Hampshire County Council Item

Regulatory Committee

19^th October, 2005

Application for the addition to the Definitive Map of a Footpath in the Parish of Horndean

Report of the Director of Recreation and Heritage

Contact: Sylvia Seeliger, Ext. 6349 [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 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 a way as a highway presumed of public use for 20 years

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 for 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 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

This is an application for a footpath in the parish of Horndean, from Down Road to Horndean Footpath 17, at Lith Avenue. The claim is supported by a number of user forms and statements showing use in excess of twenty years by people living in Horndean. The claim is recommended for acceptance.

2. The Route

The claimed path is not recorded on the Definitive Map. It begins at Down Road, on Stubbins Down at point E on the plan, and runs in a southerly direction up a hill to cross the end of Lith Lane (point D) and pass between two properties called Lith Cottage and Three Bears (point C to point B). The part of the way passing between these properties has been blocked off. The path then continues in a south easterly direction along a track with a gravel surface, with a width of 3 metres, which meets Lith Avenue, where it joins Horndean Footpath 17. The total length of the claimed path is 732 metres.

3. The Applicant

The application, made in 1999, was signed by Mr. B. Worrell, of 10 The Vale, Horndean, PO8 0HD. It was accompanied by eighteen completed user evidence forms, and a number of maps and other documents in support of the claim.

4. The Landowners

The owners of the land affected by this claim are Horndean Parish Council, of Tyfield House, Blendworth Lane, Horndean, PO8 0AA, and the late Mr. A. Greenwood, of 7 Coombs Close, Horndean, PO8 0HE. Mr. E. Holmes, of Three Bears, Catherington Lith, Horndean, PO8 0EZ claims an interest in the section of the track from B to C on the grounds of adverse possession.

5. Consultation

The following persons and bodies have been consulted about the claim, East Hampshire District Council, Horndean Parish Council, Mr. E. Holmes (owner of adjoining land) the local Member, the British Driving Society, the British Horse Society, the Trail Riders Fellowship, the Byway and Bridleway Trust, the Open Spaces Society, the Ramblers' Association, LARA, The Council for the Preservation of Rural England, Hampshire County Council Highway Management, County Planning Officer and the Rights of Way Area Officer (East). At the time of writing, the following responses have been received:

5.1 The respondent for LARA has no information to offer.

5.2 Hampshire County Council Highway Management has no objection to the proposal..

5.3 The correspondent for the Trail Riders Fellowship is in support of the addition of the claimed route to enhance the local rights of way network, but can offer no additional information.

5.4 The local Footpath Secretary for the Ramblers' Association comments that the path exists as a wide permissive track that is well used by members of the public. He also draws attention to the blocked section of path between the two properties. He is in support of the claim, which would formalise as a public right of way the claimed track, and would serve the purpose of linking the top and bottom portions of Catherington Lith. It would also `complete a network of paths throughout the reserve and provide the shortest direct route between the heavily built-up area in north Horndean to Catherington Down and Church'. He further comments `The HPC reserve at Catherington Lith is a lovely oasis of accessible woodland that can be readily enjoyed by local inhabitants and is a credit to the Parish. Formalising the present Claim will complete the linking of this treasure'.

5.5 The County Council's Development Control Officer has no objection, in principle, to the proposal.

The other consultees have not yet responded at the date of the preparation of this report.

6. The issue to be decided

6.1 This Committee is required to decide whether or not the evidence described in this report shows that a public right of way subsists, or is reasonably alleged to subsist, over the claimed route.

6.2 Any changes to the Definitive Map must be based on evidence of the history and past use of the path in question and must reflect public rights that already exist. It follows that the Map must not be amended simply because such a change would be desirable, or instrumental in achieving another objective. Neither should such a change be avoided for the opposite reason. If Members are satisfied that a public right of way of a particular description exists over the claimed route, then a map modification order should be made.

6.3 Any public rights of way found to exist from an examination of the evidence are not lost merely through disuse. Unless stopped up by due process of law, any rights previously dedicated will still exist, even if they are now neither used nor needed. This evidence must be looked at as a whole, it being unlikely that a single document or map will provide sufficiently cogent evidence to justify a change to the Definitive Map and Statement. This type of evidence may disclose rights other than those claimed by the applicant, and the County Council is under a duty to record such rights as are found to exist, even if they are not claimed by the applicant.

6.4 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 appropriate only if an order could otherwise properly be made, and it is not a step which should be taken simply to avoid making a difficult decision. Officers consider that there is such a conflict in this case.

6.5 The originals of some 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 Rights of Way office, Mottisfont Court, as are witness evidence forms and statements. Members are urged to inspect these, or the originals, when considering this report.

7. Historical and Documentary Evidence

7.1 The early commercial maps for this area (Taylor, Milne and Greenwood) do not show a route in the same position as the claimed path. Neither does the first edition of the one-inch Ordnance survey map of 1810, or the Tithe Map of 1838.

7.2.1 Forest of Bere Inclosure Award Map, 1816, by George Barnes (HRO Q23/2/21)

Inclosure is the name given to the process whereby land was taken out of a communal, or common farming system and allotted to individuals who subsequently retained sole ownership of their individual parts of it. It had a major impact on the landscape. Large open fields, previously consisting of individual strips or blocks were re-allocated into individual units, and fenced. The waste or common land was similarly hedged for fenced, allowing for improvements to be made by the new owners.

7.2.2. During this process, account had to be taken of the public roads and other highways crossing the land subject to inclosure. Consequently, inclosure evidence is one of the few historic sources that can prove the exact status and location of highways.

7.2.3. Over three thousand aces of land, common and down, in Chalton, Catherington, Clanfield, Blendworth and Idsworth, were enclosed in 1816. The Commissioners at this enclosure set out seventeen public carriage roads at thirty feet wide, fifteen private roads and driftways at a variety of widths, two public bridleways at six feet wide, and seven public footways at six feet wide. One of these is the present day Horndean Footpath 18, which was known as the `Church Path' and is now Lith Lane. Catherington Lith is shown, but there is no path which would equate to the claimed route.

7.3 Map of Jervoise Estates, c.1823, 6M63/8

Neither the awarded public footway from Catherington Church, or any equivalent to the claimed path, is shown on this map.

