Archived decisions

    Hampshire County Council

    Regulatory Committee Item 12

    25 June 2008

    Application for a Definitive Map Modification Order to record a footpath from Totsome Cottages, Knowle, to Footpath 86, Fareham, and an associated investigation into footpaths from Totsome Cottages to Footpath 16, Wickham.

    Report of the Director of Recreation and Heritage

    Contact: Emma Noyce ext. 5319 email: [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 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 subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to this Part applies;

    HIGHWAYS ACT 1980

    31. Dedication of way as a highway presumed after public use for 20 years

    (1) 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 of 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.

    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' 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

This report concerns an application to amend the definitive map so as to show a footpath from Totsome Cottages/Dean Villas to Footpath 86, Fareham, and an associated investigation into possible footpaths from Totsome Cottages/Dean Villas to Footpath 16, Wickham.

        It is considered that, although there is insufficient evidence to show that a public footpath over any route under consideration subsists, there is nonetheless enough evidence to raise a reasonable allegation that there subsists a public footpath leading from Totsome Cottages/Dean Villas to Footpath 16, Wickham (A-C on Appendix 1 and a reasonable allegation that there subsists a public footpath leading from Totsome Cottages/Dean Villas to Fareham Footpath 86 (D-I-E on Appendix 1) .

2. RECOMMENDATION

        Path D-I-E

        · That the non-compliant application made under section 53(5) of the Wildlife and Countryside Act 1981 to record a footpath over the route shown in blue as D-I-E on Appendix 1 be treated as compliant and that members determine this application under Paragraph 3(1) of Schedule 14 to that Act.

        · That the application be accepted and an Order made to modify the definitive map and statement so as to show a public footpath over the route shown as D-I-E on Appendix 1.

        · That the section of path shown as D-I on Appendix 1 be recorded with a width of 4 metres and that the section of path shown as I-E be recorded with a width varying between 3.3 and 4 metres along its length.

        Path A-C

        · That following the discovery of evidence suggesting the Definitive Map requires modification, an Order be made under section 53(2) of the Wildlife and Countryside Act 1981 to modify the definitive map and statement so as to show a public footpath over the route shown as A-C on Appendix 1.

        · The path should be recorded with a width varying between 2.4 metres and 3.5 metres along its length.

3. The Applicant and the Application

3.1 The applicant is Mrs Barbara Carstens. Mrs Sheila Chambers assisted in the preparation of the application.

3.2 The present claim was made, under s.53(5) of the Wildlife and Countryside Act 1981, on the 15th April 2003. The formal application is "to add the footpath from 6 Dean Villas 505209 to Funtley Footpath 011356." The grid references provided on the application appear to be incorrect as they do not relate to the Wickham area. No map was provided with the application. However, the wording of the application form indicates that the blue path labelled `D-I-E' on Appendix 1 is the subject of the formal application.

3.3 On the 7th May 2003 the Rights of Way office wrote to Mrs Carstens requesting that a map be provided to show the location of the claimed route. Mrs Carstens supplied this map on the 13th May 2003. The map shows two paths (path A-C and path D-I-E on Appendix 1). In her letter accompanying this map, Mrs Carstens states: "During [my telephone call with the rights of way office] we agreed that I should also mark the footpath that also used to go diagonally across the field south of Dean Villas" (path A-C).

3.4 It would therefore appear that whilst Mrs Carstens has alleged that the public has acquired a right of way over two routes (paths A-C and D-I-E), a formal application has only been made in respect of path D-I-E. This application contains inaccurate gird references and, further, notification of the application (under paragraph 2 of Schedule 14 to the Wildlife and Countryside Act 1981) was not served on each of the landowners affected by the application. However, Officers consider that no party has been prejudiced by the errors in the application process and that, in the case of path D-I-E, the non-compliant application should be treated as validly made. In the case of path A-C, no application has been made but Hampshire County Council has a duty to consider the evidence which has come to its attention in respect of this path and, if appropriate, modify the definitive map and statement as necessary under its powers provided by section 53(2) of the Wildlife and Countryside Act 1981.

3.5 Neither route is currently recorded on the County Council's definitive map of public rights of way.

3.6 In November 1983 a formal application was made to record a path, or paths, similar to those considered in this report as public footpaths by Mrs Lewsley. This application was not processed to completion, but the evidence supplied with the 1983 application will be considered in this report.

4. The routes under investigation

4.1 Path A-C leads from the eastern end of a footbridge (which carries Wickham Footpath 16 over the Fareham-Winchester railway line) directly across the field to the south-western corner of the Dean Villas/Totsome Cottages road (adjacent to 1a Dean Villas).

4.2 Path D-I-E leads from the south eastern Corner of the same road (adjacent to No. 6 Dean Villas), eastwards across a field, and then northwards and eastwards around a small copse to meet Fareham Footpath 86. It is shown on Appendix 1 as path D-I-E.

4.3 Both routes lie within the old Knowle Hospital Estate, but outside of the secure (walled) part of the Hospital.

5. The Landowner(s)

5.1 The majority of path A-C appears to be owned by Mr Graham Moyse and Mr Russell Moore. A small section at the southern end of the path is owned by Network Rail Infrastructure Ltd (`Network Rail'), whilst a small section at the northern end is thought to be owned by English Partnerships Ltd. A sketch map of land ownership is shown on Appendix 2.

5.2 The entirety of path D-I-E is owned by Mr Moyse and Mr Moore. Mr Moyse is represented by Mr Richard Stubbs.

5.3 Each of these landowners has been notified of the application and has been given the opportunity to comment on it.

6. The issue to be decided

6.1 The issues to be decided by this Committee are:

        i) whether or not there is evidence to show that the application (to record path D-I-E as a public footpath) should be accepted and

        ii) whether evidence supports the addition to the definitive map of a right of way other than that claimed, for example, path A-C.

6.2 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.

6.3 Witness evidence forms, statements, photographs and copies of the documentary evidence relating to the routes are available for inspection in the offices of the Rights of Way Section, as are witness evidence forms and statements. Members may inspect these when considering this report.

7. Historic and Documentary Evidence

7.1 Knowle Hospital (the then Hampshire County Lunatic Asylum) opened in 1852. It is understood that Totsome Cottages and Dean Villas were built in or around 1930 to house employees of the Hospital and their families. In 1996 the main part of the Hospital closed and in 2000 work started on the redevelopment of the central Hospital site.

7.2 Ordnance Survey Mapping

7.2.1 The first edition of the Ordnance Survey County Series map of 1870 shows a path in the location of D-I. No connection between point I and point E is illustrated. A path leading from just west of point I to point F is illustrated running parallel, though some metres to the west of the line shown as G-F on Appendix 1. A number of other paths are depicted in the area of the routes in question. Paths A-C and A-B-C are not shown on this map. A path in the location of Fareham Footpath 86 is shown.

