2

Hampshire County Council Item 9

Regulatory Committee

7 September 2005

Application for a Map Modification Order to record a footpath between Passage Lane Car Park and Footpath 3a, Fareham Borough

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

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 Passage Lane Car Park and Footpath 3a, Fareham.

Documentary evidence would suggest that a path in the approximate location of the claimed route has existed as a physical feature since at least 1960, though its alignment changed in approximately 1970. The path which existed prior to 1970 was partially extinguished in 1998. Although there is evidence that the claimed path has been used by the public between 1970 and 1999, when taken together with other available evidence, it is considered the level of user is insufficient to presume a common law dedication of the path. Neither can the requirements of Section 31 Highways Act be met. The application is therefore recommended for refusal.

2. The Applicant and the Application

2.1 The Applicant is the Warsash Residents' Association

2.2 26 user forms and a number of letters have been submitted with the application.

3. The Landowner(s)

3.1 Hampshire County Council, Fareham Borough Council and Mr Raymond Gustar each own part of the land on which the claimed route lies. The approximate extent of the land owned by each party is shown in Appendix 1.

3.2 The land at the northern end of the claimed route (hereafter referred to as `the blue land') is currently designated as public open space, and has been owned by Hampshire County Council since 10^th August 1971. Mr Philip Goddard owned the land between 31^st July 1968 and 10^th August 1971. Sotonvale Development Ltd (a partner company of Warsash House Estates Ltd) owned the land between 1^st March 1960 and 31^st July 1968. Prior to 1960 the land was owned by Warsash House Estates Ltd.

3.3 The land at the southern end of the claimed route (hereafter referred to as `the green land') is currently used as a public car park, public conveniences and public open space, and has been owned by Fareham Borough Council (formerly Fareham Urban District Council) since 18^th November 1964. Warsash House Estates Ltd. owned the land prior to this date.

3.4 The land over which the central part of the claimed route lies (hereafter referred to as `the pink land') is currently enclosed as a private garden, and has been owned by Mr Gustar since 27^th August 1986. Between 25^th January 1978 and 27th August 1986 Mr Henry Dale owned the land. It is thought that Warsash House Estates Ltd. owned the land prior to 1978.

4. The claimed route

4.1 The claimed route forms a link between Passage Lane Car Park and the River Hamble Foreshore. It starts at the north-western corner of the car park and passes to the east of a toilet block. The claimed path is illustrated in Appendix 1 as route A-B. The claimed route came into existence as a physical feature in approximately 1970, as a result of disturbance to the surface of a previous path which followed a similar alignment. The path which linked Passage Lane Car Park and the River Hamble Foreshore before 1970 is referred to as route A-C. Both routes are shown on Appendix 2.

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

4.3 The section of the path owned by Fareham Borough Council is surfaced with tarmac. The sections of the path owned by Mr Gustar and Hampshire County Council are currently unsurfaced. The tarmac'ed part of the path is approximately 1.6 metres wide.

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 pass and repass along 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 (Estates, Environment and Highways), Councillor Evans (the local Member), Fareham Borough Council (in its capacity as landowner and District Council), Ramblers Association, Open Spaces Society, Cyclists Touring Club and English Nature. The following responses have been received:

6.1 Hampshire County Council (Environment) - no main objection, though the ecology officer recommends that English Nature be consulted as the claimed route passes through a Site of Special Scientific Interest (SSSI).

6.2 Hampshire County Council (Highways) - no comment

6.3 Fareham Borough Council - The Director of Planning and Transportation remarks that access to the shore from the car park is already adequately provided for, and comments that public footpaths normally link public highways, so providing a link to a public car park would be unusual. An Estates Surveyor from the Department of Finances and Resources states that Fareham Borough Council has no objection to this path being recorded on the Definitive Map.

6.4 English Nature - no objection

7 Background

The pink land has been the subject of a previous claim for a public right of way. It is necessary to briefly discuss the previous claim in order to put the current application in context.

7.1 Route C-D (shown on Appendix 2) was claimed as a public right of way in 1977, but no action was taken prior to the implementation of the Wildlife and Countryside Act 1981. In 1986 Mr Gustar bought the land adjacent to River Cottage (including the soil of the claimed path), and in October 1986 the Warsash Residents' Association resurrected the claim for it. This claim was accepted by the Rights of Way Sub-Committee in January 1987.

