Archived decisions
Hampshire County Council Item
Regulatory Committee
13 February 2006
Application for a Map Modification Order for the addition to the definitive map of footpaths between Windmill Lane, Dodwell Lane and Providence Hill 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 local resident has made an application for an Order to record public footpath rights over fields between Windmill Lane, Dodwell Lane and Providence Hill in Bursledon. The claim is based on user evidence from 27 people over a period of 55 years. Although the public has enjoyed access for many years they have probably not used the paths, without interruption, for the required period of 20 years. The public use was also dissipated over an area of land rather than being totally concentrated on a specific route or routes. For these reasons the claim is, on balance, recommended for refusal.
2. Claimant:
Ms M Connolly
Hazeldene
Dodwell Lane
Bursledon
Hampshire
SO31 1AQ
3. Landowners:
For section A-B Ms A Barney
For section B-C-D Mr R Fisher Mr P Fisher
For section D-E-F Mr D Garrett Mr J Garrett
and E-G-H 1 Kiln Lane 2 Kiln Lane
Braishfield Braishfield Hampshire Hampshire
SO51 0PJ SO51 0PJ
4. Description of the route (please refer to the map attached to this report)
4.1 The claimed route runs from a point close to the end of Windmill Lane (point A) down a made-up track, three metres wide, enclosed between fences. The track is 170 metres long and at both ends of the track there are field gates. From the second gate (point B) the claimed path follows the western side of a pasture field before turning to the south-east (point C) to a field boundary (point D). From this fence the claimed route crosses another pasture field to a gap in another hedge (point E) and then crosses over a stream to join Dodwell Lane just north of an electricity sub-station (point F).
4.2 From points D and E there are other claimed paths that cross a field to a culvert over a stream (point G) and then run on the north-west side of a hedge to join Providence Hill at point H. There is also a loop off this path that follows the edge of the field.
4.3 The claimed routes have been closed to public use since 2000 and now no trace of a used path exists on the ground between points B-C-D-E-F and D-G and E-G-H. The track between points A and B is still used for private vehicular access to the fields which are used for grazing horses.
5. Background to the claim
5.1 Some of the fields south-west of the M27 motorway were not actively farmed or used for many years. The landowners did not live in Bursledon and they only occasionally visited their property. Some residents of Dodwell Lane and, to a lesser extent, residents in other localities, took advantage of the absence of the owners by using the abandoned land for recreational use, especially to walk their dogs. This activity was brought to an abrupt halt when the fields were brought back into use, by a tenant, for horse grazing in 2000.
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 paths ought to be shown on the definitive map as public rights 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 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.
7. Documentary evidence
7.1 1964 Ordnance Survey map - 1/2500 scale
This is before the construction of the M27 motorway. Section A-B is shown on this map as a partly enclosed track. Otherwise there is no path or track shown on this map in the locality of the claimed paths.
7.2 1974 Photographs
These photographs, taken by HCC officers to monitor the progress of the motorway construction, show the M27 in the locality of Dodwell Lane. Unfortunately, the photographs do not quite cover the area of land over which the claimed paths run but they do at least provide a date for the major change to the landscape.
7.3 1976 Ordnance Survey map - 1/2500 scale
Section A-B is shown as an enclosed track. The map shows the new M27 motorway which has been built just to the north-east of the land in question. There is no other path or track shown in the locality of the claimed paths.
7.4 1987 Ordnance Survey map - 1/2500 scale
Section A-B is shown as an enclosed track. There is no other path or track shown in the locality of the claimed paths.
7.5 1998 Letter from Eastleigh Borough Council to Mr D Garrett
The letter was written by the Environmental Health Officer on 14 December. It is headed "Environmental Protection Act 1990 Farm Land at Oakhill, Bursledon Situated Between Forgemount and Meadow Vale" and reads, in part:
"Further to our recent conversation concerning the stopping up of the hole in the hedge in order to prevent the land from being used by motor cyclists, I now write to confirm that the company ...can block that gap with builders rubble to a height sufficient to keep motor cyclists and other persons from gaining access to the field."
This action is referred to by users and landowners in statements reproduced later in this report.
7.6 2000 Aerial photography (see copy attached at back of report)
This photograph must have been taken within a few months either side of the action that finally brought the public's use of the paths into question. Most of section A-B-X shows up as a track that leads to outbuildings and a field. There is no evidence of a worn path or track between points B-C-D. There are numerous worn paths in the fields between Providence Hill and Dodwell Lane, some are well defined, as if through heavy use, while others are faint. There is no obvious worn route between points G and H though.
7.7 2000 Application for Map Modification Order
The application was made by Ms Connolly on 23rd July 2000.
8. User evidence
8.1 The application is supported by evidence forms completed by 27 users of the paths from 17 different households. A large majority of the users live, or used to live, in Dodwell Lane. Of those 27 users, 26 have used a path between Dodwell Lane and Providence Hill and 22 of them have used a path between Dodwell Lane and Windmill Lane. Most users relate that the paths were physically blocked in the first half of July 2000, at the Dodwell Lane and Providence Hill entrances, with the first date given as 5th July. For a visual presentation of the user evidence please see the two charts at the end of this report. The following evidence is taken from standard user forms or, where there is more than one paragraph, signed statements. The users are, in alphabetical order:
8.2 Mr E Akhurst of Dodwell Lane
Used the paths twice a week, from 1960 to 2000, for general exercise and to get to shops in Lowford. Mr Akhurst did not use the path to Windmill Lane but used the direct path between Dodwell Lane and Providence Hill, with additional routes around the edges of two fields.
8.3 Mr L Bevis of Dodwell Lane
Claims use between 1985 and 2000, approximately twice weekly, for pleasure and dog walking. Mr Bevis has drawn a route to Windmill Lane, a route to Providence Hill plus additional routes around the edges of Garrett's fields.
8.4 Mrs M Bevis of Windmill Lane
Used a path between Windmill Lane and Dodwell Lane from 1984 to 1997. The route Mrs Bevis has shown on her map is A-B-X-D-E-F. The frequency of use is described as `not often'. Mrs Bevis used the path `to take my grandchildren to play in the stream and blackberry picking'. She recalls that the hedge at point D had been blocked up but pulled down by other users. She goes on to say that `I remember using the original path when I was a child, with my parents, but it then came out opposite Blundell Lane (point Y). The M27 cut right through the path that I knew'.
