Hampshire County Council

Regulatory Committee Item 16

25 July 2007

Application for a Map Modification Order to add a footpath from the Wellington Arms to Footpath 22, in the parish of Baughurst.

Report of the Director of Recreation and Heritage

Contact: Emma Noyce ext. 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 reasonable practicable after the occurrence .... of any of [the events specified in sub-section (3)] by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event

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

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

(i) that a right of way which is not shown on the map exists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to this Part applies;

66. Interpretation of Part III (sections 53 to 66)

(1) In this part-

`footpath' means a highway over which the public has a right of way on foot only, other than such a highway on the side of a public road.

HIGHWAYS ACT 1980

32. Evidence of dedication of a way as a highway

A court or other tribunal, before determining whether a way has or has not been dedicated as a highway, or the date on which such dedication, if any, took place, shall take into consideration any map, plan or history of the locality or other relevant document which is tendered in evidence, and shall give such weight thereto as the court or tribunal considers justified by the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or compiled, and the custody in which it has been kept and from which it is produced.

329. Further provision as to interpretation

(1) In this Act, except where the context otherwise requires-

`footpath' means a highway over which the public have a right of way on foot only, not being a footway.

`footway' means a way comprised in a highway which also comprises a carriageway, being a right of way over which the public have a right of way on foot only.

1. Summary

1.1 This report concerns an application to amend the definitive map by adding a footpath from the Wellington Arms to the Old Baughurst School and Footpath 22, Baughurst. The claimed path is adjacent to the Baughurst Road.

1.2 There is a good deal of evidence which suggests that the public has a right of way over this path on foot. However, officers consider that this path is already a footway which forms part of the highway known as Baughurst Road. Therefore, as a highway at the side of a public road, this path is not considered to be a highway of a type capable of recording on the definitive map of rights of way.

2. RECOMMENDATION

· That this Council accepts the claimed route forms part of the highway known, and recorded on the County's List of Streets, as Baughurst Road (C101).

· That the application for a Map Modification Order to add a footpath from the Wellington Arms to Footpath 22, in the parish of Baughurst, be refused.

3. The Applicant and the Application

3.1 The applicant is Baughurst Parish Council.

3.2 The present claim, made under s.53(5) of the Wildlife and Countryside Act 1981, was made in October 2002. The formal application is "to add the footpath from south of post box adjacent to `Wellington Arms' to track in front of Church Green Cottage".

3.3 The claimed route is not currently recorded on the definitive map. Baughurst Road is recorded on the County's List of Streets Maintainable at Public Expense (Chalist) as the C101.

4. The claimed route

4.1 The claimed route is shown on Appendix 1 as route A-B.

4.2 The path is sometimes referred to as `Mounts Path' or `the Causeway'. Historically it appears to have been known as part of the `Church Path'.

4.3 The claimed path runs parallel to Baughurst Road. The majority of the path passes through an area of trees and scrub. Even though the path is partially obscured by vegetation, it remains visible as a physical feature, raised above the level of the surrounding ground surface. A photograph and schematic diagram of the claimed route is shown on Appendix 2.

5. The issue to be decided

5.1 The issue to be decided by this Committee is whether or not there is evidence to show that the application (to record path A-B on the definitive map as a public footpath) should be accepted. To determine this application, Members must satisfy themselves that a) the claimed route is a public highway, and, if so, b) whether or not the highway in question is a highway capable of being recorded on the definitive map of public rights of way.

5.2 If members do find that the claimed path is a public highway, the answer to the second question will depend on whether or not the claimed route is a footpath or a footway. The definitions of both footpath and footway as described in the Highways Act 1980 and the Wildlife and Countryside Act 1981, are given on the front page of this report. Put simply, a footpath is a highway in its own right, whereas a footway is part of a larger highway which is also a carriageway, rather like a normal roadside pavement. A footpath is capable of being recorded on the definitive map, a footway is not. In this particular case, the question is whether or not the claimed path is part of the highway that is Baughurst Road, or an entirely separate entity.

5.3 Historic and documentary evidence has been examined to see whether the past history and use of the path points to its having public rights as a result of dedication in the distant past. Any such rights are not lost merely through disuse. Unless stopped up by due process of law, any rights previously dedicated will still exist, even if they are now neither used nor needed. This evidence must be looked at as a whole, it being unlikely that a single document or map will provide sufficiently cogent evidence to justify a change to the definitive map and statement.

5.4 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.

5.5 The originals of many of the documents referred to in this report are only available in public record offices, but copies, transcripts or tracings of most documents are available for inspection in the offices of the Rights of Way Section, as are witness evidence forms and statements. Members are urged to inspect these, or the originals, when considering this report.

6. User evidence

6.1 11 individuals have provided signed user evidence forms in support of the application. Of these 11, officers have taken statements from 3 people. Each person describes using the path regularly to get from the northern part of Baughurst to the School and Church. None of the users interviewed remember ever being stopped, or discouraged, from using the path, and each describe it as a path along the edge of the road.

6.2 The user evidence provided in support of the claim indicates that the claimed route was a well used local route which gave pedestrians safe passage along part of Baughurst Road.