7.4 Ordnance Survey County Series maps circa 1870-1930s

The four editions available to us show a route approximating to the public footway set out in the enclosure of 1816 - the path shown on the Ordnance Survey maps hugs the eastern edge of Catherington Lith more closely than the awarded footpath. Of the claimed route, only the section that passes between the two properties from B to C is shown, with a solid boundary on the north west side and a pecked boundary on the south east side. This is shown on all four maps. No other part of the claimed path is shown. Because of the care and more advanced techniques employed by the Ordnance Survey, these maps are good evidence of the physical existence of part of the route on the ground, though it does not help us with the status of the section of the claimed route shown. These remarks also apply to the later Ordnance Survey maps, discussed below.

7.5 Copy of map included in deeds of property on Lith, 1934 (supplied by Mr. E. Holmes)

This map shows the disputed section of the claimed path, between B and C, shaded green, and then continuing south westwards, and is strong evidence of what the vendor considered to be the rights of way associated with the property being conveyed. It is described as `a full right of way over the twelve feet roadway and a strip of land fifteen feet in width reserved as a roadway both shown and coloured "Green" on the said plan for the owners and occupiers of the several properties coloured "Blue" on the said plan'. There are ten properties shaded blue, and includes both Lith Cott and what is now Three Bears. The other five properties are at four different locations on the Lith. The track between the two properties cannot have belonged to either of them, otherwise there would have been no need to grant them a private right over it. The public footpath, Horndean Footpath 18 or `Church Path' is shown, coloured yellow, and this is described as a public right of way. The section of the path between B and C is not described as public in this conveyance.

7.6 Extract of Ordnance Survey Maps dated 1968, 1973 and 1987-1989 (supplied by claimant)

These maps show the claimed path from point E, through points D, C and B, and part of the path towards A.

7.7 Black and white photographs from mid 1960s to mid 1970s (from claim file)

A series of black and white Polaroid photographs were in the claim file, and these date from approximately the mid-1960s to the mid-1970s, and may have been taken in connection with a dispute about the laying of water main pipes to Lith Cott, Three Bears and Auburn in 1970, when the surface was trenched and re-instated. It is not known who took them. These have been numbered, and three have annotations on the reverse. Details are given below:

1. This shows a hand-painted sign, with dark letters on a light background. It is lying in the grass near a fence. The wording is `PRIVATE TO "LITH COTT" AND "THREE BEARS" FOOTPATH ONLY'. The word `TO' is slightly displaced, to the right of an area where previous lettering seems to have been partially obliterated. The reverse of the photograph has been annotated `Catherington Lith R. of W.'

2. This was taken during the winter months, and shows a long straight stretch of Horndean Footpath 18, with a chalky surface. There are some potholes in the foreground, and it looks well worn.

3. The next photograph shows the same track, with a similar appearance, looking towards a track branching to the left in the distance. This shows as a light-coloured scar.

4. The annotation on the back of the fourth photograph is `Hollybank 150/160 yds T/macadam 20 yds concrete hips'. This shows the entrance to the property still known as Hollybank, to the south east of Lith Cott and Three Bears. An entrance has been cut from Footpath 18, and a mail box and sign next to it are visible. These have light letters on a dark background. The mail box has `mail' written on the side of it, and the sign has `Beware of the Dog', what is possibly `No callers' and some wording that may be `mail in box'. The track curves on in to the distance on the right hand side of the photograph.

5. This photograph shows Footpath 18, in the vicinity of Lith Cott and Three Bears. An entrance has been cut up a slight slope towards the properties, leaving a triangle of scrubby land, with another entrance to the path between them. Three Bears shows as a low building on the left hand side of the photograph.

6. The final picture seems to have been taken from the apex of the triangle, by Three Bears. There are posts and sheets of boarding in the foreground. Point C is clearly shown in the middle ground, with a dense hedge to the south of Three Bears. Because of the angle that the photograph is taken from, it is not possible to see what type of hedging is on the other side of the track. It does not appear to be blocked, though there is what appears to be a ladder, and pieces of wood, on the ground within its width. This photograph is also annotated `Catherington Lithe R. of W.' on the back.

7.8 Correspondence from Rights of Way Parish Files, 1969-1986

The correspondence covers a period between 1969, the date the section between B and C was closed off by an adjoining landowner, and 1986, when a local man Mr. Merryll referred to the 22 people who had used the path for over 20 years in the 1960s. This correspondence is summarised in table form at Appendix 1. It is clear that both Horndean Parish Council and Hampshire County Council were of the opinion that the public had acquired footpath rights on the claimed paths on the Lith and that it was a formality for them to be added to the Definitive Map. This was to be done at the next review, but the review process was abolished by the provisions of the Wildlife and Countryside Act 1981 before the paths could be added to the map.

7.9 Publicity Leaflets for Catherington Lith (1990s)

The first leaflet is an A4 sheet copied on both sides and folded. It has a location map and the Countryside Code on part of the back. There is information about the history of the Lith and the management plan, plus a more detailed map of it. The public rights are way are shown by a broken line, while the permissive paths are shown by a dotted line. The claimed route from A to B is shown as a permissive path. The second leaflet, dated 1993 is coloured, and has nine coloured photographs in it, two of them showing the activities of the volunteers. It was published by EHDC. On its back cover is the following sentence - `Several new "permissive" paths are being constructed to make access easier, but overall the e emphasis is on informality - the Lith is not seen as a formal Country Park'. No text on either leaflet explains the meaning of the word `permissive' or makes it clear that this permission could be withdrawn at any time.

8. Analysis of the historic and documentary evidence

8.1 The mapping evidence shows that the section of the claimed path between B and C was a topographical feature from the 1870s onwards. The rest of the route is shown on later Ordnance Survey maps from 1968.

8.2 A photograph from the late 1960s shows a sign which refers to `Private' and `footpath only' between Lith Cott and Three Bears. We do not know exactly from which point, and when, this photograph was taken, or how long the sign was in place, or precisely where it was placed. The sign in itself could have been a bringing into question of the public's right to use the path. Without knowing the date when it was in place, the sign cannot be used as the basis for a consideration of the claim under Section 31 of the Highways Act 1980. Another photograph clearly shows the section of the path between B and C. Its full width appears to be available for use, though there is debris and wood lying around both in front of it, and within its width. These photographs are useful to show what the path from B to C and the surrounding land looked like, and to illustrate that someone had placed a sign relating to the claimed path in the vicinity of the two properties. However, because it is not known when the photograph was taken, and there is no other information available, their usefulness is limited.