8.5 Mrs V Bevis of Dodwell Lane
Used paths from 1985 to 2000, twice every day, for dog walking, pleasure and shopping. Mrs Bevis has used the path to Windmill Lane, the direct path to Providence Hill and routes around the edges of Garrett's fields.
8.6 Mrs B Birkett of Dodwell Lane
Claims use between 1956 and 2000, approximately once a week or every day when dog was alive, for errands to Tesco, walking to Lowford and walking with friends and grand children. Mrs Birkett recalls that there used to be an old gate on the route that was left open. She has used the route to Windmill Lane, the direct route to Providence Hill and paths around the edges of Garrett's fields.
8.7 Mr A Coleman of Locks Heath
Used paths from 1970 to 1976, once a week, and from 1980 to 2000 twice a week. Purpose of journey is given as walking the dog. Mr Coleman recalls that he used to walk through a gate on the route but that it fell down. Used route to Windmill Lane, path to Providence Hill and routes around edges of Garrett's fields.
8.8 Mr & Mrs Coleman of Dodwell Lane
8.8.1 Mr & Mrs Coleman have lived at their present address since 1953. When they moved there the farmer of the fields, on the other side of Dodwell Lane, was John Garrett of Brixedone Farm. He used to keep cattle at the back of their property and moved them down the track by the side of their house and then up Dodwell Lane to a field gate next to the electricity sub-station. After Mr Garrett left, the fields opposite their house became disused, the gate rotted away and Mr & Mrs Coleman used the land to walk their three dogs. At least one of them walked over the fields every day, sometimes twice a day, in all weathers.
8.8.2 Mr & Mrs Coleman used to walk, from Dodwell Lane, down a hill to a bridge over a stream and then uphill to a gap in a hedge. From there they turned right towards the motorway and around three sides of the field, then right again towards the windmill. At the end of this field there was a fence with a stile which they used to get into the next field. From the stile they walked straight on and followed the edge of the field to the end of a track which led to Windmill Lane. They very rarely went down that track as the main purpose of their walks was to exercise their dogs in the fields.
8.8.3 From the end of the track, at the top of the field, (point B) Mr & Mrs Coleman would either retrace their steps or walk around the other two sides of the field to get back to the stile. From the stile they would walk diagonally across the field towards the bungalows fronting Providence Hill. There was an old gate close to the bungalows that gave access out to the road. This gate also eventually rotted away over time. They walked in that direction to get to the shops in Lowford and would often walk around the three sides of the field before going out to Providence Hill.
8.8.4 Except for the occasional traveller's horse tethered to a stake there were no cattle or horses in the fields that Mr & Mrs Coleman walked, but there were horses in another field next to the motorway. There were no signs or notices to say that the land was private and they have never been challenged or stopped whilst using the paths. Everybody in the area walked their dogs in those fields. The paths were so well used that there was a worn route for the whole length.
8.8.5 Mr & Mrs Coleman don't think that Fisher's field was used by the public as much as Garrett's fields. Over time, the stile in the field boundary (point D) rotted away but they were still able to climb over or under the strands of wire to get into the far field. At some stage, maybe one or two years before Dodwell Lane was blocked, horses were kept in this far field and two or three strands of wire were put across where the old stile used to be. They stopped walking the far field from that time but they were still able to walk Garrett's fields.
8.8.6 One day Mr Coleman went for his usual walk and found the gap at the Dodwell Lane entrance blocked by branches and rubble. He tried to use it on another occasion but met a young woman with a child, in a pushchair, in the field. She said `Your not allowed to walk here anymore' or something like that.
8.9 Mr K Coleman of Southampton
Claims use from 1975 to 2000, over 200 times a year, for dog walking. Has used routes to Windmill Lane, Providence Hill and around all sides of Garrett's fields.
8.10 Ms M Connolly of Dodwell Lane
8.10.1 Ms Connolly moved to her present address in December 1990. One of the considerations in buying the house was the availability of a place to walk her dogs. The previous owner of the house, Mrs Swan, said that there were walks in the fields on the other side of Dodwell Lane. From the day that she moved in, her regular routine was to walk the dogs two or three times a day. At least one of those walks, sometimes two, were over the fields from Dodwell Lane.
8.10.2 From Dodwell Lane, close to the electricity sub-station, there was a wide opening with a worn path that led into the fields. There might have been the remains of a gate in the hedgerow but not a proper gate that needed to be opened. There were no signs or notices at that location to say that the land was private. There was a well-defined path that ran downhill from the opening to a stream where there was a crossing point. The worn path then went uphill and branched in two directions with one route going to Providence Hill and the other to Windmill Lane. At the end of the worn path that led to Providence Hill there was a wide gap in the hedge that led out to the road. Mrs Connolly now knows that the fields between Dodwell Lane and Providence Hill are owned by the Garrett family.
8.10.3 On the path to Windmill Lane, at the end of a large field, there was an opening in the hedge line that enabled Ms Connolly to walk through. Once through the hedge, there was a worn path around the edge of the next field in both directions. She now knows that this field is owned by Mr Fisher. She usually walked the route that went straight ahead, and then around the western side of the field, but sometimes she turned right and walked the path around the eastern side of the field. Both routes led to a gate at the entrance to a track. Ms Connolly cannot remember if this gate was ever closed or locked. At the other end of the track, at its junction with Windmill Lane, there was another gate. This gate was always left open and again there were no signs or notices at this location to say that the land was private. In the late 1990s there were stables on the right-hand side of the track that led to Windmill Lane. Ms Connolly used to say hello to the woman who kept her horses there. She now knows that her name is Jane Feasey. Ms Feasey never said anything to Ms Connolly about her use of Fisher's field.
8.10.4 Ms Connolly's daily walks with the dogs would vary. Sometimes she would take a circular walk by using the path to Windmill Lane, walk up the lane and down Providence Hill and then back home using the other path across Garrett's fields. On occasions she would walk to Windmill Lane and then return by the same route. At other times she would just use the path that led to Providence Hill as a short-cut to get to the shops in Lowford. Sometimes her walks would be around the edges of the fields. When Ms Connolly first walked the paths in 1990 the land was not used for any purpose. There might have been the occasional gypsy horse grazing there but no other animals. She used to see loads of people walking the same paths that she used. Some of these people she knew, others were strangers.
