Hampshire County Council Item

Regulatory Committee

3 September 2008

Application for a Map Modification Order to record a public footpath between St Valerie Road and Park Road in Gosport Borough

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;

HIGHWAYS ACT 1980

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

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

(2) The period of 20 years...is to be calculated retrospectively from the date when the right of the public to use the way is brought into question....

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:

1.1 A resident of Gosport has applied for an Order to have a route recorded on the definitive map as a public footpath. The path has physically been in existence for about 100 years and there is evidence of use, by the public, for approximately 65 years. It is considered that the public has acquired a right of way through use before either 1994, or 2000, when the public's right to use the path was first brought into question. It is proposed that a Definitive Map Modification Order be made to recognise this status.

2. Recommendation:

2.1 That an Order be made to record the route A-B-C (as shown on the attached map) as a footpath on the definitive map of public rights of way. Section A-B to have a width of 1.4 metres and section B-C to have a width of 1.0 metre.

3. Claimant:

Mr J Theodosiou

2 Little Anglesey Road

Gosport

Hampshire

PO12 2HS

4. Landowners:

A-B No known owner

B-C Mr & Mrs Boggust

2 Park Road

Gosport

Hampshire

PO12 2HH

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

5.1 The claimed route consists of a passageway that is defined by the boundary walls and fences of a number of properties in St Valerie Road and Park Road. It connects the northern end of St Valerie Road with Park Road. The southern arm of the path is 1.4 metres wide, with a tarmac surface and a concrete pillar in the middle of the path at its end. The eastern arm of the path is 1.0 metre wide with a gravel surface.

6. Background to the claim:

6.1 The claimed path was physically obstructed in 2004, for a period of about one year, to allow owners of number 2 Park Road to carry our building work at the rear of their house. A notice was displayed to inform the public of the closure and advising them that it was not a public right of way. Local residents believed the path to be public and Mr Theodosiou, who at that time lived in Park Road, made the application to protect the status of the path. In the last week of July of this year the path was blocked once again, this time with substantial wooden panelling at both ends where the path adjoins No.2 Park Road. This latest obstruction has resulted in numerous complaints to the area highway office and local councillors.

7. The issues to be decided:

7.1. The issue to be decided by this committee is whether there is evidence to show that the footpath 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).

7.2 Evidence forms and statements taken 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 at common law. 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.

8. Documentary evidence:

8.1 1895 Ordnance Survey map 1/2500 scale

Park Road is shown on this map but there are only a few properties on the western side. St Valerie Road does not exist at this date and the land behind the houses fronting Park Road consists of a field and a gravel pit.

8.2 1908 Ordnance Survey Map 1/2500 scale

By this date Park Road has been completely developed on its western side. The claimed route is shown as a passageway between 2 and 4 Park Road and from the right angle bend it continues southwards, running along the entire length of the back gardens, to join Mount Pleasant Road (now called Alecto Road). The path is obviously designed to serve the properties fronting Park Road and does not seem to serve any public purpose. There is no development behind the Park Road properties where St Valerie Road now stands.

8.3 1930 Ordnance Survey Map 1/2500 scale

The properties fronting Park Road remain unchanged from the previous map except that the solid line that defined the western boundary of the back passageway has mostly disappeared. However, the claimed path is shown and defined by solid lines on both sides. The change to the rear passageway has probably been brought about by the construction of the six houses fronting Alecto Road and the first two houses (numbers 1 and 3) in St Valerie Road.

8.4 1962 Ordnance Survey Map 1/2500 scale

This map shows the locality very much as it is today. St Valerie Road is complete and the claimed route is shown by solid lines between the properties. There are no lines across the path to indicate the existence of a gate or other obstruction.

8.5 1994 Sale particulars

These sale particulars relate to No.2 Park Road when it was on the market in about 1994. The start of the alleyway can be seen between numbers 2 and 4 and there is no obvious sign or notice displayed anywhere at this point.

8.6 1997 Photograph

This photograph was taken from the back of number 4 Park Road, looking westwards along the alleyway towards point B. There is a covering of snow on the ground and there can clearly be seen bicycle tyre marks and numerous footprints in the snow between the boundary walls.

