Hampshire County Council Item

Regulatory Committee

22 March 2006

Application for a Definitive Map Modification Order for the addition to the Definitive Map a footpath between Ringwood Road and playing fields in the Parish of Bransgore

Report of the Director of Recreation and Heritage

Contact: Alex Lewis, extn. 6044; [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 -

(b) the expiration, in relation to any way in the area to which the map relates, 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 not shown in 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

1.1 This item considers an application to add to the definitive map a footpath between the playing fields and Ringwood Road, Bransgore. The application is based on evidence of use prior to the closure of the path in 1999.

1.2 There has been use of the path by the public in the 20 or so years prior to 1999, but there is also evidence that the owners of part of the land did not intend to dedicate a right of way within this period. Part of the land is also subject to a strict settlement which would make it inappropriate to infer a dedication at common law. The claim is therefore recommended for refusal.

2. Description of the claimed path

The claimed path runs from the eastern corner of the Burley Road playing fields (point A on the attached map), northeastwards along the edge of a field to Ringwood Road (point B). The path is currently blocked by a padlocked gate at Ringwood Road and by fencing used to separate the field into paddocks used for grazing horses.

3. The Applicant and the Application

The application was made in August 2000 by Bransgore Parish Council, in response to residents' concern at the closure of the path by the owners and/or occupiers of the land. The claim was accompanied by 25 user evidence forms, from 26 witnesses and 20 different households.

4. The Landowner

The owners of the land affected by the claim are the Trustees of the Meyrick 1968 Combined Trust (The Meyrick Estate), of The Estate Office, Hinton Admiral, Christchurch, Dorset.

5. Consultation

5.1 Letters of consultation have been sent to Ringwood and Fordingbridge Footpath Society, Open Spaces Society, New Forest District Council, The Ramblers' Association, Bransgore Parish Council and Bransgore Primary School. The local member, Cllr Kendal has been informed.

5.2 Fordingbridge Footpath Society is unable to offer any evidence for or against the claim. Bransgore Parish Council is, of course, the applicant and continues to support the claim. Bransgore Primary School's response is set out at paragraph 8.17 below.

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 exists, or is reasonably alleged to exist, between the playing fields and Ringwood Road in Bransgore on the line, or approximately on the line, of the claimed path.

6.2 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 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. Officers do not consider that there is such a conflict of evidence in this case.

6.3 The witness evidence forms and statements can be inspected in the Rights of Way office, Mottisfont Court. Members are urged to inspect these, or the originals, when considering this report.

7. Historic and documentary evidence

7.1 There is no evidence that the claimed path is of historic or ancient origin. It is not shown on the Ordnance Survey County Series maps of (circa) 1870, 1895 1909 and 1939. The land crossed by the claimed path appears to have been in use for agriculture and there is no obvious reason from these maps why there should have been a need for a path on the line of the claimed route.

7.2 Some time before 1950 land southeast of Burley Road was given to the parish of Bransgore as a recreation ground or playing fields, and in 1949 or thereabouts, land west of the playing fields was developed for housing (Westbury Close and Meyrick Close). Ordnance Survey 1:2,500 maps of 1959, 1974 and 1982 show a school, church, public house and other buildings and facilities in Ringwood Road, which residents of Westbury Close might wish to access, the most direct route to which would be by following the southeastern boundary of the playing fields and adjacent land. The mapping suggests that the path may have had its origins as a short cut to these facilities in the years after 1949. However, no path is shown on these maps on the line of the claimed path. Even on the map of 1982 there are four field boundaries shown across the line of the path, although there may have been gates, or gateways in appropriate positions.

8. The user evidence

8.1 A graph annexed to this report summarises in broad terms the amount of user evidence received in support of this claim. It is of necessity a generalisation, and members are recommended to see the original user forms and witness statements from which the information in the graph has been derived.

8.2 As with all applications based on user evidence, officers have contacted a number of witnesses, both to obtain a wider picture of the background to the claim and to test information and inconsistencies contained in user forms. The following summary is based on evidence contained in the user evidence forms. Where a witness has provided further information in an interview or telephone conversation this is indicated.

