Archived decisions

Decision Maker:

Regulatory Committee

Date of Decision:

14 January 2009

Decision Title:

Application for a Definitive Map Modification Order to record a footpath from Ernest Road to Park Lane, in the Borough of Havant, as a public right of way.

Decision Reference:

CR790

Report From:

Director of Recreation and Heritage

Contact name:

Colin Piper

Tel:

01962-846043

Email:

[email protected]

EXECUTIVE SUMMARY

1) Summary of decision area:

1.1. Two residents of Havant have made an application to have a path recorded as a public right of way. The path has existed, on its present route, since 1964 but was closed by the landowner in 2004 due to anti-social behaviour in the locality. It is considered that the public has acquired a right of way on foot, through a common law dedication and through the provisions of s.31 Highways Act 1980, and it is proposed that a Definitive Map Modification Order be made to recognise this status. The re-opening of this path might well have implications for anti-social behaviour in the locality, but that issue is outside the scope of the legalisation relating to applications for Map Modification Orders.

2) Legal framework for the decision:

2.1. WILDLIFE AND COUNTRYSIDE ACT 1981: (53)

Duty to keep definitive map and statement under continuous review:

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

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

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

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]

2.2. 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.

2.3. HIGHWAYS ACT 1980 s.31:

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

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

3) Summary of issues to be decided:

3.1. The primary issue to be decided by this committee is whether there is evidence to show that the footpath subsists, or is reasonably alleged to subsist. 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.

3.2. If a right of way is considered to subsist then the route, status and width of that way must also be determined and authority is required for the making of an Order to record that right on the definitive map.

4) Recommendation:

4.1. That an Order be made to record the route A-B-C (as shown on the attached map) on the definitive map of public rights of way, as a public footpath. A-B to have a width of 3.0 metres and B-C to have a width of 2.0 metres.

1) Purpose of report:

1.1. The purpose of this report is to set out the facts of the case to determine whether the public has acquired a right of way through the provisions of Section 31 Highways Act 1980 and/or through a dedication at common law. If it is considered that the public has acquired a right of way, then the status, route and width of that path must also be determined and authority required for the making of a Modification Order to record that right on the definitive map.

2) Claimants:

2.1. Mrs J Thorning

12 St Christophers Road

Havant

Hampshire

PO9 3TP

Mrs S White

64 Ernest Road

Havant

Hampshire

PO9 3TL

3) Landowners:

3.1 Portsmouth City Council

Civic Offices

Guildhall Square

Portsmouth

PO1 2AS

4) Description of the route (please refer to map 2 attached to this report):

4.1. The claimed route consists of a wide concrete `road' and parking area between numbers 64-66 Ernest Road which continues eastwards as a two metre wide, surfaced path defined by the garden boundaries of numbers 91 and 93 Park Lane. The eastern half of the path had a street light and `no cycling' signs at both ends, but for the last four years it has been blocked at two locations by reinforced concrete walls and in one place by a metal fence. The western, concreted, half is still open at the Ernest Road end, and the land is occasionally used for car parking by the local residents.

5) Background to the claim:

5.1. The claim was made as the result of action by Portsmouth City Council to close the path to prevent anti-social behaviour. (Although the land is within Havant Borough, large areas of Leigh Park are owned by Portsmouth City). Despite petitions and representations on the part of local residents, that the path was necessary for their everyday needs, the City Council physically blocked the path on 16^th June 2004. The application for a Map Modification Order was made on 21^st July that same year.

6) Issue to be decided:

6.1. The issue to be decided by this committee is whether the application for an Order to record a footpath on the definitive map, should be granted. If there is evidence to show that the claimed route ought to be shown on the definitive map as a highway other than a footpath, a decision should be made to make an Order amending the map to show a bridleway, restricted byway or byway open to all traffic, as the case may be.

6.2. 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 the distant past (proved by historic or documentary evidence) or in the recent past (proved by witness evidence). The future management of any right of way found to exist should be treated as a separate issue to be decided at a later date.

6.3. Historic and documentary evidence has been examined to see whether the past history and use of the paths point to them having public rights as a result of dedication in the distant past. Any such rights are not lost merely through disuse. Unless stopped up by due process of law, any rights previously dedicated will still exist, even if they are now neither used nor needed. This evidence must be looked at as a whole, it being unlikely that a single document or map will provide sufficiently cogent evidence to justify a change to the definitive map. This type of evidence may disclose rights other than those claimed by the applicant, for example, they may show that the lane is an old road for vehicles, not merely a footpath or bridleway. The County Council is under a duty to record such rights as are found to exist, even if they are not claimed by the applicant.