7.2 In February 1987 Mr Gustar applied to Fareham Borough Council to extinguish route C-D, on the grounds that it was not needed for public use. Mr Gustar argued that the public actually used a parallel route through the Passage Lane Car Park and over a path at the western end of his property (including part of route A-B). This application was rejected by Fareham Borough Council's Recreation and Amenities Committee in July 1987, on the basis that the alternative route, through the car park, was not recorded on the definitive map as a right of way.

7.3 In May 1989 Mr Gustar made a formal application to the County Council to extinguish route C-D and dedicate a parallel route (shown as a blue line on Appendix 2). This application was accepted by the Rights of Way Sub-Committee in July 1989, but was overruled by the Planning and Policy Committee. In September 1989 the Rights of Way Sub-Committee rescinded its July decision.

7.4 In April 1990 an Order was made to record route C-D as a footpath on the definitive map. This Order was considered at a Public Inquiry, and confirmed in 1995.

7.5 Mr Gustar then made two concurrent applications; to extinguish route C-D (once again on the basis that the path was not needed for public use in view of the route over the car park), and (should the first application prove unsuccessful) to divert route C-D onto the blue line. The first application was refused, again due to the fact that the route through the car park was not recorded as a public right of way, but the second application was successful. Following a Public Inquiry, the diversion was confirmed in March 1998. The new route was recorded on the definitive map as Footpath 516, Fareham.

8 Historic and documentary evidence

8.1 Ordnance Survey County Series Maps

8.1.1 A path running along the foreshore in the approximate location of Fareham Footpath 3a is partially illustrated on the first edition of County Series Map (published in 1870) and shown in its entirety on each subsequent edition (1895, 1909 and 1933).

8.1.2 The route of this path varies slightly on each edition of the map, but in each case the illustrated path appears to lie slightly to the east of the definitive line of Footpath 3a, and slightly to the west of the claimed route (A-B). On the third and fourth editions of the map, this path is annotated F.P. (given as Foot Path in the legend).

8.1.3 It is quite possible that that the claimed path and the Shore Path were once part of the same route, which, over time has meandered and drifted, and, from this wide, undefined shore path, two routes eventually emerged; Footpath 3a, and the claimed route.

8.2 Estate Maps

8.2.1 Plans of the Warsash House Estate, which date to 1935, show proposals for the development of the green land. These plans show the route of Footpath 3a and route C-D (Appendix 2), but do not show the claimed route. The proposed development makes no provision for a path in this location.

8.2.2 On 13^th July 1938, the Warsash House Estate was offered for auction. The auction plan is very similar to the 1935 development proposal, the main difference being that the blue land is annotated as `Proposed Open Space', and the green land is given as Lot 36. Once again, the development plans do not show, or accommodate, the claimed route.

8.3 Ordnance Survey National Grid Maps

8.3.1 The first edition of the National Grid 1:2500 map, surveyed in 1963 and published in 1964, shows the area prior to the construction of the Passage Lane Car Park. The claimed route is not illustrated.

8.3.2 The second edition of the National Grid map, dating to 1973, shows the area after the construction of the Passage Lane Car Park. The claimed route is not shown and the green land is entirely surrounded by a solid boundary line.

8.4 Aerial Photographs

8.4.1 The first available aerial photograph of the area was taken by a Luftwaffe aeroplane in December 1940. Due to the small scale of this photograph (1:100000), detail is difficult to distinguish. There is a feature on the photograph which may or may not be route A-C, but little more can be said due to the scale of the image.

8.4.2 An aerial photograph, published in 1949 by the Ordnance Survey shows a number of structures on the green land. These structures are thought to be the remains of the accommodation blocks for HMS Tormentor, which occupied the green land during World War Two. A narrow path in the approximate position of route A-C is just visible on this photograph.

8.4.3 A photocopy of an aerial photograph dated to 1963 shows an oblique view of route A-C. Officers have been unable see the original copy of this photograph. The photograph shows the area after the removal of the Tormentor Huts but prior to the construction of the Passage Lane Car Park. The photograph shows the shore path as a wide unenclosed strip. The southern end of the claimed route is clearly visible as a worn path within a wide area of open space; nothing on this photograph would suggest that access to this path or the surrounding land was restricted in any way. The northern part of the claimed route is not visible on this photograph.