7.2.2 The second edition of this map (c.1896) is very similar to the first, save that it shows a path leading diagonally north-eastwards from point I to a point between E and J. A path in the location of Fareham Footpath 86 is shown.

7.2.3 The third edition of the County Series map (c.1908) does not illustrate any paths in the location of those claimed. However, by the date of this map the local field boundaries have been altered and accurately reflect the line of D-I-G-F. A path to the north of D-I is depicted. A path in the location of Fareham Footpath 86 is shown, annotated as F.P - given as Foot Path in the key to the map.

7.2.4 The first map that officers are aware of which shows both routes A-C and D-I-G-F is the Ordnance Survey County Series 4th Edition map of 1932. This map shows path A-C as an unenclosed path, annotated F.P. (given as Footpath in the key to the map). There appears to be a solid boundary at point B, separating the path from the road around Totsome Cottages, though what form this boundary took is unclear. Path D-I-G-F is shown as a track with a solid boundary line to the southern edge of section D-I, whilst unenclosed to the northern edge. This path is not annotated. The 5th edition of the same map (dated 1940) appears identical to the 4th edition in its depiction of the paths. Route A-B-C is not shown on any edition of this map. On neither edition is a path linking point G and point E illustrated.

7.2.5 OS National Grid mapping, surveyed between 1957 and 1964 shows route A-C as an unenclosed path, annotated path. D-I-G-F is shown as unenclosed on its northern and western boundaries, but enclosed to its southern and eastern sides. It is annotated Track.

    7.3 Aerial Photography

7.3.1 An aerial photograph taken in c1930 from the north-east of the Hospital site, facing in a south-westerly direction, shows an oblique view of Totsome Cottages. Path A-C is apparent as a worn, possibly surfaced route. A feature in the location of path D-I is also visible - due to the angle of the photograph it is difficult to tell whether this is a field boundary (such as a hedge), a trackway, or both. The quality of the photograph is not sufficient to show details such as structures.

7.3.2 Mrs Carstens provided an photograph of the Knowle area in support of her application. The photograph is an oblique view of the Hospital site, taken from the south west, to the south of Totsome Cottages. It is undated, but was taken before the site was redeveloped, and apparently whilst the Hospital was still in use. Mrs Carstens describes it as being taken in the 1980s. Route A-C is clearly visible on this photograph as a worn pathway acting as a boundary between what appears to be an area of scrub (to the north west of the path) and an arable field (to the south-east). A small section of the western end of route D-I is also clearly visible as a worn trackway. The photograph is not sufficiently detailed to show structures on either of the paths. There is no evidence of a path along the line of route A-B-C.

7.3.3 A second photograph of the same area (entitled "An authentic extract from the millennium map showing Knowle Hamlet") shows an overhead view of Totsome Cottages. It is not possible to discern whether or not there is a path in the location of A-C or A-B-C. There is a faint line in the crops in the location of the western end of D-I, this may represent a worn path, but may represent a crop-mark produced by the ploughing out of a historic field boundary.

7.3.4 Millennium aerial photography available on the Hampshire County Council corporate GIS system is very similar to the millennium photograph provided by the applicant. However, it is possible that a very faint line to the south west of Totsome Cottages represents the worn part of A-C. Again there is a visible line towards the western end of D-I which may be a worn path, but may be a crop-mark.

7.3.5 An aerial photograph taken in 2005 (again available on the County Council GIS system) clearly shows path A-B-C. No path is visible along the line of A-C or D-I.

7.4 1983 Application

7.4.1 In July 1983 Mrs M.S. Lewsley wrote to the Rights of Way Office querying the status of paths A-C, D-I-E and Fareham Footpath 15. In August she was informed that the footpath she had used (possibly path A-C-D-I-E) was not a right of way, but she could claim it as such. In November 1983 it seems that Mrs Lewsley did apply to record either path A-C, path D-I-E or both as public footpaths (it is unclear as the actual application form is missing).

7.4.2 On the 18th January 1984 Mr Rees, tenant of the Agricultural Property Unit Trust, who owned this land as part of the Dean Farm Estate, wrote to the Rights of Way Office stating his opposition to the claimed path. He also wrote to Mrs Lewsley stating that (presumably path D-I-E) was not a recognised footpath and informing her that he had asked the Group Administrator of Knowle Hospital to inform residents to keep off the path (there is no other evidence that residents were so informed). On the 27th January 1984, solicitors acting for the Agricultural Property Unit Trust wrote to the Rights of Way Office, objecting to Mrs Lewsley's claim.

7.4.3 On the 20th November 1983 the local representative of the Ramblers' Association wrote to the Rights of Way office in support of Mrs Lewsley's application. In his letter he states:

          [Path D-I-E] "This was previously a well defined hardcore farm track shown on OS maps and frequently used by local residents until they were stopped by the new landowners who have now ploughed the track out."

            [Path A-C] "This is again a frequently used and well defined path and even has a street light fitting at one end. This again is marked on OS maps as a footpath but not a right of way."

    7.4.4 There is no further correspondence on file until the 22nd February 1993, when a Rights of Way officer visited the site. The officer annotated a map and stated:

            [Path A-C] "Footpath sign on tarmac road, but looks a bit short for one of ours. Signs of some attempts at maintenance on the very muddy churned up section down to the Footbridge over the railway. Also hoofprints!"

            [Path D-I-E] "...was a headland path, but hedgerows now removed and ... is now one large arable field."

        The officer subsequently telephoned the Rights of Way Southern Area Officer to ask if he had erected the fingerpost and carried out the surface improvements to the path. On the 8th March 1993 he replied that he had not, and that the work did not look like that of Fareham Borough Council either. He suggested that the work may have been carried out by the owners of Knowle Hospital, possibly by agreement with the local residents.

    7.4.5 At around the same time, the officer wrote to Mrs Lewsley to ask if she still wanted to pursue her application. The officer stated that when she had visited the site, path D-I-E had disappeared and had been incorporated into a large arable field, whilst path A-C was still available for use and appeared to have had work carried out on it recently. In May 1993 Mrs Lewsley replied stating that as many of the people who had completed user forms in support of her application had moved away and, given that there were plans to redevelop the hospital site, it seemed foolish to pursue an application for a path which had not been used for ten years. Mrs Lewsley suggested the application be dropped.

    7.5 Rights of Way Parish Files

    7.5.1 Rights of Way files contain correspondence dating back to 1987 regarding obstructions to Fareham Footpath 15. There follows correspondence between the Area Rights of Way Officer and owners of land to the north and south of Footpath 15 regarding the location of the path. Correspondence dating to 1996 and 1997 refers to the land of the claimed route as owned by the Marchstone Estates Limited. Correspondence after 1997 refers to Mr Moyse as the landowner.

