Archived decisions

Hampshire County Council Item 11

Regulatory Committee

7 September 2005

Application for a Map Modification Order to record a footpath,

between Bullington Lane and Roberts Road in the Parish of Barton Stacey,

as a public right of way

Report of the Director of Recreation & Heritage

Contact: Colin Piper Ext. 6043 [email protected]

WILDLIFE AND COUNTRYSIDE ACT 1981

53. Duty to keep definitive map and statement under continuous review

(2) As regards every definitive map and statement, the surveying authority shall -

(b) .... keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence.... of any of [the events specified in sub-section (3)] by order make such modifications to the map and statement as appear to them to be requisite in consequence of that event.

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

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

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

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

Presumed Dedication at Common Law

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

1. Summary

1.1 Barton Stacey Parish Council has made an application to have a footpath recorded as a public right of way. The route has been in existence from 1958 to the present day and has been heavily used during that time by local residents to get to school, church, pub, shops etc. The path is known locally as "School Path". There has been a high level of public use, without interruption, for 47 years. There is evidence that the landowner, the Ministry of Defence, had no intention to dedicate a right of way to the public but that did not occur until 1989. The application is recommended for acceptance on the basis of a common law dedication before 1989.

2. Claimant:

    Barton Stacey Parish Council

    C/o Mrs A Wilson

4 Queens Avenue

    Andover

    Hampshire

    SP10 3HZ

3. Landowner:

    Ministry of Defence

    Defence Estates

    HQ ATE Longmoor Camp

    Liss

    Hampshire

    GU33 6EL

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

4.1 The main path runs from Bullington Lane, at a point opposite Gravel Lane, and runs northwards and then eastwards to connect with a recorded public footpath (Number 501) south-west of the primary school (A-B-C on map). The path has a tarmac surface, one metre wide, and is mostly enclosed between fences at least two metres apart. The path forms a direct link between the Roberts Road estate and the centre of Barton Stacey village and is about 620 metres long. There is also a spur path, to the south, that consists of an unenclosed tarmac strip, one metre wide, that connects with West Road (B-D on map). The spur path is 40 metres long.

5. Background to the claim

5.1 The Roberts Road estate was built in the early 1950s as married quarters for army personnel. From 1953 the estate included a clinic and meeting hall (situated at point X on map), with facilities open to the civilian population, and in 1958 the village primary school was relocated to The Green. At the same time, following representations from the parish and county councils, the War Department constructed a tarmac path that linked the new school with the village centre. Over the last two decades the Ministry of Defence has gradually sold off the majority of houses on the Roberts Road estate. The footpath has been in existence, and in constant use, to the present day.

6. The issues to be decided

6.1. The issue to be decided by this committee is whether there is evidence to show that `School Path' ought to be shown on the definitive map as a public right of way.

6.2 Any changes to the definitive map must reflect public rights that already exist. It follows that changes to the definitive map must not be made simply because such a change would be desirable, or instrumental in achieving another objective. Therefore, before an order changing the definitive map is made, Members must be satisfied that public rights have come into being at some time in the past. This might be in the distant past (proved by historic or documentary evidence) or in the recent past (proved by witness evidence).

6.3 Evidence forms and statements taken from those who have used the path or have knowledge of it in living memory can show that public rights have been acquired as a result of a recent dedication at common law. The burden of proof in these matters is `on the balance of probabilities', so it is not necessary for evidence to be conclusive before a change to the definitive map can be made. If there is genuine conflict in the evidence, for example between the evidence of users on the one hand and landowners on the other, Members should make an order so that the evidence can be tested at a public inquiry. However, this is not a step which should be taken simply to avoid making a difficult decision.

6.4 The originals of many of the documents referred to in this report are only available in public record offices, but copies, transcripts or tracings of most documents are available for inspection in the offices of the Rights of Way Section, as are witness evidence forms and statements. Members are urged to inspect these, or the originals, when considering this report.

7. Documentary evidence

7.1 1948 Public Inquiry

    On 1st June 1948 a public inquiry was held in Andover to consider a proposal from the War Department to build a married quarters housing estate on the north-east side of Barton Stacey village. There were numerous objectors to this scheme including the Parish, District and County Councils. The Inspector eventually approved the planning application.

7.2 1949 Letter from Barton Stacey PC to County Planning Officer

    The letter, dated 12 August, is headed "Development for Married Quarters Area" and reads, in part:

    "A footpath should be made from the new school leading into the village near the church. Otherwise the children will have a long way to walk along the Bullington Road and then up the new road to the new school."