8.3 The deeds indicate that, in 1934, the section of the path between B and C was not considered to be public, and was subject to the grant of a private right of way for all purposes for ten properties on Catherington Lith.

8.4 The correspondence from the parish files is useful as it provides a context for a consideration of the user evidence that is available, particularly as it dates from the first documented challenge to the public's right to use the claimed path. It also provides an indication of how the Rights of Way Officers in 1969 viewed the quality of the evidence, in that they were prepared to add the path to the Definitive Map at the next review, and therefore must have had confidence in it. The review process was open to public scrutiny. The Draft and Provisional versions of the successive Definitive Maps were sent out for consultation with parish councils, and then advertised, allowing for objections. Not all rights of way added at review would survive the process to be included on the Map.

8.5 The historic and documentary evidence is helpful on the existence of the track, and the parish file material provides useful background material for the 1969-1970 user evidence forms, where the answers are generally very succinct.

. .

9. Witness Evidence

9.1.1 There are a number of user evidence forms, which appear to have been completed following two separate closures of the path between B and C.

9.1.2 User evidence forms from 1969 and 1970

A bringing of the public's right to use paths on Catherington Lith occurred in 1969, when Mr. Nicholson, owner of land adjoining part of the path, closed off the section from B to C with barbed wire and hedge trimmings. There are a number of user evidence forms in the file, all filled in during 1969 and 1970. These forms are in two formats, both duplicated by stencil. Unfortunately, compared to modern forms, these are not ideal for eliciting information from members of the public, and these witnesses sometimes give terse answers. A decision was taken not to try to contact these users. The forms are over 35 years old, and it was felt that many of the users would have moved to different addresses, or might not still be alive. None of the forms from 1969 and 1970 are accompanied by maps. Details of the forms are presented in Appendix 2.

9.1.3 Form 1 has a covering letter dated 14^th May 1969, and refers in its title to the path between Three Bears and Lith Cottage. The form itself is headed `Number of Way on Rights of Way Map or description if not shown on map'. Witnesses have annotated these forms accordingly. It appears to be a response to the initial closure of the section of the path between B and C by Mr. Nicholson, of Lith Cott.

9.1.4 Form 2 contains verbal descriptions of four routes, and corresponds with the map included in the letter of 6^th April, 1970 from Horndean Parish Council. These are:

(1) `the already existing and well established access to Catherington Lith, southern end, which is a natural extension westwards of Down Road. Concrete slabs have been position for ease of access by vehicles'

(2) `over the route and following the direction of the present Lith Crescent [the claimed route between B and path (1) above] Vehicles of sizes out about ten feet wide have regularly used this path, and horse and pedestrians have also used it down through the years'

(3) `Over the route and following the direction of Lith Avenue. Vehicles, pedestrians and horses use this regularly, and the usual footpath indication on O.S. Sheets can be seen on the O.S. Sheet LXVIII-6' [shown on present maps as a pecked track marked `path' and `track'].

(4) `A connection to join footpaths No. 18 and 17 from the 10 foot wide path existing between Three Bears and Lith Cottage. The connection to follow a line on the Lith side of the fencing separating fields 281 and 296 to a junction with No. 17'.

This seems to be a more considered approach to the question of public rights of way on Catherington Lith, since the disputed section is really not able to stand alone as a public right of way, and forms a critical link between existing rights of way. The routes used by the witnesses have been set out as an introduction, and give a context for the answers.

9.1.5 The questions are largely the same on both forms. There are twenty one examples of Form 1, and thirteen examples of Form 2. Because no follow-up interviews were conducted, any consideration of the acquisition of public rights on these routes by 1969-1970 has to rest on the information contained in these forms. All those forms of Form 2 type addressed all four routes summarised at its start, unless otherwise indicated.

9.1.6 There are 36 forms dating from 1969-1970, one of which is signed by a married couple. It seems that 4 people were using the paths to access to their plots, including Mrs. Webster who used them to look after the goats she had on her plot. P. Hearson had a connection with a landowner (who this is is not specified) by having a part-time job in 1959. There were no stiles or gates on the disputed section, no-one reports having sought permission to use the claimed routes, and there are references by Mr. Ness and Mr. Evershed to the use of barbed wire to close off the section from B to C in April 1969. All the comments about being stopped and obstructions relate to this closure. B. James was not stopped until the fence was in place, and Mr. Cochran refers to what may be previous obstructions on the disputed section which were `removed after representations'.

9.1.7 Even though Form 1 is ostensibly concerned with the path between the two properties, users report walking to Catherington, to visit the Church or the pub. Others walked from Horndean to Catherington, and vice versa, or to walk on the downs, using the paths. There are 8 forms where some of the use could be categorised as private. Mr. Ness, R. Sweetenham, Mr. Robinson and Mr. Short describe some use that might be described as private, such as going to their plots, or visiting friends. leaving 24 where the users did not exercise private rights.. References to being stopped and finding obstructions are concerned with the section between the two properties. Three witnesses, the May family, talk of permission or admission to the woodland or the Lith itself. This permission did not seem to relate to the paths, but to the woodland.

9.1.8 The surviving material from 1969 and 1970 includes a form filled in by Mr. Harry Heath, who was the farmer at Five Heads Farm. This is dated 5^th June 1970. It is the only indication of what a landowner in the area thought about the claim. There is no map to indicate the extent of Five Heads Farm at this time. In answer to the question `have you known the above ways as public?' he stated `At no time since 1917,' and `it has never existed'. Further, he stated that he had `ordered...back' any people that he saw `on foot during 1939-45 war'. A handwritten statement at the bottom of the form says `The public have never had the use of the paths as suggested by this surmise in 1, 2, 3, 4. Previous to 1918 these suggested 10 ft tracks were the private tracks belonging to Five Heads Farm which at that time reached as far north as Snells Corner, the then tenant then bought the Farm, and during the next 5 years disposed of all the land north of the Lith, including the Lith, and since that time I have maintained a barbed wire fence to the south and west of the Lith, as tenant to 1948, and as owner since that date.'

