Archived decisions
Hampshire County Council Item 12
Regulatory Committee
7 September 2005
Proposal to delete Footpath 10 in the Parish of Baughurst from the definitive map of public rights 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 -
(c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows -
(iii) that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification.
1. Summary
1.1 Due to a protracted dispute, regarding the correct route of Baughurst Footpath 10, the history of this path has been fully researched and evidence has come to light that casts doubt whether it is, in fact, a public right of way. Members are recommended to approve the making of an Order to delete it from the definitive map on the grounds that it has been incorrectly recorded as a public right of way.
2. Claimant:
2.1 There is no claimant in this case. The issue has been initiated from within the rights of way section.
3. Landowners:
Mr & Mrs Chapman Mr & Mrs Preston
Woodview Squirrels Leap
Haughurst Hill Haughurst Hill
Baughurst Baughurst
Hampshire Hampshire
RG26 5JR RG26 5JR
Mr & Mrs Hamilton-Russell Mr & Mrs Ward
Wildermere Acorn Cottage
Haughurst Hill Haughurst Hill
Baughurst Baughurst
Hampshire Hampshire
RG26 5JR RG26 5JR
Mr M Browning Mrs R Rayfield
Christmas Cottage Tall Oak
Haughurst Hill Haughurst Hill
Baughurst Baughurst
Hampshire Hampshire
RG26 5JR RG26 5JR
4. Description of the route
4.1 According to the definitive map, Footpath 10 should run through woodland, on an east-west alignment, following a stream. It connects with a network of public paths at both ends. A path, of sorts, does exist on the ground at the eastern end, away from the stream, but the western half is very difficult to follow because of the terrain. The ground is uneven, it slopes down to the stream and there is no natural or obvious path capable of being followed.
4.2 The definitive statement describes the route in the following terms:
From No.6 to junction of No.9 with No.7
From No.6 south of footbridge eastwards skirting north side of wood, along narrow water meadow, through gate, over small stream, then following stream, along north side of wood, through gap in hedge, along bottom of cottage gardens, and through gap in hedge, and along bank of stream through heathland to No.9 south of footbridge.
4.3 It is impossible to reconcile the description of the path in the definitive statement with the route shown on the definitive map. In places it is not clear which side of the stream the path should be and there is particular confusion over the route at the eastern end. Here the waymarked path is currently 10-15 metres south of the stream, on a raised bank, but one interpretation of the statement puts it alongside the stream and through some gardens.
5. Background to the claim
5.1 Members will be familiar with the process and criteria for adding paths to the definitive map using Section 53 of the Wildlife & Countryside Act 1981. What is less well known is that the same piece of legislation allows for the deletion of a public right of way if there is evidence that it should not have been recorded as such in the first place.
5.2 For many years there has been confusion over the correct route of Baughurst Footpath 10. There has been much correspondence, over the last 25 years, and several site meetings held to determine where the path should run in relation to a stream and gardens. The issue came to a head last summer when the Northern Area Rights of Way Officer served notice on landowners to remove obstructions on what he considered to be the legal route. The residents disputed his interpretation of the available evidence and a meeting was held to try and resolve the issue once and for all. The outcome of that meeting was that both sides agreed to gather evidence concerning the history of the path.
6. Documentary evidence
6.1 1872 Ordnance Survey 25 Inch to 1 mile map
This is the first large-scale map of the English countryside and it shows the stream by double solid lines, running from east to west, on the northern boundary of a large area of woodland called Great Hawkhurst Copse. There is no indication of a path or track on the alignment of Footpath 10, although there is a path between 30 and 60 metres to the south of the stream which today is recorded as Footpath 8.
6.2 1895 Ordnance Survey 25 inch to 1 mile map
There is no indication of a path or track on the alignment of Footpath 10. Footpath 8 is not shown either.
6.3 1909 Ordnance Survey 25 inch to 1 mile map
There is no indication of a path or track on the alignment of Footpath 10 but Footpath 8 is shown between 30 and 60 metres to the south of the stream.
6.4 1929 Handover Map
This map shows those routes that the Rural District Council considered to be publicly maintainable when they passed over responsibility for them to the County Council. Footpath 8 is shown by pecked green lines, indicating a public footpath repairable by the parish, as is every other current right of way in the locality of Haughurst Hill with the exception of Footpath 10.
6.5 1933 Baughurst Parish Council minutes
Read correspondence in connection with the above Act.
