Hampshire County Council

Regulatory Committee Item 16

29 November, 2006

Application for a Definitive Map Modification Order to record a Footpath in the Parish of Headley

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...

(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 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.

1 Summary

This is an application for a footpath in the parish of Headley, from Footpath 28 to the Village Green. The claim is recommended for acceptance.

2 The Applicant

The application, made in 2001, was signed by Mrs. M. Holt, then Clerk of Headley Parish Council, of the Parish Office, Arford Road, in Headley. It was accompanied by sixteen completed user evidence forms and maps in support of the claim.

3 The Landowners

Mr. James Ray and Mr. C. Smith, who are the Trustees of the former Headley Working Men's Club, holding the land `in Trust for the general purposes of the Club' (conveyance of 1972).

4 The claimed route

The claimed path runs from Headley Village Green northwards to meet Headley Footpath 28, but it has been fenced off and not used for some time, and is now too overgrown to be visible on the ground, although it is shown by a pecked line on current Ordnance Survey maps. The Headley Working Men's Club formerly stood on the site, but is no longer visible, having been demolished in the 1970s after it burnt down. The application was for a footpath from point A at the Village Green, to point D on Footpath 28, via point B, as shown on the attached plan. During the course of the investigation, it became clear that some witnesses had also used a path from point C (on Footpath 28) to point B, and therefore evidence for the use of this route was considered in this report.

5 Consultation

The following persons and bodies have been consulted about the claim, East Hampshire District Council, the British Horse Society, the British Driving Society, the British Horse Society, the Trail Riders Fellowship, the Byway and Bridleway Trust, the Open Spaces Society, the Ramblers' Association, Hampshire County Council County Surveyor, County Planning Officer and the Rights of Way Area Officer (North-East). The local member has been informed. At the time of writing, the following responses have been received:

6 The Highways Manager of Hampshire County Council, has no comments to make

7 The Development Control Officer at Minerals and Waste Planning, Hampshire County Council, also has no comments to make.

8 The representative of The Ramblers' Association writes that he has no objection to this claim, which seems a useful addition to the network. However, he has no evidence of user to offer.

9 The local Member has been informed, and the other consultees had not responded at the date of the preparation of this report.

10 The issue to be decided

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.

11 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 subsists, or is reasonably alleged to subsist, over the claimed route, then a map modification order should be made.

12 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 some degree of conflict in this case.

13 The originals of some 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.

14 Documentary Evidence

The following sources have been examined, but do not show or provide any information about the claimed route. These were: Taylor's Map; Milne's Map; Ordnance survey 2 inch drawing, sheet 19; Ordnance Survey Old first edition One Inch Map; Greenwood's Map; Headley Tithe Map; Alton to Petersfield Railway Plan; Windsor, Aldershot and Portsmouth Railway Plan; Portsmouth, Basingstoke and Godalming Railway Plan; Ordnance Survey 1:2,500 first, second and third edition maps; Definitive Map of 1964.

15 Headley Inclosure Award and Map, 1859 (HRO Q23/2/67/1-2)

While the Headley Tithe Map of 1847 shows no sub-division of the land at the location of the claimed route, the Headley Inclosure Award map shows a number of allotments in the vicinity of the present Village Green, and sets out the topography of the area. Allotments were made to the Parish of Headley, land which is now held Headley Parish Council. The map does not show the claimed path.

16 Headley Parish Council Minutes 1894-1961 (HRO, 22M59/PX1-5)

The minutes of Headley Parish Council supply the following information in relation to the claimed path:

· In 1928, there was a `Carnival Hut' on the site of the land over which the path runs, and it was used for `Village' events

· By 1935, this Hut was being used as the clubhouse for the Headley Working Men's Club (WMC)

· Wayleaves for access to this land were being discussed by the Parish in 1926, and a wayleave for vehicles was granted to the WMC in 1952

· There were three entrances to the Club land, two at the north side and one from the south

What can be understood from this material is that there had been a structure on the site, probably from the time of the First World War - there is some suggestion that the huts had a military origin. In the 1920s, the hut there was the venue for village activities, until it became the WMC. There were three entrances, indicating that the hut and its associated activities formed a focus that drew in people from the surrounding area.

