Archived decisions
Hampshire County Council
Regulatory Committee Item 15
25 July 2007
Application for a Definitive Map Modification Order for the addition to the Definitive Map of footpaths north of Earnley Road, at Sandy Point, Hayling Island
Report of the Director of Recreation and Heritage
Contact: Alex Lewis, extn. 6044; [email protected]
WILDLIFE AND COUNTRYSIDE ACT 1981
53. Duty to keep definitive map and statement under continuous review
(2) As regards every definitive map and statement, the surveying authority shall keep the map and statement under continuous review and as soon as reasonable practicable after the occurrence .... of any of [the events specified in sub-section (3)] by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event
(3) The events referred to in sub-section (2) are as follows -
(b) the expiration, in relation to any way in the area to which the map relates, of any period such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path;
(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 not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to which this Part applies
HIGHWAYS ACT 1981
s.31 Dedication of way as a highway presumed after public use for 20 years
(1) Where a 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 been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.
(2) The period of 20 years referred to in subsection (1) above is to be calculated retrospectively from the date when the right of the public to use the way is brought into question, whether by a notice such as is mentioned in subsection (3) below or otherwise.
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. 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 not 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 of the assumption that the landowner knew of and acquiesced in public use.
1. Summary
1.1 This report considers an application to add to the definitive map footpaths over land at the rear of Earnley Road, Hayling Island. The application is based on user evidence.
2. Recommendation
That an order be made adding to the definitive map footpaths in Hayling Island in the Borough of Havant, on the lines of Paths 1 - 6 as shown on the plan annexed, on the ground that they are reasonably alleged to subsist.
3. Description of the claimed paths
3.1 The claimed footpaths are shown on the plan annexed. All run across or around the edge of a small rectangular area of undeveloped land residential development and the coast. The land can be divided roughly into two areas, bisected diagonally by the path numbered 3 on the attached plan. The southeastern portion consists of rough grassland which is maintained by periodic mowing. The northwestern part is not maintained. It consists of rough grass, small trees and impenetrable mounds of bramble and vegetation. This area of land is a Site of Importance for Nature Conservation (SINC). The whole site is within an Area of Outstanding Natural Beauty. Points A, B and C are points of access to the land. Point X on the plan is the approximate position of a slipway. Because of the large number of paths, each link has been given a separate number.
3.2 Path 1 runs northwards from the junction of Earnley Road and Itchenor Road (point B) for 35 metres beside the boundary of 1 Earnley Road and is the first of the three access paths.
3.3 Path 2a is the continuation of Path 1, running northwards, parallel with the western boundary of the site to a slipway at point X, and then Path 2b continues eastwards, parallel with the northern boundary of the site to a point where it joins Path 3, just west of the rear boundary of number 33 Earnley Road. Path 2a differs slightly from the path now in use on the ground: there is evidence that the route changed slightly when work was done to the slipway.
3.4 Path 3 runs diagonally across the site.
3.5 Path 4 runs parallel with the rear boundaries of numbers 1 to 11 Earnley Road, to a junction with a path that runs between numbers 11 and 15 (there is no 13) Earnley Road (Path 7, but not claimed).
3.6 Path 5 is the link between Paths 3 and 4 and Paths 2 and 6, and runs parallel with the rear boundaries of numbers 15 to 33 Earnley Road.
3.7 Path 6 runs from the second access point (point A) beside number 33 Earnley Road to the junction of Paths 2b, 3 and 5.
3.8 Path 7 on the attached plan runs from the third access point (point C) northwards between 11 and 15 Earnley Road. It is not claimed by the applicant as a right of way, but appears to have been constructed as an access between Earnley Road and the land to the rear.
3.9 All paths are narrow, worn tracks with an earth surface. Paths 4 and 5 are less distinct than the others and thus appear to have less use. The Applicant puts this down to the fact that the paths became overgrown when closed for a period in 2004/5. When inspected in September 2006 none of the paths were obstructed, although the worn line of a path between points B and X, did not follow the exact line of claimed Path 2a. The area appears currently to be well used.
4. The Applicant and the Application
4.1 The Applicant is Mr Dunford of 11 Earnley Road. The application was made in December 2001 and was accompanied by 20 user forms, and photographs of the site. It is not known what prompted the application. A further 14 forms have been received since the application was made, one of which has been completed by a user who completed one of the original forms. The Applicant claims that this represents 85 users, based on 34 households at 2.5 persons per household, although officers do not accept this number of users are represented by the evidence.