7.3 1949 Letter from the County Council Clerk to the Ministry of Town & Country Planning

    The letter is dated 27 August and headed "Development for Married Families area at Barton Stacey". It reads, in part:

    "The (Planning) Committee approved the proposals for eventual development and immediate construction of the married quarters at Barton Stacey but they instructed the County Planning Officer to negotiate direct with the Ministry of Works regarding the adoption of the following suggestions:

    i) Provision should be made for a Community Centre

    ii) Footpath access from the village to the school should be provided to avoid a long walk for the children.

7.4 1955 Parish Council minutes

    On 21 March the parish council were requested to enquire when the footpath to Roberts Road would be laid.

7.5 1956 Parish Council minutes

    Letter, dated 6 January, read from the County Education Officer stating that the new school would be integrated in the Army's new housing estate. The Clerk was directed to ask the County Council to ensure that a footpath should be made from the village to the new school.

7.6 1956 Parish Council minutes

    Letter, dated 13 June, read from the County Education Officer stating that the War Department hoped to make a footpath on their land from the Community Centre to the road opposite the (old) school.

7.7 1957 Parish Council minutes

    On 15 July the Clerk was requested to write to the County Education Authorities requesting that the footpath from the village to the new school be constructed before the opening of the new school.

7.8 1957 Parish Council minutes

    Letter, dated 1 October, read from the County Education Officer stating that endeavours would be made to obtain the War Departments assurance that the footpath would be completed before the school opened next year.

7.9 1957 Parish Council minutes

    Letter, dated 22 November, read from the County Education Officer stating that he had been informed by the War Department that the proposal regarding the footpath from the village to the new school is being submitted to HQ Aldershot for approval and it was hoped to complete the work by May 1958.

7.10 1958 Parish Council minutes

    On 20 May the Clerk was directed to write to the County Education Officer calling attention to the following matters:

1. Barbed wire fence erected along footpath to the school

2. The need for a guard rail where path joins the road near the village.

7.11 1958 Parish Council minutes

    Letter, dated 20 June, read from the County Surveyor stating that the barbed wire fence erected on the path leading to the new school had been provided in order to keep cattle clear of the path and that, from the War Department's point of view, this was sufficient for their needs. Considering the footpath was provided for the benefit of the residents of the married quarters they considered that if the Parish Council felt that for the benefit of non-WD children, at present permitted to use the path, they required an additional plain wire fence and a barrier where the fence joins the road, the Parish Council should consider erecting and maintaining same at their own expense.

7.12 1958 Parish Council minutes

    Letter, dated 18 July, read from the County Education Officer stating that as the footpath was erected mainly for War Department residents, the WD would not meet any extra cost...The County Surveyor was arranging for the provision of school signs and any further matters was for the Parish Council.

    Resolved: That the County Education Officer be informed that the attitude taken was, in the opinion of the Parish Council, inexplicable as the Parish Council has been pressing the County Authorities to provide a path from the outset.

7.13 1962 Dedication of footpaths on Roberts Road estate

    The War Department entered into an agreement with Hampshire County Council to dedicate two short sections of path that connect Pheasant Close with The Green and Roberts Road. The plan shows a "Community Centre" and "Children's Playground" in the space between The Green and Roberts Road. These paths are now recorded on the definitive map as Footpath 501.

7.14 1973 Ordnance Survey 1/2500 scale map

    This large-scale map shows the path on its present day alignment.

7.15 1989 Declaration by Ministry of Defence

    On 14th November the Ministry of Defence made a declaration, under Section 31(6) of the Highways Act 1980, to the County Council in which they denied the existence of any rights of way over their land at Barton Stacey other than those routes that were already dedicated as highways. This declaration prevented the acquisition of a prescriptive right of way for a period of six years.

7.16 1994 Declaration by Ministry of Defence

    On 21st March the Ministry of Defence renewed its Section 31(6) declaration for its land in Barton Stacey village. This prevented the acquisition of a prescriptive right of way for a further period of six years, that is until 2000.

7.17 1994 Letter from Parish Council to Ministry of Defence

    Dated 25 April, the letter reads, in part:

    "Your records will show that these paths were created by the MOD when Barton Stacey Camp and the Estate were built. Being in constant use ever since, a right of way has been established. The problem which now arises is that my Council has no effective means of enforcement because the paths in question are not registered on the Definitive Map held by the County Council. The County Council suggests that, in order to save both time and endless formalities, the MOD may wish to dedicate these paths."