8.4.4 The next aerial photograph of the area was published by the Ordnance Survey in 1971. Although this is a small scale photograph, on which detail is unclear, the newly constructed car park is clear and, for the first time, route A-B is visible in its entirety.

8.4.5 A photocopy (officers have been unable to view the original) of a photograph from a sale brochure of the Quay House development, dated June, 1973, clearly shows the Passage Lane Car Park. A well worn path leading from the car park to the shore, in the same location as route A-B, is clearly visible. Once again, there is no visible evidence of any barrier which would restrict access to the claimed route.

8.4.6 An aerial photograph taken on behalf of the Ordnance Survey on the 6th July 1979 clearly shows route A-B as a wide open track leading from the park to the shore. Nothing on this photograph suggests that access was restricted in any way.

8.4.7 A further aerial photograph, published by the Ordnance Survey in 1984 is once again of such a scale as to make the interpretation of detail fairly difficult. However, route A-B is visible.

8.5 Other Photographs

8.5.1 A photograph, taken in the 1960s, shows a very close up view of route A-C. This photograph is taken from the green land looking north. A concrete block is present of to the east of the claimed route, and to the west a concrete plinth (possibly a slipway) is just visible. A section of the claimed route is clearly visible as a wide well worn path, leading to, and just beyond, the slipway. The area at the northern end of the route is covered with vegetation; no path is visible.

8.5.2 A number of photographs taken between 1970 and 1999 show views of the Passage Lane Car Park, with a chain link fence along its northern boundary. There is a gap in this fence where it is crossed by the claimed route, and a concrete bollard in the centre of this gap, presumably placed to facilitate pedestrian access (but to bar vehicular access) to the claimed route. Fareham Borough Council have confirmed that they erected the fence, though they cannot provided evidence as to when. The earliest photograph to show the gap in this fence was taken in 1970, and it is likely that the fence was erected in 1967/8 in conjunction with the construction of the Passage Lane Car Park. In light of the other evidence, it is presumed that a gap was left in the fence at the point where it crossed the claimed route because the claimed route was regarded to be an established path.

8.6 Other Relevant Evidence

8.6.1 Statements submitted to a previous Public Inquiry indicate that during the Second World War the Warsash House Estate land (including the green land) was taken over and used by the War Department as a naval establishment: HMS Tormentor. Witnesses to the inquiry agreed that during this period the boundaries of the green land were fenced, and access to it was closed. The buildings associated with HMS Tormentor remained on this land for a short time after the war.

8.6.2 On the 9^th April 1956 and the 14^th April 1957, Fareham Urban District Council purchased two narrow strips of land on the western boundary of the green land. (The land currently occupied by Footpath 3a).

8.6.3 In 1960 a dispute arose as to whether or not the Tormentor Yacht Station had encroached onto the line of Footpath 3a. As part of this dispute a detailed plan of the area was drawn. This plan, dated 20^th July 1960, shows the narrow strip of land which was then owned by Fareham Urban District Council. The course of Footpath 3a is shown, running on its present alignment, annotated as "Public Right of Way". A second route is also shown. This route leaves Footpath 3a somewhat to the south of the claimed route, passes to the east of a slipway and rejoins the shore path, utilising the western end of route C-D, on the same alignment as route A-C. It is possible that people began using this path because they wished to avoid walking across the slipway on Footpath 3a.

8.6.4 In 1963 Warsash House Estates Ltd applied for planning permission to erect nine dwellings on the green land. In a letter dated 9^th December 1963, Hampshire County Council refused permission for this development, citing the following reasons:

"This land is allocated in the reviewed Fareham Town Map as public open space and the Local Planning Authority have requested the Minister to modify the allocation so as to include a car park, and it is considered that the land should be reserved for these uses."

The development plans which accompany the planning application do not show the claimed route.

