Hampshire County Council

Regulatory Committee Item 10

4 January 2006

Application for the addition to the Definitive Map of two Footpaths in the Parish of Denmead

Report of the Director of Recreation and Heritage

Contact: Sylvia Seeliger, Ext. 6349 [email protected]

WILDLIFE AND COUNTRYSIDE ACT 1981

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

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

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

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

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

1. Summary

These applications are for two footpaths in the parish of Denmead, from Forest Road to Creech Woods. The paths were set out as public footpaths four feet wide on the Forest of Bere Inclosure Award. This local Act incorporated the provisions of the 1801 General Act, and these have been interpreted in case law as not providing the power to create public footpaths at a width less than thirty feet. There is no evidence of use by the public after the inclosure, so the paths were not subsequently dedicated. The claims are recommended for refusal.

2. The Routes

This report deals with two separate footpaths, both set out in the Bere Forest Inclosure Award. The plots of land that they run over are in separate ownership, but are being dealt with together, as the same evidence applies to both. Each path has been given a separate number and these will be referred to throughout the report. Claimed path 681 is the path to the west of the C40 Denmead to Southwick Road The land over which it runs is used for grazing, and there is no gap in the hedge to gain access from Forest Road, or in the fence at the Creech Wood end. It would follow a long established field boundary south-eastwards to Creech Woods, but is not visible on the ground. Claimed path 682 is to the east of the C40 and follows the access track to Mount Edgecombe Farm (`Cottage' on the annexed plan). This track has an unmetalled surface and is vehicular width. South of the farm yard there is no evidence of a track, and a large barn has been built across where the path would continue. No track or access into the wood is visible here. These two paths are shown as A to B and C to D respectively on the plan. The claimed paths are not recorded on the Definitive Map.

3. The Applicant

The application, made in 2000, was signed by Mr. M. Walford, of Esher Grove, Waterlooville. It was accompanied by extracts from the Forest of Bere Award.

4. The Landowners

The owners of the land affected by these claim are Mrs. J. Nobes, of The Smithy, Denmead (claim 681, A-B), and Mr. and Mrs. Blackman, of Mount Edgecombe Farm, Denmead (claim 682, C-D).

5. Consultation

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

5.1 The respondent for LARA is in favour of the claim, providing that it can be sustained.

5.2 Hampshire County Council Highway Management is unable to put forward any evidence that would help in determining whether public footpath rights exist.

5.3 Hampshire County Council Ecology Section describes Creech Wood East as a SINC [Site of Importance for Nature Conservation], an area of pasture and woodland, forming an integral part of heathland. It is their view that the paths `should not cause any significant damage to the SINC', but measures should be in place to stop access by motorcyclists.

5.4 The local Elected Member, Councillor Allgood, comments that he welcomes `the principle of seeking additional routes in to Creech Wood as this is an excellent place for walks. But I do not support either of these claims'. In his view, the field over which the claimed path 681 crosses is used for grazing cattle and is unsuitable, and he knows of no history of a path in that location. Although claimed path 682 follows a track, the animals in the farmyard could be endangered by walkers. Councillor Allgood feels that a footpath here would be unsustainable.

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

6. The issue to be decided

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

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

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

6.4 The burden of proof in these matters is `on the balance of probabilities', so it is not necessary for evidence to be conclusive before a change to the Definitive Map can be made. If there is genuine conflict in the evidence 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.

6.5 The originals of some of the documents referred to in this report are only available in public record offices, but copies, transcripts or tracings of most documents are available for inspection in the Rights of Way office, Mottisfont Court. Members are urged to inspect these, or the originals, when considering this report.

7. Historical and Documentary Evidence

7.1 This claim relies upon historical documents as evidence, and a paper entitled `Evaluation of Historic Documents' is attached to this report as Appendix 1, giving the background to the production of these, and outlining what weight can be attached to any particular document.