8.7 2004 Photograph

In early June 2004 a notice was displayed on the rear wall of No.2 Park Road. A photograph of the notice, supplied by the applicant, clearly shows the wording, which reads:

"Important Notice. Path closure. This path will close Friday 18^th June 2004. There will be major demolition and building work here. We apologise for any inconvenience this may cause you but would respectfully remind you this is not a public right of way."

8.8 2004 Letter from Mr Theodosiou to Gosport Borough Council

The letter is dated 7 June and the letter reads in full:

"I am writing to express my concern at the proposal of the owner of No.2 Park Road to close the alleyway giving access to the rear of my property on the 18 June. One of the grounds for concern is that, in addition to manhole covers which may require attention, the alleyway must surely be the subject of a public right of way, having been used by the general public for the last 100 years. No date is given for the re-opening of the alleyway and I presume the closure is to be permanent. Even the temporary blocking of access to this public alleyway by a private individual should not be permitted as it may set a precedent for closures in the future."

8.9 2004 Application for Map Modification Order

Mr Theodosiou made his application on 9^th July. At that time he lived at No.8 Park Road, a property that backs on to the claimed path.

8.10 2008 Land Registry documents

A search has been conducted at the Land Registry for the title deeds of several properties in Park Road and St Valerie Road to determine whether some households have a private right of access over the whole of the claimed route. If that were so, then any use by the occupants of those properties would not count towards the acquisition of a public right of way. The documents supplied by the Land Registry do not record the existence of any private rights of way over the whole of the claimed route, therefore it is very unlikely that any other properties have the same benefit.

9. User evidence:

9.1 The applicant originally submitted 21 user evidence forms in support of the claim. This has been supplemented by evidence from a further 4 users gathered as part of the investigation. There are three users who started walking the path in the 1930s with another five starting in the 1940s. In the 1990s all but one of the users were walking the path. For a visual representation of the user evidence please see the chart at the back of this report. Please note that user `Paul A' is entered twice on the chart to denote a break in his usage, but `Paul G' refers to two different people living at separate addresses.

9.2 Mr B Coates of St Valerie Road

Mr Coates used the path about 25 times a year, between 1990 and 2004, to go shopping and for walks. He recalls that "Some years ago a notice was erected saying - Private land, no public right of way."

9.3 Mr R Cross of St Valerie Road

Mr Cross walked along the claimed path "very often" from 1948 to 2004, and "often" rode a bicycle between 1948 and 2002. He used the path to visit the Post Office, doctors and shops. He adds that "Back in the sixties Gosport Borough Council asphalted the surface of that footpath so they must have accepted it as a right of way."

9.4 Mr A Davis of St Valerie Road

Mr Davis used the path daily, on foot, from 2002 to 2004 to get to and from work. He regards the way as public "for the amount of people that used it without being challenged."

9.5 Mr A Dossett of St Valerie Road

Mr Dossett used the path on foot between 1950 and 2000, about 150 times per year, to go shopping, the bank and get his pension. In answer to the question "Have there been any notices along the route? he has replied "This is private property". He recalls that part of the route has had the "asphalt dug up".

9.6 Mrs H Gordon of Park Road

9.6.1 Mr and Mrs Gordon moved to 4 Park Road in July 1995. Along the side and back of their house there was a passageway that gave access to their side gate and also provided a link from Park Road to St Valerie Road. When they moved in, Mr & Mrs Boggust lived next door at 2 Park Road. In 1995 there were no signs or notices displayed anywhere along the path to say that it was public or private.

9.6.2 After Mr and Mrs Gordon moved in they were aware that people were using the alleyway as a short-cut to get to the shops and other places. Most of these users were local residents, especially elderly people who lived in St Valerie Road, but there were also a number of dog walkers, and children going to and from school. Some people also cycled down the path to avoid the roads. Mr and Mrs Gordon's side gate was locked from the inside so it was easier for them to go out the front door and then turn left, down the alleyway, and out to St Valerie Road. Their children used this route to get to and from infant and junior school, they used it for walks and to see friends.

