21

Hampshire County Council Item

Regulatory Committee

30 November 2005

Application for a Map Modification Order for the addition to the definitive map of four footpaths at Lake Farm in the Parish of Fair Oak and the Borough of Eastleigh

Report of the Director of Recreation and Heritage

Contact: Emma Noyce, extn. 5319 email: [email protected]

WILDLIFE AND COUNTRYSIDE ACT 1981

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

(2) As regards every definitive map and statement, the surveying authority shall keep the map and statement under continuous review and as soon as reasonable practicable after the occurrence .... of any of [the events specified in sub-section (3)] by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event

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

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

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

HIGHWAYS ACT 1980

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

(1) Where a public way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has actually been enjoyed by the public as of right and without interruption of a full period of 20 years, the way is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during this period to dedicate it.

PRESUMED DEDICATION AT COMMON LAW

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

1. Summary

This report concerns an application for the addition to the definitive map of four footpaths at Lake Farm, Fair Oak.

The use of the claimed paths was first brought into question, within the meaning of Section 31 Highways Act 1980, in 1998. There is evidence that the public has been using a number of paths in this area in every year from 1947 to 1998. However, it is unclear whether or not each individual path has been used by the public at large, and, for this reason, it is recommended that the application be refused.

2. The Applicant and the Application

2.1 The Applicants are Ms Margaret Raff and Mr David Goodman.

2.2 Ms Raff has been consulted about the current claim. Mr Goodman moved to Cornwall approximately five years ago, and at the time of writing this report, officers have been unable to contact him.

2.3 23 user forms and a number of letters and photographs of the route have been submitted with this application.

3. The Landowner(s)

3.1 The land at Lake Farm, including that of the claimed routes, is currently owned by Jo-Ellen Ltd. Jo-Ellen Ltd have owned the registered title to this land since 21^st April 1998. It is understood that Mr David Buckett owned the land before this date.

4. The claimed routes

4.1 The claimed routes are cross-field paths, all of which link to definitive footpaths. The claimed routes are illustrated on Appendix 1 as A-B-C, B-E, D-E-F and G-H-I.

4.2 The claimed routes are not recorded on the county's Definitive Map of Public Rights of Way.

5. The issue to be decided

5.1 The issue to be decided by this Committee is whether or not the public has acquired a right to use the claimed routes, either through express or implied dedication.

6. Consultation

The following persons and bodies have been consulted about the application, namely the County Council (Environment and Highways), Councillor Davis-Dear (the current Local Member for Eastleigh East), Councillor Roling (the current Local Member for Bishopstoke and Fair Oak), Councillor Boulton (the previous Local Member for Fair Oak and West End), Eastleigh Borough Council, Fair Oak and Horton Heath Parish Council, Bishopstoke Parish Council, LARA, Trail Riders Fellowship, National Farmers Union, British Horse Society, British Driving Society, All Wheel Drive Club, Ramblers Association, Open Spaces Society and the Cyclists Touring Club. The following responses have been received:

6.1 Bishopstoke Parish Council - does not believe that the claimed routes would make a meaningful addition to the rights of way network, and therefore does not support the claim. However, would not object if evidence is sufficient to justify the application.

6.2 Fair Oak and Horton Heath Parish Council -

"We understand that the nearby residents have been using the land at Lake Farm for a number of years to exercise their dogs. We believe that the landowner is not happy with this situation and has made several attempts to stop the residents from trespassing across his land...The footpath from B to E was ploughed two years ago and is no longer in existence. The link from FP744 to FP780 has been broken; therefore, not permitting a circular footpath loop."

7 Historic and documentary evidence

7.1 The first edition of the Ordnance Survey County Series map, published in Approximately 1870 shows double pecked lines (presumably indicative of trackways) in the location of definitive paths 746/14, 780/13, 743, 744, 741 and 742. The claimed routes are not illustrated.

7.2 The same network of trackways is shown on the second and third editions of this map (c1895 and c1908). Footpaths 741, 743, 744 and 780 are annotated with F.P (given as Foot Path in the legend). The claimed routes are not shown.

7.3 The fourth edition of this map (c1930/40) shows double pecked lines along the route of path B-E. This suggests that route B-E existed as a physical feature at this time, but does not assist in the determination of the status of this route.