8.3 No witnesses have reported being challenged when using the path or seeking or being given permission. A number claim to have seen bicycles using the route, but none claim to have cycled along the path themselves.

8.4 Mrs S. Owen, on behalf of Bransgore Parish Council (interview 4.8.05)

Mrs Owen has served on the Parish Council for over 10 years and is currently its Chairman. Although she has not used the path herself, she is familiar with the background to the claim, and co-ordinated the application. The Parish Council became involved with the path after receiving a complaint from the proprietors of a shop that used to be opposite the Ringwood Road end of the claimed path. The shopkeeper complained that his takings were down because the Meyrick Estate had closed the claimed path and that he was losing custom as a result, because people from Westbury Close could no longer access the shop easily. The Estate had put barbed wire across the path in order to divide the field into paddocks and had put a sign in a tree at the Ringwood Road end of the path saying `Private. No right of way'. Mrs Owen understood that the Estate had closed the path following a request from the school that it be made into a public right of way. Having received notice of the claim the Estate offered a permissive path, but the Parish Council refused, on the basis that it wanted to secure the long-term future of the path.

8.5 Mrs Dawn Adams (user form 30.4.00 and interview 1.2.06)

Mrs Adams has known the path since approximately 1981 and used it `almost daily' (her form states 200 times a year) since then for dog walking. She remembers that the path entered the playing fields through a gap in the corner of the field. A gap halfway between that corner and the village hall was used by people walking in the coppice that fronts onto Burley Road. The path was just rough earth but you could see where people walked. She cannot remember when the path was blocked off, but locked gates appeared at Ringwood Road, and later a notice saying `Private'.

8.6 Mr M. Brackstone (user form 24.5.00)

Mr Brackstone used the path about 6 or 12 times a year between 1976 and 2000. There were no gates `until recently' (i.e. 2000), and no notices. He comments "People have used it as long as I have lived in the village and it goes directly to playing fields". He describes the path as 1 metre wide.

8.7 Mr W. Brackstone (user form 31.5.00)

Mr Brackstone has used the path between 1985 and 2000, about 5 times a year. He says that the route has had gates on it, which were still there (in 2000). Fences were also recently added. He estimates the path to be 1 metre wide, and states "The footpath is very convenient and has been in use for a very long time".

8.8 Mrs C. Bradley (user form 11.5.2000 and interview 11.8.05)

Mrs Bradley came to Bransgore in 1968 but only started to use the path regularly a while later: certainly by the mid 1970s. She followed other people whom she saw using the path from Ringwood Road. She recalls that the path was well used and visible on the ground. It followed the edge of the field to the boundary with the playing field. She used to get onto the playing field either through a gap in the corner of the playing field, or she would walk around the edge of the field to a gap in the hedge by a large oak tree, between the village hall and the corner of the playing field. She believes that she used the path two or three times a week, all year round. Her recollection is that there was a sign in a tree at the Ringwood Road end of the path saying something like `Private Property' before gates were erected in 1999. The notice caused her to ask at the shop whether it was still alright to use the path. They advised that it was and, as she saw other people still using the path, she continued to do so until the path was closed with a gate, which after a few months was kept padlocked.

8.9 Mr and Mrs R. K. Carter (user form 15.5.00)

In their user evidence form Mr and Mrs Carter state that the claimed path "... is a short-cut for children walking to school and also [a] place for walking dogs". Their own use commenced in 1980 and continued until 1999, when the path was fenced off and a gate across it locked. They say that they used the path daily to take their children and foster children to school, until it was blocked. They refer to the existence of gates, although it is not clear from the form whether these existed prior to 1999. They describe the width of the path as `just enough to walk'.

8.10 Mr R. Carter (interview 8.2.06)

Mr Carter recalls using the path as a child in the 1950s. He says that he and school friends used it to get to and from school, but they knew it wasn't a right of way and would not go in the fields if the farmer or one of his workers were there, despite being a friend of the farmer's son. He accessed the path from the corner of the playing field, and although there was wire across it, this disappeared after a while and then there was a gap. There were originally two fields between the playing fields and Ringwood Road and he used a gap in the middle of the hedge to get from one to the other. However, later a gap was formed on the headland of the field, which meant that you could walk in a straight line, on the route of the claimed path. He has not used the path very much as an adult.

