21

Hampshire County Council

Regulatory Committee Item 12

4 January 2006

Application for a Map Modification Order for the addition to the definitive map of a footpath forming a triangle with Footpath 49, Owslebury

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 a footpath to the north of Beech Grove, Owslebury.

The use of the claimed path was first brought into question, within the meaning of Section 31 Highways Act 1980, in 2000. The level and nature of use of this route by the public is not sufficient to fulfil the requirements of Section 31, and does not support a deemed dedication at common law. Therefore, the application is recommended for refusal.

2. The Applicant and the Application

2.1 The Applicant is Mrs Hancock of Baybridge Lane, Owslebury.

2.2 The application was made in November 2000. The application was prompted when fences were erected alongside the route of Footpath 40. These fences blocked access to the field in which the claimed route is situated.

2.2 14 user forms have been submitted with this application.

3. The Landowner(s)

3.1 The claimed route is over land currently owned by a Mr and Mrs Wilson. Mr and Mrs Wilson have owned the registered title to this land since 8^th September 2004. They object to the application.

4. The claimed route

4.1 The claimed route forms a triangle with Footpath 49, Owslebury. It is a field edge path which runs from Beech Grove to Owslebury Bottom. The field in which the path is situated is steeply sloping; both the claimed path and Footpath 49 follow a sharp incline.

4.2 The claimed route is 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 route as a public footpath, 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 Peter Mason (the current Local Member), Winchester City Council, Owslebury Parish Council, Ramblers' Association, Open Spaces Society and Mrs Liz Giles (the Southern Area Rights of Way Officer). The following responses have been received:

6.1 Hampshire County Council (Highways) - No comment

6.2 Hampshire County Council (Environment) - No comment

6.3 Owslebury Parish Council -

"The Council discussed this at the meeting of 14th November 2005.

 

There is no evidence to suggest that public rights exist. There is no evidence to suggest a footpath has ever existed around the edge of the field. One member of the public stated he had lived in the village for 45 years and there had never been a footpath around the edge of the field. My file on Parish Paths goes back to 1933.  There is no evidence in this file to suggest that public rights have ever existed on this route.

 

The Council opposes the application. It would run along the back of residential gardens. The owner of one of these gardens, present at the meeting, said she had not been consulted and objected for reasons of security. The incline of the path would be unnecessarily steeper and longer than the existing path. The current footpath is well used and is a direct route. The owner of the field is against the application. All councillors and members of the public present at the meeting objected."

6.4 Ramblers' Association -

"Whilst the RA always welcomes additions to the Rights of Way network I have to say that this claim appears to provide limited additional value to the network.

 

As the claimed route is currently meadowland and inaccessible behind locked gates I have not walked the entire length, but I would imagine that the value would be to local residents wishing to take a short circular walk, possibly as a local 'dog walk'.

I'm afraid that the RA has no specific evidence to offer regarding this claim."

7 Historic and documentary evidence

7.1 Whilst Footpath 49 has appeared on maps published since at least 1870 (Ordnance Survey County Series 1^st Edition), officers have not found any maps, plans or documents which illustrate the claimed route. Likewise, aerial photographs taken in 1949 and 2000 show a worn track in the location of Footpath 49, but do not appear to show the claimed route.

7.2 In approximately 2002, the land of the claimed route was included in the Countryside Agency's Draft Map of Open Country and Registered Common Land (commonly referred to as open access land). A number of residents of Owslebury objected to the inclusion of this land on the map, and after determination by the Countryside Agency, this parcel of land was removed from all subsequent mapping, and has not been classified as open access land.

7.3 Some of the comments made about this land during this process are relevant to this report. Extracts from the comments are included below, though all names have been removed to comply with data protection legislation:

7.3.1 Statement 1

"This land is not open country and has been farmed intensively for at least 30 years. Previously it was part of a local dairy farm and was grazed, cut for hay and sileage, harrowed, sprayed and reseeded and fertilizer applied."

7.3.2 Statement 2

"Before 1980 [a tenant of the Longwood Estate] kept cattle on the field alongside Crabbes Hill Lane"

7.3.3 Statement 3

"From 1980 until 1994 [a local family] rented the land from the Longwood Estate, they cut hay and sileage from the land, cleared it of bushes and brambles, fertilised it, ploughed and reseeded it with grass continually during this time. They kept cattle on it from time to time. After 1994 although they no longer rented the land as the Estate has by now been sold off, they have continued to farm it by taking and rearing cattle on the land every year since until the year 2000. They have cut it for hay every year including this one."

