Hampshire County Council

Regulatory Committee Item 9

23 July 2008

Proposal to record a public bridleway between Watery Lane and `Tryplets' in Crookham Village parish

Report of the Director of Recreation & Heritage

Contact: Colin Piper Ext. 6043 [email protected]

WILDLIFE AND COUNTRYSIDE ACT 1981

53. Duty to keep definitive map and statement under continuous review

(2) As regards every definitive map and statement, the surveying authority shall -

(b) .... keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence.... of any of [the events specified in sub-section (3)] by order make such modifications to the map and statement as appear to them to be requisite in consequence of that event.

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

(b) the expiration... of any period such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path;

(c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows -

(i) that a right of way which is not shown on the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to which this Part applies;

Presumed Dedication at Common Law

Use of a way by the public without secrecy, force or permission of the landowner may give rise to an inference that the landowner intended to dedicate that way as a highway appropriate to that use, unless there is sufficient evidence to the contrary. Unlike dedication under S.31 Highways Act 1980, there is no automatic presumption of dedication after 20 years of public use, and the burden of proving that the inference arises lies on the claimant. There is no minimum period of use, and the amount of user which is sufficient to imply the intention to dedicate will vary according to the particular circumstances of the case. Any inference rests on the assumption that the landowner knew of and acquiesced in public use.

1. Summary:

Although this route has only been in existence for about eight years, use of the path by walkers, cyclists and horse riders has been without force, secrecy or permission and it is considered that the public has acquired a right of way through a common law dedication. It is proposed that a Definitive Map Modification Order be made to recognise this status.

2. Recommendation:

That an Order be made to record the route A-B-C (as shown on the attached map) as a bridleway on the definitive map of public rights of way. The path to have a width of 3.0 metres.

3. Landowner:

A-B No known owner

B-C Martin Grant Homes Limited

Grant House

Felday Road

Abinger Hammer

Dorking

Surrey

RH5 6QP

4. Description of the route: (please see map attached to report)

4.1 The route in question is a three metre wide tarmac path that runs from Watery Lane (Bridleway 13b) north-eastwards to an estate road called `Tryplets'. A substantial concrete bridge has been built over the stream to carry the path. At both ends there are two concrete bollards to stop vehicular access, and at the northern end a bicycle symbol has been painted on the surface to indicate its intended use as a cycleway. The path is approximately 60 metres long.

5. Background to the report:

5.1 The path was constructed as part of the new housing development to the north of Watery Lane and the major portion of the route has been adopted as publicly maintainable highway. However, the fact that some of the path is publicly maintainable does not establish what public rights exist over the route and does not secure a right of way for the future.

5.2 This proposal was prompted by comments from the public regarding the status and condition of the south-eastern end of Footpath 15 between points B-X on the attached map. This recorded right of way sees very little, if any, use because the route between X-A-B is a much better alternative. In consequence, Footpath 15 between B-X has, at times, become overgrown and the timber bridge that spans the stream is now leaning and in need of replacement.

5.3 Given that the public are using the route X-A-B, in preference to B-X, it would seem expedient to record A-B-C as a public right of way. This in turn would enable Footpath 15 between B-X to be extinguished at a later date if it was considered to be not needed for public use. A highway authority can make an Order to extinguish a right of way if it is considered that it is no longer necessary for public use. However, that is a separate issue, under different legislation, that might be dealt with later by another report to this Committee.

6. The issues to be decided:

6.1. The issue to be decided by this committee is whether there is evidence to show that a public right of way subsists, or is reasonably alleged to exist. Any changes to the definitive map must reflect public rights that already exist. It follows that changes to the definitive map must not be made simply because such a change would be desirable, or instrumental in achieving another objective. Therefore, before an order changing the definitive map is made, Members must be satisfied that public rights have come into being at some time in the past. This might be in the distant past (proved by historic or documentary evidence) or in the recent past (proved by witness evidence).

6.2 Evidence from those who have used the path or have knowledge of it in living memory can show that public rights have been acquired as a result of a recent dedication. A presumed dedication, under s.31 Highways Act, is inappropriate in this case as there has not been 20 years use, but a dedication might properly be inferred under Common Law if there is a significant amount of use in a lesser period.

6.3 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 not a step which should be taken simply to avoid making a difficult decision. Officers do not consider that there is any such conflict here.

