Hampshire County Council

Regulatory Committee Item 10

28 November 2007

Application for a Map Modification Order for the addition to the definitive map of a footpath between Hart Plain Avenue and Silvester Road at Cowplain in Havant Borough

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;

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:

1.1 A resident of Waterlooville has made an application to have a route between Hart Plain Avenue and Silvester Road, in Cowplain, recorded as a public footpath. It is considered that the public has acquired a right of way, through a common law dedication, but the status of the path, that best reflects use by the public over many years, should be a restricted byway. It is proposed that a Definitive Map Modification Order be made to recognise those rights.

2. Recommendation:

2.1 That an Order be made to record the route A-B, as shown on the attached map, on the definitive map of public rights of way, as a public restricted byway with a width of seven metres.

3. Claimant:

Mr M Walford

23 Esher Grove

Waterlooville

Hampshire

PO7 6HJ

4. Landowners:

4.1 The land is not registered and there is no known owner. Notices advertising the application have been displayed on site, addressed to the owner/occupier, but there has been no response.

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

5.1 The claimed route consists of a strip of land, between seven and nine metres wide and 92 metres long, between Hart Plain Avenue and Silvester Road in Cowplain. The land is bordered by the gardens of four adjoining residential properties and there is a surfaced path, 2.1 metres wide, that meanders down the middle of this strip of land with grass verges on both sides. At the Hart Plain Avenue end of the path there are eight concrete posts that stop access for vehicles and at the Silvester Road end there are four metal posts that serve a similar purpose. The path has four street lights along its length. There are no signs or notices on display.

6. Background to the claim:

6.1 The claimed path has been in existence and used for at least 70 years. At various times there have been concerns about its condition and misuse and, although these now seem to be resolved with recent improvements to the route, the claimant is anxious to secure its status as a public right of way.

7. The issue to be decided:

7.1 The issue to be decided by this committee is whether there is evidence to show that a right of way subsists, or is reasonably alleged to subsist. 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).

7.3 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, or a deemed dedication under s.31 Highways Act 1980. 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 1909 Ordnance Survey map - 1/2500 scale

At this date the area consists of mostly fields and woods with a few houses on the west side of London Road forming the village of Cowplain. Silvester Road is shown coming off the London Road for a short distance with houses on both sides including number 25 which is at the north eastern end of the claimed route. There is no path or track along the claimed route.

8.2 1910 Plan of the Hart Plain Estate - 1/10,560 scale

This plan shows the proposed sale and development of land south and west of Cowplain. The claimed route is the northern part of what is intended to be a very long road running south westwards from the side of No.25 Silvester Road. It is annotated `Hart Plain Road' and various other proposed roads run from that spine road eastwards to London Road. The development that took place after this date only partly followed this original plan.

8.3 c1930 Photograph

This photograph is taken looking westwards down Hart Plain Avenue and shows a group of children playing in the road with not a vehicle in sight. A gap can be seen between the houses on the north side of the road where the claimed path should be but the land itself is not visible. However, the photograph does show two posts in the boundary line fronting the road that would probably have restricted access to pedestrians and bicycles.

8.4 1940 Ordnance Survey map - 1/2500 scale

This plan shows the area semi-developed with houses occupying both sides of Silvester Road and Hart Plain Avenue. There is a school on the south side of Hart Plain Avenue. The road called `Hart Plain Road' on the 1910 map has not been constructed although the alignment has not been built over, including the section of claimed path.

8.5 1961 Ordnance Survey map - 1/2500 scale

By now nearly all the frontages on Silvester Road and Hart Plain Avenue have been developed, but the strip claimed as a right of way is still clear of any buildings, or boundary features fronting the roads.

8.6 1994 Photographs

The first photograph was taken from the top floor of No. 24 Silvester Road, immediately opposite the northern end of the path. The view is taken looking south, straight down the strip of land, and shows a fairly wide track, through snow, roughly in the middle of the plot. Towards the end there are brambles and bushes on both sides of the path where the track narrows. There are no barriers or posts at the northern end.

The second photograph was taken from the other end of the claimed route and shows a line of concrete bollards along the path entrance in Hart Plain Avenue. There is a worn route, approximately two metres wide, through snow with brambles and bushes on both sides.

8.7 2003 Application for Map Modification Order

Mr Walford made his application on 31^st July. This action is recognised by law as a bringing into question of the public right of way.

8.8 2003 Letter from Havant Borough Council

On 9 July Havant Borough Council sent the following letter to Mr Walford:

"...ownership of the land you refer to remains unknown despite this Council carrying out detailed investigations of the site on several occasions. Whilst the Council has positioned street furniture upon the land (litter bins etc.) and has from time to time cut back the undergrowth and cleared the site, it did and continues to do so purely from the point of view of safety and to prevent an eyesore developing."