4.2 The application is accompanied by a map at a scale larger than 1:25,000 and would appear to comply with paragraph 1 of Schedule 14 to the Wildlife and Countryside Act 1981.
5. The Landowners
5.1 Havant Borough Council is the freehold owner of Paths 3, 4 and 5 and the land hatched black on the plan (this includes one half in width of the `unclaimed' Path 7). It was conveyed to the Council by Bovis Homes Investments Limited, following an agreement made under s.9 Open Spaces Act 1906, which enables a local authority to acquire land for the provision of an open space to be enjoyed by the public under proper control and regulation. The Council has no objection to the claimed routes on its land (i.e. Paths 3, 4 and 5) being recognised as public footpaths.
5.2 Bovis Homes Investments Limited is the owner of Path 1. Bovis has no objection to the claimed footpaths being added to the definitive map.
5.3 Paths 2a and 2b and 6 are owned by Trustees, on behalf of the Sandy Point Partners, believed to be members of the family of Dr Wright, who owned much of the land in this area before it was developed for housing. Until recently, their title also included The Hollies Caravan Park immediately to the west of the site. They object to the claimed footpaths, for the reasons set out at paragraph 10.2 below.
6. Consultation
6.1 Letters of consultation have been sent to Havant Borough Council, Open Spaces Society, The Ramblers' Association, British Horse Society, the Rights of Way Area Officer and Environment Group (Hampshire County Council). The local member, Cllr Ted Gale has been informed. The following responses have been received
6.2 The Ramblers' Association supports the claim and regards the land as `a valuable `green lung' which residents and locals can include in a walk and where youngsters can play'. On an inspection it found the claimed paths clearly defined and used.
6.3 The response of Havant Borough Council is considered at paragraph 5.1 above.
6.4 The Area Rights of Way Officer has no evidence to offer.
7. The issue to be decided
7.1 This Committee is asked to decide whether or not the evidence described in this report shows that footpaths subsist, or are reasonably alleged to subsist, over land north of Earnley Road, on the claimed routes.
7.2 Whether or not Members agree that the application should be granted, they may decide that the evidence shows that a right of way exists over a different path, or route, and that a map modification order ought to be made to show that other path.
7.3 The burden of proof in these matters is `on the balance of probabilities', so it is not necessary for evidence to be conclusive before a change to the definitive map can be made. 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. The present case relies very much on user evidence and, although there are inconsistencies in the evidence, officers do not consider that there is a major conflict of evidence in this case.
7.4 Maps and original user evidence forms can be inspected in the Rights of Way office, Mottisfont Court. Members are urged to inspect these, or the originals, when considering this report.
8. Historic and Documentary Evidence
8.1 There is no evidence that the claimed paths have ancient or historic origins. Ordnance Survey maps between (approximately) 1870 and 1968 show that the land over which the claimed footpaths run, and surrounding land has been open and undeveloped throughout this time, without any paths, or features which would suggest that there was a need for public access, other than such as might be sought to reach the adjacent foreshore. Three editions of the County Series maps (1895 - 1930s approximately) show the land as marsh. A number of drains are shown across the site on the 1968 Ordnance Survey map which also shows that by this date some of the land in the area had been developed. No paths or tracks are recorded over the site itself.
8.2 The 1968 Ordnance Survey map shows that a raised embankment existed on approximately the line of Paths 2b and 6. North of this, where there is now the marina car park, was a pond, and on the northern edge of this there is another embankment with a path . This path is not one of those claimed, and may be the path which some users refer to running as along the sea wall, and which could be accessed before the marina was developed.
8.3 There is no evidence of an express or written dedication of public rights of way over the land. User evidence might give rise to a presumption of dedication under s.31 Highways Act 1980 or under common law.