8.10.5 In 1997 or 1998 a barbed wire fence was erected across the gap in the hedge between Garrett's and Fisher's land (point D). Ms Connolly assumed this was to keep the horses in that had appeared in Fisher's field. She was still able to continue her walks on that path by climbing over the fence, whilst the dogs went through the wire.
8.10.6 In July 2000 the route was blocked by branches, where it crossed the stream, making it impassable. Ms Connolly was furious about this and she went down there to clear the obstruction. One evening, a few days later, she went down there again and met Jane Feasey who was accompanied by a man. Ms Feasey told Ms Connolly that she had blocked the path because she wanted to keep her horses safe in the field. The man took a photograph of her, which Ms Connolly found intimidating, so she gave up walking the paths. Shortly afterwards, someone, she assumes it was Jane Feasey, also blocked the Dodwell Lane and Providence Hill entrances to the fields.
8.11 Ms C Cooperthwaite of Dodwell Lane
Used paths from 1980 to 2000, 310 times a year, for exercise and going to work. Ms Cooperthwaite relates that she was stopped by Jane Feasey in the first week of July 2000.
8.12 Mrs J Cooperthwaite of Dodwell Lane
8.12.1 Mrs Cooperthwaite lived at her present address from 1941 to 1962 and then at Pilands Estate until 1987 and then back to her present address. When the motorway was built she was living with her husband at Pilands but at that time she was visiting Dodwell Lane very regularly to see her parents.
8.12.2 Mrs Cooperthwaite used to go for walks, with her family, in the fields opposite her house. She used to walk about three or four times a week, usually with her children and occasionally with her husband when he was not at work. There was a gate by the electricity sub-station, in Dodwell Lane, which they would open and walk through. From there they went down the hill to a bridge over a stream and then uphill to a gap in a hedge. From that gap they took two different routes. One went straight ahead, and alongside a fence, to another gap in a field boundary and then across another field to a track that led to Windmill Lane. The other route they used was to turn left at the gap in the hedge and walk along the edge of the field to Providence Hill. There was a gate by the bungalows that they used to open and walk out to the road. Mrs Cooperthwaite used the route to Providence Hill, to get to Lowford, more often than the path to Windmill Lane.
8.12.3 Other than the two gates mentioned, Mrs Cooperthwaite doesn't remember there being any barriers across the paths, or notices to say that the land was private. The path was worn in places by people continually walking the same routes. Over time, the gate at Dodwell Lane became broken and fell down. She remembers that the Garretts kept cattle in their fields before the motorway was built but not after it was opened. The fields were not used for anything, there was just grass and no horses were kept in the far field.
8.12.4 Mrs Cooperthwaite and her family stopped using the path about five years ago because the Dodwell Lane entrance was blocked off with barbed wire. The wire was cut by someone but then the gap was stopped up by a mound of branches and rubble. At the same time as the barbed wire was put up, notices were erected saying `Private property, trespassers will be prosecuted'. The Providence Hill entrance was also blocked, firstly with an abandoned car and then later a dirt heap.
8.12.5 The field opposite was used by local people for sledging in the snow, collecting frogs spawn, blackberries, wood and mushrooms, and walking dogs. Mrs Cooperthwaite's children were always playing over the fields. She has never been stopped or challenged whilst using the paths.
8.13 Mr J Cooperthwaite of Dodwell Lane
Walked all of the claimed paths from 1963 to 2000, about 70 times a year. Mr Cooperthwaite used the paths `To see family in Lowford and up to Tesco'. In reply to the question `Have you always followed the same route?' he has replied `No' and goes on to say `Walked around outskirts of fields and sometimes out to Portsmouth Road to Lowford'.
8.14 Mrs H Fanner of Dodwell Lane
Used paths from the 1960s to 1997 about once a week and more when she had a dog. In answer to the question `Have you always followed the same route?' she has replied `Yes...in a roundabout way as on my map'. Mrs Fanner has drawn all of the claimed routes on her map. She relates that a `Private property keep out' notice was put up on Friday 7th July 2000. She also states that `I have lived in Bursledon from 1936, in Dodwell Lane 1939. Have known the Garretts, father and son, all that time and was never stopped.'
8.15 Mr R Grassie of Windmill Lane
8.15.1 Mr Grassie moved to his present address in 1974 at a time when the M27 motorway was still under construction at the bottom of Windmill Lane. He was a member of Bursledon Parish Council from 1994-98 and Chairman for a year. From the time that he moved in he used to walk his dogs over the fields between Windmill Lane and Dodwell Lane and Providence Hill.
8.15.2 From his house Mr Grassie would turn right down Windmill Lane then right again down a track which led to the fields. He then followed the track alongside the motorway to a gate. From there he would walk down the side of the field to a stile in the field boundary. He would then walk across the next field to a gap in the hedge, go downhill to a bridge over a stream and then uphill to Dodwell Lane. There was a gate, close to the electricity sub-station in Dodwell Lane, that he was able to open. Sometimes Mr Grassie took an alternative route and walked in the field close to the motorway before crossing the bridge and on to Dodwell Lane.
8.15.3 Mr Grassie walked those routes about twice a week with his dog and sometimes with his wife and three children. He has also walked in the company of Mr and Mrs Southey. No one ever bothered them. He's done that hundreds of times over the years. He has also walked the path out to Providence Hill to get to Lowford. Mr Grassie has seen cattle kept in those fields owned by the Garrettts up to about 1988 but he has not seen any notices to say that the land was private. His children and all the local children used to play in the fields.
8.15.4 In about 1995 New Age Travellers, in their vehicles, tried to get down the track from Windmill Lane to the fields but the neighbours blocked the track to stop them. At that time there wasn't a gate across the track like there is today. After that incident all the people who lived down the bottom of the lane decided to put a gate across the track where it met Windmill Lane. All paid £10 towards the cost and Mr Grassie put it up. He didn't think that anyone owned the track at that time. The gate was locked for a while and they all had a key but it was still possible to walk around the end of one of the gate posts. That gate is still in place today.
8.15.5 The last time that Mr Grassie walked the path from Windmill Lane to Dodwell Lane was about seven or eight years ago. At that time the stile in the field boundary was blocked off with barbed-wire. He stopped walking down the track in about 2000 because the character of the area had changed and he didn't enjoy walking the old route. Mr Grassie knows that another gate was put across the other end of the track in about 2002.