8.11 Canon P. Elkins (user form 25.5.2000 and telephone conversation 21.7.05)

Canon Elkins was the vicar of Bransgore between 1966 and 2004. The vicarage is on Ringwood Road, close to the path, and the land to the south of the claimed path is Glebe land. The path can be seen from the vicarage and this has enabled him to form the view that the path has been in regular use, and was in use when he arrived in the village. In reply to the question `Why do you regard this way as public', Canon Elkins responded in 2000 `Constant use over 33 years'. His form states that he used the path weekly between 1989 and 1999. In conversation in 2005 he did not describe himself as a great user, although his wife used it on a regular basis. He states "Occasionally the Meyrick Estate indicates a private notice", but does not specifically relate this comment to the claimed path. His form also contains the following statements: "I have from time to time advised the Meyrick Estate office of use of this path through their land but I don't remember much vigorous action being taken to stop it"; "I have been Vicar since 1967 and resident in the present property [i.e. the vicarage] observing access to this path most of this time on and off daily". He believes that the sign now at the Ringwood Road entrance (this says `Private No Right of Way') went up in 1999, at the same time as the gates. He estimates the path to have been 1 metre or more wide and well trodden. He does not remember any structures across it until 1999. "It was not difficult to get to [the] playing fields".

8.12 Mr A. Etheridge (user form 5.5.00)

Mr Etheridge's form states that he used the path approximately daily between 1965 and 1999, for taking children and grandchildren to school and for collecting a daily paper from the shop which used to be on Ringwood Road.

8.13 Mrs I. King (user form 6.5.00)

Mrs King says that she "... used this path as a child going to school as it avoided me crossing the main road by The Crown. It is also the same reason for my children who now attend Bransgore school". Her form states that she used that path almost daily between 1965 and 1999, although it does not make clear what all the journeys were for. In response to the question `Have you passed through gates?' Mrs King has replied `yes', and by implication they must be gates other than that erected at Ringwood Road in 1999, because she states that the gate is not still there.

8.14 Mrs S. Laker (user form 14.6.00 and interview 1.2.06)

Mrs Laker used the path between 1978 until it was closed in 1999. The first she knew of the closure in 1999 was when the field adjacent to the playing field was fenced, preventing access to the path from the playing field. She generally accessed the path from the gap in the hedge halfway between the village hall and the corner of the playing field, because the land by the corner of the playing field was often muddy. She believes that the majority of users would access the path this way, cutting off the muddy corner. Until it was closed, she used the path regularly, more at first in the early years when she took her children to school, but also latterly to visit friends and exercise dogs. She thinks that there was always an old square `Private' sign at the Ringwood Road end of the path, but considered it to relate to the land at the side of the path and not to the path itself, which she believed to be public.

8.15 Mrs M. Lakey (user form 5.5.00)

Mrs Lakey states in her user form that, to her knowledge, the claimed path has been used since 1953, but she describes it as running `from Westbury Close and Brook Lane to village hall and village'. There must be some doubt that this refers to the claimed path between the playing fields and Ringwood Road. It would be unsafe to assume that her evidence relates to the claimed path.

8.16 Mrs R. Lamb (user form 12.5.00)

Mrs Lamb's form relates to a path between `the playing field and the stores' but gives no information about the number of time she has used the path or the period of time during which she has used it. She says that there has been one (or possibly more than one) `private' sign, but it is not clear from the form whether this was in place before or after 1999. Mrs Lamb has stated that she does not wish to be involved in the claim and has therefore not been pressed for any further information.

