21

Hampshire County Council Item

Regulatory Committee

19 October 2005

Application for a Map Modification Order to record a footpath between Lands End Road and the River Hamble foreshore at the Jolly Sailor Public House, Bursledon.

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 footpath from Lands End Road to the River Hamble foreshore at the Jolly Sailor Public House, Bursledon.

The number of people who had provided evidence of their use of the claimed path is considered to be insufficient to satisfy either the requirements of Section 31 of the Highways Act 1980, or to infer a deemed dedication at common law. It is recommended that the claim be refused.

2. The Applicant and the Application

2.1 The Applicant is Mrs Diane Andrewes.

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

3. The Landowner(s)

3.1 Hall and Woodhouse Limited are the registered owner of the claimed route between point C and point D. Parts A-C and B-C of the claimed route are unregistered; officers have been unable to determine the ownership of this land. The owners of the Jolly Sailor and Myrtle Cottage both have a private right of access over route B-C, and may also have private rights over A-C.

4. The claimed route

4.1 The claimed path is illustrated in Appendix 1. Throughout this report it is referred to as `the claimed route' but in actuality, two paths have been claimed. The main route appears to follow the line of B-C-D. Route C-A forms a spur to this path. The paths currently provides the main access to the Jolly Sailor Public House and Myrtle Cottage (a private dwelling).

4.2 The routes follow a steep incline, downhill from Lands End Road towards the River Hamble foreshore. A number of concrete steps lead between point A and point C, whilst path B-C consists of a steeply sloping gravelled path. The path between point C and point D is partly stepped and is surfaced with concrete and stone. A-C and B-C follow clearly defined paths, both with a maximum width of 1.8 metres. At point C the claimed route meets the curtilage of the Jolly Sailor Public House. Between C and D the path is unenclosed, and not clearly defined.

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

4.4 A public footpath from Lands End Road to the River Hamble foreshore is currently recorded on the definitive map. This path lies approximately 50 meters north-east of the claimed path, and is illustrated on Appendix 1 as Footpath 2, Bursledon.

4.5 The Jolly Sailor Public House is a Grade II listed building. A widely held local belief is that it was constructed in 1713, and became a public house in approximately 1845.

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 footpath, or any other class of right of way, either through express or implied dedication.

6 Documentary evidence

6.1 1839 Bursledon Tithe Map

This is the first large scale map which shows a building in the location of the Jolly Sailor Public House. The claimed route is not illustrated on this map. A path in the same location as Bursledon Footpath 2 is shown on the map.

6.2 1:2500 Ordnance Survey County Series Maps

The first edition of the County Series Map, published in approximately 1870, shows a building in the same location as the Jolly Sailor. Paths A-C and B-C are both shown on the map; both appear to terminate where they meet the curtilage of the Jolly Sailor (point C), and not on the foreshore. A path in the same location as Bursledon Footpath 2 is also depicted; this path clearly terminates on the foreshore, and not within the boundary of a property.

6.3 The second, third and fourth editions of the OS County Series Map (published in 1895, 1908/9 and 1930/40 respectively) each depict the claimed route and the building of the Jolly Sailor in approximately the same fashion as the first edition. Each of these maps show the building of the Jolly Sailor with the annotation B.H, given to mean Beer House. On the fourth edition of the map, Footpath 2 is given the annotation F.P, given to mean Foot Path in the legend. The claimed route is not annotated

6.4 None of the County Series maps can, of themselves, provide conclusive evidence as to the status of the claimed route: whether it was considered to be public or private. However, the depiction of the claimed route on each of these maps is markedly different to the depiction of the path to the north, which was subsequently recorded on the definitive map as a public right of way as Footpath 2.

6.5 Other Ordnance Survey Maps

The Ordnance Survey National Grid map, published in 1964 and re-issued in 1972, shows paths A-C and C-D. Following previous editions of the Ordnance Survey County Series maps, these paths appear to terminate where they meet the curtilage of the Jolly Sailor (point C), not at the foreshore.