9.6.3 When Mr and Mrs Gordon moved in, the alleyway had a tarmac surface, but after one or two years of living there Mrs Boggust asked Mr Gordon to help her dig it up. The houses on both sides of the path had problems with damp and Mrs Boggust wanted to lower the path surface below the damp-proof course. Mr and Mrs Gordon got complaints from the neighbours about this because the tarmac path was easier to use than the gravel surface that replaced it.

9.6.4 The first `private' notices that went up on the path were small blue signs, one on the front wall of number 2 and the other on the back wall of number 2, about half way along the path. They were put up, in about 2002, by Mrs Boggust. The neighbours commented on this, but as the local people had used the path for a long time they didn't take the notices seriously. Mrs Gordon doesn't think the signs put people off walking down the path, it might have put some off, but use carried on as before.

9.6.5 In 2004 Mrs Boggust had an extension built on the back of her house. Just before the building work started, gates were put up at both ends of the alleyway alongside number 2. The gates were locked and Mr and Mrs Gordon were given a key so that they could get to their side gate. The gates stayed in place for at least a year, more than was necessary for the building work. Mrs Gordon knows that the lady at number 10 complained to Mrs Boggust about the gates, and so did they, and eventually they were taken down. Everyone then continued using the path as before.

9.6.6 Mr and Mrs Gordon always accepted use of the path by local people and they didn't think it was right to stop them. In the 12 years that they lived in Park Road they never put any barriers or notices on the alleyway. Mr and Mrs Gordon sold number 4 Park Road in February 2007 and moved to another address in Alverstoke.

9.7 Mr S Gordon of Park Road

Mr Gordon used the path on foot, 365 days a year, from 1995 to 2004 and rode a bicycle 100 times a year in the same period. He too recalls the existence of a notice saying "Private land, no public right of way".

9.8 Mr I Griffen of Park Road

Mr Griffen walked the path 300 times a year between 1982 and 2001 and then twice a week from 2001 to 2004. He used it to go to work, for shopping and leisure. He also rode his bicycle along the claimed path. He believes the way is public because "It has been used every day by numerous people for over 20 years."

9.9 Mr A Hart of Park Road

Mr Hart used the path on foot 200 times a year, between 1938 and 2004, as "part of the normal round of life and business." He too mentions the existence of a notice saying "Private property - not a public right of way."

9.10 Mr R Hart of Park Road

Mr Hart lives at a different house from Mr A Hart above. He used the claimed path from 1994 to 2008, on foot 30 times a year and on a bicycle 20 times a year, with a break during the closure of 2004. In response to the question, Have there ever been any notices or signs along the path? He has replied "Words to the effect that the alley was not a right of way during 2004." Mr Hart also recounts earlier usage as a child. "During the years 1947 to 1950 I had a school friend who lived in St Valerie Road. We frequently, after school, went by cycle or on foot to his parents, via Alver Bridge and the path as shown on the plan."

9.11 Mr P Herbert of Park Road

Mr Herbert used the path on foot between 1993 and 2008, 100 times a year, because it gave easy access to a cycle track. His property backs on to the claimed route, therefore he has used the path to gain access to the back of his house.

9.12 Mr T Hitching of St Valerie Road

Mr Hitching walked the claimed path from 1985 to 2004, 500 times a year, and rode his bicycle 100 times a year in the same period. He used the path to get from home to town, park and work. He believes the way is public "because it has always been an open walkway". He recalls that a notice saying "Private land - no public right of way" was "installed about 4 years ago" and "7 weeks ago a sign was put up saying that the path would be closed temporarily due to building work".

9.13 Mr G Houghton of Alver Road

Mr Houghton used the claimed path 150 times a year between 1944 and 2004. he believes the way is public "because in the 60 years I've been using it, it always has been right of way". He says that "Private land - no public right of way" notices were "put up about 4-5 years ago".