    7.5.2 On the 16th December 2002 the officer served a notice under section 154 of the Highways Act 1980 on Mr Moyse, requiring him to clear the line of Footpath 15 and, on the 9th February 2003, a member of the public wrote to the Rights of Way Office stating that the fencing of Mr Moyse's field was now complete. On the 20th May 2003 Mrs Carstens wrote to the Rights of Way Office asking if the Area Officer could inspect the newly created footpath (presumably A-B-C) to see if anything could be done to make it more user friendly. On the 8th February 2004 the Assistant Head of the Countryside Service wrote to Mrs Carstens stating that routes (including) A-B-C were not recorded on the definitive map as rights of way, and would therefore, not be maintained by the County Council.

    7.6 Newspaper article

    7.6.1 On Wednesday February 26th 2003, The Portsmouth Evening News printed an article entitled "Anger as barbed wire closes off countryside". This article reported the fencing of the field adjacent to Totsome Cottages, and the blocking of access to paths used by the residents (presumably path A-C and path D-I-E). The article is accompanied by a large colour photograph of a locked gate at point D.

    7.7 Notes of Rights of Way Southern Area Liaison meeting

    7.7.1 On the 19th May 2003, Mrs Carstens attended a meeting held by Mrs Giles, the Rights of Way Southern Area Officer. Mrs Carsten's notes of this meeting state:

            "[Mrs Giles] also mentioned, as a success for her department, that negotiations that had taken about 2 years with a landowner in the area of Knowle had eventually been successful. She had persuaded the landowner to move a footpath that had run diagonally across from Dean Villas to a footbridge just to the south of the houses to now run around the perimeter of the field as this is how the footpath is marked on maps. (My Landranger map, bought recently, does not show a path running around the edge of the field as stated.)"

8. User Evidence

8.1 81 people have provided evidence of their use of one or more of paths A-C, A-B-C, D-I-E, D-I-G-F and E-G-F. Of these 81 people, 41 have some connection with the former Knowle Hospital (the majority lived in Dean Villas/Totsome Cottages as tenants and employees of the Hospital). The remaining 40 people have no apparent connection with the Hospital. User evidence has been provided in a number of different formats (as described below). Some individuals have provided their evidence in more than one format. 37 people have provided maps of the routes they have used. As some people have followed path D-I-E and others have followed D-I-G-F these sections of path have been considered separately. All use considered in the following paragraphs is use on foot; there is some evidence of other types of use (such as use on bicycles) but this evidence is in such low numbers that it could not support the dedication of a public right of way.

8.1.1 1983 User Evidence Forms

        In 1983, 13 people completed user evidence forms in support of Mrs Lewsley's claim. None of these user evidence forms include maps showing the routes used but, for the purposes of this investigation, it has been assumed that the forms relate to use of paths A-C and D-I-E. This assumption is based on information included on the evidence forms themselves, and information provided by the Ramblers Association and Mrs Lewsley as to which paths she was concerned about.

8.1.2 2006 Letters

        In 2006, Mrs Chambers contacted a number of individuals, inviting them to complete pro-forma letters attesting to their use of footpaths around Knowle. 24 individuals returned these letters, providing dates of their use of the paths. The letters are not accompanied by maps indicating which routes were used. However, the wording of the letters states: "the footpaths in question were used by me...". Given that this letter was provided after the current application had been made, it is likely that the letters reflect use of A-C and D-I-E, and this assumption has been made for the purposes of the statistics in this report.

8.1.3 2007 Notice

        In the week of the 3rd-10th June 2007, Mrs Carstens posted a notice at point C, asking for users of path A-B-C to provide their names and telephone numbers to Mrs Carstens. This was done to reflect the number of people using the route to Totsome Cottages who were non-local to the immediate area. 24 individuals provided their names and contact details to Mrs Carstens, some of whom went on to complete user evidence forms. No substantive information about usage was provided but, given the location of the notices, for the purposes of this report it has been assumed that the individuals had used path A-B-C.

8.1.4 2003-2007 User Evidence Forms

        Between 2003 and 2008, 40 individuals provided detailed evidence of their use of the claimed paths on user evidence forms. In the majority of cases maps were provided with the forms. The forms indicate use of routes A-C, A-B-C, D-I-E and D-I-G-F as well as other paths in the immediate vicinity.

8.1.5 Signed Statements

        Between 2003 and 2008, 13 people were interviewed about their use of the paths. Of these 13, 12 have provided signed statements, which are included as Appendix 3.

8.2 Summary of user evidence

8.2.1 Path A-C

8.2.1.1 56 people have provided evidence of their use of path A-C. Of these 56, 38 were once connected with the Knowle Hospital Estate in some way and 17 had no apparent connection. There is evidence that this path has been used every year between 1930 and 2007. A summary of this use is given as Appendix 4.

    8.2.1.2 This path appears to have provided the main point of access from the Knowle Estate to the nearest shop (now closed), bus-stop (now relocated) and local school (in Funtley). The hamlet of thirty or so properties at Totsome Cottages/Dean Villas and Park Cottages appears to have relied on path A-C as a vital link to local amenities, and it seems likely that when it was available, this path was well used by the majority of residents. However, the path also appears to have formed part of a recreational route used both by Knowle residents (as a way of accessing the countryside) and strangers to the immediate area (as part of a longer walk). It would appear that this path also provided access to the hospital for employees who did not live on the estate. Mr Towler comments that because of the relative freedom that patients of the Hospital had, it would have been difficult for Hospital staff to distinguish between patients and strangers to the area who were using the paths for recreation. There is also evidence of use of this path by cyclists and horse-riders.

8.2.1.3 Most of those who have commented on the appearance of the path have stated that it was well-worn and sometimes surfaced with clinker. Mrs Chambers comments that it was so well worn that it had become a landscape feature in itself (with a sunken base and raised edges) and that vegetation was not a problem as the constant use kept it in check. Mr Beale, however, states that when he used the path (on 6-8 occasions between the late 1970s and 1990) the route of the path was only visible when the grass was long.

8.2.1.4 There is currently a wooden fingerpost sign at the northern end of path A-B-C. It is not clear when this sign was erected, nor by whom. Mrs Chambers suggests the sign was erected between 1974 and 1993. Mr Grant suggests that there may have been a similar sign at the southern end of the path, though this is not suggested by other witnesses. Many witnesses mention the lamp-post which is still situated at the southern end of the path (now lying within Mr Moyse's field). Two state that there were once steps at point C - Mrs McFarlane states that originally there was a stile at this location, but this was replaced by steps to improve access for prams and pushchairs.

