Hampshire County Council Item

Regulatory Committee

22 March 2006

Application for a Map Modification Order for the addition to the definitive map of a footpath between Vectis Road and Marine Drive West at Barton-on-Sea in New Milton Town

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 Two residents of Barton-on-Sea have made an application to have a path recorded as a public right of way. The claim is supported by user evidence from 17 people, going back to the 1940s, and the path is still in use to this day. It is recommended that an Order be made to record public footpath rights on the basis of a common law dedication in recent years.

2. Claimants:

Mr G Beck Mrs P Inglis

24 Vectis Road 23 Seafield Road

Barton-on-Sea Barton-on-Sea

Hampshire Hampshire

BH25 7QF BH25 7JR

3. Landowners:

For the section A-B For the section B-C

Drew Developments Limited No known owner

Caird Avenue

New Milton

Hampshire

BH25 5PX

For the section C-D

Mr H Huholdt

27 Marine Drive West

Barton-on-Sea

Hampshire

BH25 7QJ

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

4.1 The path runs, in a straight line, from the western end of Vectis Road (point A) southwards to the end of Purbeck Road (point B) and continues southwards to Marine Drive West (point D). The path is sandwiched between the Naish Holiday Village to the west and four properties to the east. The path is enclosed on both sides by a combination of fences, hedges and walls except where it passes the end of Purbeck Road. The path is only about 1.0 metre wide, in places, between A-B-C and 1.5 metres wide between C-D. The path has a well-worn earth surface and is waymarked, at three locations, as part of the European E9 long-distance footpath.

4.2 The E9 is part of a comprehensive network of paths, initiated by the Long Distance Walkers Association, that covers western Europe. This route runs from the south-west coast of France to Plymouth and then along the south coast of England to Dover where it continues, on the continent, to the Estonian-Russian border. It is believed that this path has been way marked as the E9 for about four years. The claimed path was chosen as it the easiest way for walkers to get around the perimeter of Naish Holiday Village as there is no public right of way, along the coast, in front of the site.

4.3 In the last few years a new, three metre wide, pedestrian/cycle way has been built around the edge of the new housing development to the north of Vectis Road and this now connects to Vectis Road using a newly created surfaced path adjoining house number 30. This provides a continuous path that runs from the Christchurch Road, via the claimed route, to the open space at Barton-on-Sea cliff top. The whole of this path is way marked as the European E9 route.

5. Background to the claim

5.1 The claim stems from local concern about the deterioration in the quality of the path and, more particularly, the potential for encroachment upon the width of the path by adjoining properties. The objective of the claimants is to eventually have the path surfaced and adopted as part of the local footway network but first it is necessary to determine whether public rights exist.

6. The issue to be decided

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

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

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

7. Documentary evidence

7.1 1935 Ordnance Survey map - 1/2500 scale

This map shows some development in what is now Naish Holiday Village but, east of that, the land consists of a large open field. At this date there is no footpath or housing in the locality of what is now Vectis Road and Marine Drive West.

7.2 1961 Land Registry plan - 1/1250 scale

This plan shows Vectis Road completely developed with houses and Purbeck Road partly developed with dwellings. The plan has been highlighted to show the extent of vacant plots at the end of Purbeck Road. The claimed path is defined by solid lines running alongside the highlighted plots. The highlighting indicates that ownership of the end plots, on both sides of Purbeck Road, does not include the footpath.

7.3 1962 Letter from Herbert H Drew & Son Ltd

The letter is signed by Dudley E Drew and the company are described on the letter head as `Building Contractors'. Dated 17^th May 1962, it reads, in part:

"I confirm that the footpath leading from Vectis Road to Marine Drive West, immediately to the east of Naish Farm Holiday estate, is a right of way for the enjoyment of owners of properties on Barton Cliff Estate. No permission has been granted to anyone west of the footpath for access to that footpath."

