B-E-F-C-B

Six individuals have provided evidence of their use of this route. Of these six, four have a private right of access along part, or all, of it. The remaining two users have used the path as of right, and have no private access rights over it.

9.5 Five users have provided signed statements providing evidence of their use of routes on Hundred Acres. These statements are summarised below.

9.5.1 Mrs Georges

Mrs Georges has lived in Hundred Acres since 1993. She has a private right of access along part of route D-C-F and part of route D-C-B. Between 1993 and 1999 Mrs Georges and her family used the claimed route frequently. Mrs Georges used the route on foot approximately three or four times a week, and rode horses along the route approximately twice a week. Her children used the path nearly every day, mainly on bicycles. Mrs Georges believes that virtually every resident of Hundred Acres would have used the path, as it was a convenient short-cut to the amenities in North Boarhunt. She also remembers that the path was used by residents of Southwick Road as a short-cut to the Forest of Bere. Neither Mrs Georges nor her family have ever asked for, or received, permission to use the route. Mrs Georges states that there was never a problem using the route before 1999, it was just accepted as another of the roadways on Hundred Acres. Mrs Georges remembers that in approximately 1999 Mr Harris erected signs stating the path was not a public right of way. She recalls that Mr Harris told her children not to use the path at approximately the same time. More recently she states that a fence has been relocated to restrict access to the path, and the path has been allowed to become very wet and boggy.

9.5.2 Mrs Green

Mrs Green moved to Trampers Lane, North Boarhunt in 1978, and began using the claimed route in that year, after having been told about its existence by an old neighbour. Mrs Green believes she used the claimed route three or four times a year, though states that she used the path more frequently in the late 1970s and 1980s. She used the path as a shortcut when visiting friends in Hundred Acres, and also as a direct route northwards to the Forest of Bere. Mrs Green states that the path was always well used by residents of North Boarhunt and Hundred Acres. She never recalls being stopped, or told not to use the path. She remembers that the path gradually became overgrown with vegetation in the late 1990s, and the stream across the path began to overflow. Mrs Green states that shortly after this a sign was erected at either end of the path, stating that it was not a public right of way.

9.5.3 Mr David Wiggins

Mr David Wiggins was born in Hundred Acres in 1931. His grandfather, Mr Alfred Stubbington, bought a number of plots of land, including the claimed track, when the land was first offered up for sale in 1928. Mr Wiggins states that after the sale his grandfather negotiated with other landowners in Hundred Acres and came to an agreement that all residents of Hundred Acres should have access over all of the tracks within Hundred Acres. In 1967 Mr Wiggins purchased twenty acres of land from his grandfather, including part of the claimed track. Mr Wiggins never attempted to stop anyone from using the path whilst it was in his ownership. He states that the tracks in Hundred Acres, including the claimed route, were used daily by people carrying out their business. Mr Wiggins has walked, cycled and driven along the track regularly from 1935 onwards. In 1984 Mr Wiggins was divorced, and sold roughly two acres of land to Mr Harris. This sale included part of the claimed route. Mr Wiggins recalls that Mr Harris allowed the claimed route to become overgrown shortly after he completed the construction of his home. Mr Harris remembers that in the early part of 1999, his wife, Mrs Denise Wiggins asked Mr Harris if he would clear the vegetation from the path to make it useable once more. Mr Wiggins states that Mr Harris refused to clear the path, stating that he did not believe that the path was a public right of way and that he didn't want people to use it. Soon after this conversation Mr Harris erected a sign at either end of the route stating that it was not public, and repositioned the fence to restrict access to the path.

9.5.4 Mrs Denise Wiggins

Mrs Denise Wiggins began using the claimed path in 1959. Her first husband lived in Boarhunt and they would often go walking in Hundred Acres, using the claimed route as part of these walks. In 1978 Mrs Dense Wiggins began renting a piece of land to the east of the claimed route, on which she stabled her horses. She started riding her horses along all of the tracks in Hundred Acres, including the claimed route. Mrs Denise Wiggins gradually became acquainted with Mr Wiggins, and in approximately 1979, began renting a piece of land from him. This land was situated to the west of the claimed route, and is currently owned by Mr and Mrs Harris. The claimed route was the most direct link between the two pieces of land, and Mrs Wiggins rode the route approximately 200 times a year. In 1984 Mrs Wiggins married Mr Wiggins and Mrs Wiggins no longer stabled her horses on the land adjacent to the claimed route. However, she continued to ride the claimed route with the same regularity. Mrs Wiggins recalls that Mr Harris bought some of the land to the west of the claimed route in approximately 1981, and the rest in 1984. Mrs Wiggins states that the claimed route began to fall into disrepair at approximately the same time as Mr Harris completed the construction of his bungalow. She recalls the vegetation began to grow over the route and the stream crossing the route began to overflow, so the path became too boggy to use. In July 1999 Mrs Wiggins met with Mr Harris, and asked him to clear the route so it could be used once again. Mrs Wiggins states that Mr Harris refused, stating that he did not believe the path was a public right of way, and didn't want it to become such, as he was concerned about the security of his property. Following this conversation, Mrs Wiggins made the application to record the route as a public right of way, in August 1999. Shortly after the application was lodged, Mrs Wiggins states that signs were erected on the route stating that it was not public. She states that, more recently, a fence at the northern end of the route has been repositioned, restricting access to it, and that flowers and shrubs have been planted on the surface of the route.

