21

Hampshire County Council

Regulatory Committee Item 12

7 February 2007

Application for a Map Modification Order for the addition of a bridleway from Skew Road, Fareham to the County Boundary.

Report of the Director of Recreation and Heritage

Contact: Emma Noyce, extn. 5319 email: [email protected]

RELEVANT LEGISLATION:

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 bridleway across Portsdown Hill, Fareham. The full application refers to route A-B-C-D-E (shown in Appendix 1). Hampshire County Council is the Highway Authority for section A-B of this route, and Portsmouth City Council the Authority for B-C-D-E. This report considers the evidence relevant to route A-B only.

It is clear that many riders have used this part of the Hill. However, there is no evidence that they have used one specific path over and above any other path on this part of the Hill. Furthermore, officers do not consider that the continuation of the claimed route (within the Portsmouth City boundary) carries public rights, and therefore it is not considered that A-B is capable of being recorded as a highway as it does not lead to another highway or legitimate place of public resort. It is therefore recommended that the claim be refused.

2. The claimed route

2.1 The claimed route crosses Portsdown Hill from Skew Road, Fareham, to London Road (A3) in Portsmouth, and covers a distance of approximately five kilometres.

2.2 Hampshire County Council is investigating the application for the whole claimed route (A-B-C-D-E), and is currently advising Portsmouth City Council on the merits of the claim where it relates to route B-C-D-E. This report considers that part of the claimed route for which Hampshire County Council is the Highway Authority (the section of the claimed route running from Skew Road in the west to the Portsmouth City Boundary in the east). This section of the route is referred to as A-B.

2.3 Route A-B is not recorded on the County's Definitive Map of Public Rights of Way.

2.4 Route A-B lies on an area of land known as Portchester Common, also known by riders as "the Gypsies" and "the Gallops". This land is shaded green on Appendix 2.

3. The Applicant and the Application

3.1 The Applicant is Mrs Carol Shoopman, on behalf of the British Horse Society. The application was made on the 25^th September 2000. Since making the claim, Mrs Shoopman has moved away from Hampshire, and has asked Ms Sue Montila to take responsibility for the claim in her absence.

3.2 60 user forms, 4 signed maps, a number of photographs and a video of the route have been submitted with this application.

3.3 A report into this application was originally submitted for consideration by the Regulatory Committee on the 30^th November 2005. This report was subsequently withdrawn to enable the applicant more time to provide evidence and comment on the report. The report was originally deferred to the 4^th January, and then the 13^th February 2006. New evidence was subsequently provided by the applicant. Though amended and updated, the report now presented to the Regulatory Committee is similar in substance, and comes to the same conclusions, as the earlier version.

4. The Landowner

4.1 The freehold of A-B is owned by Fareham Borough Council, which has been informed of the application.

5. The issue to be decided

5.1 Members are asked to determine this application, made under section 53(5) and Schedule 14 of the Wildlife and Countryside Act 1981. However, Members decision need not be limited to the application. If they believe that there is evidence to support a right of way other than that claimed, they can, and should, resolve to make an Order to record such rights.

5.2 The originals of the documents, user evidence forms and statements referred to in this report are available for inspection in the Rights of Way Office, and members are welcome to inspect them when considering the report.

6. Consultation

The following persons and bodies have been consulted about the application, namely the Hampshire County Council (Environment and Highways), Councillor Roger Price (the Local Member), Fareham Borough Council, English Nature, LARA, Trail Riders Fellowship, British Horse Society, British Driving Society, Byways and Bridleways Trust, Ramblers Association, Open Spaces Society, the Cyclists Touring Club and the Rights of Way Southern Area Officer. The following responses have been received:

6.1 Hampshire County Council (Highways) - no comment.

6.2 Hampshire County Council (Environment) - recommends that English Nature be informed as the claimed route falls entirely within a Site of Special Scientific Interest (SSSI).

6.3 Councillor Roger Price - no comment.

6.4 Fareham Borough Council - has concerns regarding the impact of horse-riding on the Portsdown Hill SSSI. Has sought legal advice on how SSSI status affects land to which Section 193 of the Law and Property Act 1925 applies. This is discussed further in paragraph 9.1.

6.5 English Nature - has strong concerns about the impact of a bridleway on Portsdown Hill SSSI.

6.6 LARA - supports the application. Comments that if the route is added to the definitive map, it may discourage riding randomly across the hillside.

6.7 British Horse Society - supports the application and comments that the land has always been used for the exercise of horses.

