21

Hampshire County Council

Regulatory Committee Item 11

7 February 2007

Application for a Map Modification Order to record a footpath between Ashford Close and the Disused Railway, Fordingbridge.

Report of the Director of Recreation and Heritage

Contact: Emma Noyce, extn. 5319 email: [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 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 in the map and statement subsists or is reasonably alleged to subsist over land in the area to which that map relates, being a right of way to which this part applies;

HIGHWAYS ACT 1980

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

(1) 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' 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 report concerns an application for the addition to the definitive map of a footpath from Ashford Close to a section of disused railway line in Fordingbridge.

The claim does not satisfy the requirements of Section 31 of the Highways Act 1980, and there is insufficient evidence with which to infer a dedication at common law. It is therefore recommended that this application be refused.

2. The Applicant and the Application

2.1 The Applicant is "Mrs Carol Jugg and Residents of Ashford Close".

2.2 17 user forms and a number of photographs of the route have been submitted in support of this application.

3. The Landowners

3.1 The freehold to the land is owned by the Clough Trustees (formerly Packham Estate). In 1987 the land was leased for a period of 999 years to Shurfield Limited. In 1994 this lease was transferred to Mr Burton and in 2005 the leasehold title was transferred to Fordingbridge Developments Limited. For most of this period the land has been sub-let.

4. The claimed route

4.1 The path which was identified in the application is illustrated on Appendix 1 as route A-B-D, and leads from the end of the tarmac'ed part of Ashford Close to a disused railway line, which is currently used as a footpath.

4.2 The disused railway line is not currently recorded as a public right of way. However, New Forest District Council are in the process of acquiring the railway land as public open space, and have indicated that once the land transfer is complete, they would be willing to negotiate the formal dedication of a right of way along the cutting.

4.3 Through the course of the investigation it has become apparent that the path the claimed route has followed has changed over time (shown on Appendix 1 as A-B-D, A-B-C and A-C). Each path will need to be considered for the purposes of this investigation. Throughout this report, the term `claimed route' will be used in its broadest sense, to describe any direct route between Ashford Close and the disused railway.

4.4 The claimed route is not recorded on the County's Definitive Map of Public Rights of Way.

4.5 In 1989 a claim was made to record the disused railway line as a public right of way. This claim was refused by the Rights of Way sub-Committee in 1990. The claim did not specifically include the route which is the subject of the current application, but a number of people who gave evidence in support of the 1989 claim stated that they accessed the railway line from Ashford Close.

5. The issue to be decided

5.1 The issue to be decided by this Committee is whether or not the public has acquired a right to use the claimed route as a footpath, or any other class of right of way, either through express or implied dedication.

6 Documentary evidence

6.1 Officers have not discovered any maps, plans or documents which illustrate the claimed route.

6.2 Aerial photographs

6.2.1 An aerial photograph taken in 2005, and available digitally through Hampshire County Council's Geographic Information System, shows what appears to be a worn path following route A-B. What looks like another worn route follows the approximate course of route A-C. The detail of the mapping is such that features such as fences and gates are not visible.

6.2.2 An earlier aerial photograph, taken in 1999/2000, and similarly available digitally, has also been examined. The resolution of this survey is much poorer, and detail is difficult to decipher. However, a feature which may be a worn path follows the alignment of route A-B, and possibly continues to C. No features are visible on the direct route between A and C.

6.3 Other Photographs

A number of colour photographs were provided with the application. Each of these photographs is dated May 2002. Three of the photographs show a very well worn path along route A-B-D, separated from the main field by a three stranded post and wire fence. Three photographs show a chestnut paling fence stretched across a well worn path just to the east of point A. The photographs suggest that this fence was secured in place with a post at either end, and there is what appears to be a newly worn path around the end of one of the posts, through the gap between the fence and the hedge.

