Hampshire County Council

Regulatory Committee Item 12

21 May, 2008

Application for a Definitive Map Modification Order to record a Footpath between Byway Open to All Traffic 39 and Footpath 18, Horndean

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 BOAT 39 to Footpath 18 in Horndean. Evidence has been put forward which shows that 48 witnesses have used a footpath between these two highways.

2 Recommendation

That a Definitive Map Modification Order be made to record a footpath between BOAT 39 and Footpath 18 Horndean, between points A and C, and between points A and D, at a width of 1.5 metres.

3 The Claimed Route

3.1 A map was supplied with the application, consisting of an enlarged version of Ordnance Survey mapping on which the applicant had drawn a line to represent the `proposed path' (Appendix 1). In order to prepare a plan of the claimed route to be included with this report, the aerial photography was consulted, to see if there was any sign of a worn route, since the Ordnance Survey mapping shows no surveyed feature in that location. The aerial photography (see Appendix 2) shows a clear worn path south from Horndean BOAT 39 along the eastern boundary of a small field to the south of the byway (this field boundary is not shown on the applicant's map). Just south of this boundary the path continues in a south westerly direction to meet Horndean Footpath 18 at the south east corner of the churchyard. This is not the same as the line drawn by the applicant, which is straighter and further out from the field boundaries shown on her map, and joins Footpath 18 a little further to the south east. Given the difficulties that confront a person attempting to show a route used on a map where no tracks are shown, it was felt that the claimed route was more accurately represented by what was shown on the aerial photography, which was considered to be evidence of where the public has walked. This line has been used on the plan attached to this report, to represent the claimed route, referred to in the next paragraph.

3.2 The claimed route commences at point A on the attached plan, on BOAT 39, otherwise known as `Old Lane', branching east from Catherington Lane. At point B on the plan the claimed route runs across the down to the south west, to meet a kissing gate (point C) where Footpath 18 passes from Catherington churchyard out on to the down. Because people have been prevented from using the path for some time, and grazing by horses over the fields, there is currently little or no trace of a trodden path on the ground. The claimed route is therefore A - B- C.

3.3 It appears from evidence that some users continued in a straight line from point B, over the down and joined Footpath 18 at point D, following a ridge on the down. The same remarks apply to the visibility of this part of the path, which is shown on the plan as A - B - D.

4 The Applicant and the Application

4.1 The application, made in October 2003, was signed by Mrs. J. Rowney, of 148 White Dirt Lane, Catherington. It was accompanied by 31 completed user evidence forms (some with individual letters, maps and photographs) and a map in support of the claim.

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.

5 The Landowners

The land over which the claimed route runs is in the ownership of Miss J.C. and Miss R.A. Carpenter, of Richmond. They are represented by Mr. S. Lush, of Henry Adams.

6 Consultation

6.1 Letters of consultation have been sent to East Hampshire District Council, Horndean Parish Council, the Open Spaces Society, the Ramblers' Association, the British Horse Society, Rights of Way Area Officer (East) and the Environment Group (Hampshire County Council). The local member, Councillor E. Byrom, has been informed. The following responses have been received:

6.2 The representative of the British Horse Society states that she suspects that there might be higher rights on the claimed path and on Footpath 18, but no evidence has been produced to support this assertion.

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 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. 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

A number of documents relating to this area of Catherington survive and have been examined, but there is no suggestion that the claimed path A to C has an historic origin.

9 The User Evidence

9.1 Thirty one user evidence forms were submitted with the application, with another fourteen arriving later, and three further witnesses emerged during the interview process. The total of users giving evidence is therefore forty eight. Twenty witnesses have been interviewed and have signed statements. During the interviews, witnesses were asked to indicate on a standard map where they had walked.

