Archived decisions

Hampshire County Council Item

Regulatory Committee

19 October 2005

Application for a Map Modification Order to record bridleways on Broxhead Common in the Parish of Headley

Report of the Director of Recreation & Heritage

Contact: Colin Piper Ext. 6043 [email protected]

WILDLIFE AND COUNTRYSIDE ACT 1981

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

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

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

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

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

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

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

HIGHWAYS ACT 1980

31. Dedication of way as highway presumed after public use of 20 years

(1) Where a way over 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 been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.

(2) The period of 20 years.... is to be calculated retrospectively from the date when the right of the public to use the way is brought into question....

Presumed Dedication at Common Law

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

1. Summary

1.1 The Three Counties Bridleways Group has made an application to have several routes, that cross Broxhead Common in Headley, recorded as bridleways. The application is based on user evidence which purports to show that the public has acquired a right of way through long usage. The application is recommended for refusal primarily on the grounds that there has not been 20-years continuous use of the same route, within the relevant period. There is also evidence that the landowner had no intention of dedicating a public right of way over the relevant part of Broxhead Common.

2. Claimant:

    The Three Counties Bridleways Group

    Mrs M Comber

    The Old Cottage

    Frith End

    Bordon

    Hampshire

    GU35 0QS

3. Landowner:

    Mr A Whitfield

    Headley Wood Farm

    Headley

    Bordon

    Hampshire

    GU35 8SG

4. Description of the routes

4.1 The claimed routes cross Broxhead Common as shown on the map attached to this report. In the north they start at three points: Bridleway 54 (point A), a road known as Picketts Hill (point B) and the A325 at its junction with the old road to Kingsley (point C). From these three points the routes run generally southwards and join together (at points D and E) to cross Bridleway 46 (point F) and end in the south at Bridleway 4 (point G). The only part of the claimed routes that still exists on the ground, as a recognisable path or track, is the section between B and D with a very narrow worn path between D and A.

5. Background to the claim

5.1 Broxhead Common is a large area of mainly heathland on the east side of the A325 (Farnham Road) north of Lindford. The common is bisected by the B3004 (Broxhead Farm Road) that runs between Sleaford and Lindford. The common to the west of the B3004 is owned and used by the Ministry of Defence as a training ground whilst the land on the east side of the B3004 is privately owned and partly managed by the County Council as a nature reserve.

5.2 In 1964 the character of the eastern half of Broxhead Common was altered by the then landowner who converted the middle portion of the land from heath to pasture and erected fences to separate the two. This led to a dispute over the management of Broxhead Common and its registration under the Commons Registration Act of 1965. The outcome was an agreement between all the parties that was ratified by the Court of Appeal in 1978. One of the terms of the agreement was that the owner of the common should let approximately 100 acres of the remaining heathland, on the west side of the new fields, to the County Council.

5.3 In 1980 Hampshire County Council entered into a formal agreement with the landowner to lease and manage approximately 100 acres of the common. Under the terms of the lease the County Council was to manage the site for the benefit of wildlife whilst at the same time permitting public access. The claimed bridleways run entirely over that area of land that is leased by the County Council, and which is also a registered common.

5.4 There then followed a campaign by horse riders to secure a north-south bridleway route across the common. The 1964 Definitive Map recorded three routes that crossed the common from east to west, Bridleways 4, 46 and 47, but the only north-south route, at that time, was a footpath (number 54). An application was made in 1993 for a Map Modification Order to upgrade the footpath on the basis of long use by horse riders. At the same time negotiations were taking place between the County Council and the landowner regarding the dedication of a bridleway route.

5.5 The negotiations for a dedication were unsuccessful and the County Council refused to make a Definitive Map Modification Order for Footpath 54 because there was insufficient evidence of use. The riders then lobbied for a Creation Order to upgrade the footpath and eventually the County Council agreed to make one. In the meantime the County's refusal to make a Map Modification Order was successfully appealed and the Government Office of the South East directed the Council to make the Order. There were objections from the landowner to both the Creation Order and the Map Modification Order, which resulted in a public inquiry being held into both orders in 1997.

5.6 The Inspector first considered evidence concerning the Map Modification Order because, if bridleway rights were confirmed, then the Creation Order would not be necessary. Supporting the County Council's position, he came to the conclusion that within the relevant period for consideration there was insufficient evidence of public equestrian use of the Order route to support a claim of presumed dedication. Turning to evidence for the Creation Order he concluded that "...there is massive and virtually unchallenged evidence as to the need for a north/south equestrian link across Broxhead Common" and consequently confirmed the Order which created bridleway rights over Footpath 54.

5.7 The settlement in the Court of Appeal in 1978, and the subsequent Lease Agreement between the landowner and the County Council, does not give horse riders a right of access to Broxhead Common. Although Broxhead Common is a registered common and therefore access land as defined by the Countryside & Rights of Way Act 2000, this status does not convey a right of access to horse riders. There is a right to open access for walkers only. Horse riders have a right of access for air and exercise to Metropolitan Commons but not to commons in rural districts as at Broxhead.

