Archived decisions

Decision Maker:

Regulatory Committee

Date of Decision:

11 March 2009

Decision Title:

Proposal to record a footpath between Kings Saltern Road and Footpath 75 in Lymington as a public right of way

Decision Reference:

604

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. An investigation into the history of a footpath in Lymington has revealed evidence that the route has been in existence for many years and signed as a public footpath since the 1970s. It can safely be presumed that the way was dedicated as a public footpath and it is proposed that a Definitive Map Modification Order be made to recognise this status.

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]

ii) that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description

iii) that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification.

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.

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) Recommendations:

4.1. That an Order be made to record the route A-B (as shown on the attached map) on the definitive map of public rights of way, as a public footpath. The path to have a width of 1.5 metres.

1) Purpose of report:

1.1. The purpose of this report is to set out the facts of the case to enable this Committee to determine whether the public has acquired a right of way 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) Claimant:

2.1. There is no claimant in this case, the investigation has been initiated by officers in the rights of way team following complaints from the public that the way had been obstructed.

3) Landowners:

3.1 Yacht Havens Limited

Kings Saltern Road

Lymington

Hampshire

SO41 9QD

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

4.1. The path runs from the junction of Kings Saltern Road and Westfield Road south eastwards for about 70 metres to join Footpath 75. It is at least 1.5 metres wide, with a gravel surface, sandwiched between a sewage pumping station and buildings associated with the marina. The path provides a key link between a residential area of Lymington and the sea wall footpath. It is signposted close to its junction with Footpath 75 by a standard metal sign indicating a `Public Footpath'.

5) Background to the claim:

5.1. In 1978 the County Council received a request from the Lymington & Pennington Neighbourhood Council to have the path added to the definitive map. This body submitted evidence of use from six local residents going back to 1915. This request was not acted upon at that time for reasons described in paragraph 7.8.

5.2. The footpath was blocked by the landowner, in April 2008, to allow for alterations to the building on the south side of the route. The path remained closed after the completion of the construction work and this led to complaints in November, from local residents, that they were unable to use the path. The path was re-opened in December following representations to the landowner by the Countryside Service.

6) Issue to be decided:

6.1. The issue to be decided by this committee is whether there is evidence to show that the claimed route ought to be shown on the definitive map as a highway, that is as footpath, bridleway, restricted byway or byway open to all traffic.

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).

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:

7.1. 1870 Ordnance Survey County Series Map 25 inches to 1 mile

This map shows the alleged path by pecked lines, set about three metres apart, raised above the surrounding land. At its eastern end it connects with another path that is now defined as a public right of way, that is Footpath 75. There are no lines across the path to indicate the existence of gates or other barriers.

7.2. 1895 Ordnance Survey County Series Map 25 inches to 1 mile

This document shows the path in a similar manner to the earlier map. However, there is now a solid line across the path at the junction with Kings Saltern Road, which probably indicates the existence of a gate, and a "Sewage Tank" has been built on the north side.

7.3. 1908 Ordnance Survey County Series Map 25 inches to 1 mile

There is no change in the depiction of the path from the earlier map, although the Sewage Tank has been replaced by a "Sewage Pumping Station". Access to this station must be from Kings Saltern Road via the claimed path.

7.4. 1940 Ordnance Survey County Series Map 25 inches to 1 mile

The path is shown in exactly the same manner as the 1908 map.

7.5. 1964 Ordnance Survey National Grid Map 1/2500 scale

The path is shown on this map by a combination of pecked lines and solid lines, set between two and three metres apart. There are no solid lines across the path that would indicate the existence of gates or barriers. On both sides of the path the land has been developed and these buildings are annotated "Works".

7.6. 1967 Letter from Peter Webster Ltd to The Town Clerk

The letter is signed by a director of the company, P Webster, and concerns access to the boatyard from Kings Saltern Road. The Town Council has an interest in the land because of their ownership of the nearby Sewage Pumping Station. It reads, in part:

"...we are endeavouring to stop pilfering and wilful damage to boats on our property, Ropewalk Boatyard, and to this end we are renewing our fences so that it is readily visible which is our land, erecting notices and particularly notices drawing the public's attention to the footpath which they have a right of way with instructions to keep to this footpath. We are renewing the styles where this footpath crosses our boundary and it was our intention to renew the gate, which has not been there for a number of years, and style at the commencement of this footpath on Kings Saltern Road."

7.7. 1978 Letter from Lymington & Pennington Neighbourhood Council

This letter, dated 20^th June, is addressed to the County Rights of Way Officer and reads, in full:

"Footpath leading from Kings Saltern Road to Footpath No.75 - My Council would wish the above footpath to be a designated right of way, for which I enclose the necessary evidence. I look forward to hearing from you in due course."