7.4 National grid

8. Modern user evidence

8.1 23 witness forms, providing evidence on behalf of 24 users have been submitted in support of the application. A number of photographs showing the claimed route have also been submitted.

8.2 The user forms were completed in 1998. The earliest use of the paths was in 1947. There is evidence of the use of the paths in every year between 1947 and 1998. A full summary of the use of the paths is given in Appendix 2.

8.3 Fourteen of the user evidence forms are accompanied by signed maps. Mrs Raff confirms that those users who have completed forms not accompanied by maps are all providing evidence of their use of the claimed routes.

8.4 One of the difficulties which presents itself in the investigation of this particular application is that the claim relates to at least four paths, in an area of land where there are already a number of definitive rights of way. The information provided on the user evidence forms is, by necessity, generic. On the forms, most users state that the paths they are giving evidence about "are all in a field at Lake Farm". When asked how frequently they used the claimed routes, a typical answer might be `daily'. However, from the forms alone it is impossible to tell whether the particular user walked every claimed path at Lake Farm daily, or if they went walking at Lake Farm daily (but didn't necessarily use each claimed path). Furthermore, it is not clear whether each individual used a particular claimed route in its entirety, or used only a section of a claimed route as part of a walk involving both claimed routes and definitive rights of way.

8.5 In order to satisfy Section 31 Highways Act, or a presumed dedication at common law, there must be sufficient evidence of use, by the public at large, on a specific path. Though there seems little doubt that all of the claimed routes have been used at some time by members of the public, the user evidence forms do not provide sufficient evidence, of themselves, to support the assertion that the public have acquired highway rights over the whole length of each individual path. Therefore, it has been necessary to contact the witnesses who provided evidence in 1998, in order to seek further information.

8.6 Of the 24 witnesses who completed user evidence forms in 1998, 14 are still resident at the addresses given on the forms. Each of these 14 have been contacted, but few responses have been received, and officers have only been able to take statements from three users. These statements are summarised below:

8.6.1 Mr Firth

Mr Firth and his wife used the paths in Lake Farm between 1986 and 1997. Mr Firth states that they normally walked route A-B-C, but sometimes entered the field at point B, where there was a stile. Mr Firth cannot be specific about how often he used any particular path. He states that although the paths were not regimented, they were nonetheless quite easy to follow as worn tracks. Mr Firth never met the landowners of the field, and was never told that the paths on Lake Farm were private. He stopped walking the routes before they were fenced off.

8.6.2 Mr Hayter

Mr Hayter and his family moved to Greens Close in 1977 and began walking at Lake Farm almost immediately. They owned a dog from 1977 until 1998 and walked the paths frequently. Usually Mr Hayter used route A-E-H [not actually the claimed path but one of the definitive paths] or route B-E-H [a claimed route]. Mr Hayter states that although there was open access to the fields, most people tended to stick to the established paths (including those claimed). Mr Hayter has provided photographs of the access to route B-E before it was closed off. The photographs show a sign and a stile at point B. Mr Hayter does not recall any signs or notices stating that the claimed routes were private, and believes that the previous landowner, Mr Buckett, knew people were using the paths, but didn't mind. Towards the end of 1998 Mr Hayter gradually became aware that Mr Peters wanted to stop people from using the claimed paths. He remembers that barbed wire and stranded wire kept being put up across the access to point B (which people removed with snippers). He states that it became widely known that Mr Peters did not want people using the paths. Eventually the landowner erected fences either side of the definitive right of way which stopped people from using the claimed path.

8.6.3 Mrs Instrell

Mrs Instrell became a resident of Bishopstoke in 1947. She states that from 1947 onwards she had two dogs which she used to walk every day on the claimed paths. When her last dog died in the 1980s Mrs Instrell began walking Mrs Raff's dogs. Usually she took route A-B-C-D-G-F, although occasionally, when she wanted a longer route, she would include route I-H-G. Every Good Friday Mr and Mrs Instrell had relatives to stay, and they walked to Lavington's using route A-B-C. Whilst out walking Mrs Instrell used the field to train her dogs. Mrs Instrell knew the previous landowner, Mr Buckett (her husband went shooting with Mr Buckett). She believes he knew that people used the paths, and she actually met him a number of times whilst walking on the land, but was never turned away. She does not believe that there were ever any signs to indicate that the land was private. Mrs Instrell does remember that cows used to be kept in the field, but this never caused any problem with the dog-walkers. She also remembers that sweet corn was once planted in the field - when this happened they kept off the path to avoid disturbing the crop. Mrs Instrell states that when Mr Peters acquired Lake Farm they fenced off the claimed paths.

