Archived decisions

Hampshire County Council Item

Regulatory Committee

30 November 2005

Application for a Map Modification Order for the addition to the definitive map of a footpath between School Road and Footpath 6 in Bursledon Parish

Report of the Director of Recreation & Heritage

Contact: Colin Piper Ext. 6043 [email protected]

WILDLIFE AND COUNTRYSIDE ACT 1981

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

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

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

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

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

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

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

HIGHWAYS ACT 1980

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

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

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

Presumed Dedication at Common Law

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

1. Summary

1.1 A Bursledon resident has made an application to have a track recorded as a public footpath. The claim is supported by evidence from 13 people who used the track between 1918 and 2000. The application is recommended for refusal on the grounds that there is insufficient evidence of use by the public at large and, in any event, the landowners took sufficient steps to inform the public that they had no intention of dedicating a public right of way.

2. Claimant:

    Mrs D Andrewes

    Orchard Hill

    Salterns Lane

    Old Bursledon

    Hampshire

    SO31 8DH

3. Landowners:

    Mr & Mrs Dicks Mr P Dicks

    Bracken Hill Bracken Hill

    School Road School Road

    Bursledon Bursledon

    Hampshire Hampshire

    SO31 8BY SO31 8BY

    Mrs S Mitchell Mr & Mrs Waghorn

    Advent Cottage Longwood

    School Road Kew Lane

    Bursledon Bursledon

    Hampshire Hampshire

    SO31 8BY SO31 8BY

    Mr D Maclaurin Mr L Patten

    37 Manor Road Apartment 112-931

    Farnborough 14th Avenue

    Hampshire Campbell River

    GU14 7HJ British Columbia

              Canada V9W4H3

Ms S Tee Ms K Clegg

19 Upper Northam Road 296 Priory Road Hedge End St Denys

Hampshire Southampton

SO30 4EA SO17 2LS

Mr & Mrs Worsfold Mr & Mrs Davies

Kings Ash Beeze Neeze

School Road School Road

Bursledon Bursledon

Hampshire Hampshire

SO31 8BY SO31 8BY

Mr & Mrs Clarke Mr & Mrs Ellis

Clarke Gables Windfall

School Road School Road

Bursledon Bursledon

Hampshire Hampshire

SO31 8BY SO31 8BY

4. Description of the route (please refer to the two maps attached to this report)

    The claimed path consists of an enclosed track that runs in a straight line between School Road and Footpath 6 (shown A-B-C on map). This track gives vehicular access to a number of properties on both sides and is gravelled between A-B with a width of about four metres. The section B-C has a grass surface and is about three metres wide. At the northern end there is no gate or other obstruction across the track but there is a sign on the adjoining brick pillar which reads: "Private Drive...No public right of way". At the southern end there is a metal field gate across the track with a sign on it which reads: "Private no right of way". The track is approximately 220 metres in length.

5. Background to the claim

5.1 The path came into existence as a cart track for strawberry growers to gain access to their adjoining fields. A well defined route has existed on the ground for many years and, at times, it has been used by people other than the owners of the fields and residents of the houses along the track. This is especially true of the period before the war when there were fewer properties in the area and children used the path to go to and from the nearby school. In what used to be a rural locality, where people lived in a close-knit community, the dividing line between `authorised' and `unauthorised' use can be blurred.

6. The issue to be decided

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

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

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

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

7. Documentary evidence

7.1 1908 Ordnance Survey map - 25 inches to 1 mile

    This large-scale map shows what is now Footpath 6 crossing a large open field. There is nothing between the footpath and School Road other than the village school in the north-west corner of the field.

7.2 1918 Sale plan

    This plan shows that land being offered for sale by the Humphreys Estate. What is now Footpath 6 is shown by parallel pecked lines running in a straight line between Kew Lane and School Road. The large open field north of the footpath is divided into seven, roughly equal, plots. A line has been drawn on the plan on the alignment of today's track, This line separates lots 32 to 34 on the east side from plots 41 to 44 on the west side.

7.3 1922 Photograph

    This photograph was taken at the northern end of the claimed path, looking towards School Road, and shows a family group gathered around a horse and cart. On the right hand side can be seen a small portion of track which leads to a gap where the it meets the road.

7.4 1942 Ordnance Survey map - 6 inches to 1 mile

    Although at a smaller scale than the 1908 map, this map shows a track on that part of the claimed route between A and B. There is no path or track on that section of claimed route between B and C. The map shows three buildings north of Footpath 6. One is probably `Belle Vue' and another `Four Winds'.

7.5 1964 Ordnance Survey map - 1/2500 scale (attached as Map 2)

    This map shows a four metre wide track running south from School Road. On the east side are three dwellings, `Belle Vue', `Wych Wynd' and `Two Acres' and on the west side of the track are three more, `Bracken Hill' `Four Winds' and `Green Roof'. Just past the entrance to the last house the track narrows and continues to Footpath 6 as a `Path'. There are no lines across the track/path to indicate the existence of gates or barriers.

7.6 1972 Ordnance Survey map - 1/2500 scale

    This map shows a `Track', four metres wide, running all the way from School Road to Footpath 6. There are still three houses to the east of the track and three houses to the west of the track with the same names as shown on the 1964 map. There are no lines across the track to indicate the existence of gates or barriers.

7.7 1983 Letter from Eastleigh Borough Council to residents

    The letter is dated 22nd March and addressed to Miss Egerton and Mrs Crosley at `Four Winds'. It reads in full:

    "Thank you for your letter representing the various owners at Bellevue, Bursledon. The `path' marking you refer to is contained on the Ordnance Survey 1:10,000 scale base map which was used to prepare the Conservation Area plan. Paths marked on such Ordnance Survey maps do not necessarily indicate a public right of way and, as you point out, this is the case here. To avoid any confusion the base map has, as you suggested, been amended so that future plans will have the word `path' deleted at this point."

