Hampshire County Council

Regulatory Committee Item 9

14 February, 2008

Application for a Definitive Map Modification Order to record a Footpath from High Street Access Road to Marine Parade East, Lee-on-the-Solent, Gosport

Report of the Director of Recreation and Heritage

Contact: Sylvia Seeliger, Ext. 6349 [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 the occurrence of that event

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

(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 a way as a highway presumed after public use for 20 years

Where a public 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 actually been enjoyed by the public as of right and without interruption for a full period of 20 years, the way is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during this period to dedicate it.

1 Summary

This is an application for a Definitive Map Modification Order to record a footpath from High Street to Marine Parade East, Lee-on-the-Solent, Gosport. User evidence has been put forward which shows that twenty eight witnesses have used a footpath that ran between the parked cars in the car park of the former Belle Vue Hotel.

2 Recommendation

That a Definitive Map Modification Order be made to record a footpath between Marine Parade East and the U561, Marine Parade/High Street Access Road 2, Lee-on-the-Solent, at a width of 2 metres.

3 The Claimed Route

The claimed route runs across an area which is no longer accessible, since it is now within the area of a development of retirement flats, and has been surrounded by a wooden hoarding. Appended to this report is a map which shows the claimed route, marked A to B. The land was the car park of the former Belle Vue Hotel, and had a tarmacadamed surface, part of which is still visible at the extreme north western edge of the development. Aerial photography taken in 1999 shows the hotel car park as being contained by a wall between the hotel and the adjoining property 37 Marine Parade East, and the hotel building itself. There do not appear to have been any boundaries on the north and south edges of the car park.

4 The Applicant and the Application

4.1 The application, made in April 2003, was signed by Mr. A. Williamson, then of 27 High Street, Lee-on-the-Solent. It was accompanied by nine completed user evidence forms and maps in support of the claim. The map of the claimed route shows the path over the Belle View car park.

4.2 The application is accompanied by a map of a scale larger than 1:25.000, and in this respect it would appear to comply with paragraph 1 of Schedule 14 of the Wildlife and Countryside Act 1981.

4.3 Mr. Williamson has now moved away from Lee-on-the-Solent, and is in failing health, so Mr. L. Milne, of 24 High Street has agreed to act on his behalf.

5 The Landowners

McCarthy and Stone (Developments) Limited of Homelife House, 26-32 Oxford Road, Bournemouth is the owner of the land over which the claimed path runs. McCarthy and Stone are represented by Bond Pearce LLP, of Bristol. The landowner disputes the existence of a public right of way between points A and B, and its submission can be found at paragraph 10 below.

6 Consultation

6.1 Letters of consultation have been sent to Gosport Borough Council, the Open Spaces Society, the Ramblers' Association, Rights of Way Area Officer (North-East) and the Environment Group (Hampshire County Council). The local member, Councillor Margaret Snaith, has been informed. The following responses have been received:

6.2 Councillor Snaith comments that her parents lived in Salisbury Terrace, to the north east of the Belle Vue Hotel, and she has used the claimed path herself many times in the past. She would be happy to see it as a public right of way.

6.3 The representative of The Ramblers' Association outlines the present situation with regard to the path, and says that `it would provide a useful short-cut', and mentions the car park of the `Working Men's Club' [British Legion Club] as part of a route from the High Street to Marine Parade East. The representative says that the Association `should support this application as an encouragement for walking in an urban area'. Despite the building work that has taken place, the representative sees `no obstruction to the public having a right of way beside the new flats to the sea front'.

6.4 The Area Rights of Way Officer has no evidence of users.

6.5 Gosport Borough Council has no comments to make.

7 The issue to be decided

7.1 This Committee is required to decide whether or not the evidence described in this report shows that a public right of way subsists, or is reasonably alleged to subsist, over the former Belle Vue Hotel car park, on the claimed route.

7.2 Any changes to the Definitive Map must be based on evidence of the history and past use of the path in question and must reflect public rights that already exist. It follows that the Map must not be amended simply because such a change would be desirable, or instrumental in achieving another objective. Neither should such a change be avoided for the opposite reason. If Members are satisfied that a public right of way of a particular description subsists, or is reasonably alleged to subsist, over the claimed route, then a map modification order should be made.

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. No evidence has been put forward by the owners of the hotel site during the relevant period for the purposes of s.31 Highways Act 1980, though the present owners contend that the evidence does not support the application. In these circumstances, officers do not consider that there is any conflict 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 consult these when considering this report.