9.2 Appendix 3 is a table that shows the use of the claimed path A to C, or at least A to B, by those 48 people who have submitted evidence. This is, of necessity, a generalisation, but can give a feel for the extent of the use claimed. Frequency of use varies from five times a year, to up to four times a day, with twelve users reporting daily, or almost daily, use. Most users stopped using the path in 2003 because new tenants made changes to the field that made access more difficult. Interviews revealed that six users still use the path despite these difficulties. Appendix 4 contains a summary of a selection of witness statements, to illustrate the use being made of the paths A to C and A to D, both utilising A to B.

9.3 The evidence disclosed earliest use dating from 1936, with three users beginning use in the 1940s. Seven further users commenced use in the 1960s and most use ceased in 2003, though some use took place after this (see 9.2). Twenty witnesses have used the path for twenty years or more.

9.4 The evidence discloses that before 2003, both A to C and A to D ran over an open field that had a hedged boundary. Users report seeing cattle in the field, and connect the appearance of a stile near the field gate in the north west corner with this grazing. It was felt by some users that the tenant grazing the cattle accepted use of the claimed path(s) by the public, and signalled this acceptance by locking the gate so it could not be left open for the cattle to stray. It was thought that he put in the stile in recompense for the loss of the access via the gate, and it was the presence of the stile that led many witnesses to believe that the path was public. Most users think the stile was constructed around 1980. Obstructions began to appear with a change of tenant in 2003, when the field was used to grazes horses in paddocks constructed of wire and posts and electrified wire, the placing of which did not respect the line of the paths A to C and A to D. The stile, whose step had already rotted, was replaced by two wooden bars. Horse manure was piled up against these bars and the remains of the stile, probably as a deterrent to use though, in fact, users said it made it easier to get into the field. The fences have changed location, according to changes in the horse paddocks, and so may have meant changes in the route or routes used after 2003. Some notices are recalled by users. Four witnesses report signs indicating that the claimed path was not a right of way put up by the new tenant, but these were short lived. Others recall `Foot and Mouth' and `Horse Watch' signs, as well as requests for the public to stop vandalising the fences. The change in the use of the field when the tenancy changed, with the resulting effects on access, caused bad feeling between the walkers and the tenants, and there are reports of incidents and threats, and some police involvement. One witness sought permission to camp in the field from the previous tenant, but no users asked anyone if they could use the path. Neither did any witness use the path in the exercise of private rights.

9.5 Users were asked to indicate on a map where they had walked. The base Ordnance Survey map supplied to the witnesses (in each case the same and presumably prepared by the applicant) did not show any pre-existing track or feature, and many people feel uncomfortable or unsure about drawing lines on maps. It is not possible to expect witnesses to be precise about exactly where their feet fell, so there may be discrepancies between the lines of the routes walked by the witnesses as expressed on the routes they have drawn on their maps. Allowing for this, it seems that all users coming from BOAT 39 were entering the field via either the stile or gate at point A on the plan and going almost due south, skirting the edge of the adjacent field to point B. South of this point, they either tended to continue in a south westerly direction to join Horndean Footpath 18 at the kissing gate into the church yard at point C, or continued almost due south along the ridge of the down to meet the same footpath at point D. Confirmation of this use of the path can be seen in the Hampshire Millennium Aerial Photography (flown in 1999 or 2000), shown at Appendix 2.

9.6 Users describe the route as `clear', `well-worn' or an `indentation' on the ground, and this also accords with what is shown in the aerial photograph. The route of the path could be seen clear across the field from the stile.

9.7 What can be understood from this evidence is that a number of people from the locality have used a route or routes across a field, from Horndean BOAT 39 to Horndean Footpath 18, with the bulk of use dating from 1970. The majority of witnesses stopped using the path in 2003 when a change of tenant brought alterations to the use of the field, and horse manure piled against the remains of the access stile and fences across the path proved to be an effective deterrent.

