Hampshire County Council Item

Regulatory Committee

3 September 2008

Application for a Map Modification Order to record two public footpaths north of Edward Avenue in Bishopstoke 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:

A resident of Bishopstoke has applied for an Order to have two routes recorded on the definitive map as public footpaths. Both routes have been in existence for at least 40 years and are still in use today. It is considered that the public has acquired rights of way, through common law dedications, and 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 routes A-B and C-D (as shown on the attached map) as footpaths on the definitive map of public rights of way. Route A-B to have a width of 1.4 metres and route C-D to have a width of 1.8 metres.

3. Claimant:

Mr D Tilbury

Oakbank Cottage

Oakbank Road

Bishopstoke

Hampshire

SO50 6PA

4. Landowner:

Eastleigh Borough Council

Civic Offices

Leigh Road

Eastleigh

Hampshire

SO50 9YN

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

5.1 One path runs northwards from Edward Avenue (point A) between gardens to join Footpath 734a (point B) in the woodland. This path is, on average, about 1.4 metre wide and approximately 50 metres long. There is a standard, metal "No cycling" sign at the Edward Avenue end of the path. The second path runs from an angle in Footpath 734a (point C) eastwards, through woodland, to a metal pedestrian gate on Stoke Common Road (point D). There is a standard, metal "No cycling" sign at the Stoke Common Road end of the path. This path is, on average, about 1.8 metres wide and approximately 190 metres long.

6. Background to the claim:

6.1 The application was prompted by concern that the footpaths would be lost if, and when, elements of the Countryside & Rights of Way Act 2000 were implemented to prevent claims for rights of way being made after 2026.

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 footpaths subsist, or are 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 1936 Conveyance

On 22^nd January 1936 an area of land comprising 2.59 acres, north of the dwellings in Edward Avenue, was conveyed by George Blake to Eastleigh Urban District Council for use as Public Open Space.

8.2 1940 Ordnance Survey Map 1/2500 scale

This map shows the strip of land between numbers 11 and 15 Edward Avenue defined by solid lines set 4.0 metres apart. It leads to a strip of woodland, but there is no indication of a worn path through the woodland either at the northern end of A-B or on route C-D. North of the strip of woodland there are "Allotment Gardens" with a footpath running east to west through the middle.

8.3 1961-67 Ordnance Survey Maps 1/2500 scale

This map also shows the gap between numbers 11 and 15 Edward Avenue, defined by solid lines, and this time there are double pecked lines extending northwards through the woodland. This south-north path joins another path running east-west through the strip of woodland on the route of the present day Footpath 734a and the claimed route C-D.

8.4 1982 Footpath Diversion Order

In this year Eastleigh Borough Council confirmed a footpath diversion Order which moved, what was then, Eastleigh Footpath 34 from the allotments southwards onto the route of the present day path known as Footpath 734a.

9. User evidence:

9.1 The applicant has submitted four user evidence forms completed by five local residents. This body of user evidence is very small, especially for an urban area but, from observation, it is apparent that the paths are well-used and the existence of the `No cycling' signs indicates that the landowner intends the paths to be used by walkers. It is therefore considered not necessary to seek further user evidence, especially as the landowner has no objection to the paths being designated as public rights of way.

9.2 Mr & Mrs Basher of Bishopstoke

Mr and Mrs Basher used both paths from 1976 to 2004 to walk to the pub, mobile library and post office, although they do not record their frequency of use.

9.3 Mr P Pope of Bishopstoke

Mr Pope has used both paths 300 times a year between 1990 and 2004 for dog walking. He has seen other local people doing the same activity. He states that the paths have never been obstructed by locked gates or other barriers.

9.4 Mr R Simmonds of Bishopstoke

Mr Simmonds used both paths, at least once a week, from 1959 to 2004. He states that the gate was never locked and he has seen other people walking the path. He says there used to be a footpath signpost but doesn't say in what position.

9.5 Mr D Tilbury of Bishopstoke

Mr Tilbury has also used both paths 2-3 times a year between 1979 and 2004. He has supplied photographs of all four ends of the claimed paths taken in 2000. The photos show the same situation as exists on the ground today.

10. The landowner: Eastleigh Borough Council

The Assistant Head of Legal and Democratic Services has written to say that Eastleigh Borough Council does not have any objection to these routes being recorded as public rights of way. The Principal Development Engineer has been unable to find a Traffic Regulation Order prohibiting cycling on the paths. Cycling is prohibited through a Borough byelaw covering Public Open Spaces and he believes that the standard traffic signs in place at the path ends were put up in preference to byelaw notices because they looked more official.

11. Consultations with other bodies:

11.1 Bishopstoke Parish Council

No objection to the paths being recorded as rights of way

11.2 Eastleigh Borough Council

See paragraph 10 above.

11.3 Councillor G Davies-Dear - local member

No comment

11.4 The Ramblers Association

No comment

11.5 Environment Department

No comment

11.6 Hampshire Highways

No comment

12. Analysis of the evidence:

12.1 From the Ordnance Survey maps it can be said that the paths have existed in their present form for at least 40 years and there is evidence of use by the public over the last 49 years. The routes are well-worn by the passage of walkers, and the road ends have "No cycling" signs. These two signs raise the presumption that the landowner is content for the paths to be used by pedestrians. The paths are in regular use to this day, and any stranger to the locality would assume that they are public rights of way. There are no recorded instances of challenges or obstructions to users of the path.

13. Conclusions:

13.1 A public right of way on foot is reasonably alleged to subsist on the route A-B as a result of deemed dedication at common law, based on the actions of the landowners and use by the public since 1967. The width of the used path is 1.4 metres.

13.2 A public right of way on foot is reasonably alleged to subsist on the route C-D as a result of deemed dedication at common law, based on the actions of the landowner and use by the public since 1967. The width of the used path is 1.8 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: CR780/781 - Rights of Way Office, Mottisfont Court, Winchester