9.14 Mr L Jones of St Valerie Road

Mr Jones walked the path from 1936 to 2004, over 300 times per year, to go shopping. He believes the way to be public because "It has been used to my knowledge since 1936 and for sometime before that". He also mentions the existence of notices saying "This is private property - not a right of way".

9.15 Mrs A Kaye of St Valerie Road

Mrs Kaye used the path daily, between 1963 and 2004, for work and shopping. She believes the way is public because "I have lived here, at this address, for 41 years, my boys used it to go to school and I regularly use it." She mentions "Notices attached to wall of house" saying "Enter at your own risk". He also records a locked gate put up in the last few weeks.

9.16 Mr P Marulli de Barletta of Kensington Road (by e-mail dated 12 August)

"I regularly utilise the (claimed) footpath and have done since purchasing a property in Kensington Road in 1982. This footpath has provided an easy access to the cycle path network and therefore negated the need to negotiate travel between parked vehicles and oncoming traffic. To my recollection the above footpath has only ever been closed for brief periods when maintenance or building work was being conducted. Quite reasonably I have concluded that these closures were implemented to alleviate any potential hazard to the general public utilising this footpath. I have been advised that, very often, these types of rights are not set in documentation but represent rights acquired over years. If that be the case, I've been utilising the footpath longer than either of the current occupants of the properties flanking the footpath in question. It should be noted that this small, and some might say insignificant, footpath is utilised by many school children as an easy and safe access to and from the cycle path network. I suspect that the consequence of the unsolicited closure will not be fully recognised by other local residents until the end of the summer school holidays when their children will be unable to take their normal, and safer, route to school."

9.17 Mr A Paul of St Faiths Close

Mr Paul used the path on foot 200 times a year, from 1963 to 1984, and 30 times a year between 1988 and 2004. He used the path to get from work to his mother's home. He regards the way as public because "I have used this path for the last 40 years without any problem". In answer to the question "Have there been any notices along the route?" Mr Paul has replied "Notice put up in last 4 years - Private Land - no public right of way - before that, no signs."

9.18 Mr G Paul of Boughton Road

Mr Paul walked the path 700 times a year between 1949 and 1965 and 10-100 times per year from 1965 to 2004. He has also used the path on his bicycle, 100 times a year, between 1954 and 1965. His use of the path was to visit his family. He recalls that "In recent years a plaque has been attached to a wall. There were no notices from 1949-1995 (approx)" In a letter that accompanies his user form, Mr Paul says "At some time since 1970 (I can't be sure of the exact date) the path was tarmacked. This was presumably carried out by a local authority, as I know that the then occupiers of 2 Park Road was not involved in having the work done. This suggests that the local authority considered the path to be a right of way which they had a duty to maintain."

9.19 Mrs G Paul of St Valerie Road

Mrs Paul walked the claimed path "regularly" between 1946 and 2000, and 100 times a year from 2000 to 2004, for work and shopping. She also rode her bicycle down the alleyway 200 times a year between 1946 and 2000. She regards the way as public "as never been closed in the 58 years I've lived here". In answer to the question "Have there been any notices along the route? Mrs Paul has replied "Only the plaque put on by owners of No.2 claiming it was private". She also mentions that she used the path to visit the previous occupants of No.2 Park Road, which would suggest that there were no private notices before the present incumbents.

9.20 Mrs E Rogers of St Valerie Road

Mrs Rogers used the path "quite frequently" from 1952 to 2004 to go shopping. She notes that the pathway was temporarily closed for building works and she mentions the notices fixed to the walls by the owner.

9.21 Mr E Rowe of Mayfield Road

Mr Rowe has walked and cycled the claimed route since the 1940s to 2004 for personal business or pleasure, although he does not give frequency of use. He regards the way as public because of "use of access without permission".

9.22 Ms S Sinden of St Valerie Road

Ms Sinden walked and cycled the path between 1999 and 2004 for shopping and visiting friends. She regards the way as public "Because I have used it since moving to area in 1999 and told by older residents that it was one."

9.23 Mr J Theodosiou of Park Road

Mr Theodosiou used the path from 1996 to 2004 for pleasure and work. He recalls that "In approximately 2001 a notice appeared stating: Private property, No public right of way".