17 Ordnance Survey County Series fourth Edition 1:2,500 map, 1930s

This is the first County Series map that shows any structure on club site. The Club is shown on the west side of the plot (of 0.497 acre). The map shows a path, indicated by parallel pecked lines, and braced into the plot. The path in the north diverges at point C from Footpath 28 and curves around the Club building via point B, physically touching the south east corner of it, before changing direction due south and going to the boundary with the Village Green, to the west of point A. The whole plot appears to be fenced. Lines across the two ends of the path may indicate gates - a gate on to Footpath 28 is alluded to in 1936 in the Parish Council Minutes. There is no path on the alignment B to D.

18 Ordnance Survey National Grid map 1:2,500, circa 1970

This map shows the Club building with the path around it, in a very similar way to the 1930s County Series map.

19 Headley Parish Council File on the Headley Working Men's Club

In summary

· the Working Men's Club was operating in what was the Carnival Hut from at least 1935 (at this time there were three entrances to Club land), when it applied for a right of way along the side of the Village Green, an agreement that was cancelled in 1967

· The Club seems to have been in a decline during the 1960s and burned down at the end of that decade.

· The remains were demolished in the early 1970s, during a period of what might be described as `in-fighting' between former members and the Trustees of the Club.

· The land had been conveyed to three Trustees in 1972. In 1973, outline planning permission was granted for two buildings on the site, but the only access to it was over land owned by the Parish Council, and the development did not proceed.

· A survey was made for the Parish Council in 1973 of the north part of the WMC site, and photographs were taken, and the resulting plan shows two entrances onto the site from the north.

· In 1981, the Parish Council put up a barrier at the southern boundary of the site to stop horse riders and motor cyclists emerging on to the Green.

· An attempt to contact former members of the WMC was made through a newspaper advertisement in 1985.

· The Parish Council tried, at the beginning of the 1990s, to set up a meeting between itself and two former members of the Club to discuss the future of the site. This meeting did not materialise.

· By the mid 1990s, the Parish Council was taking active steps to gain possession of the site by actively managing the land, recording that there was a footpath across the site `which is walked regularly'.

· In late 1995, the Council spent £100 on clearing and widening the path, and advice was sought from the Open Spaces Society and from the Council's solicitor on adverse possession.

· The site of the WMC was fenced with barbed wire in late 1999, and `Keep Out' notices were put up by a person who claimed to be the owner of the land, but whose claim was defeated in court, when two of the Trustees of the former WMC were held to own the land.

· Complaints about the prevention of access to the land were received from people in Headley, and the Parish Council collected evidence in order to make this application.

20 Discussion of the documentary evidence

A path, not quite on the same line as that claimed, is shown on the Ordnance Survey County Series map of the 1930s, a decade when the `Carnival Hut' was in active use by the WMC. At this time, the WMC site had three entrances, one from Footpath 28, a second opposite the Old Post Office on Long Cross Hill and one at the south on to the Village Green. The Club continued until the late 1960s, when it burned down, though it was in a decline for some time before its demise. The Club and the Parish Council had a close relationship, as the site of the Club had the Village Green on two sides, and its members gained vehicular access along the side of the Village Green from 1952 to 1967. Any fencing that surrounded the WMC site deteriorated during the years after the fire, and the area became overgrown and unkempt, though the Ordnance Survey National Grid map of circa 1970 shows the building and the path in the same way as the fourth edition map of the 1930s does. Contemporary Ordnance Survey mapping shows a path by means of a pecked line, indicating it was a feature sufficiently prominent at the time of survey to warrant the surveyor including it, though it may have last been surveyed before the present overgrowth of vegetation, and transferred to the latest map without re-survey.