Resolved that a list of Footpaths and Bridleways be prepared in accordance with the request of the Rural District Council and the suggested marking of 6 inch maps be deferred until it is decided whether the Rural District Council is supplying the same or the Parish Council are to supply them at their own expense.
Resolved that the Clerk be empowered to purchase 6 Ordnance Survey maps (25 inch) to complete the full set for the parish.
The Council then proceeded to prepare a list of all the Footpaths and Bridleways in the Parish as follows -
There then follows a list of 22 described paths. One of the entries describes a route in the following terms:
"There is a branch off from this path through Great Haughurst Copse to the parish boundary."
This description could apply to Footpath 8 or Footpath 10 but it cannot apply to both. Given that Footpath 8 appears on a number of Ordnance Survey maps it is more likely than not that the path referred to is Footpath 8.
6.6 1934 Baughurst Parish Council minutes
2 October 1934 - Footpaths
Resolved that the following Footpaths be included in the Schedule in addition to those appearing on page 227-230.
This page reference refers to the list compiled on 7 December 1933. The parish added a further four paths to the schedule. Footpath 10 is not among them.
6.7 1945 Baughurst Parish Council minutes
12 December 1945 - Rights of Way Act 1932
In response to an inquiry by the Rural District Council as to Rights of Way in the Parish, the Council proceeded to inspect and revise the schedules of footpaths and bridleways prepared on the 7th December 1933 and a supplemental list made on 2nd October 1934.
Resolved that a new schedule be prepared and made available for inspection by parishioners at various public places i.e. shops, inns and post offices, that notice of such be given by advertisements in the Newbury Weekly News and the Hants & Berks Gazette. That comments and suggestions be asked for, the same to be sent to the Clerk or any Parish Councillor.
The Council proceeded to revise the schedules and added the following to the existing list:
There then follows a description of two further paths, neither of which relate to Footpath 10.
6.8 1946 Baughurst Parish Council minutes
18 February 1946 - Schedule of Footpaths
The Clerk reported that copies of these schedules had been on deposit for inspection at all inns, shops and post offices in the Parish and notice of the same had appeared in the Hants & Berks Gazette and the Newbury Weekly News. No comments or suggestions from parishioners had been received.
Resolved that the schedules be forwarded to the Local Authority.
6 November 1946 - Footpaths
Further correspondence on this matter was received.
Resolved that as schedules had been published and suggestions invited it was decided that the lists are correct and no further steps be taken.
6.9 1949 Baughurst Parish Council minutes
7 December 1949 - Footpaths and Rights of Way
The Council then proceeded to study the map of footpaths as supplied by the County Surveyor, this map by arrangement of the Chairman had already been sent to each Councillor in turn. It was decided to make the following recommendations:
There then follows five suggested amendments to the map, none of which relate to Footpath10.
6.10 1949 First Draft Definitive Map
The full title given to this map is "Rights of Way Parish of Baughurst Agreed Paths Shown Thus". It shows by blue lines the paths that were considered to be public rights of way but it is not clear who provided the original information. The map is accompanied by a letter, dated 8 December, from the Parish to the County Surveyor which states:
"My Council last evening considered map supplied by you and have instructed me to call your attention to what they consider to be omissions therefrom.
These are marked in pencil on the enclosed plan."
There then follows descriptions of a further three routes, none of which relate to Footpath 10.
On the parish map, the words "in pencil" have been underlined in red and the relevant "new" paths mentioned above have been highlighted in red. The path now known as Baughurst Footpath 10 is not shown by either blue or red lines although a parallel path, to the south, has been drawn on the map in blue (now Footpath 8).
6.11 1950 Letter from County Surveyor to Baughurst Parish Council
The letter, dated 3rd March, is headed "National Parks and Access to the Countryside Act 1949" and states, in part:
"As you are probably aware, the County Council has recently been carrying out a preliminary investigation of rights of way in your area, in anticipation of the above Act. Under Section 27 of this Act, the County Council must now carry out a complete survey of all rights of way in the County, first consulting Urban or Rural District and Parish Councils as to the arrangements for supplying the necessary information in accordance with the Act. Provided that the RDC and your Council agree, it is proposed to show on individual parish maps the information already compiled and to submit these for confirmation at a Parish Meeting."
6.12 1950 Letter from Baughurst Parish Council to County Surveyor
The letter, dated 1st June, states in full:
"I am instructed to inform you that my Council have already prepared a schedule of Rights of Way for the Parish of Baughurst."
