Hampshire County Council

Regulatory Committee Item 9

28 November 2007

Proposal to make a Map Modification Order to record a footpath from Footpath 1 to School Hill, in Bursledon 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;

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:

A resident of Bursledon has drawn the council's attention to a well-used and signed footpath that is not recorded on the definitive map as a public right of way. It has never been the subject of a Legal Order or Dedication Agreement. It is considered that the public has acquired a right of way, through a common law dedication, and it is proposed that a Definitive Map Modification Order be made to recognise this status.

2. Recommendation:

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 footpath with a minimum width of 1.5 metres.

3. Claimant:

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

4. Landowners:

There is no known landowner for this route. It is bounded by residential properties to the north and south.

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

5.1 The path runs from Bursledon Footpath 1 (point A) to a public road called School Hill (point B). It is bounded by a hedge on the north side and a wall on the south side about 1.5 to 1.8 metres apart. It has a well-worn earth and gravel surface with two shallow steps at its eastern end. At the School Hill end there is a metal signpost, set in a holly bush, carrying the words "Public footpath" together with a `No cycling' sign. This type of footpath signpost was commonly used by highway authorities in the 1950s. The path is about 40 metres long.

6. Background to the claim:

6.1 The questions regarding the status of the path were prompted by concern about the condition of the wall bounding the southern side of the path. Part of the original brick wall collapsed in 2004 and has been replaced by a structure made of horizontal wooden sleepers. This, too, is now leaning into the path and it is possible that a further collapse could cause problems for those wishing to use the path.

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 c1870 Ordnance Survey County Series Map - first edition

The path is shown and defined by parallel solid lines set about two metres apart. It forms a link between two, much wider, paths or roads. There are houses and gardens on both sides of the path.

8.2 c1895 Ordnance Survey County Series Map - second edition

There is no change in the depiction of the path from the previous map.

8.3 c1908 Ordnance Survey County Series Map - third edition

There is no change in the depiction of the path from the previous map.

8.4 1964 Ordnance Survey Map 1/2500 scale

There is no change in the depiction of the path from the pervious map.

8.5 1972 Ordnance Survey Map 1/2500 scale

There is no change in the depiction of the path from the previous map.

9. User evidence:

9.1 In 2005, 17 people submitted forms detailing their use of the path but no-one made a formal application for a map modification order. The user evidence is shown in visual form by the chart at the back of this report. The users have not been interviewed to expand upon their evidence but an extract from one of the forms is reproduced below.

9.2 Miss Gillard, who lives nearby, is the longest user of the path, starting in 1939. He says "I have used the path on a regular basis ever since I was a child and as far as I am aware it has always been a public footpath." All users mention the existence of the Public Footpath sign and the only reference to an obstruction concerns the boundary wall. Mrs Cook, and others, say that the path was obstructed "for a very short time" when the wall fell down in 2004.

10. Consultations with other bodies:

10.1 Bursledon Parish Council

In response to a request for evidence about the path, the Parish Clerk has provided the following information:

"This was discussed by Members at our last full Council Meeting on 24 October. Members agreed that this footpath has been in existence as long as any of them could remember. The sign post had been in existence for many years, although they could not put a figure on it. Members could not remember a time when this path had ever been blocked to deny access to the public."

10.2 Adjoining landowner - Mr D Brice

"The footpath lies to the immediate south of our house. We believe that the footpath is a de facto right of way in the sense that it gives good access for the public en route to and from the station, the church and other destinations. It is of no inconvenience to us and therefore we welcome it being adopted as a public right of way. We bought our house in 1984 and the path is used a great deal, so we support the Order as a route on the definitive map"

10.3 Eastleigh Borough Council

No comment

10.4 Councillor K House - local member

No comment

10.5 The Ramblers Association

No comment

10.6 Environment Department

No comment

10.7 Hampshire Highways

The Highways Manager (Eastleigh) has provided the following information:

"The path has been in existence for many years...but it has not been maintained in any way by Hampshire Highways. A query about the path was recorded in this office in April 2004, when part of the brick wall along the northern boundary of the property, The Bungalow, collapsed, obstructing the path. Some temporary signs were erected at the ends of the path, warning of the obstruction caused by the collapsed wall. The resident of The Bungalow was arranging for the wall to be dealt with through her insurance company. A site inspection carried out by this office noted that some of the remaining wall was in poor condition. The path does appear to be well used and there would be no objection from Hampshire Highways to its addition to the definitive map."

11. Analysis of the evidence:

11.1 From the Ordnance Survey maps it can be said that the path has existed in its present form for at least 130 years and there is evidence of use by the public over the last 68 years. The route is heavily worn by the passage of walkers, and the eastern end is signposted as a public footpath. Any stranger to the locality would naturally assume that it is a public right of way. There are no recorded instances of challenges or obstructions to users of the path other than the southern boundary wall which collapsed in 2004 but was quickly repaired.

12. Conclusions:

12.1 A public right of way on foot 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 landowners and use by the public since 1939.

12.2 The width of the path, between boundary features, 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: CR769 - Rights of Way Office, Mottisfont Court, Winchester