5.8 The present application for a Map Modification Order, if agreed and confirmed, would have the effect of establishing another north-south bridleway route across Broxhead Common as well as a link west to Kingsley. The circumstances are different from the claim for an upgrade of Footpath 54, therefore the Inspector's conclusions from the 1997 Inquiry cannot be relied upon to determine this case, but are referred to for background information.

6. The issue to be decided

6.1 The issue to be decided by this committee is whether there is evidence to show that the claimed paths ought to be shown on the definitive map as public rights of way.

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

6.3 Evidence forms and statements taken from those who have used the path or have knowledge of it in living memory can show that rights have been acquired as a result of a recent dedication at common law, or a deemed dedication under s.31 Highways Act 1980. The burden of proof in these matters is `on the balance of probabilities', so it is not necessary for evidence to be conclusive before a change to the definitive map can be made. If there is genuine conflict in the evidence, for example between the evidence of users on the one hand and landowners on the other, Members should make an order so that the evidence can be tested at a public inquiry. However, this is not a step which should be taken simply to avoid making a difficult decision.

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

7. Documentary evidence

7.1 The large-scale Ordnance Survey maps, published between 1870 and 1940, show Broxhead Common as a large area of rough pasture and furze with some paths or tracks across it. The only significant section of these paths or tracks that corresponds with the claimed routes, is between points B-D. The claim is based primarily on user evidence but there are also numerous letters in the archives which relate to this issue.

7.2 1965 Letter from Headley Parish Council to Clerk to County Council

    The letter is dated 28th February and reads in part:

    "The whole area of Broxhead Common is traversed by innumerable tracks, at least 23 of these may be counted on the Ordnance Map, which are used by pedestrians and by people on horseback and have been so used for a great number of years. The Headley Parish Council recommend that this established practice should be legalised by grading the main tracks as bridleways."

    The letter goes on to identify several routes that the Parish Council wanted recorded as bridleways. They were, what are now, Bridleways 4, 46, 47 and 54.

7.3 1971 Aerial photograph

    This is a black and white photograph that was taken in July 1971. The worn paths and tracks show up well where there is no tree cover. There is clearly a narrow path or track on section B-D-E-F and several between F-G but the section C-E is inconclusive.

7.4 1971 Ordnance Survey 1/2500 map

    This map was surveyed in the same month that the aerial photograph was taken. It shows the section B-D as a three metre wide "Track" and the section A-D-E as a two metre wide "Path" following the edge of the heathland. But there is no path or track on the map between C-E-F-G.

7.5 1978 Report to the Recreation Committee of HCC

    The report was concerned with the future management of Broxhead Common in the event that a lease agreement could be negotiated with the landowner. The report describes the current state of the Common and includes the following paragraph:

    "On the unfenced common there are numerous well-used tracks which are clearly in frequent use by walkers and riders. None of these has presently been claimed as a right of way."

7.6 1978 Decision by Court of Appeal

    Part of the decision includes the following paragraph:

    "The balance of the part of the Common ...amounting to approximately 100 acres of land shall be let...to the said County Council for the term of 20 years... Such letting shall provide...for the management of the said land by the said County Council in such a way as to conserve its scientific and landscape qualities while permitting reasonable access...for the public..."

7.7 1978 Draft Management Plan for Broxhead Common

    The County's Recreation Department anticipated taking over the management of the west side of the common and prepared this management plan which was circulated on 14th December. Under the heading "Horseriding" it reads:

    "The two official bridleways are clearly popular and well-used. There are evidently a number of other routes which are also used by riders."

    Later, under the headings "Management Proposals" and "Access" it reads:

    "It is the management intention to permit an appropriate degree of public access...The quiet enjoyment of Broxhead Common by people on foot and on horseback would seem to be compatible with the main objectives."

7.8 1979 Annotated map

    This is a large-scale OS map that has been annotated by hand by the then Conservation Officer for HCC. Against the section of claimed route D-E the officer has written "Horse path". However, there is no similar annotation for the other sections and it is not clear where the horse riders go from point E.

7.9 1980 Lease between Mr A Whitfield and Hampshire County Council

    Dated 5th March, this lease gives detail to the earlier Appeal Court judgement. In return for a 20 year lease of a designated area of unenclosed land, the County Council covenanted with the landowner as follows:

    "...not to use or permit to be used the Common or any part thereof other than for a nature reserve within the meaning of Section 15 of the said Act of 1949 and for incidental use by the public for air and exercise." and

    "To be responsible for the proper control of the Common and not to do or permit anything in or upon the Common or any part thereof which may be or become a nuisance annoyance or damage to the Landlord or his property."

7.10 1984 Aerial photograph

    This is a black and white photograph that was taken in July 1984. The sections from B-D and E-F show up very well as used tracks with some evidence of use on section D-E-C. There are four tracks or paths between Bridleways 46 and 4.