6.13 1951 Letter from County Surveyor to Baughurst Parish Council
This letter, dated 5th September, discusses a number of routes that are not shown on the draft map agreed by Baughurst Parish Council in 1949. The County Surveyor informs the Parish that some additional routes, that have been put forward by the Rural District Council, have been added to the map that accompanied this letter. All of the paths mentioned in the letter are in the south of the parish, well away from Baughurst Footpath 10. Accompanying this letter is another, standard letter to all parishes which asks:
"Will you please arrange therefore for a special meeting to be held to consider the Map and Statement which must be furnished to the County Council, as the surveying authority."
6.14 1952 Letter from Baughurst Parish Council to County Surveyor
Dated 14th May, it reads, in full:
"The Map of Footpaths was passed at the Annual Parish Meeting held on the 26th March last. I have contacted Mr Game at Kingsclere as I am in a difficulty with regard to the Schedule."
The map that accompanies this letter shows the rights of way alleged to exist, colour coded according to status. Footpath 10 is shown by a blue line running along a stream. The map also numbers the paths but this bears little relation to today's numbers. For example, there are three paths that have been given the number 10, including today's Footpath 8 and Footpath 10. Comparing the first draft map produced by the parish with the second, there are two paths that have been added to the second, that are not on the first, and have not been mentioned in correspondence between the parish, district and county. One is Footpath 10 and the other is Footpath 23 on the boundary with Tadley.
6.15 1953 Letter from County Surveyor to Baughurst Parish Council
This was a standard letter, dated 7th April, informing all the parishes in Kingsclere Rural District that the Draft Map and Statement had been placed on deposit for public inspection. All objections concerning the inclusion, omission or incorrect description of any paths had to be made by 15th August 1953.
6.16 1953 Objections to Draft Map
There were objections to 16 paths within Baughurst Parish and these representations were considered at a public hearing on 30th September. There is no reference in the Objection Book of that time to a Footpath 10, therefore the path found its way onto the Provisional Map for Hampshire.
6.17 1955 Letter from County Surveyor to Baughurst Parish Council
This was a standard letter, dated 24th March, sent to all parishes in Kingsclere Rural District informing them that the Provisional Map had been placed on deposit for public inspection. This document was the draft map as amended by the hearings into objections to the draft map. At this stage the public could not object to the omission of a path but landowners could apply for the deletion of paths. The County Surveyor also sent an extract from the Provisional Map and Statement "...to be available for inspection during reasonable hours by any landowner or occupier who may wish to see them."
Landowners had until 27th April to appeal against a path being included on this map. There is no record of an objection to Footpath 10.
6.18 1960 Letter from John Beevers to the Rural District Council
The letter, dated 15th December, states in full:
"Thank you for Form P3, giving me permission to build a bungalow at Tall Oak, Haughurst Hill, Baughurst. I notice with astonishment, however, that you state that a public right of way exists over the land to which this consent relates. I bought this property through the Halifax Building Society in 1936. There was then no mention of any right of way, nor is such a right of way shown on the deeds of this property. I have lived there since 1936 and I assure you that I have kept the entire property strictly private. So could I please have an explanation?"
6.19 1960 Letter from the Clerk to the County Council to Mr Beevers
Dated 17th December, the letter reads, in part:
"The Definitive map prepared by the Hampshire County Council...indicates that a footpath...passes over the southern portion of the site marked in red on the submitted plan and marked thereon by a double line."
6.20 1961 Letter from Mr Beever to Rural District Council Clerk
Although written to the Rural District Council this must be a response to the letter from the County Council. Dated 19th December the letter reads, in full:
"Thank you for your letter of December 17th. It gave me great satisfaction, though not so much as I should enjoy from watching anyone trying to use the alleged footpath marked on the Definitive Map to which you refer. For the `double line' you mention does not indicate a footpath. It does indicate a stream which flows into the little river which passes under the road at Axman's Ford. I should be very glad to allow any representative of the Council to come and inspect it. In fact, I must ask that such an inspection be made, as I am sure you realise that those who drew this Definitive Map are not going to be allowed to make me suffer because they were too dim-witted to grasp the difference between a path and a stream."
6.21 1961 Letter from County Surveyor to County Clerk
Dated 19th January, the letter reads, in full:
"As requested in your memorandum of January 6th, Mr Gill has now inspected this path and talked to Mrs Beevers. She now accepts that there is a legal right of way along the southern boundary of their property, although it has not obviously been used for very many years and no trace exists on the ground. It does not seem worth insisting on the rehabilitation of this path, since a perfectly good alternative route exists a little to the south and Mr Beevers may decide to apply for an Extinguishment Order, or merely to let sleeping dogs lie. In either case, no further action is required from us at the moment."