7.18 1995 Letter from Ministry of Defence to Barton Stacey Parish Council

    Dated 10 January, the letter reads in full:

    "Further to my letter...I regret to inform you Hampshire County Council are not willing to adopt the footpath from the Community Centre to the Village as it exits. The MOD wish to dedicate the footpath to Hampshire County Council for the benefit of the public. However, Hampshire County Council will not accept the footpath unless considerable improvement works are carried out beforehand for which MOD presently has no funding. Considering the present condition of the footpath does not deter the public from frequently using it perhaps Baron Stacey Parish Council could lobby Hampshire County Council to achieve a compromise.

7.19 1995 Letter from the Parish Council to Ministry of Defence

    Dated 23 January, the letter reads in part:

    "The Parish Council appreciates your efforts regarding dedication of the "School" footpath. I have written to them (Hampshire County Council) also today pointing out the importance of the path and its long existence."

7.20 1999 Application for Map Modification Order made by Parish Council

    Application was made to Hampshire County Council on 9 April.

7.21 1999 Letter from Defence Estates to Hampshire County Council

    Dated 7 June, the letter reads, in part:

    "I am in receipt of a notice from Barton Stacey Parish Council about their application to add the footpath, which is situated on MOD land and known locally as "School Path" to the Definitive Map. We have no objections to this proposal provided your Authority adopt it at public expense. I regret to say that I must object if the intention is to add it to the Definitive Plan but leave maintenance of the verges and overhanging vegetation to the adjoining owners. This path has been the subject of continuous dialogue and correspondence since the majority of MOD quarters have been sold. Your file will recall our attempt to get this path adopted some years ago, which was aborted due to your demand that MOD pay to up-grade the path. We are content, and have advised the Parish accordingly, to permit the path to be used by the public and have put in place a maintenance contract to trim it occasionally."

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

8.1 Mrs P Carter of Barton Stacey

    Between 1955 and 1962 Mrs Carter walked the path most days because her boyfriend (later her husband) lived in Roberts Road. Between 1962 and 1970 she walked it with her infant son to visit her in-laws. Between 1970 and 1976 Mrs Carter, or her mother, walked the path to collect her son from school. Since 1976 she probably walked it 6-8 times a year when attending a function at the school or visiting someone in Roberts Road.

8.2 Mrs S Carter of Barton Stacey (no relation to above)

    Mrs Carter has used the path about 400 times a year between 1995 and 1999.

8.3 Mrs E Choules of Barton Stacey

    Mrs Choules walked the path five times a week, on school days, between 1989 and 2003.

8.4 Mr D Dewey of Barton Stacey

8.4.1 In 1932, at the age of one, Mr Dewey moved to the hamlet of Bransbury in Barton Stacey parish and has lived in the area ever since. He has lived in the road known as King's Elms in Barton Stacey village since 1963 and in his present house since 1964. Following National Service with the RAF between 1949 and 1952 Mr Dewey was employed by the Civil Service as a Clerical Officer, serving as Assistant Chief Clerk at the Royal Engineers Depot, Barton Stacey Camp from 1953 to 1960. He had no further connection with the MOD after that date.

8.4.2 Mr Dewey recalls that the MOD estate in Barton Stacey village was built between 1949-1953. At the junction of Roberts Road and The Green there was a NAAFI (Navy, Army and Air Force Institute) hut which contained a shop and off-licence. These facilities were originally built for the residents who lived on the estate but by the early 1960s the village people used the shop because it offered value for money compared to the shop in the village. On the north side of the NAAFI hut there was a separate building that was used as a community centre and next to that there was a playground. The community centre was probably built at the same time as the estate, in the early 1950s. He knows it was there in 1956 because it was used for his friend's wedding reception. A weekly doctor's surgery was held in the community centre and this was open to the general public. There was also a playgroup that met in the building, initially for children of MOD families, but later open to all children in the village. The tarmac footpath that connected these facilities to the village was built after the estate was finished in 1953 and before the primary school was built on The Green in 1958. With the opening of the new school the old village school, opposite the church, closed down and all the children transferred to the new school.