6.4 1989 Site Report

Within the files relating to the 1989 claim is a sheet of paper with notes written in the handwriting of a Rights of Way Officer. The notes state:

"4^th Jan 1990

Inspected the route from Ashford Close. To use this must cross barbed wire fence at corner of NE house in Close and also cross railway fence behind Close. The railway fence is almost intact and 1 new strand of barbed wire stretched across - obvious well worn path via this route."

6.5 1995 Site Report

On 7^th June 1995 another Rights of Way Officer visited the site, and wrote the following note:

"From point [C] there is a well worn footpath diverting away left, down the embankment to follow the field edge to Ashford Close. This is so well used that the farmer has accepted it and enclosed it to a reasonable width with a plain wire fence. There are even polite little notices asking people not to enter the fields please!"

7 Modern user evidence

7.1 13 user evidence forms were submitted in 2002 in support of the current claim. On 5^th October 2006 Mrs Jugg was advised that as the 1989 claim had failed, partly because of the low level of use, it was particularly important to provide as many signed evidence forms as possible. In response to this letter, a further 4 evidence forms have been received. This user evidence is summarised in Appendix 2 and Appendix 3. (The graph included in Appendix 2 is based on evidence from user forms. Though there is evidence that some of the users continued to use the claimed route after 2002, signed statements to this effect have not been received, and therefore, this evidence has not been included on the graph.

7.2 Each of the user forms compiled in 2002 is accompanied by a signed map. Each map is of a scale of approximately 1:25000, and the route used is highlighted in pink. The route shown on each map is identical. The scale of mapping means the exact route depicted is unclear, it is thought to correspond to route A-B-D on Appendix 1.

7.3 Four families have been interviewed. Summaries of their statements are recorded below:

7.3.1 Mr and Mrs Baverstock

Mr and Mrs Baverstock moved to Ashford Close in 1983, and began using the path then. Mrs Baverstock used the path every day whilst Mr Baverstock used the path mainly at weekends. They continued using the route until 2006. The railway boundary fence was all but gone by the time they started using the path - they know this because Mrs Baverstock tripped over one remaining wire at ground level once. Originally Mr and Mrs Baverstock could take whichever route they wanted - if it was dry they would go straight across the field, and if wet they would stick to the field edge. At some point a fence was erected around the field edge to separate walkers from cattle. They used the new path without any problems. In 2002 a farmer put up a fence at the end of Ashford Close. This fence could easily be pushed aside when necessary. At the end of 2005 or the beginning of 2006 some men arrived and began ripping out the field edge fence and piling it up at the entrance to Ashford Close to block access to the path. A sign saying "This is private land" also went up. On the same day they got a letter from New Forest District Council stating that path was not a public right of way. Mr and Mrs Baverstock suggest that 30 to 40 people use the claimed route.

7.3.2 Mrs Crocker

Mr and Mrs Crocker moved to Ashford Close in 1977. A worn path to the railway was present then. Mr Crocker used the path 2 or 3 times a week whilst Mrs Crocker used the path 2 or 3 times a month. They used the path more frequently in summer than in winter. Mrs Crocker always used path A-B-C. She never saw any signs or notices stating that she shouldn't use it. Mrs Crocker remembers a field edge fence going up but she is not sure when this was. She remembers a fence across the entrance to Ashford Close in 2002 - she could easily get through it as one end was unsecured. She states that the claimed path has always been well used.

7.3.3 Mr and Mrs Jugg

Mr and Mrs Jugg moved to Ashford Close in 1987. Originally they used the path weekly, but since 1999 they have owned dogs, and have used the path twice a day. They began by using a track diagonally across the field, accessing the railway cutting at the brook (point C) - this was very boggy and locals often put rubble in the ditch to aid the crossing.

In approximately 1992 a farmer erected a field edge fence to prevent his cattle from escaping. Mr and Mrs Jugg didn't have any cause for complaint - they just started using new route thinking the farmer had accepted the new right of way. Sometimes Mr and Mrs Jugg cut back vegetation and brambles on the new path, but the stretch parallel to the railway track (B-C) became overgrown, and people began entering railway cutting at a point closer to Ashford Close (B-D).