6.22 1968 Ordnance Survey 1/2500 map
There is no indication of a path or track on the alignment of Footpath 10 although the parallel path (Footpath 8), to the south, is shown through the woods.
6.23 1976 Letter from Baughurst Parish Council to Rights of Way Officer
The letter details problems with some of the paths in Baughurst and includes the following:
"No.10 - Junction with Br.6 - Rarely used path, No.8 being the preferred route. Official description bears no relationship to conditions on the ground at the No.6 junction end of the path; this part is usually under water. Other parts overgrown through the hazel coppice."
6.24 1978 Ramblers Survey
On 29th September, a member of the Ramblers Association surveyed all of the paths in Baughurst. His report for Footpath 10 includes two descriptions of the path, one for the route shown on the definitive map and another for the route described in the statement. He comments:
"This path needs resurveying. The map is not helpful, neither is the statement. People have been following the line I describe first but on a second visit on 10.10.78 I found a new barbed wire fence across the west end of description 1. So neither line is useable"
6.25 1979 Application to extinguish Footpath 10
In 1979, five residents of Haughurst Hill applied to the County Council to have Footpath 10 extinguished on the grounds that it was not needed for public use. At that time they did not have the option of applying for a Map Modification Order to delete the path because it was before the passing of the Wildlife & Countryside Act 1981. Any alterations to the definitive map, based on evidence, should have been dealt with at the review stage of the map but no review had been carried out since 1964.
6.26 1979 Decision of County Council's Rights of Way Sub-Committee
Members considered the extinguishment application on 21st September and resolved to conduct a site visit. This was carried out on 29th October and this time they gave approval for the extinguishment order to be made.
6.27 1980 Extinguishment order
The Order was made on 7th February 1980. Its advertisement attracted three objections from the Ramblers' Association, a Mr Parsons and a Mr Anscomb. This meant that the order could not be confirmed but was instead submitted to the Secretary of State for determination by public inquiry.
6.28 1981 Inspector's decision letter
The local public inquiry was held on 17th February and the Inspector published his decision letter on 30th March. He came to the following conclusions:
"The original line of Footpath 10 is uncertain and may now be impossible to determine beyond all doubt. However it is clear that a public right of way exists, running approximately along the south side of the south stream near the junction of the water meadow and the woodland. No stranger to the area would ever suspect that a right of way existed at this point. There is no trace of a path (except for a few metres at the eastern end) the ground is overgrown and the line is obstructed by at least two wire fences which contain no openings or stiles for pedestrians. There are no signposts or waymarks of any sort. It is therefore not surprising that the right of way is very little used by the public."
The Inspector went on to conclude that, although the path was little used and not maintained, it was needed for public use and therefore he did not confirm the Extinguishment Order.
6.29 1986 Letter from Rights of Way Officer to residents of Haughurst Hill
The Area Rights of Way Officer informed the owners of five properties, that backed on to Footpath 10, that he was going to carry out a site visit to assess the obstructions on the path and the work required to put it in good order.
6.30 1994 Letter from Ramblers Association to HCC
"Footpath 10 could only be negotiated with considerable difficulty..."
6.31 1995 Letter from Rights of Way Officer to residents of Haughurst Hill
"Following a recent complaint from the Ramblers Association, I have been trying to locate the route of the above footpath which is not evident on the ground. ...the footpath has once again fallen into disuse. It is not signposted nor way marked and there are a number of obstructions upon it."
6.32 2001 Letter from Rights of Way Officer to resident of Haughurst Hill
"I attempted to walk this footpath this morning and found it virtually impossible due to overgrown vegetation all along the route. The two gardens at the eastern end totally block the route of the path and I will have to get these cleared."
7. Other evidence
7.1 As a result of enquiries to determine the correct route of the footpath, six people have written letters or provided statements to describe their personal memories of the area. They are, in alphabetical order, as follows:
7.2 Mr L Appleton of Tadley
"Eighty years ago I lived...near Wheathold, about two miles south of Haughurst Hill. My grandmother lived at Haughurst Hill at what is now Corner Cottage. I spent a lot of time there going to and fro. The route I would follow to go home would be to turn right on leaving the cottage, go down to the stream, then up through the copse to the track at the top, along the track to the hunting gate at the end, then across the hangar, then up through the copse to Cannon Farm Stables. I went this way because it was the better road. I have been asked if there was any other path then or later that followed the stream eastwards towards Ashford Hill. To my knowledge there was no path along that way."
