Archived decisions
Hampshire County Council Item
Regulatory Committee
30 November 2005
Application for a Definitive Map Modification order to add to the Definitive Map a footpath between Main Road and Aaron Court in the Parish of Marchwood
Report of the Director of Recreation and Heritage
Contact: Alex Lewis, extn. 6044; [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 not shown in 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
(ii) that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description
(iii) that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification
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. 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 of the assumption that the landowner knew of and acquiesced in public use.
1. Summary
1.1 This report concerns an application for the addition to the definitive map of a footpath between Main Road and Aaron Court Marchwood.
1.2 It is recommended that the claim be accepted.
2. The Applicant and the application
2.1 The application was made in 2003 by Marchwood Parish Council, in response to an application for planning permission for the construction of a dwellinghouse on a plot of land, which it was thought might obstruct a pathway between Main Road and Aaron Court, Marchwood.
2.2 The Application was taken out of turn, in accordance with our claims policy, because of the risk that the claimed path, or part of it, might be lost through the development.
3. The Claimed Route
3.1 The claimed route runs from Main Road, Marchwood, to Aaron Court, which is an adopted highway. It follows a tarmac path approximately 1.8 metres wide along the side of No. 1 Marchwood Terrace, narrowing to 85 cms before turning across a gravel parking area at the rear of Marchwood Terrace, where the path is undefined, to Aaron Court. Some users claim to have diverted from this path across the development site shown hatched on the annexed plan.
3.2 The path forms a link between housing development (Aaron Court, Lichen Way, Moss Drive and Pond Close and, via other footpaths, to other areas of housing) and facilities in the centre of Marchwood. Diagonally opposite the Main Road end of the path is a newsagent and hairdresser; further south there a public house, a doctor's surgery and garage services and a school.
3.3 The path is currently in use and unobstructed, although the development site has been fenced since 2003.
4 The Landowners
4.1 The gravel parking area is owned by the various properties in Marchwood Terrace. The path at the side of Marchwood Terrace is owned by the owner of No. 1 Marchwood Terrace. The development site is owned by Hampshire Buildings Preservation Trust Ltd. (`the Trust'), previously the owner of Marchwood Terrace.
5. Consultation
5.1 The following persons and bodies have been consulted about the application, namely the Director of Environment, Ramblers Association, Councillor Harrison the local member, New Forest District Council, Marchwood Parish Council and the owners/occupiers of Marchwood Terrace. The following responses have been received: the remaining consultees are presumed to have no evidence to offer.
5.2 Parish Council - remains in support of the claim.
5.3 Cllr Harrison, the local member - has no evidence to offer, but supports the claim.
5.4 The owners of three properties in Marchwood Terrace have responded - see paragraphs 9.2 - 9.4 below.
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 exists, or is reasonably alleged to exist, between Main Road and Aaron Court on the line, or approximately on the line, of the claimed path.
6.2 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 do not consider that there is such a conflict of evidence in this case.
6.3 The witness evidence forms and statements can be inspected in the Rights of Way office, Mottisfont Court. Members are urged to inspect these, or the originals, when considering this report.
7. Background
7.1 There is no evidence that the claimed path has historic origins. Marchwood Terrace has been in existence for over one hundred years and the land at the rear was undeveloped, probably agricultural land. There is no suggestion of a public thoroughfare at the rear of the terrace on old maps. This was certainly true until at least 1965 (an Ordnance Survey map of that date gives no hint of a path) and probably until the development of the properties in Moss Drive and Lichen Way, in the early 1980s.
7.2 Some background information about the site of the claimed path has been provided by the Trust, which purchased Marchwood Terrace and the development site in 1977. At the time of purchase, it was anticipated that the land at the rear would be developed, and that the properties in Marchwood Terrace would eventually be provided with a rear, vehicular access across that new development to a gravelled parking area. The Trust acquired its land with the benefit of a right of access over any thoroughfare constructed at the rear of the property. In return, temporary access rights were reserved over the development site in favour of the land at the rear, which also retained a permanent pedestrian right of way along the (claimed) path next to No. 1 Marchwood Terrace. There is no evidence that this path existed prior to 1977 and the reservation of this right may be the reason for the path's existence.