9.1.9 Because it has been decided not to try to trace those people who filled in forms in 1969-1970, Mr. Heath has not been asked about the precise details of his challenges to people using paths at the Lith, or to confirm the dates when the tenant bought Five Heads Farm and disposed of land, including the Lith. It seems from Mr. Heath's account that the Lith was sold off from Five Heads Farm in the five years after 1918. Then Mr. Heath became first tenant, and then owner of Five Heads Farm, now not including Catherington Lith. He says he has maintained a fence on the south and west of the Lith, thereby excluding it from his own holding, until the time he filled in the form. If this reading of his statement is correct, the Lith had been separated from Five Heads Farm at some time probably before 1923, and any action that Mr. Heath took in turning people away from the paths on the Lith would not act as a demonstration of an intention not to dedicate. There are two reasons for this. He appears not to have been the owner of the Lith during the relevant period 1949 to 1969, and only the freeholder of land can carry out actions to show that there is no intention to dedicate. In any case, the challenges Mr. Heath made between 1939 and 1945 are outside the period 1949 to 1969, which would be the relevant period for a bringing into question by Mr. Nicholson in 1969.

9.1.10 There is no indication of how the owner of the land over which the claimed path runs managed it, or demonstrated his or her reaction to the public use of the path between the years 1949 to 1969. There is, therefore, no evidence that the landowner did not intend to dedicate the path as a public footpath during this period.

9.2.1 User evidence forms from 1999

A second bringing into question of the public's right to use these paths occurred in 1999, when another adjoining landowner, Mr. Holmes of Three Bears, also closed off the section between B and C. This action gave rise to the present claim, which was accompanied by 18 completed user forms. Additional statements were taken from many of these witnesses, as well as three other users. Details of these are given in Appendix 3.

9.2.2 The spread of use in these later forms is from the early 1950s, with use of the section B to C ending in 1999, when it was closed off by Mr. Holmes. Witnesses report continued use of the available sections of the claimed route to the present day. In subsequent interviews Mr. Worrell, Mrs. Green, Mr. and Mrs. Hales, Mrs. Harper and Mrs. Ray also report a further attempt by Mr. Holmes of Three Bears, in 2002, to shut off the track at point D by dumping rubble across it, though the obstruction was short lived.

9.2.3 Mr. Butler used the claimed way both to access his plot and for recreational use, and the case is similar with the late Mr. Greenwood, and with Mr. Worrell the claimant. Mr. Worrell was actually the owner of some of the land the path passes over until he sold it to EHDC, and between 1983 and 1988 there were gates at E and halfway up to D, to keep the horses in the paddock. While he owned this piece of land, none of his use of the section of the path that ran over it can be counted as public. None of the 18 other users report the exercise of private rights. Thirteen users report seeing a gate, referring to the gate which is still in place at the property known as `Deer Leap', towards the southern end of the path. This is a substantial gate across the way, with a pedestrian side gate, and is designed to deter vehicles from driving up it. Other references are to gates across the path at points B and C. Two users report the presence of signs giving information of some sort, while ten report notices of the `Path closed' variety. Mr. Carter, who started using the path in the early 1950s recalls the barbed wire across it, but could not pinpoint exactly when this was. Mr. Butler also recalls a fence in the 1960s. Three people remembered a vehicle being put across the track at point C, and five others mentioned obstructions preventing use.

9.2.4 All witnesses report seeing others while using the claimed way. The Lith is obviously very popular with dog walkers, and all witnesses report seeing others on foot on the claimed path. This reflects the balance of user in the forms from 1969 and 1970. Use has also been made by cyclists, since thirteen witnesses report seeing people with bicycles on the path. There are five people who report seeing horse riders on the path, and only one who has seen vehicular use, which may have been in pursuance of a private right.

9.2.5 Not all the users were personally stopped from using the section of the path between B and C, but word went round that there were obstructions, and some users stopped trying to go through that way. The majority of those interviewed still walk those sections that are open and available for use. Eight users report walking the path on an almost daily basis (Mr. Allen uses the path twice a day), and fifteen users have walked the path between 150 and 300 times a year. It is clear from these reports that the owner of adjoining land, Mr. Holmes, took it upon himself to prevent users from passing between his property and Lith Cott next door in August 1999. The loss of this linking section of path has been compensated for by the creation of a path, up a steeper part of the slope, to the south west, under the transmission line, allowing continued access to the remainder of the claimed path.

9.2.6 Having looked at the contents of the user evidence forms, the recent management of Catherington Lith must be examined, to provide a context against which the use must be viewed.

10. Present and previous landowner evidence

10.1 The current landowners of Catherington Lith have put forward a statement. Other statements, from representatives of previous owners, and from an adjoining landowner, are also presented, along with a statement from a person involved with volunteer management of Catherington Lith.

10.1.1 Ownership and management of Catherington Lith

Catherington Lith was shown on the enclosure award of 1816 (discussed above at 7.2) as being part of an allotment to the Trustees of the late Thomas Clarke Jervoise. By the time of the Tithe in 1842, it was in the hands of Sir Samuel Clarke Jervoise, and was depicted on the map as an area of woodland not traversed by any tracks. A leaflet published by East Hampshire District Council (EHDC) in 1993 has this to say about the Lith: `it was a mixture of woodland and pasture, managed for timber and grazing until about 60 years ago. Around the beginning of the Second World War it was split up and sold as nearly 200 "leisure plots", most of them very small. Many of these had huts and shacks erected on them, initially for use as temporary accommodation during the bombing of Portsmouth, and subsequently as holiday or weekend retreats. Most eventually fell into disuse, and the plots became overgrown and the huts derelict.' The leaflet goes on to describe the Lith as an area of informal recreation for local people.

10.1.2 Some of the land on the Lith was reputedly in the ownership of a Mr. Charles Douglas prior to the Second World War. Mr. Douglas is said not to have kept accurate records of his landholdings, which has led to a deal of confusion and conflicting claims about the ownership of that part of the claimed route between B and C. A Land Registry search indicates that the majority of the land over which the claimed path passes is now in the ownership of Horndean Parish Council, who purchased it on 18^th November 2004 from the previous owners, East Hampshire District Council. Between E and D, some of the land belongs to the late Mr. Greenwood, and the section between C and B is not registered. Mr. Holmes, the owner of Three Bears, adjoining the claimed path, has attempted to register the track as his own property, but has not succeeded. In a letter from the Portsmouth District Land Registry, dated 20^th February 2002, the Assistant Land Registrar noted `there is certainly nothing in the deeds that are in the Registry's hands at the moment that makes any reference to, or gives you any ownership or other rights over, such land. Further, you have never produced any other document that does either'. The Assistant Land Registrar then referred to the conveyance discussed at 7.5, as being the only document that gave Mr. Holmes any rights, and these were private rights. [The granting of a private right of way in a conveyance to these two properties implies not that they own the track, but that someone else owns the track and is granting the owners of those properties a right to use it.]