8.2.1.5 None of those providing evidence to this investigation mention any signs or notices to discourage use of this path. As far as officers are aware, the only time access to this route was ever challenged was when Mr Moyse changed the route of this path. One witness suggests that this path was diverted on the instructions of the Southern Area Rights of Way Officer. In any case, many users seem to view the intentions of the landowner in relation to path A-C as different to his intentions in relation to path D-E-F. Users appear to hold the view that, whilst the route of path A-C was changed (to A-B-C), their right to use a route between A and C was not questioned - possibly because the landowner thought this was a public path.

8.2.2 Path A-B-C

8.2.2.1 29 people have provided evidence of their use of path A-B-C. Of these 29, 1 person was once connected with the Knowle Estate and 28 had no apparent connection. There is evidence that this path has been used in every year between 1970 and 2008. A summary of this use is given as Appendix 5.

8.2.2.2 Although there is evidence that path A-B-C has been used since 1970, it is likely that the main use of the path began when the direct path between A and C was blocked off.

8.2.2.3 Mr Grant comments that the surface of this path is unusable. Having visited the site, officers would comment that the damage to the path appears to be caused by the volume of use which has occurred on a narrow, unsurfaced field-edge path.

8.2.2.4 There is currently a wooden `footpath' fingerpost at point C, as discussed above. No users have provided evidence that they were ever stopped or discouraged from using this path; indeed, it is still open and available for use at the time of writing this report.

8.2.3 Path D-I-E

8.2.3.1 54 people have provided evidence of their use of path D-I-E. Of these 54, 37 were once connected with the Knowle Estate in some way and 17 had no apparent connection. There is evidence that this path has been used in every year between 1930 and 2005. A summary of this use is given as Appendix 6.

    8.2.3.2 This path was used by the residents of Totsome Cottages/Dean Villas as a recreational route - leading to open countryside. It was also used by them as a route to Funtley/Fareham and by the children as a path to school. There is some evidence that strangers to the area used the path as a through route as part of recreational walks. There is also evidence of use by cyclists, horse-riders, and vehicles.

    8.2.3.3 Users state that until the early 1980s this path was a substantial track, surfaced with either clinker or rubble. It would appear that the path was ploughed in the 1980s, but that use continued until the path was finally closed by Mr Moyse. Mrs Chambers states that whenever the field was cropped, use of the path ceased for the duration and resumed again when the field was empty, though evidence of other users does not mention such interruption to use.

    8.2.3.4 No witnesses recall signs or notices telling them not to use the claimed route, but 5 users recount instances when they or their friends were stopped and told not to use this path by Mr Moyse and his employees, and in one instance, by hospital staff. This route was blocked off by locked gates in February 2003 - these gates remain in place, and it is likely that those who have used the path since this date have climbed over the gates.

8.2.4 Path G-F

8.2.4.1 13 people have provided evidence of their use of a variation of path I-E, path I-G-F. Of these 13, all were once connected with the Knowle Estate in some way. There is evidence that this path has been used in every year between 1934 and 2005. A summary of this use is given as Appendix 7.

8.2.4.2 The surface of this path, and information on signs and challenges is as detailed for path D-I-E.

    8.2.5 Other paths

    8.2.5.1 Use of various other paths in and around the Totsome Cottages area (in addition to those described above) has been attested to in the user evidence provided. However, none of the paths stands out as regularly used, or used by any significant quantity of individuals, and therefore, these paths have not been considered in this report.

    8.2.5.2 A number of users mention that once a year, on the day of the Wickham Fair, barriers would be erected at either end of Mayles Lane as a symbolic gesture to show it was a private road. Mrs Chambers states that this barrier applied only to vehicles, and was not designed to prevent pedestrian use of the lane.

9. Landowner Evidence

9.1 Land ownership history

9.1.1 A summary of the land ownership of the routes under consideration is given in the table below. This information has been derived from Land Registry details, information provided by the landowners and correspondence held on file. A diagram showing current land ownership is shown as Appendix 2.

      Date

      D-E-F

      A-C / A-B-C

      (blue land)

      A-C / A-B-C

      (yellow land)

      A-C / A-B-C

      (pink land)

      Before July 1910

      The County of Southampton

      The Lord Bishop of Winchester (until 17 August 1867) then the London & South Western Railway

      The County of Southampton

      The County of Southampton

      July 1910 to June 1983

      The County of Southampton then Secretary of State for Health

      London & South Western Railway then Southern Railway then British Transport Commission then British Railways Board

      The County of Southampton then Secretary of State for Health

      The County of Southampton then Secretary of State for Health

      June 1983 to ?October 1988

      Hambros Bank Executor and Trustee Company Ltd (dissolved c.1986) and/or Agricultural Property Unit Trust (tenant: Mr Rees)

      British Railways Board

      Hambros Bank Executor and Trustee Company Ltd (dissolved c.1986) and/or Agricultural Property Unit Trust (tenant: Mr Rees)

      Secretary of State for Health

      ?October 1988 to ?1992 or July 1997

      Mr TS Benge and/or Marchstone Estate

      British Railways Board then Railtrack PLC

      Mr TS Benge and/or Marchstone Estate

      Secretary of State for Health

      ?1992 or July 1997 to 2005

      Mr G Moyse and Mr R Moore

      British Railways Board then Railtrack PLC then Network Rail

      Mr G Moyse and Mr R Moore

      Secretary of State for Health

      2005 to present

      Mr G Moyse and Mr R Moore

      Network Rail

      Mr G Moyse and Mr R Moore

      English Partnerships

9.2 Mr Moyse

9.2.1 On 3rd October 2007 Mr Stubbs was asked a number of questions by the Rights of Way Office, and by letter, on the 6th of October, having discussed the questions with Mr Moyse, Mr Stubbs provided the following information:

        · Mr Moyse purchased the land in question in 1992.

        · In 1996 (or thereabouts) Mr Moyse redirected the line of path A-C so it followed the field edge route A-B-C (as shown on Appendix 1). He did this following discussion with the Hampshire County Council Rights of Way Officer for the Southern Area, Mrs Elizabeth Giles. Mr Moyse states that the decision to move the path to the edge of the field in accordance with the requirements of Mrs Giles. However, he confirms that though all works were carried out in accordance with the discussions which had taken place with Mrs Giles, Mrs Giles had confirmed to him that there was no footpath across his land.

        · The redirection of path A-B-C was carried out at Mr Moyse's expense, with no additional external funding.

        · Mr Moyse states that as his view has been that the land was always farmed and, therefore, he has had no reason to have persons available on site to stop anyone using the claimed paths.

        · Mr Moyse does not know who erected the wooden footpath fingerpost at point C. He states that this may have been something done by Mrs Giles following his provision of the footway A-B-C, but he has no evidence that this was the case.