7.8 2000 Application for Map Modification Order and Statement

    Mrs Andrewes made the application on 25th August 2000. It was accompanied by a statement from her which reads as follows:

    "I have known this path since 1964, when I came to live in Bursledon. One of the landowners at Four Winds insisted that it was not a public right of way, but as she was elderly and much respected, the people who used it did not make an issue of it nor challenge what she said, but continued to walk it. She has since died. I have not completed a form because, on one occasion, she said she was giving me permission to walk the path. More recently, most of the properties along the path have changed hands and the new landowners have become very aggressive and possessive, putting up PRIVATE notices, challenging young mums walking their children to school and now actually obstructing the path.

    Simultaneously, the need for the path is greater now than for the last fifty years. A nearby council estate at Pilands Wood has been re-developed, increasing the density. The houses are occupied, in the main, by young families. Unfortunately, there is no safe route to school. The Borough Council is looking into school transport plans and is very much in favour of walking buses, where parents take it in turns to escort a group of children walking to school. Ironically, two of the mums who were pioneering this scheme of their own volition and using the claimed footpath to get off the dangerous road, are the ones who have completed application forms which describe the threatening behaviour of the landowners. They have had to stop using the path because of the obstruction. It is they who have provided the impetus to make the claim.

    The path has been threatened recently by five applications for development by landowners. Fortunately, the Local Plan policies have been robust enough to defeat the applications. However, we cannot expect this situation to continue and the path needs the protection that inclusion on the Definitive Map would allow. A letter from the Borough Council is enclosed demonstrating the support of the highway engineers for this project. The Chair of Governors of the Infant's School supports the claim. It is clear from the evidence of older Bursledon residents that the path has been used by the public as of right for most of this century and for the sake of the present generation of children I hope we can formalise its status now."

7.9 2005 Land Registry document

    The property register for `Four Winds' records the fact that the land changed hands in 1918 and at that time the vendor reserved a private right of way for himself and others over the claimed route.

8. User evidence

8.1 The applicant submitted twelve forms completed by people who claim to have used the path. A statement has been taken from another user who came forward during the investigation. For a visual representation of that use please see the chart at the back of this report. The thirteen users, in alphabetical order, are:

8.2 Mrs G Andrewes

    Mrs Andrewes used the path from 1971 to 1978, approximately 10 times a year, to walk to school in Long Lane. She states that during her period of use there was a `Private Path' notice in place at the southern end of the claimed route. She also recalls being told not to use the path as it was private.

8.3 Mrs D Barham

8.3.1 Mrs Barham was born in the Jolly Sailor pub in Old Bursledon in 1912 and she lived there, or in nearby Woodbine Cottage, until 1935. She attended the village school in School Road from the age of five until she left in 1926 at the age of fourteen. At that time the field behind the school was divided into allotments and the first house that was put up there was `Belle Vue' which was built by Jim Smith while Mrs Barham was still at school. Mr Elliott owned or rented the field immediately behind the school.

8.3.2 There was a path about wide enough for a horse and cart, down the middle of the allotments, that led to the public footpath. After finishing school Mrs Barham would walk down this track with her friends and turn left at the bottom then out to the road at Ladymead as an alternative way home rather than walk down Lodge Hill. She didn't know who owned the allotments on either side but nobody ever stopped her. Mrs Barham went to school with Margaret Egerton, later Mrs Crosley. Miss Egerton didn't live at `Four Winds' then, she lived at `The Vine' pub in the High Street, Bursledon.

8.3.3 Mrs Barham moved to her present address in September 1935 when she got married. After she left school she only occasionally walked down the track, between the allotments, usually on Sunday evenings with her family. These regular walks stopped before the war but she might have occasionally walked down the track with her son after the war. Mrs Barham does not remember there being any signs or notices along the track to say that it was private.

8.4 Mr R Barham

8.4.1 Mr Barham attended Bursledon school in School Road from 1944 until 1950. From an early age he used to go for walks with his family along the track between School Road and Footpath 6, especially on Sunday evenings. The track consisted of two worn ruts with a grass strip down the middle. As a child he also used the track, with his friends, to get to Dirty Lane and Salterns Lane, which led to the marshes, where they would play.

8.4.2 Mr Barham's great-grandfather, Hugh Knight, was originally a strawberry grower who had land near the church. When Mr Barham knew him he worked on an allotment immediately at the end of the claimed track on the other side of Footpath 6. At the time his grandfather lived in Providence Hill and he used the track as the quickest way to get to and from the allotments. He didn't stop working the plot until he was well into his 90s, probably about 1950.

8.4.3 As an adult Mr Barham has continued to occasionally use the track to get to and from The Vine in the High Street. The path provided the quickest way through from his house to the pub. The first time he was stopped when using the track was in September 2000 by the Allens who lived in the first house close to School Road. Mr Barham has not been aware of any locked gates across the track although he does remember a piece of string suspended across the track at the bottom end which he was able to step over. Mr Barham believes there used to be a public footpath sign in the hedge at the School Road end.

8.5 Mr C Greening

8.5.1 Mr Greening was born in 1919, in Lowford, and attended the village primary school in School Road from 1924. At that time there was a large strawberry field behind the school and allotments south of the public footpath between Kew Lane and School Road. In the late 1920s there was only one house in the locality; it was called `Belle Vue' and it belonged to Jack Scrase. The strawberry field was divided into several lots owned by different families and Mr Greening knew them all. There was a cart-road down the middle of the strawberry field that led all the way from School Road to the public footpath and the allotments.