8.16 Mrs J Gurr of Bursledon
Claims weekly use, from 1976 to 2000, to walk her dog. Regards the way as public because `Has been used by the public for many years, especially since the motorway opened.' Mrs Gurr has drawn all of the claimed routes on her map.
8.17 Mrs J Hutchison of Dodwell Lane
Used paths from 1947 to 1968, 290 times a year, and between 1972 and 2000 300 times a year. Although Mrs Hutchison doesn't say so, it is likely that the 4 year break was caused by the motorway construction. Mrs Hutchison relates that she was stopped by Jane Feasey in the first few days of July 2000. She has drawn all of the claimed routes on her map.
8.18 Ms J Hutchison of Dodwell Lane
Has used the path from 1973 to 2000, 200 times a year, for walking the dog, visiting her sister in Lowford and going to the windmill. Ms Hutchison has drawn all of the claimed rotes on her map. She relates that fence posts with barbed wire and lots of branches were put across the path in the first few days of July 2000.
8.19 Ms L Hutchison of Bursledon
Claims use between 1975 and 2000, about 100 times a year, for walking or visiting parents in Dodwell Lane. Also used paths to visit the windmill and Windhover Hotel. She does not recall any gates along the route. Ms Hutchison has used all of the claimed routes shown on the plan with this report.
8.20 Mr M Hutchison of Dodwell Lane
Used paths from 1968 to 2000, about 150 times a year, for pleasure trips. Also used paths to get to Tesco for shopping and visiting relatives in Lowford. In reply to the question `Have you always followed the same route?' Mr Hutchison has replied `I use several routes depending on where I enter the field'. He has drawn all of the claimed routes on his map.
8.21 Mr P Lock of Dodwell Lane
Used various paths, from 1990 to 2000, approximately four times a week. For purpose of journey Mr Lock has put `sometimes dog walking, sometimes shopping'. He has used all of the routes shown on the plan with this report. Mr Lock acknowledges that there was a fence at point D but does not give a date for this obstruction.
8.22 Mrs H Malone of Dodwell Lane
Has walked the paths between Dodwell Lane and Providence Hill between 1985 and 2000 about once a week. She regards the way as public `because there wasn't any obstruction at either end and what appeared to be a trail for walking. I thought it was already a public footpath'. Mrs Malone used the path to go to Tesco or Lowford shops. In answer to the question `Have you always followed the same route?' she has replied `Sometimes I walk towards the windmill with daughter but cannot walk through to windmill, we usually watch the horses and rabbits'. On the subject of obstructions she records that `some months ago rubble was placed at both entrances' and also `a few days ago a notice went up on Dodwell Lane together with a barbed wire fence'.
8.23 Mr S Malone of Dodwell Lane
Mr Malone's evidence of use is identical to his wife's as recorded above. He states that he has not always followed the same route and describes his use as `frequent adventures and general nature observations'. He has added `Living opposite an entrance, there is no visible signs of ownership and for 15 years people have freely moved over the land'.
8.24 Mrs C Pritchard of Hedge End
Mrs Pritchard used to live in Dodwell Lane and used all of the paths from 1960 to 1990 on a weekly basis. Between 1990 and 2000 she used the same paths about eight times a year. For purpose of journey she has put `pleasure walking and blackberry picking'. Mrs Pritchard regards the way as public because `I have used it for 40 years without ever being challenged'. She relates that `As a child there was a gate which we opened to gain access, then a gap when the gates went missing'.
8.25 Mrs B Springall of Dodwell Lane
8.25.1 Mrs Springall has lived in this locality for all of her life. She would have first walked the paths on the west side of Dodwell Lane, as a child of about seven, with her brothers and sisters. In those days, in the 1930s, the entrance into the fields was further up Dodwell Lane, on the other side of the motorway (point Y). She believes the owners then were called Gosling.
8.25.2 When the motorway was built, in the 1970s, it stopped their use of the old paths. After the M27 was built Mrs Springall used to walk over the fields, always with her husband, but only on the south side of the motorway. They were able to gain entrance to the fields just beyond the electricity sub-station where there was a gap in the hedge. There might have been an old gate there but nothing to stop them, no signs to say that it was private.
8.25.3 From Dodwell Lane Mr & Mrs Springall were able to walk down the hill and over a bridge, and then up a hill to a big gap in a hedge. If they were blackberrying they used to turn right and walk around the edge of the field. If they wanted to get to Windmill Lane they turned left and walked around the other side of the field. There was a fence at the end of this field which they were able to climb over. From there they followed the edge of the field to connect with a track which led to Windmill Lane. There were no gates across the track that led to Windmill Lane, or signs to say that it was private. They walked this path to Windmill Lane about once a week.
8.25.4 Mr & Mrs Springall also used a path out to Providence Hill, but not very often because they had to climb over a gate by the bungalows to get out to the road. There were no signs at this entrance to say that it was private. When Mrs Springall was a child the fields were used for growing vegetables. After the motorway was built the land was just used for grazing and there have been cattle and horses in the fields. She thinks she's seen the Garrett brothers whilst walking over the fields but they never stopped her from using the paths. She used to see other people walking the same paths which were used well enough to create a worn path.
8.25.5 At some stage a gate was put up at the Dodwell Lane entrance to keep the cattle in the field. However, this didn't stop Mr & Mrs Springall's walks, they just climbed over the gate. Mrs Springall believes that motorbikes used to get into the fields from Providence Hill but she believes that was stopped by someone blocking that entrance. The motorbikes didn't gain access from Dodwell Lane.
8.25.6 About five years ago someone blocked off the path with a barricade at the Dodwell Lane entrance and at the gap in the hedge on the other side of the stream. Until this happened Mr & Mrs Springall were still able to use the route to Windmill Lane. Mrs Springall has never known there to be a closed gate on the track to Windmill Lane.
8.26 Mrs N Welch of Colden Common
Walked all of the claimed paths from 1970 to 2000, approximately 210 times a year. She also claims use on horse back from 1985 to 2000 about once a week. Mrs Welch regards the way as public because `As a regular walker I have used these fields with family and ridden horse since 1970'. In response to the question `Have you always followed the same route? she has replied `No - sometimes used top fields other times field by A27 to Lowford and Tesco'. Mrs Welch was stopped from using the land in the first week of July 2000 `by lady from Windmill Stud'.