7 Historic and documentary evidence

7.1 Ordnance Survey Mapping

7.1.1 The Ordnance Survey County Series map, c1930/1940, is the first map that officers have discovered which illustrates route A-B in part. The majority of route A-B is shown in pecked lines (indicating an unenclosed route) and annotated as `High Tor'. The eastern end of route A-B is not illustrated.

7.1.2 The Ordnance Survey National Grid map, published in 1970 is the first map to show the claimed route in its entirety. However, this map shows a number of routes over the green land, and indicates that the path that the claimed route follows itself divides into a number of different paths at the eastern end.

7.2 Aerial Photographs

7.2.1 A number of aerial photographs of Portsdown Hill have been inspected. Of these photographs, the most recent (taken in 2005/6) has been included as Appendix 3. From the photographs inspected it is clear that the green land is covered with a large number of worn trackways.

7.3 Commons Registration and Public Access

7.3.1 On 14^th August 1969 Portchester Wards Labour Party applied for the land coloured green on Appendix 2 to be registered as a common, under the Commons Registration Act 1965. This application was not opposed and the registration for this land became final on 1^st August 1972.

7.3.2 Between 1^st August 1972 and 1^st April 1974 the registered common fell within the boundaries of Fareham Urban District Council. Section 193 of the Law of Property Act 1925 applies to any common which was (immediately before 1^st April 1974) partly or wholly within a borough or urban district. Section 193 gives the public a right of access to such a common for "air and exercise". Case Law (R v Secretary of State for the Environment, ex parte Billson, 1998) states that air and exercise includes the right to ride horses on the land.

7.3.3 Therefore, since at least 1^st April 1974, horse-riders have had a lawful right to use the land coloured green (including route A-B) for air and exercise.

8. Modern user evidence

8.1 60 witness forms, providing evidence on behalf of 61 users have been submitted in support of the application. Four user maps (not accompanied by forms) have also been provided. A number of photographs and a video showing the claimed route have also been submitted.

8.2 The majority of user forms were completed in 1994. The earliest evidenced use of the green land was in 1942. There is evidence of the use of the green land in every year between 1942 and 2006. A summary of the general use of the green land is given in Appendix 4. A summary of the user evidence forms is provided in Appendix 5.

8.3 The claimed route, in its entirety, covers a distance of approximately 5 kilometres. As the length of the claimed route is so great, it has been difficult for users to mark on a map the route(s) they used with any degree of accuracy, and difficult for officers to assess whether or not the route(s) illustrated on the user maps correspond to that claimed. That said, the user evidence can be broken down as follows:

8.4 The video accompanying the application, recorded in November 1999, shows a group of three riders walking along Portsdown Hill. They are navigating their way following a map of the claimed route, and although for the most part they follow a clear and defined route, at a number of points they appear confused about the route they are walking and how it relates to that claimed. The route taken by the riders through the green land is clearly not A-B. They appear to follow a path along the northern boundary of the green land, and drop down to a lower path (still north of A-B) half way along. One of the riders can clearly be heard to say "we used to ride along here". At a point near to B there is clearly some confusion about the location of the claimed route; the recording stops and restarts when the riders get back on the claimed track, past point B.

8.5 Six witnesses have been interviewed and have provided signed statements. Relevant extracts of their statements are included below:

8.5.1 Mr Ronald Armstrong (statement also signed and confirmed by Mr Armstrong's daughter, Ms Louisa Armstrong)

Mr Armstrong began riding on Portsdown Hill in 1954, initially with friends, and later with his daughter. In 1972 he opened a riding school, and took his pupils with him Generally he would be accompanied by five or six riders at the weekend, although sometimes this number rose to nine. During the week he was accompanied by one or two riders. He rode on Portsdown Hill most weekends, and four or five times during the week. If Mr Armstrong could not go out, his daughter would go instead. They tended to take different routes over the hill for variety. Neither Mr Armstrong nor his daughter used any particular path in preference to the others. Mr Armstrong states that the Hill was riddled with paths, some of which were only usable at certain times of year due to vegetation growth. Mr Armstrong believes that, possibly at the end of 1993, there were either notices on site, or a notice in the newspaper warning that the Hill would be fenced off. He then recalls that a fence was erected around the land at the beginning of 1994, which enabled access for pedestrians, but stopped horse-riders using the northern section of the green land. Mr Armstrong states that before the end of 1993 horse-riders had never been stopped or told not to use the Hill.

