21

Hampshire County Council Item 8

Regulatory Committee

7 September 2005

Application for a Map Modification Order to record a footpath from Footpath 127 to Footpath 32 in 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

(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 Hook Lane to the slipway at Solent Breezes, Fareham.

The use of the claimed path was first brought into question, within the meaning of Section 31 Highways Act 1980, on 13^th January 2005. Although there is evidence of the use of this route on foot in every year between 1940 and 2005, each of these users has a private right of way over the route in its entirety. Furthermore, in 1999, Hampshire County Council (landowners of part of the route) lodged a declaration made under section 31(6) Highways Act 1980, stating that it did not intend to dedicate its land as a public right of way.

The application does not fulfil the requirements of Section 31 Highways Act, and there is insufficient evidence with which to infer a deemed dedication at common law. It is therefore recommended that the claim be refused.

2. The Applicant and the Application

2.1 The Applicants are Mr and Mrs D W Igglesden.

2.2 Twelve user forms and two photographs of the route have been submitted with this application.

3. The claimed route

3.1 The claimed route is illustrated in Appendix 1 as route A-B-C-D.

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

4. The Landowners

4.1 Cinque Ports Leisure Ltd own the claimed route between point A and point B. They acquired the freehold to the land on 3^rd September 2001. Prior to this, the land changed hands a number of times: previous owners include Bourne Leisure, Haven and Leisure Holidays Ltd.

4.2 Hampshire County Council own the freehold of route B-C, and part of the freehold of route C-D. JF Ashton Ltd owns the remaining part of the freehold of route C-D. Hampshire County Council acquired the freehold to B-C and its part of C-D on 13^th May 1963. JF Ashton acquired the freehold to its part of route C-D on 29^th May 1998.

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. Consultation

The following persons and bodies have been consulted about the application, namely the County Council (Environment and Highways), Councillor Keith Evans (the local Member), Fareham Borough 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:

6.1 Hampshire County Council (Highways) - state that the affected section of Chilling Lane is not publicly maintainable, and they have no views on the claim.

6.2 Ramblers Association - state that since part of the Solent Way (Fareham Footpath 32) has eroded into the sea, access to the Solent Way is an issue which requires attention. They comment that the claimed route would provide a useful link, but it would be more useful to establish an north-east to south-west path to replace the missing section of the Solent Way.

7 Historic and documentary evidence

7.1 Although Chilling Lane (C-D) has existed since 1870, if not before, route A-B-C is first shown on the 1964 revisions of the 1:2500 Ordnance Survey National Grid map,.

7.2 An undated aerial photograph, produced in support of the claim, shows the area of Solent Breezes prior to the construction of the bottom crescent of chalets either side of the claimed route. The claimed route itself is clearly shown on this photograph as a wide track.

7.3 Neither the map or the photograph offer any indication as to the status of the claimed path; both show the claimed route as one of a number of routes through Solent Breezes.

8. Modern user evidence

8.1 The current claim was made in response to a planning application to construct two chalets within the boundaries of the claimed route, approved by Fareham Borough Council on 13^th January 2005. The application for planning permission was widely known to the residents of Solent Breezes, and is sufficient to act as a bringing into question within the meaning of Section 31 Highways Act 1980.

8.2 A total of twelve user forms have been provided in support of the claim. Each of these individuals is either a resident of Solent Breezes or the relative or friend of a resident of Solent Breezes.

8.3 Each resident of Solent Breezes has a private right of access over the claimed route in its entirety. Anyone visiting a friend or relation in Solent Breezes, is likely to share this private right, by invitation.

8.4 Public rights of way cannot be acquired through the pursuit of private rights.

8.5 No evidence has been produced from any member of the public who has used the path as of right.

8.6 Three witnesses have been interviewed. Although they each have a private right of way over the claimed route, their evidence provides a useful picture of the way the claimed path was used. Their statements are summarised below:

8.6.1 Mr and Mrs Igglesden

Mr and Mrs Igglesden own a bungalow adjacent to the claimed route. They purchased it on 5^th July 1973. They have a private right of access along all of the roads in Solent Breezes and the private road leading from the public highway on Hook Lane to Solent Breezes. They have collected a number of user evidence forms from residents of Solent Breezes, their friends and their relatives. Although they have no forms from members of the general public with no connection to Solent Breezes, they nonetheless believe that the path has been used by the general public. Mr and Mrs Igglesden state that the path has been used by resident of Solent Breezes as it was the most direct route from the caravans to the shore. They believe that members of the public use the path as the Solent Way has eroded into the sea, and people need to find an alternative route. Mr and Mrs Igglesden are not aware of anyone ever being stopped or told not to use the path, and do not recall any signs or notices stating that the path was private.

