Hampshire County Council

Regulatory Committee Item 8

26 April, 2006

Application for the addition to the Definitive Map of a Footpath in the Parish of Sparsholt

Report of the Director of Recreation and Heritage

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

WILDLIFE AND COUNTRYSIDE ACT 1981

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

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

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

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

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

HIGHWAYS ACT 1980

31. Dedication of a way as a highway presumed after public use for 20 years

Where a public way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has actually been enjoyed by the public as of right and without interruption for a full period of 20 years, the way is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during this period to dedicate it.

Presumed Dedication at Common Law

Use of a way by the public without secrecy, force or permission of the landowner may give rise to an inference that the landowner intended to dedicate that way as a highway appropriate to that use, unless there is sufficient evidence to the contrary. Unlike dedication under s.31 Highways Act 1980, there is no automatic presumption of dedication after 20 years 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

This is an application for a footpath in the parish of Sparsholt, from Sparsholt Bridleway 9 (Burrow Road) to Sparsholt BOAT 10. The claim is supported by a number of user forms and statements. It is recommended for refusal.

2. The Route

The claimed path, which is 1,588 metres in length, is shown on the attached plan, where it has been divided into three sections in accordance with landownership, for ease of reference. The section between A and B is within the garden of the property called `Little Sheddons', and is between five and half and six metres wide and 79 metres long. It has a mowed grass surface; there are a number of mature trees on both sides of it. There is a fence across the track at A, with a locked side gate, and there is a locked five-bar gate and side gate across the route at B. There are notices saying `No admittance' at both A and B. From point B, for 324 metres, the track runs through an area of woodland which is very narrow. Here the route is characterised by a trodden path of only one metre between boundaries of ten metres, and it is overgrown with vegetation that reduces the width, especially in summer. It continues in a similar fashion to a point at B1, where the woodland becomes more substantial, with a grass and earth surface which is three metres wide and of a more open aspect. 688 metres west of point B, the route separates from an engineered road with a scalpings surface, which runs almost parallel a little distance to the south. The claimed way has a grass surface between trees, and is overgrowing in places, and is about three metres wide. It joins Sparsholt BOAT 10 at point C. Point C1 on the plan refers to western edge of the ownership of the Forestry Commission. The section C1 to C is not registered with the Land Registry.

3. The Applicant

The application, made in 2000, was signed by Mr. D. Stockwell, of Meadowbank, Sparsholt. It was accompanied by fifteen completed user evidence forms in support of the claim. In the intervening period, Mr. Stockwell has become too unwell to co-ordinate the claim, and this task has been undertaken by Mr. E. Bush of Rudgwick, Sparsholt.

4. The Landowners

The land between B and C1 is owned by The Forestry Commission, of Bucks Horn Oak, Farnham, Surrey. The Forestry Commission also manages the land between C1 and C, but officers have been unable to identify the freeholder. Mr. E.A. Sollars of Little Sheddons, Ham Green, Sparsholt owns the track between points A and B.

5. Consultation

5.1 The following persons and bodies have been consulted about the claim, Winchester City Council, Sparsholt Parish Council, the former and current elected Member, the British Driving Society, the British Horse Society, the Trail Riders Fellowship, the Byway and Bridleway Trust, the Open Spaces Society, the Ramblers' Association, LARA, The Council for the Preservation of Rural England, Hampshire County Council County Surveyor, County Planning Officer and the Rights of Way Area Officer (Central). At the time of writing, the following responses have been received.

5.2 Councillor Mrs. Ann Bailey, the local member until 5^th May 2005, wrote that she believed there would be strong support for the claim, and that she fully upheld and supported it.

5.3 Councillor Charlotte Bailey, elected as local Member in the May 2005 election, has no concerns about the section of the claimed path between B and C, but has noted that the path between A and B goes through a garden. She would need to be reassured that there is `very firm evidence' that the path has been used regularly by the public, though she will be satisfied if this firm evidence is available. She asks whether there are ways that the intrusion could be minimised if the claim is upheld.

5.4 The correspondent for the Trail Riders Fellowship supported the addition of the route to the Definitive Map and Statement, but felt it might be possible to demonstrate that higher rights than footpath might exist on the route.

5.5 The Highways Management Section has no observations to make on the proposal.

5.6 The representative of the Ramblers' Association states that his Association's members have used the path regularly, for group walks and individually. He draws attention to the fact that `the 200 metres westwards from Bridleway 9 has been particularly well used because it forms such a convenient link into West Wood from Sparsholt village avoiding an otherwise lengthy detour'. He adds further `over the years prior to the obstruction of the path I can personally recall taking part in several organised walks along this path, which took place without any obvious requirement to obtain permission or ignore notices. Unfortunately I do not have specific dates for these events. As this path never appeared to be at issue, detailed records were not kept'. He is aware that `many of our members were regular users of this section of the path, again assuming it to be a matter of right. When the path was first obstructed about 5 years ago I received many calls from RA members who believed that I could report the problem through the normal channels in order to get the obstruction removed'.

5.7 A member of the Ecology Section of Hampshire County Council Planning comments that the woodland forms part of the Crab Wood Complex SINC, and feels that the woodland `would be sensitive to a higher level of pressure brought about by increased public access (dogs, children)'. Ham Green Common, the area to the east of point A, is also a SINC, and is known to support dormice.

5.8 The Minerals and Waste Planning Section has no objection in principle to the application.

5.9 The Council for the Preservation of Rural England feels it has nothing useful to contribute by way of comments.

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

6. The issue to be decided

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

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

6.3 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 consider that there is such a conflict in this case.

6.4 The originals of many of the documents referred to in this report are only available in public record offices, but copies, transcripts or tracings of most documents are available for inspection in the Rights of Way office, Mottisfont Court, as are witness evidence forms and statements.

7. Historical and Documentary Evidence

7.1 Some guidance notes as to the evidential weight and details of origin of historical documents are attached at Appendix 1. The information in these notes should be borne in mind when considering the historical evidence that follows.

7.2 Brief Historical Background of Parish of Sparsholt

The Victoria County History (Vol. 3, reprinted 1973) indicates that Sparsholt (containing the modern parish of Lainston) was in the Hundred of Buddlesgate, and included in the manor of Chilcomb. After the Dissolution of the monasteries in the sixteenth century, the Dean and Chapter of the Cathedral of Winchester were the lords of this manor, which also included the minor manor of Moorcourt. The Dean and Chapter let the land in Sparsholt through copyholds and leases, and are still believed to be lords of the manor of Sparsholt and Moorcourt.

7.3 Early commercial maps

Three maps are considered under this heading. Isaac Taylor's map, of 1759, does not show the claimed route. Thomas Milne's map, dated 1791, shows a track on a similar alignment to the claimed route, bearing in mind that the profile of the wood has changed over time. The curve is more exaggerated and is not in quite the same position as shown on current mapping. This route has pecked boundaries (by convention indicating an unenclosed road), and joins the north-south route shown on the map, coming up from Pitt Down, in a similar way to the junction of the claimed route and Sparsholt BOAT 10. The most noteworthy feature is that this track is shown by Milne as connecting Woodman Lane with BOAT 10. Christopher Greenwood's map of 1826 shows a route into the woodland going in a south-westerly direction, which might be said to be the claimed route, though it has a straighter alignment, and stops short of Sparsholt BOAT 10.