8.17.1 Mrs C. Lockyer (user form 13.5.00 and telephone interview 22.2.06)

Mrs Lockyer's form makes it clear that she does not necessarily regard the path as public and is not for, or against the path. However, she says that she has used it `a few times in 17 years' (between 1978 and 1995). she states that there has always been a gate at the shop end of the path, but it was only closed a few times. She also states that "There is a hedge which runs along the playing field and to which there has been a small gap in [sic] but that has been made by members of the public using the path. This has sometimes been overgrown if it has not been used for a while". She has clearly had doubts about her right to use the path: in answer to the question `Have you ever been stopped or turned back' Mrs Lockyer has replied "No, because we never saw anyone. If there was someone then we did not use because we were not supposed to be in the farmers field". She says that she has passed through gates on the path. These must have pre-dated the 1999 gates, if she last used the path in 1995, as suggested by her form, although her form indicates that the gates are still there.

8.17.2 Mrs Lockyer has also spoken recently to officers in her capacity as a parish councillor and also on behalf of Bransgore School, which was consulted about the claim. She is a member of the school's working group on `Safe routes to school'. It is the view of that group that it would be nice to have the path as a safe route to school but it would have to be properly managed if it is to be of any value. The path would have to be provided with a hard surface (which is impracticable across a playing field) and arrangements would need to be made for a safe crossing of Ringwood Road. It would, in any event, currently only benefit about 12 pupils. Thus, whilst on paper the path might seem to be an important facility for the school, its value is in practice somewhat more limited.

8.17.3 Mrs Lockyer strongly disputes that the path was used to any great extent by schoolchildren, and says that it was only about one and a half feet wide, barely enough for a right of way.

8.18 Mrs E. Lowndes (user form 31.5.00)

Mrs Lowndes' form has been signed by her but completed by her daughter. In it Mrs Lowndes states that she has used the claimed path 3 - 10 times a year between 1943 and 1999. She refers to the barbed wire now in place as the only thing that has caused people to be stopped from using the route.

8.19 Ms P. Lowndes (user form 22.5.00)

Ms Lowndes used the path weekly on foot and horseback between 1965 and 1972, and then again on foot daily to go with her daughter to and from the school between 1996 and 1999. She believes it to have been used as a shortcut for generations. In her form Ms Lowndes states "There have always been 3 gaps in the hedge between field and playing fields - no styles etc until the fence" (presumably the barbed wire fence enclosing the paddocks). She refers to a sign at the Ringwood Road end of the path, saying `No public right of way', but it is not clear when this sign was in place. She adds "When the youth club was at the entrance to the field opposite little shop we (kids) used to all use the field to play in and go to the playing field via. there was never to my knowledge anything preventing our access to the playing fields".

8.20 Mr Manley (user form 24.6.00)

Mr Manley's form states that he used the path between 1957 and 1999, but is ambiguous about how often. He refers to passing through unlocked gates, but did not see notices on the path.

8.21 Mrs Manley (user form 1.6.00)

Mrs Manley regards the claimed path as public and states that "we have always been able to walk that way". She puts her use at 12 times a year between 1978 and 1999, to pick up children from school and to go to the shop. he says that she passed through gates, but that they were open, and that she did not see any notices on the route.

8.22 Mr S. Manley (user form 24.6.00)

Mr Manley used the path 20 times a year between 1985 and 1999 . He refers to gates, but not notices.

8.23 Mrs C. McGhie (user form 12.5.00, interview 7.2.06)

Mrs McGhie used the claimed path occasionally as a child in the 1960s and 1970s, but used it `every day' after 1984, when she moved to Westbury Close, (although her user form qualifies this by the statement "mainly in summer and autumn"). She admits to passing through gates, and refers to the fences, which are still across the path, and to the locked gates. She does not recall seeing any notices, although there was one on the fields immediately to the south of the claimed path saying `Private'. She says that she accessed the path from the corner of the playing fields and that the path used to get muddy when it was wet, but no more so than any earth path. she doesn't think that it stopped children using the path.

8.24 Mr S Pateman (user form 5.5.00)

Mr Pateman claims to have walked along the claimed path weekly for 30 years before it was closed. He considers that the path was 2 yards wide, and that there were gates on it, but only recently (i.e. `recently' in 2000) were there what he considered to be obstructions.