9. The user evidence
9.1 Twenty user evidence forms were submitted with the application, disclosing use by twenty one users, but very few of these make any distinction between the amount of use being made of each of the different paths over the site. The map accompanying each form is the same (presumably prepared by the applicant) and shows all of the Paths 1-6. The information about the frequency of use is not broken down on a path by path basis, but it is highly unlikely that all users would have used all paths at any one time, and it would be safer to treat the amount of use disclosed on the forms as visits to the site using a combination of paths, rather than incidents of use of each path. Even the users who have been interviewed have not been precise about the relative use made of the different claimed paths, a task made difficult by the fact that more worn paths exist over the site than are currently claimed, and the fact that the paths (particularly Path 2a) may well have `wandered' slightly over the years. The user evidence forms submitted more recently are more informative, in that the routes marked on them vary from form to form, suggesting that not all users have used all paths. The most commonly used paths according to these forms are 1, 2 and 6, although use of all paths except 7 is disclosed. There is evidence of use by a total of 35 users, contained in 33 forms.
9.2 Five users have been interviewed. Their evidence about the recent history of the site and the footpaths is reasonably consistent. Prior to 1970 the site of the claimed paths was owned by a Dr Wright and was part of a large field, bordered on the north by the sea and by Wittering Road, Bracklesham Road and Itchenor Road on the east, south and west sides respectively. The area was a popular holiday destination, with a number of seasonal visitors as well as permanent residents. The field was sold for development and Pagham Gardens, Sidlesham and Selsey Closes and Earnley Road were built during the 1970s, Pagham Gardens being the first, and Earnley Road being the last, stages of the development. The only part of the field not developed, is the site of the claimed paths. Since the 1970s the land has been used for recreation by local residents and for access to the foreshore.
9.3 Three users claim to have walked the paths before 1960, seven by 1970 and 21 by 1980. The rise in use between 1970 and 1980 can be explained by the construction during that period of houses to the south and west of the site. 34 people were users in 2001, when the claim was made (one user gives no dates for her period of use). As well as walking the paths, two users claim to have ridden along the paths on horseback and one on a bicycle. A summary of the user evidence is included in the bar chart annexed. It is, of necessity, a generalisation, but may give a feel of the extent of use claimed. Nine users claim to have walked the paths every day for some period of their use. Otherwise use varies, upwards from twice a year.
9.4 The earliest incidence of use claimed is 1938, but it is hard to imagine why there should have been a need for the claimed paths prior to the 1970s development. There is evidence of early use of a walk along the north of the site, on the landward side of the high water mark and on the sea wall, although this is not the route now being claimed (see paragraph 9.6). Access points A, B and C would not have been there and Paths 4 and 5 only become a sensible or logical route once the boundaries of the Earnley Road properties were established, so whilst users may have walked in the general area before the present development, it seems unlikely that early use related to the precise paths being claimed.
9.5 None of the user forms disclose any obstructions along the claimed paths, and there are none in place now. One witness remembers removable bollards at A, which were taken away when builders wanted vehicular access to the rear of the property next door and never replaced, but they did not prevent pedestrian access. The Applicant says that this was after the claim was made. One witness remembers a `Private' notice attached to one of the concrete posts in the middle of the site (at a point which marks the boundary between the Havant Borough Council land and the SINC), but this appears to have been after the application was made. There is no evidence from users that the paths, or any of them, were closed off or unavailable for any period of time, although only the more recently supplied user evidence forms specifically ask the question `Has there been a break in your use?'. None of the answers to this question suggest that the paths, or any of them, were blocked or made unavailable for use during the period 1981 - 2001.
9.6 There is some evidence that the configuration of paths in the area has changed since the 1970s. Work carried out to at the Sparkes boatyard, now a marina, to the north of part of the site has apparently prevented people walking along the former sea wall, which was an alternative to Paths 2b and 6 and served a similar purpose. The exact date of the change in the route has not been identified, but it could be linked to the time when the marina car park was built - at some time in the early to mid 1980s. There is also now a worn path slightly east of Path 2a, between points B and X, which at least one witness attributes to improvements to the sea defences, undertaken in or around 2004.
9.7 In summary, there has clearly been use of the land in question, by local people, since the 1970s. The Applicant says that there is also use by Ramblers', although there is no other direct evidence of this. Use continues, but the right of the public to use the paths can be regarded as having been brought into question when the application was made, in December 2001 (s.31(7A) Highways Act 1980). The relevant period for the purposes of s.31 Highways Act 1980 is, therefore, 1981 - 2001. No evidence has been submitted which suggests that use has not been as of right. There are however, three reasons why the claim might nonetheless fail to raise any presumption of dedication.