8.5.2 Mrs Collingwood

Mrs Collingwood began riding on the Hill in 1964. She has always ridden on the Hill approximately twice a week, less frequently in the winter. She states that the route she took followed that claimed (A-B-C-D-E), though she did have a choice of paths to use. Mrs Collingwood states that when she arrived at the Gypsies she almost always followed the same route which was hemmed in by hedges, where she could gallop, though tended to return along a slightly different route to the north of the hedges. Mrs Collingwood recalls that towards the end of 1993 or 1994 there was an article in the Portsmouth Evening News stating that there was a new Management Plan for the Hill which would result in it being fenced off. However, Mrs Collingwood states that Portsmouth City Council had promised to keep a bridleway up there. She sent off for a copy of the Management Plan which clearly showed a bridleway on the Hill. Mrs Collingwood remembers that from 1994 onwards fences were put up on the Hill. Originally she could ride alternative routes, but states that as more fences went up there was less and less point in using the Hill.

8.5.3 Ms Gratton

Ms Gratton got a horse of her own in 1984, before this she rode a friend's horse. Originally she would ride up from Chalk Pit Road to the Gallops. From the 1980s her friend stabled her horse in Gauntlets, and would ride from Skew Road to the Churchillian (shown on Appendix 1). After 1984 she rode up from Portchester and rode from Skew Road eastwards. Ms Gratton cannot be sure about the exact route she took, she remembers that there were definitely well established paths over the Hill. She remembers that she rode over the Gallops and worked her way down to the path beneath Fort Southwick. Ms Gratton rode every Saturday and Sunday, even in the winter and rode more frequently in the summer. She stopped riding on the Hill in 1989 when she moved away from the area, and when she returned, in 1996, the Hill was fenced and inaccessible.

8.5.4 Ms Patey

Ms Patey has been riding for about 30 years. Her horse is kept in Beverston Paddocks in Paulsgrove. From the paddocks, Ms Patey would ride up to the Chalk Pit, and access the Hill there. Alternatively she would ride along Hillsley Road and access the Hill to the South of Fort Southwick. She states that if she was going for a shorter ride she would head westwards and up to the Gallops. She would ride all round the Gallops or follow the paths to the end and back again. If she was going on a longer ride she would head out eastwards and not use the green land at all. When the western part of the Hill was blocked off in the early 1990s Ms Patey, as a member of the Paulsgrove Pony Club, was given a key to the gate at the Chalk Pit. Ms Patey recalls that the Hill was always well used by riders. It was open and available for riders to use, and there were never any signs or notices to prohibit such use.

8.5.5 Miss Pead

Miss Pead began riding on Portsdown Hill in 1949 and rode on the Hill for the last time in 1981. During this period she accessed the Hill from different places, and rode on different parts of the Hill, depending where her horses were stabled. Between 1949 and 1955 Miss Pead stabled her horses in Portchester and rode out with other members of the school, including Miss White. She states that they would ride up to the Hill from Portchester. At that time the motorway was not constructed and they could make their way on to the Hill from the south where they joined the network of paths on the Hill, and could canter on the open ground. Miss Pead stated that they tended to criss-cross over the western part of the Hill on various paths. Miss Pead didn't go to the south of Fort Southwick as it was very steep and she was concerned that her horse would slip. Instead she rode along the road. After 1955 Miss Pead moved her horses and rode on the eastern part of the Hill. She would ride the whole length of the claimed route (from east to west) only when going to the Portchester Gymkhana. Miss Pead states that she was never made aware that horses shouldn't use the Hill, and that the Hill was always open and available for her to use. She recalls that path criss-crossed over the Hill, but for the most part riders would follow routes which ran parallel to the roads.

8.5.6 Miss White

Miss White began riding on Portsdown Hill in the late 1940s, she was the Riding Mistress at a stables in Portchester. Originally, before the motorway was constructed, Miss White took a path which led to Nelson's Monument, or took a route through Cosham onto the Hill. Miss White states that if she was riding eastwards from Nelson's Monument she would follow a the field edge path, parallel to the road to Fort Southwick. At Fort Southwick she would either cross the road and follow a northerly path, or ride along the road past the Fort. She states that sometimes she rode along the top of the Hill past the chalk pits. Miss White cannot identify a specific route she used over the Hill, she states that when she rode on the Hill it was much more open than it is now. Miss White stopped riding in 1970. In the years that she rode the Hill she does not recall sign or notices prohibiting horse-riding, and was never stopped from using the land.

9. Landowner evidence

9.1 Fareham Borough Council

9.1.1 In a letter of 25 October 2000, Fareham Borough Council states:

"...as an initial response [to the application] I wish to register our objection to the proposed modification..."