(Mr Appleton has supplied a map showing the path he took to get home. The route he used is Footpath 8 which runs parallel to Footpath 10.)
7.3 Mr A Hiscock of Little Aldershot
"I was born at Little Aldershot, just across the copse from Haughurst Hill. I have lived here for seventy one years. My aunt Rose lived at Southwood until her death. I have worked and walked these copses hereabouts all my life and know every inch of them. I have been asked what I remember about footpaths or ways through the copses at Haughurst Hill and whether I remember a path either in or alongside the water meadows down there. There was certainly no footpath through the meadows...Nor was there ever a path later that I ever used or saw. The only path was at the top. I have walked up to that path many a time from the bottom of the garden at Southwood...to go to Baughurst or to Axmansford. If there had been a path along the bottom by the stream I am sure I would have known it and used it. As far as I can say, there never was a path of any sort that people used either in the meadow or following the stream in that direction."
7.4 Mr R Hutchins of Haughurst Hill
"I was born at Haughurst Hill and I have lived here all my life, 73 years. I have worked and walked these copses hereabouts all my life. I have gone down with Mr Chapman to look at the route of Footpath 10 that runs through his property. All I can say is that I spent a lot of time down there as a boy when his garden was all allotments...and I have never walked such a path or known anybody walk that way. As far as I am concerned it is completely unheard of. What I remember is that when I was young we could walk out from Southwood from the bottom of the garden, over the stream and take a path up through the copse. That is how I recall it."
7.5 Mrs Keeley of Cambridgeshire
"My father, Frederick Kernutt, was born there (Woodview, Haughurst Hill) in 1911, the home of his parents until 1952 when my grandmother died. My parents then bought the house and lived there until they sold to Mr G Chapman. I was born in 1933 and visited my grand parents regularly and then my parents. I do not recall a footpath as marked on the map - there was a stream but no footpath."
7.6 Mr R Loxton of Somerset
"...I was born at the Pineapple Inn in 1939 and until recently lived at Hillberry, Inhurst Lane which land included Little Haughurst Copse so you can imagine I spent a long time both as a child and adult in the area. The footpath marked red B-C (Mr Loxton has drawn a line on a map which corresponds to the route of Footpath 10) was used by us children and also by timber cutters and those involved in coppicing which was a regular feature of the woodland. The area was in the ownership of just one family, the Appletons of Inhurst Farm, when the land was sold off in plots to those that backed onto the land it became difficult to use because of fencing."
7.7 Mr Pither of Tadley
Mr Pither was born in 1932 in a house called April Cottage, at Haughurst Hill, and lived there until 1955 when he got married. As a child he used to play with his friends in the woods and fields at the end of Haughurst Hill. They used to walk down the track to the bottom of the hill where there was a wooden footbridge over a stream. About 10 yards beyond the bridge, on the left hand side, there was a gate which led into a field and just beyond that, on the same side, there was a stile at the point where the field met the woodland.
With his friends, Mr Pither would climb over the stile and walk along the edge of the field. In winter the field was usually too wet to walk through so they would use a path just inside the wood that was on higher ground. They would follow the route of the stream and then turn right through the woods to reach another path that ran through the middle of Great Haughurst Copse (Footpath 8). Mr Pither has supplied a map which shows that he used three quarters of Footpath 10 from the western end. The path did not continue alongside the stream to the concrete bridge where four paths meet.
Mr Pither and his friends played wherever they wanted to in the woods. At that time the woods were owned by the Appleton family and used for coppicing until they sold the woodland at the end of the 1950s. Mr Pither is related to the Appleton family by marriage. As an adult he continued to visit Haughurst Hill every week to see his parents and would go for walks through the wood sometimes using part of Footpath 10. He last used Footpath 10 about 15 years ago.
8. Consultations
8.1 Baughurst Parish Council
In a letter dated 15 August the Parish Clerk submitted the following response:
"Footpath 10 should not be deleted because of the following:
1. The main reason quoted for deletion is that the path was included in the Definitive Map in error. My council is of the opinion that evidence should exist to prove that this is so, or that evidence of some substance outweighs the balance of probability that inclusion on the map was incorrect. The onus of proof is on those seeking to demonstrate that the map is wrong. Owing to the lack of information on this subject, this can, therefore, only be conjecture. The application was, however, ratified by the Parish Council in 1952.