In 2002 new owners of the field put in for planning permission to develop the land. At the same time the farmer put up a new fence to prevent cattle from straying - the fence was only present for a short time before it blew down. This combination of events made Mr and Mrs Jugg realise that the claimed route was not public, and might be lost, so they claimed it as a right of way.

In February 2006 contractors ripped out the field edge fence and piled up rubbish to block the Ashford Road entrance to the claimed path. They recall that a sign saying "Private Land - Keep Out" also went up. This sign soon disappeared and a gap through the mound of earth was established. They state that a large number of people use the path - not just residents of Ashford Close, and they believe it to be a safe route to school. Until recently there was never any suggestion that the path was private.

7.3.4 Mr Morely

Mr Morely used the path every day, in summer and winter. His house was built in the 1960s, and he moved in in 1975. Originally he could walk where he wanted on the field at the end of the road - he usually took a direct route diagonally across the field. In about 1992 a farmer put up a fence around the field - it meant that Mr Morely could no longer go across the field and he had to stick to the field edge. Mr Morely states that this situation stayed the same for many years with no problems. However, earlier this year he observed workmen who came and ripped up the field edge fence and piled it up in the entrance to Ashford Close. "Private-Keep Out" notices also went up. Mr Morely comments that the path is now open again and people still use it. It is not just used by residents of Ashford Close - Mr Morely sees people who park up in the car park next door to his house and take their dogs out. He also states that children use the path on their way to school.

7.5 1989 user evidence

7.5.1 The evidence provided in support of the 1989 claim is summarised in Appendix 4. Information relevant to this application is emphasised in bold.

7.5.2 Of the 15 people who provided evidence of use in 1989, six mention using a path from the railway to Ashford Close. Though the exact location of this route is not known, it is thought that the claimed route appears to access the railway at point B. Various people refer to fences and five people specifically refer to fences across the route to Ashford Close.

8 Landowner evidence

8.1 Mr Michael Waite represents the Clough Trustees. In a letter of the 29 November 2006, Mr Waite states that it has never been his "clients intention to allow the creation of a public footpath across any part of the farmland from Ashford Close". Mr Waite further states:

"Our clients own the Farmland freehold and in 1987 granted a long lease, for a term of 999 years, to Shurfield Limited. The Lease includes clauses specifically requiring the Lessee to negotiate terms for development of the Farmland so he also would not wish to allow creation of any footpaths in case they might interfere with this requirement.

We understand from Mr Langton of Shurfield that when his company owned the Farmland he took steps to stop people trespassing across it from the Ashford Close hammerhead. We further understand that when the lease was assigned to Mr Burton, in 1994, Mr Langton advised Mr Burton from time to time and continued to take steps to stop the trespassing,.

We had a meeting with Mr Burton, his solicitor and a colleague in July 1997 when this trespassing was discussed and Mr Burton confirmed he would take action to stop it and would erect a suitable notice at the hammerhead indicating "No Public Access". On this occasion and previously when we were inspecting this part of the Farmland there was not to our knowledge any kind of gate through the wire fence on the Farmland boundary (such a fence being distinct from any internal stock fence which may have been erected)."

Officers have not had sight of the lease to which Mr Langton refers.

8.2 Mr Robert Kelsey of Fordingbridge Developments Limited (current leasehold owner) has been informed of the application. In an e-mail of 8 December 2006, Mr Kelsey states:

"I have been aware of the site since the early nineties. During this time I know the owners have had various issues with protection of the boundaries. The residents of Ashford Close that back onto the site have gradually encroached on the land and as the current owners we are assessing what action we will take against them for this.

