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 keep the map and statement under continuous review and as soon as reasonable 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.....

Contact: Sylvia Seeliger, Ext. 6349 [email protected]

1. Summary:

1.1 The work of producing the new Definitive Map of public rights of way in Hampshire has revealed a number of anomalies in the 1964 legal record. Some of these anomalies were brought about by the failure to show, on the 1964 definitive map, a number of paths for which there are definitive statements. This report details the evidence which leads to the recommendation that an Order be made to record those five footpaths on the Definitive Map.

2. Recommendation:

2.1 That Members approve the making of an Map Modification Order to record Aldershot Footpath 11, Basingstoke Footpaths 23, 32 and 35, and West Tytherley Footpath 18 on the Definitive Map.

3. Description of the Routes:

3.1 Each route is described in turn starting with the Definitive Statement, and then a summary of what appears on the ground. A plan of each path is attached to this report. The effective date for the third review of the Definitive Map is 1^st January 1964.

3.2.1 Aldershot Footpath 11:

From Rowhill Crescent to Borough Boundary.

From Rowhill Crescent westwards along metalled path 8 feet 0 inches wide into Rowhill Copse.

3.2.2 The route is present on the ground, with a tarmacadam surface, running between board fences. It is 2.5 metres wide. The path begins at Rowhill Crescent (the U355) and runs in a north-westerly direction until it reaches Rowhill Copse. Here it meets the county boundary, where the route carries on having crossed a concrete foot bridge, with metal railings. It is recorded on CHALIST (Hampshire County Council's list of publicly maintainable streets) as W355, Rowhill Crescent Footpath

3.3.1 Basingstoke Footpath 23:

From Church Street to Church Square

From Church Street A.339 on north side of Church southwestwards to west end of the Church along path paved and with posts at each end, then southwards along paved path 12 ft. wide to Church Square.

3.3.2 The path is paved throughout, and begins at Church Square (the U320), where it runs northwards, at a width of 4.5 metres. The path then turns through 45 degrees to pass the north west corner of St. Michael's Church, and continues north eastward to cross the grassed church yard diagonally, until it meets Church Street (also the U320), where a metal post is set into the ground in the middle of the path. This section of the path is 2 metres wide.

3.4.1 Basingstoke Footpath 32:

From Cliddesden Road to Hackwood Road A.339

From Cliddesden Road B.3046 eastwards along path enclosed between fences and tar sprayed, to its junction with A.339.

3.4.2 This path starts at Cliddesden Road (the U320), from where it runs eastwards between brick walls. It has a tarmacadamed surface and lamp posts, and is 1.8 metres wide. One lamp post bears a sign saying `Horse riders and cyclists dismount'. The path emerges onto the Hackwood Road Service Road (the U320). It is recorded on Chalist as the W320 Cliddesden Road Footpath.

3.5.1 Basingstoke Footpath 35:

From Rochford Road to Worting Road

From west end of Rochford Road southwards along path enclosed between fences to Worting Road adjoining the Old Queen's Grammar School.

3.5.2 Beginning at Rochford Road (the U320), this path runs southward to meet Worting Road (also the U320). It has a tarmacadamed surface and lamp posts, and runs between brick walls, house walls and boarded fences. The width is 1.5 metres. At the Worting Road end, there is a series of steps to reach the pavement. This route is recorded on Chalist as the W320, Rochford Road Footpath.

3.6.1 West Tytherley Footpath 18:

From Parish Boundary to Parish Boundary at Owl's Castle

From parish boundary southwest of Owl's Castle southwestwards along 3 ft. wide earth path through felled woodland to parish boundary.

3.6.2 The path on the ground (Winterslow Footpath 13) leaves Easton Common Hill (Winterslow BOAT 1C), where there is a metal Wiltshire County Council "Public Footpath" sign in place. Winterslow Footpath 13 runs in a south westerly direction, crossing the county boundary into Hampshire, where it continues as West Tytherley Footpath 18 for a distance of 56 metres, before crossing the county boundary again into Wiltshire to meet the Tytherley Road. Both parts of the footpath in Wiltshire are recorded as Winterslow Footpath 13. West Tytherley Footpath 18 has an earth surface, is about one metre wide, with a post and barbed wire fence on its eastern boundary.

4. The Landowners:

4.1 All owners/occupiers of the affected land and properties have been notified of the County's proposals.

4.2 The land crossed by Aldershot Footpath 11 is owned by Ideal Homes of York. Mr. and Mrs. Baskerville of West Tytherley own the land crossed by West Tytherley Footpath 18. It is believed that the land over which Basingstoke Footpath 23 passes is owned by the Church Commissioners. There appears to be no known owner of the land over which Basingstoke Footpath 32 and Footpath 35 pass.