9.8 From this evidence, it is not unreasonable to conclude that, on the balance of probabilities, the claimed path A to C and a second path A to D have been created and a public right acquired by local people going about their business, walking their dogs or recreationally, and visiting the amenities of Horndean. 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 established contact with the landowners via their agent. Some correspondence dates back to 31^st October 2003, when the application was made. It seemed that the landowners were `not happy about the position', and referred to the present and previous occupiers (the latter being Mr. Braunton) having problems with fences being cut and a cow being lost through swallowing litter. Mr. Lush, the agent, was invited to submit evidence on behalf of his clients. Mr. Lush was again contacted at the start of the investigation, and he replied on 7<sup>th</sup> November 2007. He states that `Miss Carpenter...wishes to confirm that she does not wish to oppose the proposed footpath as detailed in your letter'. Further, Miss Carpenter has not put forward any evidence about how she and her late sister managed the land with regard to rights of way.

11 Evidence of Tenants

11.1 Mr. Braunton, the tenant from 1983 or 1984 for almost twenty years, was interviewed and signed a statement. His initial contract from Mr. Carpenter was a licence for 360 days, but this was never renewed. Mr. Braunton used the field to graze cattle, though at the end of his time there sub-let the field for horse grazing. Mr. Braunton confirms that he needed to carry out repairs regularly on the fence with BOAT 39, because he `couldn't stop the public breaking the fence down, sometimes with wire cutters'. To counter this, he put up a stile at point A, in the first year of his tenancy. Reinforcement measures were taken with other parts of the field's fencing. Mr. Braunton says that he `didn't mind the public walking in the field', but didn't want the fences broken down, or the gate being ruined by members of the public climbing over it on the lock side. This solution worked. Mr. Braunton could see by the soil on either side of the stile that it was being used, and East Hampshire District Council repaired the foot board on one occasion. He says that he was aware that people were walking there prior to his tenancy, and he had used it himself for dog walking. He says he went into the tenancy with `eyes open', well aware of the difficulties that occur when `land is close to human habitation'. He comments that `it was difficult to stop people using routes'. He felt people could walk on the claimed path, as long as they did not chase his cows or otherwise disturb them, and he challenged only those people who were misbehaving. It is Mr. Braunton's recollection that the licence did not have anything specific in it about encroachments or trespass, but concerned itself it with the condition of the land.

11.2 The present tenant, who took over from April 2003, has given an interview, but has not signed or returned the statement. The tenant has stated that the tenancy agreement contains instructions to `take all reasonable steps to prevent acts of trespass on the holding and to prevent any new footpaths or other easements or rights of way from being acquired over the holding and to notify the landlord in writing of any encroachment or repeated acts of trespass on the holding'. It is clear from the evidence offered by users that the present tenant took steps to carry out these instructions in relation to the acquisition of rights of way over the land. The significance of these actions is discussed below.

12 Discussion of the User and Landowner Evidence

12.1 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 not be evidence sufficient to demonstrate that the landowner did not intend to dedicate a right of the type being claimed

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

12.3 The relevant period for the purposes of s.31 of the Highways Act is 1983 to 2003. The bringing into question of the public's right to use the paths A to C and A to D was the obstruction of the stile at A with horse manure, and the placing of a fence across the path or paths, by a new tenant, in 2003. The public must provide evidence of unchallenged use for the twenty years before this date.

12.4 The user evidence does not disclose any interruptions to use, that is any physical or actual prevention of the public's enjoyment of the way during the relevant period. None of the witnesses report ever having been stopped or challenged until the change in tenancy in 2003.

12.5 One witness sought permission from the tenant to camp in the field, but no others report asking if they could use the path. Some report that they did not even consider doing so because they thought the path was already public, having seen a stile and a worn route. Others had no idea who the landowner was, so could not have asked for permission had they been inclined to do so.

12.6 The use of a way relied on if it is to be recorded as being public should consist of the public at large, and 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. None of the witnesses have had any connection with the owners of this land, and there was confusion on the part of some users as to who the landowners were, or whether the tenants were actually the owners. Some of the evidence comes from people living at single addresses, but there are a large number of witnesses who have been willing to fill in evidence forms, and they come from a wide geographical area. The evidence discloses that A to C was used by 20 people, A to D by 9 people, and 15 people used both. The use by these 15 witnesses can be added to the A to C and A to D totals, though it should be noted that this use may be diluted in terms of frequency on the sections B to C and B to D. 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 level of use the path from A to C and A to D by the public at large is sufficient to raise a prima facie presumption of dedication.