6.4. 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.

6.5. The originals of many of the documents referred to in this report are only available in public record offices, but copies, transcripts or tracings of most documents are available for inspection in the offices of the Rights of Way section. Members are urged to inspect these, or the originals, when considering this report.

7) Documentary evidence: There is no evidence that the claimed path is an ancient highway, therefore the evidence starts with:

7.1. 1932 Revised Ordnance Survey Map 1/2500 scale

The origins of this map, supplied by the applicants, are unknown. The base map shows the road known as Park Lane, but to the west of that the land consists of open fields. However, the map has been amended and annotated by hand to show the layout of proposed housing estate roads between Park Road and Hulbert Road to the west. Ernest Road is shown and named and between that and Park Lane, on approximately the route of the claimed path, is an unnamed road shown by parallel pecked lines. There is a solid line across the Ernest Road end of this unnamed road which probably indicates a barrier of some description.

7.2. 1956 Ordnance Survey Map 1/2500 scale

This map shows the housing estate to the west of Park Lane much as it is today, although there is no development north of St John's Road. Between Ernest Road and Park Lane there is a straight road, 4.5 metres wide, shown by parallel pecked lines and annotated "Link Road". The western half of this link road is on the route of the claimed path, but the eastern half is further to the south, across open ground on the west side of Park Lane. There are no barriers across this `Link Road'; it appears to be part of the estate road network and, in the absence of Awbridge Road at this date (to the north-west of the claimed path on map 1) it is the most obvious and direct route for half of the estate residents to get to Park Lane. Just to the east of Park Lane, the map shows a `Surgery' and Barncroft Junior and Infant Schools.

7.3. 1961 Ordnance Survey Map 1/1250 scale

This large-scale map shows, in great detail, the properties in the vicinity of the claimed path. There is no longer a continuous road between Ernest Road and Park Lane, as shown on the OS map of 1956, but there is a continuous surfaced area, or path, between the two highways. The western half of the claimed route consists of a wide strip of surfaced land between 64 and 66 Ernest Road, much as it is today. To the east there is a 1.5 metre wide path that connects this surfaced area with Park Lane. This path runs parallel to, and about 3.0 metres south of, the garden boundary of 93 Park Lane.

7.4. 1963 Planning Permission

On 14th December 1962 the Corporation of the City of Portsmouth applied to Havant and Waterloo Urban District Council for planning permission to build three houses described as 87, 89 and 91 Park Lane. This application was deferred by the Planning Committee "for negotiations with regard to making up the footpath" and eventually approved on 13th February 1963. The plan that accompanies the application shows the eastern half of the claimed path on the north side of the proposed houses and this is annotated "6' Footpath". One of the conditions attached to the permission was as follows:

The footpath to the south of No. 93 Park Lane shall be laid out, surfaced and made permanently available for public use before either dwelling is first occupied, and such footpath shall be subsequently maintained to the reasonable satisfaction of the Council. The reasons for the foregoing condition is:- In order to protect the amenities of the locality.

This evidence shows that there was already a footpath, in use by the public, between Ernest Road and Park Lane, although the route used before 1963 would not have been quite the same as the claimed route.

7.5. post 1962 Highway Maintenance Map

This map shows those routes that have been adopted by the highway authority and are therefore publicly maintainable. The base map is dated 1962 and it has been hand coloured to show the publicly maintainable highways. It shows Ernest Road and Park Lane coloured brown. The claimed path is not coloured. The western half has been annotated, in pencil, "PCC housing" and the eastern half "PCC path (word indecipherable) tracing". This evidence is consistent with the planning permission of 1963 which placed a duty on the landowner to maintain the claimed path rather than the highway authority.

7.6. 1966 The Havant and Waterloo (Cycling on Footpath) Prohibition Order No.1 On 15th December 1965 Havant & Waterloo Rural District Council agreed to make an Order to prohibit cycling on part of the claimed route. The Order came into effect on 3rd January 1966. The Schedule to the Order describes the path as follows:

"The public footpath leading from Park Lane, Bedhampton westwards for a distance of 145 feet to the garage area off Ernest Road, Bedhampton, more particularly shown coloured pink on plan number U.22/16 annexed hereto."

This evidence demonstrates that the district council considered the eastern, enclosed, half of the claimed route to be a public footpath at that date. It is not know for certain why the Order did not include the western half of the path, but it is reasonable to assume that the character of this wider route enabled walkers and cyclists to co-exist.