7.2 The early commercial maps for this area (Taylor, Milne and Greenwood) do not show the claimed paths. The two inch drawing made by the Ordnance Survey before 1810 shows the track down to the present Mount Edgecombe Farm, and a similar path is shown on the Old Series first edition of 1810. This track is the route that was subsequently confirmed as a private road in the inclosure award.

7.3.1 The 1801 Inclosure Act and the Disafforesting and Inclosure of the Forest of Bere Act, 1810, (HRO 7M54/174)

The enabling Act for this inclosure was passed on 21^st June 1810. Its most important feature, in terms of highways, is the reference in the preamble to the adoption of the General Inclosure Act of 1801. The purpose of the General Act was to incorporate clauses of the kind usually found in local inclosure acts in order to shorten the time for scrutiny of subsequent private acts. The use, in a private act, of the General Act did not remove the need for a separate act for each inclosure. The three Commissioners for the inclosure were appointed, in the first clause of this Act, and were `subject to such of the Rules, Orders, Regulations, Restrictions and Provisions contained in the said recited Act of the Forty first Year of the Reign of His present Majesty [i.e. the 1801 General Act] as are not varied, altered or otherwise provided for by this Act'. The Forest of Bere Inclosure Act allowed for the inclosure of the open and commonable lands in the Forest (except for 600 acres which were to be the King's allotment), including an allotment to Thomas Thistlethwayte in compensation for the loss of the Hereditary Wardenship of the Forest.

7.3.2 It is to the 1801 General Act that we must look for the instructions to the Commissioners as to how they were to set out highways in the Forest of Bere Inclosure. A table comparing the clauses of the two Acts is annexed as Appendix 2. Section 8 of the General Act required them to `set out and appoint the publick Carriage Roads and Highways through and over the Lands and grounds intended to be divided, allotted and inclosed' and `such Roads or Highways shall be, and remain thirty Feet wide at the least', and these should be commodious to the public. The rest of the section refers to a map of the intended roads, marking them out, notices for a meeting, the handling of objections to the marked out roads, the role of the Justices, and any appeals.

7.3.3 The only other clause in the 1801 Act touching on the setting out of new routes is Section 10. The wording of this is `that such...Commissioners...are hereby empowered and required to set out such private Roads, Bridleways, Footways, Ditches, Drains, Watercourses, Watering Places, Quarries, Bridges, Gates, Stiles, Mounds, Fences, Banks, Bounds and Land Marks in, over, upon, and through or by the Sides of the Allotments to be made and set out in pursuance of such Act, as he or they shall think requisite, giving such notice and subject to such Examination as to any Private Roads or Paths, as are above required in the Case of public Roads...'.

7.3.4 As far as the pre-existing highways over the inclosed land are concerned, Section 11 of the General Act states `and all Roads Ways and Paths, over through, and upon such Lands and grounds which shall not be set out as aforesaid shall for ever be stopped up and extinguished'.

7.4.1 Forest of Bere Inclosure Award 1814, and Map 1812 (Q23/2/11/1 and Q23/2/11/3)

An award was made under the General Inclosure Act 1801 and the Forest of Bere Disafforestation and Inclosure Act of 1810, and was signed in 1814. The award is accompanied by two maps, since the inclosure covered an extensive area, and these are dated 1812. In setting out the public and private highways, the Commissioners who executed the award were bound by the terms of the 1801 Act, since the 1810 Act had no clauses directly modifying those of the General Act.

7.4.2 The Commissioners purported to set out eighteen public carriage roads and highways in this inclosure, all of them to be thirty feet wide, unless they had already been fenced. This is in accordance with Section 8 of the 1801 Act. One of these was Anthill Bottom Road, the present Forest Road, from which both claimed footpaths start. This was described as `one other road called Anthill Bottom Road beginning at a place called the World's End and leading eastward by Goldsmiths Corner over Anthill Bottom and from thence over Barn Green Bottom to Sheepwash Road hereinafter described near Mead End'.

