Hampshire County Council

Regulatory Committee Item 10

7 February, 2007

Application for a Definitive Map Modification Order to record Broughton Footpath 13 and Houghton Footpath 1 as bridleways

Report of the Director of Recreation and Heritage

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

WILDLIFE AND COUNTRYSIDE ACT 1981

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

(2) As regards every definitive map and statement, the surveying authority shall...

(b) keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence .... of any of [the events specified in sub-section (3)] by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event

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

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

(ii) that a highway shown in the map and statement as a highway of a particular

description ought to be there shown as a highway of a different description...

HIGHWAYS ACT 1980

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

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

Presumed Dedication at Common Law

Use of a way by the public without secrecy, force or permission of the landowner may give rise to an inference that the landowner intended to dedicate that way as a highway appropriate to that use, unless there is sufficient evidence to the contrary. Unlike dedication under s.31 Highways Act 1980, there is no automatic presumption of dedication after 20 years of public use, and the burden of proving that the inference arises lies on the claimant. There is no minimum period of use, and the amount of user which is sufficient to imply the intention to dedicate will vary according to the particular circumstances of the case. Any inference rests on the assumption that the landowner knew of, and acquiesced in, public use.

1 Summary

This is an application to record Broughton Footpath 13, Houghton Footpath 1 on the Definitive Map as a bridleway. The claim is recommended for refusal.

2 The claimed route A to B

The application covers two sections of the Clarendon Way, a nationally promoted footpath, the two sections separated by the road U83. Each section is discussed in a separate report, and the whole route is shown on the attached location plan, and on an individual plan. The section A to B, dealt with in this report, begins at the point marked A, where the track leaves the U83 or Rookery Lane via a series of steps with a handrail, that were installed by the County Council's Rights of Way Area Officer. Prior to the installation of these steps, walkers had to climb up a steep bank to access the footpath. The track is a headland path, with a post and wire fence on the south side, varying slightly in width but approximately a metre and a half wide. The surface here is grassy. It continues past an area of woodland to the south, following tracks made by farm machinery, passing a sign which reads `High Health Pigs - Do not feed - Please keep to the public right of way at all times - thank you'. East of the woodland, the track becomes more defined, at about four metres wide, with a hedge to the south for some distance, and at the parish boundary it passes through a pair of gates. Near the gates is another notice requesting walkers to stay on the public right of way. The track continues at a similar width and a similar surface, with a hedge to the north. The definitive line deviates a little to the south, round an old chalk pit, though it seems that users continue along the track. It then meets the U83 at point B. This route is gated some 36 metres from its junction with the C17, the road passing through Houghton.

3 The route is described in the Definitive Statements as:

Broughton Footpath 13

From road U.83 to Parish Boundary

From road U.83 up slope, over stile, then south-eastwards along verge of pasture on south side of hedge, over stile, along verge of pasture, over stile, then along 4 ft. wide path through copse, through gap in hedge, along verge of arable field on north side of hedge, through gateway and along verge of pasture on south side of wire fence to double wire fences at Parish Boundary.

Houghton Footpath 1

From road U.83 to Parish Boundary

From western end of road U.83 westwards along 10 ft. wide track enclosed 20 ft. wide between hedges, through gateway, along 6 ft. wide grass track on south side of hedge, through gateway along track on south side of hedge, along path between hedge and northern edge of old chalk pit, over slip rails, and along 8 ft. wide grass verge of arable field on south side of hedge to double wire fences at Parish boundary.

4 The Applicants

Mrs. J. Ince, and Lady A. Horsley. It was only possible to make contact with Mrs. Ince towards the end of the investigation.

5 The Landowner

Mr. J. Fairey, represented by Mr. A. Willis of Whitehead Vizard.

6 Consultation

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

7 The respondent for LARA supports the claim, which is preferable to cycling along the narrow road between Broughton and Houghton.

8 The Landscape and Environment Sections of Hampshire County Council have no objections to the claim.

9 Highways Management has no comments on the application.

10 Test Valley Borough Council has no objection to the claim.

11 The Trail Riders' Fellowship representative has no documentary or user evidence to offer, but `can confirm that we support the application. This route would make an excellent and much needed link route across the Test Valley for horse riders and cyclists'.

