Hampshire County Council Item 10

Regulatory Committee

17 October 2007

Proposal to make a Map Modification Order to record a footpath from London Road to Green Lane in Hartley Wintney Parish as a public right of way

Report of the Director of Recreation & Heritage

Contact: Colin Piper Ext. 6043 [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 that event.

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

(b) the expiration... 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 which is not shown on 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 1980

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

(1) Where a way over 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.... is to be calculated retrospectively from the date when the right of the public to use the way is brought into question....

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:

As a result of work to produce a new definitive map of public rights of way in Hart District it has been discovered that a path thought to be a recorded right of way has never been the subject of a Legal Order or Dedication Agreement. There is ample evidence of use and it is proposed that a Map Modification Order is made to rectify the situation.

2. Recommendation:

That an Order be made to record the route A-B-C-D, as shown on the attached map, as a public footpath with a width varying between 1.5 and 1.8 metres.

3. Claimant:

There is no claimant in this case. The matter has been initiated by the rights of way officers.

4. Landowners:

A-B (part) Unknown

(part) Hart District Council

(part) Hampshire County Council

(part) 6 Paddock Court

(part) 7 Paddock Court

(part) 8 Paddock Court

(part) 9 Paddock Court

B-C Hartley Wintney Parish Council

Parish Council Office

Appleton Hall

West Green Road

Hartley Wintney

Hampshire

RG27 8RE

C-D Sentinel Housing Association

56 Kingsclere Road

Basingstoke

Hampshire

RG21 6XG

5. Description of the route: (please see map attached to report)

5.1 From London Road (point A) the path follows a gravel track across an open area of land to a substantial wooden footbridge across a stream. The bridge was built by the County Council and carries a yellow footpath waymark and a Countryside Service nameplate. From there it is mostly enclosed between the hedges and fences, about 1.5 metres apart, that bound the adjoining properties in Paddock Court to the south and Southern Haye to the north until it reaches the playing fields (point B). The path then runs along the side of the playing field, on the south side of a drainage ditch, to connect with a tarmac footpath at point C. The tarmac footpath runs behind the dwellings in Clayton Close to join Green Lane. The path is signed at the Green Lane end by a vertical wooden post carrying a yellow footpath waymark and the words "Public footpath" engraved on the side. The path is about 340 metres long.

6. Background to the claim:

6.1 In 1978 builders working on the construction of a new housing development, now known as at Paddock Court, obstructed the western end of a footpath that local residents alleged was a public right of way between London Road and Green Lane. The County Council took witness statements from users of the path, and employees of the previous landowners, and the County Secretary came to the conclusion that the path should be included on the definitive map when it was next revised. At that time paths could not be added to the definitive map by a Map Modification Order; the matter had to wait until the next periodic revision. In these circumstances the officers took a pragmatic view and entered into negotiations with all interested parties for the establishment of a path that would enable the public to use a route that did not interfere with the new housing development.

6.2 The end result of the negotiations was that the County Council purchased a strip of land to the north of Paddock Court, the ditch alongside the boundary hedge was culverted, with a financial contribution from the District Council, and the path constructed by the developers on top of the culvert. In 1981 the path was re-opened to the public, signposted at both ends, added to the working copy of the definitive map and even shown on Ordnance Survey maps. However, it has never been the subject of a legal Order or Agreement that would allow the Council to add it to the definitive map. Because of this the path has now been removed from the working copy of the definitive map and the latest editions of the Ordnance Survey maps, despite being in regular use by the local community.

7. The issues to be decided:

7.1. The issue to be decided by this committee is whether there is evidence to show that the footpath subsists, or is reasonably alleged to exist. Any changes to the definitive map must reflect public rights that already exist. It follows that changes to the definitive map must not be made simply because such a change would be desirable, or instrumental in achieving another objective. Therefore, before an order changing the definitive map is made, Members must be satisfied that public rights have come into being at some time in the past. This might be in the distant past (proved by historic or documentary evidence) or in the recent past (proved by witness evidence).

7.2 Evidence forms and statements taken from those who have used the path or have knowledge of it in living memory can show that public rights have been acquired as a result of a recent dedication at common law. 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 not a step which should be taken simply to avoid making a difficult decision. Officers do not consider that there is any such conflict here.

8. Documentary evidence:

8.1 1975 Ordnance Survey Map 1/2500 scale

This map shows the path alongside the Clayton Close dwellings connecting to the footway alongside Green Lane (C-D on map). North-west from point C there is a small stream which runs towards London Road but no footpath or track is shown alongside the stream.