The remainder of this letter describes why Fareham Borough Council considers a bridleway in the location of the claimed route to be inappropriate, citing environmental considerations, safety issues and potential damage to the land by motorcycles. It does not contain any evidence relevant to the current investigation.

9.1.2 In an e-mail of 31^st May 2006 Fareham Borough Council (having sought legal advice) states:

"Counsels view is that, following the judgement in the Billson case, it is clear that a right of way cannot be established on the basis of 20 years use where use over the land in question was permitted under S.193(1) of the Law of Property Act 1925."

Hampshire County Council have asked Fareham Borough Council for more details of Counsel's opinion. At the time of writing this report, no further information has been received.

9.2 Portsdown Hill Management Project

9.2.1 In April 1988 a draft version of the Portsdown Hill Management Plan was put out for public consultation. The document recognised that Portsdown Hill was well used by riders, but stated that horses and motorcycles were causing damage to some parts of the Hill.

9.2.2 The draft management plan commented that although horse-riding was an acceptable pastime on Portsdown Hill, it should be managed. Therefore, Policy 7 stated:

"Policy 7 - A bridleway should be marked out between Skew Road in the west and Viewpoint Car Park in the east. The byelaws should be amended to permit horse-riding on this route only. Only walking or trotting of horses should be permitted except on a defined `Gallop' to the east of Skew Road."

A map included in the consultation document illustrates a proposed bridleway, which corresponds approximately to the claimed route. However, it was noted that any proposals on the plan were shown in diagrammatic form only.

9.2.3 In July 1989 the final Management Plan was published. As a result of comments received, details of the proposed bridleway were removed from the map accompanying the plan.

9.2.4 Part of the management plan proposed the introduction of conservation grazing on the Hill. In 1993 flyers were produced (and widely distributed) explaining the process of conservation grazing on the Portchester Common area of Portsdown Hill. The flyers stated that Portchester Common would be fenced and that kissing gates or stiles would be provided to enable access.

9.2.5 In March 1993, Portsmouth City Council erected fences to stop motorcycles accessing the Hill from Hillsley Road. There is evidence (in the form of internal PCC memos) which suggests that, on October 1993, riders had complained that the fences prevented equestrian access to Portsdown. Officers suggested that riders could be given keys so that they could access the Hill via Paulsgrove Chalk Pit.

9.2.6 In early 1994 fences and locked gates were erected around Portchester Common. Further fencing was erected on various parts of the Hill in each year until 2003.

9.2.7 In August 1994 Mrs Carol Shoopman wrote to Portsmouth City Council enclosing a report on a ride she took over Portsdown Hill, accompanied by Mr Armstrong and his daughter Louisa. In the report, dated 25^th July 1994, Mrs Shoopman states that although Mr Armstrong had used the route through the green land uninterrupted for many years, there were now five-bar gates blocking access to it.

9.2.8 An press release by the Portsdown Hill Management Plan Joint Advisory Committee states:

"1. The project is currently unable to identify opportunities to provide a long distance bridleway because:

a. it is contrary to the policies within the Management Plan concerning nature conservation.

b. There are existing land ownership constraints.

2. The project is nevertheless trying to negotiate agreements for short bridleways."

The statement is undated. Peter Burrard-Lucas (of Portsmouth City Council) believes that it was issued in October 1994.

10 Summary of evidence

10.1 Part of route A-B is illustrated as High Tor on maps dating back to 1930/40.

10.2 Historic mapping and aerial photographs show the claimed route as one of a number of routes over the green land.

10.3 The section of the M27 motorway running through the green land was constructed in the late 1960s and early 1970s. The new motorway meant that access to the northern section of green land from Portchester could only be gained from Skew Road in the west or the Chalk Pit in the east, whereas before all of the green land could be accessed directly from the south. The construction of the motorway is therefore likely to have changed the way people used the green land, and the routes people used over it (as stated by Miss Pead).

10.4 Equestrians have had a lawful right to use the green land for air and exercise (under Section 193 of the Law and Property Act 1925) since at least 1974. Fareham Borough Council, having sought Counsel's opinion, consider that given the judgement in R v Secretary of State for the Environment, ex parte Billson, 1998, a right of way cannot be acquired over land to which Section 193 applies. At the time of writing this report, Officers have not had sight of Counsel's opinion. Without sight of this opinion, Officers are of the view that the facts of the case in Billson cannot be applied directly to all commons to which Section 193 applies, and in this case, the fact that the green land is a Section 193 common does not, of itself, preclude the acquisition of a public bridleway over it.