In a letter sent in support of his application in 2004, Mr Theodosiou described the recent history of the path. "The alleyway continued to be used by the general public until use was interrupted in about 2000 by contractors employed by the owners of No.2 Park Road who removed the tarmacadam paving layer from the section of alley between Nos. 2 & 4 Park Road. Shortly after the tarmac was removed, signs were fixed on the rear wall of No.2 stating words to the effect `Private Land - No Public Right of Way'. On, or about, early June 2004 a notice on the rear wall of No.2 announced that the alleyway would close on June 18 2004."

9.24 Mr R Watts of Queens Road

Mr Watts used the claimed path from 1988 to 2004, about 4 times a year, for visiting family. He mentions that "Notices recently installed (this year)" that is 2004.

9.25 Mrs J Whitson of Park Road

Mrs Whitson walked and cycled the alleyway from 1978 to 2004 to walk his dog and to gain access to the cycle path along railway cutting. His used it 360 days a year on foot and 200 times a year on a bicycle.

9.26 Mrs P Wootton of Park Road

Mrs Wootton used the claimed path, on foot, 365 times a year between 1935 and 2000 and 52 times a year from 2000 to 2004. She has also cycled along the route 365 days a year between 1946 and 1955. She mentions that "Notice appeared a few years ago" but does not say what the wording was.

10. Landowner: Mrs H Boggust

10.1 Mrs Boggust has made two statements. The first was written by the investigating officer following an interview with Mrs Boggust on 23 May and signed by her on 30 May. The second was written by Mrs Boggust on 23 August and in her covering letter she writes:

"Although the original statement was basically correct apart from a few inaccuracies, which I did not think important enough to change, there were a lot of omissions, which on reading the report needed to be included. Mr Piper took down my statement in long hand and it was my fault for talking so much and so fast. Mr Piper will confirm all that is written here was told to him at the interview on 23rd May 2008. I would be glad to swear an affidavit that everything in this statement is true."

10.2 I moved to Gosport 23 years ago and, in 1994, with my husband, I bought and moved into No. 2 Park Road. I have the estate agents sale particulars from that time. The previous occupant was a Mrs Hills who had lived at the address for 40 years. Mrs Hills told me that the council had tarmaced the alleyway at the side of the house which raised the level of the damp proof course. She didn't say when this had happened and she couldn't understand why they had done it, as it was her land. The raising of the damp proof course caused a lot of damp problems to No.4 Park Road and the then owner, Mr Gordon had to replace all his floor joists due to damp problems caused by the tarmac. I had no sign of damp problems with my house but had not been under my floorboards, but I could understand the raised level could not be doing any good. He said it would need to be lowered to 6 inches below the damp proof course. I suggested that I phone the council, as it was easier for me, as he was at work during the day, and they sent somebody to look at it.

10.3 The person sent phoned his boss up whilst standing next to me so I could hear what they both said. He told his boss that it was obvious that the path between 2 and 4 Park Road had been tarmaced at the same time as the one running at right angles going behind the Park Road houses, I heard his boss tell him not to admit that the council had tarmaced it. Mr Gordon borrowed an electric tool for the job and dug the path up and I helped load the tipper van our neighbour had kindly lent and helped to take it to the amenity tip as the Council had given permission for a one off load. They refused to allow the scalpings they laid under the tarmac to go to the tip and said we would have to pay to have them taken away. I did phone Councillor June Cully to help in this matter but she was unable to change their minds. I can't remember when this happened but it was at least 10 years ago. About this time Mr Gordon approached me to ask if I would close the path with him as he had had his shed broken into and the anti-social behaviour of some of the people using it was upsetting to his wife and himself.