8.25 Mr T. Pateman (user form 3.5.00)

Mr Pateman's user form states that he used the path several times a year between 1974 and 2000 (although his form makes it clear that the path was blocked off in 1999). He states that there were neither notices nor gates on the path, although then goes on to say that there were obstructions, presumably the fences and locked gate which went up in 1999. He considers the claimed path to be a "safe, scenic and quicker way to walk through the village".

8.26 Mr S. and Mrs M. Pidgley (user form 6.5.00, interview 1.2.06)

Mr and Mrs Pidgley recall using this path as early as the 1950s, in the case of Mrs Pidgley to walk from Holmsley to visit relatives tin the recently built Westbury Close and in the case of Mr Pidgley to access the playing field to watch football and attend the fair. Mrs Pidgley believes that a number of people moved from Holmsley into the new houses in Westbury Close and that after 1949 or thereabouts there was pedestrian traffic between those two places. Her family themselves moved into Westbury Close in 1957 and she used the path to go to school and later to walk her own children to school (but less often returning that way). She (and Mr Pidgley after 1972) also used the path for weekend and family walks. Mrs Pidgley climbed the locked gate at Ringwood Road a few times in or after 1999, but was stopped from using the path by a notice `Private property' which went up in a tree at the playing field end of the path. Mr and Mrs Pidgley are the only witnesses to refer to a notice at this end of the path. They recall the field adjacent to the playing field being cultivated with corn, but state that the path was always available.

8.27 Miss W. Scott (user form (undated) and conversation 23.1.06)

Miss Scott's user evidence form is only partially completed. Her use appears to have been for taking her daughter to school each day for one or two years before 1999 (she claims that she used it for three years commencing in 1999, but this must be an error). She believes that the `Keep out Private Property' sign at the Ringwood Road end of the path appeared a while before the path was closed by locked gates. It was a well-worn path and quite a few other people used it. She confirms that there were two ways to get onto the path from the playing field, one through a gap in the corner of the field, the other via a gap in the middle of the hedge between the village hall and the corner.

8.28 Mr E. Sherred (user form 4.5.00) and Mrs D. Sherred (telephone conversation 23.1.06)

In his user form Mr Sherred claims to have used the path 12 times a year between 1950 (or thereabouts) and 2000, to visit his parents grave at the church in Ringwood Road. He says that there were no notices on the route and that there were no obstructions. Mrs Sherred, more recently, stated that they did not think it was a footpath because there were no notices to say that it was and that their use `was not a regular thing', usually only one way as part of a circular walk. They appeared to access the path via the gap in the corner of the playing field. It was a worn path that could be followed.

8.29 Dr C. Wood (user form 15.6.00)

Dr Wood has only used the path at infrequent intervals, but believes it to have been in daily use by others. He believes there to have been gates across the path, but only locked "within the last 18 months" (prior to 2000). He refers to a sign saying `Private. No right of way', but is not explicit when this was in place. He refers to barbed wire being erected across the route 2 years before 2000 (i.e. prior to the locked gates).

8.30 Mrs E. Wood (user form 15.6.00 and interview 23.8.05)

Mrs Wood moved to Poplar Lane, Bransgore in 1960 and became aware immediately that there was a path running from opposite the shop on Ringwood Road to the playing fields. People would be coming and going to the British Legion hut in Ringwood Road, which shared the same entrance as the claimed path. Her husband was the local GP and she knew that people from Westbury Close would come to the surgery along the path. She did not use the path herself very much in the early years, but felt able to use it without let or hindrance whenever she wanted to and her home help used to take her children that way to the playing field. Mrs Wood thinks that the way onto the playing field was through the gap straight ahead of the path (i.e. in the corner of the playing field) and doesn't remember a gap further north. Before 1973 Mrs Wood rented one of the glebe fields to the south of the claimed path and when on that land she was aware of people using the path. The closure of the path didn't affect Mrs Wood greatly as she was not using it much at that time. She cannot remember notices, or exactly when the gate was put up.

