Archived decisions
Hampshire County Council
Regulatory Committee Item 11
10 January 2007
Claim to remove Footpath 21 in the parish of Vernhams Dean from the definitive map
Report of the Director of Recreation and Heritage
Contact: Alex Lewis, extn. 6044; [email protected]
Wildlife and Countryside Act 1981
53. Duty to keep definitive map and statement under continuous review
(2) As regards every definitive map and statement, the surveying authority shall keep the map and statement under continuous review and as soon as reasonable practicable after the occurrence .... of any of [the events specified in sub-section (3)] by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event
(3) The events referred to in sub-section (2) are as follows -
(c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows:-
(iii) there is no public right of way over land shown in the map and statement as a highway of any description
Department of the Environment Circular 18/1990
... in making an application for an order to delete or downgrade a right of way, it will be for those who contend that there is not right of way or that a right of way is of a lower status than that shown to prove the map is in error by the discovery of evidence, which when considered with all other relevant evidence clearly shows that a mistake was made when the right of way was first recorded....it is not for the authority to demonstrate that the map is correct, but for the applicant to shown that an error was made.
1. Summary
1.1 This report concerns an application to remove Footpath 21 in Vernhams Dean from the definitive map, on the grounds that there has never been a public right of way in that position.
1.2 The application is recommended for refusal.
2. The Applicant and the application
The Application was made by Mrs P. Herriott of Vernham Dean. The application was made in 2002 and accompanied by a number of copy maps and statements, all of which are considered below.
3. The Landowners
The owner of the land affected by the application is Mr G. M. Herriott.
4. Footpath 21
4.1 Footpath 21 runs from Footpath 20, south-southwestwards for approximately 580 metres to Upper Row Farm and is shown between points A and B on the attached plan.
4.2 The existing definitive statement for Footpath 21 reads:
"From No. 20, West of Willis's Cottages, to Road U.55
From No. 20 over wire fence, southwestwards along headland of arable field on southeast side of trees, along headland of arable field on southeast side of wire fence, along earth road 7 ft. wide between arable field and wire fence, through field gate, along track between arable field and pasture, and through gateway to Road U.55."
4.3 The first and second definitive maps (1955 and 1958 respectively) show the path on a slightly different alignment than does the current definitive map. This is thought to be a (relatively minor) draughting error on the later, smaller scale map, which puts the part of the path away from the headland and further into a field. Earlier versions of the definitive map record a footpath following a headland track that is shown on the Ordnance Survey base maps concerned. There is no evidence of any subsequent diversion of the path.
5. Consultation
The following persons and bodies have been consulted about the application, namely the Director of Environment, the Ramblers' Association, Councillor Hughes the local member, Test Valley Borough Council and Vernhams Dean Parish Council. The following responses have been received: the remaining consultees are presumed to have no evidence to offer.
5.1 Ramblers' Association - doubts whether the path has been used in recent years. Would be willing to lose this path if Footpath 20 were brought up to an acceptable standard.
5.2 Vernhams Dean Parish Council - has made a search of the parish minute book for the period on question, but has no evidence to offer that will assist in determination of the claim. The issue was advertised in the village newsletter, as a result of which representation were received from two individuals, one indicating an objection to the application, the other indicating that no objection would be raised to the loss of the path.
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 Footpath 21 ought to be deleted from the definitive map and statement.
6.2 The definitive map is conclusive evidence of the existence of the rights of way shown on it. For many years it was thought that it could not, for this reason, be amended by the removal of any rights of way shown on it. However, in 1989, the Court of Appeal1 decided that powers granted to surveying authorities under the Wildlife and Countryside Act 1981 included powers to correct errors made when definitive maps were produced. Later case law2 has made it clear that, when deciding applications such as this, Members should start from the presumption that the right of way exists.
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. However, evidence of some substance must be put in the balance, if it is to outweigh the initial presumption that Footpath 21 exists3.
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 at the offices of the Rights of Way Section. Members are urged to inspect these, or the originals, when considering this report.
7. The evidence provided by the Applicant
7.1 It is the Applicant's case that Footpath 21 should never have been included on the definitive map, and that it has only ever been a private track. She relies on the following evidence in support:
7.2.1 Tracing from Tithe map 1843
This tracing covers the land between `Newmans' and Willis's Cottages (see maps annexed). There is no sign of a footpath on the line of Footpath 21, but tithe maps would not necessarily record all rights of way, so whilst it does not provide evidence that Footpath 21 existed, it cannot be taken as evidence that it did not.