12 The local member, Councillor Woodhall, has responded, and refers to the letter from Houghton Parish Council, which deals primarily with the other part of this application, namely Houghton Footpath 6 and Kings Somborne Footpath 11. He endorses the position of the Parish Council, but has not made any specific comments about Broughton Footpath 13 and Houghton Footpath 1.

13 The issue to be decided

This Committee is required to decide whether or not the evidence described in this report shows that a public right of way of a different status to that already recorded subsists over the claimed route. Members are asked to make a determination of the application, and also to consider any other issues that may result from the evidence uncovered by the investigation, regardless of whether those issues form part of the original application.

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

15 The burden of proof in these matters is `on the balance of probabilities', so it is not necessary for evidence to be conclusive before a change to the Definitive Map can be made. If there is genuine conflict in the evidence, for example between the evidence of users on the one hand and landowners on the other, Members should make an order, so that the evidence can be tested at a public inquiry. However, this is appropriate only if an order could otherwise properly be made, and it is not a step which should be taken simply to avoid making a difficult decision. Officers consider that there is some degree of conflict in this case.

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

17 Documentary Evidence for the claimed route A to B

This claim is based partly on documentary evidence, and an evaluation of historical documents is attached as Appendix 1.

18 The following sources have been examined, but do not show or provide any information about the claimed route. These were: Taylor's Map; Milne's Map; Houghton Inclosure Award; Greenwood's Map; London and Salisbury Junction Railway Plans; Hookpit deviation Mottisfont-Salisbury Railway plans; Southampton to Andover Railway plans; Manchester to Southampton Railway plans; Andover and Redbridge Canal plan; Andover Canal Railway plan; Finance Act Map.

19 Survey of Roak Manor 1760 (HRO 15M69/3)

This map of plots in the common arable fields of the manor shows a route on the line of the claimed route, which is coloured brown, Two routes coloured brown are marked `Road'. There is nothing on the map to indicate what status the claimed route has or whether it is public or private.

20 Extract from Court Baron of Roak Manor 1774, (HRO 15M69/2)

The officials of the court rehearsed that `the tenants of this manor have a right of way or Road through Franklin and Watt's Linch into Rooks Pit...but that no tenant or other person can claim to be entitled to any road or highway from Rooks Pit to Houghton'. It has not proved possible to identify either Franklin or Watt's Linch, but Rooks Pit is the more easterly field of the section of the claimed route in the parish of Broughton. It is clear that the tenants do not have the right to a way from Rooks Pit Field to Houghton, which might be on a way along the line of the claimed route. In any case, the rights being talked of here are not public.

21 Broughton Inclosure Award 1791 (HRO Q1/21, pp. 258-300), and Map 1791 (HRO COPY/209)

Broughton was inclosed under an Act of 1789, which provided for both public highways and private roads or ways. After these had been set out and made, it was not lawful for `any person to use any other roads or ways...in over through or upon the lands to be divided and inclosed either on foot or with cattle horses or carriages'. If the route shown on the 1760 map was not set out, it would have been lost to public use.

22 The claimed route was preserved for public use, since under the section `Public Foot Roads' the third entry sets out a public foot road of 4 feet wide, from the lower end of Broughton over allotments to John Hattatt, Betty King and Martha Steele, and it is a pre-existing route since it goes along `its usual course and direction into the Parish of Drayton Houghton being the foot road from Broughton to Houghton'. A map produced for the inclosure shows the claimed route by a pecked line. This is marked `Foot Road' and `to Houghton', and passes over allotments to John Hattatt, Betty King and Martha Steele.

23 Ordnance Survey Two Inch Drawing 1808, (Sheet 4)

A route which appears to be the U83 is shown going west from Drayton Houghton towards Broughton, but there is no connection to point A.

24 Ordnance Survey Old First Series One Inch Map, 1810

This map shows a route from Drayton Houghton towards Broughton, and this appears to what is currently recorded as the unmetalled U road. No connection from the west end of the unmetalled road to point A on the plan is shown.

25 Greenwood's Map 1826

This shows the same arrangement of routes as the Ordnance Survey Old First Series map.

26 Plan of Broughton Parish 1830 (HRO 137M71/PZ9)

This map shows the claimed route in Broughton as a pecked line through Rooks Pit Field to it junction with the road through the village.