7.7. 1971 Ordnance Survey Map 1/2500 scale

This map shows the topographical detail in the locality much as it is today. Numbers 87-91 Park Lane have been built, and between the garden boundaries of numbers 91 and 93 Park Lane there is a two metre wide strip of land that connects the remnants of the `Link Road', now used as a garage area, with Park Lane. This strip of land must be the path as stipulated in the 1963 planning permission and as claimed by the applicants. There are no lines across any part of the claimed route to indicate the existence of barriers.

7.8. c1972 Highway Maintenance Map

Like its predecessor, this map shows by brown colouring those routes that have been adopted by the highway authority and, again, Ernest Road and Park Lane are coloured brown. This map shows the claimed route coloured yellow and annotated, in pencil, "Private". Given the purpose of this map it is more likely than not that this refers to the route being privately maintainable, but another interpretation might be that the path itself was private.

7.9. 1999 Petition to Havant Borough Council

On 4^th October, a petition, signed by 35 residents of the area, was sent to the Chief Executive of Havant Borough Council. It reads, in full:

"We, the undersigned, wish to express our deep concerns to you in relation to the safety of our children and residents in using the footpath leading from Ernest Road to Park Lane. This area, including the garage area adjacent to the footpath, is a constant encouragement for crime, vandalism and, recently, fly tipping. The lights situated along the footpath are never working (due to vandalism) resulting in vandalism to residents' property and other unsociable behaviour. We also wish to complain that the footpath floods after heavy rain."

7.10. 1999 Letter from Portsmouth City Council to local residents

On 5^th November 1999 the Estate Manager of Portsmouth City Council wrote a letter to residents of the area. It is headed "Ernest Road Garage Area and lane leading to Park Lane" and reads, in part:

"Portsmouth City Council have been asked to consider a proposal to change the use of the above garage area by demolishing the garages and closing the lane. However, before considering this proposal, we would like to give you the opportunity to put forward your point of view."

7.11. 2002 Survey of users by local resident

On 18^th May a resident who lives in Park Lane conducted a survey of use of the enclosed section of path by video camera. The recording, which has not been seen by the investigating officer, allegedly shows that, between the hours of 09.00 and 13.00, 21 people, mostly children and elderly adults, used the path. Between 13.30 and 17.00 9 adults and 2 children walked the route and from 18.00 to 21.00 there were 20 children and teenagers. The 18^th May was a Saturday therefore these figures would not include children going to and from school and adults going to work.

7.12. 2003 from Portsmouth City Council to local MP

The letter, dated 2^nd September, is headed "Alleyway between Park Lane and Ernest Road" and reads, in part:

"Following discussions with (highways officers) at Hampshire County Council, I can confirm that the alleyway is not adopted highway and as a result we are in a position to proceed with the closure. I have sought advice from our legal department who have confirmed that prior to any works being carried out, notices will need to be displayed at each end of the pathway detailing our intentions, along with notifications being sent to all local residents to inform them of the situation. If there are no further objections following a period of 28 days, contractors will be instructed to carry out works in order to close the alleyway."

7.13. 2003 Letter from Mayor of Havant to Portsmouth City Council

The letter is dated 29^th September and headed "Ernest Road access to Park Lane, Bedhampton". It reads, in part as follows:

"As Mayor of the Borough of Havant, I have been presented with a petition from residents living in Ernest Road and surrounding roads, concerning the intention to close the alley way from Ernest Road giving access to Park Lane, Bedhampton. I would ask that rather than close the footpath as proposed, the lighting be improved along the footpath and through the garage area to reduce any anti-social behaviour. The footpath forms an intrinsic link for the adjoining community to the local facilities (school, shops, bus routes, doctors etc.) The closure would place the young and old at great disadvantage. There is considerable public support to retain this link and this is evident by the petion which I am enclosing for your attention."

The accompanying petition contains 241 signatures.

7.14. 2004 Public notice

The following notice, dated 7 May 2004, was displayed on lamp posts along the claimed path. It reads:

"Pathway between 91-93 Park Lane, Bedhampton. The pathway that runs between 91-93 Park Lane, Bedhampton shall be permanently closed on the 4th June 2004. This means that there will be no access from either end."

The notice is signed by the Area Housing Manager, Portsmouth City Council.