8.6.2 Mr DE Webb

Mr Webb has owned a chalet at Solent Breezes for over fifty years. He has a private right of access along all of the roadways within Solent Breezes, and a private right of access from the public highway on Hook Lane to the entrance of the site. He recalls that the claimed route has been in existence since the 1960s, and believes that the original development plans for the bottom crescent of bungalows provided for a chalet in the gap, on the claimed route. Mr Webb believes that the claimed route has been used by residents of Solent Breezes and members of the public who are passing. He states that members of the public might use the claimed route because the Solent Way has eroded into the sea. Mr Webb also believes that the claimed route has been used by members of a local riding school. He does not believe that anyone has ever been stopped or told not to use the route. Mr Webb does recall a sign at the entrance to Solent Breezes, stating that the site was private. He believes that this sign was removed between five and ten years ago, and was present for many years before that.

9. Landowner evidence

9.1 Cinque Points Leisure have made a number of comments on the claim, which are annexed at Appendix 2. The Park Manager has also provided a signed statement; this is summarised below:

9.1.1 Mrs Evelyn Fletcher

Mrs Fletcher has been the Park Manager of the Solent Breezes Holiday Park for the last five years. During this time she has lived on site, in a bungalow which overlooks part of the claimed route. Mrs Fletcher states that although members of the public do occasionally wander onto the site, she has never seen anyone she does not recognise using the claimed path to get to the sea. She states that, for anyone entering the park from Chilling Lane, the claimed path would be a most illogical route. Mrs Fletcher states that all bar one of the witnesses claiming use of the path are, or have been residents of the park, or their friends and relatives. Mrs Fletcher has been informed by another resident of the park that the applicant has been seen to confront people who were using the claimed path, if he did not recognise them¹.

9.2 In 1999, Hampshire County Council lodged a statutory declaration, made under Section 31(6) Highways Act 1980, stating that they did not intend to dedicate any rights of way over the land shaded pink on Appendix 1.

9.3 This declaration is sufficient to rebut any presumption of dedication of route B-C, (or any route of which B-C is a part), either under common law, or Section 31 Highways Act 1980, which relies on the period between 1999 and the present date (the declaration is valid until 2009). Neither route A-B or route C-D of themselves are capable of being recorded on the definitive map as public highways.

10. Discussion of the evidence

10.1 No historic evidence has been discovered which would suggest that the claimed route carries public rights.

10.2 There is no evidence of public use of the path, and therefore, no evidence with which to infer a deemed dedication of the path at common law.

10.3.1 The use of the route was first brought into question, within the meaning of Section 31 Highways Act 1980, on 13^th January 2005. The relevant twenty year period is therefore from January 1985 to January 2005.

10.3.2 In 1999, Hampshire County Council lodged a declaration under Section 31(6) Highways Act, stating that it did not intend to dedicate land on the Chilling Estate as public highway. This declaration included part of the claimed route, and is sufficient to rebut any presumption of dedication made under Section 31(1) of the Act, for the period relevant to the claim.

10.3.3 Mrs Fletcher states that she has been informed that the applicant has, on occasion, been known to challenge users of the claimed route, and Mr Webb states that he recalls a "Private" sign at the entrance to the Solent Breezes site. However, no other users appear to recall either of these events, and there is no specific evidence as to when either event took place. Neither of these events can be held to be a bringing into question with the meaning of Section 31 Highways Act, and there is, therefore, no other twenty year period to which Section 31 Highways Act 1980 can apply.

10.4 Although the claim itself is unlikely to be successful, it is recognised that due to erosion of the cliff-top, part of the Solent Way is now impassable. Rights of Way Officers are currently seeking the dedication of the paths marked in green, in order to link the two parts of the Solent Way, and to provide access between the shore and Footpath 127 (Hook Lane). Should negotiations be successful, a separate report will be brought to the Committee.

11. 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. The following comments have been received:

11.1 Mr and Mrs Igglesden (Applicant): No comment

11.2 Hampshire County Council (Landowner): No comment

12. Conclusions

Although the claimed path has been in existence for a number of years, each of those who have provided evidence of their use of the route appears to have been doing so in pursuit of a private right of way. Furthermore, in 1999, Hampshire County Council lodged a statutory declaration under Section 31(6) Highways Act 1980, to the effect that it did not intend to dedicate part of the route as a public right of way. The requirements of Section 31 Highways Act cannot be met, and there is no evidence with which to infer a deemed dedication at common law.

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 CR801 - Rights of Way Office, Mottisfont Court, Winchester