7.4 Ordnance Survey Old Series One Inch Map 1810

This map shows a route that appears to be Burrow Road, and it shows a section of the track noted on Milne's map above. This follows the current alignment more closely, but ends short of the north-south route equating to Sparsholt BOAT 10, at the boundary of woodland. The profile of the woodland on this map is different from that shown on Milne. This track also has pecked boundaries.

7.5.1 Dean and Chapter of Winchester Map and Survey of Sparsholt 1842, (11M59/E2/8075 and 11M59/E2/59610)

This map of Sparsholt (made at a scale of 6 chains to an inch by R.C. Gale, who acted as a Valuer for the Tithe survey of Sparsholt) shows most of the land in the parish in the ownership of the Dean and Chapter of Winchester, where much of it is let as copyhold or leasehold. Sir Frederick Bathurst was another major freeholder, then owning the land over which part of the claimed route lies.

7.5.2 The numbering of the plots is the same as that found on the Tithe Map and Apportionment, which are dated 1843-4. The claimed route between A and B1 is shaded brown, is numbered `339', and has solid boundaries, with symbols which appear to denote hedging. The brown shading ends at point B1 at the boundary of the ownership of Sir Frederick's land. There appears to be a gate across the route at point B1.

7.5.3 There is a clearing in the woodland between B1 and C, but no track is shown. A to B1 existed as a track and was part of Ham Green.

7.6.1 Sparsholt Tithe Map and Apportionment (1843-1844 ) HRO 21M65/F7/221/1-2)

The first part of the claimed route, between points A and B1 is shown on the Tithe Map with solid boundaries, carrying a plot number. The first and third figures are `3' and `9', but because the figures have been squeezed to fit within the confines of the track, the middle figure could be a `3' or a `5' The track A to B1 is a continuation of a plot to the east, which is plot `339'. The track then opens out, without boundaries, into an irregularly shaped clearing in the woodland, which carries the plot number `203', and is described in the Apportionment as an area of pasture and wood. A solid boundary crosses where the claimed route would go, through parcel `204' (pasture and wood), but no defined track is shown on the map.

7.6.2 There is no Plot `359' in the Apportionment. Plot `339' is listed under the section of the Apportionment entitled `Roads, Ponds and Waste'. It is given as `Ham Green', of the extent of 10 acres and 30 perches, and carries no tithe charge. Since it is not called `road' and it is not a pond, it is likely that Ham Green is part of the waste of the manor.

7.6.3 The route that is now Bridleway 9, Burrow Road, from which the claimed route branches, is shown between pecked lines, and has a plot number `341', which is listed in the Apportionment as `Road to Hursley'.

7.6 Various conveyances and plans relating to land in Sparsholt belonging to the Dean and Chapter of Winchester 1842-1856 (17M95/3, 11M59/E2/8076, 11M59/E2/1291, 17M95/4)

These plans show the lands in Sparsholt belonging to the Dean and Chapter of Winchester, in varying extents. These plans use the same plot numbers as those on the Tithe Map, and they show the claimed track from A to B1 between solid boundaries, coloured brown and separate from the surrounding plots. These solid boundaries, and the shading, do not extend beyond the point B1. This suggests that the track is excluded from the lands on either side.

7.8. Sale Particulars of Deane Farm, 1860 (38M48/135B/1-11)

Deane Farm, about 470 acres in extent, was to be sold by auction on 6^th November 1860. The plan shows the route from A to B1 and slightly beyond, between solid boundaries, and it was not included in any of the lots.

7.9 Ordnance Survey County Series first edition 1871 (11M59/E2/20249)

This map shows A to B1 as an enclosed track, which continues a short way into West Wood. It is not particularly clear on the map, but there would appear to be broken lines across the track at point A, separating the track from the remainder of Ham Green, and thereby including it within the adjacent land parcel (number `171', `Pasture, wood, etc.' in the book of reference). From B1 westwards to C there is a clearing in the woodland that might have allowed access between those two points (i.e. within plot `171' and plot `237', `pasture, wood, etc.'), but there is no continuous track on the line of the claimed route. The track A to B and its continuation is coloured sienna, a colour used on some copies of this edition to represent roads, path and ways, which may not necessarily be public.

7.10.1 Hursley Estate Lease of Shooting Rights 1885 (219M87/E/69/2)

This is a printed form, one of a number in the archive, between the Trustees of the Hursley Estate and Nicholas Coulthurst, and details the conditions on which the shooting rights on the estate are let, commencing 1^st February 1885.

7.10.2 None of the six clauses relate to public access or the prohibition of public access to the woodlands which are the subject of the lease. However, we would not normally expect to see such clauses in a lease of this date.

7.10.3 The evidential weight of this document is low, and can only serve as an indication that guidance concerning public access was not considered important enough to be included in the terms of the shooting leases for woods in the ownership of the Hursley Estate.

7.10 Plan of the Deane Estate, Sparsholt, 1890 (38M48/135B/8)

The Deane Estate was put up for auction again in 1890 and a copy of the plan shows the lots. The section of the track between A and B is shown, between solid boundaries, continuing west between pecked boundaries. It is shaded brown, and connects to the tracks on Ham Green, which are also shaded brown. The depiction of this track on this plan stops shortly after point B.

7.11 Ordnance Survey County Series 1:2,500 second, third and fourth editions 1895, 1909 and 1930s

These maps do not add to our knowledge of the claimed route. Mr. Sollars' solicitor has drawn attention to a large map kept at the Hursley Estate Office. This has been inspected and is formed of sheets of the Ordnance Survey 1:2,500 third edition. The track from A to B (and other land to the south) has hatching, but the significance of this is not known.

7.13.1 Documents including plans which show the section of track A - B (various dates)

A number of different documents include plans which show the section of the claimed track from A to B1.

7.13.2 A deposition, dated 31^st January 1898 (219M87/E/T87/4), was made by Alfred Vaine, a woodsman working for Sir Frederick Bathurst and with good knowledge of his Lainston Estate. The Lainston Estate included the freehold lands of Sir Frederick in West Wood. The deposition contains a map showing the extent of Sir Frederick's ownership of West Wood. West Wood is shaded pink, and the map is faded and stained; on the reverse the true colour is seen, and ownership of West Wood is shown to terminate at B1 and does not include the track A to B.

7.13.3 An agreement (11M59/E2/217913) between the Ecclesiastical Commissioners and Sir Frederick Bathurst to exchange lands in the vicinity of Ham Green, dated 2^nd June 1885, shows the track from A to B1 excluded from the lands being exchanged.

7.13.4 Maps of the Lainston Estate (193M85/47-48), undated, but with an Ordnance Survey base, and one of 1895, show the track from A to B1 to be excluded from the Estate.

7.13.5 Sales particulars of the Lainston Estate (17M95/19 dated 18^th May 1896) show A to B1 excluded from the sale of the Estate.

7.14.1 Plan with conveyance 1902 (95M90/T4)

This is the conveyance of land that had formerly belonged to Sir Frederick Bathurst, owner of the Lainston Estate, who sold it to Joseph Baxendale; Baxendale in turn conveyed it to George Cooper of the Hursley Estate in 1902. A pink wash has been put over the West Wood area indicating the extent of ownership, and the section of the track between A and B is excluded (though the edge of the colour wash strays into the track between B and B1), as is a section west of point C. The pink wash strays into adjoining highways on other parts of this plan, but this does not mean that the small sections of adjoining highways covered in the wash were part of the land being sold. The map shows no separate track once it enters the woodland. Two private rights of way with or without horses or other animals and vehicles, are granted by this conveyance, to pass and repass at all times, but these do not relate to the claimed track.