8 Historic and Documentary Evidence

8.1 There is no evidence that the claimed path has ancient or historic origins. Ordnance Survey maps dating from between approximately 1870 and 1940 show a field boundary running through what later became the car park to the west of the former Belle Vue Hotel, with the fourth edition of the County Series showing a building on that site. No paths or tracks are recorded over the site itself.

8.2 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 of the Highways Act 1980, or under common law.

9 The User Evidence

9.1 Nine user evidence forms were submitted with the application, disclosing use by ten users. Subsequently another seventeen completed evidence forms were received, making twenty six forms altogether, and another witness emerged during interviews. The total of users is therefore twenty eight. Nine witnesses have been interviewed and have signed statements. Each form was accompanied by a map on which the witness had indicated where they had walked, and it became evident that, although the applicant had shown on his map a route from Marine Parade East to the Marine Parade/High Street Access Road 2 only as the subject of the application, other witnesses had continued north across the British Legion Club car park in order to reach the High Street. Therefore, it was thought expedient that an extension to the claimed route be considered in this investigation, and this is shown from B to C on the accompanying plan. The route that is the subject of this application (A to B) will the considered first, and then the evidence relating to B to C.

9.2 Appendix 1 is a table that shows the use of the path by those 28 people who have submitted evidence. This is, of necessity, a generalisation, but may give a feel for the extent of the use claimed. Frequency of use varies from three or four times a year, to up to four times daily on some occasions. The majority of witnesses had used the path in April 2003, the time that user forms were circulated. From three of the forms, it appears that this was when the Belle Vue Hotel car park was closed off by hoardings by the present owners of the land. A summary of the use put forward by each witness is presented in Appendix 2.

9.3 The earliest use claims to have been from the 1920s, but this is difficult to reconcile with the available Ordnance Survey mapping from the 1930s, which shows a dwelling on the site later occupied by the car park. Only two witnesses disclose use before 1960, with five between 1960 and 1970, while there were 14 users by 1980, and 24 by 1990. The chart shows the bulk of use taking place between 1980 and 2003.

9.4 The only obstruction to use of the claimed path between points A and B across the Belle Vue car park disclosed in the forms is the hoarding put up round the site to allow development to take place. Three witnesses refer to possible signs, one being `Private Car Park' and the other saying something like `Vehicles parked at owner's risk'. The witness who reported the former said `it was not a public car cark, and I did not think the sign...applied to walkers'. None of the witnesses was able to recall when any notices were in place. Given that the alleged path passed across a car park, and that the surface was asphalt, there was no worn surface to indicate its position. What exact route each witness used depended on how many cars were parked, and where they were parked. One witness talks of sticking to the west boundary of the car park if there were no cars there, while two witnesses walked diagonally across the car park when it was empty. The majority of the witnesses have shown the route that they walked on the maps accompanying their forms as over the space between the two herringbone rows of parked cars.

9.5 There is no evidence from users that the car park was made unavailable to them during their use, until the former hotel site was closed off by hoardings in 2003. None of the witnesses reports being stopped by anyone, or knowing of anyone else who had been stopped. All walked without permission, and none had any connection with the landowner. Witnesses also report having seen others using the route, mostly on foot, though some had bicycles, or were in vehicles. Some of the users themselves admitted to having used the car park on bicycles and with vehicles. However, the bulk of their use was on foot. No evidence has been submitted that suggests that this use has not been as of right.

9.6 What can be understood from this evidence is that local people have used a route over the former car park of the Belle Vue Hotel, since the late 1970s (see Appendix 1), until the erection of hoarding around the entire site of the former hotel by the present owners, in 2003. The erection of the hoarding in that year brought the right of the public to use the route into question, and therefore the relevant period for the purposes of s.31 of the Highways Act is 1983 to 2003.

9.7 It is not unreasonable to conclude that, on the balance of probabilities, the claimed path has been created by local people going about their business, to post letters, dog-walking, exercise, or visiting the amenities of Lee-on-the-Solent during that period. Their use is capable of giving rise to a presumption of dedication under s.31 of the 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 Landowner

10.1 Officers have attempted to contact Stone Manor Hotels Limited, the former owners of the Belle Vue Hotel, prior to its sale to McCarthy and Stone, to obtain details of how the car park was managed, and the details of any signs appearing there. At the time of writing, it is not proved possible to obtain this information. The only information that is available for the relevant period is therefore that contained in the submission made by the present owner of the site, McCarthy and Stone. The contents of this submission are summarised below (the full submission is available for Members to view).