7.3 The Trust renovated the Marchwood Terrace properties and sold the last property in 1979, retaining ownership of the development site. The rear access was not yet available, and the properties were each granted a temporary right of vehicular access over the development site (and also to the right to park) until the access from the land at the rear became available. It is believed that the path at the side of No. 1 Marchwood Terrace was provided with a sealed surface at this time: there is a visibility splay at the junction with Main Road, which would have been provided to accommodate the vehicular rights then being granted. The path itself was conveyed to No. 1 Marchwood Terrace.
7.4 Some users interviewed identified 1984 as the year in which the first properties in Moss Drive and Lichen Way were occupied, and since then the claimed path has served as a useful short cut. However, one witness states that the path was already there when he moved into Lichen Way in January 1984 and this is supported by another witness who says that he moved into Lichen Way in late 1981 and that the path was available in 1982. This is supported by two user forms. It seems to be agreed that Aaron Court, the land immediately to the rear of the terrace was built a little later, by a different developer, probably in 1985.
7.5 In the absence of any evidence that the path has historic origins, the claim relies on evidence of recent user.
8.0 Evidence of Recent User
8.1 28 user evidence forms accompanied the application, originating from 17 separate households. The amount and periods of use is illustrated on the attached graph. This is necessarily a generalisation, but gives an indication of the nature of the public use of the path.
8.2 Three witnesses have been interviewed in person and have given statements, and five witnesses, originally contacted with a view to obtaining statements, have given more information by telephone about their use of the path. Two more witnesses have failed to respond to a request to provide further information. Two local residents, who did not complete user forms, have given additional information about the path.
8.3 The user evidence reinforces the view that the origins of the path lie with the development of the estate at the rear of Marchwood Terrace. No users claim to have used the path before 1982. Three users claim to have been using the path in 1982 (when the first of the houses were finished), five started using it in 1984 and a further two in 1985. 21 attest to use by 1990.
8.4 In general, those using the path claim have done so often, which is consistent with the location of the path and the access it provides to local facilities.
8.5 None of the witnesses completing evidence forms report any obstructions on the route (just one has a vague recollection that there may have been a gate alongside No. 1 Marchwood Terrace, but is unsure). Some acknowledge that cars would be parked from time to time at the rear of the Marchwood Terrace properties, but that this did not prevent access to and from Main Road. One witness recalls a notice saying `Private Property. This belongs to Marchwood Terrace' attached to the hedge at the back of No. 6 Marchwood Terrace, and which faced towards Aaron Court. He thought that it was up for about a year before being taken down by the owner, once it had been pointed out that the owners of Marchwood Terrace had no right to use Aaron Court to access their parking area, Aaron Court being at that time, unadopted. Another witness has recollection of a notice saying something to the effect that the area was for the use of Marchwood Terrace only. This may be the same notice as it was apparently `not there for long'. No witnesses report being turned away or challenged by the owners or occupiers of any of the properties in the terrace.
8.6 The witnesses are divided on one important point. Some witnesses claim always to have followed the tarmac path immediately beside No. 1 Marchwood Terrace and running between the parking area and Main Road (i.e. A - B - C on the attached plan). Other witnesses claim to have reached (or left) Main Road by cutting across the development site between the tarmac path and `Elmleigh' (i.e. broadly following the line A - B - D). The difference is a matter of 6 metres at most, but it is important because the tarmac path will remain unaffected by the development, but the short-cut will not.
8.7 Witnesses advise that the development site was waste land for many years prior to being fenced in 2003. Part of it was gravelled, and the remainder was full of vegetation, which was cut back at one time, but then allowed to become overgrown. Cars were parked from time to time on the gravel. The land was not fenced until 2003, and the fencing was one of the events that prompted the claim.
8.8 Of the eight witnesses specifically asked about this point, one claimed that he always cut across the development site, four claimed that they did not do so and stuck (or mainly stuck) to the tarmac path (although one subsequently changed his view) and the remainder were more equivocal, whilst nonetheless acknowledging that cutting across the development site was a possibility. Photographs taken in May 2002 show that there was no impediment to use of a path between B and D.
8.9 A few users also attest to use of the path on a bicycle, but not in sufficient numbers to suggest a dedication of cycling rights over either route.