9.7.1 The number of witnesses attesting to their use is not insignificant, but there is no precise evidence about the amount of use being made of the individual paths being claimed (they do not necessarily stand or fall together). Even the witnesses who have been interviewed have not been able to give figures for the amount of use they have made of each path. There must be some doubt that enough use has been made of any of the claimed paths to warrant an order adding all or any of them to the definitive map.
9.7.2 There must also be some doubt about the exact nature of the use being made of the land. There is evidence that the area was used and regarded by some as an amenity open space, available for recreation, rather than as defined rights of way used for passing and re-passing. If the use actually being made of the land as a whole was for general recreation, that use is of a type that cannot be recorded on the definitive map.
9.7.3 It is impossible, in an area like this, to expect witnesses to be precise about exactly where their feet fell, so there may be discrepancies between the lines of the routes walked by the various witnesses. Also, where the boundaries of a path are undefined, the path can `wander' over time, to avoid seasonal, or more permanent vegetation or to avoid other long term obstructions. This is not critical where the difference is small (`de minimis'), but there is evidence that, prior to the construction of the marina car park, in approximately the early to mid 1980s, people were able to walk along the former sea wall, somewhat to the north of Path 2b. The two paths serve the same purpose, but are not sufficiently close to each other for any variation in use to be `de minimis'. The user evidence forms attest to use of Paths 2b and 6 for the requisite 20 years, and so it has to be assumed that the change occurred before 1981, or that both paths were available and were used during the twenty year period. However, there remains some question about the extent to which Paths 2b and 6 might have been followed in the early part of the 20 year period. There is also evidence Path 2a has moved noticeably since works to the sea wall in 2004, although this is after the twenty year period.
9.8 Despite these caveats, it is not unreasonable to conclude that, on the balance of probabilities, the claimed paths have been created by local people going about their business, for dog-walking, exercise or as a short cut to somewhere and that their use is capable of giving rise to a resumption of dedication under s.30 Highways Act 1980. Such a presumption will not arise if there is sufficient evidence that the relevant owners of the land did not intend to dedicate such a right to the public.
10. Evidence of the Landowners
10.1 Havant Borough Council and Bovis Homes Investments Limited have offered no evidence to rebut the presumption of dedication which might otherwise arise from the use disclosed: indeed they seem willing to accept the paths being recorded on the definitive map as public footpaths.
10.2 Sandy Point Partners
10.2.1 The Partners do not believe that the claimed paths are public rights of way, or that the slipway at point X is a public landing stage. They consider that the proper access to the recreation land owned by Havant Borough Council is via Path 7. The Partners have allowed access to their land, but they have permitted it to be closed off to the public during the construction of the marina to the north of the site, in 1986/7 and during the works to the sea defences in 2004/5.
10.2.2 The Partners have taken various steps with regard to the land:
1983 Secretary of Sandy Point partners advises the Anchorage Association that the land belonged to Sandy Point Partners
1986/7 The land is fenced off and used for storage, access and the burning of rubbish during the construction of the adjacent marina
1987/8 Trees and shrubs planted after the hurricane
1992 A resident of Earnley Road complained about the self-planted trees and brambles and requested Sandy Point Partners to tidy the land
1995 The Partners arrange for the removal of rubbish, earth and concrete and make plans for grass cutting and hedge trimming.
2001 (and before) to the present, at various times the Partners have erected barriers at the entrance from Wittering Road to stop vehicular access. Persons unknown have always removed these.
2002 On 24 October the Partners contact Havant Borough Council to advise them that they have cut grass belonging to the Partners as well as Council land.
2003 The Partners correspond with a resident at Earnley Road advising him that he needed their permission to access the rear of his house through the land in question and requesting that he make good the rutting caused by vehicles accessing the rear of his garden
2003 The partners put up a number of signs saying "Private Property. No dumping. Sandy Point Partners". Vandals removed these within a few weeks.
2004/5 During the recent works to the sea wall the partners give permission for the Environment Agency to fence off areas and use them for access
2005 One of the Partners remonstrates with a member of the pubic, believed to be a resident of Earnley Road, who is cutting down a tree on the land and advises that the land belongs to Sandy Point Partners.
The rebuttal concludes "...these events show that the Partners have actively managed and maintained the land, have had the ownership of the land recognised by owners of properties in Earnley Road and have allowed the land to be fenced off at various times".