7.14.2 This plan evidences the extent of the land acquired by the Hursley Park Estate in 1902.

7.14 Aerial Photograph of Sparsholt 1947 (134M87/166)

The triangular plot on which Mr. Sollars has built his bungalow is shown, and this is bounded on its northern side by what appears to be a belt of trees. The paddock now in the ownership of Mr. Sollars is also visible, to the north of the tree belt. Bridleway 9 (Burrow Road) is visible, leaving Woodman Lane, and the worn track can be seen as a light area between trees. The section of the track between points A and B1 is visible, leading into the more wooded area of West Wood. There are gaps between the trees on the section B to C, and at the west end of the wood a track is visible on the line of the claimed route.

7.15 Lease of West Wood, from Hursley Estate to Forestry Commission, September 1951 (provided by Forestry Commission)

The lease, accompanied by a coloured map, shows the extent of the land let by the Hursley Estate to the Forestry Commission in 1951. The boundary of the eastern section of West Wood is the same as is comprised in the Forestry Commission's current freehold title. The track from point B1 to the point that it meets Woodman Lane is shaded brown. The lease grants rights of way, at all times, `to and from the demised premises along the roads and tracks coloured brown' on the plan. This includes the section A to B1 The Estate granted a right to the lessee to use the track of which A to B is a part, and this may have been either because the Estate thought it owned the track and could grant that right, or the Estate had the benefit of a private right which they were passing on to their lessee.

7.17.1 Vesting Assent of the Hursley Estate 1966 (95M90/T7)

This plan is on an Ordnance Survey base, though undated and with no indication of the scale. The area of land which is the subject of the Vesting Assent has a number of different colours on it, but there is no key or legend to explain the significance of each colour. The colours are not referred to in the Vesting Deed itself, which merely states that the lands which are the subject of the deed are `delineated in the plan annexed hereto'. Therefore, it is not possible to say what significance the colours on the map have. The track from A to B1 is shown coloured green. The schedule to the Deed refers to the Ordnance Survey number for the plot, of which the track is a part. It is referred to as plot `170 part', with an acreage of 26.776 acres. Plot `170' is shown on the map as being 26.781 acres. Since the whole of the plot `170' on the map is coloured green, it is not possible to say which part of it has been excluded from the lands comprised in the Schedule. There is no entry for Sparsholt `170' under `Woods in Hand' or any other category in the Schedule. There are no sales off of the track endorsed in the Assent.

7.17.2 An earlier Vesting Assent of 1953 (95M90/T6/4) does not have any accompanying plan, refers only to lands `of which the said Sir George Alexander Cooper died possessed', and also records no sales off of the track.

7.17.3 Plans with conveyances made in 1982 (95M90/T10) show the track from A to B1 clearly excluded from the sales to which they relate.

7.17 Aerial Photograph of Sparsholt 1971 (65A02/11/2)

This photograph shows the bungalow on the triangular plot to the south of the track, and a belt of trees separates the triangular plot from the paddock to the north. It is possible to see the pale line of the track between the trees towards point B.

7.18 Plan of Hursley Estate 1982 (103M84/1)

This plan is very similar to that produced in 1902, and excludes the section of track from A to B, and the section west of point C, and has similar evidential weight to the 1902 plan. The particulars that accompany the plan make reference to Farley Mount Country Park, which was at the time of sale leased to Hampshire County Council for 21 years at a peppercorn rent. The vendors state that `the Country Park does not interfere with the agricultural and sporting priorities of the estate, and indeed may act as a siphon to relieve demand for public access to countryside locally'. West Wood had been made available for public access, and is described further in the document as a `public access' area. There was also no shooting at Farley Mount, or in West Wood `owing to the permitted public access in those areas'.

7.19.1 Sparsholt Walks and Rides - leaflet published by Sparsholt Parish Council 1996

This leaflet was published by Sparsholt Parish Council in 1996, with the sponsorship of the then Hampshire Parish Paths Partnership (a Countryside Commission initiative), run through Hampshire County Council. This document is a `guide with sketch maps of footpaths in the parish of Sparsholt and beyond...', and combines written descriptions of walks, with illustrations of scenes from the parish and sketch maps showing the routes. The walks were compiled by a local resident. Since it originated from the Parish Council, it is a reflection of what walks they wished to promote. Walk No. 4 (`No Man's Land and West Wood') directs walkers through Mr. Sollars' garden - `Pass through a gate, through a garden, and then another gate and out on to Burrow Road track...'.

7.19.2 A second edition of this leaflet was produced, in March 2004, and this contains more direct material about public rights of way (it describes the different categories and how they can be used). The walks are very similar, as are the illustrations. It was again published at the behest of Sparsholt Parish Council. Walk No. 4 is now entitled `West Wood' and takes walkers down Burrow Road (Bridleway 9), along Sarum Road, up BOAT 10, then utilises part of the claimed path from point C eastwards, and returns to Bridleway 9. It has not been possible to find out from Sparsholt Parish Council why this change took place.

7.20 Other sources examined

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

Deposited railway plans

Parish records

Deeds of West Wood

1878 Sale particular of Upper Deane Farm

Rural District highway records

Finance Act valuation books

8. Analysis of the historic and documentary evidence

8.1 The earliest we can place a track that serves a similar purpose the claimed route is 1788. Only A to B1 has been shown consistently since then. A to B1 it appears on the Tithe Map, being part of the manorial waste. Some maps show what appears to be a gate at point B1. The gate's purpose was probably to confine the animals that grazed in the woodland to the west, which was described as being pasture and woodland.

8.2 The documentary evidence suggests that the ownership of the claimed route has historically been divided between two landowners. It is the view of officers that the two sections A to B1 and C to C1 were in the ownership of the Dean and Chapter of Winchester. The section B1 to C1 has been in the ownership of a number of individuals. Since 1902, West Wood has belonged to the Hursley Estate, though there is some question as to how much of the track from A to B1 they own.

8.3 Other maps indicate that the track from A to B1 was excluded from land transactions.

8.4 The historic and documentary evidence is helpful on the existence of the track, and the type of boundaries that it ran between. However, officers are of the view that it does not prove, on the balance of probabilities, that the path was a public highway, and therefore the application must turn on the evidence of use in recent years.

9. Witness Evidence

9.1.1 User Evidence

The original claimant, Mr. Stockwell, did not present any historical evidence with the user evidence forms, but included 16 completed user evidence forms with his application. Fourteen further users have come forward during the course of the investigation. Of these 30 users, 28 have made statements. Their evidence is that the claimed path between A and C has been used, by members of the public, from 1930. Appendix 2 is a table that shows the use of the path by those 30 people who have submitted evidence. Frequency of use varies from daily to less than ten times a year. There is some further evidence of use, contained in the statements of a further 7 witnesses, set out at 10.4, whose evidence has been put forward in support of Mr. Sollars.