8. Modern user evidence

8.1 14 witness forms, providing evidence on behalf of 15 users have been submitted in support of the application.

8.2 The user forms were completed in 2000. The earliest use of the path was in 1950. There is evidence of the use of the path in every year between 1950 and 2000. A full summary of this evidence is given in Appendix 2.

8.3 Of the 15 witnesses who completed user evidence forms in 2000, 2 have since passed away and 2 have moved away from the village. Officers have contacted eight users, but only three have replied. The statement of these three individuals are summarised below:

8.3.1 Mrs Hancock (applicant)

Mrs Hancock moved to Owslebury in 1978, and began using the claimed path in the same year. She used the path approximately twice a week. She states that she, and a number of others, used the claimed route in preference to Footpath 49 as the claimed route was considerably less steep than Footpath 49. Mrs Hancock acknowledges that the entire field was used for recreation, but states that most people tended to stick to the worn path of the claimed route. She further states that the claimed route was so well used that the contractor who came to fence off Footpath 49 could not distinguish between it and the definitive footpath. Mrs Hancock states that the residents of Owslebury always used to believe that the field had been donated to the village by the Longwood Estate, for use as pubic open space, and when the field was sold they unsuccessfully tried to get the Parish Council to acquire it. She does not believe that there were ever any signs or notices on the land stating that it, or the path, was private. Mrs Hancock states that the field was fenced off in the early part of 2000 by contractors working on behalf of Mr and Mrs Wilde.

8.3.2 Mrs Harefield

Mrs Harefield believes she began using the field in which the claimed route lies in the early 1950s, after the first phase of houses at Beech Grove were constructed. When she began using the land it was owned by the Longwood Estate, and she believes that, because of the steepness of the slope, there was nothing they could do with it, so villagers of Owslebury were able to use the land for recreation. Mrs Harefield states that they used the field for dog walking, mushrooming, blackberrying, and, in the winter, for skiing and tobogganing. She also recalls that children used to play there. Mrs Harefield has owned a dog since the mid 1950s, and ever since this, she used the field approximately six out of seven days a week (until access to the field was closed). She states that once people got into the field they would let their dog off the lead, and walk where they wanted. Mrs Harefield states that she didn't use any path in particular, but if she did follow a defined path, she would follow the route of Footpath 49. Mrs Harefield states that there was never any indication that the field was private. She recalls that when the field was sold by the Longwood Estate, Mr Edgerton bought it. He tried to get planning permission for it, but when this was unsuccessful, sold the land in three pieces, a third going to Mr and Mrs Wilde. Mrs Harefield recalls that soon after the land was sold to the Wilde's they erected fences along the edge of Footpath 49. There was no indication that this was going to happen prior to the event. She believes that when it happened, many people in the village commented on it.

8.3.3 Mrs Houghton

Mrs Houghton and her family moved to Owslebury in 1973 and used the claimed route or Footpath 49 as part of a long circular walk. She states that she went on such a circular walk approximately twice a month, but she probably used Footpath 49 more frequently than the claimed route. Mrs Houghton states that the claimed route was also used by residents of Beech Grove and Hilly Close. Mrs Houghton cannot be certain about the exact route she used, and cannot confirm that the claimed route corresponds exactly with the route she used, although she does confirm that the path she used formed a circular link with Footpath 49, and followed the field edge. Mrs Houghton states that, when she used the paths, the entire field was open. Although she knew it was used for tobogganing in the winter, she believes that, because of the steep slope, it wasn't much use for recreational activities such as ball games. Mrs Houghton did not know any of the owners of the field - she believed the field to be open countryside, and did not felt the need to obtain permission to use the path. Mrs Houghton does not believe that there were ever any notices or signs stating that the field was private. She cannot recall the exact circumstances by which the field was fenced off.

9. The actions of the landowner

9.1 Although the field in which the claimed route lies is currently owned by Mr and Mrs Wilson, Mr and Mrs Wilson did not purchase the land, and did not move to Owslebury, until 2004 - after access to the claimed route had been closed and the current claim had been made.