7.11 1986 Research paper written by J Rowe and M Dale

    The full title of this paper, dated 5th February, is "Broxhead Common - the case for a bridleway from the C102 south to Bridleway 46 in the middle of the common." One of the authors, M Dale, is the current applicant Mrs Comber. The paper runs to five pages and describes the history and use of Broxhead Common. On page four there is a description of the common as portrayed on three aerial photographs taken by the MOD in 1959, 1971 and 1975. An extract from this states:

    "The 1971 picture shows how the tracks diverted around the outside edge of the 80 acres that had now been fenced and cultivated...The second track from C102 Trottsford Farm can be seen around the western edge of the newly enclosed fields to exit on to the B3004 just east of Sleaford crossroads. (Section B-D-E-C on map) The 1975 photo shows how this western route has become completely overgrown and impassable..."

    The authors go on to describe their efforts to establish a north-south bridleway and say:

    "In an effort to relieve this situation...the chairman of Kingsley Parish Council, Mrs M C Dale, wrote to the Hampshire County Council, Mr Dixon, Conservation Department on 20th April 1984 to see if the western route could be re-opened as this side of the common is now being rented by the Hampshire County Council."

    The paper ends with the following paragraph:

    "Enclosed are copies of (user evidence forms) offered from some of the people who have been using these tracks across Broxhead Common over a period of 20 years and more, and who over the years as the fencing took place, were obliged to take different paths as the old ones became obstructed. It is only now when access has become impossible that it has been felt necessary to appeal to the Secretary of State..."

7.12 1988 Memo from County Recreation Officer to County Secretary

    The memo, dated 21st March, was concerned with an objection to the proposed diversion of Bridleways 4 and 46. It reads, in part:

    "Mrs Potter is, like her predecessors, seeking to use objection to this Order as a means to put pressure on Mr Whitfield and the County Council to create other bridleways in the area of Broxhead Common. As the Common is an SSSI neither this Department's Conservation Officer nor the NCC are prepared to agree to this. Indeed one of the problems of the area is the persistent use of the whole area by horse riders."

7.13 1989 Letter from Mrs M Comber to M Mates MP

    The letter, dated February, describes attempts to secure a north-south bridleway route across the common. It reads, in part:

    "The problem has become acute because the present landowner, Mr Whitfield, is about to fence off the track we all used when he fenced off the common, leaving it impossible to reach bridleways in the middle and to the south of the common, from the C102, the northern perimeter."

7.14 1989 Letter from Kingsley Parish Council to Rights of Way Officer

    The letter, dated 24th March, is again from the then Chairman and present claimant. It reads in part:

    "As you know I am extremely anxious that access to Broxhead from C102 to BW46 should be restored either by reinstating FP54 to a bridleway or by your powers to create a track."

7.15 1989 Letter from C Withers to Rights of Way Officer

    The letter, dated 2nd April, is headed "Broxhead Bridleways". It reads, in part:

    "You will have seen at the Public Inquiry on 21st March the strength of local feeling and no doubt realised that people were there more on the issue of re-instating access from C102 than with the matter under discussion. I have made a rough count of horses and ponies kept adjacent to Broxhead and Headley Wood Farm which comes to approximately 60! All these are being ridden round the local lanes instead of on Broxhead Common."

7.16 1989 Letter from S Harvey to Rights of Way Officer

    The letter, dated 7th April, reads in full:

    "On the 21st March I attended the Public Inquiry at Headley Village Hall into Bridleways 4, 46, 5 and 47 on Broxhead Common. It became clear as the mornings proceedings progressed, that the main reason for the attendance of myself and a large proportion of the public at that meeting was not to be heard or discussed. Namely - the urgent need for a public right of way (bridleway) from the road C102, near Trottsford Farm, to the bridleways on Broxhead Common 4, 46, 5 and 47 irrespective of rerouting. I have for the past 17 years continuously ridden two or three different paths on to the common from the C102 road, until recently, when they have been either gated and padlocked and barb-wire fenced to the east or overgrown with fallen trees to the west side. With no access to the Broxhead bridleways for riders from the northern side, this virtually denies us the use of these valuable paths. There is no access route from the east, the western access is via the A325 (totally unsuitable for horse riding). I therefore strongly request either the reinstatement of the existing padlocked path to bridleway or a new bridleway to connect the C102 road to BW46."

7.17 1990 Letter from Mrs Comber to the County Secretary

    The letter, dated 3rd November, was primarily concerned with the Diversion of Bridleways 4 and 46 but it also touches on the creation of bridleway rights over Footpath 54. It reads, in part:

    "...as the riding public has been fenced out of this side of the common - there is no other way to reach Bridleways 4 or 46 save by using very dangerous roads e.g. A325. ...so horse riders who have always had access...historically and geographically, have been denied their right of free passage for the last three years."

7.18 1991 Aerial Photograph

    This is a colour photograph taken on 25th August. It shows a clear track between points B-D, leading to a field, but there is very little sign of a worn route on sections A-D-E-C. There is a worn path between E-F and there are several worn paths between Bridleways 4 and 46 but not on the claimed route F-G.

7.19 1992 Letter from A Whitfield to Mrs Comber

    The letter, dated 6th October, reads in part:

    "It has been brought to my attention that you are persistently leaving gates open on my bridleways and also encouraging others to do the same...Also you are persistently using a route on the western side of Broxhead Common as a bridleway quite illegally...If this happens again, I will be seeking an injunction to stop this behaviour."