6.6 Parish Records

6.6.1 On the 23^rd December 1948, Bursledon Parish Council wrote to the County Surveyor regarding the preparation of the draft definitive map under the National Parks Act 1949. In this letter, Bursledon Parish Council state:

"In addition to the path you have marked in red ink there is a short one which lies between a house called "Ewers" and The Jolly Sailor Inn. I have marked it in red ink on there tracing. This path has nothing to do with the one leading from the Jolly Sailor Inn - which we do not claim."

The attached map indicates that the path which the County Surveyor had marked in red ink now forms the northern part of Bursledon Footpath 2. The path added in red ink by the Parish Council is the southern part of Bursledon Footpath 2 which forms a link between the foreshore and Lands End Road. It appears that the path which the Parish Council did not claim as a public right of way was the claimed route (B-C-D?).

6.6.2 On the 20^th September 1966, Bursledon Parish Council met and discussed the signposting of rights of way within the parish. The minutes contain the following reference:

"Footpath from Elephant Boatyard to Parsons Plot. Needs signposts at both ends. Has the owner of the Jolly Sailor taken over part of this footpath as one has to go through this property to go up the steep path as laid out in the statement of Rights of Way?"

Further notes on the same meeting state that:

"...Owner of Jolly Sailor removing "Private Landing Sign."

It is possible that, by 1966, there was some confusion about the location of the definitive line of Footpath 2; the reference to having to pass through the property of the Jolly Sailor and up the steep path could imply that in 1966 the Parish Council believed that the definitive path followed the line of the claimed route.

6.6.3 A telephone message, apparently dated to 1968, states that the owner of the Jolly Sailor will telephone the County Council with reference to the "Private Landing" Sign on his property.

6.6.4 On the 10^th May 1971, Bursledon Parish Council wrote to the County Council requesting a footpath sign at the Jolly Sailor foreshore, as the "sign stating that it is private is considered to be misleading".

6.6.5 On the 7^th December 1972 the Parish Council wrote to Winchester Rural District Council, apparently in response to a planning application which had been made to construct a jetty at the Jolly Sailor (the location of which is shown on Appendix 1). The letter states that:

"A footpath, as shown on the County's Definitive Map exists at this point and the proposed jetty would cause a serious obstruction (see enclosed sketch)."

The sketch accompanying the letter shows that the Parish Council mistakenly believed that route B-C-D was the route recorded on the definitive map as Footpath 2.

6.6.6 On the 11^th December 1972, a Rights of Way Officer from the County Council wrote to the Parish Council to explain that the route which was described in the letter of 7^th December 1972 was not recorded on the Definitive Map as a public right of way. The Rights of Way Officer advised the Parish Council that they could claim the route as a public right of way, if they so wished.

6.6.7 On the 8^th January 1973 the Parish Council wrote to the County Council, This letter states that:

"This Council has always understood that the [Jolly Sailor Footpath] `came ashore' up the steps at the Jolly Sailor and via the sloping path, (not the stepped path), to Lands End Road....The public have had access to the foreshore via the present path for at least 30 years - in fact 27 years to the knowledge of the writer!"

In this letter the Parish Council suggested that if the County Council had evidence that the footpath came ashore at a different point, the Parish Council would not object to the construction of the jetty.

6.6.8 The County Council replied to this letter on the 18^th January 1973, stating that it was not the County Council's responsibility to provide evidence that the path reached Lands End on the line recorded as Bursledon Footpath 2, and advised the Parish Council that if they wished to claim route B-C-D as an additional right of way, then they should do so.

6.6.9 There is no further correspondence on file relating to this matter, and no evidence that the Parish Council claimed route B-C-D when the jetty was constructed in the early 1970s.

6.7 Other relevant evidence

6.7.1 In 1984, a local resident, Susannah Ritchie, published a book entitled "The River Hamble and much about Old Bursledon". On page 15 of this book, there is a photograph of the Jolly Sailor, which, according to the caption, dates to the 1930s. Clearly visible on this photograph is a sign which states: "Private path to the Jolly Sailor and main road". This sign is situated adjacent to point D on Appendix 1, and would have been apparent to anyone travelling from the foreshore to Lands End Road on the claimed path.