8.27 Mr S Witcher of Dodwell Lane
Mr Witcher has walked all of the routes between Dodwell lane and Providence Hill from 1974 to 2000, approximately 313 times a year. He has not used the path to Windmill Lane. He regards the way as public because `I have walked this land for at least 26 years' and the purpose of his journeys was `exercising two small dogs'. Mr Witcher relates that `The gates were always open, undergrowth had enveloped them'. He goes on to say that `The notice that state trespassers will be prosecuted has been put up in the last few days'.
9. Other evidence
9.1 The following three people own property that adjoin the fields in question and have been interviewed regarding their knowledge of how the land was used and managed. Two have them have walked over the fields but have not been counted as users because they did not use a through route between public highways.
9.2 Mrs C Cole of Providence Hill
9.2.1 Mrs Cole moved to Forge Mount in 1970, as a girl of 14, with her parents. As a child she remembers their Jack Russell chasing the cows in the field by the side of their garden. People were not walking in the fields then. Mrs Cole has an aerial photograph of her property, taken in 1971, which shows part of the field to the south-east. The surface of the field is very even and has a light green colour, which confirms that it was grazed at this time, and there are no worn paths around the edge of the field.
9.2.2 Mrs Cole left home in 1973 but moved back in 1989 when her parents sold the property to her and her husband. When she returned to Providence Hill, cattle were not kept in the field by the side of the house. From the top floor Mrs Cole was able to see people, mostly dog walkers, walking in the field. She has another aerial photograph of her property, taken in 1991, which shows part of the field by the side of the house. This time the field has a very uneven appearance and a much darker colour, which indicates the existence of long grass and scrub. Mrs Cole believes this demonstrates that the field was not grazed at this time. There is no sign of a worn path around the edge of the field in this photograph.
9.2.3 Mrs Cole didn't walk across the fields herself until about 1993 when she started to use them to walk her dogs. She used to gain access to the first field through a gate in the boundary of her property close to Providence Hill. Mrs Cole was aware of another access point to this field through a gap in the hedge by the bungalows but she did not use that entrance herself. From her garden Mrs Cole would walk generally towards the bungalows fronting Providence Hill and cross into the next field to the north using a culvert by the side of the hedge. From there she would walk towards Windmill Lane and cross into another field. She does not remember there being any barrier or gate in this field boundary. If there was one it was not difficult to get over. There were no animals kept in the fields when Mrs Cole was walking there. She usually walked back to her house by going through the strip of woodland at the bottom of my garden. She has never walked out to Dodwell Lane.
9.2.4 A couple of times Mrs Cole has walked out to Windmill Lane to find her dog who was in the habit of visiting properties in that neighbourhood. She does not remember there being any barriers or gates across the track which led from the fields to Windmill Lane. Nor does she recall there being any notices to say that it was private. Mrs Cole also spoke to the woman at the stables, where her dog would sometimes go, but that woman didn't say anything to her about walking over the fields.
9.2.5 Mrs Cole didn't often see people walking in the fields but her children used them to play with other local children. Later they also used them for riding motorbikes. In 2000 Mrs Cole's children told her that the access to the field, from Providence Hill, had been blocked by mounds of earth. This obstruction stopped them getting their motorbikes into the field. She still walked over the fields to find her dog but, from about 2002/3, horses were kept there and she stopped that activity.
9.3 Mr E Freeman of Providence Hill
9.3.1 Mr Freeman's family has rented or owned the field behind the bungalows fronting Providence Hill for many years. His grandfather rented this field before 1918 and then he purchased it from the Humphreys Estate in that year. Mr Freeman's mum and dad used the land for growing vegetables and from a very young age he would spend a lot of time down there helping them. He remembers his father telling him as a young child that old Mr Garrett, that is John Henry Garrett, had put up a private notice to stop people using a path that went from Windmill Lane, near Freehills Farm, across the fields where the motorway is now and out to Dodwell Lane where it meets Blundell Lane.
9.3.2 Mr Freeman knew the Garrett brothers, the sons of John Henry, when they were young men. The Garrett brothers kept cattle in the fields next to his land after the motorway was built in the early 1970s. The Garretts had problems managing the land while they lived in Braishfield. The local kids broke down the fences, the cattle got out and it was a burden to them to keep coming down there. When the cattle went the land became derelict and became overgrown with rough grass and scrub. Mr Freeman has given some thought to when the cattle were last kept in the fields and he believes it was about 1987 or 1988.
9.3.3 After the cattle left some horses appeared in the field tethered to stakes. This went on for some weeks. The Garrets put up a notice in the field about the horses but Mr Freeman does not recall there being any private notices. Access to the field next to his land was through an iron field gate at the top of his drive where it meets Providence Hill. After the Garretts left, this gate rusted away and he saw people using the field to walk their dogs.
9.3.4 When Mr Freeman's sons were about 12 or 13 they used to ride a motor bike around his field. They then took to riding the bike round the Garretts' field. Other kids, friends of his sons, joined in but then other people came from outside with bikes on trailers. There were then complaints from the people nearby about the noise from the bikes. Mr Freeman saw Derek Garrett one day, by the entrance to his field, and Mr Garrett told him that there had been trouble about the bikes and he had been told by the council to block off the field to stop access for them. A man with Mr Garrett had a skip hire company and he dumped soil and rubble in the gap where the gate used to be at Providence Hill and also at an entrance in Dodwell Lane. Mr Freeman believes this happened in about 1995. This action stopped the bikes and the dog walkers.
9.3.5 There were always horses kept in the top field near to the motorway but, in more recent years, they have also been grazing the field next to Mr Freeman's land. The horses used to escape from their field, through gaps in the fences, and get onto his land. A man repaired the gaps in the boundary fence, including the gap at the entrance to Providence Hill, to stop this happening again.
9.4 Mrs G Smith of Providence Hill
9.4.1 Mrs Smith has lived at her present address, with her husband, since May 1998. Soon after moving in she noticed that people were walking their dogs in the field close to her house. They gained access to this field by walking down the drive that leads to the three bungalows and then through a huge gap in the boundary between the drive and the field. There was a very well-worn path that led into the field and followed the hedge line. Mrs Smith spoke to the man who has the land behind her house, and he told her that he knew the farmer who owned the field but he lived near Totton and it wasn't used for farming. He described the field as just open land.
9.4.2 Mrs Smith started to walk her dog in the field and her husband went jogging there as well. She used to follow the worn path which ran close to the field boundary, then over a culvert and uphill to a gap in the hedge. From here the path went down to a bridge over a stream, and then uphill again to Dodwell Lane. Mrs Smith didn't actually walk as far as Dodwell Lane because her dog was off the lead. She would turn back and retrace her steps, although her husband has jogged all the way to Dodwell Lane a couple of times.