10.1.3 East Hampshire District Council have also attempted to register the section B to C, without success. EHDC applied to the Land Registry in 1989 to register their ownership of the land, based on a conveyance between E. and R. Douglas, and EHDC, made in March of that year. This conveyance states that `the Vendors do not know what land they own, in as much as the late Charles Douglas did not keep proper records of the land which was acquired by the late Charles Douglas and do not know what parts of it are in their ownership'. This confusion about the precise extent of the land in Charles Douglas' ownership meant that any plan produced by the Land Registry of the extent of the property could `have no validity' (letter of 8^th November 1989). A major factor was the selling off the plots independently from roadways, which were never included in any sales, only the right to use them. The Land Registry could not detect any valid pattern in the sales, and concluded that EHDC had not demonstrated clear legal title to the track or undisputed possession of it. EHDC made another unsuccessful application in 2000. Mr. Holmes's application to register title in this land on the grounds of adverse possession was rejected by the Land Registry in 2002. It seems, therefore, that if anyone owns the section of track between B and C, it is Charles Douglas. However, his poor record keeping means that no-one is able now to conclusively prove his ownership.. Until the matter of who owns the track from B to C is tested in the courts, there is no-one who can carry out actions with regard to that part of the claimed path between points B and C that can demonstrate a lack of intention to dedicate.

10.1.4 The ownership of the other sections of land over which the claimed route runs is not in dispute. The late Mr. Greenwood, owner of the section between E and D, filled in a user evidence form, and there is no evidence that he did not intend to dedicate a public right of way across his land. His widow does not wish to put any information forward in relation to the claim. Mr. Worrell says, in his statement, `Mr. Greenwood did not stop anyone or object to anyone using the part of the path over his land', though he did fence the path off in 1999 to keep people on the correct line, after the problems with the section between B and C started.

10.1.5 The rest of the land over which the claimed path passes is owned by Horndean Parish Council, who purchased it from East Hampshire District Council. Statements have been obtained from representatives of the current landowner, from two Countryside Managers of EHDC, and from a member of the Catherington Lith Volunteer Group. These will provide a view of how the Lith has been managed since the 1990s.

10.1.6 Mr. Robin Truscott, former Countryside Manager for EHDC, began managing the Lith in about 1990, when the Council set up a Countryside Section. He was involved with this land until 1997, latterly as Countryside Co-ordinator. The Lith had been subdivided since the Second World War into a multiplicity of plots, of varying sizes, most of which had no deeds, or records of sales. The plots had cabins or other structures on them, many in a derelict condition. EHDC began a process of compulsory purchase between 1995 and 1997, along with clearance of these structures. This was a major undertaking. People were accessing the Lith on foot, and the claimed route `was used on a regular basis by dog walkers, young people and young families from the surrounding housing. Only a very small percentage of users came from further away'. Mr. Truscott says that D to E was never used, as the whole area was fenced off. This is echoed in Mrs. P. Blackwell's statement; in 2001, she described this part of the path as having fallen into disuse some years before. The path up the slope under the transmission line was put in by volunteers in the mid 1990s, to help people access the site, which was being developed as a local amenity. Mr. Truscott describes the gap between Lith Cott and Three Bears (B to C) as not a single boundary, and very overgrown. Mr. Truscott began negotiations with the adjoining landowners to establish this as a permissive path, and to formalise the desire by people to walk between the two properties. It was felt that there needed to be a properly circular route on the Lith. Mr. Truscott used the approach that people were going to walk there anyway, and by making the path permissive, the process could be managed. There were indications that people had tried to use the path despite its overgrown state. If there were problems, then the route could be closed, though `they would have to show that there were problems before we took away the public benefit. We were trying to protect Mr. Nicholson and Mr. Holmes from undesirable use, and took a pragmatic view that the site would go downhill if it was not managed'. These negotiations were on a permissive basis because no-one said they believed there to be a public right of way between B and C. The path was cleared by volunteers, and then resurfaced with scalpings and half-round logs in 1995 or 1996. There were no problems reported by landowners or residents, and no complaints from Mr. Nicholson or Mr. Holmes. Mr. Truscott refers to the difficulty in establishing ownership of this section of the claimed route, though he felt that it was more likely that it belonged to Lith Cott, because of the nature of the fencing on that side. A publicity leaflet for Catherington Lith (undated, but probably from the early 1990s) indicated that EHDC saw the claimed route as permissive in nature, and `indicated this to the public through the leaflet'. Few people claimed ownership of the route, though EHDC had tried to find owners and deeds for the plots. EHDC had no dealings with the original estate. The compulsory purchase of the land went to a public inquiry, `at which no-one turned up'. Explanatory boards were put up on the claimed route, along with notices that were explanatory of the management of the Lith. There were open days on the Lith, school visits and volunteer days. `Most people using the Lith were not interested in who owned it, or whether the path was public or permissive.' There were no complaints about the management of the site. It was not made clear to the public that this permission could be withdrawn at any time `because we did not anticipate that there would be any problems'. Mr. Truscott, or his colleague John Ockenden, were on the Lith almost daily. Nothing was done to stop people from using the paths.