6.7.2 Three lamp-posts are situated adjacent to part A-C of the claimed route. These lamp-posts have Grade II Listed Building status, and are thought to date to the later part of the 19^th Century. If the lamp-posts were erected by the Rural District Council or the Rural Sanitary Authority, then this may suggest that the path was publicly maintained, and may indicate that in the 19^th century it was considered to be a public right of way. However, the minutes of South Stoneham Rural District Council, and Bursledon Parish Council have been checked, and no references to the lamp-posts have been found.

7 Modern user evidence

7.1 Twelve user evidence forms have been submitted in support of the claim. The earliest use of the route was in 1914. There is evidence of use of the route in every year from 1914 to 2000. A graph illustrating the use of the path is included at Appendix 2.

7.2 The Applicant has been advised that the number of user evidence forms submitted in support of the claim is low, but has been unable to provide evidence of further users.

7.3 Three users have provided signed statements in support of the claim. These statements are summarised below.

7.3.1 Mrs Avery

Mrs Avery moved to Bursledon in 1935. She has used the claimed path for as long as she can remember. She states that between 1935 and 1955 she used the claimed path nearly every week. In 1955 she moved to Warsash and used the path less frequently, perhaps 10 times a year. Mrs Avery used the path as a means of getting to the foreshore, where she would collect cockles and winkles, swim, fish or go boating. She also used the claimed path when she wanted to go far a walk. Mrs Avery states that she cannot recall being stopped or prevented from using the path, and she does not believe that the landowners have ever erected signs stating that the path was private.

7.3.2 Mrs Blackmore

Mrs Blackmore began visiting Bursledon in 1956 and became a resident in 1964. She has lived in Bursledon ever since. Between 1975 and 1983 she also had a home in Cheltenham. Before 1980 Mrs Blackmore used the path as a way of accessing the foreshore, and as part of a circular walking route. Between 1956 and 1964 Mrs Blackmore used the claimed path approximately two or three times a year. Between 1964 and approximately 1980 (the date when Mrs Blackmore recalls that a jetty was constructed across the route, thus blocking access to it), Mrs Blackmore used the claimed path over thirty times a year. After approximately 1980 Mrs Blackmore used the path approximately twelve times a year

7.3.3 Miss Gillard

Miss Gillard was born in 1934 and began using the claimed route when she was a child. She recalls that she and her friends used the path to get to the foreshore where they would bathe in the water. Miss Gillard states that her father drank at the Jolly Sailor, and she knew the landlord, who would never have dreamt of turning her away. She always understood from her father that Footpath 2 was a legal public footpath and the Jolly Sailor path wasn't a public footpath. When Miss Gillard began working she used the route much less frequently, sometimes to collect driftwood from the shore. She states that after the pontoon was erected there was no longer any point in using the claimed path as there was only a very small piece of foreshore left. Miss Gillard has only used the path very occasionally since the pontoon was erected. Whilst using the path she has never seen any `private' signs. She recalls that once (possibly in the 1980s or 1990s) she tried to use the path but a gate over it was shut. There was an Alsation behind the gate, so Miss Gillard did not try to go in.

8 Landowner evidence

8.1 The current landowners of part of the route, Hall and Woodhouse Limited, have completed a signed evidence form providing information about the claimed route. This form states that Hall and Woodhouse have regularly maintained the surface and the lighting of the path. Hall and Woodhouse also have claimed that the gate over the route has been locked "on occasion". Officers have requested further information about this gate, but at the time of writing this report, no further correspondence has been received.

8.2 On 25^th June 1999, Hall and Woodhouse Ltd applied for planning permission to redevelop the Jolly Sailor. As part of this redevelopment scheme, it was proposed that the building be extended. The proposed extension was situated between the Jolly Sailor and Myrtle Cottage, and would have had the effect of blocking access over the claimed footpath. Eastleigh Borough Council Development Control refused this application on 12^th August 1999. The current application for a right of way was made as a result of this planning application, in the hope of safeguarding the path against future development.