8.5.2 Mr Greening used to walk down the cart-road, with his friends, after school and at week-ends and would see other people doing the same. Mr Greening used the path on a weekly basis from 1925 to 1934 and about 4 or 5 times a year between 1935 and 1972. He used the track for summer evening walks on Sundays, with his father, to inspect the strawberries growing alongside the path.

8.5.3 Mr Greening doesn't think there were any signs in place along the way. Mr Greening finished school in 1933 or 34 and started work in Woolston. He has been back on odd occasions to walk down the claimed path with his wife. His wife's family, the Fishers, had a strawberry field off the track. The path was not gated or blocked-off and he was not stopped from using it. Mr Greening recalls that his brother was stopped by a local resident about fifteen years ago. He contested her right to stop him and was amused by her behaviour. His brother had walked there since childhood.

8.6 Mrs J Hayes

8.6.1 Mrs Hayes was born in 1931, in Sholing, and at the age of five months she moved to Hungerford where she has lived ever since. From the age of five Mrs Hayes attended the old village primary school in School Road. She used the public footpath that runs from Kew Lane to School Road, as a child, and at that time there were allotments on the right hand side of the path and strawberry fields on the left hand side. There was a path or track up the middle of the strawberry fields that led from the footpath to School Road. This path was used by the strawberry carts. Her mother picked strawberries in those fields for the Elliotts and, as a young girl, Mrs Hayes picked strawberries there, for the Ewers, for pocket money.

8.6.2 Sometimes Mrs Hayes would use the path up the middle of the strawberry fields, with her friends, to get to and from school. After she left school she would occasionally use that path to go for walks and bike rides, especially in the summer and at week-ends. Mrs Hayes has continued using the path as an adult for recreational walks and last walked that way three or four months ago. She opened the gate at the bottom end and walked through to School Road. On average she has used the path about once a month.

8.6.3 Throughout her life Mrs Hayes has never been stopped from using that path. She has seen Miss Egerton and Mrs Crosley, as she walked along the track past their house, but they didn't say anything to her. Mrs Hayes has never visited anyone in the houses along the track. She does not recall there being any signs or notices along the path when she was younger. When Mrs Hayes completed the user evidence form in December 1999 she did acknowledge that there was a `Private' notice along the route but she didn't know when it was put there.

8.7 Mrs J Kimish

8.7.1 Mrs Kimish was born in 1927 in Waterside (Lands End Road) Bursledon and attended the old village school, in School Road, from the ages of five to eleven. When she was a child the land behind the school was owned or rented by a number of individuals and used for agriculture. There was a track which led from School Road down to the footpath between Kew Lane and School Road. This track was used by carts belonging to the people who had the strawberry and vegetable plots on both sides. Along the track there was a bungalow called `Four Winds' which was lived in by Mr and Mrs Egerton and their three daughters.

8.7.2 Mrs Kimish used this track, with her friends, to get to and from school as an alternative route to the road. At least ten of her friends used that path with her to walk to school. Nobody stopped Mrs Kimish, she just assumed that they could go that way and there were no signs then to say it was private. As an adult she continued to use the track, about once a month, for walks around the village.

8.7.3 Some people by the name of Scrase lived at a house called `Belle Vue' in School Road. Their son, Jim Scrase, had a house built alongside the track next door to `Belle Vue'. This house was called `Wych Wynd' and Jim Scrase put up a `Private' sign at the entrance to the track from School Road, probably in the 1940s or 1950s. Someone put a small chain across the track at the bottom end but it was possible to walk round it. Mrs Kimish doesn't think that there was a sign at that end.

8.7.4 In 1957 Mrs Kimish and her husband were walking down the track, pushing a pram, when they were approached by Millie Egerton who lived at `Four Winds'. Miss Egerton said that they shouldn't be using the track because it was a private pathway. Mrs Kimish can't remember whether they turned round or carried on but she doesn't think that she walked down there again after this incident.

8.8 Mrs S Nelson

    Mrs Nelson used the path for one year between 1999 and 2000 as a safe route to collect five children from school. She recalls that there was a private sign along the route. She was stopped by the owner of `Beeze Neeze' who told her that she had no right to use the path.

8.9 Mr D Parker

    Mr Parker used the path on a weekly basis from 1941 to 1946 and monthly between 1947 and 1960. He also used it on a bicycle from 1941 to 1946. He recalls that "As a child I delivered newspapers to houses in the vicinity and used the path. Two public footpath signs were at either end." He also used the path to "go fishing, visiting, courting, going to school and sometimes to help pick strawberries on the fields on either side - my mother worked there."

8.10 Mr C Shuttler

8.10.1 Mr Shuttler was born in 1921 and attended the village school from 1929 to 1936. The land behind the school was owned or rented by Gilbert Elliott and `One-Ton' Elliott - so called because of his size. His father, George Shuttler, had an allotment on the south side of the public footpath between Kew Lane and School Road. It was one of four plots in the top corner of the field, near Kew Lane. There was a gravel road that led from School Road to the Egerton's house called `Four Winds' but beyond that, towards the path and allotments, it was an ordinary grass track. When Mr Shuttler was a boy at school he used the track to pinch strawberries and later in life to go courting.