9.2 For many years, the land was part of the Longwood Estate. When the Longwood Estate was sold, in approximately 1994, it is thought that the land was sold to Mr and Mrs Edgerton. Officers understand that shortly after this, possibly in April 2000, the land was transferred to Merlion Holdings Ltd (Mr and Mrs Wilde), was then sold to Mr and Mrs Walsh, and finally to Mr and Mrs Wilson in 2004.

9.3 It is widely agreed that the fences which prompted the current claim were erected by Mr and Mrs Wilde. Officers have tried to contact Mr and Mrs Wilde (who no longer reside in Owslebury), but at the time of writing this report, no reply has been received.

10. Other interested parties

10.1 Mr Jerry Tull, a local Parish Councillor, has contacted the Rights of Way department with his personal views on the application. He states that he has farmed the land in question for the current and previous owners, and is surprised at this claim. He lives adjacent to the route and does not believe that there has ever been any footpath use of the land (except for that of Footpath 49) since he moved to the village in 1976. He further states that, having talked to some residents of the village it would appear that some have wandered off the definitive line of Footpath 49 as it was unfenced, but does not believe that there is any evidence to suggest that the claimed route has ever been used as a footpath. Mr Tull does not believe that the claimed path, as shown on Appendix 1, is, or ever has been, physically capable of use as a footpath due to the steepness of the slope and the nature of the terrain.

10.2 Dianne Merritt has lived in Owslebury for 12 years. Her partner has lived in Owslebury for 40 years. She states prior to 2000, people including herself did use the field for recreational activities such as dog walking and sledging, but they did not keep to a defined path although some may now claim that they did.

10.3 Molly Bailey, an ex-Parish Councillor, states that she used the field in which the claimed route is situated. She states that the whole field was used for recreation, and although she did not confine herself to the claimed path, a number of the older residents of Owslebury did use a path around the edge of the field.

11. Discussion of the evidence

11.1 There is no historic evidence to support the application.

11.2 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 claim was made in November 2000, as a result of fences being erected either side of Footpath 49, blocking access to the claimed route. A number of individuals have stated that Mr and Mrs Wilde erected the fences, though none are able to provide an exact date for this action. The land was sold to Mr and Mrs Wilde in April 2000, and the earliest user evidence form in support of the current claim was completed on the 1st of May, 2000. It is therefore assumed that the fences were erected, and the use of the claimed path was brought into question, in April 2000. The twenty year period relevant to the claim is therefore from April 1980 to April 2000.

11.3 There must be evidence that in each year of the twenty year period the path has been used by the public at large. For the first ten years of the twenty the between six and seven users have given evidence of their use of the path. In the second ten years of the twenty the number of users rises slightly, and between ten and eleven users have provided evidence.

11.4 There are no hard and fast guidelines about how much usage is necessary to satisfy the requirement that a path has been used by the public at large. One would expect to find fewer users on a isolated rural path than one in a residential area. Likewise, the remoteness of the twenty year period is also a factor - one would expect to find evidence of fewer users for a twenty year period which began many years ago, rather than one which began relatively recently. In this case the path is close to the village centre, and the twenty year period began relatively recently. In light of this, officers feel that a minimum of six users and a maximum of eleven may be too low to satisfy the requirement that the path has been used by the public at large.

11.5 The weight which can be attributed to each piece of user evidence is further weakened by the fact that the entire field appears to have been open and unfenced for the entire twenty year period, and used for recreational activities such as tobogganing, blackberrying and mushrooming. Such use is not consistent with the acquisition of highway rights over one defined route, and dilutes the evidence provided in support of the application. Furthermore, some users do not appear to distinguish between their use of Footpath 49 and the claimed route, and have included their use of Footpath 49, when giving evidence about how often they used the claimed route.

11.6 The requirement that the path has been used by the public at large in each year of a twenty year period cannot, therefore, be satisfied.

12. 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. At the time of writing this report, no comments have been received.

13 Conclusions

13.1 Access to the field in which the claimed route is situated was first closed in April 2000. Although there is no evidence that the landowners of the field ever attempted to prohibit public access in the years before 2000, it is considered that the level of user evidence provided in support of this application, and the nature of this use, cannot satisfy the requirements of Section 31 Highways Act 1980. For the same reasons the evidence is insufficient to satisfy 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 CR705 - Rights of Way Office, Mottisfont Court, Winchester