27 Broughton Tithe Map and Apportionment 1837 (HRO 21M65/F7/36/1-2)

The map shows White Hill and Rooks Pit Field, with the claimed route in the parish depicted by a pecked line emerging onto Broughton Drove in much the same location as it does today, slightly to the north of the line shown on the Broughton Inclosure Award map of 38 years earlier. The roads on this map are uncoloured and without plot numbers, and are collected as one total figure in the Apportionment. There is no legend on the map. The co-incidence of this pecked line with the pecked line on the Inclosure Award map reinforces the information given to us by the inclosure award.

28 Map of Parish of Broughton undated (HRO 137M71/PZ10)

This map is a copy of the Tithe map and shows the claimed route as a single broken line with dots. Its course and location suggests that it is the same foot road as was set out at inclosure.

29 Houghton Tithe Map and Apportionment 1842 (HRO 21M65/F7/121/1-2)

The unmetalled road from Houghton to point B is shown, but west of this, there is no indication of the claimed route.

30 Ordnance Survey County Series First Edition 1871

The present day unmetalled road from Houghton is shown between solid boundaries, and appears to be gated at its west end, forming a cul de sac. The claimed route from A to B is shown meeting the unmetalled road, between pecked boundaries, south of a field boundary. It crosses the parish boundary into Broughton, where it is narrow and also shown between pecked lines. Along its length it is braced into the surrounding plots, suggesting that it was considered to be part of those plots.

31 Ordnance Survey County Series Second Edition 1895 and Third Edition 1909

The depiction of the claimed route on these maps is very similar to the first edition. However, on the third edition, the section of the route in Broughton is marked `F.P.' (footpath).

32 Highways Maintenance `Handover' Map 1929 (HRO H/SY/3/6/18)

The 1929 `Handover' Map shows the claimed route by means of a dotted green line, denoting a public footpath (other than those by the side of a carriageway) repaired by the Parish Council.

33 Highways Maintenance Map 1946 (HRO H/SY/3/24/10)

The claimed route is shown as a public footpath.

34 First Definitive Map and Statement, 1957 (HRO H/CL1/2/9)

The claimed route is shown and described as a footpath, though there is no kink to the south of the chalk pit on Houghton Footpath 1.

35 Declaration under section 31(6) of the Highways Act 1980

The landowner has completed a statement and plan under the provisions of section 31(6) of the Highways Act 1980 on 4^th July 2001, acknowledging existing public rights of way but stating that no other ways have been dedicated as highways.

36 Discussion of the documentary evidence A to B

The most important document in relation to the claimed route A to B is the Broughton Inclosure Award of 1791, where the track is set out as a public footway four feet wide. Maps of Broughton after the inclosure reinforce the view that the claimed route is a footpath. Some maps are consistent with the Inclosure Award map and some maps go further and record it as a footpath. The available evidence suggests that the recording on the 1964 Definitive Map of the claimed route as a public footpath is consistent with the historic evidence. Further, Broughton Footpath 13 was recorded in the Definitive Statement as having a stile at its western end, and two others, along with double wire fences. The historic evidence does not support the application. The onus is on the applicant to demonstrate that the higher status of public bridleway has been acquired, on the balance of probabilities, through use by the public at large, without challenge for a period of twenty years. This will be considered next.

37 User Evidence for the claimed route A to B

The applicants have enclosed details of twelve witnesses who have used the claimed route, though one must be discounted because no dates for use on horse back had been given. Maps showing the claimed route are included with the user evidence statements. One map has the instruction `please initial between red x's' written in pencil on it, potentially raising the inference that the user may not have been filling in the map from her own recollection. A summary of the use put forward by each witness is attached as Appendix 2, and a user evidence graph at Appendix 3.

38 The recorded use is between the years 1959 and 2000, and the frequency varies between 6 and 52 times a year. Many of the witnesses have also given evidence on the application C to D. Seven of the users have ridden the claimed route A to B for more than twenty years. There were two riders in the 1950s, five riders in the 1960s, nine in the 1970s and 11 in the 1990s. All witnesses report seeing others, both locals and strangers, on foot, horse back and on bicycles. All rode without permission, though Mrs. V. Charrington sought it from the landowner but got no reply.