10.1.7 Mr. Truscott's successor, Martin Healey, has also given a statement. Mr. Healey is the present Countryside Co-ordinator at EHDC, and took on responsibility for Catherington Lith in 2003. Horndean Parish Council took over the ownership in November, and have managed the site. A succession of management plans have been produced, along with a leaflet giving details of the site and its access points. The routes on this leaflet and on interpretation boards, including the disputed section between B and C, are shown as being permissive. Mr. Truscott negotiated with Mr. Holmes and his neighbour that B to C should be used by walkers on a permissive basis, and work was carried out to improve the surface. Mr. Healey and the Horndean Parish Council Ranger re-opened and improved an alternative path under the pylons about 100 metres further down the Lith after Mr. Holmes closed off the disputed section, to enable users to continue to get across the Lith. Mr. Holmes told Mr. Healey that he closed the path `due to anti-social behaviour, noise and dog walkers allowing their dogs to defecate all over the path'. Users of the path, including the claimant Mr. Worrell, were `extremely angry', and there were several confrontations between Mr. Holmes and Mr. Worrell, and Mr. Holmes and the local community. Mr. Holmes claimed he owned the path, and had the right to close it. The closure particularly affected the elderly and parents with pushchairs, who found the path under the pylons more difficult to negotiate as the Down is steeper there. Mr. Healey immediately began an investigation into the ownership of the path and whether Mr. Holmes had the right to close it off. EHDC did not have title to the path, even though it had title to the major part of the Lith, apart from the private houses and their gardens. `Mr. Holmes was also unable to provide sufficient evidence for his claim over the ownership of the land', and EHDC's own attempt to register it failed. The Council looked for alternative ways to get the path re-opened, and approached Hampshire County Council about the possibility of getting the path recorded as a public right of way on the Definitive Map, to that it could link with other definitive paths on the Lith. A claim was made to the County Council by Mr. Worrell and EHDC, having already looked at ways to re-open the path, felt it could take no further action.

10.1.8 A joint statement was given by the Clerk of Horndean Parish Council Mrs. Sally Munro (formerly Mrs. Sally Hopgood), and the Ranger, Mr. Phillip Weiss, as representatives of Horndean Parish Council. Mrs. Munro has been with the Council since 1996, and Mr. Weiss has been in post since August 2004. Horndean Parish Council have been involved in the active management of Catherington Lith in partnership with EHDC since 1993. Horndean owned land called Hazelton Common, and were employing a Ranger to manage it, and Mrs. Munro says that the Council took on the Lith `because it was convenient to it, and had the capability of managing it'. Mr. Weiss says that the Lith wasn't in a good state initially, because there had been no maintenance, due to doubt as to who was responsible for it. However, the claimed route was walkable, E to D was an easy way on to the Lith, and B to C was open. There has always been a management plan agreed between EHDC and Horndean Parish Council, and Horndean would do tasks on behalf of EHDC. Mr. Weiss confirmed that Horndean manages the whole of the claimed route, except for the section B to C. Mrs. Munro noted that the Catherington Lith Conservation Group had disbanded, partly due to displacement by Horndean Parish Council staff. The Conservation group had done a great deal to make the Lith attractive to users. Mr. Weiss says that the Lith is well used by locals, and that the whole system on the Lith is used regularly. He feels that the appeal of the Lith is that it can be accessed from different angles, and events, including a woodland fair, are held regularly. These events are organised to bring people up on to the Lith, and there is a guided walks programme to connect the sites in the Council's ownership. Mr. Weiss says `the Lith is actively used as a resource for the whole area'. He knows the claimed route as a permissive path, and it is described as such on an interpretation board at Mundays Row. He says that the claimed path is open every day of the year, except for one, usually Christmas day, at the discretion of the owner, though he himself is not aware of any actual closure on Christmas Day. Mr. Weiss says that the Parish Council has not done anything else, apart from the description on the interpretation board, to indicate that the path is permissive. Mrs. Munro confirmed that the Parish Council was involved with the Catherington Lith leaflet, and concurred that the claimed path was permissive in nature. An alternative to the disputed section between B and C had been created, and the Parish was involved with the clearing back of vegetation, surfacing with bark and installation of the steps up the slope under the transmission line. The District Council had assisted with surfaces when the claimed path had become churned up. Mr. Weiss has used the path for access purposes when carrying out work on the Lith, and pursues a policy of low-key maintenance, as he thinks the kind of traffic using the path will not affect the surface. Illegal motorcyclists have been stopped, and there is an unlocked gate north west of point A. The route is used mainly for dog walking (Mr. Weiss has seen few cycles) mostly by people from the adjoining area. Horse riders cannot get on to the site because of the gates. Mrs. Munro says that people visit the events on the Lith in cars, though there is actually no designated parking. No member of staff has been instructed to stop people going on the claimed route, and no express permission has been given either. The intention of the Parish Council is to keep the Lith informal in atmosphere, though more may be done to stop access by motorcyclists. The Council welcomes the action to clarify the status of the claimed path, but wished for clarification on the responsibility for the maintenance of it.

11. Additional Evidence

Additional evidence on this claim has been provided by a number of people. One ise from an adjoining landowner, and one is from a member of the Catherington Lith Volunteer Group, which was involved with the clearance of the Lith and the improvement of the section of the path between B and C.

11.1.1 Mr. E. Holmes lives in Three Bears, a property adjoining the disputed section of the path between B and C, and claims an interest in it, on the grounds of adverse possession, though he has not succeeded in registering title to it (see 10.1.2). He has provided the Rights of Way Section with documents, including the copy of deeds discussed at 7.5.

11.1.2 He has provided a copy of an article from the Hampshire Telegraph dated 30^th May 1974 is concerned with The Lith - `where beauty meets man's ugliness' which describes the condition of the Lith at that time, and the work carried out to clear it.

11.1.3 A copy of a conveyance dated 28^th November 1986 from Mr. J. Lewis to Mr. Holmes of the property known as `Three Bears' shows the property being conveyed not including the track from B to C. It does refer to the private right granted by a Deed of Grant of 1969, a copy of which is not available, and therefore it is not clear whether this refers to the section B to C.

