Hampshire County Council Item

Regulatory Committee

19 October 2005

Application for a Map Modification Order to record a footpath from Crofton Lane to Boyd Close in Fareham Borough

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 -

(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;

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 A local resident has claimed a short path that connects Crofton Lane to Boyd Close as a right of way. The application is recommended for acceptance on the basis that the landowner, the Ministry of Defence, acknowledged that the route was a public highway in a document dated 1991.

2. Claimant:

Mr E Beaumont

43 Crofton Lane

Hill Head

Fareham

Hampshire

PO14 3LW

3. Landowner:

Defence Estates

Operations South

Building 1/150

Murrays Lane (PP 19D)

HM Naval Base

Portsmouth

Hampshire

PO1 3NH

4. Description of the route (please see map attached to report)

4.1 The path runs from Crofton Lane eastwards for 35 metres to Boyd Close. The path consists of an unenclosed tarmac strip, 1.5 metres wide, with mown grass on both sides. At the Boyd Close end there is a standard, metal, no cycling sign attached to a lamp post.

5. Background to the claim

5.1 In the 1950s the area of land to the east of Crofton Lane was developed by the Ministry of Defence as married quarters for servicemen. The path to Crofton Lane was constructed at the same time. Over the years the path has been used by civilians as well as residents of the married quarters estate. In 1991 the Ministry of Defence acknowledged that the estate roads and the claimed path were public highways.

6. Documentary evidence

6.1 1935 Ordnance Survey map (25 inches to 1 mile)

At this date the area consists of fields forming part of the Seafield Park Estate. There are no houses, roads or paths east of Crofton Lane.

6.2 1964 Ordnance Survey map (1/2500 scale)

By this date the land east of Crofton Lane has been comprehensively developed with new houses and roads. There is a path shown on the claimed route by parallel pecked lines with no barriers across.

6.3 1977 Ordnance Survey map (1/2500 scale)

The claimed path is shown in the same manner as the earlier map.

6.4 c1985 Highway adoption plans

These are plans produced by Fareham Borough Council to show those routes that were publicly maintained highways. Boyd Close and the claimed footpath are shown coloured red indicating public status.

6.5 1991 Declaration by Ministry of Defence

On 24^th January the Ministry of Defence made a declaration, under Section 31(6) of the Highways Act 1980, to the County Council in which they denied the existence of any rights of way over their land at Seafield Park other than existing, recognised routes. On the map supplied by the Ministry is an entry in the legend which reads "A continuous brown tint indicating the extent of land over which it is recognised that the public rights exist" The claimed footpath is shown coloured brown, as is Boyd Close.

6.6 2000 Application made for Map Modification Order

Mr Beaumont submitted his application on 2^nd April, supported by 15 user evidence forms.

7. User evidence

7.1 Given that the documentary evidence provides strong evidence on the part of the landowner to dedicate a public right of way it is considered unnecessary to detail the user evidence. What is needed is evidence that the public accepted the dedication from the owner by using the path. The chart at the back of the report gives a visual picture of the length of time that the path has been in use by civilians.

8. The landowner

8.1 On 4 August 2005 the Defence Estates Surveyor provided the following information:

"Our terrier plans would indicate that the freehold of the land in question is still owned by MoD but I note that the estate roads, including the footpath, were transferred to Fareham Council for the purpose of all future maintenance."

and further in a letter dated 16 August:

"...it can be confirmed that there is no objection to the County Council making an Order to record the above as a public footpath on the definitive map."

9. Consultations with other bodies

9.1 Fareham Borough Council

No comment

9.2 Councillor T Knight - local member

"I know the footpath well and am pleased to confirm my full support for your recommendation. It is a very useful local route."

9.3 The Ramblers Association

The RA consider this path a useful link in the network.

9.4 Environment Department

No comment

9.5 Hampshire Highways

"My records, handed over to the County Council from Fareham Borough Council, show the footpath link as publicly maintainable. I have no objection to it being recorded on the definitive map."

10. Analysis of the evidence

10.1 The path has existed on its current alignment from about 1958 to the present day. During that time the path has been used by both civilians and residents of the married quarters. At some point, probably in the 1980s, the Ministry of Defence transferred the estate roads and paths to Fareham Borough Council to be maintained as public highways. This public status was formally recognised by the declaration made by the Ministry in 1991.

11. Conclusions

11.1 There is persuasive documentary evidence that the landowner intended to dedicate a right of way and the user evidence demonstrates that the public accepted that offer. The two elements combined provide a strong case for the existence of a public right of way.

RECOMMENDATION

That a Definitive Map Modification Order be made to add a 1.5 metre wide footpath from Crofton Lane to Boyd Close, Fareham.

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 CR678 - Rights of Way Office, Mottisfont Court, Winchester