7.4.3 A private road of twenty feet width was set out over the East Walk of the Forest. This was number 24, and it was described thus - `one other road beginning at the said Anthill Bottom Road and leading southward over the east side of the allotment of Thomas Bonham Esquire to the cottage of Thomas Edgecombe,' [now Mount Edgecombe Farm or Cottage]. This is the track that was shown on the Ordnance Survey first edition of 1810, and is the track which is the subject of claim 682.

7.4.4 The Commissioners set out fifteen public footpaths, each at four feet wide. One is `one other footpath beginning at the said Anthill Heath [sic] Road and leading southward over the east side of the allotment of Thomas Bonham Esquire to the boundary of the King's Allotment near Thomas Edgecombe's Cottage', and this is the claimed footpath 682 (C to D on the plan), running over the private road for most of its length.

7.4.5 Claimed footpath 681 (A to B) is described as `one other footpath beginning at the said Anthill Bottom Road and leading southward over the west side of the lot of Forest Land sold to Richard Clewer by the said Commissioners to the boundary of the King's Allotment'.

7.4.6 Both paths are clearly shown on the inclosure map of 1812 running from Anthill Bottom Road southwards, and both are shaded brown. A to B has a solid boundary against John Foster's land, and a pecked boundary along Richard Clewer's land. C to D runs for most of its length between solid boundaries, from Anthill Bottom Road to Thomas Edgecombe's Cottage. This section is described as `Private Road 20 feet'. Beyond Thomas Edgecombe's Cottage, the path continues as `Public Footpath 4 feet' to the boundary of the King's Allotment, and has a solid boundary against John Colman's allotment, and a pecked boundary with Thomas Bonham's allotment.

7.4 Notices from the Hampshire Telegraph, 1812-1814 (supplied by applicant)

Mr. Walford has supplied a series of photocopies of notices connected with the inclosure from the Hampshire Telegraph, with dates of 1812, 1813 and 1814. A summary of each notice is given below:

· 21^st September, 1812 - notice that rights of common upon Bere Forest were to be extinguished on 11^th October 1812, and proprietors of allotments could fence and inclose their allotments.

· 22^nd March, 1813 - notice of the sale of 291 acres of Bere Forest land in 25 lots in the East and West Walks. Plans of the land were available for viewing with the Commissioners and their solicitors, with further copies at a number of public houses in the parishes affected by the inclosure.

· 3^rd May, 1813 - notice of a meeting `when and where all Persons who have requests to make as to any Private Roads or Footpaths' may attend.

· 28^th June, 1813 - notice of the setting out of `public Carriage Roads and Highways, private Carriage Roads, Occupation Roads, Bridle Roads and Foot Paths'. This list includes the private road of 20 feet from Anthill Bottom Road to Thomas Edgecombe's Cottage, and the two claimed footpaths, described as public footpaths of four feet wide.

· 4^th April, 1814 - notice of sale of 75 acres of freehold land, in 9 lots, of land in the East and West Walks. The plans were available from the Commissioners, their solicitors and at various inns in the parishes affected by the inclosure.

· 27^th June, 1814 - notice of a meeting for reading over the engrossment of the award, and executing it.

7.5 Indenture 1831 (9M54/17)

This document is an assignment of mortgage between Thomas Upsdale and Charles Gatehouse, and is dated 21^st September 1831. The assignment refers to the Forest of Bere Inclosure Act and to the allotment of 11a 3r 19p made to John Colman under that Act. It is against the boundary of this allotment, at its southern end, that the public footpath set out at the inclosure (claim 682) ran. The abutment of the 11a 3r 19p is given as Anthill Bottom Road on the north side - no others are mentioned. Also referred to is the cottage, here called Holm-Hill Cottage, which had been purchased by Thomas Edgecombe from William Gough. The abutments for this refer to the land of Richard Clewer on the north and south, and on the west by `a private carriage road of twenty feet in width (set out by the aforesaid Commissioners and leading northward to Anthill Bottom Road). This confirms the continuing existence of the private road of twenty feet set out at the inclosure. There is no mention in the written description of the public footpath from the cottage to the King's allotment.