2. It is a public footpath by custom and practice. The difficulty arises from lack of certainty that a path is a right of way was overcome by the 1949 Act, which says that a right was deemed to have been dedicated by the landowner if it has been enjoyed by the public without interruption for a full period of 20 years unless there is sufficient evidence that there was no intention of dedicating it during that period.
For more than 20 years this path has been walked by many people. This section defines `without interruption' as the stopping of the public's enjoyment by a landowner in order to prevent their use, which may have happened in the last few years, but this was well after any 20 years of uninterrupted use (for example, from 1950). This section also covers the definition of the `way over land' in that it includes land covered by water (the stream).
Regarding the exact line of the footpath, (in the stream) unless specified or physically bounded by fences, hedges etc. there is no minimum width of a path. The width is that which, as a matter of evidence (by worn tracks) has been habitually used, and may vary by up to many metres. It depends on the circumstances - for example, if the land is boggy, it is reasonable to depart from the most direct line, or it may be that the way divides into a number of parallel ways before merging again. This means that we do not have to ask for the route to be diverted.
3. Finally, in 1981, there was a request from one or more landowners to close this right of way, but there were objections with which the inspector agreed at the inquiry stage. This would not have been initiated by the landowners, or indeed furthered by the County Council, had everyone at that time believed that it was not a right of way."
8.2 Basingstoke & Deane District Council
The Head of Legal Services has written to say:
"I am pleased to confirm that, as far as this Council is concerned, there is no objection to your proposal to rectify the definitive map as outlined in your letter."
8.3 Councillor Mrs M Tucker - local member
No comment
8.4 The Ramblers' Association
The Area Footpath Secretary has replied as follows:
"I agree that on present evidence, there is no evidence for a right of way on the line shown on the Definitive Map. However, I would have great difficulty accepting the loss of a path somewhere in the vicinity. The refusal, in 1981, to extinguish the path after public inquiry showed that a path is required for public use. Therefore, I would wish to object to the proposal on behalf of the Ramblers' Association. Since the public inquiry, HCC have defined a route on the ground by waymarking. This route has been in use, I believe for at least 20 years. I would therefore contend that HCC have created a right of way on the waymarked route, and that instead of deleting Footpath 10 from the Definitive Map, simultaneous extinguishment and creation orders be made to move the right of way to its current location."
8.5 Open Spaces Society
No comment
9. Analysis of the evidence
9.1 The Ordnance Survey maps of 1872, 1895, 1909 and 1968 inform us that a significant path did not exist on the ground on those dates. Eye witness accounts from the past support the documentary evidence of the maps. The letter from the County Surveyor, dated 1961, relates that the path "...has not obviously been used for very many years and no trace exists on the ground" Mr Beever was incredulous when told in 1960 that there was a right of way over his property. He wrote that "I have lived there since 1936 and I assure you that I have kept the entire property strictly private." The Inspector at the public inquiry, in 1981, said that "There is no trace of a path, except for a few metres at the eastern end..." The path was only opened up, in 1986, as a result of work by the Area Rights of Way Officer and even after that there was confusion about the correct route that has still not been resolved.
9.2 The statements from the long-term residents of the area provide good evidence that no path physically existed on the route of Footpath 10 from at least 1940 onwards. Mr Appleton is the oldest of the residents (80+ years) who, as a child, visited his grandmother at Haughurst Hill. He has stated that "To my knowledge there was no path along that way." Mr Hutchins claims to have worked and walked in the woodland all his life (73 years) and has "...never walked such a path or known anybody walk that way." Mr Hiscock (71 years) has said that "...there never was a path of any sort that people used either in the meadow or following the stream in that direction." Mrs Keeley was a constant visitor to one of the houses that backed onto the woods in the 1940s, 50s and 60s and she does not recall a footpath by the stream. The significance of these four statements is that they span a period that includes the compilation of the first definitive map.
9.3 There has been use of a path at this location but the evidence is ambiguous. For example, Mr Loxton has identified a route that he used alongside the stream but in his letter he describes it as being used "...by children and also by timber cutters and those involved in coppicing..." The last two categories are undoubtedly related to the management of the land and have nothing to do with public rights. It is also questionable whether use by children could substantiate the existence of a public right of way as it appears that the woods were used as a general playground at that time. Mr Pither relates that he played in the woods with his friends and this access included use of a path that equates to the western half of Footpath 10. He has not used the entire route, preferring instead to cut through the middle of the wood to connect with Footpath 8.