9.1.2 A summary of the use put forward by each users is presented in Appendix 3.

9.1.3 Ten of the users say they have used the claimed path from A to C for over thirty years and twenty four were using it to the time the section between A and B was closed in 1999. Eleven are still walking parts of the route. In the decade of the 1930s 3 people claimed to have used the path; in the 1940s 6, the 1950s 8; 15 people claim to have used it in the 1960s, with 24 in the 1970s, 27 in the 1980s and 25 in the 1990s. Ten users explicitly say that they sometimes branched off to use some of the other woodland tracks that meet the claimed route, but all say that they also used the whole route. Some of the older respondents reported that the path was used from the 1930s and 1940s, when they walked with their parents. Mrs. Collins started using it to pick cow slips with her mother near the old Cricket Ground, Mr. May used it with his parents from when he was five (his mother was the village schoolmistress and he still lives in the family house in the village), and Mr. Salter (the brother of Mrs. Collins) used it in that decade, and reports that he revelled in the increased freedom, having lived previously in Winchester. Only Mrs. Barnwell states specifically that she did not recall seeing others on the path; the other witnesses report seeing mainly walkers, with the occasional horse rider or cyclist. West Wood, especially towards point B, has a fairly isolated feel about it, despite being relatively close to Farley Mount, and Mrs. Barnwell did not like to walk there alone, and Mrs. Dunn chose to walk with companions rather than alone.

9.1.4 Users were asked whether they saw any signs or notices along the route, and what any signs said. Eleven users said they saw no signs, and 16 said they saw notices. Of this 16, 5 respondents mention the term `No admittance', 4 said `No public right of way', and 4 said the sign included the word `Private'. It is difficult for users to recall precisely in which years they saw these signs. In 1999, Mr. Noel reported that the sign fixed to the gate said `This is not a public right of way. Access through the garden is for walkers only. Please keep dogs on a leash and prevent fouling any part of the ground. No access for cyclists' Mr. Stockwell saw a notice indicating that the path would be closed at Christmas., and Dr. Walker mentions this too. Mr. S. Ward recalls a sign saying something like `this way' and Colonel Starkey mentions a small sign with `No through' on it screwed to a pedestrian gate. Mr. Salter, Mr. C. Ward and Mr. S. Ward all say that there were no notices to indicate that the path could not be used, or they would not have walked it.

9.1.5 On the question of gates and their positioning, there is a broad consensus that there were two gates on the route A to C, these being at point A, where Bridleway 9 meets the claimed route, and at point B, at the western edge of a property belonging to Mr. Sollars. Only Mrs. Barnwell, Mrs. Dunn and Mr. Remington do not mention the gate at A. Opinions vary as to whether these gates were locked. Eleven users recall locked main gates, fifteen speak of unlocked gates, and one user says the gates were not always locked. Mrs. Barnwell, Mr. Beard, Mrs. Collins and describe the gates as being unlocked. Mr. Cleverley, Mr. Fuller, Mr. Stockwell and Dr. Walker, amongst others, refer to locked five-bar gates at both A and B, with smaller, unlocked, side or pedestrian gates. Mr. Noel and Colonel Starkey describe the fire beaters that were kept at the gate at A. Some users assumed the gate was the property of the Forestry Commission and provided part of an access to the woods in the event of fire.

9.1.6 Of the 30 respondents, 6 report being stopped, 4 by Mr. Sollars, one had heard of others being stopped, and one was stopped by the notice on the gate. Mr. and Mrs. Beard recount meeting Mr. Sollars while using the path during the late 1990s. They describe him as being polite, and saying that `he didn't mind us using the section from A to B but he had been advised to close it off for a while for legal reasons'. Mr. Beard said he assumed that when Mr. Sollars barred the path `he would only do that if it was a permissive path and thus he had the right to do so but I thought at the time it would be achieved by negotiation and the provision of a diversion'. Mrs. Dunn walked the route from C through the wood in 2001 with a friend, who had an elderly dog with her. They found the gate locked, and did not want to walk all the way back. Mr. Sollars informed them that it was not a right of way any more, and got the key to let them through. Mrs. Dunn has not tried to go through that way again. Both Mr. Bush and Mr. Fuller were offered a key by Mr. Sollars, but refused since they considered the way to be public. Mr. Noel reports that Mr. Sollars told him that he would not be given a key. Mr. S. Ward describes speaking to the people who lived in the property (presumably Mr. Sollars) as they were not quite sure about using the path, and being told it was a footpath. He says `I was surprised by that answer, and it made us feel more confident. The people were friendly and obviously accepted our presence, and were more welcoming, before the closure'.

9.1.7 Where annual closures of the section of the path from A to B are concerned, 4 users report being aware of the gates being locked at Christmas. Mrs. Noel says the path was closed once a year, at Christmas, and Mr. Noel reports that Mr. Sollars closed the gate on `Christmas Day in 1997 and 1998 before closing it permanently in 1999'. Their daughter Dr. Walker says that the Noel family had a tradition of going for a walk before lunch on Christmas Day, and `the side gate was closed for a few years'. She reports reading a notice on the gate about closing the path as Mr. Sollars claimed it as his own, which she took down, as she considered the path was public. She met a few people on Christmas Day, also out walking. Mr. Stockwell comments on his form that Mr. Sollars `placed notices at ends of his occupation claiming closure at Christmas'.

9.1.8 Users were asked about the appearance of the track. Referring to A to B, many users report that this section has been raised and grassed, and that the track was formerly lower than the surrounding land. Mrs. Beard recalls it looking like `an old green road', and that Mr. Sollars' garden was at shoulder height, so that she thought that at least it was not overlooked by people using the path. Mr. Salter states that the route in the 1930s `was not part of the garden of the adjoining property'. Users refer to hedges, banks and trees on both sides of the path.

9.1.9 The plan of the claim attached to this report shows two tracks at the western end of West Wood, towards point C. The claimed route is the more northerly of these two tracks. The southern route was made by the Forestry Commission in 1989, and is an engineered road with a hard core base and gravelled surface. Some of the user statements refer to this in their accounts. The claimed route to C is open and available, but is less open in appearance, with an earth and grass surface. It seems likely that some users started to use the engineered road after it was built, because it was more obvious, firmer in surface and drier. However, some respondents were using the claimed route. from the descriptions given, of a grassy route of about 10 to 12 feet width. There are no reports of notices for the section B1 to C - all the reports of notices relate to the section A to B.

9.1.10 What can be understood from this user evidence is that the public claims to have used consistently the claimed path from A to C, with some use being present for every decade from 1930 onwards, until the present time. The use has increased, particularly in the 1970s, and has been maintained in the 1980s and 1990s. This is a reflection of the growing popularity of walking for recreation, and changes made by landowners to provide public access to certain areas in Sparsholt and Hursley. The section from A to B has been used most consistently; all users report using the whole route, but some say they have varied their walking by branching off B to C into other parts of West Wood to make different circular routes. There must be some doubt as to whether all users were using the claimed route at the west end of the track on all occasions after 1989, because of the engineered road provided by the Forestry Commission to the south providing an attractive alternative. The track between A and B is described by users as originally a separate entity from the garden, being sunken and between boundaries. They report that its level has been raised and it has been grassed over to look as if it is an integral part of the garden. The presence of gates at A and B is widely acknowledged, though opinions differ as to whether they were always locked, or unlocked. Unlocked side gates are frequently referred to. Notices were also seen by users, informing users that the route was not a public right of way, and that access through the garden was for walkers only. Three users of the thirty who have given evidence, from one family, refer to seeing annual closures of the side gates, at Christmas.