12.7.1 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, during the period 1983 to 2003. Those notices that came to the attention of witnesses were signs to do with the foot and mouth outbreak (in 2001) and not relevant in this context. Other notices declaring that there was no right of way were put up after there was a change of tenant, by that tenant, not by the landowner, and seem to have been very short lived. The presence of clauses in a tenancy agreement requiring the tenants to stop the acquisition of public rights of way over the land being occupied is not in itself enough to prevent such acquisition if the underlying intention is not made clear to the public (see R (on the application of Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs, 20 June 2007 [2007] UKHL 28). While these actions can be interpreted as an execution of the landowners' instructions, and a bringing to the attention of the public of an intention not to dedicate, it seems from the evidence that the right of the public to use the path had already been brought into question by the obstruction of the both the stile and the path, and therefore the posting of the notices falls outside the relevant period.

12.7.2 The tenant managing the land during the relevant period does not recall receiving any specific instructions from the landowner in relation to the acquisition of public rights of way over the land. The challenges to the public that he made were concerned with behaviour in relation to his stock, and not to use of the path by the public. Further, he facilitated use of the path that would not put his stock at risk by installing a stile. There is no evidence that the owner of the land objected to this. In fact, the landowner has not, so far, put forward any evidence to challenge what the witnesses have said.

12.7.3 The landowner has said that no objection will be made to this application. Given that there is in any case no evidence of any actions signifying an intention not to dedicate a public right of way during the period 1983 to 2003 (prior to the obstructing of the path by the new tenant), officers feel, on the balance of probabilities, that a public right of way has been acquired over the path shown on the plan running from points A to C and points A to D, both via point B.

13 Width of right of way

Unfortunately, 26 users did not state a width in their evidence. Of the remaining 22, seven said the path was wide enough for two people to walking along side by side, while five said it was wide enough for one. The other measurements range from 2 feet to 2 metres. In order to accommodate this variation and to allow for adequate width if the tenant chooses to fence the path out because of the grazing, it is suggested that any order should record the path at the width of 1.5 metres.

13 Comments from the Applicant

The applicant comments that the report is a `very accurate account of the fight to re-open this path that has for so long been historically open to the people of Catherington'.

14 Comments from the Landowners

The Agent for the landowners expresses disappointment that a second path (A-B-D) has been included in the report. The landowners did not wish to oppose the application as it was initially presented, covering the path A-B-C, but now feel that `the situation has changed dramatically as to the inclusion of a further stretch between B and D' and they are `not happy with this inclusion'. The Agent comments that the land has been grazed by cattle and horses for `a considerable length of time and this is likely to continue for the foreseeable future'. Another path would make the `management of the area very difficult in terms of fencing and general management'. Further, the Agent sees little point in having the path A-B-D `in that the whole point was to gain access as indicated in all previous correspondence between Boat 39 and Footpath 18 and this is achieved via A, B, C'. The landowners wish `to assist in not opposing a footpath between A, B, C' but will oppose B-D `as it is going to cause considerable problems and is totally unnecessary'. He also expresses disappointment about the `late stage' at which this additional path has come to light.

15 Conclusions

15.1 It sometimes happens that, on the conclusion of an investigation of a claim, evidence is uncovered of public use on a route (or routes) additional to that contained in the application. This use may be sufficient to satisfy the requirements of section 31 of the Highways Act 1980. It is the evidence that dictates the conclusions of an investigation, and issues such as suitability or the need for a public right of way cannot be taken into account during the process of determining what public rights exist.

15.2 Officers feel that 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 C and A and D on the attached plan.

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 Horndean, ref. 774

Rights of Way Office, Mottisfont Court, Winchester