The `necessary evidence' consists of six `old-style' user evidence forms completed by local residents, detailing their use of the path from 1915 onwards. This evidence is considered in more detail in paragraph 8 below. There is also an undated piece of paper, which must be of the same period, which reads:

"Evidence of use of access to Lymington 75 from Kings Saltern Road in Lymington. Copy supplied at request of Mr Bide (Rights of Way Officer). The District Secretary of the New Forest District Council believes that the signpost indicating this path was erected in 1973 at the request of the Lymington Society."

7.8. 1978 Memo from County Secretary to County Recreation Officer

The memo, dated 1^st August, reads, in full:

"Claim for public footpath, Kings Saltern Road to Lymington Footpath No.75 - With reference to your memorandum of 29^th June I think there is sufficient evidence to justify incorporating this claimed path in the Review. There is no clear line through what is now a boat park connected with the Marina and it will be necessary to establish a route with the Marina operators who may wish to put it round the boundary fence."

Before 1981, and the passing of the Wildlife & Countryside Act, the definitive map could only be amended when it was periodically reviewed. For a number of reasons the map for Hampshire was not subsequently reviewed and the evidence of use was not acted upon after 1981 because there was no formal application for a map modification Order.

7.9. 1982 Planning Application

This planning application relates to permission for an extension to a workshop on the south side of the alleged path. The drawing submitted to the planning authority shows the path by pecked lines and annotated "Public Footpath". The plan does not show any gates or other barriers across the route.

7.10. 1982 Ordnance Survey National Grid Map 1/2500 scale

The path is shown in the same manner as the Ordnance Survey map of 1964.

7.11. 1999 New Forest District Council Memo

This memo is dated 9 March and is from the Highways Group to Committee Services. It reads, in part:

"I return your plan highlighted to show the length of footpath to which I assume the enquiry refers. My copy of the 1964 Definitive Map shows the path in question as a later addition and the path is signed on site, both at the Kings Saltern Road end and also within Lymington Yacht Haven, as a public footpath. I have no information regarding maintenance works to the surface of the path and cannot confirm that the path was put in place by this Council. Its inclusion on the definitive map may have arisen from works to the gravelled section of its surface at the time of the development of the areas adjacent, possibly in a planning condition. There is however, no doubt that the length in question is a well established pedestrian access route to the sea wall."

7.12. 1999 Photographs

These four photographs were taken by an officer of New Forest District Council on 25 June. One shows a metal "Public Footpath" sign at the path's western end and another shows the same type of sign close to the path's eastern end. There are also two photographs of the middle section of the path. The route consists of a well-defined gravel surface with brick walls or edging bricks to the side. The footpath signs are a standard type that were erected by the district council in the 1970s.

8) User evidence:

8.1. User evidence consists of the original six forms, submitted in 1978, and a further four forms completed in recent months, giving 10 users in total. The officers have not conducted a wider survey of users because it is considered that the documentary evidence supports a reasonable allegation for the existence of a public right of way. Those who have submitted user evidence are listed below.

8.2. Miss J Allen of Kings Saltern Road

Miss Allen used the path from 1925 to 1978, for exercise and pleasure, several times a week. She used the same route except when temporarily diverted for reconstruction of sewage station approximately two years ago (1976). Miss Allen recorded that there were stiles at each end. She added: "Ever since we came to this house we have walked constantly `round the banks' and were sadly distressed when this unique facility was obstructed by the marina. It is part of the amenities to be preserved."

Please note that although the land on both sides of the alleged path and Footpath 75 are now occupied by the marina, an unobstructed route has been left through the boats, equipment and buildings that enables the public to exercise their rights.

8.3. Mr D Blake of Ambleside Road

Mr Blake has used the path `hundreds' of times a year between 1945 and 2009 although he acknowledges that for 20 of those years he worked for the landowner. The only break in his use is in 2008 when the path was blocked off. He writes: "I have lived in Lymington for 70 years. This footpath is the start of the sea wall Solent Way walk to Keyhaven. The original sea wall through the boatyard is marked by white stone blocks and roped off. The footpath has now been re-opened but I fear for its future and all access to the Solent Way through the marina."

8.4. Mr R Lane of Solent Close

Mr Lane claimed use of the path, on foot, from 1926 to 1978 for pleasure, mostly at week-ends. He also mentioned the existence of stiles at both ends of the path.

8.5. Mr M Morgan of Daniels Walk

Mr Morgan has used the path from 1991 to 2008 `most days' for work and pleasure. He claims to have seen `Public Footpath' signs on the path from 1980 onwards. He writes: "The path has had a footpath sign for as long as I can remember and has been kept in good condition. However, the sign has been removed and the path closed. I believed that the path gave direct access to the footpath across the marina and onto the marshes."