9.1.11 When the evidence provided by users is considered alongside that put forward by Mr. Sollars and others, it will be apparent that there are conflicts, particularly on the matters of when gates appeared, whether or not they were locked, the presence of signs and their wording.

10.1 Evidence from Landowners

Whilst this report has so far concentrated on evidence of use from the public, it is also necessary to look at how the landowners exercised control over the claimed path and, in particular, whether there is evidence of an intention not to dedicate. The only current, documented, owner of land between A and C is the Forestry Commission, in respect of B to C1, with title number HP515624.

10.2.1 The Forestry Commission

Evidence has been obtained both from the Forestry Commission itself, and in statements given by employees of the Commission.

10.2.2 A letter has been received from the Acting Area Land Agent, Mr. P. Reynolds, giving the position of the Forestry Commission. In a letter of 20^th September 2005, Mr. Reynolds writes:

`We regard this claim to raise designation from a permissive to a footpath as undesirable and unnecessary.

`This wood, held as a freehold by the Forestry Commission, is managed as open access and has been dedicated as such under the Countryside and Rights of Way Act 2000. Any upgrading to the permissive path would confer no additional rights to the public and does not facilitate further access than already exists. The Forestry Commission is committed to managing its woods for pedestrian access and, in this context, maintains a network of permissive routes throughout West Wood, Sparsholt.'

10.2.3 Mr. E. Moorhouse

Mr. Moorhouse worked in West Wood from 1953 to 1974 as a forest worker, and then from 1974 to 2003 as the Wild Life Ranger, for the Forestry Commission. Mr. Moorhouse did general forest work, including felling and planting trees, and later managed the wild life for conservation. When the wood was leased, he had little contact with the Hursley Estate. `As far as we were concerned, the public was allowed into the woodland', and this had always been the case for West Wood. However, that access was on foot only. The public was not allowed into the plantations, and this was generally understood Forestry Commission policy. Mr. Moorhouse states that Farley Mount drew people to the area, and from there people filtered into West Wood. If he saw horse riders, or people on motorcycles, Mr. Moorhouse would ask them to leave. Mr. Moorhouse says the gate at point A was locked, with nowhere to go round the side, so people would climb over the gate. This section of the track was a private access for the Commission. Mr. Moorhouse himself had a key, but there was no regular use for access by the Commission of this route. He did not recall any hedges or fences at the sides of the track between A and B, but he does recollect a bank. The track was in a depression, was not bulldozed, and had not been metalled. Mr. Sollars put a gate at point B, where the track was overgrown, but Mr. Moorhouse cannot recall when this happened. This gate was locked, and Mr. Moorhouse was not given a key. Mr. Moorhouse states that `people going through to the woodland was not important to us'; he had been told by Mr. Sollars that people were going through his land, but he did not see them. He was also told that Mr. Sollars locked the gate at B on Christmas Day, but Mr. Moorhouse did not see this either, and does not know for how many years Mr. Sollars made that annual closure. Mr. Moorhouse did not see any notices at Mr. Sollars' end of the path, and Mr. Sollars did not ask him to turn people back. The Forestry Commission did not make any annual closures in the wood it controlled, and Mr. Moorhouse was never told by anybody that the public use of the claimed path was permissive. He was not aware of any instructions handed down from the Hursley Estate - the woodland being always open to the public.

10.2.4 Mr. P. Brammer

Notes were taken at a site meeting on 17^th June 2005 with Mr. P. Brammer, a contractor for the Forestry Commission, who provided factual information about the management of West Wood, and Mr. N. Hazlitt the Beat Forester for the area. Mr. Brammer says that the original track from A to C was vehicle width, and the western section lies to the north of the present engineered road. The claimed route at point B was the same as it is now, a grassed track. Mr. Brammer has gone out through West Wood via point A, probably in 1989. He says there has always been access from point A. He thinks the route was possibly a fire break and that there was no fencing. The new road was engineered in 1989. This was in response to the large number of wind-blown trees close to the junction with the byway, after the hurricane of 1987. The road was made to allow the contractors to go into this area and clear fell them. The original grass track, which was wet and meets BOAT 10 at point C, is still in place, and this is not wide enough to take a lorry. Mr. Hazlitt commented that it was possible that the Forestry Commission thought that the old route out to the BOAT was a public right of way, and decided to make the new road so that they had a timber extraction route that was fully under their control.

10.3.1 Mr. E.A. Sollars

Mr. `Bob' Sollars, who lives in a property called `Little Sheddons', to the south of the path between A and B, owns the track, and has provided a statement with accompanying documentary material. This is attached, in full, at Appendix 4.

10.3.2 In brief, Mr. Sollars' evidence is that there was no gate at B at the time that he purchased the first property `Little Sheddons' in 1969, and the boundary was also unfenced. Mr. Sollars constructed a gate here in 1971, to stop animals straying into his garden from the adjoining property. The gate at A was always kept locked with a chain and padlock, and always had a `no admittance' sign on it, as had the gate at B prior to 1976. In that year, Mr. Sollars put a sign saying `Little Sheddons - Private - No admittance' on the gate at B between 1971 and 1976. Mr. Sollars maintains that no-one walked along the claimed path. He says that the track was, in 1976, indistinguishable from the surrounding land and he incorporated it into his garden. Mr. Sollars put in side gates beside the gates at A and B in 1976, for his own use, to access his recently purchased land and to walk in the woods. Having been advised after 1976 to make annual closures to keep the track private, and there was a notice at all times warning of the annual closure, though Mr. Sollars has not provided evidence of what it said. In 1998, the notice warning of an annual closure, on the gate at A, was removed. Other notices said `No access through the garden until further notice', `this is not a public right of way', `access through the garden is for walkers only', `please keep dogs on a leash and prevent fouling on any part of the ground' and `no access for cyclists'; another notice said `although there is no public right of way the owners are happy to allow access to walkers only through their garden to the Forest walk. Please respect the owners' privacy and do not allow dogs to wander or foul the garden'. These notices had been displayed `at various times up to the year 2000',. When the claim was submitted, Mr. Sollars denied access to everyone. He refers to a booklet produced by Hampshire County Council, in conjunction with Sparsholt Parish Council, called `Sparsholt Walks and Rides', in which walk No. 4 leads walkers through his garden. This he believes led to the erroneous belief that a public right of way exists through his garden.

10.3.3 What can be understood from Mr. Sollars' statement is that he claims ownership of the track from A to B by adverse possession (the Land Registry recorded Mr. Sollars' title absolute to both parcels of land described in his statement, and the track, on 12^th January 2006). He says that few, if any, people have used the claimed route, that he has taken steps to demonstrate he does not intend to dedicate a public right of way there. He holds that a Hampshire County Council and Sparsholt Parish Council booklet of 1995 has encouraged a mistaken belief that a public right of way exists from A to B.

10.4.1 Additional Witness Evidence

Friends and neighbours of Mr. Sollars have put forward additional evidence.