8.4.3 Mr Dewey first used the path between the village and the estate, shortly after moving to King's Elms, to walk his children to the primary school. It was a safe route to school that mostly avoided the road. For many years Mr Dewey and his wife accompanied their four children to and from school, using it twice a day during term time. He has also used the path to get to the doctor's surgery, in the community centre, and still uses it to the present day to walk the dog, to meet his two grand-children from school and to visit his son and family who live in Roberts Road. Mr Dewey has seen the whole school using the path to get to church, the children being accompanied by teachers and other adults. In addition, two classes of children use the path in December or January each year to entertain the old folks in the village hall.

8.4.4 To Mr Dewey's knowledge the path between the village and the estate has never been obstructed, it has always been open and available for public use. He does not recall there being any signs or notices along the path to say that it was private. He believes that the Parish Council built the tubular safety barrier where the path meets the road at the village end. The footpath has been used over the years by the residents who live on the estate to get to the facilities in the village and to attend the many social and sporting activities which take place here. For example, the village used to have two pubs, The Swan and The Plough. The Plough closed in the 1970s but the Swan is still open and is well used by local people. The village shop also contained the post office and when the NAAFI shop closed in 1995 the estate residents had to come into the village for their local shopping. The village hall hosts a playgroup called the Cygnets every morning on a week-day and it is used by the Tuesday Club, for persons over 60, every month. Fortnightly dog-obedience classes are held there as well as parish council meetings and one-off events. The hall is also used as a polling station on election days. There has always been a football club in the village which currently has three teams, one adult and two juniors. The village has always had its own playground which over the years has been improved and that too is popular with local children. The village has a very active drama group which meets on Thursday nights in the church. There are 36 children in this group plus many adults. Their public performances are also held in the church and are well attended by local people. All of these activities generate movement of people which, for many, involves use of the footpath.

8.5 Mrs W Dewey of Barton Stacey

    Mrs Dewey used the path on a bicycle from 1973 to 1999 between 300 and 350 times a year. She also walked the route the same number of times between 1989 and 1999.

8.6 Mr A Eastman of Barton Stacey

    Mr Eastman has used the path between 1961 and 2005 but has not specified how often.

8.7 Mr & Mrs G Feather of Barton Stacey

    Mr & Mrs Feather have used the path from 1994 to 1999 on a daily basis in summer and a weekly basis in winter.

8.8 Mrs C Gibson of Barton Stacey

    Mrs Gibson used the path about 1,000 times a year between 1984 and 1994 to take children to school and visit friends in Roberts Road.

8.9 Mr T Gleeson of Barton Stacey

    Mr Gleeson used the path daily from 1990 to 2005 to go to the village shop and other social facilities. He says that "The path is used frequently by pedestrians, local people, as the link between "upper" and "lower" Barton Stacey. There being no footpath between Roberts Road and Kings Elms, the School Path is considered to be the safer route because of the speed of vehicles using Bullington Lane as a rat-run."

8.10 Mr D Green of Barton Stacey

    Mr Green has used the path from 1963 to 1999 to exercise animals, go shopping and for recreational walks. His use was at least 20 times a year rising to 300 for a six year period from 1984 to 1990.

8.11 Mrs G High of Barton Stacey

    Mrs High used the path daily from 1994 to 1999.

8.12 Mrs J Lovell of Barton Stacey

    Mrs Lovell used the path daily between 1992 and 1999.

8.13 Mr G Mayne of Barton Stacey

    Mr Mayne used the path twice a day from 1995 to 1999.

8.14 Mrs J McCabe of Winchester

8.14.1 Mrs McCabe moved to Barton Stacey village in 1964 to live in a bungalow called Avoca opposite Wades Farm. She first used the claimed path, in 1966, to take her newly born daughter to the clinic which was held in a hut at the junction of Roberts Road and The Green. The clinic was part of the doctors surgery which was open to all residents not just army personnel. The same building also housed a playgroup and a picture house which, again, was open to all residents. The surgery remained at that site until the 1980s.

8.14.2 In 1971 Mrs McCabe started work at Barton Stacey Primary School as a classroom assistant and continued in that position until 1985. From 1971 until 1978 she used the path twice a day, most school days, to get from her house to work and back. When she started at the school there were about 120 children on the register and as part of her work she would accompany the children when they went on visits to the village. The whole school, accompanied by up to 20 adults, would use the path about six times a year to get to the village church for services such as Harvest Festival. The children also used the path for nature walks and concerts in the village and to walk to Cocum Farm for the lambing season. Sometimes it would be the whole school and sometimes just the juniors. In the Silver Jubilee year of 1977 there were numerous trips to the village for pageants and other celebrations.