8.6.5 On the 18^th November 1964, Fareham Urban District Council (UDC) acquired the freehold to the remainder of the green land, and applied for planning permission for a car park and open space. Hampshire County Council granted planning permission on the 13^th November 1967. Minutes of the Roads and Works Committee of Fareham UDC show that the construction of the car park and public open space was largely completed by 25^th January 1968. The development plan which accompanies the request for planning permission shows the southern part of the claimed route, where it passes over Fareham Borough Council's land, in its current location.

8.6.6 A number of user evidence statements submitted to the previous Public Inquiry indicate that in approximately 1970 a storm water outfall drain was constructed along route C-D. As a result of this work, the surface of route C-D, and part of route A-C, was broken. It would appear that after 1970, people ceased to use route A-C, and established a new, direct path between the Car Park and the shore, the line of which being A-B.

8.6.7 In 1975 Fareham Borough Council applied for planning permission to construct public conveniences in the car park. Permission was granted on the 23^rd April 1975. The site plan which accompanies the application indicates that the path from the car park, past the proposed conveniences, to the northern boundary of the green land, was to be surfaced as part of the proposed development.

9 Summary of the documentary evidence

9.1 A path linking the Passage Lane Car Park to the Shore Path is clearly visible, as a physical feature, on aerial photographs dating from 1949 to 1984. The alignment of this path changed in approximately 1970 as a result of disturbance to the surface of the path.

9.2 The first map to show a route between the Passage Lane Car Park and the Shore Path is the Fareham Urban District Council plan of 1960. This plan shows route A-C as part of a longer path. This map shows that Footpath 3a crossed a public slipway; it is possible that the claimed path came into being as a means of avoiding this obstruction. No maps illustrating route A-B in its entirety have been discovered.

9.3 There is no documentary or historic evidence to suggest that pedestrian access over route A-B or route A-C was physically restricted at any time between 1945 and 1999.

9.4 None of the documentary evidence provides an indication of the status of the claimed route.

10. Modern user evidence

10.1 A total of 29 witnesses have given evidence of their use of the path. The majority of these people claim to have used the path at least weekly. A summary of this evidence is provided in Appendix 3.

10.2 The earliest use of a path linking the green land and the blue land was in 1936. There is evidence of use of a path linking the two pieces of land in every year between 1936 and 1999. Two witnesses have not provided dates for their use of the path.

10.3 12 witnesses claim to have walked the route prior to the construction of the Passage Lane Car Park in 1967/8. The majority of witnesses began using the route after the car park was constructed.

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

10.5 Seven witnesses have been interviewed. Their statements are summarised below.

10.5.1 Mr and Mrs Cory

Mr and Mrs Cory became residents of Warsash in 1958. They began using the claimed route in the 1960s when route C-D became overgrown with vegetation. They both walked the path at least once or twice a week, although Mrs Cory used the path more frequently than her husband. They continued to use the path until it was blocked in 1999. Mr Cory did not use the path in 1963, as he worked abroad in that particular year. Both recall that the claimed route existed prior to the construction of the public conveniences, and both remember that part of the claimed route was surfaced in the 1960s when the car park was constructed. Mr and Mrs Cory recall that the path was well used by locals and visitors alike. Neither remember signs on the route stating that it was not a public path, and neither can recall ever being told not to use the route by a landowner.

10.5.2 Mrs Kroon

Mrs Kroon has lived in Warsash since 1927. She recalls that prior to the Second World War the green land was owned by the Warsash House Estate, and during the War it was occupied by Nissen Huts, which formed part of HMS Tormentor. Mrs Kroon recalls that after the War the huts were removed and the area was used as open space; she remembers walking through the open space to the shore along a path which was in the same position as the claimed route. Mrs Kroon believes that part of the claimed route was surfaced and laid out when the Passage Lane Car Park was constructed in the 1960s. Although Mrs Kroon used the claimed route for many years, she began using the claimed route more frequently in the 1960s when she became a dog walker. From the 1960s to the 1990s Mrs Kroon used the path very frequently - almost daily. Mrs Kroon frequently saw others using the path, and does not recall ever seeing anything which would suggest that the path was not public. Mrs Kroon states that the public were first prevented from using the route in 1999 when Mr Gustar erected a fence across the route.