39 Lissa Gray said that she had passed through gates. She also admitted in a statement based on a telephone conversation (as did Mrs. Charrington) that she had ridden the route in the company of Mrs. Bailey, who has a private right, and such use would not be as of right. Most users say they saw no notices or signs on the route. However, two witnesses report a `No Horses' sign, Mrs. Charrington having seen it in 1998, and reporting it to be still there in 2000, while Mrs. Chew commented that `A notice has been put up recently to say "No Horses"', which was still in place in 1999, when she filled in her form. Mrs. Ince reports being turned back by estate manager Mr. Butler on what she describes as the `Council road bit of the track', which is presumably the U83.

40 Evidence from Landowners for the claimed route A to B

The family of the landowner, Mr. J. Fairey, has owned the Bossington Estate since 1937, and it is the estate's view that the claimed route A to B is a public footpath. The manager of the estate Mr. Butler commented it was just a local footpath before becoming part of the Clarendon Way, and said that it is now well used by people on foot, from all over the world. Pigs have been kept on the land on either side of the route since 1973 and, in all that time, it has been signed as a footpath. The claimed track has a hard core surface, and improvements have been made to the surface to allow Estate staff to attend to the pigs. The only riders who have permission to use the route are Mr. and Mrs. Bailey (who have a private right in connection with a tenancy) and Mrs. Coulson, who no longer rides it. Mrs. Parr, whose use had been tolerated, was told in the 1970s that it was a footpath, and she no longer rides along it. The estate manager has seen hoof prints on the track. Two estate workers, who are in a better position to see riders using the route have not reported seeing any riders. The staff are aware of the track's present status. Mr. Fairey takes the view that there is an alternative for horse riders at Stevens Drove, to the north of the claimed route.

41 There have been two gates across the route in place since at least 1986. One gate is situated across the U83, and this was put in place to stop motorists and for security reasons. It is locked at night and at weekends, and horses could get round this when locked. The other gate is at the parish boundary, and this would be very difficult to negotiate with a horse if locked, but it is not so often closed and locked as the gate on the U83 is. Mr. Butler recalls that there was a stile about 50 years ago, where Broughton Footpath 13 meets the U83, Rookery Lane. The stile at this end of the route has be re-erected three or four times, at least once by the County Council, but is no longer there. The land at this location was once two separate farms. At this location there was no longer a stile, but a gap in the hedge. When the two different farms were amalgamated, there was barely a footpath visible on the ground, and the track was made wider for estate purposes. This happened in the late 1960s or early 1970s.

42 Hampshire County Council have put up `footpath only' signs since the 1970s; the estate has put up `No Horses' signs, devised with advice from a County Council officer, and these replaced temporary signs. One sign has been put up at the west end of Broughton Footpath 13, and the other is near the gate at the east end of the U83. There are two signs alongside the claimed path which ask users to stay within the public right of way, because of the pigs and the possibility of spreading disease.

43 The estate has given instructions to its staff to challenge both horse riders and motorcyclists, and members of staff have done this, though the current person looking after the pigs hasn't reported seeing any riders. Mr. Butler has turned back Mrs. Ince on one occasion, though he cannot remember when, and has turned back both riders and motor cyclists in the past. Mr. Butler comments that prior to the installation of steps by Hampshire County Council at the western end of Broughton Footpath 13, there was a steep bank to scramble up, which would have been tricky for horses to negotiate. He is of the view that there was a gap in the hedge to the north of the steps which would have been easier for horses to pass through, and this is how they gained access to the claimed route.

44 Discussion of the User and Landowner Evidence A to B

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

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

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

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

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

· use must be by the public at large

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

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

46 In order to calculate the necessary period of 20 years over which the public must demonstrate, on the balance of probabilities, that it has acquired bridleway over the claimed route, a `bringing into question' of the public's right must be identified.

47 There are two events that could be interpreted as bringing the public's right to use the claimed way A to B into question. The first bringing into question is the placing of a `No Horses' sign on the route, in 1998, as reported by two users. The second bringing into question is the serving of notice under the provisions of Schedule 14 of the Wildlife and Countryside Act 1981 on the landowner and Hampshire County Council in January 2002. Two periods of uninterrupted and unchallenged use must be considered, the first being 1978 to 1998, and the second 1982 to 2002.