10..1.1 In brief, McCarthy and Stone acquired the Belle Vue Hotel on 2^nd May 2003 from Stone Manor Hotels, owners since 1978, and also an interest in 42 Marine Parade East, with the intention of building retirement apartments on the land previously occupied by these two properties. The Local Authority search revealed no recorded public right of way over the land. While the ownership transfer was being carried out, application was made for an easement over the land by the owners of No. 7 and No. 9 High Street, Lee, which Stone Manor Hotels Limited and McCarthy and Stone resisted, leading to the withdrawal of the application.

10.1.2 The submission summarises the facts of the application.

10.1.3 The McCarthy and Stone submission states that 38 Marine Parade East came under the same ownership as the hotel at some unknown date, and was then demolished to make way for a car park for the patrons of the hotel, The date when it was laid out is not known. They say that signs were erected on the land at each entrance to the car park stating that the land was private property for the use of hotel patrons only. These signs were still in place when McCarthy and Stone acquired the hotel in May 2003. The submission includes a photo of the hotel dating from the mid 1970s, by which time No. 38 had been demolished and a fence was in place along the front aspect, providing a barrier to Marine Parade East. The car park was not constructed at this date. It is the view of McCarthy and Stone that this photograph supports the contention that as late as the mid-1970s, it was unlikely that there was direct access to the seafront via the land on which 38 Marine Parade East stood, and this in turn calls into question the claims of some users that access was available from 1935 onwards.

10.1.4 The user evidence is analysed in McCarthy and Stone's submission. It is contended that the actual number of users is 18, with 11 from the High Street, 3 from Cambridge Road, 5 from elsewhere in Lee, 2 from Gosport, 2 from Fareham and 1 from London. The reason for this reduction in the number of `independent users' is that some of them reside at the same address, and one is the grandson of a Lee resident. Only 4 of the users have addresses outside Lee. All but two witnesses live in close proximity to the claimed route. Six of the witnesses use a route through the British Legion car park, to get to the lane at the back of the hotel site, and this car park is not a public right of way. McCarthy and Stone feel that the route to the sea front is not viable without access through the British Legion car park. If this were not available, the users would need to use a longer route down Cambridge Road or Beach Road to get to the lane at the back of the site. Two users live in Solent Heights, fronting on to Marine Parade East at its junction with Beach Road, leading to the High Street. The view is taken that `It...appears odd that they should walk the route they claim as the quickest way to the High Street for them would be via Beach Road', especially as it would involve using the British Legion car park, which is private land. Further, two users who live a car journey away, and there is a car park on the sea front. It also seems odd that they say they have accessed the High Street via the site, when Beach Road is much closer to the public car park and therefore a more logical route. Land Registry information obtained by McCarthy and Stone shows that some users have lived in their current addresses for less than twenty years, and this calls into question their evidence supporting a claim for use of the route for more than that time.

11 Discussion of the User and Landowner Evidence

11.1 For section 31(1) of the Highways Act 1980 to operate and give rise to a presumption of dedication the following criteria must be satisfied:

· the physical nature of the path must be such as is capable of being a right of way at common law

· the use must be `brought into question', i.e. challenged or disputed in some way

· use must have taken place without interruption over a period of twenty years before the date on which the right is brought into question

· use must be as of right, i.e. without force, without stealth and without permission

· use must be by the public at large

· there must be insufficient evidence that the landowner did not intend to dedicate a right of the type being claimed

11.2 The path is of such a character that it is capable of being a right of way at common law.

11.3 The relevant period for the purposes of s.31 of the Highways Act is 1983 to 2003.

11.4 The user evidence forms do not disclose any interruptions to use, that is any physical or actual prevention of the public's enjoyment of the way. None of the witnesses report any physical obstructions in the hotel car park, or any closures during the relevant period. The McCarthy and Stone submission includes a photograph, apparently dating from the 1970s, showing a fence along the frontage of the former 38 Marine Parade East, thus forming a barrier to Marine Parade East. The dating of the photograph is not precise, and it is not known when the car park was laid out. In the absence of any direct information about a date for the car park's construction from the landowner during the period 1983 to 2003, it is reasonable to assume that the evidence from the forms is that there was no interruption to the public's use during the relevant period.