9.4.3 Mrs Smith has also walked over the field towards Windmill Lane but stopped at the far boundary because there were horses kept in the field beyond. This land seemed like proper farmers' fields and was obviously used, unlike the other fields which were more like common land. There was a gate in the field boundary but she did not go through it because the land was used for horse grazing. Mrs Smith used these paths every day to walk her dog. She did not see any signs or notices to say that the land was private and she was never stopped whilst using the land.
9.4.4 Mrs Smith used to see people walk by the end of her drive and into the field, but she did not see some of them return, so she assumed that they were using a through route rather than a circular path. The majority of people walked around the edge of the field rather than across the middle. Children played in the fields most days, including some on motor bikes. People would park their vehicles at the top of her drive and unload trail bikes which were then ridden around the field. The children from the next house up Providence Hill would ride their quad bikes around the field as well. The field was used like common land. There was a gypsy horse tethered in the field some of the time.
9.4.5 In about 2000, someone came along with a trailer and dumped a pile of soil in the gap in the field boundary close to Mrs Smith's house. This wasn't sufficient to stop people walking through there, they just walked up the mound and down the other side and created a hard, worn route in the process. It was easy to walk over the soil heap. Then, a few weeks later, someone dumped tree branches and cuttings on the soil heap to make it harder to get through. That did stop people, including Mrs Smith, from getting through at that point, but some climbed through the fence slightly further down. A while after that, horses were kept in the field but they were getting out through gaps in the boundary. These gaps were then blocked by fencing put up inside the original field boundary.
10. The landowners and tenant
10.1 Ms A Barney of Durley (owns section A-B)
Ms Barney's family have owned the land since 1988 and it was transferred to her name in 1997. She does not regard the track as a public right of way as it is a private roadway that is gated at both ends and locked. She has not seen any members of the public using the roadway. The only persons she has seen are those who have legal easements over the property or their invitees. Ms Barney has never stopped or turned back any members of the public personally, because she has never seen any members of the public using the trackway. She understands that her parents may have done so in the past, during the period of their ownership.
10.2 Mr P Fisher of Warsash (owns section B-C-D)
10.2.1 The Fisher family has owned land between Windmill Lane and Dodwell Lane for at least 200 years. Mr Fisher has owned the land, together with his brother and sister, since his father died in 1982. He grew up in Lowford Hill and as a boy he helped his father farm the land at week-ends, in the evenings and during school holidays. In those days the land was used as a market garden with access to it along a track from Windmill Lane. Since Mr Fisher has owned the land he has not farmed it himself but has rented it out to a woman called Jane Feasey. She has used this land to graze horses for at least 18 years. Mr Fisher has continued to visit the site about once every three months to keep an eye on the boundaries.
10.2.2 Mr Fisher has never seen anyone walking across his land but about 5 or 6 years ago a man called Pete Harvell, who lives at Orchard Lodge in Windmill Lane, told him that he had seen people walking across Mr Fisher's field. He visited the site and found evidence that people were breaking down the boundary fence between his land and Garretts' field (point D). There was an obvious path that had been worn on both sides of the fence. To stop this activity Mr Fisher blocked the gap in the fence with a pallet. The pallet was then removed so he felled a nearby tree to stop people getting through. Since then he has not had any reports of people walking across his land. Mr Fisher has never given permission for anyone to walk across his land and he has not put up any notices to say that the land was private.
10.2.3 Before Jane Feasey rented the field there was a metal field gate across the end of the track near where her stables are now. This gate was always locked when Mr Fisher's dad was alive. In about 1984 New Age Travellers broke into his field in their coaches. The Travellers were quickly moved on to another field on the other side of Windmill Lane and to prevent that happening again Mr Fisher put up a locked gate across the entrance to the track where it meets Windmill Lane. Control of that gate now lies with Jane Feasey.
10.3 Mr J Garrett and Mr D Garrett of Braishfield
(own sections D-E-F and E-G-H)
10.3.1 The Garrett family have owned fields between Dodwell Lane and Providence Hill for at least 150 years. The Garrett brothers were born in the 1930s and lived in a house called `Belmont' in Providence Hill and at that time their father farmed the land. During the war he grew vegetables in those fields. In 1968 the brothers took over the management of the land when their father retired. In that same year they moved from Bursledon to their present address in Braishfield. The brothers continued to use the fields at Bursledon for grazing cattle and would visit the site about twice a week. They had problems with the cattle being let out of the fields so they gave up farming the Bursledon land about 17 years ago, that is 1988. They remember this date because the youngest son of Derek Garrett, drove down to Bursledon, shortly after passing his driving test, to put some artificial fertiliser on the fields. This was done to encourage grass growth for summer grazing of the animals. The Garretts didn't keep cattle at Bursledon during the winter months because it was too difficult to look after them down there. They let a woman called Pat Parker, later known as Mrs Madson, keep her horses there but they don't know who, if anyone, uses the land today.
10.3.2 When the brothers farmed the land they had two access points into their fields, one from Dodwell Lane and the other off Providence Hill. The Dodwell Lane entrance was a wide, iron field gate by the side of the electricity sub-station. From there, going north-westwards, the land runs downhill to a stream which has a concrete pipe culvert. Beyond the stream the land rises to a hedge which forms a field boundary. There is, or was, a gap about 10-12 feet wide in this hedge that let the cattle through to the next field. From that gap, going towards Providence Hill, there is another stream that divides the large field. This stream has a culvert close to the hedge where the three bungalows are. Access to Providence Hill was through another iron field gate in the bottom corner of the field. The boundary between their land and Mr Fisher's land to the north-west consisted of an old hedge together with a barbed wire fence.
10.3.3 When the brothers farmed the land they weren't aware that people were walking over their land. In the 1980s they were having trouble with people putting horses onto their land to graze without permission. To try and stop this they put up notices on site which included the words `Private Property'. These notices were placed at two locations, by the gate on Dodwell Lane and by the gate off Providence Hill. These notices kept getting removed so the brothers replaced them 3 or 4 times a year. The gates were locked with a padlock and chain. Once a year they would check their field boundaries to make sure they were stock proof. Although their cattle did get out at some points they never got into Mr Fisher's field. In December 1998 the brothers were told by Eastleigh Borough Council to block off the land because motor bikes were getting into the fields. Soon after getting that letter they employed a company called ACE Liftway to fill the gaps in the boundaries with builders rubble.