10.5 There is clear evidence that Portsdown Hill, and specifically the green land, was well used by riders in the years before 1994.

10.6 Given the length of route A-B-C-D-E and the scale of the mapping available, it has understandably been difficult for users to record the routes they have used with any great accuracy.

10.7 A large number of users have provided signed forms and maps in support of the claim. Of these users, the clear majority have either not used the claimed route at all, or have used it as one of a number of routes over the green land.

10.8 Of the remaining riders who have used a single route over the green land, just under half have clearly used route A-B. Others have used a slight variation of route A-B.

10.9 Mr Armstrong (and his daughter), Mrs Collingwood, Ms Gratton and Ms Patey all recorded use of route A-B on their user forms. However, when interviewed it has become clear that none have actually used route A-B. None of the users interviewed have confined their use to a single route over the green land.

10.10 The draft Portsdown Hill Management Plan, published for public consultation in April 1988, included an acknowledgement of the importance of Portsdown Hill for equestrians, and highlighted concern that the level of riding on the Hill was causing erosion. The plan suggested that a bridleway be marked out between Skew Road and the Viewpoint Car Park (point D), and a diagrammatic plan of this route was shown. The illustrated bridleway follows a similar, though not identical route to A-B.

10.11 In July 1989 the final version of the Management Plan was published. The illustrated bridleway had been removed from the mapping, though the general principle of providing bridleways over the Hill was retained.

10.12 In 1993 flyers, which stated that Portchester Common was to be fenced, were distributed to local residents. Both Mr Armstrong and Mrs Collingwood believe that at the end of 1993 or the beginning of 1994 there was a similar article in the local newspaper explaining that Portchester Common would be fenced. In the early part of 1994 (before 25^th July) the green land was enclosed by fencing. Stiles and kissing gates provided pedestrian access, but equestrian access to this land (and the claimed route) was no longer possible.

10.13 In the latter part of 1994 the Portsdown Hill Management Plan Joint Advisory Committee stated that no long distance bridleways over Portsdown Hill could be provided.

11 Discussion of the evidence

11.1 In order to acquire a right of way over land through presumed dedication, either at common law or by virtue of Section 31 Highways Act 1980, there must be evidence of use of a clearly defined route. Given that there is already a right to air and exercise (including horse-riding) over all of the green land, if the claim is to succeed, it is all the more important that use is consistent with the acquisition of a highway, and does not simply reflect the exercise of rights conferred by Section 193 Law of Property Act 1925. Further, it is generally considered that a claimed route must lead from, and to, a place of legitimate public resort.

11.2 The green land was open and available for horse riders to use until 1994. Although, for the most part, route A-B follows a clearly defined path enclosed between two hedges, aerial photographs clearly and consistently show a number of worn pathways over the green land.

11.3 User evidence suggests that the majority of riders did not confine themselves to route A-B; many appear to have used the whole of the green land for recreation and many have not actually used A-B itself.

11.4 As there is clearly an element of wandering, resulting in several different routes over the green land, it is not possible to distinguish which use was under section 193 Law of Property Act 1925 and which use was as a highway. Therefore, officers cannot confirm that the claimed route was of such a character that use of it could give rise to a presumption of dedication at common law (Section 31 Highways Act 1980). Equally, it would be dangerous to make any presumption of dedication at common law based on user evidence alone, given that the landowner would be hard pressed to distinguish between use under section 193 Law of Property Act 1925 and use as a highway.

11.5 Furthermore, the land accessed by path A-B (and other paths on the green land) lies within the Portsmouth City Boundary. There is no recorded bridleway within the Portsmouth City Land. Although application to record the continuation of the route currently in question (the application for B-C-D-E) has yet to be determined by Portsmouth City Council, having also investigated this application, and without wishing to prejudge Portsmouth's decision, Hampshire County Council do not consider that the continuation of the claimed route into the Portsmouth City boundary carries public equestrian rights. Therefore, it is considered that path A-B does not lead to a place of legitimate public resort.

11.6 Given the above, the application does not satisfy the requirements of Section 31 Highways Act 1980, and the evidence is not sufficient with which to infer a 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. At the time of writing, no comments have been received.

13 Conclusions

There is evidence to show that the whole of the green land has been used by equestrians for air and exercise. However, the evidence is not sufficient with which to infer that path A-B, or any other path over the green land, has been used as a highway.

RECOMMENDATION

It is recommended that the application for a Definitive Map Modification Order to record a bridleway from Skew Road, Fareham, to the County Boundary 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 CR698 - Rights of Way Office, Mottisfont Court, Winchester