7.20 1992 Note of a site meeting

    The site meeting was held on 3rd December, between officers of Hampshire County Council and English Nature, to discuss the dedication of bridleway rights. The Countryside Area Officer who was responsible, at that time, for the management of the HCC leased land on Broxhead Common has written the following:

    "Current unauthorised use of the Common by horse riders does occur but is limited and is not creating marked damage. Some evidence of horse riding off the rights of way does exist but some of this must be attributed to the Farm Manager, who is entitled to inspect the site on horseback."

7.21 1993 Letter from I Hill to County Cllr Culver

    The letter, dated 28th October, reads in part:

    "I am writing with regard to the vital need for upgrading FP54 Broxhead Common to a bridleway for safety's sake. ...without this track, riders are forced to ride on the dangerous, surrounding narrow country lanes as there is no access for them from Picketts Hill Road C102 to the existing bridleways."

7.22 1993 Letter from E Enfield to County Cllr Culver

    The letter, dated 6th December, reads in part:

    "I am writing to convey my great concern regarding the safety of horse-riders in my family in that for want of Footpath 54 on Broxhead Common being upgraded to a bridleway, they are forced to use the twisty, narrow lanes instead, as there is no access from the north side of the common."

7.23 1993 Letter from P Etherton to County Cllr Culver

    The letter, dated 31st December, reads in part:

    "I am writing to you in support of the request to upgrade FP54 to a bridleway, or for some other access to Broxhead Common on the north side off the Sleaford to Headley road, which until recently I was able to ride. Now, with no access to Broxhead Common, I am forced to ride on the roads..."

8. User evidence

8.1 A total of 12 use evidence forms were submitted in 1998 in support of the claim. Every form has with it a signed map which shows the claimed routes in the same manner. Although most riders are claiming use into the 1990s (see chart at back of report) there is agreement in the statements from riders and land managers that use of the routes north of Bridleway 46 ceased, or was interrupted, in the 1980s, whilst use of the land south of Bridleway 46 has continued to the present day.

8.2 Ms S Burr of Alton

    Claims to have used the paths from 1986 to 1998, 50 times a year, as part of a circular ride starting and finishing at Grooms Farm (just north of Trottsford Farm). Ms Burr regards the way as public because "I have used it without any disturbance." In answer to the question, Have you always followed the same route? she has replied "When possible, often very overgrown."

8.3 Mr A Button of Frith End

    Claims to have used the path between 1981 and 1998, six times a year. Believes the way is public "As I have ridden this path".

8.4 Mrs L Chishick of Alton

    Claims usage from 1955 to 1985, 12 times a year. Believes that the way is public because "I have always used it."

8.5 Mrs M Comber of Frith End

8.5.1 Mrs Comber moved to her present address in 1971 and started riding in the area from that date. The route she usually took from her property was to head south down Cradle Lane and cut through an area of woodland called Baigent's Hill to a road called Picketts Hill. Sometimes she would gain access to Broxhead Common by using a path just south of Common Cottage or, at other times, followed a track nearly parallel to the road. Once onto the common there were a number of used tracks that enabled her to do a circular ride. Some of those routes are recorded as public bridleways, other tracks that she used are not recorded as public paths. Although she went riding by herself, about twice a week, Mrs Comber used to see lots of other horse riders using the same tracks as herself.

8.5.2 Mrs Comber does not recall there being any signs or notices on Broxhead Common in the 1970s. However, in 1991, a green notice went up at point B on the attached map and this stated "Horse riders please keep to the public bridleways" or something of that nature. At a later date other signs were put up on the common showing a horse shoe symbol with a red line through it. She remembers the horse shoe symbol being upside down and therefore it didn't mean anything to her. There were two or three of these signs but she can't remember where they were sited and they were certainly not there when she started riding.

8.5.3 One day, when Mrs Comber was out riding what was then Footpath 54 (now Bridleway 54), she was stopped by a man who she now knows as Michael Porter. Mr Porter was the land agent for the Headley estate and he did not want riders using that particular route. However, she has never been stopped by anyone whilst riding on the claimed routes on the west side of Broxhead Common.

8.5.4 Mrs Comber stopped riding the claimed routes north of Bridleway 46 in the mid-1980s. The route around the edge of the pasture quite quickly became overgrown at this time, and this problem was compounded by numerous rabbit holes, on part of the route near Sandhill Farm, which made it dangerous for horses. She stopped using the route which led to the road crossing at Sleaford at about the same time because of an increase in the volume and speed of the traffic using the main road. Mrs Comber has continued to ride between Bridleways 4 and 46 to the present day and has used several routes between these two bridleways.

8.5.5 Since the 1970s Mrs Comber has used the track that runs through Trottsford Farm, over which she has private rights, to gain access to Broxhead Common from the north. She then uses a short stretch of common before joining Bridleway 54 which connects with other routes to the south. The gate that is across a path (point B), nearly opposite the track to Trottsford Farm, was put up in the late 1980s she believes to stop Travellers getting onto Broxhead Common. This gate has not stopped her riding because it has always been possible to get round it.