8.10.2 Mr Shuttler started work at the Old Bursledon Stores in 1936 as an errand boy. He used to deliver groceries to Mrs Egerton on a bicycle. He went up School Road and then down the public footpath and up the cart track to `Four Winds'. He sometimes continued from there to School Road or sometimes retraced his route back down the track. At the start of the war he knew everyone in Bursledon. The people who lived south of School Road included Reg Dicks at `Bracken Down', the Egertons and their two daughters at `Four Winds', Jack Scrase at `Belle Vue' Jim Scrase at `Wych Wynd' and Arthur Fox at `Two Acres'. The Fishers and Alf Fox had strawberry fields at the bottom near the public footpath. Mr Shuttler knew all of the strawberry growers but he did not work for any of them. He was in the army during the war and lived away from Bursledon from 1941 to 1945.

8.10.3 Mr Shuttler has walked with his father down the track through the strawberry fields, to get to his allotment, both before and after the war. His father told me that, during the war, old Jack Scrase had stopped him and told him he shouldn't be there, or something like that, but Mr Shuttler's father ignored him and carried on his way. His father had a hand-cart which he used to move heavy items like potatoes and manure between his allotment and home in Lowford. The easiest way to do that was to use the track up to School Road and then along Long Lane to Lowford avoiding the hill on Kew Lane.

8.10.4 Mr Shuttler's wife used to take his father a bottle of cold tea when he was working on his allotment. To get there she walked from Lowford, down School Road, and then down the cart track. His father gave up his allotment in about 1950 but Mr Shuttler still went for walks down the cart-track, sometimes on his own and sometimes with his family, on average about once a fortnight. While they were growing strawberries in the fields the carts kept the grass down on the track. When that stopped, in about 1950, the southern part of the track, beyond `Four Winds', became overgrown but it was still possible to get through.

8.10.5 For 20 years, from 1946 to 1966, Mr Shuttler did gardening on summer evenings and Saturday afternoons in the winter for Captain Davis who lived at Kew House in Kew Lane. To get to and from Kew House, Mr Shuttler used to cycle down the claimed track. Nobody has ever stopped him from using the track. He does not remember there being any signs or notices along the cart track and there was nothing across the track, like a gate. He has seen Millie Egerton and Mrs Crosley when he's walked down the track and they didn't say anything to him. About six years ago the man who had the bottom plot put a chain across the track but Mr Shuttler was still able to step over it or walk around it. The Shuttlers left Jarvis Fields for Netley about five years ago and they haven't been back since.

8.11 Mrs E Shuttler

    Mrs Shuttler used the path weekly or daily from 1940 to 1947 and infrequently after that until 1990. Her journey was for courting and delivering tea.

8.12 Mrs J Sullivan

    Mrs Sullivan used the path for one year (1999-2000) as a safe route to take and collect five children from school. She believes that it was public because "My friend told me it was on a local map as a public footpath and therefore I had a right to use it."

8.13 Mrs O Thompson

    Mrs Thompson has written a letter to accompany her completed user form. It reads in part:

    "I was born at Oaktree Cottage, Hungerford Bottom on 14th July 1928. My mother's parents lived here...and every school holidays we were at Bursledon. At 17 years my grandmother died and I came here to look after my grandfather. My mother's friend, Mildred Egerton, lived at Four Winds, so from a very early age we went to see her. My brother and I went everywhere together in school holidays and extensively walked anywhere. Mainly the copses, the creeks and Old Bursledon. We had one aunt living at Greydowns and another on the corner of Long Lane and School Road. We sometimes played with Jack Scrase who lived at Belle Vue. As this (claimed) path was more or less in the middle of people we knew, we often used it. My uncle had a strawberry field on one side of the path and I picked strawberries for him, also two more uncles had a field at the end and used a tractor through the path to reach their field. Of later years I was taking Miss Egerton to the Eye Hospital... regularly so I used my car to get to Four Winds. I can honestly say that I have used this footpath a great many times over the last seventy years and delivered a Christmas card there - Four Winds - on the 16th December 1996 - the last known time."

    On the map that accompanies her letter, Mrs Thompson has written "Uncle Walter's strawberry field" in the space now occupied by the dwelling known as `Two Acres'. On the user form Mrs Thompson recalls that there was a `private' sign along the route but doesn't say when it was in place.

8.14 Mrs D Wellstead (deceased)

    Mrs Wellstead used the path weekly from 1919 to 1928 and most days between 1956 and 1966. For purpose of journey she has written "Going to Sunday School and paper round. On Sunday I took a cake from my mother to the village midwife who lived in High Street on the way to Sunday School." She recalls the existence of a `Footpath' sign on the route but doesn't say when or where. Mrs Wellstead also recounts being stopped by the owners of Four Winds but doesn't know when this occurred. She also acknowledges that part of her use was associated with the exercise of a private right in visiting Four Winds and delivering newspapers.

9. The landowners

9.1 In 2000, seven of the then landowners of the path submitted the following letter to the County Council. It reads, in part:

9.1.2 `This is not a path, it is a private driveway leading to, and for exclusive use of, the land frontagers. In the first instance, each owner of land agreed to move their fenced boundary back by 7 feet 6 inches, to create a 15 foot private drive between each plot in order to allow the horse-drawn carts access to the strawberry crops that were originally grown on the land. This is shown clearly on the deeds of each property owner.

9.1.3 Two of the current landowner's families, Mr R Dicks of Bracken Hill and Mr D Fox of Two Acres, have owned the land for nearly 70 years. Mr Dicks is now 70 years old and he can testify that there has always been a notice at the entrance to the drive clearly stating that it is a private way.

9.1.4 When the area in question was used extensively for growing strawberries, many local people would have been employed as pickers and packers - during this time they would obviously have used the drive to gain access to the fields. In the late 1930s dwellings were built on the land and since that time many people would use the drive to visit the residents. Over the past 30 years however, anyone found walking the drive between footpath number 6 and School Road has been challenged and informed that they were in fact trespassing as the drive was not a public footpath and was not a public right of way.