9.5.5 Mrs Joan Wiggins

Mrs Joan Wiggins has lived in Hundred Acres since 1954. She was married to Mr Wiggins until 1984. and jointly owned the piece of land until this approximate date. She remembers that before Mr Harris bought the land, the path was a roadway of approximately 10 feet in width, contained within fences. Neither Mrs Joan Wiggins nor her ex-husband ever stopped people from using the path, they considered it to be another of the tracks over Hundred Acres, available to all of the residents to use. Mrs Joan Wiggins states that, as she recalls, the path was always well used by people on foot, on horseback and with vehicles. The path formed a useful link for people who wanted to get to, and from, their land on Hundred Acres. Mrs Joan Wiggins remembers that in 1999 Mr Harris put up signs at either end of the path stating that it was not a public right of way. She states that he has also repositioned the fence at the northern end of the route so it restricts access to it. Mrs Wiggins believes that Mr Harris wanted to stop people using the path as he wanted to keep people away from his property. Approximately 18 months ago Mrs Harris tried to walk down the claimed path. Mr Harris stopped her and told her that she wasn't allowed to use it.

10. Landowner evidence

10.1 Mr and Mrs Harris

Mr and Mrs Harris purchased one plot of land, including the southern part of the claimed route, from Mr Ron White in 1981. They subsequently bought a second plot of land, including the northern end of the claimed route, from Mr Wiggins in 1984. They state that neither Mr White nor Mr Wiggins informed them that the claimed route was a right of way when they purchased the land. Mr and Mrs Harris first applied for planning permission to build a bungalow on part of the land in approximately 1988. They finally achieved planning permission in 1995 and completed the construction of their home in 1998. They state that when they first purchased the land the claimed route was fenced along its length, but because of the stream across the middle of the route, was too muddy to walk on. Mr and Mrs Harris have occasionally seen walkers using the route. They recall seeing Mrs Denise Wiggins riding on the route, and have only observed one vehicle attempting to use the route on one occassion. They state that the vehicle got stuck and had to turn back. Mr and Mrs Harris state that when they have seen people trying to use the route they politely tell them that the route is not a public right of way. They recall an incident when Mrs Denise Wiggins asked Mr Harris is he would clear the vegetation from the route as it was becoming unusable. Mr Harris states that he declined as he did not wish for the path to be used by the public, as he was concerned about the security of his property, and the general security of all the properties on Hundred Acres. Shortly after he was informed of the application to record the route as public, Mr Harris erected a sign stating that the route was private. He has also moved the fence at the northern end of the route. Neither Mr or Mrs Harris believe the route is a public right of way.

10.2 Statements of Mr David Wiggins and Mrs Joan Wiggins are included at paragraph 9.5.3 and 9.5.5 respectively.

10.3 On the 31^st July 1999 Mrs Denise Wiggins wrote to the Rights of Way section. In this letter, Mrs Wiggins stated that in approximately 1998 Mr Harris had begun to let the claimed path become overgrown with vegetation. Mrs Denise Wiggins states:

"I asked him if he would clear the roadway so it could be used, and he refused. When I reminded him that it was an established local right of way, he stated that he did not want people walking round his property, and that the residents of Hundred Acres had no rights. He did not want people around as they may steal things."

10.4 On the 28^th September Mrs Denise Wiggins wrote a second letter to the rights of way section stating that:

"...Mr Harris erected a sign inside his fencing at each end of the roadway stating that it is Not a Right of Way, on the morning of the 8^th August 1999"

11 Discussion of the evidence

11.1 The claimed route is first depicted on the third edition of the Ordnance Survey County Series Map, published in 1908/9. Neither this map, nor any map produced subsequently offers any indication of the status of this route.

11.2 The amount and degree of use of the claimed path is insufficient to justify a deemed dedication at common law.

11.7 The requirements for a path to be recorded on the definitive map are outlined in paragraph 6. In this case there is no place of public resort at point B, and the level of user on any of the given routes leading northwards from point B falls far short of the level necessary to demonstrate the acquisition of a public right.

11.8 The claimed route does not meet the common law definition of a public highway, and therefore, Section 31 of the Highways Act 1980 does not apply. It is therefore not necessary to consider whether or not the amount and degree of use of the path is sufficient to satisfy the requirements of Section 31 Highways Act.

11.8 It is recommended that the claim be refused.

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.

12.1 Mrs Harris comments that:

_ Although several people say the track has been blocked off with a fence, the fence does not actually block access to the claimed path; a gap has been left in it.

_ Mrs Georges claims that Mr Harris confronted her children and told them not to use the path. Mr Harris does not recall this incident.

_ The only people that Mr and Mrs Harris have ever stopped from using the path are those that are not residents of Hundred Acres. In particular, they have accepted the use of the path by Denise and Joan Wiggins.

12.2 Mr and Mrs Wiggins have not submitted a formal comment.

13. Conclusions

13.1 There is no historic evidence to suggest that this route was ever considered to be a public footpath, and the level of use is insufficient to justify a deemed dedication of a public path at common law. The claimed path is in itself not capable of being recorded on the definitive map, as it does not reach a legitimate place of public resort.

RECOMMENDATION

That the claim 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 CR670 - Rights of Way Office, Mottisfont Court, Winchester