8.6 Mrs S Cooper of Kingsley

    Claims use from 1973 to 1998, between 30 and 50 times a year. Mrs Cooper regards the way as public because she was "Taken on it as a riding school pupil in 1973 and have used it ever since on own horse." Her journey was from "One side of Broxhead Common to the other side."

8.7 Miss S Henwood and Miss P Kerr of Bordon

    Both ladies started riding over Broxhead Common when they moved to Fullers Vale, in Lindford, towards the end of 1964. They would approach the Common, from the south, and take a variety of routes. They would always follow well defined tracks so as to avoid rabbit holes in the bushes. There were at least three used paths between Bridleway 4 and Bridleway 46. In those days they would ride about three times a week in the company of Judith Rowe. Whilst out riding on Broxhead Common they used to meet Michael Porter, the agent for the landowner, Mr Whitfield, and exchange pleasantries with him. He didn't stop them or otherwise comment on their presence on Broxhead Common. At one stage Mr Porter was the Master of the Hampshire Hunt. They do not recall there ever being any notices on Broxhead Common to say that they should not ride there. Nor did they encounter any gates or other obstructions that hindered their riding. Other people used the common for riding and the Hampshire Hunt held their annual hunter trial there. Their riding on Broxhead decreased as time went on, partly because of an increase in road traffic, partly because they spent more time on committee meetings and exams and partly because they concentrated on competitive rides on Ludshott Common. Judith Rowe died in 1985, a short while before several riding routes were blocked on Broxhead Common. The last time they rode on Broxhead was well into the 1980s, a few years after the death of Judith Rowe.

8.8 P Hill of Bordon

    Claims use from 1971 to 1995, once a week. Regards the way as public because "I've always used it. Nobody has ever stopped me."

8.9 Mrs S Knight-Jones of Micheldever

    Claims use from 1968 to 1995, 12 times a year. Regards the way as public because "I have used it since I was a child on a pony."

8.10 Mrs J McBeath of Headley

    Claims use between 1945 and 1985, 40 times a year. Regards the way as public because "Have always ridden this path or paths since I was seven (40 years)."

8.11 Ms P Slater of Headley

    Claims use from 1979 to 1999, 156 times a year. Regards the way as public because "I have ridden on this path regularly and no one has ever stopped me."

8.12 Mrs B Thomas of Kingsley

    Claims use between 1989 and 1998, 365 times a year. Regards the way as public because "I have always used it without hindrance."

9. Evidence from land managers

9.1 Mr M Porter - former agent for the estate

9.1.1 In 1962 Mr Porter started work as the agent for the Headley Wood estate owned, at that time, by Sefton Myers. In 1970 the property changed hands but he continued to work for the new owner, Peter Whitfield, until Mr Porter retired in 2004. Between 1962 and 1970 he lived in Headley village but when Headley Wood changed hands he moved onto the estate and lived in a dwelling called "Woodside". The path shown on the attached map, between points D and E, was created by the estate, in 1965 or 66, to provide a circular riding route, that did not involve gates, for the private use of the owner. Mr Porter does not remember there being a similar path between points A and D.

9.1.2 There were informal paths or tracks across the common between points C-E-F, although the track around the western edge of the woodland, just south of point E, was not an easy one to ride because of overhanging branches. Between Bridleways 46 and 4 there was one pronounced track, which Mr Porter had widened for vehicular use, and several narrow paths. He has seen other horse riders, who were not connected with the estate, using these routes but only very occasionally. Mr Porter did not challenge these riders when the estate was owned by Sefton Myers because Mr Myers was unconcerned with public use but Mr Porter has challenged riders in the time of Peter Whitfield's ownership. Mr Whitfield did not want the public on his land. Mr Porter recalls telling Mrs Comber on several occasions that she should not be riding on Broxhead Common away from the public bridleways. He does not recall there being any signs on the common to say that riding was prohibited.

9.1.3 The field gate at point B was erected by the estate in the late 1980s to stop travellers coming in and dumping cars on the land but it was still possible to walk or ride past the gate using a gap to one side. This barrier was reinforced with ditches that Mr Porter had dug along the south side of Picketts Hill. There was a dung heap over the track close to point D which meant that this route could not be ridden, so riders used an alternative path, close to Sandhill Farm, to get to and from Picketts Hill. Over time, the tracks between D-E and C-E-F became overgrown and difficult to ride and, following the storm of October 1987, it was almost impossible to use them.

9.2 Mr S Porter - current agent for the estate

9.2.1 As a child Mr Porter lived on the Headley Wood estate because his father, Michael Porter, was the land agent for the owners; first Sefton Myers and later Peter Whitfield. Sefton Myers kept about 15 horses for the use of family and friends. After the centre of Broxhead Common was cleared of natural vegetation in 1964, estate workers cleared a path through the gorse and trees around the outside, western edge of the new fields to provide a riding route for the owner, his family and friends. This route is shown by orange dots between points A-D-E on the attached map. From E they were able to ride south through the middle of the woodland and continue on a track to connect with Bridleway 46. There were a number of tracks across the southern half of the common, between Bridleways 46 and 4, and Mr Porter remembers Peter Powell widening one of them for the benefit of Sefton Myers.