9.1.5 Mrs Margaret Crosley, who lived at Four Winds prior to Mr & Mrs Howard, worked tirelessly to advise people that they had no right of way. This can be borne out by many of her friends - including Mrs Diane Andrewes, who is well aware of Mrs Crosley's life-long mission to prevent people walking `over her front garden'. Mrs Crosley successfully challenged the Ordnance Survey when the drive was shown as a public footpath on one of their maps and they agreed to amend and correct all future editions."

9.2 Statement from Mrs M Crosley (deceased)

    On 6th April 2001, Mrs Margaret Crosley made the following statement:

    "I wish to put on record that my family and I lived at `Four Winds', School Road, Old Bursledon since 1934, the year that the bungalow was built, and I finally moved out in 1999 due to ill health. Throughout this period, my sister and I regularly challenged anyone attempting to use the private drive other than for visiting residents fronting it, and I was even successful in challenging the official Ordnance Survey map that incorrectly showed it as a path. Subsequent maps now show it correctly to be a drive thanks to my efforts. I think it should also be noted that throughout this period I also worked on behalf of the Parish to retain certain public footpaths that were in danger of being lost."

9.3 Mr R Dicks of `Bracken Hill'

9.3.1 Mr Dicks was born in 1927 in Lowford near Bursledon and he has lived at his present address since 1960. His grandfather was a strawberry grower who, in 1916, acquired the tenancy of a plot of land in a large field just south of the old village school in School Road. In 1918 this field was divided into seven parcels and put up for sale as part of the Humphrys Estate and his grandfather bought lot 44 which is now part of his property. Mr Dicks' uncle owned part of the neighbouring plot, number 43, and also used it for growing strawberries.

9.3.2 Mr Dicks attended the old village school from 1932 to 1938 and one of his first memories was leaving school in the afternoon to join his mother who was picking strawberries for her father. At that time there was a cart track that led from School Road almost to Footpath 6. This track served the land on both sides which was all used for growing strawberries. As a child Mr Dicks remembers there was a notice at the entrance to the track from School Road. He recalls that as you entered the track it was on the left hand side, on a piece of heavy angle-iron, and it said `Private Way'.

9.3.3 The first house that was built in the field was `Belle Vue', where a house called `Beeze Neeze' now stands. Mr Dicks knows it was definitely there in 1932 because his friend Jack Scrase lived there with his parents. The houses known as `Four Winds', `Green Roof' and `Fairview' were built later, probably in the 1930s. In 1959 Mr Dicks bought a small plot of land from his uncle and built the house called `Bracken Hill'. He moved there in 1960 and has lived at this place ever since. In 1960 strawberries were still being grown on the land with a track down the middle to serve the fields.

9.3.4 At some stage the `Private' notice at the entrance to the track was damaged by a coal lorry so it was erected on the brick outbuilding of Belle Vue. Over time the notice became worn and, in the late 1960s, a Mrs Primrose who lived in Wych Wind (now called Kings Ash) had another notice made and erected on the same brick building. It was a larger notice that said `Private Way leading to...' followed by the names of the houses along the track, and ended with `children playing please drive slowly'. When the workshop was demolished, in the 1990s, the notice was put up on a post instead. The current `Private' notice was put up when the brick pillars were built about five years ago.

9.3.5 There has also been a `Private' notice at the other end of the track where it meets Footpath 6 but it has been vandalised at times and replaced by the residents. Mr Dicks states categorically that there has never been a `Footpath' sign at either end of the claimed track. He thinks that people were confusing this with the signs on Footpath 6.

9.3.6 During the time that Mr Dicks has lived at Bracken Hill he has challenged people who should not have been using the track and he's seen and heard his neighbours doing the same. Most people who used the track were connected with the strawberry growers or the houses along the way. In the 1970s he saw Captain Mitchell walking along the track, reading a newspaper, with his dog running loose over his garden. Mr Dicks challenged him and told him the track was not a public path. Captain Mitchell accepted that and didn't return. Through the open windows of his house he has heard Mrs Brown who lived at `Green Roof' (now `Longwood') challenge people on the track. This must have been in the 1960s.

9.3.7 Margaret Crosley and Millie Egerton, who were sisters, lived at `Four Winds' (now Advent Cottage) from 1934. after Millie Egerton retired in the late 1960s she would spend fine days, outside, reading her book. Her favourite place was on an old horse plough, by a shed at the side of the track, in the field just south of her house. If anyone came along the track, who didn't have a right to be there, she would stop them and turn them back in a very determined way. This carried on until Millie left for a nursing home in about 1996. Mr Dicks has also seen and heard Margaret Crosley stop people using the track. She lived on the Isle of Wight when he first moved there but she returned to `Four Winds', probably in the late 1960s, and from that date until she left in 1999 she would challenge people on the path. She was a very determined lady and Mr Dicks has seen her chase people down the track to tell them it was private.

9.4 Mr & Mrs Waghorn of `Longwood'

9.4.1 Mr & Mrs Waghorn moved to their present address in September 1981. At that time the gravel track that leads from School Road to their property was in a poor condition with water filled pot-holes along the way. The continuation of that track, to Footpath 6, consisted of an untended grass path but you could make your way easily through it.

