Archived decisions

Decision Maker:

Regulatory Committee

Date of Decision:

22 April 2009

Decision Title:

Application for the addition to the Definitive Map of footpaths in the Parish of Bramshott and Liphook

Decision Reference:

697

Report From:

Director of Recreation and Heritage

Contact name:

Sylvia Seeliger

Tel:

01962 846349

Email:

[email protected]

EXECUTIVE SUMMARY

1) Summary of Decision Area:

1.1. This is an application to record footpaths in the parish of Bramshott and Liphook that run over the site of the former King George's Hospital. The claim is based on evidence from 163 local residents, who used the paths between 1928 and 2004. The public was excluded from the site in 2004. The claim is recommended for refusal.

2) Legal Framework for the Decision:

2.1. WILDLIFE AND COUNTRYSIDE ACT 1981:

S.(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

2.2. 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...

2.3. 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, or Members consider that it is reasonably alleged 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 the application be refused.

1) Purpose of Report:

1.1. The purpose of this report is to set out the facts of the case to enable Members 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) Claimant:

2.1. The application, was made in 2004 by Mrs. J. Hamblen, of Liphook.

3) Landowners:

3.1. The site over which the claimed route runs was registered at the Land Registry on 31st October 2007 to Intercontinental Land & Development Company Limited, of London. This company is now known as Helical (Bramshott Place) Limited (`Helical').

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

4.1. The claimed path runs from the B2070, London Road, to a public open space called Radford Park, through which the River Wey runs. The path is extensive, and has been broken down into sections for ease of reference. It starts at point A (the London Road) on the map accompanying this report, and passes along a track to point B. From point B, it runs to point C, then round the site on a circular route to point D (`the loop'), near the Tower Gatehouse, and then to the south east and round a walled garden to point E. The path also runs from point B to point E, exiting the site to point F in Radford Park. Extensive building operations are taking place on the site, so only the most northern part of the loop, a worn grass path, and the section from E to F is visible on the ground. The route is 1,264 metres in length, and varies in width between 2 and 13 metres.

4.2. Gates and barbed wire were used to close off access to the claimed path on 28^th June 2004, and the site is now surrounded by a metal fence and a wood and wire fence. While the claimed path does not connect to a recorded public right of way at point F, Radford Park is in the ownership of Bramshott and Liphook Parish Council, and is open to the public for recreational use. Point F connects to a major footpath within the Park, that runs roughly parallel to the River Wey.

5) Background to the Claim:

5.1. For many years, the public has enjoyed uninterrupted access through grounds belonging to King George's Hospital in Bramshott and Liphook. This use came to an end in 2004, when barriers were erected to prevent the public using the paths around the hospital site. The former hospital occupied a site that was known as Bramshott Place, an Elizabethan mansion built in the 1580s in a five acre estate by a local merchant, John Hooke. This building was demolished and rebuilt as Bramshott Grange in the mid-19^th century by the Erle family. Bramshott Grange was sold to the Seaman's Hospital Society in 1919, and turned into a sanatorium for the treatment of tuberculosis. King George V officially opened the building in 1921. The hospital became the responsibility of the National Health Service in 1948, and then became a hospital for the elderly under Portsmouth Health Authority after conversion in 1964. It closed in 1987.

5.2. The hospital buildings were demolished completely after its closure, and the only part of the historic building that is still in existence is the Grade II-listed tower gatehouse, and the remains of the walled garden. The site was sold to private owners in 1988, and then re-sold to Danbuild in 1991, who applied for planning permission, which was refused. By 1997, some of the land comprising the site was transferred to Bramshott and Liphook Parish Council. However, the land over which the claimed route runs remained within the main site. The landowner is now Helical and the building works which are currently taking place are being managed by Urban Renaissance Villages on behalf of Helical (Bramshott Place) Limited, in accordance with planning permission that was granted in July 2007.

6) Issues 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. 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 map is made, Members must be satisfied that public rights have come into being at some time in the past. This might be in the distant past (proved by historic or documentary evidence) or in the recent past (proved by witness evidence).

6.2. Any changes to the definitive map must be based on evidence of the history and past use of the path in question and must reflect public rights that already exist. It follows that the map must not be amended simply because such a change would be desirable, or instrumental in achieving another objective. Neither should such a change be avoided for the opposite reason. If Members are satisfied that a public right of way of a particular description exists over the claimed route, then a map modification order should be made. 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.

6.3. Historic and documentary evidence has been examined to see whether the past history and use of the path points to it 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 way is an old way 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 a 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 consider that there is such a conflict in this case.