21 The claimed path is not exactly on the same line as that shown on the fourth edition OS County Series map of the 1930s, or the National Grid map of 1970, the southern end being a little further to the east. Further, a survey done for Headley Parish Council in 1973 shows that the claimed path forked at the north, a fact confirmed by witness evidence. The surviving correspondence from the aftermath of the burning of the WMC indicates that there was conflict between the surviving members and Trustees as to what should happen to the assets of the club, which had charitable status. Once the ruins had been demolished in 1973, planning permission for the construction of two dwellings on the site was applied for and granted in outline. The development foundered on the question of vehicular access to the site, in that land belonging to Headley Parish Council had to be crossed, and the Council would not grant permission. There is no documentary evidence of any further actions by members or Trustees in relation to the WMC site until 2000.

22 A stout barrier was erected at the boundary between the Council and Club land in 1981, its purpose being to challenge public horse riders and motor cyclists who were coming from the Club site. The concerns of the Parish Council about the state of the site were such that, after an abortive attempt at a meeting with Trustees, the Parish Council in 1995 began to take active steps to gain ownership of the site which had lain `vacant and overgrown since the old club was burned down' and was walked regularly, through active maintenance. These developments indicate that those purporting to own the Club and its site were not actively managing their asset, a neglect that was of concern to the Parish Council. The first action on the site by anyone claiming to own it, that of fencing it off and putting up deterrent notices in late 1999, prompted an immediate response from residents of the village, and culminated in this application.

23 What can be understood from this evidence is that the hut on this site has drawn people to visit it from the early part of the 20^th century, whether for village activities or as members of the Working Men's Club. This traffic led to a visible path, recorded on Ordnance Survey maps from the 1930s, with a slight alteration to its route in the southern section between the 1930s and the present day. The documentary evidence shows that, after the demise of the WMC, there seems to have been little active management of the site by its owners, save for a planning application for two dwellings there. A plan of 1973 indicates that a second entrance on the northern boundary of the site had been opened up, and the traffic on this second route had led to a spur path from point D to point B of sufficient wear to be included in the survey. The fact that Headley Parish Council felt moved to erect a barrier to stop horse riders and motor cyclists entering the Village Green indicates that there was a sufficient volume of public traffic to warrant such action, and that there was a gap in fencing that allowed them to enter. By the 1990s, the Council was sufficiently worried about the neglected state of the site to initiate maintenance activity at its own expense, and to seek advice as to how it could gain control and ownership of the land. There was an acceptance by the Council that the public were walking over the Club site regularly.

24 User Evidence

The application was accompanied by 16 completed user evidence forms, and ten of these witnesses signed statements. A further five witnesses have come forward and provided signed statements of their use. Their evidence is that the claimed path between point A and points C and D, via point B, has been used by the public since the mid 1960s. Appendix 1 is a table that shows the use of the path by those 21 people who have submitted evidence. This is, of necessity, a generalisation. Members are encouraged to look at the user evidence forms and statements held in the Rights of Way Office. Frequency of use varies from daily to weekly, and a summary of the use put forward by each witness is presented in Appendix 2.

25 The earliest use of the claimed path reported by witnesses is from 1965, and all stopped using it when it was fenced off at the end of 1999/beginning of 2000. There were four users in the five years between 1965 and 1970, by which time the Working Men's Club had burned down There were 10 documented users by 1980, and 16 users in the decade to 1990. At the time of the closing off of the site in late 1999, there were 15 users, with another three having used the path in the decade leading to the closure, but then leaving Headley.

26 Although the maps signed by witnesses that accompanied the application indicated a route from A to D, it became clear on investigation that users had also walked along what must have been the main north entrance to the WMC, from B to C. Where it has not been possible to interview the 6 witnesses who completed user forms only, it has been assumed that they used B to D most frequently as this was the original basis of the claim, though it should be remembered that they may have used both parts of the fork. Seven users stated that they used B to C mostly, and 4 witnesses said they used both, with no particular preference for either.