7.2.2 Copy Map marked `1873 Map copied at Winchester'
This is an extract from the OS 1:10,000 first edition county series map. The map shows a track on the line of Footpath 21, between Upper Row Farm, past `Newmans' to a track which is now Footpath 20, west of Willis's Cottages. It is not possible to tell from this map whether or not the path is a public right of way.
7.2.3 Copy map marked `1880 map copied at Andover'
This is the 1:2,500 edition of the same, county series, map, covering Upper Horns Farm and the northernmost 140 metres, or thereabouts, of Footpath 21.
7.2.4 Copy map marked `OS 25" sheet 7.3 (1924 Ed) copied at Winchester'
This is the fourth edition of the OS 1:2,500 county series map. It shows a track on the line of Footpath 21 running from Upper Row Farm north-northwestwards past `Newmans' to join what is now Footpath 20. Part of the track is unenclosed, part is bounded on the northwest by a fence or hedge and part (the northernmost 70 metres) is enclosed on both sides.
7.2.5 Copy map marked `Copy of 1958 map'
This is OS 1:25,000 sheet SU35, similar to that on which the current definitive map is drawn. This map shows Footpath 20, but shows Footpath 21 as a track only as far north as `Newmans'. This does not prove that Footpath 21 was not a public right of way, but it was clearly not a significant enough feature to be recorded at this scale.
7.2.6 Extracts from Vernham Dean Parish Council minutes
Extracted minutes include a list of Footpaths recorded by the Parish Council in December 1933. The Applicant states that none of the 13 paths listed is Footpath 21.
Also extracted are minutes from two meetings in 1951, the first of which shows that the Parish Council decided to call a public meeting on 9 November 1951 to deal with the `Footpaths and Rightaways' as requested by the County Council. This was part of the procedure for ascertaining rights of way prior to publication of the draft definitive map. The second entry follows that public meeting, and records that, following an examination of the map supplied by the County Council, the paths shown on it were marked by the Clerk according to the County Council's instructions. At the same time, it was resolved to write to all farmers to ask them to see that footpaths and public rights of way across their land were kept open and free from barbed wire obstructions.
7.2.7 Statement of G Herriott
Mr Herriott owns the land crossed by Footpath 21. He states that he was born and brought up at Henley Farm, next to Upper Row Farm and has spent all of his life on those farms. His father told him that No. 21 was not a footpath and that was put on the map without his knowledge or consent. The route is only used by the official parish footpath walker and has been overgrown since 1976, since when successive footpath walkers have walked along the edge of the arable field and not the route shown on the first definitive map. No one has walked the originally marked route for 26 years, and it should be abolished for this reason alone.
7.2.8 Letter from M. Herriott
Mrs Margaret Herriott lives at Henley Farm, and states that her late father-in-law, who had lived in Henley all his life, stipulated that there was no footpath between the cottage [presumed `Newmans'] and Footpath 20 and that his brother also re-iterated that fact. Her late husband farmed the field to the hedge boundary and later part of the route was given to her son, with the intention of creating a small spinney. She has no idea why the path was included on the definitive map; her family was not informed and have always disputed the fact of its existence.
7.2.9 Letter from C Müller (neé Herriott)
Mrs Müller grew up at Upper Rowe Farm and declares that the driveway to Newmans Cottage, Upper Row Farm was never more than a private access to the property `Newmans' and it ended at the cottage. It was never a public footpath and no path or footpath continued from it in any direction.
7.2.10 Letter from E. and V. Read
This says "As we were living at Newman's Cottage in 1945 there has never been a footpath going past, only the drive to the house which was private". It has not been possible to interview Mr and Mrs Read.
7.2.11 Letter from L. Strange
Mr Strange states "I have lived in Littledown all my life and worked on Henley and Upper Row Farm from 1949 for 12 years, ploughing and cultivating etc all the land, including High Field, and there was no footpath there at that time or any knowledge of one at any time. My uncle Mr Edgar Brooks lived in Newman's Cottage during my time there, with whom I had close association who never indicated in any way that a footpath existed in High Field". Littledown is immediately to the north of Horns Farm and High Field is one of the fields crossed by Footpath 21.