11.1 Mrs. J. Hall lives in Deer Leap, a property adjoining the claimed path, towards its southern end. She gave a statement in July 2005, and provided additional documentary material. She has used parts of the claimed path, and also observed the use that has taken place over it. Mrs. Hall has lived in the area since 1974, firstly in North Road, moving to Deer Leap in 1997. When she was first in Horndean, the section from B to C was not open, until 1992. The opening up of this section began in 1991, and involved Mr. Truscott of EHDC negotiating with Mr. Nicholson and Mr. Holmes, the adjoining landowners. Work to resurface the path took place in 1992 and was finished in early 1993. She says it was possible to walk from point C to point B, but no further, as it was fenced off. There were no signs warning of this. However, she did use B to C a lot when it was open. In 1999, the owner of the adjoining property, Mr. Holmes, put up a gate at B and locked it, and then put up a fence at C, level with the back of his garage. A notice was placed at C, which had wording that stated something like '12 foot path claimed private roadway'. Mrs. Hall has not tried to go through that section since, though she does chat with Mr. Holmes. She accepted that the path from B to C was permissive, and she has a private right, as a landowner, to use the section from A to B, which she does use twice a day to walk her dogs. The section from B to C is shown on her deeds, dating from the 1930s, as a double pecked line. Mrs. Hall does not remember the section between E and D as is shown on the plan accompanying this report, and recalls it as going steeply straight up the hill. Mrs. Hall has only used this section occasionally, as she generally uses the zig-zag path provided by East Hampshire District Council. There have never been instructions to turn people back from the path, but the public is only allowed to use it on foot, and only landowners with private rights may use vehicles. However, there is no indication on the interpretation notices that use by the public is permissive. Signs put up by previous members of Horndean Parish Council staff saying `no cycling' and `no vehicles beyond this point' have been ripped own. Mrs. Hall has stopped people coming up the path during the outbreak of Foot and Mouth Disease, and put up signs saying `No access unless residents'. She says there has never been an annual closure of the path. The path under the pylons was improved when the section between B and C was closed by addition of some steps. The claimed route receives a lot of use by dog walkers, who are mainly walkers, but many people also come from further afield, from Five Heads, Chalk Hill or Catherington. Mrs. Hall was involved with the Catherington Lith Liaison Meeting from 2001, and recalls a great deal of discussion about locking the gate on the route. She had also looked at the file of minutes in connection with the making of her statement. In 1991 Mrs. Hall describes the original gate at the south east end of the path being metal; Mrs. Hall believes that it was not locked, and thinks that there was probably no pedestrian access to the side of it. Residents on the Lith asked for wooden gates that could be locked, in a different place, and these have a side gate for pedestrians.

11.3 Mr. J. Vigay, a member of the Catherington Lith Conservation Group, has given a statement about his experience and knowledge of the claimed route. He has lived in the area since 1970, and describes the Lith as being `a tatty area, full of rubbish and old buildings', these features being a legacy of its past as an area subdivided into a large number of very small plots. The Conservation Group began in 1990, and produced a newsletter twice a year which was circulated to the residents of the housing estates adjoining the Lith. These were produced for about twelve years, with a purpose of encouraging volunteers to work on the Lith and assist in maintaining security there. Other bodies were involved, and the Group was involved with clearing part of Stubbins Down, and building and resurfacing paths. Work was carried out on the section of the claimed route between D and E, and B to C was resurfaced in the summer of 1992, with scalpings and half-round logs. This was well used by the public. The understanding was that B to C was to be used on a permissive basis, and there was an extension from B across the field to the south west. This work was carried out to open the Lith up with linking paths, particularly up and down the steep hill. The existing paths were improved in 1992 to further this aim, and those paths which were not already public rights of way were intended to be permissive. The Group worked to maintain south-west to north-east footpaths between the tracks running north-west to south-east on the Lith. The Conservation Group worked on the zig-zag path and, when B to C was closed in 1999, an alternative route up the slope under the transmission line was made. The Conservation Group stopped actively working on Catherington Lith in October 2003. Mr. Vigay recalls that the people he saw using the claimed path while working on the Lith were mainly dog walkers. A kissing gate was in place where the path from B goes south westwards, and Mr. Vigay considers this to be an `important entry point for the Lith'. He saw no cyclists or motorcyclists. A gate was put up across the route to discourage their use. He thinks that the path from A to B was constructed to provide access for the plots on the Lith, because its base is ash. There were no annual closures, and no signs indicating that the path was permissive, though the newsletter of the Conservation group of April 1992 refers to permissive paths.

12. Discussion of Evidence

12.1 Consideration of Section 31 criteria in relation to the claimed route

For Section 31(1) of the Highways Act 1980 to operate and give rise to a presumption of dedication the following criteria must be satisfied:

· the physical nature of the path must be such as is capable of being a right of way at common law

· the use must be `brought into question', i.e. challenged or disputed in some way

· use must have taken place without interruption over a period of twenty years before the date on which the right is brought into question

· use must be as of right, i.e. without force, without stealth and without permission

· use must be by the public at large

· there must be insufficient evidence that the landowner did not intend to dedicate a right of the type being claimed

12.2 Since two bodies of user evidence are available, each needs to be considered in relation to the criteria outlined above. The evidence that was collected in 1969 and 1970 will be considered first.

12.3.1 The description of the paths being claimed in 1969 and 1970, from Form 2, refers to (1) a path running westwards from Lith Avenue, between Footpath 17 and the claimed route, and parallel to both; (2) Lith Crescent (that is part of A to B); (3) Lith Avenue (also part of A to B); (4) a connection between Footpaths 17 and 18, between the two properties C to B, continuing along the fence line in a south westerly direction to meet Footpath 17. The path described at (1) is partly still on the ground, and is shown on the National Grid plan of 1969-1972, but does not connect with a public highway, or a place of public resort, and therefore cannot be considered as a candidate for inclusion on the Definitive Map. The route beyond the two properties in (4) above is not shown on the National Grid plan, as might be expected if it had been used by pedestrian, horse and vehicles from 1925, as the user evidence form claims. It does not appear on any other maps compiled before the National Grid plan. Therefore, only paths 2, 3 and part of 4 (that is A to C) are covered by this evidence.

12.3.2 The physical nature of the claimed path is today such as is capable of being a right of way at common law, and there is no reason to suppose that it was any different in 1969 and 1970. The Form 2 user evidence forms refer to `well established access to Catherington Lith', being used by vehicles, and the section from B to C is described as a '10 foot wide path'.

12.3.3 The bringing into question of the public's right to use the way took place in April 1969, when an adjoining landowner closed off the section of the path between B and C with barbed wire and hedging material. This action prompted a letter of complaint from the Horndean Parish Council to the County Council This was followed by the collection of the body of evidence summarised at 9.1.

12.3.4 A graph of the use at this time appears at Appendix 4. Use on foot can be demonstrated in every decade from 1900 to 1970, though heavy use is not present until the 1930s. Use is recorded by Mr. Minter from 1900, Miss Buckett and Mr. Mumby used the path from the end of the 1920s. There were 25 witnesses using the path in 1949, the beginning of the 20 year period. Thirty two witnesses were using the path up until the time the disputed section was closed off.