27 Witnesses were asked whether they saw any signs or notices along the route, and what any signs said. No signs were seen by any witness until those that were put up when the whole WMC site was closed off in late 1999. Mrs. D'Arcy, Mr. Dowdeswell, Mr. Kerr and Mr. Pull state that notices saying `Private Property' and `Keep Out' appeared at this time.

28 On the question of gates and their positioning, Mrs. Deeks, Mrs. Evans and Mr. Kerr refer to a gate at point C. Mrs. Deeks and Mrs. Evans refer to it in 1999, and Mr. Kerr says that it was open. The remains of a wooden gate are in situ at point C, with a sign which says `Please keep closed'; the gate is very decayed and the closure is with barbed wire.

29 All the witnesses report that they were never stopped during their use of the claimed path. Mrs. Collins, Mr. Dowdeswell, Dr. Ingram, and Mrs. Lane all mention being stopped by the fences being put up in 1999 (Mr. Dowdeswell mentions 1998 for the fences, but there is documentary evidence from Mr. Evans in the Headley Parish Council file on the WMC that the land was fenced off on 1^st and 2^nd November 1999, and it may be that Mr. Dowdeswell has misremembered the year). Mrs. Moverley and Mr. Pull say they stopped using the path when they realised that the land was privately owned. There were no reports of any annual closures.

30 A number of witnesses speak of a barrier near point A, where the path enters on to the Village Green. Mrs. Deeks describes it as a barrier to stop horses, put up by the Parish Council in the 1980s, a view which is confirmed by the Parish Council minutes for 1981. Mr. and Mrs. Evans, Dr. Ingram and Mr. Morgan all describe this barrier in the same terms, that it could be stepped over or that it was possible to `walk round either end of it' (Mr. Evans). Mr. Pull describes it as a `well-established exit', and Mrs. Evans said she `walked through under the cross piece'. Some of the witnesses were mothers taking their children to the playgroup on the Village Green, and none report any barrier that would cause them any difficulty with push chairs, as might be expected had the barrier completely closed the gap or been maintained.

31 Users were asked about the appearance of the track. Estimates of its width vary between wide enough for one person to 10 to 15 metres (Mr. Dowdeswell, though it has not proved possible to interview him to find out whether this refers solely to the worn track). One person's width is the most frequently cited. The evidence of the 1973 Cubitt and West Survey is that the fork B to C was about 2.44 metres wide (8 feet on the original), whereas the fork B to D can be scaled off at 1.2 metres. The path had a worn earth and grass surface, according to witnesses. `Though it was uneven, it was well-trodden' (Mrs. D'Arcy who pushed a buggy along it), and it was `clearly defined over land that had shrubs and trees on it' (Mrs. Deeks). Access at C and D appears to have been through gaps in the hedge, Mrs. Evans describes it as running in a groove, and Mr. Evans as being in a depression.

32 On the matter of the Working Men's Club, only Mrs. Deeks seems to have seen the buildings before they burnt down, and indeed recalls seeing the fire engines putting the fire out, as she lives directly opposite the site of the Club. Other witnesses were aware of its existence, but none reports seeing even the ruins of it.

33 The ownership of the Club land appears to have been a matter of some mystery until 1999, and none of the witnesses asked permission to use the path, mainly because they did not know who to ask permission of. However, Mrs. Deeks ran a hairdressers and did the hair of the wives of two of the Trustees, who saw her walk across the Club land, but said nothing about it.