8.14.3 The path was also constantly used by the people who lived on the estate going to and from the village to visit the pubs, village shop and post office. The Plough closed in the early 1970s but The Swan is still open as is the village shop and post office. Starting in the early 1980s, or perhaps the late 1970s, Mrs McCabe was aware that the Army were moving people away from the Roberts Road estate. For a while some of the MOD houses were vacant and at one stage the school roll dropped to 34 children. The NAAFI and the surgery hut also closed at this time. The school numbers picked up again though when the houses were sold off to civilian families.

8.14.4 Mrs McCabe moved away from Barton Stacey in 1978 but continued working at the village school. From 1985 she was employed as the school secretary and continued to use the path to accompany the children to the village. She remained at the school, in that position, until she retired in 2003. In all the time that she lived and worked in Barton Stacey, the path between the village and The Green was always open and used. The path has never been blocked and neither were there any signs or notices to say that it was private. Mrs McCabe has never been employed by the Ministry of Defence or had any connection with it.

8.15 Mrs A Prideaux of Barton Stacey

    Mrs Prideaux used the path daily between 1976 and 1999.

8.16 Mrs J Sambell of Barton Stacey

8.16.1 Mrs Sambell moved to her present address, in the centre of the village, in February 1978 and has lived there ever since. Her first child was born in 1982 and from that date she started to walk the claimed path to get from the village to the Doctors surgery held in the old Community Centre on Roberts Road. When her daughter was older they attended a play group in the same building. From 1987 Mrs Sambell used the path most days to take her daughter to and from the village primary school on The Green. Her younger daughter was born in 1988 so she continued to use the path to attend the surgery and school and to visit friends who lived in Roberts Road.

8.16.2 Mrs Sambell has been involved with the primary school for 18 years either as a parent, a governor or, more recently, as the school's administration officer. In all of that time she has walked the claimed path and never known it to have been blocked or otherwise unavailable for public use. She does not recall there being any signs or notices to say that she should not use it. Mrs Sambell assumed it was a public right of way. Workmen used to cut the grass verges on the first section of path between the village and the first house. Three times a year the whole school use the path to get to and from the village church for Harvest Festival, Ash Wednesday and Ascension Day. There are approximately 100 children who attend the school and they are accompanied on visits by at least 10 adults. The children also walk to the village hall each January to sing to the elderly residents. There are occasional class visits to the village for teaching purposes, for example, local studies and drawing. The Infants have a link with a school in Reading and once a year the Reading children visit Barton Stacey and about 30 of them use the path to walk to the village to do traffic surveys and sample rural life. Mrs Sambell does not have any connection with the Ministry of Defence.

8.17 Mr B Scoates of Barton Stacey

    Mr Scoates has walked the path from 1964 to the present day. He used the path daily, in the 1960s, to get the children to school but now about 12 times a year for pleasure walking.

8.18 Mrs A Smith of Barton Stacey

    Between 1974 and 1980 Mrs Smith used the path about 200 times a year and from 1981 to 1999 about 40 times a year.

9. The landowner

9.1 In a letter dated 26 July, of this year, the MoD supplied an explanation of their position as follows:

    "This surfaced footpath was originally constructed when the married quarter estate was built in the 1950s. It was built to enable the military occupants and families to leave the estate and go to the village - not to enable the village to walk to the estate. With the passage of time the MoD provided some accommodation on its estate to benefit the local community such as the clinic you refer to. The public therefore walked to it by invitation to reach the facilities it provided, not by right, nor with the silent acquiescence of the MoD. I would also suggest that the school was built in its location given the vast majority of the children came from this estate, and therefore, by coincidence, those children that did attend from the village similarly were permitted to walk this route. I would only accept the inference of unimpeded access by the `public at large' following the sale of most of the MQs during the 1990s.

    However, that said, I can confirm that I have in the past advised your Department that the Ministry of Defence had no objection to the creation of a public footpath along this route shown on your plan. Save that I was required to reject your Councils demand that, at the MoD's expense that the surface was made up to a better standard and that we cleared all the overhanging bushes from it - this statement still stands. I have also pointed out that the majority of hedges, etc. adjoining this path are owned by the individual house owners - not the MoD. Consequently, no contrary evidence will be offered to obstruct your proposition and await a copy of your draft report..."