10.5.3 Mrs Leach

Mrs Leach and her late husband moved to Warsash in 1969. Her husband was Harbour Master between 1969 and 1981. She remembers that the path from the car park to the shore (the claimed route) was well established by 1969. From 1970 onwards, Mrs Leach and her husband used the path very frequently, perhaps two or three times a week, and often saw others using the route. Mrs Leach states that the Harbour Master's Office was moved to the eastern shore of the River Hamble in 1978. Before 1978 the office was located on the western shore of the Hamble, and Mrs Leach used the claimed route as a means of accessing the Hamble Ferry when she wished to visit her husband at his place of work. Mrs Leach did not use the claimed route very frequently after 1996. She was unhappy to find that the route had been blocked by a fence, and is concerned that the route through Mr Gustar's property, adjacent to that claimed, was essential as access for both emergency vehicles and vehicles engaged in repair and maintenance of the Shore Path. Mrs Leach also states that the route past the toilet block (that which people have been forced to use since the claimed route was closed) is dark, enclosed and somewhat dangerous to use.

10.5.4 Dr Obin

Dr Obin and her late husband moved to Warsash in 1973. Dr Obin recalls that when they first moved to the area she did not use the claimed path particularly regularly as the shore path (Footpath 3a, Fareham) was breached. In 1980 Dr Obin and her husband began to use the claimed route much more frequently as part of a daily walk. Dr Obin frequently saw others using the claimed route, many of whom left their cars in the Passage Lane Car Park and walked to the Hamble Ferry pontoon. Dr Obin recalls that the path was situated in an area of open space, and does not recall any indication that it was not a public route. Dr Obin recalls that a fence was erected over the route in 1999.

10.5.5 Mr and Mrs Gorham

Mr and Mrs Gorham moved to Warsash in 1970 and began using the claimed path, in preference to Footpath 3a, which they considered to be less pleasant. They both used the path approximately two or three times a week; this level of use continued until the path was blocked in 1999. Neither Mr or Mrs Gorham ever doubted that the path was public. They recall a single bar gate to the north of the claimed route which was positioned to stop vehicles from using the shore path, but do not remember any indications that the claimed route was not a public right of way. Both are quite sure that they do not remember any signs on the route. Both Mr and Mrs Gorham state that the claimed path was always very well used; it was the most direct and logical route from the car park to the shore path.

11. Summary of the modern user evidence

11.1 None of those witnesses who have provided signed statements or completed evidence forms in support of the claim can recall any signs or notices on the route indicating that it was not a public right of way. Each witness interviewed states that they were first prevented from using the path in 1999 when Mr Gustar erected a fence.

11.2 Every witness states that the path was very well used by both locals and visitors to Warsash, and are sure that the claimed path was the primary route taken by those who wished to access the blue land from the Car Park. A number of witnesses also point out that many people who used the route were not residents of Warsash. Thus, they feel that the number of evidence forms provided in support of the claim does not accurately represent the number of people using the route.

12. Landowner evidence

12.1 In a letter dated 16^th December 2004, Fareham Borough Council state:

"I can confirm that there has been a path to the east of the toilet block leading north to the Shore Path since the toilets were built in 1975/6. I can confirm also that Fareham Borough Council would have no objection to this path being recorded on the definitive map as a public footpath."