12.3.5 The first question on both forms is `have you know the above way(s) as public?'. Mr. Short has left this space blank, and Mr. Rainbird said `No'. All other answers are affirmative. From this information, it can be assumed that all the other witnesses considered they were using the way as of right. The May family are the only witnesses that use the word `permission', and this is in relation to permission given by Mr. Douglas to walk through the woodland on the Lith.

12.3.6 There are forms filled in by witnesses from Emsworth, Southsea, Portsmouth and Bedhampton, as well as people from Horndean. This indicates that the path was used by the public at large.

12.3.7 Even though the user evidence of 1969 and 1970 has not been amplified by interview, a prima facie presumption has been raised that, on the balance of probabilities, a public right of way on foot has been acquired on the route A to C, between 1949 and 1969. Officers in the Rights of Way Section at the time were of the same view.

12.4.1 A body of evidence has been collected and put forward by the claimant, Mr. Worrell, who served notice on 13^th October 1999. A graph of this use is attached at Appendix 5. This evidence must be considered in connection with the section of the claimed path between C and E (which does not appear on the older evidence forms) as a prima facie presumption has been raised that the public have acquired footpath rights on the remaining part of the claimed route between 1949 and 1969, as outlined above.

12.4.2 If the evidence for C to E is considered under Section 31, a difficulty arises, in that a bringing into question of the public's right to use the way occurred on 5^th June 2002, when Mr. Holmes of Three Bears put rubble across the path at point D to deter people from using it. This would make the relevant period when users would have to demonstrate unchallenged use 1982 to 2002. The available user evidence has details of user up to 1999 only. While some witnesses said in their statements that they are continuing to use the available parts of the claimed path A to E, the user forms of those who did not give statements do not contain any evidence relating to C to E in the period 1999 to 2002. Therefore, the user put forward by Mr. Worrell will be considered under the provisions of common law to see whether a dedication has taken place. The current owners of the land over which this section of the path runs are the late Mr. Greenwood and Horndean Parish Council.

12.5.1 Consideration of common law dedication

For common law to operate and give rise to a presumption of dedication the following factors apply:

· use of a way by the public must be without secrecy, force or permission of the landowner

· use of this kind 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

· there is no automatic presumption of dedication after twenty years of public use

· 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.

12.5.2 The first condition that must be met under common law is that the path from C to E must have been used without secrecy, force or permission. None of the witnesses reports having sought or received permission from the landowners, and say they have used the path freely and openly. There is a degree of conflict in the evidence, in that Mr. Truscott, at 10.1.6, says that C to E was never used as it was fenced off, and Mrs. Blackwell says it had become disused and overgrown, though she does not give any dates in relation to this. However, the path is shown on the National Grid plan of 1969-1972, and all users have indicated on their maps that this is where they walked. Mrs. Munro, of Horndean Parish Council describes it as an easy way up to the Lith, and the Horndean Parish Council Ranger Mr. Weiss says that the Lith is well used by locals (10.1.8). Mr. Vigay says that the sections B to C and D to E were resurfaced, and well used by the public. Mr. Worrell and the late Mr. Greenwood, who both owned parcels of land on this section of the Lith, filled in user forms. This part of the claimed path is not shown as permissive on the Catherington Lith map. Though Mr. Truscott says D to E was never used because of fencing, Mr. Worrell, a former owner of land in this location, states that Mr. Greenwood fenced the path to keep the public on the correct line and left a gap at D so that they could reach Horndean Footpath 18. Therefore, on the balance of probabilities, it is felt that this condition has been met.

12.5.3 The next condition relates to an inference that the landowner intended to dedicate the way as a highway. East Hampshire District Council were former owners of the bulk of the land, and Horndean Parish Council are the present owners. Both these bodies are aware of the public use of the path between C and E, and have encouraged public use of the Lith for informal recreation through their management of it. This involves an annual Wood Fair, which encourages the public to visit Catherington Lith. Mr. Greenwood is described by Mr. Worrell in his statement as not stopping anyone, or objecting to public use. He fenced out his land to keep the public on the correct line and left a gap at D for them to pass through. Horndean Parish Council, and EHDC before them, have encouraged the public to use a network of paths on the Lith, and have not done anything to indicate that they do not intend to dedicate the section of C to E in their ownership. Mr. Holmes's action in attempting to close off the path at point D in 2002 has no bearing, as he is not an owner of this path.

12.5.4 There is no automatic presumption of dedication after twenty years of public use, and there is no minimum period or amount of user. The first recorded use is from the 1940s, but the number of users is few before the late 1970s. The bulk of use is between 1980 and 1999, when the forms were filled in, though witnesses say that they are continuing to use those parts of the path available for use (all except B to C). There are twenty witnesses who were using the path from C to E in 1990, and current use of the path by the public as part of the network on the Lith is evidenced by the heavily worn nature of its surface (Appendix 6).

12.5.5 There is no doubt that the landowners of the land affected by the path are, and have been, well aware of the use being made of that path by the public. No action has been taken by the landowners to prevent the public from using the route. The claimant has provided evidence that twenty users have used the path between 1980 and 1999. The Lith is an amenity used by large numbers of people from the surrounding housing estates, so it is likely that these twenty users are just a sample of the true use of the path from C to E. Therefore, on the balance of probabilities, the volume and quality of the user on C to E is sufficient to give rise to the inference that the path was dedicated at common law.

13. Width of right of way

The claimed path A to E is over 700 metres, and there is some variation in its width along that length. The width of Lith Avenue, the first part of the path is 4 metres; Lith Crescent, to point B, has an average width of 4 metres; the section between B and C is 3.6 metres; from C to E, the path is 1.5 metres in width.

14. Conclusions

The volume and quality of the user evidence for the section of the track from A to C is sufficient, on the balance of probabilities, to raise the presumption that a public right of way was acquired, under Section 31 of the Highways Act 1980, between 1949 and 1969. The user evidence on the section C to E is also of a quantity and quality to show that a common law dedication has taken place at some point before 1999.

RECOMMENDATION

That an order be made to add to the Definitive Map a footpath between Horndean Footpath 17 (Lith Avenue) and Horndean Footpath 18 (grid reference SU 7038.1387 to grid reference SU 7003.1434), between points A and E on the attached plan.

Section 100 D - 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 the report. NB The list excludes: (1) Published works; (2) Documents which disclose exempt or confidential information as defined in the Act.

File: Application for a footpath in the parish of Selborne, ref. 633

Rights of Way Office, Mottisfont Court, Winchester