7.2.12 Officers have subsequently interviewed Mr Strange, who confirms that he worked on Upper Row and Henley farms for 12 years from 1949. He was a tractor driver and worked full time on the farm, variously ploughing, sowing, spraying and harvesting on the farm including, from time to time, the fields crossed by Footpaths 20 and 21. Mr Strange states that when he started working for the farm there was no track north of `Newnhams', he did not know of any public footpath there (this must carry some weight as Mr Strange was a local resident and knew of at least one other path in the area but not of any on Upper Row Farm) and never saw members of the public using it. Mr Strange states that this also applies to Footpath 20, which runs across the adjoining field and which he worked on during his time on the farms.
7.3 In summary, the Applicant argues that a number of different factors show that Footpath 21 is not a public right of way.
_ The path is not shown on the tithe map
_ The track shown on the Ordnance Survey maps was created because the Herriott family farmed at Upper Row and Willis's, and the track was created to serve the two farmsteads. There are similar tracks in the area which have not become public.
_ Unlike the track which is now Footpath 20, the track by `Newmans' is not marked on the 1924 OS map as a footpath; it is not even shown beyond `Newmans' on the 1958 map.
_ Mrs Herriott's father-in-law maintained that Footpath 21 had been put on the definitive map without his knowledge and he was told that nothing could be done about it4. The family had no reason to believe that someone would draw a public footpath on a map where none existed, and the Parish Council did not contact landowners directly.
_ The 1933 list of footpaths does not include Footpath 21.
8. Further evidence examined by officers
8.1 Inland Revenue Valuation Records under the Finance Act 1910
Maps and valuations records can sometimes assist in identifying rights of way. There are no maps available for this area, but a Field Book for Vernhams Dean parish does record that a deduction from the valuation of Upper Rowe Farm was claimed on account of the existence of public rights of way or user. This is evidence that the public did have a right of way (or less likely, of user) over Upper Rowe Farm and that this was recognised by the landowner in the early 1900s, but the location of the right, or rights, of way cannot be ascertained from this record.
8.2 Andover `Handover' Map 1929
These maps show roads that were considered to be publicly maintainable. Some of these maps also show some footpaths, but this map does not show any footpaths in Vernhams Dean.
8.3.1 Vernhams Dean Parish Council minutes
Some entries appear relevant;
8.3.2 22 August 1934
"Mr Sopp raised the question of barbed wire erected across the footpaths at Horns Farm and Henley." This entry is believed to refer to Footpath 20, which runs between Upper Horns Farm and Henley Farm, but the reference is to footpaths (plural), and so it could also apply to Footpath 21. There are no other recorded rights of way in this area running in the locality of these two farms.
8.3.3 26 November 1934
"Complaints had been received that the footpath and bridletrack at Henley and Horns Farm had been closed to the public and Mr Evans proposed and Mr Hughes seconded that the Clerk write to Miss Evans of Upper Rowe and Mr W. Cowley owner of Horns Farm asking them to kindly remove the obstructions". There are five further entries on this subject which suggest that a meeting was asked for and that the District Council was written to, but these minutes do not show how the matter was resolved.
8.4 District Council Minutes
District Council minutes for 20 December 1935 read "The District Surveyor submitted correspondence from the Vernhams Dean Parish Council with reference to a Bridle Track and it was resolved that he should inspect and report further". He duly reported on 17 January 1936 that he had "inspected the footpath leading from Upper Horns Farm to Henley and found that barbed wire fencing had been erected at various points by the respective landowners". The Committee suggested that the landowners should provide suitable stiles and gates, but appeared to take no further action. Again, this would appear to relate to Footpath 20, not Footpath 21.
8.5 The 1933 List of Rights of Way
The list contained in the Parish Council minutes and submitted by the Applicant has been examined in some detail in view of the Applicant's claim that Footpath 21 is not recorded on this list. It is the view of officers that one of the paths on the list could include Footpath 21, although it is not certain that it does. The path is question appears in the minutes as follows:
"8. From Horns Road to Rowe Cottages to Vernhams Dean".