8. User evidence:

8.1 Mrs Masters of Silvester Road

As a child Mrs Masters lived in Horndean and attended the Hart Plain Secondary School for girls in Cowplain from 1938 to 1941. Her walking route to and from the school included the path between Silvester Road and Hart Plain Avenue. In those days it was quite a narrow path with brambles and bushes on both sides. Other children used the same route to get to and from school. She didn't use the path between the ages of 14 and 22, but when she got married in 1949 she moved with her husband to No. 24 Silvester Road which is right opposite the entrance to the path. Mrs Masters then used the path nearly every day to go about her everyday business. At times the path was a muddy track and quite overgrown with brambles at the sides but the people who lived in the houses on both sides would trim the bushes back to keep it clear. For as long as she has known it the path has been well used by local people for walking and cycling. There has been the occasional car and motorbike that's gone down there but usually they were trying to hide from the police. To stop this activity, posts were put up across the far end of the path about 10 years ago. The path is now surfaced and street lights have been put in along its length.

8.2 Census 2007

On 2 October of this year the investigating officer observed 61 school children use the path in the space of about 5 minutes and a further 50 or so people, both adults and children, use the path in the next 30 minutes. Approximately 10% of the users were on bicycles.

9. The landowners:

9.1 There is no known owner for this land.

10. Consultations with other bodies:

10.1 Havant Borough Council

Awaiting response

10.2 County Councillor I Beagley - local member

No comment

10.3 The Ramblers Association

The SE Hants Secretary, who lives nearby in Horndean, has provided the following information:

"The Hart Plain Estate Company, formed in 1900 and wound up in 1930, had intended that Hart Plain Road (as was) should run southwest from Silvester Road to a junction with Hambledon Road. This road is shown on the Hart Plain Estate Sale Map produced for a sale of land in June 1910. This particular linking road was never built. Hart Plain Avenue was subsequently built in an east-west direction but the original link from Silvester Road to Hart Plain Avenue was retained and is the subject of the DMMO application.

The link was used by schoolchildren attending Hart Plain School, built in 1931, it was known as "The School Footpath" local residents apparently accepted that this was a recognised school path, its right of use was never challenged and it has continued to be used regularly by schoolchildren up to the present day."

10.4 Environment Department

No comment

10.5 Hampshire Highways

No comment

10.6 Adjoining landowners

No comment

11. Analysis of the evidence:

11.1 The claimed route has existed as a physical feature for about 90 years and the plans from that time suggest that it was originally intended to form part of the local highway network when the area was earmarked for housing. For some reason this strip of land was not developed but instead provided an informal short cut for the local residents to get between Silvester Road and Hart Plain Avenue.

11.2 From witness evidence it is known that the path has been in general use by the public from the 1930s onwards with no evidence of restrictions on that use other than posts which would probably have prevented use by vehicles. Use by the public created a worn route down the middle of the strip of land and in recent years that use has been regulated by the construction of a gravel path, street lights and concrete/metal posts to stop vehicles.

11.3 The majority of the use by the public has been on foot but with significant use by cyclists. There is no evidence of use by horse riders, which is not surprising given the urban nature of the surroundings, and very little use by vehicles. Until recently use of a route by cyclists could have resulted in the public acquiring byway rights because a bicycle was classed as a vehicle. However, recent legislation, the Natural Environment and Rural Communities Act 2006, stipulates that use of a way by non-mechanically propelled vehicles, such as a pedal cycle, can no longer give rise to byway rights. Instead, in appropriate circumstances, it is capable of giving rise to restricted byway rights. A restricted byway can be used by walkers, cyclists, horse-riders and horse-drawn vehicles.

11.4 In this case, because the route was laid out as part of the estate road network, and because there has been no use by horse riders, it is considered to be more appropriate to record the route as a restricted byway. Although current use is mostly confined to a relatively narrow gravel path, in the past the public had access to the full width of the lane and therefore the whole width should be recorded as a public right of way.

12. Conclusions:

12.1 A public right of way is reasonably alleged to subsist on the route A-B as a result of deemed dedication at common law, based on the actions of the landowner and use by the public since circa 1938.

12.2 There is evidence that the owner intended the path to be part of the local road network and this, coupled with subsequent use by walkers and cyclists, gives rise to restricted byway rights.

12.3 The public has acquired a right of way over the whole width of the path, between boundary features, that is a minimum of seven 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 CR768 - Rights of Way Office, Mottisfont Court, Winchester