9.2.2 Mr Porter started riding in 1965 or 1966 and rode these paths, as part of a circular route, with his father. Occasionally they would see other riders who were not known to them using the paths on Broxhead. His father was aware that Mrs Comber was riding these paths but generally he turned a blind eye to this activity, although he has seen him approach Mrs Comber whilst he was with him. The path around the western edge of the common became less used after the property changed hands in 1970. The new owner, Peter Whitfield, did not ride so use by the estate was then confined to his father and his immediate family. His father was, for a time, master of the Hampshire Hunt. Mr Whitfield allowed the hunt access to his land because of his father, but he withdrew permission about ten years ago.

9.2.3 After Sefton Myers left Mr Porter remembers that a muck heap was put on the path close to the gate at point D on the attached map. This stopped use of that route and resulted in an alternative path being used by riders a few hundred yards down the road, to the west of the route shown B-D on the map. The path around the western edge of the common gradually became overgrown, partly because it was no longer being used to the same extent and partly because it was no longer maintained by the estate. It was blocked completely by fallen trees brought down by the hurricane of October 1987. His father found Mr Comber trying to clear the trees, with a chain saw, to gain access.

9.2.4 The gate across the track, opposite the entrance to Trottsford Farm, at point B, was erected to stop Travellers gaining access to the common.. At the same time ditches were dug around the edge of the common to prevent unauthorised access. Mr Porter believes this work was done in about 1987. There was a robbery at Broxhead Common in 1989 in which the burglars used this route to gain vehicular access. After that, the gate was reinforced with a tree trunk to prevent it being opened. He does not remember there ever being a gate on the short section of path between point A on the map and the road known as Picketts Hill. Mr Porter continued to live and ride on the estate until he was seventeen. He then left to go to college in 1972 but returned to the area to live in Bentley in 1982. Mr Porter took over his father's position as land agent for Mr Whitfield when he retired in 2004.

9.3 Mr P Musselwhite - Manger at Broxhead Farm

    Mr Musselwhite moved to Broxhead Farm in 1977 as the manager. From that date to the present day he has used the paths and tracks on Broxhead Common for recreational walks with his family and dogs. He goes walking on the common at least once a week and has seen other people doing the same, as well as the occasional horse rider. Mr Musselwhite remembers signs being put up by the County Council to stop horse riders using certain routes on the common. The signs consisted of a horse shoe symbol, with a red line through it, attached to low wooden posts. The signs were put up when the Council took over the management of the common, about 1980. One of those signs is still in place today although not on the claimed route (sign 4). There were at least three other signs on the common and all of these were on the claimed route. There were two either side of Bridleway 46 at point F (signs 2 and 3), with another at point G (sign 6). Mr Musselwhite is positive that there was, both at the top of the common and over by Trottsford Farm, a notice saying "Horse riders please keep to public bridleways." There is a similar notice still in place at the junction of Bridleways 4 and 5 (not on the claimed route). Until recently there was only one significant track that led north from Bridleway 46 through an area of dense scrub and trees. That track had a no riding sign on it where it left the bridleway. That track has now virtually disappeared under new growth of gorse and heather. The path that is in use today, north of Bridleway 46, is fairly recent and a little to the east of the old track.

9.4 Mr A Davidson - Site Manger Broxhead Nature Reserve

    In August 1991 Mr Davidson started work for Hampshire County Council's Recreation Department as the site ranger for Castle Bottom and Broxhead Common. He is now the site manager for Broxhead Common and other land in north-east Hampshire. He has therefore had responsibility for Broxhead Common, in one form or another, for the last 14 years. When Mr Davidson started work on Broxhead, in 1991, the light green notice that is in place at the back of the cricket pavilion was already there. This notice says "Horse riders please keep to the public bridleways". There was another, similar notice in place at the north end of the common, nearly opposite the entrance to Trottsford Farm, but that has now been removed. In the early 1990s he was aware that horse riders were using a route across the northern half of the common. This worn path was not on the edge of the common, next to the pasture fields, but closer to the road and through the middle of the woodland strip south-east of Sandhill Farm. This used route did not extend to the west to connect with the Farnham Road. Mr Davidson didn't actually see any horse riders, other than Michael Porter the land agent on one occasion, but there were signs of hoof prints along the route. Mr Davidson erected signs to stop this horse riding in 1993 or 94. The signs consisted of a horse shoe symbol with a red line through it. They were placed on low wooden posts at four locations on the common. He knows that one, possibly two, of these signs, both on the south side of Bridleway 46 are still in place (signs 4 and 5). One, on the north side of Bridleway 46 (sign 2), has probably become overgrown with gorse and he's not sure when the northern sign, at Picketts Hill (sign 1), was removed. All four signs would have been in place for at least a year. The route used by riders, going north from Bridleway 46, has gradually become overgrown and there is no longer a visible path at that location. The last evidence of riding in this area was about four years ago.