7.4 c1965 Ordnance Survey map - 1/2500 scale

This map shows Vectis Road very much as it is today. Most of Purbeck Road and Marine Drive West has been developed, there are just a few plots at the western end that are still vacant. The claimed path is shown by solid lines where it passes by the side of 29, Vectis Road and from there to Marine Drive West it is defined by a solid line to the west and a pecked line about 1.5 metres away to the east. The route is annotated `FP' for Footpath.

7.5 1972 Ordnance Survey map - 1/2500 scale

This map shows the path very much as it is today except that the plot at the south eastern end of the route is empty. The claimed path is mostly defined by parallel solid lines indicating the existence of either walls, fences or hedges. There are no lines across the path that would indicate a gate or other obstruction.

7.6 2001 Application for Map Modification Order

The application was made on 8^th May 2001.

8. User evidence

8.1 The claim was originally supported by completed user evidence forms from nine people detailing their use up to 2001. In recent months a further eight forms have been submitted from a different set of people detailing their use up to the end of 2005, making 17 users all together. Not one user recalls there being any obstruction to the path or any interference with their use. For a visual representation of this use please see the chart at the back of this report. From site visits it is obvious that the path is in constant use. It forms a convenient short-cut for the people who live north of Vectis Road to get to the sea front. The 17 users, in alphabetical order, are:

8.2 Mrs E Austin of Vectis Road

Used the path three times a day, for pleasure and to exercise her dogs, between 1997 and 2005.

8.3 Mr J Austin of Vectis Road

Records the same pattern of use as his wife mentioned above.

8.4 Mrs C Beck of Vectis Road

Used path for exercise and pleasure 200 times a year from 1972 to 2005

8.5 Mr G Beck of Vectis Road

Used path about 150 times a year, from the mid 1940s to 2001, for leisure and business.

8.6 Mr L Breckon of Lymington Road

Used path 20-30 times a year, between 1990 and 2001, for family walks, leisure and exercise.

8.7 Mr D Davis of Vectis Road

Used path 50-60 times a year, from 1955 to 2001, for leisure walking.

8.8 Mr K Harris of Vectis Road

Used path about 60 times a year for pleasure walking between 1981 and 2001.

8.9 Mr S Hewett of Boldre Close

Used path 200 times a year from 1995 to 2001 for walking.

8.10 Mr J Hutchins of Knighton Park

Used path about 30 times a year for pleasure and exercise between 1980 and 2005.

8.11 Mr F Kingdom of Farm Lane

Used path about 30 times a year from 1989 to 2005 for pleasure and exercise.

8.12 Mr F Marsh of Vectis Road

Mr Marsh has written: `Used regularly 2-3 times per week by myself, my wife and the disabled persons living with us for exercise and access to cliff top.' Period of use extends from 1988 to 2001.

8.13 Mr M Morris of Glen Close

Used path between one and twelve times a year between 1978 and 2001.

8.14 Mr E Roberts of Vectis Road

Used path 50 times a year, from 1950 to 2001, for walking and exercising dog.

8.15 Mrs K Stickland of Cleaveland Close

Used path 200 times a year, for pleasure and exercise, between 1960 and 2005.

8.16 Mr K Stuchbury of Vectis Road

Used path from 1980 to 2005 but hasn't given frequency of use.

8.17 Mr W Woodland of Vectis Road

Used path every day between 1986 and 2001 for walking and exercising dog.

8.18 Mr P Woods of Milford Road

Used path 40-50 times a year from 1990 to 2005 for pleasure and walking dog.

9. The landowners

9.1 Drew Developments Ltd

In 2001 a representative of Drew Developments completed a standard form which details how the path has been managed by the owners. According to this document the land was acquired by the company in 1957. They do not regard the claimed route as a public right of way but they do not provide any examples of challenges being made to users of the path by the owners, employees or agents. The company has not given permission to anyone to use the path. It is not aware of any gates across the path or any notices that have been erected along the path. In answer to the question `Has the claimed path ever been blocked by obstructions such as hedges or fences?' the representative has replied `Yes - Overgrown'

9.2 In a letter dated 10 February 2006, the legal representative of the landowner wrote to say that:

"...provided the County Council can produce evidence of appropriate user, Drew Developments Limited would not object to the Order."