10.4.2 Mr. M. Hodder

Soon after Mr. Hodder moved to Sparsholt in 1983, and walked in the vicinity to exercise his dog. He walked along the track between A and B, and was stopped by Mr. Sollars. Mr. Sollars gave Mr. Hodder permission to walk from A to B, provided he kept his dog on the lead, and told Mr. Hodder about annual closures of the path he had made since living there, either on Christmas Day or Boxing Day. Mr. Hodder is aware, personally, of annual closures from 1983. Mr. Hodder considered, after this conversation, that he used the section A to B with Mr. Sollars' permission and he has a key now to the locked side gates. He did use other parts of the claimed path in the woodland, but generally tended to branch off before reaching point C. A previous manager of the Hursley Estate told Mr. Hodder that there was no public access to the woodlands, `these being run as a private estate' and `that there was never a footpath on the claimed route'. Mr. Hodder did not see others walking on the claimed path - he often walked there in the early morning. When he met the occasional person lost between B and C, he directed them to Burrow Road. These were walkers, and not people Mr. Hodder knew. He saw no horse riders, and did not see anyone from the village, even prior to the locking of the gates. The presence of the side gates led to more people coming through in Mr. Hodder's opinion. Mr. Hodder says that Mr. Sollars challenged walkers in the presence of Mr. Hodder on at least one occasion, and Mr. Hodder feels the claim is `founded on malice', following a challenge by Mr. Stockwell to Mr. Sollars on another matter. Mr. Hodder was on the Parish Council from 1984 to 1993, and the claimed path was not contentious in that time. He says no-one walked the path, because the Parish Council would have known if they had done and been prevented from doing so. The track has been partly in-filled, and some trees have come down. There is no fence on the north side, and the wall was already in place on the south when he first used it. It was not like a forest track, and Mr. Hodder thought it was part of Mr. Sollars' property.

10.4.3.1Mrs. J. Hambidge

Mrs. Hambidge was a neighbour of Mr. Sollars, and provided him with a letter, which he has put forward in his evidence. This is attached at Appendix 5. She has also provided a statement.

10.4.3.2Mrs. Hambidge's husband has had arable fields near the claimed route since 1958, and built their house Shedding Oaks Farm on Burrow Road, also near the claimed path, in 1961. Mrs. Hambidge moved away from Sparsholt in 1975, and has not used the path herself. The land now owned by Mr. Sollars was occupied by Mr. Henley for some of the time that Mrs. Hambidge lived in Sparsholt. He would tell anyone who wanted to go over the gate that they couldn't go through. Mrs. Hambidge often saw the five-bar gate at point A. It had a thick chain and a padlock, with a fixed piece of metal along the top bar. The notice on this piece of metal was `No admittance - fire hazard', and at the end of the metal strip was a picture of a ring of birch brooms was embossed. The track was kept cleared, and was wide enough for two or three fire engines abreast to go through. This gate, at A, was still in place, and still locked, when Mrs. Hambidge left in 1975. Mr. Sollars had moved in and built a bungalow on the site, and Mrs. Hambidge says the gate at point B has been in place since Mr. Sollars has lived there. She didn't see many people walking through in the time she was living there, some climbing over the gate, these people being locals walking their dogs. Her eldest son told her that there were only a few locals walking there until the Ramblers started using the path in the 1980s.

10.4.5 Mrs. A.G. Cole

Mrs. Cole is the daughter of Mrs. Hambidge, and lived in Sparsholt from 1956 to 1976, and writes `the entrance at point A has never been a right of way, and point B never existed until Mr. Sollars acquired the field to the right of his property...during the time I was living at Shedding Oaks the route in question was not used by the public

10.4.6 Mr. M. Hambidge

Mr. Hambidge is Mrs. J. Hambidge's son, and was born in Sparsholt in 1962. His father has owned Shedding Oaks Farm since 1959. He recalls that the fire gate at point A was always padlocked, the five-bar gate filled up the whole track, and had a sign on it saying `Fire'. There were what he calls `flappers', for putting out fires, alongside the gate. No gate was present at point B in the 1960s and 1970s. Mr. Hambidge played in the woods as a child and didn't see many people there. The only ones he saw were people going up Burrow Road from Farley Mount. In Mr. Sollars' time, people climbed over the gate, and in time could get round it, as the rails of the fence were broken down. Mr. Hambidge states that villagers would not come round to that area, because they had `their own areas where they walked'. Mr. Hambidge himself cut through the fields. As the Forestry Commission did not put `dead end' signs on the track, people would get to point B from the west and find they couldn't get through, and they then would try to cut through on the Hambidge's land, which they sometimes allowed, and Mr. Sollars himself would let some people through his garden. The Forestry Commission allowed people to walk through the wood, but the gates at A and B were always locked, as far as Mr. Hambidge recalls. He saw few Forestry Commission staff, but someone from the Commission checked the padlocks and fire flaps regularly, until the 1970s. Mr. Sollars put up signs in the late 1990s, and while Mr. Hambidge can't recall what they said, they indicated that the track was private, which was no problem to him. The track between A and B was about ten feet wide, grassy and with no worn track visible. There were banks, but no hedges or trees in the early days. The track was in a dip. From B to C, the track had a muddy surface, and was about twenty feet wide. He describes this section as always getting overgrown, with the Forestry Commission maintaining it to a point short of B1. There were always a few muddy wheel tracks on the track, as this section was used by machinery and vehicles. There were banks along part of the route, but there were no hedges, and it was a major track in the woods. Mr. Hambidge used his bicycle and rode a horse between B and C on occasions, and was not stopped.

10.4.7 Mrs. J. Small and Mr. P. Small

Mr and Mrs. Small have lived in the Winchester area for fifty years, and have been resident in Sparsholt for nineteen years. Mrs. Small began walking in West Wood in 1962 or 1963, with a neighbour, mainly dog walking, more often than her husband, who was at work during the week. In the 1970s she went for walks with Mrs. Sollars; they met either at Mrs. Sollars' house or at the gate at the south end of Bridleway 9, and walked in West Wood. Once living in Sparsholt, they used the claimed path much more often. Mr. and Mrs. Small have used the whole route from A to C, but sometimes branched off the main track. Mrs. Small describes it as `one of our favourite walks, because of the lovely views from the edge of the wood', and says it was very quiet. She was not told of the existence of the route, but knew it from `walking everywhere'. Mr. and Mrs. Small did not see many people, and those that they did were in the middle section of the route, probably coming from the car parks to the south. These people were on foot, though they occasionally saw cyclists, and very rarely riders. Mr. Small says the only vehicles they saw were those of the Forestry Commission. They knew some of the people that they saw. Mr. Small is aware of the newer Forestry Commission made up road at the west end of the route, and probably used both this and the claimed route, preferring the older, green track. He thought A to B was between 2 and 3 metres wide, and describes it `as walking through the garden'. Mrs. Small describes it as a track being in a depression, between 6 and 10 feet wide, not wide enough to get a car along. She recalls no hedging, only occasional trees on the side, with the lawn sloping down. The track had a grass and earth surface, and the grass was not cut. At point B was a substantial locked gate, with a padlock, taking up the whole width of the track. There were no signs on it. Mrs. Small did not walk the section A to B before she knew Mrs. Sollars, and she recollects that people were deviating to the left of the gate at point A, to get on to the track. During the summer of 1976, when there was a drought, Mrs. Small recalls Mrs. Sollars being worried that the gate at B was locked because they hadn't got a key to open it. This view is reinforced by Mr. Small. The track beyond point B was not much walked, and Mrs. Small felt it was not very pleasant. Mr. Small described it as `filthy with farm rubbish'. They saw no notices there, or in the woods at all. Mrs. Small describes A to B as `just a way through to the woods', and that Mr. Sollars was aware of people going through, though he withdrew his permission. Having known Mr. and Mrs. Sollars before he moved to Sparsholt, Mr. Small was visiting friends when he went to their house; as a friend he had access between A and B, and he still has a key to the gates. When walking there, he would often see one of them, and felt welcome to walk there even if he didn't. Mr. Small says `Mr. Sollars was a reasonable man, and provided people behaved themselves, they could walk over his land'. Mr. Small felt any use there was permissive, and Mr. Sollars was aware of people walking through. He was told by Mr. Sollars that he was having to close the path reluctantly, and that he still wanted his friends to have access, and gave Mr. Small a key. They had heard of annual closures and thought that they happened at Christmas, but not having gone there on Christmas Day, they had not personally seen the closures. When the path was closed off, and all the gates at A and B were locked, they could walk across the paddock to the north to get to the path. However, Mrs. Small says she hasn't walked through there for some time.