7.15. 2004 Letter from Portsmouth City Council to local MP

The letter is dated 2 June and reads, in full:

"Thank you for your letter of 24 May concerning the alleyway between Park Lane and Ernest Road, Bedhampton. Public notices have been placed at either end of the alleyway (and replaced on a daily basis) advising residents of the proposed closure, expected on or near 4 June 2004. In reality, the work will begin several days later. Neighbouring properties continue to experience acts of vandalism, which most recently include a hedge being set alight and an adjacent owner-occupier's wall being pushed over once more. Sadly, views over the proposed closure remain polarised in some parts of the community and are likely to remain so. Support for the closure remains consistent amongst local politicians, the Police and other agencies; with opposition from a number of residents waning once the experience of those living near the alleyway are understood. I sympathise with those who will have a longer journey of a few minutes to reach their destination, but this, in my view, has to be offset against improved safety for those in the near vicinity of the alleyway."

The letter is signed by the Area Housing Manager, Portsmouth City Council.

7.16. 2004 Letter from Havant Borough Council to Mrs Thorning

The letter is dated 9 July and reads as follows:

"I write further to your recent enquiry. A history search has revealed that planning permission granted in 1963 imposed a condition requiring the footpath to be made permanently available for public use. Portsmouth City Council have been advised that they have an option to reopen the footpath or make a planning application for relief of that Condition. Should a planning application be received it will be advertised in the normal way and representations can than be made, in writing."

7.17. 2004 Application for a Map Modification Order

Mrs Thorning and Mrs White made an application for a Map Modification Order on 21 July 2004. Their forms were accompanied by maps, letters and user evidence forms.

7.18. 2004 Application by Portsmouth City Council for relief of planning condition

In October 2004 Portsmouth City Council made an application to Havant Borough Council for removal of the planning condition attached to the 1963 permission. This application was successful which means that Portsmouth City Council no longer have an obligation under planning legislation to provide or maintain the footpath. However, removal of this condition does not operate to extinguish any highway rights which might, by then, have been acquired.

8) User evidence:

8.1. The applicants have submitted 100 user evidence forms in support of the claim. Virtually all of the users live on the west side of the properties in Park Lane. Reasons for using the path include visiting friends, getting to the bus stop in Park Lane, the doctors and dentists surgeries also located in Park Lane and the schools on the east side of Park Lane, plus visits to the shops and walking the dog. The earliest recorded use of the path is by J Couzens and J Gilchrist in 1953. Thereafter the path is widely used, although before 1963/64 the route was slightly different from that in existence today. One feature of the user evidence is the frequency of use. Approximately 60% describe their usage as being either most days, or every day, or every school day, or two, three, or even four times a day. Only 5% used the path weekly or less. Most users record being stopped for the first time by the blocking of the path in June 2004. For a visual representation of the user evidence please see the A3 chart at the back of this report. The users have not been interviewed because use of the path has been so open and obvious, the route is well defined and the facts of the case are available through maps, official documents and letters. A few extracts from the user evidence forms are reproduced below to give a sample of how the path has been used.

8.2. Mrs J Couzens of St John's Road

Mrs Couzens gives her occupation as `School Cleaner'. She used the claimed path four times daily between 1952 and 2004 to get to work, the shops and the bus stop.

8.3. Mrs S Francis of St Michael's Road

"I have lived around this area all my life (from 1971). I used `Link Road' to go to school every day. Now my children are at school and have in the past used the `Link Road' until it was closed off. There are many people around my area who have small children that attend Barncroft School. They also in the past have used the `Link Road' until it was closed. There is a bus stop in Park Lane which is used by many people, mainly the elderly. Now they cannot get to the stop unless they walk all the way around the estate to get to it."

8.4. Mr A Hoskins of St John's Road

Mr Hoskins used the path on foot from October 1955 to June 2004 to visit local shops, going to the bus stop and dog walking. He regards the way as public because "It has been used continually by hundreds of local people for over 40 years. This route is absolutely essential for local old people and for children going to Barncroft School"

8.5. Mrs Salt of St John's Road

Mrs Salt used the path either daily, or up to four times daily, between 1966 and 2004 to get to school, shops, dentist and bus stop. She claims that the path was signposted as a `Public Footpath' but the signs were removed in the 1970s.