9.3 There has been no response from the owner of section C-D.

10. Consultations with other bodies

10.1 New Milton Town Council

The Town Clerk has written to say that:

"...at last weeks meeting of our Amenities Committee, members agreed the routes...should be recorded as public footpaths."

10.2 New Forest District Council

Supports the establishment of a public footpath

10.3 County Councillor P Banks - local member

No comment

10.4 The Ramblers Association

No comment

10.5 Environment Department

No comment

10.6 Hampshire Highways

No comment

10.7 Adjoining landowners

10.7.1 Three residents whose properties adjoin the path to the east have written to say that they consider that the route was for the use of residents of Barton Cliff estate only. They also relate problems associated with use of the path, namely dog mess, use by bicycles, vandalism and security.

10.7.2 The owners of the Holiday Park to the west have written to say that:

"I confirm this company has no objections to the proposal that has been forwarded by Councillor Beck, and others, as long as it relates to the footpath and boundaries that exist at the present time...we would defend vigorously our existing boundary but have no objection to the footpath in its existing form."

11. Analysis of the evidence

11.1 From documentary evidence it can be said that the path has physically existed since at least 1961 and that the users have allegedly walked the path from the mid-1940s. The user evidence indicates that the path has been continually used since its inception and site visits confirm that it is still in constant use today. The only record of any obstruction to the path is a reference to it being `overgrown' on a form completed by a representative of the landowner in 2001. The users do not relate any examples of obstructions to their use of the path.

11.2 There is no evidence that the landowner had no intention of dedicating a public right of way. In fact, in a letter dated 1962, the then owner stated that the residents of `Barton Cliff Estate' had a right of way over the path. The extent of the Barton Cliff Estate is unclear but it probably consisted of, at least, Vectis Road, Purbeck Road and Marine Drive West and quite possibly other properties on the other, eastern side of Western Avenue. At its smallest extent this is still quite a significant area of land and the residents of those properties could, quite reasonably, be considered to represent the public interest.

11.3 The Long Distance Walkers Association erected three `E9' way marks along the route of the claimed path about four years ago. This action, without apparent comment or objection from the landowner, would indicate acceptance of the route as a public footpath. Further, recent action by the District Council, in establishing an extension of the claimed route to the north, has increased usage of the path and it is apparent to the casual observer that it is being used by the public at large and not just a few local individuals. The use of the path so obvious that it would seem reasonable to conclude that the public has acquired a right of way through a common law dedication.

11.4 For the purposes of S.31 Highways Act 1980, the only action that could be considered to be a `bringing into question' is the application for a Map Modification Order made in 2001. Therefore the relevant period for consideration, under this legislation, is 1981 to 2001. Within this time frame there is evidence of use from all 17 people who have completed user evidence forms of whom nine have used the path for the full 20 years. This level of use is considered to be sufficient to represent use by the public at large and, within this period, there is no evidence of an intention not to dedicate.

12. Conclusions

12.1 A recognisable path has existed on the ground for at least 45 years.

12.2 From about 1980 there is evidence of use from a significant number of people, as of right and without interruption.

12.3 There is no evidence that the landowners had no intention of dedicating a right of way.

12.4 The action that brought into question the public's right to use the path was the application for an order made in 2001.

12.5 The public has acquired a right of way through 20-years use within the period 1981 to 2001.

12.6 The public has also acquired a right of way through a common law dedication in recent years.

RECOMMENDATIONS

1) That a Map Modification Order be made to record the route A-B-C-D, as shown on the attached map, as a public footpath.

2) The width of the path to be recorded as a minimum of 1.0 metre between points A-B-C, and a minimum of 1.5 metres between points C-D, as shown on the attached map.

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 CR720 - Rights of Way Office, Mottisfont Court, Winchester