9.4.2 At the entrance to the track from School Road there was a notice on the left hand side attached to a concrete outbuilding which was part of `Kings Ash'. It said something like `Private Way - take care children playing'. Shortly after Frank Allen moved into `Kings Ash' he pulled down the concrete outbuilding. The old `Private' sign was replaced with another on a wooden post, this time on the other side of the track. The new notice said `Private Drive' followed by the names of the houses along the track. All or most of the residents contributed to the cost of that notice. That in turn was replaced about five years ago by the sign that is still in place today. Frank Allen paid for the new brick pillars on either side of the track and the notice that is attached to the right hand pillar. Again, all or most of the residents contributed towards that work.

9.4.3 When Mr & Mrs Waghorn arrived at Longwood in 1981 there was a home-made sign at the end of the grass track where it met Footpath 6 saying `Private Way'. Margaret Crosley of `Four Winds' told them that she had put it up. A few years later they replaced Mrs Crosley's notice with a properly made sign which said `No Entry' and this was suspended from a metal chain that was across most of the track. Within about a year that sign was vandalised and this time David Fox at `Two Acres' replaced it with a sign that he had made up. Mr & Mrs Waghorn can't remember exactly what it said but they think it included the word `Private'. That sign was replaced about eight years ago by John Davies of `Beeze Neeze' who put up a padlocked gate across the grass track with a `Private' sign on it. They have never seen a footpath sign at either end of the track.

9.4.3 Over the years both Mr and Mrs Waghorn have challenged people they didn't know who were using the track, including new residents, and friends and family who were visiting the houses along the track. This has happened infrequently and mostly during the summer months. Mrs Crosley at `Four Winds' told them that she stopped people using the track. She was a keen gardener and she was always pottering around outside her house. She would stop anyone if she believed that they did not have a right to be there.

9.5 Mrs S Mitchell of `Advent Cottage' previously `Four Winds'

    From about 1965 Mrs Mitchell lived in a house called `Ladymead' which is situated in School Road just on the south side of Footpath 6. She has walked along Footpath 6 but in the time that she lived at `Ladymead' she did not walk along the claimed track from Footpath 6 to School Road. Mrs Mitchell does not recall if there were any signs or notices at the ends of the track. In 1971 her daughter, who was five at the time, was due to attend the village primary school just along the road from their house. Rather than have her walk along the road Mrs Mitchell asked Miss Egerton at `Four Winds' if her daughter could use the claimed track, past Miss Egerton's house, to walk to school. The response was firmly `No'. At Christmas time last year Mrs Mitchell moved from `Ladymead' to `Four Winds' which has now been re-named `Advent Cottage'.

9.6 Mrs Davies of `Beeze Neeze'

9.6.1 Mrs Davies was born in Providence Hill, Bursledon, in 1951 and moved to Bridge Road when she married in 1976. From the age of five she attended the old village primary school in School Road. As a child she walked everywhere in the village, including Footpath 6 between School Road and Kew Lane, but she did not walk down the claimed path between Footpath 6 and School Road because she knew that she wasn't allowed there.

9.6.2 When Mrs Davies was in her late 20s she went for a walk with her sister down Footpath 6. As they got to the junction with the claimed path Mrs Davies said to her sister "Let's try and go down that way". She knew David Fox who lived in `Two Acres' because she went to school with him. As they got close to the bungalow called `Four Winds' they were stopped by Mrs Crosley who said something like "Where are you going?". They apologised and either turned back or carried on, Mrs Davies can't remember. That was the only time she tried to use that path before she lived at `Beeze Neeze'.

9.6.3 In about 1995 Mrs Davies and her husband bought the house called `Belle Vue'. At that time the house was empty and in poor condition. They applied for planning permission to demolish the old house and build a new one on the same site. The application was refused but they appealed and that appeal was heard by an Inspector from Bristol. The Inspector conducted a site visit with Mrs Andrewes, representing the parish council, and the Davies. The Inspector wanted to look at the surrounding area and started to walk up the track but Mrs Davies told him "It's a private track you can't go up there". She believes there must have been a `Private' notice in place for her to have said that. The Inspector went up the track with Mrs Andrewes but Mrs Davies and her husband stayed by the road. The appeal was allowed, the house was built and they moved here in June 1997. Access to this house was directly from School Road; they did not have a right of way down the claimed track at that time.

9.6.4 In 1998 Mr & Mrs Davies bought the paddock behind their house and this gave them part ownership of the claimed track and a private right to use the whole length. Shortly after they bought the paddock Mrs Davies walked down the track from School Road to exercise the dogs. Part of the way down she was challenged by Mrs Waghorn of `Longwood' who was in her car. Mrs Waghorn asked Mrs Davies what she was doing there because it was a private track. Mrs Davies explained who she was and where she lived and Mrs Waghorn accepted that and Mrs Davies carried on walking down the track. From then on she has used the track twice a day to walk her dogs.

9.6.5 When Mrs Davies first walked along the track she remembered there was a chain across the path, at its junction with Footpath 6, with a `Private' notice suspended from it. The southern half of the track was overgrown and difficult to walk so her husband started to mow it regularly for their own benefit. At some stage her husband replaced the chain and notice with a metal gate and new `Private' notice that he had made up. The gate has been locked at times and all the residents given keys. In the last three years Mrs Davies has stopped people from using the track on three occasions.

10. Other evidence

10.1 The County Council has also been supplied with 12 letters from local residents who have some knowledge of how the track has been used and managed over the years. Some of the writers were previous owners of houses on the track, or are related to owners of land adjoining the track, but many are not. In alphabetical order they are:

10.2 Mr F Allen of Long Lane (previous owner of Kings Ash)

    "I have lived in the Parish of Bursledon for over 54 years. I purchased `Kings Ash' in September 1997 and part of the planning permission stated that I had to demolish a block built workshop at the entrance to the drive. There was a pillar like structure at one corner and there was, on the corner, a notice stating that it was a private drive and not a public right of way. Within a year I built two new piers on which the names of the residents were posted and clearly stating that it is a private drive. While I was a resident at `Kings Ash' I did draw peoples' attention to the fact that it was not a public footpath. The majority accepted my request and turned around. One person only to my knowledge defied my remarks and did not stop."