8.6. Mrs J Thorning of St Christopher's Road

Mrs Thorning has used the path from 1955. Her use increased from twice a week in the 1950s to 600 times a year up to 2004. She used the path to get to the schools, shops, bus routes, doctors and dentists. She has compiled a potted history of the route which describes the path as follows:

1955 Open field with deep narrow ditch west side, running north-south at the Ernest Road end between 64-66. To cross the ditch, two long planks and a large sheet of wood for bridge, which was quite safe for prams, bikes etc. onto an earth path covered with small shingle. In 1955, 56, 57 the path was closed one day a year with notice of `Claim of ownership'. In 1956 Barncroft Junior School opened still with the path across the field.

1960 Early in the year new development to the area. New roads were laid northwards for the new estate. Park Lane was turned into a road and mains drainage installed. Three houses were built on Park Lane on the east side of the field...the footpath was then moved north, alongside the bungalow which is now number 93. This new footpath was of concrete between vertical wood lap fencing ... An electrical sub-station and two blocks of garages, also car parking spaces were marked out. A metal gate and padlock was erected across road access, but each side of the gate there was free passage from the newly installed pavement, into the car park and footpath.

1999 A postal survey was sent by Portsmouth CC...to a limited number of residents re. "Change of Use" of Ernest Road Car Park. A public meeting was held at Barncroft Junior School which resulted in CCTV cameras installed on the roundabout, improved lighting. Vandalised garages were demolished, making fly tipping more visible in an open area. Later bollards were installed to prevent joy-riders crashing into walls as had happened in the past to numbers 89 and 93.

16 June 2004 Workmen erected temporary metal barriers across the car park and at each end of the footpath thereby denying public access to the public.

9) The Landowner: Portsmouth City Council

9.1. Portsmouth City Council have been consulted by letter on 16th May, 20th June, 10th September and 27th October 2007. The Council were informed that, on the face of it, there appeared to be a reasonable allegation for the existence of a public right of way. However, to enable the County Council to complete its investigation and conclusions, the landowner was asked to provide any evidence that might exist regarding the management of the path. The City Council were specifically asked if they were in possession of evidence that the landowner had no intention of dedicating a right of way to the public. To date the City Council has not offered any evidence regarding the management of their land and the only substantive response is from the Legal, Licensing & Registrars Department who say: "There is little doubt that to create a right of way as, in effect, you suggest would cause very great public concern." This submission misses the point of the present exercise.

9.2. The City Council were asked to supply information regarding ownership of the properties occupied by those people who completed user evidence forms. The purpose in asking for this evidence was to determine how many of the users were tenants of the landowner and, therefore, may have had an implied permission to use path. This information was provided and it revealed that the vast majority of the users were tenants of Portsmouth City when the present footpath was diverted in 1964. However, by 1984, that is 20 years before the path was closed, about 40% of the users lived in properties owned by the City Council. In 2004, when the path was closed, approximately 15% of the users lived in council owned property. This evidence is discussed later in this report.

10) Consultations with other bodies:

10.1. Havant Borough Council

District Councillor Jenny Wride:

"I would like to draw your attention to the reasons why this footpath was closed in 2004. At that time I was the County Member for Bedhampton and St Faith's West and was involved in all the matters leading up to closure, including part of the PRIME project led by the police. The adjacent schools, Barncroft Junior and Infant Schools, were subjected to repeated episodes of vandalism, as were the properties near to the footpath. This footpath was the main escape route for the perpetrators of the vandalism and anti-social behaviour. All the parties involved in the PRIME supported the closure of this path, as did a great number of local residents. I am now a Bedhampton Ward Councillor and have not received any requests to consider re-opening and indeed would strongly object to such a proposal."

District Councillor Mike Fairhurst:

"As a ward councillor for Barncroft I fully support Jenny Wride. This footpath needs to remain closed to maintain the protection of the residents, and this must take priority over a general right to use it as a footpath."

10.2. Councillor Ann Edwards - local member

"I have heard both sides of this issue. It is clear to me that many people have used this path, regularly and over the time that Leigh Park has been built. Therefore I do believe it has probably become a right of way. However, I'm equally aware of the problems experienced in recent times, resulting in one resident being unable to obtain insurance due to repeated damage to his property. It seems a shame that the anti-social behaviour of a few affects the rights of many more.