34 What can be understood from this evidence is that the public has used a route over land on which the former Headley Working Men's Club stood from point A to point B, and then used either B to C or B to D to join Footpath 28, and vice versa. Some users, like Dr. Ingram, used only one fork, because they lived near the path and always approached it from the same direction. Others used both, depending on where they were going. The survey of 1973 of the north part of the land, prepared for Headley Parish Council, confirms the existence of both entrances on to the claimed path from Footpath 28. The forms and statements indicate use in every year from 1965 to 1999, when the path was fenced off to prevent access. Use has increased since the mid 1970s and has been maintained. Witnesses were not challenged while using the path, saw no notices until 1999 and the fencing off, saw no annual closures and encountered no obstacles on the path itself. Several indicate that the Parish Council erected a barrier on their land where it met Club land in the 1980s, to stop horses and motorcyclists entering the Village Green via the path, and this barrier could be stepped over or walked around.

35 Evidence from Landowners

The two landowners, former Trustees of Headley Working Men's Club, Mr. Ray and Mr. Smith have provided a statement and a letter of confirmation respectively, and these are included in full as Appendix 3 and Appendix 4.

36 In brief, Mr. James Ray, lives in the village of Headley, and attended school there. He became a Trustee of the Club before 1970, which burned down in 1970, with its remains being demolished and removed by his fellow Trustee Mr. Smith. Mr. Ray asserts that `the path was never used by the public only club members'. After the fire the land was fenced off and Mr. Smith erected signs saying `Private Property - Keep Out'. Mr. Ray recalls these signs being in place in the late 1970s and early 1980s, though they were `often torn down or removed'. He refers to barriers along the boundary with the Village Green, erected by East Hampshire District Council, which prevented anyone from entering or exiting. In 1999, while Mr. Ray was out of the country, the land was entered, fenced and occupied by a man claiming he was the owner. After legal action, Mr. Ray and Mr. Smith recovered the property, and signs with the same wording as those originally put up by Mr. Smith were erected by men employed by the court. Mr. Ray believes that an application for planning permission in 2000 prompted the claim.

37 Mr. Colin Smith, who lives in Bristol, is also a Trustee of the Club, and wrote a letter to Miss Noyce of the Rights of Way Section on 14^th January 2006 confirming that he erected signs saying `Private Property Keep Out' and `Danger Keep Out'' on the land in 1974, Mr. Smith says these signs were removed repeatedly and he continued to replace them, finally putting them at ladder height in the trees, out of reach. Some of the fencing on the south boundary was erected by `the Local Authority', and the rest of the land was fenced, indicating that to enter was a trespass. In a telephone conversation of 5^th July 2006, he indicated that he had started to put up deterrent notices from the time he became a Trustee in 1972, and that he had tried to keep these signs in place for some months. He says that the barrier put up at the south end of the site was in the fence line of the club land. No documentary evidence of the presence of signs could be produced at the time of the preparation of this report.

38 Discussion of the User and Landowner Evidence

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

39 The path is of such a character that it is capable of being a right of way at common law.

40 It is customary for a public right of way to connect two public highways. In this instance, the claimed way ends at Headley Village Green. It is the view of Riddall and Trevelyan (Rights of Way, 3^rd ed. 2001, p. 53) 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'. The Village Green is the same piece of land set out for the inhabitants of Headley by the Inclosure Commissioner, and was registered as such under the Commons Registration Act of 1965. It is therefore a place of public resort and it would be quite proper to record the claimed way as a public footpath ending at Headley Village Green.

41 There are three events that could be interpreted as bringing the public's right to use the claimed way into question.

42 Mr. Smith says that he put up deterrent notices on the site of the Club in 1974 (later revised to 1972, the year when he became a Trustee), and that the land was fenced, indicating to any would-be walker that entry on to the land constituted a trespass. This is a clear bringing into question, and would make the period when the public must demonstrate in the years 1952 to 1972 The user evidence begins at 1965, so there less than twenty years' of public use if such a period was considered (see user evidence table at Appendix 1).