8.10 Latha Oliver, the owner of the local newsagents which is diagonally opposite the Main Road end of the path, has not completed a user form, but has given information about the path. She used to use the path between 16 and 20 years ago, when living in Moss Drive. She recalls that for a period of about three days the path was blocked by a plank of wood, tied in place with string, but that it was kicked down and nothing has been done to stop people using the path in the twenty or so years since then. She sees many of her local customers and many local children using the path, and encourages her paperboys to use it because it is safer than the road.
9.0 Landowners' evidence
9.1 Occupiers of three of the properties in Marchwood Terrace have responded to consultation.
9.2 Number 2 Marchwood Terrace is opposed to the claim, in concern partly at the loss of private property rights and partly at the possible increase in vandalism and anti-social behaviour that a public right of way might cause. No evidence has been provided that assists in the determination of the claim.
9.3 In a letter dated 26 October 2005, as amplified in a later interview, Mr Blacklock one of the owners of Number 6 Marchwood Terrace also expressed opposition to the claim, but stated that he and his wife are aware of and generally tolerant of people wandering across the parking area, provided that the privilege is not abused. Mr Blacklock has approached users on three occasions, twice when dogs were being allowed to foul the area and once when some youths were acting in an anti-social way.
9.4 The current owner of No. 1 Marchwood Terrace is opposed to the claim, but has been in occupation only since April 2004 and is therefore unlikely to be able to provide information about use of the path prior to that date. He is aware that locals use the path, but does not accept that it is a right of way.
9.5 Hampshire Buildings Preservation Trust Ltd has provided a considerable amount of information about the recent history of the site (see paragraphs 7.2 and 7.3 above). It has no objection to the claimed footpath at the side of No. 1 Marchwood Terrace, but does not accept that footpath rights have been acquired over the development site.
9.6 It has provided a copy of a transfer of one of the Marchwood Terrace properties, which shows that each of the properties is entitled to excusive possession of a parking space at the rear, but that the remaining parts of the gravelled parking area are subject to mutual rights of access, which would prevent its use for parking. The Trust retained footpath rights over the path at the side of No. 1, and rights over the path appear to have been granted to the other properties in the Terrace.
9.7 The Trust advises it was aware of the development potential of the development site when it purchased Marchwood Terrace and retained the land after the properties were re-furbished with the intention building on it. When vehicular access became available from the land at the rear of the terrace, (1985 or thereabouts) plans were drawn up for the construction of a single dwellinghouse on the development site. The plans did not make any allowance for a footpath crossing the site. The planning application was advertised on site in June and July 1988.
9.8 The application was refused and no further application was lodged until 2003. This, later, application was also refused, but was subsequently granted on appeal in January 2005. In October or November of 2003 the development site was fenced and this prevented any further use of it by pedestrians.
9.9 Through its officers, the Trust has made inspections of the land in its ownership from time to time, but it does not have a permanent presence on the site and is unable to gauge the extent of its use by members of the public (there were, of course, a number of people who had been given permission, or temporary rights to park on the land or use it for access). It has not made any personal challenges to users or put up notices prohibiting access.
10.0 Analysis of the Evidence
10.1 There is no evidence of an express dedication by any landowner.
10.2 Use of the claimed path commenced in 1982 at the earliest, and certainly by 1984. The volume of use is not particularly high, particularly given that the 28 users represent just 17 households, however, it is sufficiently broad to represent the public at large. Few of the witnesses contacted have responded to an invitation to provide more information, which makes it harder to judge the strength of the user evidence. However, the witnesses who have made statements and those who have been contacted by telephone are reasonably consistent in their recollection of the facts.
10.3 Use appears to be open and without force. There is no evidence of permission having been sought or given. Users apparently use the tarmac path, or cut across the development site (prior to 2003) or both.
10.4 One witness refers to the blocking of the tarmac path by a plank, approximately 20 years ago. This act could be a `bringing into question' for the purpose of determining the 20 year period under s.31 Highways Act 1981, but it is not corroborated by any other witness, nor is there any evidence about the motives of the person who put up the plank. If it were the only event bringing the right of the public to use the path into question then the claim under s.31 would necessarily fail, because there is not twenty years use of the path prior to 1985.