7.7.1 Tithe Map and Apportionment of Hambledon, 1838-1839 and 1842 (46M69/PD2/1 and 21M65/F7/104/1

Denmead was a part of Hambledon parish at the time that the Tithe Map and Apportionment were made. The Map was made some 24 years after the inclosure award and, in that time, a number of changes occurred in the area where the two routes run. As may be expected, some of the land had changed hands; some plots had been laid together, while others were divided. A comparison with the inclosure award map is helpful.

7.7.2 There is no trace of the claimed footpath 681 (A to B) on the Tithe Map.

7.7.3 The situation is different with claimed footpath 682, C to D. The private road and public footpath set out on inclosure is shown as far as Mount Edgecombe. It has a solid boundary on its east side, and a pecked boundary on its west side. It finishes at the southern end of the farmhouse, and is not coloured. There is no sign of the rest of the public footpath set out at inclosure, from the end of the private road to the boundary of the King's allotment (called `The Liberty' on the Tithe Map). At its northern end, it appears to continue on the other side of Anthill Bottom Road in a northerly direction, in a similar fashion, uncoloured, and with a solid and a pecked boundary.

7.7 Ordnance Survey County Series maps circa 1870-1930s

Four editions of these maps are available to us. On none of them is the route 681 shown. All editions show Mount Edgecombe Farm with a similar curtilage boundary to that on the Tithe Map. They also show path 682 in the same way as it is shown on the Tithe Map, with a solid boundary on the east and a pecked boundary on the west, terminating at the Mount Edgecombe curtilage.

7.8 In a telephone conversation on 26^th October 2005, with Mrs. Barbara Ashcroft, a local resident for 51 years, and a Parish Councillor on Denmead Parish Council since the 1960s, she stated that the paths in Creech Woods were closed after the Second World War, because of the presence of prisoner of war camps. It is her recollection that the paths in Creech Woods had run behind Mount Edgecombe Farm before the war, and were closed down by the War Department, but she did know whether these had included the path from Mount Edgecombe Farm to the woods, as set out in the Forest of Bere Inclosure. When she was on the Parish Council, there were no footpaths in Creech Wood for the public to use. Mrs. Ashcroft was involved with highways from 1983 to 2003 and chairman of the Footpaths Committee. She says `where the prisoner of war camp had been, none of the paths had been opened up, though other parts had been', though Mrs. Ashcroft could not recall when they had been opened up. Since that time, a circular walk in the wood had been devised, both for walkers and riders, but this does not involve either of the claimed paths.

7.10 In a letter of 9^th December, Mr. and Mrs. Blackman confirm that `in the three years that we have lived at Mount Edgecombe Farm and the previous forty years that we have lived in the village of Denmead we have never witnessed anyone using/walking the private driveway that leads from Forest Road to the farm-yard and house of Mount Edgecombe Farm' (C to D on the plan). Mrs. Nobes, who has lived in Denmead for 40 years, also states that there has never been path from A to B to her knowledge, in a letter of 19^th December.

7.11 Other sources examined

A number of other documents have been examined which have not contained any information which adds to our knowledge of the claimed paths. These include:

Hambledon Vestry minutes

Deposited railway plans

Petitions against the Forest of Bere Disafforestation and Inclosure Act 1810

Papers and maps from the Southwick Estate

Legislation

Books on Hambledon and Southwick

8. Analysis of the historic and documentary evidence

8.1 The inclosure documents are highly important. The General Inclosure Act of 1801 has given rise to a great deal of discussion, because its drafting is extremely difficult to interpret, this giving trouble to judges as early as 1826. If the award is looked at in conjunction with the 1810 Forest of Bere Disafforestation and Inclosure Act (which incorporated the 1801 Act), it could be argued that the Commissioners clearly considered themselves able to set out public footpaths at four feet wide, and the Hampshire Telegraph evidence described in 7.5 indicates that they followed the necessary notice procedures. However, we must take account of later interpretations of the highway sections of the General Act.