12.2 Hampshire County Council Estates Practice have not commented on the claim.

12.3 Mr Gustar has provided a comprehensive statement which is summarised below:

12.3.1 Mr Gustar

Mr Gustar acquired River Cottage and the adjacent land in 1986. He soon became aware that members of the public were occasionally crossing his land to gain access to the shore path. In 1986 a claim was made to record C-D as a footpath, Mr Gustar believes that this claim was made in an attempt to stop him erecting a garage on the eastern end of the pink land. Mr Gustar offered to dedicate a 6' path in a similar location to Footpath 516. This offer was initially accepted by the Rights of Way Panel. Following this, Mr Gustar became aware of Fareham Borough Council's Car Park plans, which provided for a path through the green land and over part of route A-B. Mr Gustar then applied to extinguish route C-D in view of the alternative route through the Car Park. This application was initially accepted, by then this decision was overruled by another panel of the County Council. Following two Public Inquiries, a right of way was found to exist over the pink land, and Mr Gustar successfully diverted this route. At this time Mr Gustar was also negotiating with Hampshire County Council regarding access to his land. He states that the County Council promised to close off the gap in Fareham Borough Council's fence, which gave access to route A-B, when they had completed the renovation works on the sea wall, but this was never in fact done. Mr Gustar discovered that Hampshire County Council had made a commitment to a previous landowner, Mr Dale, to close the gaps in the fence, specifically to prevent the public from acquiring rights over the land. He feels aggrieved that this commitment was not carried out, and believes that the failure of the County Council to act has prompted the present claim. In 1987 Mr Gustar erected a sign on the claimed route stating that it was a private access. He recalls that this sign was frequently vandalised, but he replaced it when necessary. Mr Gustar states that he cannot believe none of the users can remember the sign, as it was discussed at a meeting of the Warsash Residents Association shortly after it was erected. He states that Mrs Kroon questioned the legality of the sign in council chambers. Mr Gustar recalls that route A-C was extinguished as part of the diversion of route C-D. With regards to Fareham Borough Council, Mr Gustar states that on 31^st August 1991 Fareham Borough Council erected a sign on their land, near to Thornton Avenue, stating that there were no rights of way over the open space. Mr Gustar also states that he understands that it is normal for one highway to link to another highway, and in this case, the claimed path does not.

12.3.2 Further to his statement, Mr Gustar has provided copies of correspondence between Mr Henry Dale (owner of the pink land between 1978 and 1981), Mr Dale's legal representatives (Heald and Nickinson) and Hampshire County Council. This correspondence concerns Hampshire County Council's use of Mr Dale's land as a means of access to the east bank of the River Hamble.

12.3.3 In a letter dated 11^th May 1981, from Mr Dale to Heald and Nickinson, Mr Dale indicated that he was prepared to allow Hampshire County Council access through his land, provided that, when the maintenance work the Council were undertaking was finished, they would...

"...close all gaps and make good their fence and refrain from allowing the passage of lorries and pedestrians from crossing the land by proper fencing. In this connection the public still use the old access to the footpath, which is still open, instead of using the new access the Council have made south of the lavatories. Also they have opened up again the fence to allow vehicles access to the foreshore."

It is clear that the `old access' referred to is route A-B. The new access south of the lavatories is shown as A-E on Appendix 2.

12.3.4 On the 6^th November 1981, Hampshire County Council wrote to Heald and Nickinson thanking Mr Dale for agreeing to allow Hampshire County Council the temporary use of his land. In this letter, Hampshire County Council agreed that, on completion of the works, it would reinstate the fence between Fareham Borough Council's land and Mr Dale's property.

12.3.5 On the 19^th February, 1987, Mr Gustar wrote to the Director of Public Service of Fareham Borough Council, Mr Nye, in connection with the claimed right of way from Crofton Way to the Shore Path (shown as route C-D on the attached map). At the end of this letter, Mr Gustar mentioned the route from the car park to the shore, through his property (route A-B). With reference to the gap in the fence, Mr Gustar stated:

"We ourselves or the previous owner have no knowledge or correspondence relating to this and we would be obliged if you could provide any correspondence that you may have regarding the seeking of permission of the previous owner and any agreement reached. We would also ask that a notice be posted stating that the access is not a public right of way and is only used with the discretion of the owner."

12.3.6 This letter was forwarded to Hampshire County Council. Officers have not discovered a reply.

12.3.7 Officers have, on file, a telephone message to Mr Bill Bide (former Principal Rights of Way Officer) from Mr Barry Davey of Fareham Borough Council. The message, taken by Mrs Gill Maskill (former Map Review Officer), is dated 5^th November [1987]. In the message, Mr Davey reports that a sign has been erected on the claimed route.

12.3.8 Mrs Maskill was asked to go out and inspect the sign, and on the 10^th of November 1987, she sent a memo to Mr Ted Mason (former County Solicitor), stating that:

"The notice says "Private Footpath. This access to the foreshore (Footpath 3) is not a public footpath. Persons so using this access do so entirely at their own risk and no responsibility of any kind is accepted by the owners. The established footpath (Footpath 3) is situated on the other side of the public conveniences approximately 10 yards west of this point". (A map is attached to the notice)."

Mrs Maskill's memo is accompanied by a plan which gives the location of the notice. The plan clearly shows that the notice was situated on the claimed route, adjacent to the public conveniences in the same position as indicated by Mr Gustar.