10.5 Path B - D
There is a bringing into question of the right of the public to walk across the development site (B - D) in October 2003, when the plot was fenced, and possibly also by the earlier planning application, which did not make allowance for any public access to the site. For this area, the relevant 20 years would be 1983 - 2003. Although there is some evidence that a path was in use in 1982, the number of users in 1983 is very small, and insufficient in the early years to represent the public at large, particularly as not all users admit to cutting across the development site.
10.6 Even if the amount of use were deemed to be sufficient, there is evidence that the landowner did not intend to dedicate a right of way across the development site. The planning application lodged and advertised in 1988 made no provision for any public right of way between B and C. Dedication of a path would have been contrary to the intention of the Trust, as evidenced by that (and indeed the subsequent) application. For these reasons a dedication under s. 31 Highways Act cannot be presumed. For the same reasons, it would be inappropriate to presume a dedication at common law.
10.7 Path A - B - C
The public continues to use this path, there being no physical barrier in place to challenge or dispute the public's use.
10.8 The present claim could be taken as an event bringing into question the right of the public to use the path, (and thus making the years 1983 - 2003 the relevant twenty year period). This route suffers from the same problem as the route B - D: only a few people have said that they used the path in 1982 and it did not come into general use until a few years later. The volume of user evidence at the start of the twenty year period (i.e. three users from two households) is probably insufficient to form the basis of a deemed dedication under s.31.
10.9 A period of use of less than 20 years may nonetheless give rise to inferred dedication at common law. The inference may arise if a landowner knew of the use and acquiesced in that use. Failure to stop use that was open and overt may entitle a court to infer that the landowner intended to dedicate the way in question as a highway.
10.10 Although there are not a huge number of user forms it is apparent from a site inspection that the path is currently well used. There are currently no notices in place to indicate that the way is private.
10.11 The evidence of the current owner of No. 6 Marchwood Terrace is that the owners have tolerated use in the interests of neighbourliness and that challenges were directed at incidents of anti-social behaviour rather than use as a footpath per se. It is likely that any notices or challenges by the owner of No. 6 are, in any event, ineffective to indicate a lack of intention to dedicate because the land belonging to No. 6 appears to be unaffected by the claim (the natural desire line between Aaron Court and the tarmac path is marginally further south). The attempt by someone to stop use - if that is what it was (and we have no evidence on this point) - by placing a plank across the path was very short lived and some twenty or so years ago, and there is no evidence of steps being taken to deny public access since then.
10.12 It is said that the properties in Marchwood Terrace often change hands and there has been no continuity in the ownership of the properties since the houses were renovated by the Trust. This, and the necessity to keep the path and gravel parking area open so that the owners can exercise their private rights of access might explain why little or nothing has been done to prevent public use in recent years. It may be a factor weighing against drawing an inference that the path has been dedicated to the public. However, on the evidence presently available, the inference that the path has been dedicated to the public might reasonably be drawn, and thus it is possible to reach the conclusion that the path subsists, or is reasonably alleged to subsist.
11. Width of the highway
11.1 The asphalt path at the side of No. 1 Marchwood Terrace is 1.8 metres wide for the most part, but it narrows to 85 cms (3ft 3ins) before reaching the gravel parking area at the back of Marchwood Terrace. There is no defined path across this area, and it is difficult to be sure exactly what land has been used by walkers. There is a desire line directly between Aaron Court and the tarmac path and most use was probably within an area of approximately two metres, the exact line depending on whether there were cars parked from time to time at the rear of Marchwood Terrace.
11.2 The gravel parking area is subject to the access and parking rights of the owners of Marchwood Terrace. Any public footpath rights will have been acquired subject to these rights, and so far as these rights affect the use of the footpath, they will act as a limitation on the rights of the public.
12. Conclusions
There is insufficient evidence of use of the path A - B - C and B - D during the early 1980s to give rise to a presumption of dedication under s.31 Highways Act. Dedication of a path A - B - C might be inferred at common law as a result of use since the mid-1980s, based on the use of the path by the public and lack of steps taken by the owners to prevent it.
RECOMMENDATION
That an order be made to add to the definitive map a footpath between Main Road and Aaron Court, Marchwood as shown between points A - B - C on the plan attached. (GR SU3893 1052 to 3889 1053).
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 CR778 - Rights of Way Office, Mottisfont Court, Winchester, including copies of some of the documents referred to above the originals of which can be inspected in Hampshire Record Office.