10.4 Ms J Feasey of Lowford (rents land crossed by B-C-D)
10.4.1 Ms Feasey has owned and rented land on the south-west side of the M27 motorway for many years. She owns land on the north-east side of the track from Windmill Lane and she has rented a field from Mollie Fisher for the past 22 years. She has also rented a field from Peter Fisher for the last 15 to 18 years and other fields from the Garrett brothers for the last 10 to 15 years. She has owned stables and kept horses in this area since 1983.
10.4.2 When Ms Feasey first had the land, the track that led to the fields from Windmill Lane was in very poor condition. It was overgrown with brambles which she had to clear back and then get hardcore to surface the lane before she could drive down it. She does not remember if there were gates across the track at that time. Ms Feasey's first stables were on the north-east side of the lane and not long after moving in she had several break-ins. To stop this she put a wooden gate across the track at the Windmill Lane end. At the same time she also put up a `Private' notice at Windmill Lane and she believes that the notice stayed there until it rotted away. There is now a new sign on the gate at Windmill Lane that has been put up very recently.
10.4.3 Ms Feasey has occasionally seen people walking down the track past the stables. She has met Mr Fisher twice since she started renting a field from him but she can't remember talking to him about people using the track and fields for walking. She has not met the Garrett brothers. When she first came here, the Garrretts kept cattle in their fields but very soon they stopped keeping animals because fences were being cut on the main road and their cattle were getting out.
10.4.4 About five years ago Ms Feasey had problems with fences being cut at Dodwell Lane and Providence Hill and the horses getting out. To stop this she put tree branches across the gaps where people were getting through and erected secondary fences behind that. She also got someone to photograph the person who was cutting the branches. At roughly the same time she put up a double metal gate across the end of the track, close to the stables. This replaced a previous metal gate that had rounded high tops. This gate is not always locked.
10.4.5 Ms Feasey has removed children she's found playing in the woods towards Providence Hill but the only person she's ever challenged on the rented fields is the woman at Dodwell Lane about 5 years ago. When Ms Feasey moved onto her land in 1982 there was cattle grazing on the Garretts' land and this continued for a number of years.
11. Consultations with other bodies
11.1 Bursledon Parish Council
The parish clerk has written to say that:
"This application was discussed at the meeting of Bursledon Parish Council on 23.11.05. The Council does not support the application. An elderly parishioner present at the meeting said, as a child, she had never been permitted to cross the fields. Permission to do so had always been refused. No member present had any information to the contrary. Members therefore unanimously agreed not to support the application."
11.2 County Councillor K House - local member
No comment
11.3 The Ramblers Association
No comment
11.4 Environment Department
No comment
11.5 Hampshire Highways
No comment
12. Analysis of the evidence
12.1 There is some evidence that there was a used path from Windmill Lane to Dodwell Lane before the motorway was built in the early 1970s. This path ran from Freehills Farm, across where the motorway now runs, to a point in Dodwell Lane opposite Blundell Lane. This earlier path is referred to by older residents and landowners alike. The construction of the road stopped this pattern of use and, post construction, the public were confined to the land south of the motorway.
12.2 There has undoubtedly been unrestricted public use of the land south of the motorway for a significant period of time. There is ample evidence from the users that they were able to access this land without any difficulty. Although some landowners mention steps taken, before 1995, to inform the public that there was no right of way, these measures were obviously ineffective and did nothing to stop the flow of public use. It is also apparent that the public wandered freely over the land and did not necessarily keep to well defined routes.
12.3 The public's ability to use the land was restricted in the 1990s. Firstly, a gate was erected and locked at the Windmill Lane entrance (point A). This was done to prevent access by traveller's vehicles and is referred to by Mr Grassie (paragraph 8.15.4) and Mr Fisher (paragraph 10.2.3) who both claim to have put up the gate. Mr Fisher believes this happened in 1984 but Mr Grassie says it was 1995. Given that Mr Grassie lives on site and given that problems with travellers were most prevalent in the 1990s, Mr Grassie's version is preferred. The gate did not completely block the path because a gap was left to one side of a post, and the gate was not kept locked for long. Nonetheless, the erection and locking of this gate could be construed as a bringing into question of the public's right to use this section of path.
12.4 The second action that restricted public access is the blocking of the access point at the field boundary between Fisher's land and Garrett's land (point D). The stile, gate or gap was blocked by the landowner, Mr P Fisher (paragraph 10.2.2) and mentioned by several users such as Mrs M Bevis (paragraph 8.4), Mr & Mrs Coleman (paragraph 8.8.5), Ms Connolly (paragraph 8.10.5) and Mr Grassie (paragraph 8.15.5) The aerial photograph dated 2000 confirms this action because to the south-east of the field boundary there are obvious signs of worn, used, paths but to the north-west of the field boundary there are no signs of used paths. This action, by the landowner, brings into question the public's use of the route A-B-C-D-E and it probably occurred in 1998 or thereabouts.
12.5 The third action that restricted public use of the land was the blocking of the gap off Providence Hill (point H), with builders rubble, primarily to stop access by motorbikes. This action is referred to by the Garretts (paragraph 10.3.3), Mr Freeman (paragraph 9.3.4) and Mrs Smith (paragraph 9.4.5) and, of course, it is recorded in the letter from Eastleigh Borough Council (paragraph 7.5). Although Mr Freeman believes this happened as early as 1995 it is obvious from other evidence that it occurred sometime between December 1998 and Spring 2000. However, the builders rubble did not stop all of the walkers. From the user evidence it is apparent that many of them continued to gain access to the fields by walking over the rubble. Mrs Smith, who lives right next to the access point, confirms this in her statement.
12.6 The public's ability to access the land was finally brought to a complete halt in the first week of July 2000 by barriers erected, at points E and H, by the tenant, Ms Feasey. This action is well documented by most of the users and provides a precise date for the bringing into question, and the 20-year period, as specified by S.31 Highways act 1980. For the route F-E-G-H and the alternative routes around the edges of the fields, the relevant period of use therefore is 1980 to 2000.