8.2 1978-79 Witness Statements

In 1978 the County Council gathered evidence from local people concerning use of the path. A total of 12 people signed witness statements of which three were employees of the previous landowners and the other nine, users of the path. Their evidence is summarised below.

8.3 Employees evidence from 1978-79

Mr Bailey, Mr Barlow and Mr Charlton all worked for Mr Hazel who used the fields between London Road and Green Lane for growing vegetables and hops. Mr Charlton also worked for Mr Mitchell when the land was sold to him in about 1950. All three gentlemen describe the path as a farm track that was also used by the public to go about their everyday business. They say that the gates were never locked, there were no private signs and that the landowner did not stop or challenge people using the path. They were not given instructions to stop the public using the path.

8.4 User evidence from 1978-79

Most of the nine users started using the path during or shortly after the First World War. The statements are very similar in their content and that of Winifred Lovelock, made on 11 December 1978, is reproduced below:

"I have lived in Albion Place (London Road) all my life. I remember that the field where the houses are now being built belonged to Mr Hazel who ran the dairy in the village. There was a field gate on to the main road that we used to go through, and a sort of cart track running alongside the ditch on the side where the houses are being built now. That went right across to Green Lane and half way along there was a plank bridge where people used to cross to the allotments. I used to go over there with my sisters and friends to play and for walks with my parents. Mr Hazel never stopped anyone going along the path and when he died and Mr Mitchell took the field over we used it just the same. I am over 70 now and until very recently I have always used the path without restriction."

8.5 1980 Letter from Rights of Way officer to Landowner

The letter, written on 7 October, reads in part:

"A great deal of evidence has been submitted to the County Council claiming the path ... as a public right of way. In the opinion of the County Secretary the evidence from the claim forms is sufficient to include the claimed right of way on the Draft Revised Definitive Map as a footpath...At this time the possibility exists to agree a line for the footpath which, while acceptable to the public, would appear to be in the best interests of the landowner, that is to say a six feet wide width against and on the south side of the ditch. The steps required in the banks and sleeper footbridge would be provided by Hampshire County Council. The section of the path in the control of Phoenix Self-Build would very shortly be put in a condition fit for public use, therefore, it would be appreciated if we were able to agree a line for the path at the very earliest opportunity when the usual signposts will be erected."

8.6 1981 Letter from County Secretary to solicitors acting for Phoenix Self-Build

Phoenix Self-Build were in the process of constructing the new dwellings now known as Paddock Court. This letter says that the County Council is to purchase a strip of land 93 metres long and 1.83 metres wide to facilitate the establishment of the path. This land must be part of the length of path sandwiched between the back gardens of the properties in Paddock Court and Southern Haye. The County Secretary asked Phoenix to surface the footpath to a suitable standard, to be agreed with the County Rights of Way Officer, and then the land was to be dedicated to public footpath use.

8.7 1981 Letter from Mr Mitchell to Rights of Way Officer.

It is believed that Mr Mitchell was the owner of a short section of the proposed footpath between London Road and the enclosed part behind the gardens. The letter dated 9 May, reads in full:

"Thank you for your letter ...and hereby acknowledge that the public footpath, shown on the attached map which I have signed, is a right of way dedicated for public use. This agreement is conditional upon the County Council constructing a sleeper footbridge to ensure that the path runs as close to the north-east boundary of the property as is possible."

The attached map shows that section of path between A and B coloured and annotated as "approx. line of footpath".

8.8 1981 Memo from County Secretary to County Estates Officer

"Mr Maltby (rights of way officer) has explained to me that the dedication from Mr Mitchell is, in fact, only in respect of the small piece of land shown coloured green (the first 50 metres from London Road) It is not in respect of the whole length of the footpath shown coloured purple on the plan signed by Mr Mitchell. The remaining land is supposed to be owned by Phoenix Self-Build but in fact my investigations of their title show that ...none of the footpath land behind the properties fronting onto Paddock Court is registered as belonging to Phoenix Self-Build. If there is a footpath in existence and everyone is using it without complaint, is there going to be any point in pressing Phoenix Self-Build for a transfer of the footpath land, particularly as the evidence suggests that they do not own it?"

8.9 1982 Purchase of land by HCC

On 17 February 1982 the County Council purchased a small area of land, crossed by the footpath, from Phoenix Self-Build. It is about 35 metres long and situated between the houses that front on to London Road. There is no subsequent formal record of the purchase of additional land for the footpath, by the County, or a dedication agreement for the provision of a public right of way.

8.10 1998 Ordnance Survey Pathfinder Map 1/25,000 scale

The route in question has been shown by dashed green lines to indicate the existence of a public footpath.