9.4 The strongest evidence against the existence of a right of way are the deliberations of the Parish Council in the period from 1933 to 1950. On three separate occasions in 1933/4, 1945/6 and 1949/50 the parish council went to great lengths to produce maps and schedules showing those routes in Baughurst that were considered to be rights of way. The path known as Baughurst 10 is not described in any of these schedules and it does not appear on the first draft map produced by the parish council in December 1949.
9.5 Furthermore, the parish council took the unusual step of advertising the existence of the 1946 schedule "...at all inns, shops and post offices in the parish and notice of the same had appeared in the (local newspaper)...No comments or suggestions from parishioners had been received." It is reasonable to conclude, therefore, that the parish council, and the parishioners, did not consider Footpath 10 to be a public right of way at that time. It is also significant that the Rural District Council, in 1929, considered that every current recorded right of way, in the vicinity of Haughurst Hill, was publicly maintainable with the exception of Footpath 10.
9.6 The first document to record Footpath 10 was the second draft map drawn up by the County Council in 1951, and ratified by the Parish Council in 1952, but based on earlier submissions from the parish. However, there is no explanation in the correspondence leading up to that as to how it appeared on the map. There were several alterations between the first and the second draft maps but they are all referred to in correspondence between the Parish, District and County Councils with the exception of Footpath 10 and Footpath 23. An examination of Ordnance Survey maps, in the locality of Footpath 23, demonstrates that this path is an ancient route which appears on four surveys from 1872 through to 1967. Whereas, of course, there is no such evidence for Footpath 10.
9.7 There are few recorded public rights of way in Hampshire that do not appear on at least one published Ordnance Survey map. By itself, this is insufficient evidence to say that the right of way should not exist. In these cases there are usually other documents that can be relied upon to sustain an allegation for the existence of a public right of way. For Baughurst Footpath 10 there is nothing before 1952 and the second draft map, and very little has subsequently come to light that supports the assertion that it is a public right of way or even existed as a path.
9.8 The argument for the existence of Baughurst Footpath 10 would have to rely on the fact that the Draft and Provisional Definitive Maps were both advertised, and landowners had two opportunities to object to its inclusion as a public right of way. Somebody also went to the trouble of producing a definitive statement describing Footpath 10, and all the other paths in the parish, at about the same time as the first definitive map. It is debatable how much householders and smallholders, who were not members of the Parish Council, were aware of the existence of the definitive map procedures. Mr Beever, for one, was obviously ignorant of the process.
9.9 There are references to the existence of a public right of way after the production of the definitive map. For example, the County Surveyor, in 1961, remarked that "She (Mrs Beevers) now accepts that there is a legal right of way along the southern boundary of their property..." and the Inspector, who considered the extinguishment order, said in his decision letter of 1981 "...it is clear a public right of way exists..." But these remarks could be based purely on the evidence of the definitive map. Once a path has been shown on this authoritative document it tends to take on a life of its own without reference to any other source.
9.10 Given the close proximity of Footpath 8, between 30 and 60 metres to the south of Footpath 10 and with a very similar profile, there must be a suspicion that those who drafted the maps became confused about the correct route of the path through the woods. This is particularly relevant as Footpath 10 supposedly follows the alignment of a stream which appears on the Ordnance Survey maps as double solid lines. At first glance this feature, on small scale maps, looks like an enclosed path or track and it is perhaps understandable why this should be highlighted in error as a public right of way.
9.11 What is difficult to convey in writing is how artificial the route seems. The path is signposted or waymarked at both ends and it is possible, with difficulty, to walk a route that is not obstructed by fences or hedges. However, if the path does indeed closely follow the stream, then it is damp and uneven and passes through gardens of properties in Haughurst Hill. If the path is away from the stream for any distance then, at the western end, the ground is rugged and sloping. The only way that a useable path can be established is by engineering works to raise and level the ground and build steps in places.
9.12 Even if the path was recorded in error at the time of the first definitive map it is possible that the public has subsequently acquired a right of way by long use, without interruption, of a specific route. This is one of the points that the parish council are making. If that had occurred it would be pedantic to delete the path using one piece of legislation only to add it by another method. For that reason any evidence post 1952, and the first definitive map, is relevant to the question whether a right of way exists, albeit on a different route from the definitive line.