8.7 A number of users have referred to a sign and a stile at point B, directing people to route B-E. This sign was present before 1998. Following a telephone conversation with the Countryside and Recreation Service of Eastleigh Borough Council, it seems that Eastleigh Borough Council erected the sign and stile as part of the "Itchen Hamble Countryside Project". It is understood that Eastleigh Borough Council did not check the definitive map to confirm the legal status of this path, but simply erected a sign on the route where a path appeared to be. Eastleigh Borough Council have been asked to confirm this in writing, but at the date of writing this report, no reply has been received.

8.8 The presence of this sign does not itself prove that the path to which it referred was a public right of way. However, it may indicate that the landowner of route B-E acquiesced in the public use of this path (there is no evidence that Mr Buckett objected to this sign).

9. The actions of the landowner

9.1 Jo-Ellen Ltd was registered as the owner of Lake Farm on 21^st April 1998. On the 8^th May 1998, the Rights of Way section received a letter from Mr Chambers (a local resident), stating that on the 6^th May 1998 he learnt that Mr Peters (proprietor of Jo-Ellen Ltd) intended to fence off the footpaths at Lake Farm. Following this letter, the Rights of Way section received further correspondence from local residents commenting on the actions of Mr Peters, and his intention to restrict access to Lake Farm. A full list of this correspondence is included at Appendix 3.

9.2 In August 1998, Mr Peters contacted the Rights of Way section in order to obtain advice and guidance on the location and management of the definitive rights of way on his land.

9.3 Mr Peters passed away in 2004. His family have been informed of the current investigation.

9.4 It is understood that Mr Buckett owned the land prior to April 1998. User evidence suggests that Mr Buckett did not object to the use of his land by the public. Officers have been unable to interview Mr Buckett.

10 Discussion of the evidence

10.1 There is no historic evidence to support the application.

10.2 Each of the claimed paths appear to have been used without force and without secrecy, and there is no evidence that anyone has ever received permission to use the routes, so use can be said to be as of right.

10.3 For the purposes of Section 31, Highways Act 1980, it is necessary to identify a twenty year period of use, calculated retrospectively from the date on which the use of the path by the public was brought into question. In this case the `bringing into question' can be viewed as a chain of events which began in May 1998 and culminated in the closure of the path on, or around, the 5^th October 1998. The twenty year period of use relevant to the claim is therefore from October 1978 to October 1998.

10.4 Although a number of people have completed user evidence forms in support of the claim, these forms of themselves do not provide sufficient evidence that each claimed path has been used by the public at large. Of those interviewed it seems clear that, although the claimed paths were well used and well worn, the evidence provided on the user forms relates to a variety of different routes (including definitive rights of way). From the evidence available it is therefore impossible to say how many people used each of the claimed routes, and how frequently use occurred on each individual route, and not possible to say that, on balance of probability, each path has been used by the public at large for a sufficiently long period of time to establish a right of way, either through deemed dedication at common law or Section 31 Highways Act 1980, regardless of the actions of the landowner.

11. Comments from the Applicant and the Landowner

A draft of this report was given to the landowner and the applicant to afford them the opportunity of submitting further evidence or making further comment. The following comments have been received:

11.1 Mrs Raff (Applicant) - Comments included at Appendix 4

12 Conclusions

12.1 There is evidence that the paths at Lake Farm have been used for a number of years by a number of individuals. However, it cannot be said that any one of the claimed routes has been used by the public in large. Section 31 Highways Act 1980 cannot, therefore, be satisfied, and the usage is not sufficient to support a deemed dedication at common law.

RECOMMENDATION

That the application be refused

Section 100D - Local Government Act 1972 - background papers

The following documents disclose facts or matters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of this report.

NB The list excludes (1) published works and (2) documents which disclose exempt or confidential information as defined in the Act.

File CR646 - Rights of Way Office, Mottisfont Court, Winchester