5. Consultations:

5.1 The following persons and bodies have been consulted about the application, namely the local members, Rushmoor Borough Council, Basingstoke and Deane Borough Council, Test Valley District Council, West Tytherley Parish Council, Surrey County Council, Wiltshire County Council and the Ramblers' Association. The following responses have been received: the remaining consultees are presumed to have no comments to make.

5.2 The landowners at West Tytherley, Mr. and Mrs. Baskerville, have confirmed that the footpath does exist and links with the two sections in Wiltshire. They maintain `all parts of the path and keep it free of brambles, nettles, [and] fallen trees'.

5.3 The Countryside Legal Officer of Surrey County Council states that the continuation path in Surrey is not recorded as a public right of way. Surrey County Council has no objections to Hampshire County Council's proposed course of action. Surrey `may wish to correct this anomaly in the longer term'.

5.4 The representative of the Ramblers' Association says of Basingstoke Footpaths 23, 32 and 35 that the Association is `very happy to see the position of these paths regularised'.

6. The Issue for Consideration:

Section 56 (1) Wildlife and Countryside Act 1981 provides that the Definitive Map shall be conclusive evidence as to the particulars contained therein. The Definitive Statement is conclusive evidence as to the position and width of the path. The map should only be amended if there is sufficient evidence to show, on the balance of probabilities, that an error was made in the production of the Definitive Map and that these routes were omitted. The authority for this proposition is found in s.53 (3)(c)(i) Wildlife and Countryside Act 1981 and R. v Secretary of State ex parte Simms and Burrows.

7. The Evidence:

7.1 As discussed above, each of these five paths has a Definitive Statement, and these entries are conclusive evidence of their widths and position.

7.2 All of the five paths exist on the ground and are clearly used. Three of the five are recorded on the list of publicly maintainable streets, have tarmacadam surfaces and two have street lights.

7.3 All of the paths, apart from Aldershot Footpath 11, appear on either the first or second editions of the Definitive Map, and appear to have simply not been drawn on as they should have been. The first Definitive Map does not show Aldershot Footpath 11. Presumably this is because the housing estate, on the edge of which the path lies, had not been built, and the later provision of the path may have been part of the planning process for the estate. It has not proved possible to find a copy of the second Definitive Map (1957-1958) which shows the rights of way in Aldershot. The `working copy' (that is, a copy of the Definitive Map that shows all alterations to the network) of the 1964 edition does show Footpath 11, although the unaltered version does not.

8. Statements:

8.1 The Definitive Statements for these five paths have not been included in the newly published Definitive Map. So that they may accompany these paths, when they are restored to the Map, it is proposed that they should be reproduced verbatim, and that a width should be added where no width was stated in the original.

8.2 The Definitive Statements will therefore be as follows:

· Aldershot Footpath 11

From Rowhill Crescent to Borough Boundary.

From Rowhill Crescent westwards along metalled path 8 feet 0 inches wide into Rowhill Copse.

· Basingstoke Footpath 23

From Church Street to Church Square.

From Church Street A.339 on north side of Church southwestwards to west end of the Church along path paved and with posts at each end 1.9 metres wide, then southwards along paved path 12 ft. wide to Church Square.

· Basingstoke Footpath 32

From Cliddesden Road to Hackwood Road A.339.

From Cliddesden Road B.3046 eastwards along path 1.8 metres wide enclosed between fences and tar sprayed, to its junction with A.339.

· Basingstoke Footpath 35

From Rochford Road to Worting Road.

From west end of Rochford Road southwards along path 1.5 metres wide enclosed between fences to Worting Road adjoining the Old Queen's Grammar School.

· West Tytherley Footpath 18

From Parish Boundary to Parish Boundary at Owl's Castle.

From parish boundary southwest of Owl's Castle southwestwards along 3 ft. wide earth path through felled woodland to parish boundary.

9. Conclusion:

A number of anomalies have been uncovered by the preparation of a new edition of the Definitive Map. Five paths, for which there are Definitive Statements, are not shown on the 1964 map, and have therefore had to be omitted from the new edition. There is sufficient evidence of previous recording of the paths, of their presence on the ground, the inclusion of three of them on the list of publicly maintainable streets and their use by the public, to justify an Order to allow them to be correctly recorded on the Definitive Map.

Section 100 D - Local Government Act 1972 - background papers

The following documents disclose facts or maters 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: Proposal to amend the Definitive Map in respect of Paths on the Definitive Statement but not on the Definitive Map, Rights of Way Office, Mottisfont Court, Winchester