        · As far as Mr Moyse is concerned, the land of path D-I-E and G-F has always been cultivated where the footpath crosses the land. He states that there was nothing on the deeds of the land (as provided by the Health Authority when the land was sold in the 1980s). The trackway which section D-I of the claimed path follows was ploughed out before Mr Moyse took on possession of the land.

        · Mr Moyse states that he did not need to stop persons from using path D-I as the land was in cultivation every year, both during the period of his ownership and, as far as he is aware, by the tenant farmers who occupied the land before he purchased it.

    9.2.2 Mrs Giles states that the correspondence she entered into with Mr Moyse regarded the location of Footpath 15, Wickham. She does not recall having any dealings or reason to speak with Mr Moyse regarding path A-C.

    9.2.3 Mr Moore has not responded to consultation.

9.3 Secretary of State for Health / English Partnerships

9.3.1 The land of the Hampshire County Lunatic Asylum was owned by the County of Southampton from at least 1852 to 1948. In 1948, the hospital was incorporated into the newly created National Health Service, and became known as Knowle Hospital. It is likely that on this date the land was transferred from the County of Southampton to the Secretary of State for Health. Part of the Knowle Estate was sold in 1983. The land sold included the field to the south of Totsome Cottages (including the yellow section of path A-C and all of path D-I-E). The properties of Totsome Cottages and Dean Villas were also sold into private ownership (having been previously part of the Hospital Estate). However, the Secretary of State for Health retained ownership of the roadways around the Knowle Estate (including Mayles Lane, the road around Totsome Cottages / Dean Villas and the pink section of path A-C). In April 2005 part of the land retained by the Secretary of State (including the aforementioned roadways and section of A-C) was transferred to English Partnerships, the national redevelopment agency.

9.3.2 In 2003, an ex-employee of Knowle Hospital, Mr McVicar, provided a statement outlining his knowledge of route D-I-E. This statement is summarised below:

          Mr McVicar was employed by Knowle Hospital as the Farm Manager between 1973 and 1983. His responsibilities included the upkeep of the Hospital grounds.

          He recalls that path D-I-E was maintained regularly by him and his maintenance staff. He states they would flatten the path with a roller to smooth out the ruts and make it easier for people to walk on. Clinkers from the hospital boilers were also laid on the path, again to improve the surface for pedestrians.

          Mr McVicar states that the people that used D-I-E were staff and patients of Knowle and families who lived on the Estate. He says that people would walk or cycle on the path on their way to and from Funtley or Fareham.

          He believes the fields either side of the path were ploughed by the hospital for many years prior to 1983, but the path was left untouched. Initially the new owners of the land (following the sale in 1983) followed the previous practice of ploughing the surrounding fields and leaving the path untouched. However, in subsequent years the path was ploughed up (he believes that this is because the use of big combine harvesters made it too difficult to leave the path unploughed). Mr McVicar states that even when the path was ploughed, people continued to use it in the usual way, and he believes that this use was accepted by the landowner without complaint.

9.3.3 English Partnerships has confirmed ownership of the pink section of path A-C. Officers have had telephone conversations with the English Partnership employee responsible for the management of the Knowle site, who states that the Partnership had erected wooden barriers to prevent cycle access (but allow pedestrian access) to route A-C/A-B-C. Officers understand that English Partnerships have no objection to the recording of A-C or A-B-C as a public right of way, although they note that they have, in the past, had problems with members of the public parking their vehicles on the road near to point C, when going for a recreational walk in the countryside (using route A-B-C as part of their walk). However, this information has not been confirmed in writing.

9.4 Network Rail

9.4.1 Network Rail have stated that path A-C probably came into existence between 1909 and 1932 (and have forwarded copies of the 2nd and 3rd editions of Ordnance Survey County Series map to support this view). Other than this, they have no comments to make on the application.

    10. Summary of Evidence

    10.1 It is likely that routes A-C and D-I-G-F were constructed (for it seems that some degree of engineering took place on both routes) in or around the time when Totsome Cottages were built, probably circa 1930. It seems likely that both routes were established with the intention of improving access onto and around the Knowle Estate. User evidence suggests that section G-E came into being at the same time, though may have been established through use (it being a direct link to Footpath 86, particularly for those wanting to travel to Funtley) and not specifically engineered.

    10.2 There is evidence that paths A-C and D-I-E and have been used in every year between 1930 and 2003.

    10.3 Until 1983, the field crossed by the routes under investigation was part of the Hospital Estate. Use of the Estate by those who lived or worked on the Estate does not constitute use by the public for the purposes of this investigation, and therefore, this element of user must be disregarded. Following the sale of the land in 1983, the land ceased to be part of Knowle Hospital, and use of the paths after 1983 by those who lived on the Hospital Estate qualifies as public use. The situation is slightly more complicated for those who may have worked on the Hospital but did not live on the estate. Whilst at work or attending social events on Hospital grounds (as organised by the Hospital) it seems likely that any use of the paths would be by invitation. However, the statement made by Mr and Mrs Marion is particularly useful in this respect. Mr and Mrs Marion (both ex-employees of the Hospital) - with reference to people who may have been invited first onto the Hospital grounds for legitimate business they say "once they had go to know the place they would return again simply to walk the grounds for leisure". This statement is considered to be a particularly useful insight into the pattern of use that the paths under investigation enjoyed.

    10.4 In 1983 there was a query over the status of path D-I-E and possibly A-C. It is possible that this query arose due to the ploughing of D-I-E. Aerial photographs show that path A-C was not ploughed in 1983 and the millennium photograph indicates the ploughed part of the field does not extend over the land of path A-C.

10.5 Mr Moyse and Mr Moore purchased the land in 1992 under the name of a partnership called Marchstone Estates. The partnership then dissolved and the land was registered under the individual ownership of Mr Moyse and Mr Moore in 1996. Mr Moyse further states that, to the best of his recollection, path A-C was relocated in 1996 though documentary evidence would suggest that this relocation happened in 2003.

    10.6 It seems that the field crossed by the routes under investigation was fenced in January or February 2003, as part of the works carried out to clear and maintain Fareham Footpath 15. This fencing work extended around the whole field, and it is likely that it is this work which blocked access to A-C and D-I-E, and created the new path A-B-C.

    10.7 Mr Moyse believed he was acting in accordance with the wishes and agreement of the County Council's Countryside Service when he redirected path A-C to route A-B-C. He states that just before he moved the path he was advised it was not recorded as a public right of way.

    10.8 It seems that the Countryside Service's reporting of the work to clear and define Footpath 15 was understood by members of the public to include the success in achieving the relocation of route A-C.