10.3 Ms H Eynon of Kew Lane

    "Having been a resident of Old Bursledon since 1984, I walked the public footpath between School Road and Kew Lane daily for many years. During this time I have always been aware that the track that leads off this public footpath...has always been private property. There has always been a notice...at the entrance to the track to deter potential trespassers."

10.4 Mr P Fisher of Kew Lane

    "I was born in 1934 and have lived in Salterns Lane and Kew Lane all my life. My grandfather, George Fisher, purchased one of these plots now known as Advent Cottage and land either side of it, which he sold in the1930s. The track has always been private property and no public right of way. When I went to school in the early 1940s, there was a notice board stating it was `private' erected on the side of the track as you entered from School Road and has always been there."

10.5 H Gorley / J Towle of High Street

    "We have lived here for over fifty years and to the best of our knowledge this path has always been a private right of way. We have always respected this..."

10.6 Hopson family of Netley Abbey

    Four members of the same family have written separate letters to make the same general point. This is best summed up by Helga Hopson who writes:

    "...my husband and I lived in Salterns Boatyard for 15 years. With our four children we walked the area everyday and always respected the signs on the track in question as `Private' and never as a public footpath. They were clearly indicated on both sides."

10.7 Mrs H Moneypenny of Long Lane

    "In about 1961 I moved to a house called `The Old Rectory' in School Road, Bursledon. From that date I used to regularly walk on the paths and roads in the locality, including the public footpath from Kew Lane to School Road. For the first three years my walks were mostly with my husband but then, from 1964, with children in a pushchair. I moved to my present address in April 1965. I have never walked the claimed path between School Road and Footpath 6 because I regarded that route as private. It had the appearance of a market garden and I didn't think that I had the right to go down there. I do not recall there being any signs and notices when I first lived in the village but for the last 12 to 15 years there has been a `Private' notice suspended from a chain at the bottom end of the track where it meets Footpath 6. Until 18 months ago I was still walking the paths and roads in the area but I have never used the claimed track."

10.8 Mr R Payne of Hamble

    "I have been a frequent visitor to the Dicks family at `Brackenhill' during the last 12 years...I would like to point out that on entering the driveway the first thing one becomes aware of is an extremely noticeable sign making the statement that it is a private way. A sign has been displayed in this position during the whole of the 12 years spanned by my visits."

10.9 Mrs A White of Providence Hill (mother of current owner of Beeze Neeze)

    "I was born in Bursledon. My grandfather was an allotment holder for many years so I remember when the private road was a track owned by the landowners but over which the tenants had the right of way for hand or small horse-drawn trucks to transport their crops from their plots."

10.10 Ms J Young of Lowford

    "This is to inform you that the private drive, which serves Kings Ash and other properties...has never been in my life time (69 years) a public right of way."

11. Consultations with other bodies

11.1 Bursledon Parish Council

    A parish councillor responded on 29 September to say:

    "Bursledon Parish Council have asked me to inform you that a vote taken concerning the proposed footpath from Kew Lane to School Road was unanimously rejected at last nights parish council meeting. Members of the public, senior citizens, said the land over which the path is proposed has always been private."

11.2 Eastleigh Borough Council

    The Principal Development Engineer for the Borough has replied as follows:

    "The path would make a further `Safe Routes to School' link to the Bursledon Junior and Infants Schools to be available as an alternative to the use of Hungerford / School Road / Kew Lane for the numerous children who walk from Pylands Estate via Bursledon Footpaths 502 and 7."

11.3 County Councillor K House - local member

    No comment

11.4 The Ramblers Association

    No comment

11.5 Environment Department

    If the path were to be recorded as a public right of way, would like to see measures taken to prevent the use of the path by motorcycles.

11.6 Hampshire Highways

    "Our records do not show any maintenance responsibility for this path."

12. Analysis of the evidence

12.1 In using s.31 of the Highways Act 1980 to determine the application, it is necessary to identify when the public's right to use the path was brought into question. An individual being stopped by a resident does not necessarily fulfil that requirement because the `questioning' has to be brought home to a wider audience. This could be achieved by the erection of a sign, the locking of a gate or the application for an Order being made to the Highway Authority.

12.2 It is very difficult to establish a date for the erection of a notice because there is evidence from Mr Dicks (paragraph (9.3.2) that a notice has been in place since at least the 1930s. A gate was erected by Mr Davies in about 1999 / 2000 (paragraph 9.6.5) but there is no evidence for the precise date of this action. However, the erection and locking of the gate seems to have occurred at about the same time as the application was made so, for the purposes of this report, the year 2000 will be taken as the `bringing into question'.

12.3 In the 20-year period that preceded the application, that is 1980 to 2000, there is evidence of use from seven people of whom only one, Mr Barham, claims use for the full period. Two other users, Mrs Nelson and Mrs Sullivan, have only one years use each. It would be difficult to describe this low level of use as being representative of use by the `public at large'. There is more evidence of public use in the period before 1960 but without a bringing into question this evidence can only be considered in the context of a common law dedication.

12.4 For a common law dedication to succeed it must be demonstrated that the landowners intended to dedicate the way as a public footpath. Although this might be inferred if use by the public was so obvious that the only reasonable explanation for the landowners failure to stop it was that they must have intended it to be a public path. Before 1960 there is evidence of use from ten people, two of whom used the path since its inception. In what was, at that time, a rural area it is possible that ten users could have generated sufficient traffic for use of the path to have been obvious. It is still necessary, however, to look at any evidence that the landowners did not intend the path to become public.