11.5 None of the witnesses sought permission to use the route. Since there were no barriers to the car park during the relevant period, there was no need to use force. The area was freely available to be walked across, and was used by the public. Some witnesses said that they saw members of hotel staff, and were visible by them while using the way, so no stealth was involved in the use. One reports talking to the maintenance man for the hotel regularly. Her use of the car park to walk through was not questioned. Therefore, the use of the public of the way during the relevant period was as of right.

11.6 Use of a way should not consist solely of a particular class of person, such as the employees of a particular employer, tenants of a particular landlord, or customers of a particular business, if it is to be recorded as public. While four of the users report having had a meal or meals in the hotel, none had any connection with the owners, or going to consume meals at the hotel was not the primary purpose of their regular use of the way. The submission by McCarthy and Stone seeks to reduce the number of `independent' users by pointing out that some of them live at the same address, and to suggest that the users come from a very constrained locality. While it can be said that evidence taken from users living at a number of addresses might be felt to carry more weight than evidence from the same number of users living at one address, there is nothing to suggest that evidence should be taken from only one user at an address. Even though a number of witnesses come from the same address, officers feel that there are enough users to raise the assumption that a public right of way has been acquired over the path from A to B, on the balance of probabilities. The users' addresses are found in streets near to the path, but that is in the nature of urban short cuts that they are most heavily used by those living nearby, for whom they have the most utility. Further, one witness describes in her statement that she saw strangers see the route and use it, having parked their cars. The frequency of users having seen others on the path disclosed in the forms indicates that the path was in regular use, though if those users have not filled in forms, their evidence has not been captured in a way that can be included in this investigation. The McCarthy and Stone submission speculates on the illogical ways that people have used the route, but the motive for use is irrelevant. Also, it is not necessary that each of the witnesses has used the path, individually, for twenty years. What must be shown by the evidence is that there has been sufficient use by the public for the required period, and it is felt by officers that the path has been used by the public at large.

11.7.1 The owner of the land on which the Belle Vue Hotel stood during the relevant period was Stone Manor Hotels Limited. It has not proved possible to make contact with any member of staff of this organisation to obtain details of how the land was managed, or what instructions, if any, were given to staff regarding use of the car park. The submission by McCarthy and Stone referred to signs in the car park and, in a letter from their representative Bond Pearce dated 8^th November 2007, it is stated that McCarthy and Stone believe that the wording on those signs was `Belle Vue Hotel, private car park, hotel patrons only, Management accept no liability for damage or theft to vehicles or their contents'. No evidence has been put forward of any obstructions, challenges or closures, common ways that landowners can demonstrate that they do not intend to dedicate a route as a public right of way. Witnesses talk of speaking with hotel staff, or being in view of the staff and not being stopped.

11.7.2 The presence of a sign, or signs, in the car park is the only one of these commonly used methods to demonstrate a lack of intention to dedicate a public right of way that is present in this investigation. Three users acknowledge the possibility of signs relating to use of the car park, or its private nature. S.31 of the Highways Act 1980 confirms that a notice `erected in such manner as to be visible by persons using the way...inconsistent with the dedication of the way as a highway', will be sufficient evidence of an intention not to dedicate a public right of way. The issue here is whether a notice such as that put in place by Stone Manor Hotels Limited in the car park of the Belle Vue Hotel would demonstrate that there is no intention to dedicate. For a notice to be effective, it must clearly deny a public right of way. The wording quoted at 11.7 relates to the car park and the security of the vehicles parked there, and makes no use of a phrase such as `No public right of way', which is clear in intention. The wording of the notices alleged to be in the car park do not demonstrate a lack of intention to dedicate as a highway of the kind indicated by the public use taking place there. As one of the witnesses said, she didn't think it related to walkers.

11.8 Some witnesses report using the path with either bicycles or in vehicles, uses which might give rise to a restricted byway, carrying the right to pass and re-pass on foot, on or leading a horse, or with a horse and carriage. Use with bicycles is disclosed by 9 witnesses, with vehicles by 6, with a further two users reporting occasional use with cars. It is the view of officers that this use with bicycles and vehicles is not sufficient in quantity to give rise to a presumption of the dedication of higher rights.