10.4 When we bought the property we were aware that the path was being used, but we assumed that it was by those people who had properties backing onto the path, that is numbers 4-20 Park Road and 31-36 St Valerie Road and therefore had a private right of access. When we moved in there were no signs or notices along the alleyway to say it was private, but I put up 2 notices, as soon as we moved in (1994) on the strict advice of our solicitor. We placed one on the front of the house and one on the back wall in line with the path marked A-B on your map. At no time were we challenged about these notices by anyone. The one on the front of the house is still there, it reads: "Private land. No public right of way. Use at own risk." The other was obviously demolished with the wall for the new extension a new sign was brought, which was shown to Mr Piper when he visited, it has not been put up, because of my ill health, the pointing has not been finished on this wall.

10.5 A Neighbourhood Watch scheme was started for Park Road and St Valerie Road because there were problems with burglaries in the locality. The coordinator was Jenny Hall and I was made committee member for No. 2-10 Park Road and Nos. 27-36 St Valerie Road. At one meeting it was proposed that the alleyways on both sides of Park Road, including the one by my house, should be closed to stop anti-social behaviour and thefts in the vicinity. The local Policeman who came to address the meeting, supported that idea. Jenny Hall (co-ordinator) found out that the alleyway (more a road way passing some garages) could not be closed because it was an adopted highway, or something like that, but she said there were no such problems with the path by the side of my house. Jenny arranged another Neighbourhood watch meeting asking Councillor Mrs June Cully came to tell us about the Councils `Gating scheme', which was proving very successful elsewhere in Gosport, to stop `Rat runs' used by criminals and persons using anti-social behaviour.

10.6 It was suggested at the meeting, one gate being put between 2 and 4 Park Road and one at the other end of A-B path behind number 20 Park Road, with anyone who had a legitimate reason for using the path, no matter where they lived, be given the code to open the gates. This suggestion went down very well at the meeting with only a couple of people not sure about it. The meeting was left that, as the path had to close due to the health and safety regulations, during the demolition and building work at No.2 it would be a good opportunity to see what impact it would have and make a decision after that at another meeting. Sadly when the path was ready to reopen, due to personal matters and ill health of Jenny and myself, this further meeting did not take place when it was safe to reopen the path and the Neighbourhood Watch Scheme has only just been rekindled.

10.7 For about six months before the building work took place I put up notices at both ends of the path giving people notice of the closure and as soon as I knew the exact date of the closure, this was added. Nobody came to see me about these notices. Locked gates were erected at the Park Road end and by my garage at the rear of my house and a key given to Mr Gordon. I cannot remember exactly how long the building work took but as soon as it was safe to do so, I arranged to have them removed. The `Private' notice stayed in place.

10.8 During the path closure I spoke to another local policeman who often had the Park Road area, as his beat. He had been present, before the path closure, at a chase by the police of a criminal who got away through the path, and as the police cars could not follow him, they `lost' him and were unable to apprehend him. I asked him if the gates had made a difference and he said as far as he had been aware there were no incidents during the closure and he would be very happy to see it remained closed as it would help the whole area as criminals would not act where there was no easy route to escape. I would like to comment that the present gates that appeared and have now been taken down, had nothing to do with me."

11. Other evidence:

In the week leading to the completion of this report, the rights of way office received the following letters or e-mails from local residents:

11.1 Mrs A Baldry of Park Road

"I am writing regarding the closure of the footpath between 2 and 4 Park Road. It was closed suddenly on Saturday 26^th July and has caused a great deal of inconvenience to myself and a great many other residents of Park Road, St Valerie Road and surrounding areas. I have lived here in Park Road over 33 years and have used the alley frequently to go to the doctor's surgery and bus stop in Stoke Road. I do not drive and found the alleyway quite convenient. I do hope...the footpath will be reopened."

11.2 Mr & Mrs Diaper of Park Road

"We have no objection to the footpath being permanently blocked as in the past it has been used as a getaway route by various criminals and troublemakers, also as a public toilet and discarded empty bottles and cans. Because of the shingle underfoot it is not easy to push along prams, pushchairs or even bicycles, and not particularly safe for anyone unsteady on their feet, and for personal safety reasons we would rather take the extra 5 minutes to walk around the road rather than through the alley. We know that this pathway has been in use for many years, but feel that times change and for community safety and for the anti-social behaviour that the two households have had to contend with, we feel it is time this pathway is closed for good. We would like it noted that we do not know the occupants of either household and have not been approached by anyone to write this letter."