8.6. Miss L Parker of Belmore Road

Miss Parker has walked the footpath about 85 times a year between 2002 and 2008. She writes: "The path is a safe way by foot to access the marina. The other access is dangerously occupied by vehicles and passing cars, unsafe for dog walkers and general pedestrians."

8.7. Ms G Sheryer of Westfield Road

Ms Sheryer used the route on foot from 1930 to 1978, four or five times a week, to gain access to the sea wall footpath. She claimed it had been used continuously by pedestrians at all times of the year. She always used the same route except for a few weeks when the old pumping station was demolished about two years ago (1976).

8.8. Mr A Swain of Victoria Place

Mr Swain claims use of path from 1986 to 2008, once a week.

8.9. Mrs J Vernon-Jackson of Kings Saltern Road

Mrs Vernon-Jackson used the path from 1930 to 1978, approximately once a week, to get to the sea wall footpath. She mentioned that there used to be a stile years ago and always assumed it was a public path..

8.10. Mr D Watton of Melbury Close

Mr Watton claimed use of the path, at least once a month, from 1948 to 1978 for the enjoyment of walking the sea wall. He alleged that there were official `Public Footpath' notices at both ends.

8.11. Mr A Wright of Hazel Road

Mr Wright used the path from 1915 to 1978 for playing as a child and pleasure every week-end as an adult. He mentioned the existence of stiles at each end and wrote: "This pathway has always been a connection from the road to the sea wall and I see no reason why it should not continue to be so."

9) The Landowner:

9.1. Yacht Havens Limited

In a letter dated 9^th December 2008, Yacht Havens Limited were asked if it was in possession of any evidence that the landowner took steps to prevent the public acquiring a right of way before the path was closed in April 2008. To date, no evidence of this nature has been provided.

10) Consultations with other bodies:

10.1. Lymington & Pennington Town Council

The Clerk to the Town Council has responded to say that the matter was discussed at the planning meeting held on 14^th January. Members commented that there was a footpath and it had been used in the past. The Committee raised no objections and agreed that the path should be recorded as a public right of way.

10.2. New Forest District Council

The Principal Engineer has written to say:

"I am unable to supply any information regarding how this path has been used and managed over the years. However, I understand that the path was temporarily closed due to building works at the `Nick Cox' Chandlery but has recently reopened. After consulting our District Members, we are happy to support the path being recorded as a public right of way for pedestrians."

10.3. Local Member - Councillor Evans

"I have personal knowledge of this footpath and have used it many times to gain access to the sea wall. I would be pleased to support the proposal that the path be recorded as a public footpath on the definitive map."

10.4. Ramblers Association

No comment

11) Analysis of the evidence:

11.1. The path has physically existed as a link between Kings Saltern Road and the sea wall path for at least 140 years. It is shown on the Ordnance Survey map of 1870 and all subsequent OS maps. Initially there were no barriers across the route, but when the sewage tank or works was constructed at the end of the 19^th century a gate or barrier of some description was put across the entrance at Kings Saltern Road and stayed there until about 1940-50.

11.2. In a letter dated 1967 the then landowner acknowledged that the public had a right to use the path but wanted to re-erect gates and stiles that used to exist on the path to stop thefts from the site. These gates and stiles were not replaced and the public continued to use a path alongside the boundary of the sewage works. In the 1970s the path was signposted at both ends, by the district council and, in a planning submission made in 1982, the path was described as a `Public Footpath'.

11.3. The public have supplied evidence of user from 1915 onwards with no record of any disruption to their walks other than a temporary diversion in 1976 and a temporary closure in April 2008. One user, when completing his form in 1978, records the existence of `Public Footpath' signs at both ends and this supports the note held on file that the signs were erected in 1973 following a request from the Lymington Society.

11.4. The route is still signed as a `Public Footpath' towards its southern end and it is believed that the northern signpost, on Kings Saltern Road, only disappeared in 2008. The existence of these signs for 35 years, coupled with documentary evidence from the landowners in 1967 and 1982, provides very persuasive evidence that the path was widely regarded as a public right of way.

12) Conclusion:

12.1. The conclusion can properly be drawn that the route A-B has been dedicated as a public footpath based on the Ordnance Survey maps, the actions of the landowners and evidence of use by the public since 1915. The width of the used path is 1.5 metres.

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 amend the definitive map on the discovery of evidence that a right of way which is not shown in the map and statement, subsists or is reasonably alleged to subsist.

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

File: CR663

Rights of Way Office Room 200

User evidence

Mottisfont Court

Documentary evidence

High Street

Correspondence

Winchester