9.13 Although the Parish Council allege that "For more than 20 years this path has been walked by many people..." no evidence of use has been identified other than the statements of Mr Loxton and Mr Pither. There is however, substantial evidence from a variety of sources, and detailed in paragraphs 6.20 to 6.32, that the path was either obstructed or not visible on the ground in the following years: 1961, 1968, 1976, 1978, 1981, 1986, 1994, 1995 and 2001. It can be seen therefore that it would be very difficult to substantiate an allegation that a path has been used by the public, without interruption, for a period of 20 years.
10. Legal considerations
10.1 In determining issues of this nature the County Council must not only take into account current legislation but also relevant case law and guidance issued by the government. The case of Trevelyan v Secretary of State for the Environment, Transport and the Regions (2001) is particularly relevant to this matter. In that case an Order was made to delete a bridleway from the definitive map. There were objections to this Order which resulted in a public inquiry. The Inspector decided to confirm the Order with modifications, thereby removing most of the bridleway from the map, with the exception of a short section which was retained. The Ramblers' Association objected to the removal of most of the bridleway from the definitive map and appealed to the High Court to get the Order quashed. This appeal failed but they were given leave to apply to the Court of Appeal. In their judgement, at the Court of Appeal, three judges upheld the decision of the High Court to dismiss the appeal.
10.2 Paragraph 38 of the Appeal decision reads as follows:
"Where the Secretary of State or an Inspector appointed by him has to consider whether a right of way that is marked on a definitive map in fact exists, he must start with an initial presumption that it does. If there were no evidence which made it reasonably arguable that such a right of way existed, it should not have been marked on the map. In the absence of evidence to the contrary, it should be assumed that the proper procedures were followed and thus that such evidence existed. At the end of the day, when all the evidence has been considered, the standard of proof required to justify a finding that no right of way exists is no more than the balance of probabilities. But evidence of some substance must be put in the balance, if it is to outweigh the initial presumption that the right of way exists. Proof of a negative is seldom easy, and the more time that elapses, the more difficult will be the task of adducing the positive evidence that is necessary to establish that a right of way that has been marked on a definitive map has been marked there by mistake."
10.3 These considerations are reflected in guidance, published in March 2001, by the Secretary of State for the Environment. It states:
"In making an application for an order to delete ...a right of way, it will be for those who contend that there is no right of way...to prove that the map is in error by the discovery of evidence, which when considered with all other relevant evidence clearly shows that a mistake was made when the right of way was first recorded... Authorities will be aware of the need, as emphasised by the Court of Appeal, to maintain an authoritative map and statement of the highest attainable accuracy. The evidence needed to remove a public right of way from such an authoritative record, will need to be cogent. The procedures for identifying and recording public rights of way have, in successive legislation, been comprehensive and thorough. Whilst they do not preclude errors, particularly where recent research has uncovered previously unknown evidence, or where the review procedures have never been implemented, they would tend to suggest that it is unlikely that a large number of errors would have been perpetuated for up to 40 years, without being questioned earlier."
10.4 The presumption must be that, after such a long period, the definitive map provides an accurate record of the existence of public rights of way. To delete a path there must be compelling evidence that an error occurred when the path was recorded. In this instance the officers take the view that the evidence does point to Baughurst 10 being recorded in error.
11. Conclusions
11.1 The footpath known as Baughurst 10 does not appear on any Ordnance Survey map.
11.2 Other than the definitive map, the only document that shows a path on the route of Footpath 10 is the second draft map produced in 1952.
11.3 On three separate occasions, between 1933 and 1950, Baughurst Parish Council debated the existence of rights of way and did not consider Footpath 10 to be public.
11.4 There is nothing within the archives to suggest how Footpath 10 came to be recorded as a public right of way.
11.5 There is no record of any objection to the depiction of Footpath 10 as a public right of way.
11.6 Three witness statements from long-term residents are in agreement that no path existed alongside the stream in the relevant period.
11.7 There is some evidence that Footpath 10 was used but most of this concerns children at play in the woods and use by woodmen.
11.8 The recording of Footpath 10 is most likely an error brought about by its close proximity to Footpath 8 and the depiction of the stream as a double solid line.
11.9 There is a significant body of evidence which disproves the existence of a public right of way on the route of Baughurst Footpath 10.
11.10 There is substantial evidence, for the period after the first definitive map, that there has not been a useable path on the ground for a continuous period of 20 years.
RECOMMENDATION
That approval be given for the making of a Map Modification Order, to delete the right of way known as Baughurst Footpath 10, under Section 31(c)(iii) Wildlife & Countryside Act 1981.
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 Baughurst 10 - Rights of Way Office, Mottisfont Court, Winchester