11.3 Mr H Fulton of Park Road

"With respect to the possibility of the alleyway behind my property, I do object to a footpath being a public right of way. Firstly, it is a breeding ground for youngsters amassing. Secondly, constantly damaging my rear gate and lastly, precessions of people causing my neighbours' dog to bark all day and evening when I try to sleep during shifts."

11.4 Mr D Percival of Park Road

"I have lived in Park Road since 1984 and have used the footpath between 2 and 4 regularly. The gates that have been put up are a great inconvenience. Any action to get them removed will be welcomed by all who live in the area. Everybody that I have spoken to about this are of the same view, especially those living in St Valerie Road who use the footpath to get to the shops in Stoke Road. Some of my neighbours have been using the path since the 1950s."

11.5 Mrs P Wootton of Park Road

"I have been walking through from St Valerie Road to Park Road for over 73 years. My parents moved into 36 St Valerie Road in March 1935 when the house was built. The side of the house ran alongside the backs of houses in Park Road. Not long after we moved into the house I was nearly knocked down by a bike in the part of the footpath that has been closed off. Because of it my mother tried to stop bikes being ridden down there. She was told that couldn't happen because it was a public right of way. When the backways were made up about 40 years ago, the council had the alleyway tarmacked. When the people who live at number 2 moved into the house, about 1990, they claimed the alley was theirs and had the tarmac dug up."

12. Consultations with other bodies:

12.1 Gosport Borough Council

District Councillor June Cully made this submission by e-mail on 12 August:

"I believe it is a well-documented right of way with over 50 years use to my knowledge and personal use for the last 22 years. It is of value to many local residents, providing a useful shortcut for more elderly residents and those whose mobility is reduced; walkers, for shopping, safe route for children. I have not received any complaints about anti-social behaviour and the local neighbourhood watch have not asked for this closure." Councillor Cully has received three complaints from local residents regarding the recent path closure. These residents live in Alver Road, Kensington Road and Park Road.

12.2 Councillor P Edgar - local member

Councillor Edgar did not receive any representations about the path closure in 2004, but the most recent obstruction has resulted in complaints being made to him by residents of St Valerie Road. He believes that the path should be recorded as a right of way.

12.3 Councillor K Gill - local member

Cllr Gill telephoned to say that he knew of the path and had used it once himself. Before the recent obstructions, no one had approached him to make representations about the footpath.

12.4 The Ramblers Association

The Ramblers Secretary for Gosport e-mailed to report:

"I have no personal evidence to support the use of this path, but could make enquiries of our local membership if the application needs further support. The path provides a useful, off-road, short cut for the residents of St Valerie Road to an access road to the shops, and also another link to the disused railway footpath/cycle track, so we would support this application for it to be registered as a right of way."

12.5 Environment Department

No comment

12.6 Hampshire Highways

The Gosport Area office has supplied old correspondence on this subject, some of which is reproduced in this report. Following the most recent obstructions, in July of this year, the Area Director wrote to the occupants of numbers 2 and 4 Park Road to say:

"I am in receipt of a large number of complaints that the above access, which has been used for many years, has recently been closed. I must advise that the legality of this action is in question and I note from my file that it was closed for property maintenance works in 2004 and there was some correspondence at the time about this. Although this is not a publicly maintainable highway, a right of way is likely to have been established under the 20 year rule. There appears to be a very strong weight of opinion and genuine concern as to the closure, hence my need to contact you."

13. Analysis of the evidence:

13.1 From the Ordnance Survey maps it can be said that the path has existed as a physical feature for at least 100 years. It would seem that the original purpose of the path was to gain private access to the rear of the properties in Park Road, and it probably kept that character until St Valerie Road was built in the 1930s. With the completion of the houses in St Valerie Road the claimed path would have served an obvious public purpose in enabling the residents of the locality to take a short cut between the two public roads.