10.9 Use of path A-C appears to have carried on uninterrupted from 1930 until the path was relocated on 2003. Use of path D-I-E carried on until at least the early/mid 1980s when it was ploughed out. Whilst Mr McVicar states that people carried on using the route after it was ploughed, Mr Moyse appears to hold the view that the cropping of the field made intervention to stop members of the public using the paths unnecessary (presumably because he was not aware of public use of the land whilst it was cropped). Mrs Chambers states that people did not walk the path when the field was in cultivation, but most users suggest their use carried on unabated.

10.10 No landowners claim to have attempted to prevent members of the public from using the routes under investigation. However, some users appear to be of the belief that Mr Moyse and his employees did attempt to stop and turn back themselves or other persons using path D-I-E. There is no evidence that any landowner erected signs or notices to discourage use.

    10.11 None of those landowners who have provided evidence to this investigation are aware of who erected the wooden fingerpost sign at point C, or when this was done. There is documentary evidence to show that it has been in place since at least 1993.

    10.12 It would appear that Knowle Hospital have carried out some work to improve the surface of paths A-C and D-I-E, and English Partnerships have verbally acknowledged carrying out works to facilitate pedestrian access to route A-C. There is also a suggestion that in 1993 there had been some attempt to maintain path A-C.

    10.13 Given the evidence of use and maintenance of path A-C, it seems likely that Mrs Lewsley's comment made in her letter of 1993 referring to a path which had not been used for ten years is likely to refer to path D-I-E and not path A-C.

    11. Analysis

11.1 It is normal for a public right of way to start and end at either another highway, or a place of legitimate resort. In both of these cases the paths lead from a public right of way to an estate road. For those people who live in Totsome Cottages or Dean Villas, the estate road is clearly a place of legitimate resort. For others, with no connection with the Hospital, A-C and D-I-E both appear to have been used as part of a longer recreational route. It seems that, upon reaching point C or point D, users from outside of the Hospital estate followed a variety of different routes depending on where they were heading. Officers do not have sufficient evidence of use of any of the paths leading onwards from, or between, point C and point D with which to infer their dedication as rights of way, but nonetheless, it is apparent that point C and point D were both viewed as is a place of resort for members of the public using route A-C and route D-I-E respectively, and that both routes provided a single way onto and through the Knowle Estate, from which members of the public spread out. If Members do not concur with this view, it follows that neither path A-C or path D-I-E can properly be recorded as public rights of way.

    11.2 Section 31 Highways Act 1980

    11.2.1 Path A-C

    11.2.1.1 Section 31 does not apply to Crown Land and therefore, the dedication of path A-C could not have taken place during the period it was owned by the Secretary of State for Health. However, the deemed dedication of a path under Section 31 takes place at the end of the twenty year period specified by the 1980 Act. Though there is no case law on the subject, it seems that evidence of use of a path during a period to which s.31 does not apply can be used as evidence of the dedication of a path under s.31, provided that the deemed dedication (the point when the use was brought into question and the culmination of the twenty year period) takes place at a time where s.31 does apply.

    11.2.1.2 Evidence would suggest that access to route A-C was blocked in either January or February 2003. The closure of this path is clearly an event which brought the use of the path by the public into question, and therefore, the twenty year period relevant for the purposes of the 1980 Act is January/February 1983 to January/February 2003.

    11.2.1.3 32 individuals have provided evidence of their use of this path during the 20 year period relevant to this investigation. However, for the first four or five months of the twenty year period the path was part of the Hospital Estate, and therefore, use by the residents of the Estate does not constitute public use. Therefore, for the first few months of the 20 year period only 5 members of the public have given evidence of their use of this route. This level of use is low, however, there is evidence that more people used the path than have provided signed evidence to this report, and certainly, by the end of 1983, 30 people claim to have used the route. There is no evidence that the use of this path was interrupted during this twenty year period. On balance it is considered that this path has been used by the public for a full twenty year period without interruption.

    11.2.1.4 There is no evidence that individuals used force to access this path, and all use appears to have been overt and capable of coming to the attention of the landowner. Between January and June 1983 use by residents of Knowle was on a permissive basis, but this use has been disregarded for the purposes of this analysis.

    11.2.1.5 On balance, the use of the path by the public for a full twenty year period raises the presumption that it has been dedicated as a public right of way, a presumption which is capable of rebuttal if the landowner can demonstrate that they took actions which made it apparent to those using the path that they did not wish it to be dedicated as a public right of way. In 1983 Mrs Lewsley questioned the status of this path and path D-I-E. In 1984 the landowners objected to this application, stating that they did not want a right of way through their land. However, evidence suggests that this comment referred to use of path D-I-E (path A-C being outside of the ploughed field, and not through the middle of the land). Throughout this period use of A-C continued uninterrupted, whilst users of D-I-E were clearly challenged. Therefore, officers are not satisfied that there is sufficient evidence with which to rebut the presumption of the dedication of this path.

    11.2.1.6 Given that there is a reasonable allegation that the deemed dedication of this path took place in 2003, it has not been necessary to consider whether there is another twenty year period of use of this route to which section 31 might apply.

    11.2.2 Path D-I-E

    11.2.2.1 The application of S.31 Highways Act 1980 over path D-I-E is as described in paragraph 11.1.1.1 for path A-C.

    11.2.2.2 Use of this path was brought into question in January/February 2003. However, there is evidence that public use of this path was challenged by landowners in the twenty year period prior to this date, and these challenges appear to have been communicated to other users of the path. Further, there is some evidence that use of the path was interrupted whenever the path was under crop. It is therefore considered that the requirements of section 31 have not been met for the period 1983 to 2003.

    11.2.2.3 The events of 1983 are also considered to have brought the use of this path as a public right of way into question. In July 1983 Mrs Lewsley inquired of this office as to the status of the path. In August 1983 the new landowners wrote to Mrs Lewsley stating that the path was not public and that they had instructed the Hospital to remind people of this. In the same month a number of local people completed user evidence forms - many comment on the ploughing of the path (some three weeks beforehand). In November 1983 Mrs Lewsley made a formal application to record the path as public. It seems that many people were aware of the question over the status of the path by the end of August 1983 and that, therefore, the events of August 1983 were sufficient to act as a bringing into question for the purposes of s.31 Highways Act 1908. For the purposes of s.31, therefore, the relevant 20 year period runs from August 1963 to August 1983.

    11.2.2.4 49 people have provided evidence of their use of the path between these dates. However, of these 49, 36 were apparently connected with the Hospital in some way. The maximum number of users who have provided evidence for any given year is 10, the minimum is 4.

    11.2.2.5 Again, this level of use is low. However, there is evidence that more people used the path than have provided signed evidence to this report and the nature of the path suggests that may well have been used as a through route between Funtley and Wickham. Though the evidenced level of use would not normally be sufficient to qualify as `the public', in this particular case, taking other evidence into account, it may be that the level of use does qualify as `the public'.