10.4.8 Mrs. S. Janke

Mrs. Janke first knew the claimed path from about 1992, when she walked down Bridleway 9 with her son, and encountered dogs that barked loudly and, on one occasion, Mr. Sollars heard the dogs and came out, inviting Mrs. Janke to walk through his garden. He made it clear to her that she was welcome to use the path, except on Christmas Day, but Mrs. Janke did not see any closures herself. She started walking in the area on a public right of way - Bridleway 9 - since Mr. Sollars' garden looked very private. He invited her through, and made her feel welcome, while making it clear it was not a right of way. She has never thought of this section of the path as a public right of way, and is aware that she has used it with Mr. Sollars' permission. Mrs. Janke describes a large five-bar gate at point A, with a smaller pedestrian gate at the side. She thinks it was a wooden gate, though she does not recall a padlock. This gate was changed to a fence at about the time the conflict over the path started. Mrs. Janke thinks there was another five-bar gate with side gate. These gates blocked the track, and the side gates were not locked when she started walking this section of the claimed route. The section between A and B was not metalled, and was wide enough for a car to pass down. In a slight depression, it had trees on both sides. Though she has walked the whole of the claimed route, Mrs. Janke found the section from B to C too busy with forestry traffic, and used A to B most consistently, at times practically every day. Mrs. Janke walks recreationally, using circular routes, and varied her walks once into the woods. The only people she saw on the path between A and B were those invited by Mr. Sollars to walk there, and any who were approaching the garden from the woods were usually lost, and were either walkers or cyclists. In the woods, Mrs. Janke sees many people she doesn't know. She avoids the made up road towards C, preferring the grassy track. As she has only paid attention to signs put up by Mr. Sollars since the dispute began, she cannot say if there were any up earlier than this, but mentions a sign saying `No admittance' on the gate at A, and another sign on the gate at B, the wording of which she cannot recall. She says her husband recalls a sign indicating `private' and `no right of way' on the earlier five-bar gate at A. Mrs. Janke has a key to the padlocked gate at B, and Mr. Sollars told her to go into the field through a gate further away from the house to approach the garden.

.

11. Discussion of the Evidence

11.1.1 Consideration of common law dedication

Section 31 of the Highways Act 1980 does not apply to Crown land, including land owned by, and leased to, the Forestry Commission. As it is not possible to look at the whole of the claimed route under Section 31, because during the relevant period the section B to C1 has been leased and subsequently owned by the Forestry Commission, and C1 to C appears to have been managed by them, consideration is first given to whether dedication of this part of the claimed route can be shown to have taken place at common law.

11.1.2 For common law to operate and give rise to a presumption of dedication the following factors apply:

· 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

· there is no automatic presumption of dedication after twenty years of public use

· 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.

11.1.3 The difficulty with the user evidence in this case for the section between B and C1 (owned by the Forestry Commission since 1996 and prior to that leased from 1951) when considered from the point of view of a common law dedication, is the quantity and nature of it in the earlier years, and the management of the woodland from the 1970s onwards. Although there is no prescribed number of users and no prescribed period of use to secure a common law dedication of a right of way, there were only three users in the 1930s, and six in the 1940s. In the 1950s, the use of Mrs. Cleverley, daughter of the game keeper of the shooting tenant of West Wood, might be discounted as being more of the nature of a connection with the estate than public use, as might that of her husband who helped his father-in-law at times. Mrs. Mitchell's use as a child in the 1940s of the path with her father to visit Mr. Henley cannot be counted as use as a member of the public. The table at Appendix 2 shows that heavier documented use of the claimed path did not really start until the 1970s. There is also evidence that users were `wandering' when they branched off the track into the woodland. By 1982, the Hursley Estate had varied their lease of West Wood to the Forestry Commission to make it `available for public access'. Nearby Farley Mount, where many walkers in West Wood parked their cars, had been leased to Hampshire County Council since 1971, so that it could be managed as a country park to provide a focus for public access in the area.

11.1.4 At some time before 1982, the Hursley Estate had already recognised the requirement for, and the reality of, public access, and were taking steps to concentrate it in an area that interfered as little as possible with their agricultural and sporting activities. The statement of Mr. Moorhouse, a former Forestry Commission employee indicates that the de facto managers of the wood encouraged the public to use the gravel track, but the user evidence illustrates that people were walking down many of the other tracks in West Wood, as well as going from B to C1. In considering the user evidence, it is necessary to look critically at whether that use was consistent with the landowner's expressed intention of allowing general (i.e. `open wandering') public access, or whether the use leads properly to an inference that the landowner intended to dedicate the path B to C1 (or C) as a highway. Given that the user of the track B to C1 (or C) post 1982 and possibly earlier is consistent with either, it is thought inappropriate to infer dedication of a highway as a result of that use. Prior to 1982, there is probably, in any event, insufficient use of the claimed track (because use was diluted over a number of different routes) to lead to the presumption that the landowner intended to dedicate a highway.

11.2.1 Consideration of Section 31 criteria in relation to sections A to B and C1 to C

For Section 31(1) of the Highways Act 1980 to operate and give rise to a presumption of dedication the following criteria must be satisfied:

· the physical nature of the path must be such as is capable of being a right of way at common law

· the use must be `brought into question', i.e. challenged or disputed in some way

· use must have taken place without interruption over a period of twenty years before the date on which the right is brought into question

· use must be as of right, i.e. without force, without stealth and without permission

· use must be by the public at large

· there must be insufficient evidence that the landowner did not intend to dedicate a right of the type being claimed

11.2.2 Although Section 31 cannot be applied to the whole route, the criteria outlined above can be applied to A to B and to C1 to C, which do not have Crown exemption. However, it is considered that the public has not acquired a right over the section C1 to C because, as in the case of the section B to C1, there is not enough volume of user, since use has been diluted by the construction of a parallel and alternative route by the Forestry Commission a short distance to the south which some witnesses report having used. Therefore, the only section left to consider is A to B.

11.2.3 Whilst the physical appearance of the track from A to B has recently changed over the years and is now an integral part of the garden, its character is such that it is capable of becoming a right of way under Section 31.

11.2.4 There is a question as to whether, if the claim can only succeed between A and B, it can be dedicated as a public right of way, since public rights of way generally start and end by connecting with other public highways. It is the view of Riddall and Trevelyan (Rights of Way, 3^rd ed. 2001) that `no rule of law has been laid down that a way cannot be a right of way unless its termini are such other rights of way', and state the words of Mr. Justice Farwell in Attorney-General v Antrobus (1905) that `...the want of a terminus ad quem is not essential for the existence of a public road'.