43 The public's right to use a way can be brought into question by someone other than the landowner, and in 1981 Headley Parish Council erected a stout barrier at the point where the claimed way meets the Village Green. There is no clear evidence whether this was on the Council's land or Club land. The Parish Council minutes indicate that the intention was to stop horse riders and motor cyclists entering the Village Green from Club land. This implies that such traffic was already coming from the site on to the Green. It is clear too that the Parish Council were not intending to challenge the public's right to walk from the site to the Village Green. There are two views that Members may take on this matter. The first is that the barrier did not function as a bringing into question for the purposes of this claim, in that the Parish Council were not concerned with use on foot, and therefore it can be disregarded. If Members were inclined to view the barrier as a challenge to the public's right to use the claimed way on foot, the relevant period would be 1961 to 1981, and there is not enough public use for that period either.

44 The third event that could be termed a bringing into question is similar in nature to the second, in that a person who was later unable to sustain a claim to the land fenced the Club site off, and put up `Keep Out' notices, in November 1999. This action had the effect of stopping the witnesses who had been walking the claimed path from using it, and prompted this application. The relevant period resulting from this closure of the path would be 1979 to 1999, and the user evidence table indicates that there is twenty years' use, without interruption, which meets this part of Section 31.

45 The question of whether the use of the witnesses has been as of right must be considered. None of the users reports having asked permission to use the path, which is not surprising as the identities of the owners was not clearly known by local people until 1999, when the users were prevented from continuing their use, and the issue of landownership had to be determined in a court. Many users thought the Club site was an extension of the Village Green, or common land. Their use appears to have been quite open, and the Parish Council records that the claimed path was walked regularly by the public. Where the issue of force is concerned, Mr. Smith states that the Club site was fenced round after the fire, and Ordnance Survey mapping confirms that there was a solid boundary around all sides of the plot. The Cubitt and West survey of 1973 shows a hedge and bank on the northern boundary and a hedge on the western boundary, as far as it is shown on the plan. The plan shows two entrances into the site on its northern boundary. The surveyors were instructed to `take appropriate notes...as to the nature of the existing access' to the Club site from Long Cross Hill, and therefore paid careful attention to the boundaries at that location. The plan is executed at 1:250, therefore allowing for a great deal of detail. Mrs. Collins and Mrs. Deeks, who used the path in the 1960s, said there was no fence to negotiate to get on to the claimed path at the north. Of those who began using the path in the 1970s, when Mr. Smith says the plot was fenced all round, Mr. Evans, Mrs. Evans and Mrs. Collingwood all say that they did not have to climb over anything to get on to the path at the north, where the access points were clear gaps. Mr. Kerr, whose use was in the 1990s says that he had to `climb through a hole in a fence to get into the Green at the southern end of the track', but this does not imply force on his part. Mrs. Collins, Mrs. Lane and Mr. S. Evans mention stiles at the southern end of the path, but a stile is a way to allow walkers to cross a fence. Seven users speak of the barrier, put up in 1981 by Headley Parish Council, and considered that this was to stop horse riders, and not users on foot. It could be stepped over or walked around. Some of the users were taking their small children to play on the Village Green or to the play group and were using push chairs and buggies. They report that the path was easy to use with their buggies.

46 The evidence that has been presented by witnesses indicates that, while some users live and have lived close to the location of the path, others came from further afield in the village of Headley, and were using the route as part of longer, circular, walks. Officers take the view that the use by 21 witnesses has been by the public at large.

47 The final criterion to be examined is whether there is sufficient evidence that the landowners did not intend to dedicate the type of right of way being claimed. It is clear from the accounts of the witnesses that there were no challenges during the period 1965 to 1999 when they were using the way. The Ordnance Survey maps of 1970 and contemporary maps show a fence all around the site of the Club, as stated by Mr. Smith, but the 1973 Cubitt and West detailed survey shows two entrances to the land on its northern boundary. The gate at point C has a sign on it saying `Please keep closed', but none of the users reports a locked, or even closed, gate before 1999 when the whole plot was fenced off. The gate itself is extremely dilapidated. The only barrier mentioned in connection with the way is the one put up by the Parish Council to stop horse traffic from the Club site. As it was put in place by the adjoining landowner, it cannot be an indication that the landowners of the Club site did not intend to dedicate. In fact, the witness accounts indicate that the land was not used for any perceived purpose, and the Parish Council in 1995 described the land as having `lain vacant and overgrown since the old club was burned down', to the point that they spent money on clearing the path over it and undertook maintenance there. There was also difficulty in ascertaining precisely who owned the land. This does not indicate active management in the period prior to Headley Parish Council beginning to carry out maintenance on the land.