8.2 There are difficulties with the wording of Section 8 in regard to the setting out of public carriage roads, and whether Section 10 allows for the setting out of private or public bridleways and footpaths. Section 8 states that the Commissioners were authorised and required to `set out and appoint the publick Carriage Roads and Highways through and over the Lands and Grounds intended to be divided, allotted, and inclosed...', and after instructions about diverting or stopping up any of the roads and tracks over the lands to be inclosed, continues `so as such Roads or Highways shall be, and remain, thirty Feet wide at the least...' This is the only explicit reference in any of the four sections to the setting out of public highways. Section 10 of the 1801 Act stipulates that the Commissioners were empowered and required to `set out such private Roads, Bridleways, Footways, Ditches, Drains, Watercourses, Watering Places, Quarries, Bridges, Gates, Stiles, Mounds, Fences, Banks, Bounds and Land Marks in, over, upon, and through or by the sides of the Allotments'. Much argument has hinged around the question of whether the word `private' relates only the word following, that is `Roads', or whether it encompasses the whole list of words following, from roads to land marks. It does seem strange that items such as ditches, drains, fences and land marks should all be considered to be exclusively private, if we take the current meaning of the word private (some have argued that it means `lesser').

8.2 A judgement in the case R. v. Secretary of State for the Environment, ex. parte Andrews, given in 1993, addresses the question of interpretation of Sections 8, 10 and 11 of the 1801 Act, and `ultra vires' awards. In this judgment, Schiemann J. held that the only express power to create new highways in the General Act was that given in the first part of Section 8, and these were public carriage roads and highways that were to be 30 feet wide. It is not clear from the judgment whether Schiemann J. actually meant new `public' highways here. While there might be scope to argue that the word `highways' encompasses other things than public carriage roads, if this power allowed for the setting out of public footpaths and bridleways, they would have to be at a width of 30 feet. The public footpaths set out in the Forest of Bere Inclosure Award were 4 feet wide.

8.3 Schiemann J. was of the opinion that `the draftsman of the 1801 act did address the question of the creation of footpaths in s. 10 but limited it to private footpaths'. He held the view that the word `private' in Section 10 did apply not just to `roads', but also to the full list of features following `roads', including `footways'. It is his contention a local inclosure act could give express powers in relation to public footpaths, or such matters could have been left to the landowners to dedicate new public paths. Therefore, the import of this judgement is that Commissioners acting under powers granted by the 1801 General Inclosure Act could only set out public highways of a minimum of 30 feet in width, though they could set out private footpaths. It follows from this judgement that we must interpret the setting out of public footpaths at a width of 4 feet in the Forest of Bere Inclosure Award as ultra vires, because the Forest of Bere Inclosure Act of 1810 does not contain any clause allowing them this additional power. The Planning Inspectorate is in concurrence that the only public highways that could be set out in the 1801 Act were highways of 30 feet width, in its Advice Note No. 13, dated March 2001.

8.4 If a highway awarded at inclosure `failed' because it was ultra vires, then it is nonetheless possible that the public may have acquired the right by another means. Therefore, it is possible that even if the two claimed public footpaths were outside the powers of the Commissioners to award, the public might have taken them up on the understanding that they had been awarded, and use them, so acquiring rights by presumed dedication. The only map that shows path 681 is the inclosure award map (where it should have been set out on the ground with markers). If it had been in use on the ground after the inclosure, it would be reasonable to expect that it would been recorded in the Tithe survey twenty four years later, as some other footpaths are. This path does not appear on Ordnance Survey or on the Definitive Map.

