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 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.....

Contact: Sylvia Seeliger, Ext. 6349 [email protected]

1. Summary

It is believed that an order to divert Wickham Footpath 2 was overlooked when the Definitive Map was prepared in 1964. This report details the evidence which leads to the recommendation that an Order be made to amend line of Footpath 2 on the Definitive Map.

2. Introduction

The Definitive Map of 1964 shows Wickham Footpath 2 on its original line, running through a field. Leaving it on this line has the effect that the footpath runs through seventeen houses and gardens. An 1950 order exists that extinguishes this section of the path, and provides a diversion. Work done on producing a consolidated map for a Legal Event Order for Winchester on a digitised GIS map base at 1:10,000 has highlighted this anomaly.

3. The Route on the Ground

The diverted Footpath 2 in Wickham has a surface of tarmacadam, and is a typical urban footpath of about one metre wide. It turns south east from the corner of the housing estate, then south west, running between a hedge and a fence for 48 metres. It then runs as a footway alongside the public highway, for a distance of 40 metres, before turning further towards the south east. Here it runs alongside the front hedges of properties, at a metre width, with a mowed grass area alongside. This section is 65 metres long. The path continues as a footway along Elizabeth Road for 92 metres, until branching off towards Buddens Road, in an easterly direction. Here the path is 47 metres long, a metre and a half wide and with a concrete surface. It again runs alongside the garden fences of properties, with mown grass on the south side. The total length is 292 metres. The original section of path is 256 metres long. The place where it rejoins the original course of Footpath 2 has a lamp-post alongside it. The route is in use by the public. The undiverted route could only be used with extreme difficulty, traversing as it does seventeen gardens and actually passing through twelve houses.

4. The Landowners

In order not to cause any unnecessary distress to the occupiers of the seventeen houses affected by the undiverted route of Wickham Footpath 2, no consultations have been made with the landowners at this stage.

5. Consultation

The following persons and bodies have been consulted about the application, namely the local member, Winchester City Council, Wickham Parish Council and the Ramblers' Association. The following responses have been received: the remaining consultees are presumed to have no evidence to offer.

5.1 Area Officer Mrs. E. Giles - Mrs. Giles is very happy that this anomaly should be remedied.

6. The Evidence

6.1 The effective date for the third review of the Definitive Map is 1^st January 1964. The description of Wickham Footpath 2 in the Definitive Statement is as follows:

From No. 3, north of The Square, to Road A.333

Footpath

From junction with No. 3, north of The Square, along grass track to field gate, north westwards along metalled farm track, 8 to 10 feet wide, and through field gate on to Road A.333.

6.2 This path runs along a track that is shown on the third edition of the Ordnance Survey 1:2,500 County Series map, of 1909. On the scale of the 1964 Definitive Map, which is 1:25,000, the purple line drawn in appears to follow the course of this 1909 track. It is not on the diverted route provided for in the Rural District of Droxford (Meon Park Housing Site, Wickham) Right of Way Order, 1950.

The route extinguished is described in the order:

The public right of way over the footpath shown by a blue line between points `A' and `B' on the plan.

A copy of the plan is attached as Appendix 1.

6.3 When the consolidated map for Winchester was being prepared, it was discovered that the line on the 1964 Definitive Map, when digitised on the GIS database, taking into account the route of the path on the 1909 third edition Ordnance Survey map, goes through the houses (and gardens) that were built under the Post War Housing Scheme. This was why the Order was made in 1950 diverting that section of the path. For some reason, this Order was not taken into account during the preparation of the first Definitive Map (relevant date 1^st January 1951) and the second (relevant date 1^st May 1958). This mistake was then replicated on the 1964 edition. The Definitive Statement has also not been amended, referring as it does to a metalled farm track eight to ten feet wide.

7. The Matter for Consideration

Section 56 (1) Wildlife and Countryside Act 1981 provides that the Definitive Map shall be conclusive evidence as to the particulars contained therein. The Definitive Statement is conclusive evidence as to the position and width of the path. The map should only be amended if there is sufficient evidence to show, on the balance of probabilities, that an error was made in the production of the Definitive Map and that part of the route was omitted. The authority for this proposition is found in s.53 (3)(c)(i) Wildlife and Countryside Act 1981 and R. v Secretary of State ex parte Simms and Burrows.

8. Width of the path

The width of the path as it already exists on the ground is between one metre and one and a half metres.

9. Conclusion

The Rural District of Droxford (Meon Park Housing Site, Wickham) Right of Way Order, 1950 was confirmed on 12^th July 1950. As a confirmed order, it should have been put into effect on the first Definitive Map, and the subsequent editions resulting from reviews. The discovery of this omission during the work required for the Winchester Legal Event Order affords the opportunity to rectify this administrative error, by amending both the Definitive Map and Statement. Therefore, the line of Wickham Footpath 2 should be modified to show the diverted sections A to B, C to D and E to F, as indicated on the plan. The sections between from B to C and D to E are pavements, and thus highways by the side of a public road, which cannot be shown on the Definitive Map.

RECOMMENDATION

That an order be made under s.53 (3)(c) Wildlife and Countryside Act 1981 amending appropriately the Definitive Map and Statement.

Section 100 D - Local Government Act 1972 - background papers

The following documents disclose facts or maters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of the report. NB The list excludes: (1) Published works; (2) Documents which disclose exempt or confidential information as defined in the Act.

File: Application to amend the Definitive Map in respect of Wickham Footpath 2,

Rights of Way Office, Mottisfont Court, Winchester