10.3. Councillor Ann Buckley - local member

No comment

10.4. Ramblers Association

The Secretary for the South East Hants RA Group has written to say:

"There is evidence of the existence of this urban path on OS Pathfinder maps dated 1987 and 1991 as well as the present 2004 Explorer 120 map. It would appear that the link is (or was) one of the many tarmac'd urban non-definitive map paths that exist within HBC's area. The link does not appear on the Land Terrier print viewed at HBC's office nor was it shown as an adopted highway on their relevant GIS map. HCC's research would establish whether a DMMO is relevant; confirmation and recording of a formal status would indicate whether re-opening of this clearly defined and once-used path is justified. A possible, subsequent and separate stage would be application for closure of the footpath by the use of relevant (Gating?) legislation. This application would have to weigh, in a formal manner specified by the legislation, the security concerns of the adjacent householders against the improved access that would be available to walkers from the adjacent streets. It is considered that this footpath is not a significant east-to-west link for walkers utilising the wider overall footpath / pavements network; more direct and logical links are provided by Purbrook Way (to the north) or Jessie Road (to the south). The principal value of the path would be to the local inhabitants i.e. those living in St. Johns Road, St. Christopher's Road, St Nicholas Road and the adjoining St. Michaels Road and Ernest Road, if they wanted to walk east to Park Lane itself. The main use would therefore be by pupils and parents accessing Barncroft School."

10.5. Environment Department

The Highways Office for Havant Borough have supplied highway adoption plans which are considered in paragraph 12.7.

11) Other Representations:

11.1. Members will be aware from reading this report that there is local opposition to the establishment of this route as a public right of way. The community is divided with some of those living to the west of Park Lane eager to assert their rights to continue to use the path and some of those living on the east side strongly opposed to the reopening of the path. Those that live to the east of Park Lane would not have much reason to use the footpath because they already have easy access to facilities such as shops, buses, surgeries etc. Whilst for those on the west side the claimed path provided an important link to these same facilities. Nobody is arguing that the public did not use the path. The debate concerns anti-social behaviour in the locality and the impact that has had on the adjoining properties. These are issues for the future management of the path if, and when, the route is recorded on the definitive map and are not relevant to the issue of whether or not a right of way has been acquired. Both the City Council and Havant Borough Council have been advised, in writing, about the options open to them in managing the path. These options included applying for an extinguishment of the right of way, applying for a Gating Order to close the path for a specified period, or measures to manage the route to minimise disturbance. These options can be taken up in advance of a decision by the County Council on the status of the route, but there has been no indication from either body that they have, as yet, addressed these issues. In the interest of fairness and balance the representations made to the Council, about anti-social behaviour, are included below.

11.2. Adjoining landowner - Mr E Shannon

Mr Shannon moved to his current address in Park Lane in 1989. At that time the southern boundary of his property consisted of a 200 foot long brick wall and beyond that was a similar wall forming the northern boundary of his neighbour's property. In between the two walls was an earth and hardcore path which connected the car parking area off Ernest Road with Park Lane. This path used to flood and get muddy, there were often no street lights and no signs or notices to say whether it was private or public. The path was not heavily used, but there were children going to and from Barncroft Infant and Junior Schools in Park Lane.

The previous owners told Mr Shannon that they had no problems with use of the path, but a few months after he moved in, a section of his side wall was pushed over by vandals, leaving only a few courses of bricks above the ground. Mr Shannon didn't involve the police to start with, but spoke to his local councillor, Ron Hoyle. The problems continued and got worse with children and teenagers coming into his garden, pulling up paving slabs and using them to smash his car windows. This happened three times in one month. They also threw stones and bricks into his garden, the pond and outbuildings. They would enter his garden under the influence of drink or drugs to hold parties. Mr Shannon was abused and threatened on his own property on may occasions. The parking area off Ernest Road was a magnet for the youth and the problems they caused because there were two entrances and they could make a quick getaway when the police arrived.

In 2000 Ron Hoyle called a public meeting, which was held in Barncroft Junior School, to discuss the problems in the locality of the path. This meeting was well-attended by local people, the police and representatives from Havant Borough Council and Portsmouth City Council. The outcome of this meeting was that the path and parking area were improved, but not straight away. The path was surfaced in 2001 and vandal proof lighting installed in 2001/02. No cycling signs were put up at both ends of the path with small bollards in the middle to deter cyclists. Large bollards were put up in 2003 to protect the walls of the adjoining properties from cars being driven around the parking area. The garages were improved in 2002 and the area was cleaned up, but only spasmodically.

However, the problems continued with garages and hedges being burned in 2003. Youths used to congregate at the end of the path where it met the garage area and people were deterred from walking down there. The pathway was dirty with graffiti on the walls and parents wouldn't take their children down there. These problems were reported to the police but the situation got worse. In 2004 Portsmouth City Council and Havant Borough Council decided to close the path to stop the problems occurring. Since the path has been closed, the crime rate in the area has dropped by 92%. The whole community has benefited from it and the area is now quiet again.