The location of Vernhams Dean and Rowe Cottages are known, but officers have not been able to identify Horns Road with certainty. It is not unreasonable to assume that it is in the vicinity of Upper Horns Farm; roads frequently take their name from the farms they lead to and there is no other name for this stretch of road. It is also a logical destination for a path that runs from Vernhams Dean past Rowe Cottages. If this conclusion is correct, the only likely candidates for an off-road path include part of Footpath 20 and Footpath 21. The route would include some lengths of road, but that is not considered to be fatal to the argument because other path descriptions in the list include lengths of road. Nonetheless, it must be accepted that it is not inevitable that the description does include Footpath 21.
8.6 Right of Way office parish file
8.6.1 The rights of way office has a number of files containing correspondence relating to Hampshire's various parishes. Some files have correspondence dating back to 1949, when preparations were made for the first definitive map. The earliest correspondence in the Vernhams Dean parish file goes back to 1950. It shows that the County Council gave advice to the parish about how to collect rights of way information, and also a map of what were believed to be the rights of way in the parish. The map was subsequently returned to the County Council, but there is no contemporaneous correspondence from the parish in the file. (There is some later correspondence about paths to be included on the map, but this correspondence does not relate to Footpath 21).
8.6.2 The rights of way office has a map of the parish which is thought to be the map referred to in correspondence. It shows Footpath 21 by a blue line, which suggests to officers that the map might originally have been made after the Rights of Way Act 1932, and before use of the colouring system adopted by the 1949 National Parks and Access to the Countryside Act. There is nothing on the face of this map to suggest any query or intended deletion of Footpath 21.
8.6.3 Footpaths 20 and 21 are referred to a number of times in correspondence on this file, Footpath 20 mainly because of unlawful obstructions (which may have had an adverse effect on the use of Footpath 21).
8.6.4 A report by the parish representative made in 1976, pointed out that paths "...Numbers 18, 20 and 21 in particular have not been walked for some years and are very difficult to follow" and gave details of inaccuracies in the statement for this path.
8.6.5 In 1978 the report of the footpath representative states:
"Footpath No. 21
Mr Heriott, who says he has lived at Henley for forty years and his family has farmed the surrounding land for several generations, claims that Footpath No. 21, opposite Upper Row Farm, is not, and never has been, a public right of way; and that if the Definitive Map and Statement show it (as they do), they are wrong!".
8.6.6 Later, the same representative wrote
"1) Any signpost erected at Footpath No. 21 is likely to be demolished by farm trailers rounding the corner, as was the previous one erected by The Ramblers about two years ago.
2) Footpath No. 21 appears to serve no useful purpose, except possibly for walkers wanting a short 2 km round walk without going on a tarred road, as it runs parallel to Road C109 and only 200 m from it; it is also roughly parallel to Footpath No. 20 and only 350m from it
3) I see no object in further antagonising Mr Heriott by insisting on signposting a footpath which, by all appearances, is hardly ever used."
9. Analysis of the historic and documentary evidence
9.1 If the Applicant is to succeed, she has to show that Footpath 21 did not exist as a public right of way in 1955, being the relevant date of the first definitive map on which it was shown. She relies, first, on the non-existence of the path on the 1843 tithe map. However, tithe maps were not drawn up to show public rights of way and frequently do not show footpaths (because they did not have any material impact on the productivity of land), so this cannot be taken as evidence of the non-existence of the path. The public footpath may, in any event, have been dedicated after 1843. Secondly, she relies on maps of the area. The four editions of the Ordnance Survey County Series 1:2,500 maps (1873 - 1924) provide evidence that a track did in fact exist between Upper Row Farm and Footpath 20 by 1873 and remained until at least 1924. The maps suggest that it was physically capable of being a public footpath. They are not, of themselves, evidence that the track was a public right of way but, equally, these maps do not provide any evidence that it was not. The smaller scale maps submitted with the application do not add anything to the equation.
9.2 The Applicant also relies on the evidence of Mr Strange. His evidence is compelling and there is no reason to doubt his account of his time at Upper Row and Henley Farms. However his evidence does not inevitably lead to the conclusion that Footpath 21 did not exist at law. If so, one would have to conclude that Footpath 20 did not exist either. The existence of Footpath 20 is not in dispute, and there is good evidence that it was recognised as a footpath (or even bridleway), so it cannot follow that, because Mr Strange was not aware of Footpath 21, it was not a public right of way.