8.3 Between 1978 and 1986 the Jolly Sailor was owned by Mr and Mrs Mellan; Mrs Mellan has provided a statement which is summarised below:

8.3.1 Mrs Elizabeth Mellan

Mrs Mellan was the landlady of the Jolly Sailor between 1978 and 1986. Prior to 1978 the property was owned by Mr Lincoln Hudson. In 1986 it was sold to Hall and Woodhouse. Mrs Mellan states that whilst the pub was in her ownership, the claimed path was used by a number of people as a way of getting to their boats. She states that the path was mainly used at weekends. Mrs Mellan recalls that when she and her husband bought the property there was a gate just below the entrance to Myrtle Cottage. Mrs Mellan states that now and again, on Sunday afternoons when the pub was closed, she would shut the gate to try and stop people from using the path. However, she did not lock the gate, and recalls that the shut gate did not deter people from using the path.

8.4 Myrtle Cottage lies adjacent to the claimed route, and enjoys a private right of access along part of route B-C-D. Myrtle Cottage is currently owned jointly by Mrs C Pritchard, Miss Marjorie Milam, Mr Edward Milam and Mr Eric Akhurst. On the 7^th December 2004, Mrs Pritchard completed an evidence form providing details of her knowledge of the claimed path. Mrs Pritchard states that she has legal papers dating to 1970 regarding a dispute between Mrs Pritchard's Aunt and a previous landowner of the Jolly Sailor, who erected locked gates over the claimed path. Mrs Pritchard states that the owners of the Jolly Sailor have maintained/improved the path.

9. Consultation

The following persons and bodies have been consulted about the application, namely the County Council (Environment and Highways), Councillor Keith House (the local Member), Eastleigh Borough Council, Bursledon Parish Council, Ramblers Association, Open Spaces Society and the Cyclists Touring Club. The following responses have been received:

9.1 Eastleigh Borough Council

"The Head of Engineering has been familiar with the path for almost thirty years and has always considered it as private access path serving The Jolly Sailor and adjacent property - never as a right of way to the Hamble foreshore. In fact it has been improved by the owners of the public house over the years. Also he confirms that a close relative, who lived nearby in Lands End Road from when she was born in 1927 to 1962 , knew the footpath as a route down the bank serving the pub, not as a public access to the foreshore.

The Head of Property Services has known the footpath for fifty years and advises that the Borough Council has no legal interest in the path. He also considers that it is a private path to The Jolly Sailor and cannot imagine how it could be classified as anything else."

9.2 Bursledon Parish Council

"We consider the [claimed path] to be private...privately owned and maintained and used by the customers of the Public House (and one adjoining dwelling which has an access coming off of the path). 

 We do not believe that a public right of access has been assumed or developed over the years.  The paths were closed off to everyone during a long period of recent building works on the Public House and we were aware of no complaints from the public of any disruption.  That is to say, the path users were pub customers and nobody needed to use it whilst the pub was closed.

As we have no knowledge of its use by the public, other than the customers of the Jolly Sailor, we would not support its adoption.  It has also been pointed out that there are public access points to near the shoreline and river views.  These are available from the adjacent footpath descending from Lands End Road to the Elephant Boatyard (No.2 on maps) and from the Public Hard at the bottom end of Lands End Road." 

10 Summary of the evidence

10.1 There is documentary evidence that routes A-C and B-C have existed since at least 1870. There is no historic evidence to suggest these paths continued to the foreshore (C-D).

10.2 In approximately 1935 a sign was present at point D stating that the claimed route was private. It is not known when this sign first appeared and when it was removed. There is further evidence that a "Private landing sign" was present at the Jolly Sailor between 1966 and 1971. It is not known where this sign was located, but in view of the limited area of foreshore in front of the Jolly Sailor, the sign is likely to have related to the claimed path.

10.3 In 1948, Bursledon Parish Council very specifically stated that they did not wish for the claimed route to be included as a public right of way on the first edition of the definitive map. However it is clear that in the years which followed, there was some confusion within the Parish Council about the exact location of the definitive route of Footpath 2; in 1972 it seems that the Parish Council thought that Footpath 2 "came ashore" using the claimed route.