11.3. Adjoining landowner - Mr B Leeves & Ms G Adams-Leeves

"Please do not reopen the alleyway leading between Park Lane and the land which was previously garages leading off Ernest Road. Indeed we would be pleased if the land that is now just a large concrete yard could be put to some good use. Our back garden adjoins this area and, over the years, we have had to put up with various problems."

Mr Leeves and Ms Adams-Leeves then go on to list five examples of anti-social behaviour that have occurred in the concrete yard over the years and end with:

"These are some of the incidents easily recalled. Before the alleyway was closed there were frequent minor incidents and disturbances. Please do not allow the problems to escalate again. Best of all, find a use for the space and allow all the neighbours a bit of peace."

11.4. The Community Safety Team Leader for Havant:

"I have been made aware of a suggestion that the footpath adjacent to 91-93 Park Lane, Bedhampton, which connects the former garage court behind Nos. 64-66 Ernest Road to Park Lane is possibly to be re-opened. As the Community Safety Team Leader with Havant Council I raised this with the police at Havant who, without exception, stated that this would have a really detrimental effect on the area as the alley was a real cause for concern in the past with serious ASB and vandalism in the area prior to its closure in 2004."

11.5. Public Petition

In September of this year the County Council received a petition signed by 186 people. It is headed:

"Petition to Chairman of Hampshire County Council Regulatory Committee from the residents of Park Lane, surrounding areas and also other interested parties concerning the installation of a new Public Footpath to replace the closed Garage Link Path leading from Ernest Road Garage Area to Park Lane."

The petition states:

"I the undersigned strongly support the continued closure of the Garage Area Link as described above for the following reasons:

1. The Link has been closed for more than four years which has resulted in a remarkable improvement of and the quality of life in the area since closure.

2. Crime rate has dramatically decreased.

3. Safer alternative routes for children, and the general public including the disabled and elderly have been used since the link was closed. These routes consist of well-maintained pavements, dropped curbs for disabled, pedestrian crossings, also children crossing warning lights with lollypop lady.

4. Bus stops have been re-sited with dropped curbs and non-slip pavement.

5. Vandalism of domestic property, schools, medical and dental surgeries, walls, cars and other acts of unsocial behaviour and drug taking have diminished.

6. Fly tipping and hedge/rubbish fires has almost ceased.

12) Analysis of the evidence:

12.1. From the Ordnance Survey maps it can be said that a path, in some form, has existed between Ernest Road and Park Lane since the estate was built in the 1950s. This path was diverted and improved in 1964 following planning permission for the construction of three houses in Park Lane. In 1966 a `No Cycling' Order was made to restrict its use to pedestrians and, at some stage, the path was given a tarmac surface and provided with street lights. The path has been widely used by the public to get to the shops, surgery, schools and bus stops. There was a debate in 1999 about a proposal to close the path, but there are no recorded instances of challenges or obstructions to users of the path between 1964 and 2004.

12.2. From the history compiled by Mrs Thorning there is some evidence that Portsmouth City Council took some steps to keep the path private in the 1950s. She mentions annual closures for three consecutive years coupled with `private' notices of some description. After that the only evidence of any restriction on the route of the path is a metal barrier across the mouth of the garage area at the Ernest Road end. However, this barrier did not obstruct the pedestrians because there were gaps at both sides of the posts. The barrier has not been in place for several years, although there are still traces on the ground of the vertical posts. None of the Ordnance Survey maps show a barrier across the route of the claimed path and none of the users mention the barrier as an impediment to their journeys.

12.3. The construction of the three houses in Park Lane, after planning permission was granted in 1963, obstructed part of the original footpath and diverted it slightly to the north. The path has remained on that route to the present day. By agreeing to the conditions of the planning permission, that is to make the new footpath permanently available for public use, the landowner, in effect, accepted that the public had a right to use the path, a right that they did not challenge until 2004. Although the planning condition only applies to the enclosed part of the claimed path it is reasonable to assume that the public were using all of the claimed route between public roads because there is no other viable route to take.

12.4. Less than three years after planning permission was granted for the new houses in Park Lane, the District Council made an Order to prohibit cycles along the narrow part of the claimed route established as a result of the development. It is reasonable to assume that the Order was made as a result of conflict or other problems through use of the path by cyclists. Part of the claimed path is described as a `public footpath' on the Order which is a public document. There is no evidence that the landowner challenged the description of the path on this public document which can be taken as evidence that it was accepted that the path was public.