9.5 Mr A Whitfield - current landowner

    Mr Whitfield has written to object to the application. His letter not only describes the nature conservation value of the site but also includes the following paragraph:

    "Whilst I recognise that HCC have a duty to the general public to provide and maintain public access to vast areas of Hampshire, I feel that this particular area already has a comprehensive network of both bridleways and footpaths sufficient to meet the needs of any wayfarer be it mounted or otherwise. ...I strongly object to the notion that this narrow corridor of Hampshire be subjected to any further heavy equine traffic just to satisfy the whims of a handful of local jockeys. Indeed English Nature objected to proposals for new bridleways back in 1999, I feel confident that their views will not have changed on the basis that this proposal is in direct conflict with the management principles for conservation of this SSSI."

10. Consultations with other bodies

10.1 Headley Parish Council

    "The Parish Council has no objection in principle and fully supports the application..."

10.2 East Hampshire District Council

    No comment

10.3 Councillor J Filer - local member

    No comment

10.4 The Ramblers Association

    No comment

10.5 The British Horse Society

    The BHS supports this claim but has no further evidence to add to that already submitted.

10.6 Cyclists' Touring Club

    No objections

10.7 LARA

    Has no further evidence.

10.8 Environment Department

    "The proposed route transects the Broxhead and Kingsley SSSI which borders Broxhead Common south and West SINC to the west. The SSSI is designated for its dwarf shrub, dry species-rich heath which, to the east (and where the proposed public bridleway will be) is recovering following recent management of the larger scrub and trees. The proposed path crosses the largest area of dry, open heath on the common. Other bridleways cross this western side of the SSSI from west to east. These areas are distinctly more eroded and showing evidence of disturbance. It is my opinion that making this path a bridle path will allow a greater level of pressure from human disturbance onto the recovering site."

10.9 Hampshire Highways

    No comment

10.10 English Nature

    "The proposals relate to land within Broxhead and Kingsley Commons Site of Special Scientific Interest (SSSI) and Wealden Heaths Phase II Special Protection Area (SPA). Broxhead Common is notified as an SSSI for its important and rare lowland heathland and acid grassland habitats. It is likely that use of the bridleways, if instated, would result in areas of heathland and grassland along the new routes becoming trodden and poached, resulting in the vegetation dying back across the ...paths and producing expanses of bare ground. This situation can be seen on Bridleway 46 which runs across Broxhead Common. Any reduction in the extent and quality of the SSSI features...is not compatible with the objectives for this site. It is English Nature's opinion that the proposed instatement of these bridleways is likely to cause significant harm to Broxhead and Kingsley Commons SSSI. In the circumstances, if Hampshire County Council sought assent for the instatement of these public bridleways, English Nature would not be in a position to assent to the proposals."

11. Analysis of the evidence

11.1 There has undoubtedly been use of tracks on Broxhead Common by horse riders. Not only is there user evidence from the riders themselves but also there are observations from others. For example, in 1978, a report to the County's Recreation Committee described Broxhead Common as having "numerous well-used tracks which are clearly in frequent use by walkers and riders." The County's Conservation Officer described one of the routes as "Horse Path" on a map, in 1979 and, in 1988, the County Recreation Officer observed, in an internal memo, that there was "...persistent use of the whole area by horse riders." The aerial photographs of 1971, 1984 and 1991, although not providing direct evidence of use by riders, do support the contention that there were used tracks across the eastern half of the common.

11.2 In considering the acquisition of a public right of way, under Section 31 of the Highways Act 1980, that is 20 years use, it is necessary to identify when the public's use of the path was brought into question. There is a great deal of evidence concerning the locking of gates on routes to the east of the pasture but there is no evidence of locking of gates, or other actions which could bring into question a right of way, around the western side of the pasture when the claimed routes were in use. Both the landowner's representatives and the claimant agree that use of the claimed routes north of Bridleway 46 ceased, through natural causes, in the mid to late 1980s.

11.3 The agent for the landowner at that time, Michael Porter, identifies the hurricane of October 1987 as the point at which the claimed routes north of Bridleway 46 became "...almost impossible to use..." His son and current agent, Simon Porter, says that the same routes were "...blocked completely by fallen trees brought down by the hurricane." Mrs Comber stopped using this route in the mid 1980s "..because the route...quickly became overgrown at this time." This is supported by the letter, dated 1989, from S Harvey to the Rights of Way office in which she complains that "I have for the past 17 years continuously ridden two or three different paths on to the common from the C102 road, until recently when they have been either gated and padlocked and barb-wire fenced to the east or overgrown with fallen trees to the west side."

11.4 There is some evidence that riding ceased on this part of the common before 1984 and that is provided by J Rowe and M Dale (later Comber) in their research paper of 1986. The authors describe how the aerial photograph of 1975 show the western route (section B-D-E-C) "...has become completely overgrown and impassable..." and further, in 1984, they ask the County Council if this same route could be re-opened. This evidence casts serious doubt on whether there existed a useable track, for riders, in the period between 1975 and 1984.