9.3 There is also the evidence of Mr and Mrs Read (quoted in its entirety at paragraph 7.2.10 above) and which has not been tested, and the letters from members of the Applicant's family. These are all assertions of the non-existence of a right of way over Footpath 21, although in the case of Mrs M. Herriott by someone whose knowledge dates from 1956 (i.e. after the first definitive map was prepared) and, in the case of Mrs Müller, from someone who was nine years old at the time. They show that there is a firmly held belief in the family that No. 21 is not a footpath. Mr G. Herriott makes the additional point that the route has not been used except by Parish Council footpath representatives and that, as the original marked route has not been walked for 26 years, it should be abolished. This may well be correct, and a valid point to make, but extinguishment is not the purpose of the current application.
9.4 The lack of use could, nonetheless, be because the way in question was not, in fact, a public right of way that people were in the habit of using. This lack of use might, therefore, have a bearing on the soundness of the original registration. If the path serves no purpose, and is so rarely used, one has to question how it became a right of way in the first place. The Heriotts' assertion that the track was only ever a private farm track may well be correct. However, and it is a big `however', it is still necessary for the Applicant to prove that a mistake was made when the definitive map was prepared. These statements do not address that issue.
9.5 Two pieces of evidence make it more difficult to prove that a mistake was made. First, the 1910 Finance Act records show that Mr J. Herriott, the owner of Upper Row Farm, accepted that there were `public rights of way or user' on the farm. We do not know exactly what, or where, it (or they) was (or were): the deduction could have been made in respect of Footpath 21 and/or other routes on the holding. Secondly, the Parish Council's 1933 list of `bridle track and footpaths' is equally ambiguous: officers do not accept that the list could not have included Footpath 21. The exact route of the path from Horns Road past Vernhams Row to Vernhams Dean remains to be proved but, unless it can be shown that it could not have included Footpath 21, it does not add to the case that Footpath 21 was not a public right of way. So long as there is evidence of a right of way in the vicinity of Footpath 21, but no evidence of its precise location, there remains the possibility that the public right of way in question was Footpath 21.
9.6 It is fair to say that the entries in the 1934 Parish Council minutes, about obstructions to Footpath 20 (from Upper Horns Farm to Henley), reduce the likelihood that references to unspecified rights of way at Upper Row Farm relate to Footpath 21, but they do not preclude there being more than one right of way in existence at that time. The minutes show that Footpath 20 existed (and, interestingly, seems to have been perceived by some as a bridleway), but they do not show that Footpath 21 did not.
9.7 The early draft map of public rights of way (see paragraph 8.3.2 above) cannot be dated with certainty but is likely to have been very early in the 1949 Act procedures, if not before. There is no hint in the parish files that the line was incorrectly drawn or, that another route was intended. The parish minutes referred to by the Applicant lead to the conclusion that the 1949 Act procedures were correctly carried out by the Parish Council.
9.8 The application claims that the Parish Council is at fault because it failed to communicate with individual farmers about the definitive map, and this is presumably where the Applicant believes the mistake was made. Parish Councils were not, in fact, required to notify each and every landowner in person. They were required to advertise and hold public meetings and make draft and provisional maps available for inspection. The Vernhams Dean Parish Council appears to have advertised, and held, public meetings as required.
10. Comments from the Applicant and Landowner
A draft of this report was given to each of the landowners and the Applicant to afford them the opportunity of submitting further evidence or making further comments. No changes or additions have been requested.
11. Conclusions
There is not sufficient evidence of a mistake having been made when the first definitive map was prepared to overturn the presumption that Footpath 21 is a public right of way. The apparent lack of use of the path since 1955 is a factor which may lead to the conclusion that the path is not needed for public use and might may be a factor which supports extinguishment, but that is not the subject of this application.
RECOMMENDATION
The application to remove Vernhams Dean Footpath 21 from the definitive map be refused.
Section 100D - Local Government Act 1972 - background papers
The following documents disclose facts or matters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of this report.
NB The list excludes (1) published works and (2) documents which disclose exempt or confidential information as defined in the Act.
File CR743 - Rights of Way Office, Mottisfont Court, Winchester, including copies of some of the documents referred to above the originals of which can be inspected in Hampshire Record Office.
01.12.2006