48 The spread of use has already been touched upon in paragraph 38. Two users report beginning to use the route in 1959, continuing through the 1960s, with three others beginning their use in the mid 1960s. Use on horseback of A to B can be demonstrated from the witness evidence, in every decade, without interruption between 1960 and 2000. Seven users have ridden the route for twenty years or more, while six were still riding after 1995. It is considered that this level of use is not sufficient to demonstrate that the public have acquired a bridleway right, on the balance of probabilities. In any case, no evidence of use is available for the year 2001, since the last documented use of the path on horseback was in 2000, and the notices were not served until 2002. This serves as an interruption, and impinges on the period 1982 to 2002.

49 Use by the public on horseback must have been as of right. Mrs. Charrington admitted usually riding with a person who had a private right to use the claimed route. The question of the access to the west end of the track would have some relevance for use by horse riders, particularly early on. Witnesses say they have not climbed over stiles, but the Definitive Statement (compiled in the 1950s) indicates that there were three stiles on Broughton Footpath 13, along with double wire fences, and Houghton Footpath 1 had slip rails and wire fences. To have gained access to the path, horse riders would have had to have jumped over, or otherwise negotiated, stiles. The stile at the west end of Broughton Footpath 13 would have had to have been approached up a steep slope (now with steps to aid pedestrians), and the stile jumped; this would have been even more difficult when approached from the east. The presence of a stile at the top of a steep bank, or just the steep bank alone, would pose difficulties to a horse rider, and might have discouraged use, though Mrs. Gray confirmed that she did gain access via the bank. It may be that riders gained access from another point. Mrs. Vince stated that she may not have followed the whole of the Clarendon Way as she sometimes ended up on the road between Broughton and Houghton, though she might have gone up and down the steep bank. She does not recall a stile being there.

50 There is no reason to suppose that the use by the witnesses was not open. The landowner reports that there have been challenges, indicating that the use was open. All forms show that the witnesses were using the route without permission; Mrs. Charrington, who applied for permission but did not receive a reply, assumed that riding on the route was all right though, as she frequently rode with a person who had a private right, some of her use cannot have been as of right.

51 As all but one of the witnesses report that they were not exercising any kind of private right or any connection with the landowner, it can be assumed that they represent the public at large. They come from a variety of addresses in the locality.

52 There must be insufficient evidence that the landowner did not intend to dedicate a bridleway, if a bridleway is to be found to exist. The landowner had put in place two gates which were locked at times from 1986 onwards. A `No Horses' sign was seen by two witnesses in 1998. Although there had been signs put in place by the County Council indicating that the claimed route was a `footpath only' since the 1970s, the `No Horses' sign was explicitly aimed at the horse riding public and were placed there by the landowner. Bossington Estate staff were instructed to challenge any riders, and this was done by Mr. Butler the estate manager in 2000, a fact recorded by Mrs. Ince in her user evidence form. The Head Gamekeeper for the estate reports turning back a rider ten years ago, the only rider he has encountered since 1988. The deposition of a declaration under section 31(6) of the Highways Act is also a clear indication that of a lack of intention to dedicate. All these actions are demonstrations that the landowner is not minded to dedicate the route as a public bridleway.

53 Given that there is sufficient evidence of a lack of intention to dedicate additional highway rights for the purposes of section 31, officers consider that there is insufficient evidence on which an intention to dedicate could properly be inferred at common law.

54 Conclusions

From the evidence set out in this report, this application is recommended for refusal on the following grounds:

· The first bringing into question is affected by the locked gates, in place since at least 1986, so there is no clear period of uninterrupted use between 1978 and 1998

· There is no clear period of uninterrupted use for twenty years before the bringing into question in 2002

· One of the riders appears to have ridden with someone exercising a private right and, of the ten remaining riders, seven have ridden for over 20 years, while three rode for ten years or less, with six riding in 1995 - a low volume of use

· The landowner has employed locked gates, `No Horses' notices, challenges and a disclaimer under section 31(6) of the Highways Act to demonstrate that he does not intend to dedicate the route as a public bridleway

· There can be no assumption that the landowner has acquiesced in any public use on horseback of the claimed route, and therefore the claim cannot succeed under common law

RECOMMENDATION

That the application be refused.

Section 100 D - Local Government Act 1972 - background papers

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

File: Application for a footpath in the parishes of Houghton and Broughton, ref. 742

Rights of Way Office, Mottisfont Court, Winchester