13.2 Recorded use of the path starts in the mid 1930s and then increases in the 1940s, possibly due to the occupation of more houses in St Valerie Road. When the path was closed in 2004 there were 24 recorded users of the path. This level of use is not large for an urban area, but some of the users were walking and/or cycling along the path daily, so use must have been fairly obvious to any casual observer. The users are also evenly distributed, on both sides of the path, and five live beyond the immediate locality of Park Road and St Valerie Road. The path then served a purpose in allowing residents of Alverstoke to go about their everyday business.

13.3 There is no evidence of any physical obstruction to the path before 2004 when the route was gated and locked to allow for construction work. The Ordnance Survey maps do not show any barriers, the users do not recall the existence of any barriers, and it was assumed by some that the path was public because it was the council that provided the all-weather surface sometime in the 1960s-70s. This tarmac surface was removed in about 1998, but that action did not prevent the public from continuing to use the path for any length of time.

13.4 There is a difference of opinion between the landowner and the users when the first `Private' notices were displayed on site. Mrs Boggust says that there were no signs in place when she bought number 2 Park Road in 1994 and this is supported by the estate agent's photograph of that time. Mrs Boggust says she put up the first signs as soon as she moved in, and one of them is still in place today attached to the front of her property. This sign contains the phrase "No public right of way" which provides evidence of an intention not to dedicate and it also brings into question the right of the public to use the path. If Mrs Boggust is correct about the date of the first sign then the relevant date for consideration would be 1974 to 1994.

13.5 The consensus amongst the users is that there were no signs or notices displayed along the path, to say that it was private, before 2000. Mrs Gordon, who lived next door, believes that this sign was erected in 2002. The claimant, Mr Theodosiou, who lived three doors away, states that it was "approximately 2001" when the sign went up. When they completed their user evidence forms in 2004 the following users submitted their thoughts on the date for these signs: Mrs Wootton "Notice appeared a few years ago" Mr G Paul "In recent years a plaque has been attached to a wall" Mr A Paul "Notice put up in last 4 years" Mr Houghton "Put up about 4-5 years ago" Mr T Hitching "Installed about 4 years ago" Mr Coates "Some years ago a notice was erected". If the users are correct then a later period of 1980 to 2000 would be relevant.

13.6 The majority of users don't mention these first signs, only the second set of notices associated with the path closure in 2004. This first notice did not stop the public's use of the path for, as Mrs Gordon says, "The neighbours commented on this, but as the local people had used the path for a long time they didn't take the notices seriously. I don't think the signs put people off walking down the path, it might have put some off, but use carried on as before." It wasn't until the path was physically blocked, in 2004, that an application for a Map Modification Order was made.

13.7 Those people who have submitted user evidence walked a defined route without force, secrecy or permission of the landowner. This use persisted for at least 59 years, that is 1935 to 1994, before the landowner took steps to challenge the public's right to use the path. It is reasonable to assume from this evidence that the landowner was aware of the use that the public were making of the path and acquiesced in that use before either 1994 or 2000.

14. Conclusions:

14.1 The public's right to use the path was brought into question by the erection of a notice, or notices, in the period between 1994 and 2000. The relevant 20-year period for consideration, under s.31 Highways Act 1980, is therefore either 1974 to 1994, or 1980 to 2000.

14.2 In the period 1974-1994 there are 21 users of the path of whom 11 had used the path for the whole 20 year span. For 1980-2000 there are 24 recorded users of the path, 12 of whom had used the path for the whole 20 year span. This level of use is considered sufficient to represent use by the public at large.

14.3 Within both 20-year periods there is no evidence of an intention not to dedicate a right of way to the public, therefore a public right of way on foot is reasonably alleged to subsist on the route A-B-C as a result of a dedication in both relevant periods.

14.4 A public right of way on foot is also reasonably alleged to subsist on the route A-B-C as a result of deemed dedication at common law, based on use by the public and the actions of the landowners before 1994.

14.5 The width of the path is defined by walls and fences. For section A-B it is 1.4 metres and for section B-C it is 1.0 metre.

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: CR789 - Rights of Way Office, Mottisfont Court, Winchester