Hampshire County Council

Regulatory Committee Item 11

10 January 2008

Proposal to extinguish parts of Rushmoor Footpaths 16, 33a and 34b, and all of Rushmoor Footpath 34a, and to make a Map Modification Order to record alternative footpaths in Farnborough as public rights 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

118. Stopping up of footpaths, bridleways and restricted byways

(1) Where it appears to a council as respects a footpath...in their area that it is expedient that the path or way should be stopped up on the ground that it is not needed for public use, the council may by order...extinguish the public right of way over the path or way.

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 As a result of work to produce a new definitive map of public rights of way in Rushmoor Borough, anomalies have been discovered in the rights of way network brought about by incomplete or deficient Legal Orders made in the 1960s. It is proposed to extinguish four sections of paths that pass through houses and gardens that have been in place for at least 30 years and to record alternative routes that have been provided on the ground as public footpaths.

2. Recommendations:

1) That members approve the making of an Order to extinguish part of Footpath 16 between points A-B as shown on the attached map.

2) That members approve the making of a Map Modification Order to record route B-C, as shown on the attached map, as a public footpath.

3) That members approve the making of an Order to extinguish part of Footpath 33a between points D-E as shown on the attached map.

4) That members approve the making of a Map Modification Order to record routes D-F-G and F-H, as shown on the attached map, as a public footpath.

5) That members approve the making of an Order to extinguish all of Footpath 34a between points J-K as shown on the attached map.

6) That members approve the making of a Map Modification Order to record routes L-M-N and M-O, as shown on the attached map, as a public footpath.

7) That members approve the making of an Order to extinguish part of Footpath 34b between points P-Q as shown on the attached map.

3. Claimant:

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

4. Landowners:

All owners/occupiers of the properties effected by the extinguishments have been notified of the County's proposals. There are no known owners of the land crossed by the paths proposed to be added. All the routes that are proposed to be added to the definitive map are recorded on Chalist as publicly maintainable highways.

5. Background to the proposal

5.1 In the 1960s and 1970s an extensive area of land north of Farnborough Town was developed with new houses by the London County Council. To accommodate the new dwellings it was proposed that the existing rural rights of way would be diverted onto alternative routes. However, in the case of Footpath 16, there is no evidence that a Legal Order was actually made and, in the case of Footpaths 33 and 34, the Legal Order plan did not show some of the alternative routes correctly.

6. Description of the routes to be extinguished and added:

(please see map attached to report)

6.1 Footpath 16

The section proposed to be extinguished is the middle portion between Kingsley Road and Shelley Rise (A-B). It runs through 18 properties in Chaucer Road. The alternative route for this right of way is the footway alongside Dryden Road and Giffard Drive, a type of highway that cannot be recorded on the definitive map. There is also a direct pedestrian link to Giffard Drive (B-C) that consists of a 1.5 metre wide, surfaced path.

6.2 Footpath 33a

The section proposed to be extinguished is the eastern section between Tweed Close and Fernhill Road (D-E). It runs through one property in Fernhill Road and another two in Orwell Close. Alternative, surfaced footpaths (2.0 metres wide) have been provided to the south that connect with Fernhill Road (D-F-G) and Sunnybank Road (F-H).

6.3 Footpath 34a

It is proposed to extinguish the whole of this path between Pennine Way and Footpath 33a (J-K). It runs through two properties in Flinty Walk and five more in Pennine Way. An alternative, surfaced footpath (1.9 metres wide) has been provided that runs south westwards from Footpath 33a, alongside the motorway boundary, to connect with Brecon Close (L-M-N) and an extension continues south westwards to connect with Sidlaws Road (M-O).

6.4 Footpath 34b

The section proposed to be extinguished is a middle section between Forth Close and Sunnybank Road (P-Q). It runs through one property in Loddon Road, three in Forth Close and two in Sunnybank. The only alternative route for this footpath is the footway alongside Forth Close and Sunnybank Road; a type of highway that cannot be recorded on the definitive map.

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 path ought to be shown on the definitive map as a public right of way. 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.

7.3 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.

8. Documentary evidence:

8.1 1964 Definitive Map 1/25000 scale

This document shows all three footpaths on their original alignment before any development or Orders affected their routes.

8.2 1965 Notice of application to divert Footpath 16

On 25 January 1965, the Clerk to Farnborough Urban District Council published notice of an intention to make an application to Aldershot Magistrates Court for the diversion of Footpath 16. The accompanying plan shows the original route of the footpath and the alternative route along the proposed estate roads. It has not been possible to find evidence that the application to the Magistrates Court was actually made and granted.

8.3 1965 Magistrates Order

On 18 March 1965 Aldershot Magistrates granted an application to divert all of Footpath 33 and the vast majority of Footpath 34. The accompanying plan shows the original routes of both footpaths in blue and the numerous alternative routes in red. The plan is fairly accurate in its depiction of the alternative routes, some of which run along the proposed estate roads and some along internal estate paths. However, in several places the diverted routes are significantly different from what was eventually constructed on the ground and it is these sections that are the subject of this report.

8.4 1968 M3 Motorway Side Roads Order

This Legal Order altered all the roads and paths affected by the construction of the M3 motorway through this part of Hampshire. The Order assumed that the original line of Footpath 33 had been properly diverted in 1965 and diverted it again, this time onto a new footbridge across the motorway.

9. Contemporary user evidence:

9.1 All of the alternative routes are surfaced footpaths, with street lights, that are recorded by Hampshire Highways as publicly maintainable highways. From observation all routes are in regular use by pedestrians as part of the network of paths on the estate.

10. The landowners:

10.1 There is no known landowner for those paths to be added to the definitive map. The owners of properties affected by the extinguishments have been informed by letter of the Council's proposals.

11. Consultations with other bodies:

11.1 Rushmoor District Council

The solicitor to the Council responded on 24 October to say that she had no particular comment to make.

11.2 Councillor C Leversha - local member

No comment

11.3 Councillor R Baulk - local member

No comment

11.4 The Ramblers Association

No comment

11.5 The Open Spaces Society

No comment

11.6 Environment Department

No comment

11.7 Hampshire Highways

No comment

12. Analysis of the evidence and conclusions:

12.1 Although it was intended to properly divert the paths to allow for the new development, the process was either inaccurate or incomplete.

12.2 Given that there has been no complaint regarding the obstruction of the paths by the housing development, and that alternative routes have been provided, it is reasonable to argue that the rights of way are not needed for public use.

12.3 A public right of way on foot is reasonably alleged to exist on the alternative routes as a result of deemed dedication at common law, based on the actions of the landowners and use by the public since circa 1970.

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: Farnborough 16/33/34 - Rights of Way Office, Mottisfont Court, Winchester