8.5 There was a track in place from point C to Mount Edgecombe Farm, shown on the Ordnance Survey 1810 map. This track clearly affords access to the cottage there. The track to Mount Edgecombe Farm was set out at inclosure as a private road of twenty feet width with a public footpath four feet wide running over it, the public footpath continuing southwards to the King's Allotment (now Creech Woods), at a width of 4 feet. The section of the awarded public footpath continuing from the private road to Creech Wood is not shown on the Tithe Map. Path 682 is not recorded on any revision of the Definitive Map, indicating that it was not considered to have public status in the 1950s when suggestions for routes to be included on the map were requested from parishes.

9. Discussion of Evidence

9.1 In the light of the judgment contained in the `Andrews' case of 1993, and the guidelines set out by the Planning Inspectorate, it is not possible to sustain an argument that the two 4 foot wide public footpaths were validly set out from Forest Road to Creech Woods in the Forest of Bere Inclosure Award of 1814. The judgement suggests that the terms of the 1801 General Inclosure Act incorporated into the Forest of Bere Inclosure Act of 1810 did not allow the Commissioners to set out any public highways that were not of a minimum of 30 feet width. While it did allow for the setting out of `footways', the judgment concluded that they could only be private footpaths. The clauses relating to highways in the Forest of Bere Inclosure Act did not provide additional powers to set out public footpaths. The two claimed routes, although awarded in the inclosure as public footpaths, were not validly set out, as they are less than 30 feet wide. Only the track giving access to Mount Edgecombe Farm appears on maps previous to the inclosure, as an access track to the cottage then in that location. It was set out in the inclosure as a private road of 20 feet wide., which was a valid setting out under Section 10 of the 1801 Act.

9.2 This in itself need not be fatal to the claim because, if the public had taken up the two paths under the impression that they had been validly set out by the inclosure, they could have subsequently acquired a right by presumed dedication. However, the Tithe Map, prepared 24 years after the inclosure, shows only the access track to Mount Edgecombe Farm, though one would expect to see 681 (A to B) and the section of 682 from the south of the access track recorded there if the paths were in use by the public. No map subsequent to the inclosure shows anything other than the validly set out occupation road to Mount Edgecombe Farm. If there was any use of the two paths, (A to B, and the path from the end of the occupation road) it was not sufficient to cause a degree of wear noticeable to a surveyor. A footpath, now Denmead Footpath 12, is shown on the Tithe Map, on the north side of Anthill Bottom Road, continuing northwards from the occupation road. Denmead Footpath 12 is not shown on the inclosure award map.

9.3 The evidence of Mr. Rickards, Mrs. Ashcroft, Mr. and Mrs. Blackman, and Mrs. Nobes is that no-one has used these paths. Creech Woods were closed off the public in the 1940s by the War Department, and there is no evidence that the claimed paths have been used at all between 1814 when they were set out, and that time. Neither is there any evidence of public use since the woods have been re-opened. Mr. Walford has not put forward any user evidence.

10. Conclusions

The judgment in Andrews is that any public highway set out under the provisions of the 1801 Act must be of a minimum width of 30 feet. The Commissioners at the Forest of Bere Inclosure of 1814 set out the two claimed routes as public footpaths of 4 feet wide, but this has to be deemed as ultra vires since they were not of the correct width, and the Forest of Bere Inclosure Act of 1810 did not contain any clauses giving them the power to set out public footpaths. There is no evidence that a public right has been subsequently acquired through presumed dedication.

RECOMMENDATION

That the application for a Map Modification Order, to record two public footpaths in the parish of Denmead on the Definitive Map, be refused.

Section 100 D - Local Government Act 1972 - background papers

The following documents disclose facts or matters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of the report. NB The list excludes: (1) Published works; (2) Documents which disclose exempt or confidential information as defined in the Act.

File: Application for a footpath in the parish of Denmead, ref. 681 & 682

Rights of Way Office, Mottisfont Court, Winchester