    11.2.2.6 There is no evidence that the use of this path was interrupted during this twenty year period. There is no evidence that public use of the path was challenged by the landowners within this 20 year period (although the path was ploughed in the last few weeks of the 20 year period, it is not considered that ploughing a path, of itself, is evidence of a lack of intention to dedicate for the purposes of s.31).

    11.2.2.7 Members may take the view that the level of use in the 20 year period is sufficient to represent the public, and they may therefore consider that this path has been dedicated as a public footpath by virtue of s.31 Highways Act 1980. They may, however, take an alternative view that the level of use, particularly towards the end of the 20 year period, is not sufficient to raise the presumption that the way has been dedicated as a public right of way, and therefore section 31 does not apply. This is not an easy decision, and officers have some difficulty recommending whether or not section 31 applies in this case. However, it would seem that there is further evidence of use which has not been captured by this investigation and therefore would be appropriate for Members to find that this route may have been dedicated as a public right of way under section 31 Highways Act 1980 (evidence of use can then be tested at a Public Inquiry if appropriate).

    11.2.3 Path A-B-C

    11.2.3.1 This path was created by the installation of a field boundary fence around Mr Moyse's land in or around February 2003. As far as officers are aware, use of this path has never been challenged, and no other event which brings the use of this path into question has been identified (no formal application has been made to record this route). Section 31 relies on such an event to provide an end date for the qualifying period of twenty years' use, and therefore, section 31 does not apply to this route. In any case, the low level of use by the public in the years before 2005 (4 people claim to have used the path between 1990 and 1997) is not sufficient to satisfy the requirement that the path has been used by the public, and there is, therefore, insufficient evidence for a dedication under section 31 to be presumed.

    11.2.4 Path G-F

    11.2.4.1 Use of this path was brought into question in August 1983 through the same events which brought path D-I-E into question. However, all evidence of use for the period before 1983 has been provided by individuals connected with the Hospital Estate - officers have no evidence that the path was used by the general public, and therefore, there can be no presumption that the way has been dedicated as a public footpath under section 31.

    11.3 Common Law

11.3.1 In order to infer a dedication at common law there must be evidence from which an intention to dedicate can properly be inferred. Such evidence may be uninterrupted user over a period of time.

11.3.2 Path A-C

11.3.2.1 Though the number of individuals who have submitted evidence in support of this claim is not particularly high, there is evidence that the path was used by more people than those who have provided evidence to this report; Mrs Chambers, Mr Grant and Mr Towler all suggest that the path was used by people not connected with the Hospital, and many other forms and letters seem to be written on behalf of that individual and their families.

11.3.2.2 Mrs McFarlane states that originally at point A there was a stile. Later this was replaced by steps, and later still a lamp-post was erected nearby (this lamp-post is still present). Meanwhile, Mrs Chambers recalls that the path was sometimes surfaced with clinker from the hospital boiler. There is currently a wooden `footpath' fingerpost at point C which, evidence would suggest, has been in place since at least 1993, and more recently, work has been carried out to improve the entrance to the path at point C, possibly by English Partnerships.

11.3.2.3 All of this would suggest the both the Hospital, and subsequent landowners were aware of the strategic value of this route for people accessing the Hospital Estate from elsewhere, and people leaving the Hospital Estate to reach local amenities. Though not high, the level of public use is probably sufficient to have come to the attention of the landowners, and yet, until the path was relocated in 2003, there is no evidence that any attempts were made to stop or discourage people from using the paths (even though the Knowle Estate were clearly taking measures to show other routes on the estate as private - Mayles Lane for example).

11.3.2.4 In 2003 access to this path was blocked, and the route was relocated to follow A-B-C. However, this appears to have occurred following correspondence between Mr Moyse and the County Council, in which Mr Moyse was informed that the path was not recorded as a public right of way. Indeed, Mr Moyse appears to believe he was encouraged to move the path by the County Council. Even though A-C has been blocked, an alternative route between A and C is still available, suggesting the landowners continue to acknowledge the value of this access point, and acquiesced in the public use of this route.

11.3.2.5 Though it is by no means clear that this route has in fact been dedicated as a public footpath at some time in the past, Section 53(3)(c)(i) of the Wildlife and Countryside Act 1981 requires an Order to be made where a right of way is reasonably alleged to subsist. The evidence put forward to support the allegation can then be tested if necessary. Officers consider that in this case there is a reasonable allegation that a deemed dedication of this path as a public footpath at common law took place in or around 1930, for which the subsequent evidence of use by the public, maintenance and upkeep is evidence.

11.3.3 Path A-B-C

11.3.3.1 The main body of use of this path began in 2003, and the path is still available for use, and used, at the date of this report. Mr Moyse erected a fence which separated this path from the field he farms, and English Partnerships appear to have taken measures to improve the northern section of the path. However, it is considered highly unlikely that Mr Moyse would have intended to dedicate two rights of way over his land (this path and path A-C). Given that in 2003 he was acting in the belief that A-C was not a public right of way it seems unfair to suggest that not only was A-C a public right of way at this time (albeit unrecorded) but also that through the actions he took (in good faith) he dedicated a second right of way.

11.3.4 Path D-I-E

    11.3.4.1 There is evidence that this path has been used by the public and residents of Knowle since 1930. The evidenced level of use of this path by the public is not particularly high, and of itself may not be sufficient to suggest that a common law dedication of this path took place in 1930. However, there is evidence that the path was used by persons other than have provided evidence to this investigation. There is documentary evidence (in the form of Ordnance Survey mapping) to suggest that, for the most part, this route is a historic path which (as evidenced by users) has been used by the public from an early date.

    11.3.4.2 There is no substantive evidence to show that, during its ownership, the Hospital made any positive effort to indicate to the public that this path was a public right of way. Though the path was surfaced by the Hospital Estate, this surfacing is likely to have been to improve access for farming vehicles. However, it is clear that the Hospital Estate were aware of the need to protect land from the acquisition of public rights over it (notably, the yearly closure of Mayles Lane). There is no evidence that the Hospital ever took steps to discourage or dissuade people from using the particular track during the period of its ownership.

11.3.4.3 Following the 1983 sale of the land there is evidence to suggest that landowners did not view this path as a right of way - the land was ploughed in the 1980s and some users of the path were told the land was private by landowners and prevented from using it. The tenant and landowners in 1984 also displayed a clear objection to the dedication of a path (likely to be this one) as a right of way.