12.3.9 No further correspondence relating to this sign has been discovered.

12.4 At the Public Inquiry into route C-D in 1995, it was an accepted fact that Warsash House Estates Ltd, owner of the pink land until 1978, entered into voluntary liquidation in 1966, and were wound up in 1979. Companies House have confirmed that Warsash House Estates Ltd was formally dissolved on 31^st December 1979. Officers have been unable to confirm the date when the company entered into liquidation, but have no reason to doubt the accepted date of 1966.

13. Summary of the landowner evidence

13.1 Neither Hampshire County Council nor Fareham Borough Council have ever taken any action to prevent the public acquiring a right of way on foot over the claimed route.

13.2 The letter from Mr Dale to his solicitors, dated 11^th May 1981, is the first evidence that a landowner of the claimed route did not intend to dedicate it as a public footpath.

13.3 Since he acquired the pink land Mr Gustar has taken various steps to prevent the public acquiring a right of way over the claimed route. He first signalled his lack of intent to dedicate the route as a public highway in February 1987 when he wrote to Fareham Borough Council requesting they erect a sign stating that the route was private. He then erected a sign on the route in November 1987 which stated that the path was private. Mr Gustar claims to have maintained this sign on the route until 1999 when he put up a chain link fence to prevent people from crossing his land.

14. Discussion

14.1 Mr Gustar and Fareham Borough Council have both suggested that a right of way must run from one public highway to another. In this case the claimed way runs from a public highway to a public car park and open space. It is argued that as the car park and open space are not legally classified as highway land, the claimed route is not capable of being a right of way.

14.2 Officers in the rights of way section do not concur with this view. Instead, it is the opinion of officers that a public path needs only to reach a point that the public may legitimately wish to reach. In this case it is felt that the public clearly have a legitimate wish to reach a public car park, public open space and public lavatories.

14.3 Section 31 Highways Act 1980

14.3.1 For the purposes of Section 31 Highways Act 1980, it is necessary to identify a twenty year period of use, prior to the public right to use the route being brought into question. For the purposes of this Act, in order that it be classed as a bringing into question, any action taken must be sufficient to make clear to the public that their right to use the way is being challenged.

14.3.2 Officers consider that the use of the route by the public was first brought into question in November 1987 when Mr Gustar erected a "Private Footpath" notice on the route. Although none of those users who have submitted evidence in support of the claim recall this sign, in view of the fact that the sign was reported to the rights of way office shortly after it was erected, officers consider that the notice was positioned in such a way as to be visible to those using the path, and the bringing into question was thereby made known to the users.

14.3.3 The relevant period, necessary to satisfy Section 31 of the Highways Act, is therefore from November 1967 to November 1987.

14.3.4 Section 31 states that the dedication of a public right of way may be presumed after 20 years use by the public, as of right, unless there is sufficient evidence that there was no intention during that period to dedicate it.

14.3.5 The letter from Mr Henry Dale to his solicitors, dated 11^th May 1981, and the letter from Mr Gustar to Fareham Borough Council, dated 19^th February 1987, may both be construed as evidence that, during the relevant twenty year period, two of the landowners of the claimed route did not intend to dedicate the route as a public footpath. Officers consider that this evidence is sufficient to rebut a presumption of dedication under Section 31 of the Highways Act 1980 during the period 1967-1987.

14.3.6 Although the letters sent in 1981 and 1987 indicate that the landowners did not intend to dedicate a public footpath over their land, neither letter can be used as a bringing into question for the purposes of the Highways Act 1980, as neither letter was brought to the attention of the public at large.

14.3.7 There is no other evidence that the public right to use the path was brought into question (within the meaning of the Highways Act 1980) prior to 1987, and therefore, there can be no presumption of dedication under Section 31 Highways Act before 1987.

14.4 Common Law

14.4.1 Any presumption of dedication at common law relies on the assumption that the landowner knew of, and acquiesced in, the public use of the path. In view of actions taken by both Mr Gustar and Mr Dale, no such presumption can be raised in any period from 1981 onwards. Therefore, it is necessary to assess whether or not there is sufficient evidence of the dedication and acceptance of a path at common law, prior to 1981.