I think the site suffers from the fact that Ashford Close turns towards the fields but then ends. It is clear to see that at some point someone thought that the road would extend onto our land. However the site has always been fenced off and as I said to you on the phone the farmer that was allowed to use the land for grazing put a fence up inside the boundary after several earlier fences had been vandalised and moved. It was simply easier to make a secure field within the land as there was a high risk on animals getting out if he tried to maintain the fence at the correct boundary edge.

I know that since we have owned the site we have suffered considerable vandalism and criminal damage to our fences. We have purchased more signs and erected them at the site boundary opposite Ashford Close. The signs have been repeatedly broken down. It seems obvious to me that the same people who have approached you to try to obtain a right of way of public footpath must be responsible for the damage as all the signs and fences we have put up have been removed and you can clearly see dog tracks on the land.

It is quite clear that no one that has ever owned or been responsible for the site has ever consented to the public use of this part of the land. If you think about it logically there would be no commercial reason to do so and as the site has always been owned by commercial business people I sincerely doubt that any of them would have given any part of the land away."

8.3 Mr Langton, of Shurfield Estates Ltd (a former leasehold owner), has been interviewed and has provided a signed statement, which is summarised below:

Mr Langton was a co-owner of Shurfield Ltd, who took on a 999 year lease for the land of the claimed route in 1987. Mr Langton states that before he took on the lease the land had been held in trust for a couple of years and had fallen into disrepair. Because of this, the residents of Ashford Close had become used to walking where they pleased. Mr Langton states that they had problems with people using the land from day one. He states they immediately put up fences stopping access to the land and erected "Private Land - Keep Off" signs at the Ashford Close end. He states that the fences and signs were almost immediately torn down and removed. Mr Langton states that he regularly replaced the signs and fencing, and they were always removed. He believes he may still have some spare signs in his garage.

Mr Langton states that in approximately 1990 the land was sub-let to a farmer, who farmed the land until very recently. Mr Langton stated the farmer had immense trouble securing the land, and because the fences at the end of Ashford Close were removed, the farmer's cattle kept escaping. Mr Langton states that on one occasion he went out to visit the land and noticed that a new fence had been erected within the perimeter of the field. The new fence did not stop the public from getting to the disused railway line. Mr Langton did not object to the fence as he understood that it was the only sensible thing that the farmer could do to protect his cattle.

Shurfield Ltd passed on the lease in 1994, but Mr Langton continued to advise on the land from time to time. He states that the new lessee, Mr Burton was also opposed to public access to the land.

Mr Langton states that since his involvement in the land began the freeholders have always been totally opposed to the use of the land as a public right of way, and that Mr Waite, on behalf of the Clough Trustees, has always recommended that public access be resisted.

8.3 The sub-tenant (he has not given permission for his name to appear in this report), who farmed the land as a tenant of both Shurfield Limited and Mr Burton, has been interviewed and provided a signed statement which has been summarised below:

The sub-tenant took on the land in approximately 1990. For a couple of years before he took over the land hadn't been looked after, and therefore, people had become accustomed to walking where they pleased. He states that before he arrived Mr Langton had tried to put up fences to stop people getting onto the land.

The sub-tenant states that when he arrived he tried putting up fences at the end of Ashford Close. He also secured the boundary to the disused railway. He states that the fences were always cut down and removed. He also put up signs saying something to the effect of "Private Land - no trespassing"; these signs were also removed. The sub-tenant states that the removal of the fences became a big problem as his cattle kept escaping; he was often called by the police to tell him that his cattle had strayed. He states that in the end the only option for him was to put up a fence within the boundary of the field, which left an access gap around the edge. He did not do this with the intention of dedicating a public right of way. He states that he put up two sets of signs - one stating "Private - no public right of way" and the other warning people about the electric fence. He states that the private signs were removed almost immediately, but the warning signs remained a little longer.

The sub-tenant states that when he erected the field edge fence he predicted that over time it would become overgrown with vegetation, and that eventually people would stop using the land. He states that he was proved correct as eventually the path adjacent to the railway did become overgrown and people slowly stopped using it.