12.7 All but one of the 27 users claim to have walked the route between Dodwell Lane and Providence Hill and 22 people have used a route between Windmill Lane and Dodwell Lane. This volume of use is considered sufficient to represent the public at large. In this case the two key issues that need to be addressed are: have the public enjoyed uninterrupted access for the full period of 20 years? and, was the public's use of the land sufficiently concentrated on a specific route or routes to acquire a right of way or were they wandering over a larger area?
12.8 To answer the first question, it is reasonable to conclude, from the evidence as a whole, that while the land in question was not used or managed for any purpose then the public had access to that land. Conversely, if the land was used to graze horses or cattle, then the landowners would have taken steps to ensure that the field boundaries were stock-proof. In paragraph 10.3.3 the Garrett brothers state that the gates were locked with a padlock and chain. Given the problems that the Garretts were experiencing with animals being let out of their fields, their gates surely would have been locked when the animals were there. In the absence of stiles on the outer boundaries, any public access would have been by force. The crucial point that needs to be answered is: when did the Garrett brothers last use their land for grazing?
12.9 The Garretts themselves say that the last year the land was grazed was 1988 and they acknowledge that, before 1988, the fields were only used in the summer months and therefore, at other times of the year, the fields would have been empty. This date of 1988 is confirmed by Mr Freeman, who believes that the last year cattle were kept there was 1987 or 1988. Ms Feasey who rents the land on the other side of the Garretts' fields, says that when she moved onto her land in 1982 or 83 there was cattle grazing on the adjoining land and this continued for `a number of years' although she also stated that it ceased `very soon after' her arrival. Mr Grassie, in Windmill Lane, also says that he remembers seeing cattle as late as 1988.
12.10 If this evidence from two landowners, a tenant and a user is correct, then within the relevant 20-year periods of use, that is 1978-98 for the Windmill Lane route and 1980-2000 for the Providence Hill route, the only way that the public could have gained access to this land was through, or more likely over, the field gates situated at Dodwell Lane and Providence Hill. There is some supporting evidence for this from a user. Mrs Springall (paragraph 8.25.5) recalls climbing over a gate at the Providence Hill entrance without giving a specific date for this activity. She recalls that `After the motorway was built the land was just used for grazing and there have been cattle and horses in the fields'. Of course this situation only applied for those few months of the year when cattle were grazed in the fields.
12.11 It must be said, however, that the vast majority of the users who walked the land before 1988 are quite clear that their use was not impeded by obstructions such as locked gates. There are 24 people with claimed use before 1988 and only Mrs Springall mentions climbing over a gate. On this issue there is an obvious contradiction in the evidence between the owners/tenant and users. If the claim revolved entirely upon this subject then the inclination of the officers would be to recommend that an order be made so that the evidence could be tested at a public inquiry. Before that conclusion can be reached though it is necessary to look at the other key issue of whether the public has been wandering over the land rather than adhering to specific routes.
12.12 All 27 users have produced maps showing the routes that they have walked. Given that no paths appear on the Ordnance Survey base maps it is impossible for them to be precise about which route they took but definite patterns of use emerge and with the help of an aerial photograph of 2000 it is possible to be fairly certain about some of the routes used. However, it is impossible to be certain about the exact routes used between points B and D because that path was blocked before the aerial photograph of 2000 and therefore no worn path appears on that document.
12.13 Looking first at the evidence of use to and from Windmill Lane, it is obvious that the public took two distinct routes between points B and D. The most popular route was B-C-D and this is shown on most maps produced by the users. However, it is also apparent that several people also used route B-X-D around the other side of the field. This is mentioned in the evidence from Mrs M Bevis (paragraph 8.4), Mr & Mrs Coleman (paragraph 8.8.3) Ms Connolly (paragraph 8.10.3) and Mr Grassie (paragraph 8.15.2). The user evidence therefore was dissipated over two routes rather than concentrated on one and, in any event, it is impossible to be certain exactly where people walked because there is not a single map or photograph which shows the exact line of the path.
12.14 The aerial photograph of 2000 does show worn routes in the fields to the south and east of point D but there is no visible path out to Providence Hill. From the user evidence however, it is apparent that the route from Dodwell Lane to Providence Hill (F-E-G-H) was used and served a practical purpose in enabling some people to get to the shops and visit friends. This activity is specifically mentioned by almost half of those that completed user forms. It is equally clear that, for most users, the purpose of their walks was to exercise their dogs and generally enjoy the countryside. From their descriptions of use it seems that the land was used more like a public open space than a public right of way. Examples of this activity are as follows:
12.15 Play in the stream and blackberry picking - Mrs M Bevis 8.4
Frequent adventures and general nature observations - Mr S Malone 8.23
Sledging in the snow, collecting frogs spawn, blackberries, wood and mushrooms - Mrs J Cooperthwaite 8.12.5
Horse riding - Mrs N Welch 8.26
Riding motorbikes - numerous
Children playing - Mrs C Cole 9.2.5
Exercising dogs in the fields - Mr & Mrs Coleman 8.8.2 and others
Blackberrying - Mrs Springhall 8.25.3 and others
12.16 It is difficult for the officers to disentangle the evidence of use associated with wandering, as described above, from evidence of more purposeful walking such as going to the shops, windmill or other recognisable destinations. On a fine balance, it is thought that there is so much evidence of general use of the land that it would be inappropriate to recommend making an Order to record a public right of way on any particular route.
13. Conclusions
13.1 The public has enjoyed access to the land in question for a significant number of years before 2000.
13.2 The blocking of the track entrance, at point A, in 1995, brought into question the public's right to use the route to and from Windmill Lane.
13.3 The relevant period of use for consideration for route A-B-C-D-E is therefore 1975 to 1995.
13.4 The blocking of the field boundaries at points E and H, in 2000, brought into question the public's right to use the route between Dodwell Lane and Providence Hill.
13.5 The relevant period of use for consideration for route F-E-G-H is therefore 1980 to 2000.
13.6 Within these respective periods there are sufficient users to constitute the public at large.
13.7 There is conflicting evidence concerning restrictions on this public use within the relevant periods.
13.8 For the route to and from Windmill Lane, there is evidence that the public used two significantly different routes over one field.
13.9 It is impossible accurately to define the claimed route between points B and D.
13.10 The public has probably not enjoyed uninterrupted use of the claimed routes for the full period of 20 years.
13.11 A significant proportion of the public's use of the fields is more consistent with general recreation rather than walking specific routes as highways.
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 CR687 - Rights of Way Office, Mottisfont Court, Winchester