10.3 The steps taken by Sandy Point Partners and their trustees seem to have been taken to assert their ownership of the land crossed by Paths 2a, 2b and 6 at the relevant time. This is not in dispute. What is material for the purposes of this claim, is whether there is sufficient evidence during the period 1981 - 2001 that they did not intend that the public should acquire a right of way across it. The very recent judgment of the House of Lords in the case of R (on the application of Godmanchester Town Council) (Appellants) v Secretary of State for the Environment Food and Rural Affairs (Respondent) and R (on the application of Drain) (Appellant) v Secretary of State for the Environment Food and Rural Affairs (Respondent) is that, to be sufficient to rebut an initial presumption of dedication, the evidence of a lack of intention to dedicate must be assessed objectively: the actions of the landowner need to be overt and directed at the users of the path(s).
10.4 Sandy Point Partners acknowledge that they have allowed access to their land, although this does not seem to have been done on such a way as to make it apparent to users their use was permissive (and therefore not `as of right'). None of the steps referred to above relate specifically to the dedication of a public right of way, and in the officers' view, they are not sufficient to rebut any presumption of dedication that might otherwise arise, particularly as the Partners were aware that the public had access to the land. Many of the actions referred to are also outside the relevant twenty-year period.
10.5 Reference is made to the fencing off of the land during construction of the marina in 1986 and this may be fatal to the claim for any paths which the public was prevented from using for any period of time, as it would mean that there was not an uninterrupted period of twenty years use. The users do not say that they were prevented at any time from using the paths; indeed the fencing may have been very temporary, or may not have affected the claimed paths. However, there remains a potential conflict in the evidence of the landowners and the users on this point.
11. Comments from the Applicant
11.1 The Applicant has had sight of a draft of this report and has made a number of points in response, including the following:
11.1.1 The slipway (at point X) was originally built by the Royal Navy in 1939 - 45 and became public property on their departure. The slipway cannot be reached via path 7 where there is an obstructing bollard.
11.1.2 Contrary to the landowners' recollections, the land was not closed off during the construction of the marina or the sea defence work in 2004/5. The partners have confused the fencing of the SINC by the Environment Agency. The Applicant therefore disagrees with paragraph 10.2.2.
11.1.3 A number of other matters in paragraph 10.2.2 are disputed. The Applicant's comments are not dealt with in detail, because the events referred to are outside the relevant 20 year period and so are not material to a claim based on user prior to 2001.
11.1.4 The Applicant suggests that the width of path be three metres to allow the passage of boats to the slipway. There is some evidence from the users interviewed that people did launch small boats from the slipway. This report is not able to make any comment on whether there is any right for the public to launch boats from this slipway, but officers believe that a greater width may indeed be appropriate for Paths 1 and 2b than for the other paths. This is reflected in the recommendation at paragraph 12.3.
11.1.5 Paths 2b and 6 form part of Havant Borough Council's planned `Round the Island' path.
12. Conclusions
12.1 Officers have reservations about the strength of the application (see paragraph 9.7) but think that it is, nonetheless, fair to say that a right of way on foot is reasonably alleged to subsist on each of Paths 1 - 6 by presumed dedication from use during the period 1981 - 2001 (Path 7 is not claimed and there is little evidence of its use). If an order is made, and disputed, then further clarity might be obtained from witness evidence given, and challenged, at public inquiry.
12.2 Recent correspondence from Havant Borough Council and Bovis Homes Investments Limited would suggest a willingness on their part to dedicate Paths 1, 3, 4 and 5 and this correspondence might also support an order on these routes on the basis of a presumed dedication at common law. Members might also find that there has been a presumption of dedication of Paths 2a, 2b and 6 as a result of recent use, albeit not for a period of twenty years, although this is not an inevitable conclusion from the evidence.
12.3 The question about width on the standard user evidence form has, generally, not been answered by the witnesses, so it is difficult to derive a width from the users themselves. On the ground, the paths are little more than tracks worn by footfall. A width of 1.5 metres is proposed as a pragmatic answer for Paths 2b, 3, 4, 5 and 6. The point made by the Applicant, that Paths 1 and 2a have been used to launch boats from the slipway at X, is borne out by some users. A width greater than 1.5 metres is therefore proposed for these paths. 2.5 metres would probably be sufficient to allow the passage of a small boat that can be launched by hand from the slipway.
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 CR730 - Rights of Way Office, Mottisfont Court, Winchester, including copies of some of the documents referred to above the originals of which can be inspected in Hampshire Record Office.