12.5 The documentary and user evidence demonstrates that a path or track was established on the ground shortly after the land was sold by the Humphrys Estate in 1918. The purpose of the track, when it was first constructed, was to serve the numerous agricultural plots on each side, enabling the landowners to import and export materials and produce. The path or track also provided an incidental connection between School Road and a public footpath now known as Bursledon 6.

12.6 From the user evidence it is apparent that the access track was used before the Second World War by the wider local population as well as those who worked in the fields. The most notable use seems to be by children attending the village school which was located in the north-west corner of the field. The cart track provided a convenient route for children walking from Old Bursledon village to the school. This use seems to have been accepted, or at least tolerated by the owners, because the older users are clear that they were not stopped from this activity.

12.7 The character of the area changed after the Second World War. The strawberry fields gave way to residential development and the allotments south of Footpath 6 ceased to be worked. The residents who now lived along the track became more protective of their interest in the land and there is independent evidence, from the war onwards, that `Private' signs were in place along the route. This was reinforced in subsequent years by residents challenging some people who were using the track.

12.8 Some users claim that they were not stopped after the war and there are two possible explanations for this. The obvious one is that they were not seen by the residents but the other explanation could be that some users who were long-term residents of the village and who had family, friend or work connections with the residents were allowed to use the track without being challenged. A good example of this would be the Barhams and the Egertons. These families kept the two pubs in the village and Mrs Barham went to school with Mrs Crosley (nee Egerton). Some of the users and the residents were also connected through the strawberry growing industry.

12.9 Some of the users, and other residents without an interest in the land, provide evidence that the landowners took action to prevent the public acquiring a public right of way. There is also documentary evidence from 1983 that Miss Egerton and Mrs Crosley denied the existence of a public right of way. This evidence carries greater weight than declarations made by landowners after the claim was made in 2000. This evidence is summarised, in chronological order, as follows:

12.10 Early 1940s - Mr Fisher (paragraph 10.4) recalls that there was a `Private' notice erected on the side of the track at the School Road end.

    Early 1940s - Mr Shuttler (paragraph 8.10.3) mentions that his father was stopped by Jack Scrase during the war.

    1940s or 50s - Mrs Kimish (paragraph 8.7.3) states that Jim Scrase erected a `Private' sign at the entrance to the track from School Road.

    1957 - Mrs Kimish (paragraph 8.7.4) and her husband were stopped by Millie Egerton

    1964? - Mrs D Andrewes (paragraph 7.8) is aware that one of the landowners at Four Winds insisted that it was not a public right of way. Was given permission to use the path.

    1971 - Mrs Mitchell (paragraph 9.5) asked permission from Miss Egerton for her daughter to use the track and was refused.

    1971-78 - Mrs G Andrewes (paragraph 8.2) states that during the period of her use there was a private sign in place at the southern end and that she was stopped from using the path.

    1983 - Miss Egerton and Mrs Crosley (paragraph 7.7) write to Eastleigh Borough Council protesting about the depiction of the track as a public path.

    1984 - Ms Eynon (paragraph 10.3) states that there has been a `Private' notice at the southern end of the track from this date.

    1990 - Mr Greening (paragraph 8.5.3) relates that his brother was stopped by a woman.

    1990 - Hopson family (paragraph 10.6) four people state that there have been `Private' notices at both ends of the track from this date.

    1990-93 - Mrs Moneypenny (paragraph 10.7) remembers there being a `Private' notice at south end of track from this date.

    1993 - Mr Payne (paragraph 10.8) mentions existence of a `Private' sign at school road end from this date.

    Date unknown - Mrs Hayes (paragraph 8.6.3) acknowledges existence of a `Private' sign on user form but doesn't give date.

    Date unknown - Mrs Wellstead (paragraph 8.14) recalls being stopped by the owners of `Four Winds' on user form but doesn't give date.

12.11 The fifteen pieces of evidence listed above, plus the evidence from the existing residents, provide a compelling picture of landowners taking steps to preserve the private nature of the track from 1940 to 2000. They probably were not able to challenge everyone who attempted to use the track and perhaps some people were allowed to use it without challenge. Nonetheless, their actions are more than adequate to demonstrate that they had no intention of the track becoming a public right of way in this period.

12.12 The only way in which a claim for a public right of way over this route could possibly be substantiated would be on the basis of use before the Second World War. However, the amount of user evidence is, not surprisingly for this era, low with only four identifiable users and there is still evidence from Mr Dicks that a `Private' sign was in place from the 1930s onwards.

13. Conclusions

13.1 A path or track has physically existed on the ground for a period in excess of 80 years.

13.2 There is evidence that the path has been used by some members of the public during that time.

13.3 The public's right to use the path was brought into question in 2000 with the application for a Map Modification Order and the locking of a gate.

13.4 The relevant period for consideration, using s.31 Highways Act 1980, is 1980 to 2000.

13.5 Within the period from 1980 to 2000 there is evidence of use from seven people of whom only one has the full 20 years use.

13.6 This level of use is insufficient to represent the public at large.

13.7 There is greater evidence of public use in the period before 1960 but even that would struggle to justify a common law dedication.

13.8 In any event, there is strong evidence from 1940 onwards, and some evidence before that date, that the landowners did not intend to dedicate a public right of way.

RECOMMENDATION

That the application for a Map Modification Order 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 CR689 - Rights of Way Office, Mottisfont Court, Winchester