This individual confirms that in 2002 he erected a chestnut paling fence at the end of Ashford Close. He secured it with piles at either end. He states that he did not deliberately leave one end unsecured, but after a pile has been removed once, it becomes loosened, and therefore people may have got the impression that the fence was left unsecured, even if it was not.

He states that Mr Waite and Mr Langton have been battling to stop people trespassing on this land for as long as he has been involved.

9. Consultation

The following persons and bodies have been consulted about the application, namely the County Council (Environment and Highways), Councillor Kathy Heron (the local Member), Councillor Mike Shand (the District Councillor) New Forest District Council, Fordingbridge Town Council, Ringwood and Fordingbridge Footpath Society, Ramblers Association, Open Spaces Society and the Cyclists Touring Club. The following responses have been received:

9.1 Councillor Mike Shand -

"You will have on record my involvement to get the alignment from Downwood Close to Marl Lane established as a R of W when I was county councillor a few years ago...

 

...I can remember that there was a beaten track (footpath) that was used by residents of Ashford Close at that time, so that is well before 2002, and at some time the tenant farmer erected a very smart electrified fence stepped well into the field, for the benefit of walkers, so someone at that time was quite prepared to provide a Permissive R of W.  Whether wires were cut or fences broken I am not able to state, but if it is of interest there was always youth activity near the Marl Lane bridge which had the local youths breaking the fence line onto Marl Lane and in other locations.  It is quite possible that as this fence was rarely maintained, walkers would take advantage of the break, it was certainly extensively used as could be seen from the worn surface.  There was never any attempt to extend the footpath beyond Downwood Close as the alignment was a flooded cutting at that point.

 

The resistance to a R of W presumably came about when the previous owners were refused access from either Downwood Close or Ashford Close by an NFDC planning committee decision to uphold current policy and to keep the open space between Fordingbridge and Ashford...

 

...In conclusion I would testify that since I have been 'on the scene' ie 1991, there has been regular access made along the ORA from Downwood Close, and from Ashford Close, but whether there were other than the residents of Ashford Close using it, I cannot say.

 

If you have any leeway to grant this as a R of W without contesting the issue in a court of law, then I feel it would be in the public interest to do so as it is a logical extension of the public ownership of the ORA." 

9.2 Fordingbridge Town Council -

"We would fully support the claim of the 13 users who have used this path for the last 25 years or more and in the light of encouraging more people to take Healthy Walks we hope it can be established as a public footpath.

The footpath is well known to us a Parish and now Town Council and it was a great loss to all concerned when the footpath was closed off for use."

9.3 Ringwood and Fordingbridge Footpath Society -

"...I regret that I have no personal knowledge [of the claimed route] nor has enquiry of my Society's members revealed that we could provide any user evidence."

10 Summary of the evidence

10.1 Ashford Close was built in the later part of the 1960s. There is no evidence of a path in the location of the claimed route before the construction of Ashford Close.

10.2 Notes in the 1989 file suggest that the Fordingbridge Railway line was closed in 1964 and the railway land was sold in 1972. Evidence from the 1989 claim suggests that originally there were fences running along either side of the railway cutting, but over the years these fences fell into disrepair, and by 1989 people could climb or scramble through them.

10.3 In 1987 the land of the claimed route was let on a long term lease. Soon after this, the land was sub-let to a tenant farmer. Though the lease to the land changed hands twice, the sub-tenant remained, and farmed the land until 2005. Two individuals state that as the land had been held in trust for a couple of years prior to 1987 it had been somewhat neglected, and during this short period, residents of Ashford Close had been able to gain access to the land without challenge.