9. Contemporary user evidence:

9.1 The officers have not gone to great lengths to gather user evidence because it seems to be widely accepted that the path is a public right of way. The section between A and B is heavily worn by the passage of walkers and both ends of the path are waymarked. Any stranger to the locality would naturally assume that it is a public footpath and there are no recorded instances of challenges or obstructions, other than natural vegetation, to users of the path. The parish council have returned five user evidence forms that have been completed by local residents and these are précised below.

9.2 Mrs Susan Band of Thackhams Lane

Mrs Band has used the path on an irregular basis from 1983 to the present day for recreational walks and errands around the village. She does not recall there being any obstructions or interruptions to her walks.

9.3 Mr & Mrs Beezley of Crichet Green Lane

Mr and Mrs Beezley have used the path from 1970 to the present day to walk their dog. Mrs Beezley has used the path on a weekly basis and Mr Beezley about 10 times a year.

9.4 Mrs J Davies of Church View

Mrs Davies has used the path several times a year from 1988 to 2007 as a short cut from her home to the village hall and shops.

9.5 Mrs V James of Southern Haye

Mrs James has used the path most days from 2000 to the present day for walking her dogs. She notes the existence of signs saying HCC Countryside Service.

10. The landowners:

10.1 Both known landowners; the Parish Council and Sentinel Housing Association have been consulted and have not disagreed with the proposition that the footpath is a public right of way - see below. Indeed, both the parish council and the district councillor were under the impression that the path had already been officially recognised and recorded as a public right of way.

11. Consultations with other bodies:

11.1 Hartley Wintney Parish Council

The Parish Clerk has written to say that:

"Parishioners have used the current footpath between points A and D without interruption since the mid 1970s."

11.2 Sentinel Housing Association

The Neighbourhood Co-ordinator has written to say that:

"To the best of my knowledge Sentinel Housing Association are responsible for the part of the footpath between points C and D. I have been familiar with the area for about 3.5 years and for that period the path has been used by the public without interruption."

11.3 Hart District Council

The local district councillor, Susan Band, has written to say that:

"I can confirm that I have used the footpath off and on since about 1982 as a quick means to reach the A30 from Green Lane and vice-versa."

11.4 Councillor D Simpson - local member

"I can confirm that local residents have assured me this has been in use as a footpath for many years and I have no hesitation in supporting its official recognition as a public right of way."

11.5 The Ramblers Association

The County Secretary of the RA confirms that the path is well used. It has finger posts at both ends and is waymarked along its length. The RA has a copy of an early definitive map that shows this path as Hartley Wintney Footpath 556.

11.6 The Open Spaces Society

No comment

11.7 Environment Department

No comment

11.8 Hampshire Highways

No comment

12. Analysis of the evidence

12.1 From the witness statements taken in 1978-79 it is apparent that there was a path in use between London Road and Green Lane from the First World War onwards. The construction of the houses in Paddock Court interrupted that usage in 1978 and led to negotiations between the local authorities and the landowners regarding the provision of a public path to enable access on foot to be maintained between the two highways. The landowners did not dispute the existence of a right of way and co-operated with the local authorities for the construction of a footpath at the rear of the gardens in Paddock Court. This path was available for public use from 1981 onwards.

12.2 The path was signposted by the County Council in 1981 and signs and waymarks are still in place at both ends of the path today. The Council also provided a footbridge over the stream, close to the London Road end of the path, and have carried out maintenance work on the path at various times over the years. The path has even been recorded on Ordnance Survey maps published in the 1990s as a public footpath and has evidently been well-used in recent times. There is no evidence whatsoever of challenges or interruptions to use of the path since 1981.

12.3 The existence of the right of way on its pre-1978 route was not resolved by the County Council. The officers took a pragmatic approach to establish a path that the public could continue to use and sidestepped the issue of a potential right of way through the back gardens of numbers 5-9 Paddock Court. Given the age of those users who made statements in 1978-79 it would be difficult to resurrect a claim for a footpath on the earlier route slightly to the south of the current path, even if that was thought desirable. However, the fact that landowners co-operated in establishing an alternative path that has been in use from 1981 onwards, is strong evidence that they intended to dedicate the path as a public right of way. In other words there is good evidence of a common law dedication.

13. Conclusions

13.1 A public right of way on foot is reasonably alleged to subsist on the route A-B-C-D as a result of deemed dedication at common law, based on the actions of the landowners and use by the public since 1981.

13.2 The width of the path established on the ground varies between 1.5 and 1.8 metres.

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: Hartley Wintney Footpath 503 - Rights of Way Office, Mottisfont Court, Winchester