48 Notices showing that the landowners do not acknowledge or intend to dedicate a public right of way may defeat a claim under Section 31. Mr. Ray says that Mr. Smith put up notices saying `Private Property - Keep Out' in the late 1970s and early 1980s, but was unable to be specific about these dates. Mr. Ray says there was on-going maintenance of the signs. Mr. Smith confirms that he put up such notices in 1972 and, when they were removed, replaced them, finally at ladder height on the trees to prevent further removal. To date, Mr. Smith has not provided any details of the length of time that he continued to replace notices, or any evidence that these notices were actually in place. No witnesses say they saw any notices during the 1970s, only those put up in November 1999 by a person who was proved not to be the landowner, which had the effect, along with the fencing, of stopping all public use of the claimed path. Headley Parish Council is based in a hall from where the claimed path and the Club site is visible. No material has been discovered in the Parish Council's Working Men's Club file to indicate that the Council received any complaints about notices such as those that Mr. Smith said he put up and maintained on the Club site. When the land was fenced off and notices put up in 1999, a call was received by the Council the next working day reporting this event. A complaint was also received when the trees in which the nightingales had been were cut down, so it would be surprising if something as obvious as `Keep Out' signs could have appeared in 1972 or 1974 and not been commented on or made known to the Council, if the path was in regular use, as the user evidence suggests.

49 There is no evidence of any annual closures, or any declaration made under Section 31(6) of the 1980 Highways Act.

50 Mr. Ray says in his statement that `the path was never used by the public only club members', though there is then some conflict between his assertion and the evidence put forward by Mrs. Collins, Mrs. Deeks, Mrs. Dowse and Mrs. Seymour Harvey, who say they were using the path between 1965 and 1970. There is no contemporary evidence that the notices that Mr. Smith says he put up and were in place on the WMC site in the 1970s. If they were in place in the 1970s and 1980s, as Mr. Ray says that they were, their presence would have the effect of demonstrating that the Trustees did not intend to dedicate a public right of way, and if there were some contemporary evidence of them, officers could put more weight on the evidence of the Trustees when considering the s.31 criteria. Mr. Ray did not respond to invitations by Headley Parish Council to attend a meeting to discuss the future of what they saw as a neglected site. Over that period, the evidence put forward suggests that the public at large were using the path in an open way, without being challenged, and continued to do so until November 1999. Using the complete fencing off of the site, and erection of the `Keep Out' notices, in 1999 as a bringing into question, there is no documentary evidence that the Trustees of the Club site did anything to indicate that they did not intend to dedicate the route across their land as a public right of way during the period 1979 to 1999. Therefore, a prima facie presumption has been raised that the public have acquired footpath rights on the claimed route A to B, B to C and B to D.

51 Width of right of way

Indications from the witness evidence, and the plan of 1973, suggest that the width of the path from A to B to D is 1.2 metres. The section from B to C, as marked on the 1973 plan, is 2.44 metres wide.

52 Conclusions

There is evidence on which Members can properly find that, on the balance of probabilities, the requirements of section 31 of the Highways Act 1980 have been satisfied, and that a public footpath subsists or is reasonably alleged to subsist over the paths between points A, B and C, and points B and D, on the attached plan.

RECOMMENDATION

That an order be made to add a footpath, from Footpath 28 to the Village Green in the parish of Headley, to the Definitive Map, such footpath being of the width of 1.2 metres between points A, B and D, and 2.44 metres between the points B and C.

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 Headley, ref. 710

Rights of Way Office, Mottisfont Court, Winchester