11.9 During the course of the investigation, the question arose as to whether a public right of way could be recorded over the British Legion car park (B to C on the plan). From the forms, statements and maps, it seems that 4 users report using this car park several times a week, or more. One witness said she used it `regularly', another 3 or 4 times a year, while a further 3 used it `occasionally', one saying that she `really ha[s] no reason to do so'. While there may be other use by members of the public, it is not recorded in a way that could be considered in this investigation. It is felt by officers that this level of use would not, on the balance of probabilities, give rise to a presumption that a dedication of a public right of way over the British Legion car park at Lee.

11.10 In the absence of any detailed evidence from Stone Manor Hotels Limited about how they managed the land where the path runs during the period 1983 to 2003, it appears that no steps were taken to make the public aware that the landowner did not intend to dedicate a public footpath over the car park. Therefore, officers feel that it is fair to say that a right of way on foot is reasonably alleged to subsist, by presumed dedication from use by the public from 1983 to 2003. If an order is made, and disputed, further clarity may be obtained from the witness evidence given and challenged at a public inquiry.

12 Width of right of way

12.1 Because of nature of the land that users walked over, there was no one defined path visible on the ground. Only nine users have answered directly the question on the user evidence form about width, and their answers have, in general, reflected the width available to them depending on whether or not cars were parked there. These answers range from 20 feet (3), to 30 feet (1), to 40 feet (2) and 45 feet `when there were no vehicles' (1), to `very wide' (2), and one witness comments that it was a car park. The majority of the maps submitted as evidence show that users walked between the two rows of parked cars. Therefore it is proposed that a pragmatic view be taken and the width of the area between the car parking areas has been scaled off the available aerial photography (taken c.1999-2000) showing the car park in operation. The width is 2 metres.

13 Comments from the Applicant

13.1 Mr. Milne, acting for Mr. Williamson the original applicant, has had sight of a draft of this report And has made the following points in response:

13.1.1 Mr. Milne states `categorically...that there were no signs erected advising the public that the car park was "PRIVATE PROPERTY"'.

13.1.2. He also states that there was never a problem with access to the car park, and he and his family were never approached by hotel staff to advise that the land could not be used by members of the public.

14 Comments from the Landowner

The landowner has indicated that, although it does not accept that a public right of way has been created over its land, it is willing to provide a public footpath 2.1 metres wide, on the alignment shown on plan 2. The development of the former Belle Vue Hotel site is virtually complete, and the claimed route runs through the proposed residents' car park, which is currently obstructed by hoardings. The landowner wishes to fence off the claimed route in order to make the residents' car park secure. The landowner has indicated that it would be prepared to dedicate a public footpath along the north west boundary of the site and has commenced construction of this, as an alternative to the claimed route.

14 Landowner's Proposed Solution

The landowner is caused difficulty because the claimed route crosses the site of a private car park, which is intended to be fenced off. It has offered to dedicate a public footpath as shown on plan 2 to be followed, once in place, by an extinguishment order to remove any rights over the claimed route. The possibility of an application for a diversion of the claimed route under the Highways Act 1980 is, in any case, open to the landowner.

15 Interim Conclusions

15.1 There is evidence on which Members can properly find that, on the balance of probabilities, the requirements of section 31 of the Highways Act 1980 have been satisfied, and that public footpath rights subsist, or are reasonably alleged to subsist, over the route between points A and B on the attached plan. It is felt that the applicant is entitled to receive a determination of the application.

15.2 Officers request authority from the Committee to make a Definitive Map Modification Order to record the path, but also to accept a dedication of a public footpath on a different route by the current owners McCarthy and Stone, followed by an extinguishment of the Map Modification Order route under section 118 of the Highways Act 1980, conditional on the dedication being in place.

15.3 Before making a Map Modification Order, officers will be in dialogue with the landowner with a view to obtaining a dedication and consequent extinguishment of any rights over the claimed route. Officers see no objection to achieving a link between Marine Parade East and the U562 Marine Parade/High Street Access road by such a dedication and extinguishment, and do not consider that the public would be prejudiced by this course of action. Officers will return to Committee with a report on the dedication and extinguishment in due course, once the necessary consultations on the proposed extinguishment order have been carried out.

Section 100 D - 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 the report. NB The list excludes: (1) Published works; (2) Documents which disclose exempt or confidential information as defined in the Act.

File: Application for a footpath in Lee-on-the-Solent, ref. 764

Rights of Way Office, Mottisfont Court, Winchester