11.3.4.4 The actions of the landowners in respect of this path for the period following the sale of the land in 1983 clearly do not provide sufficient evidence of the common law dedication of D-I-E after 1983. However, this is not to say that there was no previous dedication of this path. In this respect (as with the dedication of this path under section 31 Highways Act 1980), Members again have a difficult decision to make. It may be that Members take the view that there is not enough evidence with which to infer that a common law dedication of this path took place before 1983. However, they may also take the view that the evidenced of use of the path, coupled with early mapping and the lack of action taken by the Hospital suggest that the common law dedication of the path took place some time in the distant past, possibly in or around 1930. Though officers again have difficulty in recommending the correct course of action, it would seem that though the evidence does not show that a public footpath over this route actually subsists, officers consider that there is at least a reasonable allegation that a path over this route subsists.

12. Consultation

      The following persons and bodies have been consulted about the application, namely the County Council (Environment and Highways), Councillor Frederick Allgood (the local member), Winchester City Council, Wickham Parish Council, Fareham Borough Council, Ramblers Association, Open Spaces Society, and the Rights of Way Area Officer for the Southern Region. The following responses have been received:

12.1 Winchester City Council - comments that route A-C is shown on a historic map of the site dated 1919 -1943 which annotates it as a footpath.

12.2 Hampshire Highways - states that there are no publicly maintainable roads in the vicinity of the claimed path and has no comments to make on the application.

12.3 Ramblers Association - states that the local representative is aware of these routes, having walked A-C and the north-south section of route G-F. occasionally over the last 30 years. He has spoken to the resident of No.6 Dean Villas who has lived there since 1968 and who is aware of the use of all of route D-I-E. over that time.

12.4 Wickham Parish Council - fully supports the claim for the footpaths.

13. Width

13.1 Should Members decide that an Order should be made to record A-C or D-I-E as public rights of way, then they should decide on the width of the path over which the public right has been acquired.

13.2 The Ordnance Survey County Series 4th Edition map of 1932 shows path A-C to have a width of approximately 2.4 metres along most of its length, increasing to approximately 3.5 metres at its northern end (the increased with corresponds with the change of ownership from Mr Moyse to English Partnerships).

13.3 The same map shows path D-I to have a width of 4 metres and the majority of I-E to have a width varying between a minimum of 3.3 metres and a maximum of 4 metres.

14. Comments from the Applicant and Landowners/adjacent Landowners

      A draft of this report was given to the adjacent Landowners and the applicant to afford them the opportunity of submitting further evidence or making further comment. The following comments have been received:

14.1 In respect of the version of this report which was put before this Committee in February 2008, Mr Stubbs (on behalf of Mr Moyse) believes that the comments of Mrs Lewsley regarding the path which had not been used for ten years (as outlined in paragraph 7.4.5 of this report) cannot be argued to relate just to path D-I-E, but should equally apply to path A-C. Mr Stubbs also comments that no formal application has been made in respect of path A-C. He therefore queries why this path is considered in this report, as there appears to be no formal application to answer.

14.1.1 Officers comment that available evidence would suggest that, on balance of probability, Mrs Lewsley's comments do not refer to path A-C. User evidence suggests that use of path A-C was consistent and uninterrupted until the relocation of the path in 2003. Meanwhile, aerial photography suggests A-C was in use until at least the year 2000. With regards to the second point, if Members believe there is evidence to show that a right of way subsists, or can be alleged to subsist, over a particular path, they are obliged to make an Order to record it as a public right of way, irrespective of whether or not a formal application has been made in respect of that particular path. This is because Hampshire County Council has a duty to make Orders to modify the Definitive Map on the discovery of evidence which shows, for example, that a right of way can be reasonably alleged to subsist (even if no application has been made). A formal application is a mechanism by which a member of the public can prompt an authority to carry out this duty, but the duty remains whether or not an application has been received.

14.1.2 It is understood that Mr Moyse and Mr Stubbs wish to make further comments on the current report but, for personal reasons, are unable to provide these comments in time for the publication of this report. It is understood that Mr Moyse and Mr Stubbs will circulate these comments to Members in advance of, or at, the Committee Meeting.

14.2 Mrs Carstens has no comments to make at this stage.

14.3 Mrs Chambers comments that although there may be user evidence to suggest that path A-B-C was used before 2003, this is in fact highly unlikely as A-B-C was overgrown and did not exist as a path until Mr Moyse cleared it in 2003. She feels that this evidence should instead be attributed to path A-C.

    14.4 Ms McKenzie (who lives adjacent to path A-C) makes the following points in respect of path A-C/A-B-C

      · We purchased our house in April 2004 at which time we were told that the path was not an adopted right of way and was used mainly by local residents for recreational purposes and as a shortcut to the pub in Fontley.  Use has steadily increased over the intervening period, particularly by dog walkers, as more houses are built and occupied on the Knowle estate. 

      · Conversations with neighbours resident in the area prior to ourselves supported this profile of use.  We were told that historically the path was known and used predominantly by local people connected with the hospital estate. 

      · The path that now exists is an adequate compromise between all parties - if horses and motorbikes continue to be prevented from using the path (as they are by the existing offset gate paid for jointly by English Partnerships and local residents) then ongoing maintenance would be relatively straightforward.

      · We understand that our personal concerns about privacy, security and potential property damage  caused by traffic along an adopted path are not necessarily pertinent to the remit of this review.  However, as the residents most directly affected by the proposal we feel it sensible to express our concerns now.  We hope that if approval is given it will be with the intent that these issues are to be addressed in consultation with ourselves. 

15. Conclusions

15.1 Path A-C: It is considered reasonable to allege that a public footpath over route A-C subsists as a result of a common law dedication in or around 1930, or that the path was dedicated as a public footpath under section 31 of the Highways Act 1980 in 2003.

15.2 Path D-I-E: The case for path D-I-E is more complex and it is reasonable for Members to either accept, or refuse, the application, where it relates to path D-I-E, depending on the view they take of the evidence available. If Members consider that the level use that this path has enjoyed before August 1983 when combined with all other available evidence is insufficient with which to infer the dedication of the path either at common law or under Section 31 Highways Act 1981, then they may reasonably find that the application for footpath should be refused. However, Members may consider that the level of use of this path before 1983, coupled with evidence of the path's existence and the Hospital's lack of action to discourage use may constitute a reasonable allegation that the common law dedication of this path took place before 1983 (possibly in or around 1930). Further, if Members consider that the level of use this path enjoyed between 1963 and 1983 is sufficient to represent the public at large, then it follows that this path may have been dedicated as a public right of way by virtue of section 31 Highways Act 1980. Officers take the view that, on the basis of the evidence available, there is a reasonable allegation that path D-I-E has been dedicated as a public right of way and, therefore, the correct course of action is to accept the application and make an Order for footpath accordingly, so that the evidence can be tested at a Public Inquiry if necessary.

15.3 There is insufficient evidence with which to infer the dedication of path A-B-C or G-F at common law or under Section 31 of the Highways Act 1980.

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 CR763 - Rights of Way Office, Mottisfont Court, Winchester