11.2.5 Is West Wood a place of public resort? In the 1950s, Mrs. Cleverley's father had queried why the public was allowed into West Wood, where shooting was taking place at the time, and was told they were not to be excluded, because the Forestry Commission who leased the land were a government-funded body, whose money came from taxes. The particulars for the 1982 sale of the Hursley Estate indicate that Farley Mount was let to Hampshire County Council on a peppercorn rent from 1970 for twenty one years, to be managed as a country park, commenting that it `indeed may act as a siphon to relieve demand for public access to countryside locally. West Wood had been made available for public access, though the date when this happened was not specified in the particulars. Both Farley Mount Country Park and West Wood are described as `public access areas', and there is no shooting in Farley Mount or West Wood `owing to the permitted public access in those areas'. West Wood could therefore be described as a place of public resort. The Forestry Commission has recently registered West Wood as land open for public access under the provisions of the CROW Act 2000.

11.2.6 The public's right to use the track between A and B was brought into question in 1999, when the side gates were locked by Mr. Sollars, denying entry. This made it clear to the public that he was disputing the right to use the track, and led to the present claim. Therefore, the period during which the claimant must provide evidence of unchallenged use by the public at large for this part of the way is between 1979 and 1999.

11.2.7 The spread of use in terms of year has already been discussed at 9.1.3. Use on foot of A to B can be demonstrated, in every decade, without interruption between 1930 and 2000. Two users report periods where they lived away from Sparsholt, but other users who have left to go to university, for instance, or live in other parts of the country, state that they return to Sparsholt on visits and used the path before the disputed section was closed.

11.2.8 The next question to be considered is whether the use of the witnesses has been as of right. Three users report climbing over the gate at point A on some occasions, and may be said to have used force on those occasions, but they did not need to do this all the time as it became possible to deviate round the gate on the left. All the others either do not recall the presence of the gate there, or report that it was unlocked, or that they were able to pass around the side of it, or through a wicket gate or other kind of side gate. Most local users knew or had other dealings with Mr. Sollars, but only those witnesses referred to in paragraphs 10.4.2 to 10.4.8 have had permission, or have considered their use by the licence or consent of Mr. Sollars prior to 1999, when the path was closed. It seems clear that the users were using the path in an open way. Two users had such close connections with the management of the woodland that some of their use might not be considered to be in a public capacity. All those users that report being stopped from using A to B state this happened between 1999 and 2001. No user reports being stopped before this date.

11.2.9 The evidence that has been presented by users indicates that people from all over the village of Sparsholt have used the claimed route. While most of the users live in Sparsholt, seven have never lived there, and are more typical of those who use the Farley Mount area, parking their cars, walking in the woods and returning to their vehicles. Mr. Sollars himself says that people who have come from Farley Mount have tried to come through the section from B to A in an attempt to get back to the road. While some users say that they did not always see others walking on what is a long route, running deep in the woods, users do report seeing other people, a mixture of both locals and strangers, the majority on foot. It is clear that users who have put forward evidence do constitute the public at large, and that they saw other members of the public at large using the route. However, Mr. Sollars says that few people used the route, and in this he is supported by Mrs. Hambidge and Mr. Hambidge. On balance, officers take the view that the use has been by the public at large.

11.2.10 The final criterion to be examined is whether there is sufficient evidence that the landowner did not intend to dedicate the type of right of way being claimed. It is clear from the accounts of the witnesses, that Mr. Sollars, placed or maintained, gates across the track, although users are not specific about exactly when and where this was done. According to Mr. Sollars' account, (a) the gate at A was already in existence when he purchased the first land in 1969, (b) he put in a field gate at point B in 1971, (c) he placed side gates adjacent to the gates at A and B in 1976 and (d) he removed the gate at A and replaced it with a permanent fence (retaining the side gate) in 2001. Opinions of the users also differ as to whether these gates were locked or unlocked. Mr. Sollars says that (a) that the main gate at A was always locked, (b) that in 1976 he was advised to lock the side gate at point A at least once every year, and (c) he was advised to lock all gates in 1999. Mr. Sollars' statement does not say that he did, in fact, make annual closures, or lock all gates in 1999, but Christmas closures are acknowledged from 1997 to 1999 by one family, and the locking of all gates in 1999 was the action that brought the public's right into question.

11.2.11 The erection and locking of gates can be evidence of a lack of intention to dedicate for the purpose of defeating a claim made under Section 31. Notices showing that the landowner did not acknowledge or intend to dedicate a public right of way can have a similar effect. Mr. Sollars and his former neighbour refer to a`"No Admittance" sign' on the gate at A from 1976, and possibly before then, but no users recall such a sign before the 1999 closure. Where users do refer to notices, they have been unable to be precise about wording or dates, most remembering only those notices that have appeared since 1999. Mr. Sollars says that (a) after erecting the gate at point B (in 1971) he put up a sign on that gate saying `Little Sheddons - Private - No Admittance', (b) that throughout his ownership he has attempted to keep notices in place and (c) notices have been erected warning of an annual closure. See paragraph 10.3.2 for details of the notices. Although some of these notices denied public access, others, eg. `please keep dogs on a leash and prevent fouling on any part of the ground' are more ambiguous.

11.2.12 There are some conflicts between the account of Mr. Sollars and the recollections of the users, but a number of them nonetheless confirm some annual closures and the presence of some notices. It would seem that Mr. Sollars has carried out a series of actions between 1979 and 1999 (the necessary period of 20 years required to satisfy Section 31) to indicate that he did not intend to dedicate the track between A and B as a public footpath, and these would, on the face it, be effective to defeat the claim.

11.2.13 Consideration has been given to the period 1979 to 1999, but there are actions prior to this date relevant to the section A to B which could be interpreted as bringing the public's right to use the way into question. One of these is the fixing of a sign to the gate at point B in 1971 and any other notice subsequently erected by Mr. Sollars on the track denying a public right of access. Although these other events may bring the public's right into question, any twenty year period earlier than the 1970s faces the difficulty that there is much less evidence of use.

11.2.14 Only the owner of the fee simple of land, or freeholder, or someone acting on his or her behalf, is capable of carrying out actions that will demonstrate that there was no intention to dedicate a route as a public right of way. Mr. Sollars has title to the track between points A and B, acquired by adverse possession. The title documents do not indicate at what point Mr. Sollars' ownership matured. The twelve year period of possession may have begun in 1971, when Mr. Sollars put the gate across the track at point B, or it may have been 1976, when he incorporated the track into his garden. The date when he could be said to own the track would then be either 1983 or 1988, both dates being within the period 1979-1999, so that his actions in locking gates, maintaining notices stating that his land was private and making annual closures are sufficient to indicate that Mr. Sollars did not intend to dedicate the track between A and B as a public right of way.

12. Conclusions

The user evidence of the path between B and C1 is inadequate to show a common law dedication of a public footpath. The user on C1 to C is inadequate to demonstrate that a public footpath has been acquired under Section 31 (or common law). The actions carried out by the owner of the track between A and B serve to defeat a claim under Section 31, in that they are sufficient evidence of a lack of intention to dedicate.

RECOMMENDATION

That the claim be refused.

Section 100 D - Local Government Act 1972 - background papers

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

File: Application for a footpath in the parish of Sparsholt, ref. 676

Rights of Way Office, Mottisfont Court, Winchester