8.31 Mr David Stoddart (telephone interview 9.2.06)

Mr Stoddard is a parish councillor and served on the parish council at the time the claim was lodged. He was also a school governor and was aware of the concern of parents at the closure of the path and the safety implications of the children having to use the Burley Road route to school. He agreed to canvass support for the claim from the residents of Westbury Close and distributed user forms and plans. His recollection is that the people he spoke to used a path commencing at the corner of the playing field, despite the fact that the plans distributed by him suggest that the path commenced (or ended) nearer to the village hall. He does not think that he prepared the plans and was not aware of the discrepancy at the time (see paragraph 8.6 below).

9. Summary of the user evidence

9.1 There are, inevitably in cases like this, inconsistencies in the evidence and recollections of individuals. It is, perhaps, unrealistic to expect witnesses to be precise about matters which took place some years ago and were of little consequence at the time. There are, however, a number of issues on which many of the witnesses are agreed and some recurrent themes from which an attempt can be made to reconstruct the history and use of the claimed path.

9.2 There is no evidence of use of the path prior to the construction of Westbury Close, which housed a number of residents from Holmsley. Use seems to have started in the early 1950s, both by people from Holmsley visiting relatives in Westbury Close, and by people in Westbury Close going to the school, shops and church in Ringwood Road by a more direct route than is provided by the local roads and pavements (e.g. Mr and Mrs Pidgley, Mr R. Carter, Mrs McGhie).

9.3 There may well have been a knowledge early on that the path was not a recognised right of way (Mr R. Carter), but later users tend not to express any concern on this point. The majority of users have the impression that the path was very widely used by the local community, particularly school children, but also for access to the local shop on Ringwood Road and this comes across clearly in the interviews that have taken place (e.g. Mrs Wood, Mrs Laker). Mrs Lockyer, however, disagrees with this view.

9.4 Use appears to have been `as of right' (i.e. without force, without stealth and without permission) during this time.

9.5 A few users recall a gate in place, set a little back from Ringwood Road, at the entrance to the first field, but this does not appear to have been locked or impeded access.

9.6 The majority of users interviewed accessed the claimed path from a gap in the hedge at the corner of the playing field, but there is also a gap halfway along that hedge, closer to the village hall (point `x' on the attached plan). At least two users who were interviewed used that gap to get onto the path. Another has provided an explanation for its existence: to serve as access to the copse which fronts onto Burley Road, but it is not clear to what extent it is, or was, used for that purpose. The exact point at which users left, or entered, the playing field has been further complicated by the fact that some user forms have been submitted with maps, clearly pre-prepared and showing that the path was accessed at `x', even through the users themselves have said that they used the gap at the corner of the playing field (point `A'). The scale of this map is such that it may not be obvious to some witnesses which gap was being indicated, and the discrepancy appears not to have been noticed by the parish Councillor distributing the forms, who understood the path to have run from the corner of the playing field. The view officers take is that the majority of users, particularly from Westbury Close, accessed the claimed path at point A, but this is by no means universally so.

9.7 The claimed path was blocked in 1999 by a locked gate and by fences crossing the path, which divided the field into paddocks. There is just one reference to a sign at the playing field end of the claimed path (Mr and Mrs Pidgley), but there remains a notice just back from the Ringwood Road end of the path saying `Private. No right of way' which is referred to in many of the user forms (e.g. Dr Wood, Mrs Lowndes). There is a suggestion that the gate was not locked initially (Mrs Bradley), and no consensus about whether the sign went up before, or after, the gates were locked, but it was at approximately the same time. There appears to have been a combination of events (locked gate, sign and fencing) in 1999, any one of which could have amounted to a bringing into question but which, together, made clear to the public that the path was not considered to be a right of way. The exact point in 1999 at which the challenge was made cannot be ascertained, but it may not, in fact, be material.

9.8 There is a suggestion that there was a `Private' sign or notice in place prior to that erected in 1999. Only one witness is unambiguous about such a sign, although even she regarded it as referring to the land on the side of the path. It might be the sign another witness refers to as being in the field to the south of the path, but it is impossible to be sure. By far the majority of users state expressly that there were no signs, or they refer to a sign that can be identified as the one erected in 1999.