14.4.2 Aerial photographs and maps indicate that, prior to 1970, the path which linked the green land to the blue land (A-C) followed a direct line from point A to meet route C-D, whereupon it curved sharply, following the worn surface of route C-D to meet the shore. The part of the path which followed route C-D to the shore was extinguished under Section 119(1)(b) of the Highways Act 1980 as a result of the diversion of route C-D in 1998. Therefore, a major part of route A-C has been lawfully extinguished (approximately one-third of its length), and no claim in respect of the route in existence prior to 1970 can be successful.

14.4.3 In 1970 the construction of a storm drain destroyed the surface of route C-D. Aerial photographs and maps suggest that after 1970 users of the route A-C established a new, more direct route to the shore, illustrated as route A-B on Appendix 1. This route is the subject of the current claim.

14.4.4 Between 1970 and 1978, the pink land was owned by Warsash House Estates Ltd, who are thought to have been in liquidation between 1966 and 1978.

14.4.5 It is likely that the property of Warsash House Estates Ltd remained vested in the company throughout the liquidation period, so therefore, it is likely that Warsash House Estates Ltd was technically capable of dedicating a right of way over its land. However, it may be argued that the dedication of a public right of way is not compatible with the liquidation process. A company may place itself in insolvency if it cannot pay its debts, or if the value of its assets is less than its total liabilities. The purpose of insolvency is to realise the assets of a company and pay its creditors.

14.4.6 The dedication of a public right of way, over land which would otherwise have a saleable value, is considered by Officers to be at odds with the liquidation process, the intention of which is to gain the best return possible for the company's assets.

14.4.7 Members must consider whether they believe it is more likely than not that Warsash House Estates Ltd intended to dedicate the path as a public right of way between 1970 and 1978. Given the fact the company was in liquidation throughout this period, Officers take the view that, on balance of probability, it is unlikely that Warsash House Estates Ltd intended to dedicate the path as a public right of way, and therefore recommend that a common law dedication of route A-B cannot be inferred for the period between 1970 and 1978.

14.4.8 On 25^th January 1978 the pink land was sold to Mr Henry Dale. On 11^th May 1981 Mr Dale expressed his desire for public access along the claimed path to be closed. This leaves a period of approximately three years when a common law dedication of the path may have occurred. In a very short period such as this, the level of user sufficient to imply an intention to dedicate would have to be particularly high. In this case 21 individuals claim to have used the path between 1978 and 1981. This level of user is not thought to be sufficient to infer a common law dedication of the path between 1978 and 1981. Moreover, in 1981, Mr Dale clearly expressed his desire to have the claimed path closed. This lack of intention to dedicate the path is almost contemporary with the period of user which may be used to imply an intention to dedicate, by the same landowner. It is felt that the level of user of the claimed path, combined with the evidence that the landowner of the route did not intend to dedicate the path as a public right of way at the end of this period, is not sufficient to give rise to the common law presumption that in 1978 Mr Dale intended to dedicate the route as a public right of way.

15. Comments from the Applicant and the Landowners

A draft of this report was given to the landowners and the applicant to afford them the opportunity of submitting further evidence or making further comment. The following responses have been received:

15.1 Hampshire County Council (landowner):

No comment

15.2 Fareham Borough Council (landowner):

No comment

15.3 Mr Gustar (landowner):

Mr Gustar contests Mrs Leach's assertion that the alternative route is "dark and enclosed and dangerous to use". Mr Gustar states that this statement misrepresents the facts of the situation, as there has been a streetlight at the junction of Footpath 3a and Footpath 516 for many years. Mr Gustar has no further comments to make.

16. Conclusions

16.1 The claimed route came into existence in 1970, when the alignment of a previous path, in approximately the same location as the claimed route, was altered. The evidence provided in support of the claim is insufficient with which to infer a common law dedication of the route between 1970 and 1999, and does not meet the requirements of Section 31 Highways Act 1980.

RECOMMENDATION

That the application be refused.

Section 100D - Local Government Act 1972 - background papers

The following documents disclose facts or matters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of this report.

NB The list excludes (1) published works and (2) documents which disclose exempt or confidential information as defined in the Act.

File CR669 - Rights of Way Office, Mottisfont Court, Winchester