12.5. After the 1966 Prohibition Order there are no further changes to or disputes about use of the path until 1999 when problems associated with anti-social behaviour are aired, in public, for the first time. The correspondence and other documentary evidence from that time, make no mention of the path being private or that the public shouldn't be using the path. It is widely accepted, by all parties, that the public have been using the path and that it serves a useful purpose in allowing people to go about their everyday business. Although there is some discussion about closing the path, this was not because the landowner didn't want the public to use the path, but to stop anti-social behaviour in the locality. The final outcome was that the path was improved with better lights and surfacing. This is not the type of action that is consistent with a landowner who had no intention of dedicating a right of way.

12.6. Further complaints from residents in Park Lane, regarding vandalism to their properties, finally prompted Portsmouth City Council and Havant Borough Council to review the management of the path. Local residents were consulted about use of the path and despite a large response in favour of keeping it open, a decision was taken to close it. Both Authorities were erroneously advised that, because the path was not adopted highway, no further action needed to be taken to effect the closure. Notices advertising the closure were displayed on site on 7^th May 2004 with barriers erected across both ends of the enclosed section on 16^th June. The path has been obstructed and unavailable for public use ever since.

12.7. The records held by Hampshire Highways are solely concerned with responsibility for public maintenance of highways. They show those routes that have been adopted and therefore the County Council are legally obliged to maintain for the public benefit. Ernest Road and Park Lane are shown as publicly maintainable highways on the adoption plans of c1962 and c1972. The claimed footpath is, correctly, not recorded on the adoption plans because it was the landowner's responsibility to maintain the route, as stipulated by the planning permission of 1963. The fact that the claimed route is not shown as being adopted does not mean that a public right of way on foot does not exist. The annotation of the claimed route as `private' on the c1972 map does not provide evidence that the landowner had no intention of dedicating a right of way to the public.

12.8. Those that have claimed use of the path over the years predominantly lived on the housing estate to the west of Park Lane. This estate was built by Portsmouth City Council and the original residents would have been tenants of the Council. Over the last 50 years a large number of these properties have been gradually sold by the City Council to the occupants. If use by those who were tenants of the landowner, in the period after 1984, was discounted from the evidence this would still leave a substantial body of user evidence, between approximately 60% and 85% of those who submitted evidence, which is sufficient to represent use by the public at large.

12.9. Although claimed use before 1984 was primarily by tenants of the landowner, the public could still have acquired a right of way through a common law dedication if it can be demonstrated that the landowner knew of, and acquiesced in, public use of the path. In this case, the planning permission of 1963 and the Prohibition of Cycling Order in 1966 provide compelling evidence that the public nature of the path was well known to the City Council.

13) Conclusions:

13.1. The public's right to use the path was brought into question by the erection of barriers in 2004. The relevant 20 year period for consideration, under s.31 Highways Act 1980, is therefore 1984 to 2004.

13.2. In the period 1984 to 2004 there are 92 users of the path of whom the large majority were not tenants of the landowner. This level of use is considered sufficient to represent use by the public at large.

13.3. Within the 20 year period 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.

13.4. A public right of way on foot is also reasonably alleged to subsist on the route A-B-C as a result of a deemed dedication at common law, based on use by the public, and the actions of the landowner, in the 1960s.

13.5. The route A-B is not precisely defined by physical features, but it is reasonable to attribute a used width of 3.0 metres. The route B-C is defined by walls set 2.0 metres apart.

13.6. When determining applications for Definitive Map Modification Orders the County Council cannot take into account acts of anti-social behaviour in the locality.

Links to the Corporate Strategy

Yes

No

Hampshire safer and more secure for all

Maximising well-being

Enhancing our quality of place

OR

This proposal does not link to the Corporate Strategy but, nevertheless, requires a decision because: the County Council, in its capacity as "surveying authority", has a legal duty to determine applications for Definitive Map Modification Orders made under s.53 Wildlife & Countryside Act 1981.

Section 100 D - Local Government Act 1972 - background documents

The following documents discuss facts or matters on which this report, or an important part of it, is based and have been relied upon to a material extent in the preparation of this report.

(NB: the list excludes published works and any documents which disclose exempt or confidential information as defined in the Act.)

(Quote list of documents here: e.g. list the relevant letters, memos, etc. and their location)

Document

Location

Files: CR790 x 3

User evidence

Documentary evidence

Correspondence

Rights of Way Office Room 200

Mottisfont Court

High Street

Winchester