10.4 The construction of the jetty in front of the Jolly Sailor in approximately 1972 caused some concern amongst the Parish Council, who believed it to be an obstruction to the definitive line of the Footpath 2. Bursledon Parish Council were told that the path to which they referred was not a public right of way, but were advised of their right for the path in question to be recorded as a public footpath. There is no evidence that they made an application to record this path as a public right of way in the 1970s.

10.5 The construction of the jetty appears to have effectively ended the use of the claimed route as part of a circular route, returning along the northern part of Footpath 2 (shown as a blue dashed line on Appendix 1).

11 Analysis of the evidence

11.1.1 In order to be recorded on the definitive map, a route must be capable of being a highway at common law. It is possible that a cul-de-sac may be recorded on the definitive map, but only if the terminus of the route is a place of legitimate public resort.

11.1.2 In this case, the claimed rights of way lead from a public highway, to the foreshore of the River Hamble. At point D the foreshore of the River Hamble is Crown land, over which the public have no right of way. However, it has been established in law (Williams-Ellis v Cobb and Others, 1935) that the high-water mark is capable of being a place of public resort. It is therefore considered that if there is sufficient evidence that the public have acquired a right of way over the claimed routes, they are capable of being recorded on the definitive map.

11.2 Common Law

11.2.1 The amount and degree of use of the path is not sufficient to infer a deemed dedication of the route at common law.

11.3 Section 31 Highways Act 1980

11.3.1 On 25^th June 1999, the owners of the claimed route applied for planning permission to construct an extension to the building of the Jolly Sailor which, had the proposals been successful, would have had the effect of diverting or extinguishing the claimed path. The development proposals were known to many of the users of the claimed path, and it is considered that the application for planning permission was sufficient to act as a bringing into question for the purposes of Section 31 Highways Act 1980. The twenty year period relevant to the claim is therefore from June 1979 to June 1999.

11.3.2 The number of users for each year of this period is summarised below:

Year	Number of Users	Year	Number of Users
1979-1980	9	1989-1990	8
1980-1981	8	1990-1991	8
1981-1982	8	1991-1992	7
1982-1983	8	1992-1993	7
1983-1984	8	1993-1994	7
1984-1985	8	1994-1995	7
1985-1986	8	1995-1996	7
1986-1987	8	1996-1997	6
1987-1988	8	1997-1998	6
1988-1989	8	1998-1999	6

In order to satisfy the requirements of Section 31 Highways Act 1980, there must be evidence of the use of the path by the public in each year of the twenty year period. It is considered that the level of use of the path between 1996 and 1999 in particular is too low to satisfy the requirement that the path has been used by the public at large, particularly in an urban area such as Bursledon, and on a path which also provided access to a Public House. The strength of the user evidence is further diluted by the fact that the path splits into two at point D; witnesses claim to have used both A-C and B-C.

11.3.3 Mrs Mellan has provided evidence that whilst the Jolly Sailor was in her ownership she sometimes shut the gate over the route to try and stop people from using it. Hall and Woodhouse also claim to have locked the gates over the route on occasion. However, only one witness (Miss Gillard) recalls a shut gate over the route. Therefore, there is no other single event which can be classed as a bringing into question within the meaning of the Highways Act 1980, and no other twenty year period to which Section 31 can apply.

12. 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. At the time of writing, no comments have been received.

13. Conclusions

_ There is evidence of use of the claimed path in each year between 1914 and 1999.

_ The available evidence is insufficient to infer a deemed dedication at common law.

_ The use of the path was first brought into question, within the meaning of Section 31 Highways Act 1980, in 1999.

_ The twenty year period relevant to the claim is from 1979 to 1999.

_ The number of people having used the path between 1979 and 1999 is insufficient to satisfy the requirements of Section 31 Highways Act, 1980.

_ There is no other twenty year period to which Section 31 can apply.

RECOMMENDATION

That the application for a Map M0odification Order 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 CR672 - Rights of Way Office, Mottisfont Court, Winchester