11.5 Horse riding, on that part of the common north of Bridleway 46, did not cease completely after the hurricane of 1987. The statement from Mr Davidson acknowledges that, when he became responsible for the management of the common in 1991, there were paths used by horse riders in that area. However, the paths in use were not the same as that before 1987. Instead of riding close to the fence line the riders were using a route more in the middle of the heath and woodland. Mr Davidson erected signs in this area to deter horse riding and he claims that they have not used this part of the common for the last four years and certainly there are no signs of use today. The three letters from horse riders in 1993 all convey the firm impression that there was no access for riders from Picketts Hill at that date.

11.6 The only actions that could be considered a bringing into question, for those routes north of Bridleway 46, are the erection of "No riding" signs in 1993/4 or the application for the Map Modification Order made in 1999. The legislation obliges the highway authority to look at public use of a specific route for the 20-year period that precedes the bringing into question. For both of the above periods, that is 1973-1993 and 1979-1999, there is ample evidence, from the riders themselves, that there were no routes open and available for the whole of those time spans.

11.7 It is still possible that the public might have acquired a right of way over the section F-G because access to that route is not dependent on access from the north where the fallen trees caused most disruption. The claimed route forms a roughly straight line connecting the two existing bridleways, 46 and 4. The Ordnance Survey map of 1971 is not helpful in determining the precise route used because none is shown between those two bridleways. The three aerial photographs dated 1971, 1984 and 1991 all show a number of tracks connecting the two bridleways. The 1971 photograph shows four possible routes between 46 and 4, the 1984 photograph shows one major and possibly two minor routes and the 1991 photograph has three of four possible routes. There are still numerous routes in this locality today although not entirely on the claimed route. The used routes that appear on the aerial photographs are shown on the attached map.

11.8 Given the variety of options that might have been available to horse riders it is difficult to identify a particular route that has been consistently used, over which the eleven riders might have acquired a right of way. The pattern of tracks, as shown on the three aerial photographs, amounts to users wandering over a large area rather then use being confined to a specific route.

11.9 There is also evidence that the landowner had no intention to dedicate a public right of way over his land in the 20 year periods under consideration. This evidence can be found in the Lease Agreement dated 1980, between Mr Whitfield and Hampshire County Council, and the letter from Mr Whitfield to Mrs Comber dated 6th October 1992 (paragraph 6.19).

11.10 The lease places an obligation on the Council "...not to use, or permit to be used, the Common or any part thereof other than for a nature reserve...and for incidental use by the public for air and exercise" and "...not to do or permit anything in or upon the Common...which may become a nuisance, annoyance or damage to the Landlord or his property." By this document that landowner stated his intention that public access should be "incidental" to the management of the land as a nature reserve and that the Council should not permit any activity that damaged the landowners interests. It is reasonable to allege that the establishment of a public right of way would be contrary to the interests of the owner.

11.11 Recent case law, most particularly Regina v Secretary of State for the Environment, Transport & The Regions ex parte Dorset County Council (1999) and Godmanchester Town Council and others v Secretary of State for Environment, Food and Rural Affairs and others (2004) both heard in the Court of Appeal, have established that evidence from a landowner, of an intention not to dedicate, does not necessarily have to be communicated to the users of a path. The evidence does have to be contemporaneous with use of the path, that is within the 20-year period, and it has to be overt. The lease agreement fulfils the last two requirements therefore the officers take the view that any claim on the leased area of Broxhead Common would fail because of this evidence.

11.12 The letter of 1992 is a more obvious statement of the landowner's intention not to dedicate bridleway rights. Although the letter is directed at an individual horse rider it does, nonetheless, fulfil the requirements of recent case law in being within the relevant period of use and by being an overt declaration.

12. Conclusions

    The following conclusions apply to sections B-D, A-D-E and C-E-F.

12.1 Horse riders had been using several routes across Broxhead Common.

12.2 This riding activity was interrupted by encroaching vegetation and fallen trees in the mid to late 1980s.

12.3 The riding activity started again after the hurricane of 1987 but on different routes to those used before the storm.

12.4 Use of these alternative routes ceased in the late 1990s following the erection of notices by the site manager.

12.5 The right of the public to use these paths was brought into question by either a) the erection of signs in 1993 or, alternatively b) the application for a Map Modification Order in 1999.

12.6 For either of the relevant 20-year periods, that is 1973-1993 and 1979-1999, it is not possible to identify a route that has been used without interruption.

12.7 There is insufficient evidence for the acquisition of public rights through a common law dedication on any route.

    The following conclusions apply to section F-G

12.8 Horse riders could have used several routes between Bridleways 46 and 4.

12.9 There is no act that could bring the right of the public to use the route into question other than the application for the Map Modification Order in 1999.

12.10 The relevant 20 year period for consideration is 1979 to 1999.

12.11 Within this 20 year period there is evidence that 12 riders used the tracks.

12.12 Users were riding a number of routes rather than confining their use to one specific track.

12.13 The user evidence is dissipated over a number of tracks between bridleways 4 and 46.

    The following conclusion applies to all claimed routes

12.14 There is evidence that the landowner had no intention to dedicate any rights of way, over the leased area of Broxhead Common, in the period after 1980.

RECOMMENDATION

That the application for a Map Modification Order, to record bridleways across Broxhead Common, 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 CR665 - Rights of Way Office, Mottisfont Court, Winchester