10. Consultations with other bodies

10.1 Barton Stacey Parish Council

    The parish are the claimants in this case.

10.2 Test Valley Borough Council

    No comment

10.3 Councillor M Woodhall - local member

    No comment

10.4 The Ramblers Association

    "As there are not many footpaths in this area the Ramblers Association would support the application although we do not have any evidence regarding the use of the path."

10.5 Environment Department

    No comment

10.6 Hampshire Highways

    No comment

11. Analysis of the evidence

11.1 There is clear and incontrovertible evidence that the main path has been in existence from 1958 to the present day and that it has been extensively used by the public to go about their everyday business. The chart attached to this report represents only a small part of the user evidence because it is apparent, from statements made by the witnesses, that a majority of the use has been associated with children and their carers going to and from the primary school. Up until the 1980s a significant proportion of the users would have been army personnel and their families using the path to get to Barton Stacey. Nonetheless, there is sufficient evidence of use by civilians, throughout the paths existence, to conclude that it has been used by the public at large.

11.2 The spur path has not been used by the public to the same extent as the main path. It does provide a useful link for those people who live at the western end of West Road and in Partridge Close but the residents there would all have had connections with the army before the 1980s. There are several properties on this part of the estate there are still owned by the government so it is difficult to see how the path has served a public purpose.

11.3 Section 31 of the Highways Act, which sets the criteria for the acquisition of a public right of way through 20-years use, does not apply to Crown land, including land managed by the Ministry of Defence. However, it is still possible for the public to acquire a right of way through a common law dedication. For that to be successful it needs to be demonstrated that use of the path by the public was such that the landowner must have known about and acquiesced in that activity and therefore the inference is that it was intended to dedicate the path as a right of way.

11.4 The letter from the County Surveyor to the Parish Council, dated 20 June 1958, (paragraph 6.11) related the view of the War Department that the public were only using the path with their permission. This could be interpreted as evidence of an intention not to dedicate and yet this view was only conveyed through a third party and never made known to the people who were actually using the path. On the ground a metalled path had been provided, as the Parish and County Councils had requested, to connect the village with the new school. The users of the new path must have taken the view that they were being encouraged to use the path and could not reasonably have been expected to know that they were using the path with the permission of the landowner. The path was maintained and at some stage fenced, on both sides, to separate it from adjoining land.

11.5 It was only in 1989 that the landowner, by then renamed the Ministry of Defence, took action to protect its interests by making a declaration under section 31(6) of the Highways Act 1980 (paragraph 6.15). This prevents the public from acquiring a right of way for a period of six years from when the declaration was made but it does not act retrospectively. By 1989 the public had been using the path for 31 years and there is no evidence of any interruption to that use. The public were using the path without force, secrecy or permission and in sufficient numbers for it to have been obvious to the landowner.

11.6 In 1995, and just within the six year period covered by the declaration, the Ministry offered to dedicate the path as a right of way without condition. Attempts had already been made to have the path adopted as a publicly maintainable highway but this had foundered because the path did not meet the specification of the County Surveyor. Discussions regarding the dedication of the route did not progress because of disagreement over maintenance responsibility.

11.7 The declaration referred to in paragraph 6.15 was renewed in 1994 thereby extending the period within which the public could not have acquired a right of way to the year 2000. This declaration was not subsequently renewed therefore it is arguable that the public has acquired a right of way, through a common law dedication, in the last 5 years. For a common law dedication to occur there is no set period of required use, it very much depends on the circumstances of each case. If a path is heavily and obviously used, a short period of time might well suffice. This point is conceded by the Ministry of Defence in its letter of 26 July.

12. Conclusions

12.1 Section 31 of the Highways Act 1980 does not apply because the land crossed by the path is in the ownership of the Crown.

12.2 There has been extensive public use of School Path for a period of 47 years. This use is sufficient to meet the user test of a common law dedication.

12.3 There is insufficient evidence of public use of the spur path to West Road to satisfy the user test of a common law dedication.

12.4 There is evidence that the landowner had no intention to dedicate a public right of way in the period from 1989 to 2000.

12.5 The public has acquired a right of way, under common law, in the period before 1989.

12.6 It is arguable that the public has acquired a right of way, under common law, in the period after 2000.

RECOMMENDATION

1) That an Order be made to record the route A-B-C, as shown on the attached map, as a public footpath.

2) That the application for the route B-D, as shown on the attached map, 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 CR658 - Rights of Way Office, Mottisfont Court, Winchester