10.4 There is good evidence that by 1990 there was a path between Ashford Close and the disused railway. Though the exact location of this path is unknown, current user evidence would suggest that, in the late 1980s and early 1990s the railway line was accessed via point C. There is evidence that by the 4^th Jan 1990 a new piece of barbed wire had been strung across this path where it entered the railway cutting, presumably at point C. This barbed wire may well have been erected by the sub-tenant of the land, who has stated that he made various attempts to secure the land, including erecting barbed wire along the railway fence.

10.5 Most of the users interviewed in 2006 state that the original path to the railway took a direct route across the field (A-C), but in 1991 or 1992 a farmer put up a fence which restricted use to the field edge (A-B-C). The presence of this fence was noted by a Rights of Way Officer who visited this site in June 1995, and remarked that the path from Ashford Close to the railway was apparently very well used, and that by erecting the fence the farmer had presumably accepted this use. However, the farmer who erected this fence states that he had made a number of efforts to secure the land by other means, which had failed. He claims that the fence was erected as a `last-resort'; the only practical way he could secure the land and protect his livestock. He states that signs were attached to the field edge fence stating that it was not a public right of way, but that these signs were removed. There is no evidence that the landowners gave permission for this fence to be erected. It is understood that they allowed it to remain as they knew the difficulties the sub-tenant was having securing the land, and felt they could not interfere with their tenant's quiet enjoyment of the land.

10.6 All those who have been interviewed state that from the date the field edge fence was erected until 2002 they used the path freely and without challenge. No users recall the signs that the farmer states he erected.

10.7 Although some of the residents of Ashford Close took steps to cut back vegetation on A-B-C, encroaching vegetation on section B-C meant that people began entering the railway cutting via B-D and not point C. It is not known exactly when stretch B-C fell out of use. The June 1995 site report states that the field-edge path was enclosed to "a reasonable width", suggesting that it was not blocked by vegetation. However, the current application, made in April 2002 claims route A-B-D, and not A-B-C, suggesting that by 2002, stretch B-C had fallen out of use.

10.8 In 2002 a chestnut paling fence was stretched across the Ashford Close entrance to the claimed path near to point A. This fence, coupled with suggestions that the land might be developed, led the residents of Ashford Close to fear that the unrecorded path might be lost through development, and therefore, prompted the current claim.

10.9 Use of A-B-D continued until early 2006. Residents of Ashford Close state that in the early part of this year contractors arrived on site and removed the east-west stretch of the field edge fence (A-B). This fence, and associated debris, was piled up in such a way as to block the Ashford Close entrance to the claimed path at point A. Users state that a gap was made through this pile of debris fairly soon after it appeared, and use of the path resumed.

10.10 To summarise the user evidence, before 1991/2 the majority of people interviewed appear to have used a direct route straight across the field (A-C). However, before 1991/2 there was also some use of path A-B-C (especially in wet weather). Between 1991/2 and the early part of 2006 users were channelled around the field edge (route A-B-C). However, at some point, presumably between 1995 and 2002, vegetation grew over section B-C of this route, and people began accessing the railway via B-D.

10.11 The landowners state that they have always resisted public access over this field, and have recommended their tenants to do likewise. Two of their tenants and the sub-tenant have confirmed this statement.

11 Analysis of the evidence

11.1 Highways Act 1980

11.1.1 Path A-C

Use of this route ceased when the field edge fence was erected in 1991 or 1992, so the twenty year period of use by the public required by Section 31 of the Highways Act 1980 would begin in 1971 or 1972 (the fact that the dates cannot be pinned down more securely is a moot point). User evidence suggests that the earliest use of any path over the land was in 1975 (Mr Morely). Therefore, there is no evidence that path A-C has been used by the public for a full twenty year period, and the requirements of Section 31 are not satisfied.