7. Historic and documentary evidence

7.1 The following evidence has been considered during the investigation of this application:

· 1772 Aldermaston to Basingstoke Turnpike Act

· 1843 Baughurst Tithe Map and Apportionment

· 1857 Baughurst Inclosure Act and Award

· 1863-1932 Kingsclere Rural District Council Highway Board Minutes

· 1870-1940 Ordnance Survey County Series Maps

· 1894-1962 Minutes of Baughurst Parish Council

· ?1905 Photograph of Church Green Cottage

· 1895 Book: The Manor of Manydown by GW Kitchin

· Various local history booklets

· Various commercial maps (including Taylor: 1859, Milne: 1879, C&J Greenwood:1826)

7.2 Historic evidence suggests that the claimed path may have been constructed as a Causeway to Baughurst Road in 1772, when the road itself was turnpiked. Various historic maps show Baughurst Road to widen at the location of the claimed route. The land of the claimed path appears to have been included with Baughurst Road on the 1843 Tithe map, and it was not awarded separately as part of the Baughurst Inclosure of 1857. Ordnance Survey County Series mapping from 1870 onwards depicts the claimed route running parallel to Baughurst Road, and shows this path to be included with the parcel that relates to Baughurst Road. The claimed route is referred to on a number of occasions in the Baughurst Parish Council Minutes (1894-1962); by 1910 the maintenance of the path appears to have been the responsibility of the District Council Surveyor. It is clear that Baughurst Parish Council spent a significant amount of time considering which paths should be recorded as rights of way for the purposes of the 1934 Rights of Way Act and 1949 National Parks and Access to the Countryside Act. No mention of the claimed path has been found in the well documented minutes of these discussions.

7.3 The historic evidence seems to suggest that the claimed path has always been considered to be part of (and within the boundaries of) Baughurst Road. Although the claimed route was treated as a public highway (in discussions of the Parish Council), it is clear that this route was not considered for inclusion on the Definitive Map of Rights of Way at the time of its preparation. This would suggest that it was clear to the Parish Council that whilst this route was part of a public highway, it was not a highway of the sort which should be recorded on the definitive map.

8. Landowner / Adjacent Landowner Evidence

8.1 The land ownership of the claimed route is not currently registered. Three individuals who own land adjacent and to the east of the route have been notified of this application, and have been given the opportunity to comment on it. Hampshire Highways have also been notified of the application, as they are responsible for the maintenance of Baughurst Road.

8.2 Hampshire Highways

Following consultation on this application, Hampshire Highways conducted their own status search into the extent of the highway that is Baughurst Road. On the 6 March 2007, Hampshire Highways confirmed that the claimed route is considered to be part of the maintainable highway which is already recorded on the County's List of Streets as Baughurst Road. It follows that the duty to maintain and protect the claimed route lies with Hampshire Highways.

8.3 Mrs King (Church Green Cottage): adjacent landowner

Mrs King has commented that she has concerns regarding the security of her property should the claimed path be recorded as a public right of way. She also states that maintenance would need to be discussed as she currently maintains the strip of land immediately outside of her property. Mrs King has previously corresponded with Hampshire Highways to discuss the maintenance of this part of the claimed route.

9. Consultation

The following persons and bodies have been consulted about the application, namely the County Council (Environment and Highways), Councillor Tucker (the local member), Basingstoke and Deane Borough Council, Baughurst Parish Council, Ramblers Association, Open Spaces Society, and the Northern Area Rights of Way Officer. The following responses have been received:

9.1 Ramblers' Association - has user evidence which may support the claim.

10. Comments from the Applicant and the adjacent Landowners

A draft of this report was given to Hampshire Highways, the adjacent landowners and the applicant to afford them the opportunity of submitting further evidence or making further comment.

10.1 Mrs King - would like to clarify that she does not own the land of the claimed route.

10.2 Baughurst Parish Council - comment that due to the short time between the receipt of the draft report and the date of the Committee Meeting, the Parish Council is unable to meet to consider the report. However they have provided the following comments:

"[Baughurst Parish] Council would not wish to see a tarmac or paved path running alongside the Baughurst Road in this very rural of locations. I am unsure whether adoption by Hampshire Highways would involve this scenario, but it would be very inappropriate in this area, and to be avoided at all costs. If Hampshire Highways do not tarmac the path, thus identifying is as a public footway, can you please advise how else it could be marked?"

10.3 Hampshire Highways - agree that it is not appropriate for a Right of Way in so far that it is on the verge and parallel and close to Baughurst Road. Are concerned though that to make it useful as a footpath a lot of work is required (tree and vegetation removal) and stone chippings will be needed as an all weather surface. Comment that they do not have the resources to make this happen quickly and are concerned that the Parish Council will have expectations here. Will discuss this with the Parish to hopefully create a joint plan for the future.

10.4 With respect to the above comments, Officers would like to make the point that should the Committee accept the recommendation in this report, the legal status of the path will not change. The Committee will be acknowledging that the path is already part of a publicly maintainable highway. Although this route is a footway, it does not follow that all footways must be tarmacced. It is understood that this application was made, by Baughurst Parish Council, as they wished to see the path open and available for use once again. Hampshire Highways have suggested that they would be pleased to discuss the future management of this path with the Parish Council.

11. Conclusions

11.1 Evidence indicates that the claimed route is part of the highway (also comprising a carriageway) which is recorded on the County's List of Streets Maintainable at Public Expense, and known as Baughurst Road. Therefore, it is considered that the claimed path is a public footway and not a public footpath, and, as such, is not capable of being recorded on the County's Definitive Map of Rights of Way. For this reason it is recommended that the claim 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 CR703 - Rights of Way Office, Mottisfont Court, Winchester