7. Documentary evidence:

7.1 2002 Highway adoption plan

On 17 September 2002, Hampshire County Council adopted about 45 metres of the path from Tryplets, along with the estate roads and footways. On the plan that accompanies the agreement the path is annotated "Footpath /Cycleway".

7.2 2008 Photograph

This photograph was taken from the northern end of the path. It shows horse manure on the surface of the path at its junction with Tryplets.

8. User evidence:

8.1 A notice was displayed on site by rights of way officers inviting the public who used the path to comment on the proposal to record it as a right of way. A consultation letter was also sent to a number of houses in the locality. As a result, the council received the following submissions:

8.2 Jean and Peter Adkin

"We use the path each day when walking and cycling. The path is used by people who keep their horses in the fields along Watery Lane. During the lunch hour, people from Redfields Industrial Estate often walk through. At the weekend we often see ramblers, visitors with maps and rucksacks, also families walking and riding bikes over the bridge to get down to the canal and the Spar. The route is used on a regular basis by many people."

8.3 Kate Stewart

"My family and I have lived in Watery Lane since April 2001. We regularly use the footbridge and footpath at the end of Watery Lane through to Tryplets on Zebon Copse Estate. I walk every morning for exercise and...there are a large number of dog walkers I meet that use the path daily too. My family and I use the path when we are going to the Spar on Zebon Copse, going for a family walk or to post a letter, either on foot or on our bikes. I was out yesterday with my parents and niece on our bikes, and we saw 2 horses and riders, 2 pedestrians and 2 cyclists all at the bridge as we cycled on to it. Many of the girls that walk to St Nicholas' School use the path to enter Zebon Copse."

8.4 Val Keirl

"I would like to confirm that my husband and I regularly walk over the bridge at the bottom of Watery Lane, using it as a footpath 4/5 times a week." When asked if there was use by other users, she replied: "Cyclists...not very often but riders definitely. Horses are kept down Watery Lane and the pathway links up with the busy stables next to Zebon Community Centre and playing fields."

8.5 Mark Wilson

"I live at Tryplets and have done so since the house was built some years ago. The path...has been there the whole time. I can confirm it is regularly used by walkers, cyclists, horse riders and some motorcyclists. I see no reason why it shouldn't be classified as a bridleway as long as the bollards remain."

8.6 Mr Bryant

Mr Bryant of Watery Lane telephoned and confirmed that the proposed route is regularly used by walkers, cyclists and horse riders.

9. Landowner:

9.1 The Land Manger for Martin Grant Homes has written to say:

"We do not have any objection to the current footpath in terms of length, width and standard of construction being designated as a bridleway for walkers, cyclists and horse riders only. For the avoidance of doubt there should be no rights granted for vehicular traffic whatsoever."

10. Consultations with other bodies:

10.1 Crookham Village Parish Council

The parish clerk has written to say that the parish councillors confirm that the path is used as described by the local residents.

10.2 Hart District Council

The Highways Team Manager e-mailed to say:

"I am not aware of anything that would contradict what the residents have been able to tell you. Hart District Council has no objections to your proposals".

10.3 Councillor C Leversha - local member

No comment

10.4 The Ramblers Association

The parish footpath representative e-mailed to say that she could "...add nothing regarding usage of the path"

10.5 The British Horse Society

The County Access and Bridleways Officer has written to say:

"It is well used by riders from the Albany Farm Livery Stables where they keep about 20 horses. I spoke to a lady there who told me riders weave their way through the quiet roads on the housing estate..."

10.6 Environment Department

No comment

10.7 Hampshire Highways

No comment

11. Analysis of the evidence:

11.1 The path and bridge was built to enable the public to journey between the new housing development and Watery Lane. Since its construction the path has been used by walkers, cyclists and horse riders. Any stranger to the locality would assume that it is a public right of way. There are no recorded instances of challenges or obstructions to users of the path.

11.2 The path was intended to be used by walkers and cyclists and they have benefited from the new surfaced path and bridge. The route has also seen use by significant numbers of horse riders. The status of the right of way that would best reflect this multi-purpose use would be a public bridleway.

12. Conclusions:

12.1 A public right of way for walkers, cyclists and riders is reasonably alleged to subsist on the route A-B-C as a result of deemed dedication at common law, based on the actions of the landowners and use by the public since 2000. The width of the path is 3.0 metres.

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: Tryplets - Rights of Way Office, Mottisfont Court, Winchester