11.1.2 Path A-B-C

The main use of this route took place after the field edge fence was erected in 1991/2, and ceased gradually at some point between 1995 and 2002 as vegetation began obstructing part B-C of the route. Section 31 of the Highways Act 1980 requires evidence of use of the route by the public for every year of a twenty year period prior to a `bringing into question'. In this case the use of the path was clearly brought into question in 2002 (when the chestnut paling fence was erected near to point A, and the current application was made). Given the gradual decline in use after 1995 and before 2002, and the low level of use before 1991/2, it is not considered that this path has been used by the public for a full twenty year period prior to 2002, and the requirements of Section 31 are therefore not satisfied.

11.1.3 Path A-B-D

The main use of this path is thought to have started at some point after 1995 (when vegetation growth meant use of path A-B-C declined). For the purposes of Section 31 Highways Act 1980, the use of this path was brought into question in 2002 (when the chestnut paling fence was erected near to point A, and the current application was made), and the twenty year period relevant to the claim dates from 1982 to 2002. Notwithstanding the evidence provided on user forms, officers have not established how many people, if any, used section B-D between 1982 and 1995. The evidence provided in support of the application is therefore not sufficient to satisfy the requirement that this path has been used by the public at large for a full twenty year period prior to the bringing into question in 2002, and the requirements of Section 31 are therefore not satisfied.

11.1.4 As no route has been used for a full twenty year period by the public, it has not been necessary to consider whether or not the other tests of Section 31 are met.

11.2 Common law

11.2.1 In order to infer a dedication at common law there must be positive evidence of the landowner's intention to dedicate. A lessee cannot dedicate a right of way over land without agreement of the freeholder, however long the term of the lease.

11.2.2 In this case Mr Waite states that the Clough Trustees never intended to dedicate this route as a public right of way. Mr Waite states that, on behalf of his clients, he has always resisted public access to this land, and recommended the tenants of the land do likewise. Two lessees of the land confirm Mr Waite's evidence.

11.2.3 In approximately 1991/2 a fence was erected inside the boundary of the land, which appeared to the users of the path to be a tacit acceptance of a right of way leading from Ashford Close. However, this fence was erected by a sub-tenant of the land, without the landowner's consent or permission. This fence was erected when other methods of securing the land had failed. It is not considered to be evidence that the landowners intended to dedicate the path as a public right of way.

11.2.4 Evidence of use may, but does necessarily, act as evidence of an intention to dedicate. In this case the number of users of the path is considered to be too low to act as evidence of an intention to dedicate, particularly given the landowners' stated views and actions.

11.2.5 It is therefore considered that there insufficient evidence from which to draw an inference of dedication at common law.

12. Comments from the Applicant and the Landowner

A draft of this report was given to the landowner and the applicant to afford them the opportunity of submitting further evidence or making further comment. The following comments have been received:

12.1 Mr and Mrs Jugg

Having read the statement of the various landowners, representatives and tenants I felt that the implications of vandalism to fences and disregard for the welfare of animals grazing on the land was unjust and untrue. The average age of the residents of Ashford Close is of pensionable age. The fact that the police contacted the tenant in the past concerning a stray animal was probably due to a responsible resident contacting them in the first instance. The land has been neglected, tree management and upkeep of the land has been nil for many years. This is a beautiful field in the middle of many housing estates. The landowners will, I am sure, wish to develop it in the near future. A footpath would at least enable access for recreation to the cycle path at the disused railway line and also provide an important segregation should the land be developed. The landowner, not a local resident, would not be losing a vast expanse of land, it would be of no inconvenience to any future development to allow the footpath to become designated but would allow respectable residents of Fordingbridge to continue to use the path as they have done for many years.

12.2 Mr Michael Waite (on behalf of the Clough Trustees)

No comment to make on the report.

12.3 Mr Robert Kelsey (Fordingbridge Developments Ltd)

No comment to make on the report.

13. Conclusions

The application does not meet the requirements of s31 Highways Act 1980, and there is no evidence with which to infer a common law dedication.

RECOMMENDATION

That the application for a Map Modification Order 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 CR744 - Rights of Way Office, Mottisfont Court, Winchester