9.9 It would appear that there are no events, notices, or challenges prior to 1999 that brought into question the right of the users to walk along the path and brought home to them that their `right' was being challenged

10. The Landowner

10.1 The Meyrick Estate has raised the point that the land is held on trust for sale under the terms of the Meyrick 1968 Combined Trust and that it would be inappropriate to infer a dedication under common law in circumstances in which the trustees are under a duty to preserve the value of the land for the beneficiaries of the trust. The trust is believed to be the continuation of a family settlement which has existed, with one or two very short breaks only, since the end of the C18th. Whilst it is not impossible for a public footpath to be dedicated in these circumstances, it is considered by officers to be inappropriate to infer a dedication under common law in circumstances where there is no more direct evidence of the intention or actions of the owners or trustees.

10.2 The nature of the title to the land is of less relevance to the acquisition of a public right of way by presumed dedication under s.31 Highways Act 1980. In this case the presumption of dedication will arise after 20 years use of the path in the circumstances prescribed by the Act, unless there is sufficient evidence that the landowner did not intend to dedicate the path as a public right of way.

10.3 At the time of preparation of this report, the Meyrick Estate has not commented on the details of the evidence provided by the parish, nor has it provided any further information about the claimed route or its actions or intentions with regard to public use of the path. It is apparent from a search of the County's own records, however, that a plan, statement and statutory declaration under s.31(6) Highways Act 1980 was lodged with the County Council prior to the closure of the path in 1999. The plan and statement are dated 29 April 1998, and relate to an extensive tract of land which includes approximately one half of the length of the claimed path.

10.4 A deposit under s.31(6) is evidence of the an owner's lack of intention to dedicate any public rights of way not shown on the plan (and the claimed path is not so shown), unless there is evidence to the contrary (which there is not). It prevents any presumption of dedication arising after 20 years use. There has to be a slight question about the validity of the deposit, in this case, because it was made, not by the owner or owners of the land as required by s.31(6), but by the (former) Agent for the estate. The Agent did not provide the owners' written confirmation of his authority to make the declaration of their behalf when requested to do so. Even were the deposit to fail under 31(6) however, it still acts as evidence that the Estate, as owner of the land, did not intend to grant any new public rights of way over the land affected by the deposit. A recent Court of Appeal case ((R. (Godmanchester Town Council) v Secretary of State for the Environment Food and Rural Affairs and Cambridgeshire County Council [2005] EWCA Civ 1597) makes it clear that the actions of the landowner need not be communicated to the user, nor need they last for the duration of the relevant 20 year period, provided that they are within it, as is the case here. It is for members to decide whether the deposit is sufficient evidence of a lack of intention to dedicate. It is the view of officers that it is.

11. Conclusions

11.1 Although at least one strong view to the contrary has been expressed (see paragraph 7.15), officers are of the view that there has been use of the claimed path by the public for well over 40 years and that the use is of the type that can give rise to a public right of way (i.e. without force, without secrecy and without permission).

11.2 That use was brought into question in 1999 by the erection and locking of a gate, by a notice and by the construction of fences across the path.

11.3 No presumption of dedication arises under s.31 Highways Act 1980 as a result of use between 1979 and 1999 because there is sufficient evidence in 1998 that the landowner did not intend to dedicate part of the route as a right of way (whether or not the deposit is strictly in accordance with s.31(6)). There can be no presumed dedication of the remainder of the path as it would not terminate on a highway or other place of public resort.

11.4 There is no event earlier than 1998 that brought into question the right of the public to use the path, and therefore no period of 20 years earlier than 1979 - 1999 which might given rise to a presumed dedication

11.5 It would be inappropriate, in the absence of any direct evidence of the landowners' intentions, to infer dedication of a path at common law.

RECOMMENDATION

That the application to add a footpath between the playing fields and Ringwood Road, in the parish of Bransgore, 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 CR685 - Rights of Way Office, Mottisfont Court, Winchester, including copies of some of the documents referred to above the originals of which can be inspected in Hampshire Record Office.