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. The paths that are the subject of this claim are not recorded on the Definitive Map as public rights of way. Maps dating from the 18^th century were examined to see if the paths had a historic origin (see Appendix 1 for an evaluation of historic documents). Some of the early commercial one inch maps (such as those by Taylor, Milne, Greenwood and the old Ordnance Survey first edition) show the area where the hospital stood, but do not show any paths in the vicinity. This may be due to the limitations of that particular scale. The OS map of 1810 shows the forerunner of the Hospital as a T-shaped building, while Greenwood's map of 1826 names the area as Bramshott Place.

7.2. Bramshott Tithe Map and Apportionment, 1845 (HRO 21M65/F7/33/1-2)

The Bramshott Tithe and Apportionment of 1845 depicts Bramshott Place. The area occupied by Bramshott Place is very similar in its profile to the area today occupied by the site of the former King George's Hospital. A track is shown running south from what is now Hewshott Lane between pecked lines, and some of the claimed path south of D appears to coincide with this. Another section of track, between solid boundaries enters the site from the south west, and approximates to the section of the path from F to E and beyond the walled garden, which is shown on the Tithe Map. It can be inferred from this material that some parts of the claimed path were already in place by 1845.

7.3. The Ordnance Survey County Series 1:2,500 first edition, c.1871

Only the very northernmost part of the former hospital site is shown on the copy of this map held by the County. The Lodge is shown, with a track leading south east from it, and it is not gated where it leaves the London Road.

7.4. The Ordnance Survey County Series 1:2,500 second edition, c.1895

Part of the claimed route is shown from just south of the Lodge to a point beyond D. There is a gate at the Lodge. The track from the Lodge is between parallel solid lines, and continues between pecked lines from a point where it appears to be gated, to Bramshott Grange and then south east, where it stops at a range of buildings, with a line across the route denoting the boundary of the area containing the buildings. The section between F and E is shown between solid lines, and this opens out into an area of buildings to the east of the walled garden. The section of the claimed path between A and E is shown along the wooded Liphook Hanger, between parallel pecked lines, and there appears to be a solid line where the path departs from the London Road, possibly indicating a gate.

7.5. The Ordnance Survey County Series 1:2,500 third edition c.1909

There is no material change to the depiction of the path compared with the edition of 1895.

7.6. Sales Particulars for Bramshott Place, dated 1919 (HRO 97M89/3)

The Bramshott Place estate was put up for sale in July 1919. The plan that accompanies the particulars is based on `the Ordnance Survey Map', though it would appear that the map base incorporates new surveys since the third edition. The sections of the claimed path shown on the site of Bramshott Place are in the same positions and follow the same routes as shown on the third edition. However, the gate or barrier which is shown on the third edition between D and the walled garden is not shown on this map.

7.7. The Ordnance Survey County Series 1:2,500 fourth edition c.1930s

The map shows the sanatorium on the site. The claimed path is shown in a similar way to the depiction on the previous maps. The gate to the south of the Lodge is no longer shown, though the line across the path between D and the walled garden is present on this map.

7.8. National Grid Map at 1:2,500, dated 1970

This map shows the Sanatorium and the claimed path between points A, B, E and F, between B and C, and between points F, E and D; the part of the route departing from the route to the Lodge and going round the meadow (C to D) is not shown. There was no gate in place by the Lodge at the time of survey. Lines across the claimed path, which are suggestive of gates, are shown at a point south of D, and near point A, where the claimed path meets the London Road.

8) Witness Evidence:

8.1. The number of user evidence forms received with this application was 20. Subsequently another 117 forms were submitted, making a total of 137, disclosing use by 160 users. Three other witnesses came forward during the course of the investigation, making a total of 163 witnesses. 30 witnesses have been interviewed and have signed statements. Each form was accompanied by a map which indicated the route that had been walked. It seemed that some of these maps were pre-prepared, and so the witnesses interviewed were asked if the map they had signed was a fair representation of where they had walked and their answers recorded. The signed statements carry more evidential weight than the signed user forms, because officers have had the opportunity to question witnesses more closely on aspects of the information contained in their forms, and yield additional information.

8.2. Appendix 2 is a table that shows the use of the path by those 163 people who have submitted evidence. This is, of necessity, a generalisation, but may give a feel for the extent of the use claimed. Frequency of use varies from monthly, to several times a week to twice daily, this last reflecting the close proximity of site to an extensive area of housing. Twelve of the witnesses said they were not using the claimed path when it was closed off in 2004, the event which gave rise to the application. Seven users have indicated on their forms that they continued to use the path after the first attempt to close it off to the public. A summary of the use put forward by those who have given statements can be found at Appendix 3.

8.3. The earliest use is claimed to have taken place in the late 1920s, with two witnesses having started to use it in the early 1930s, and two new users each in the 1940s and the 1950s. There were 20 new users in the 1960s, 25 in the 1970s, and the chart shows that the bulk of use taking place between 1980 and 2004.

8.4. The erection of barbed wire and fencing in June 2004 prompted this application and 102 users record that there were no obstructions until this fence appeared. Interviewees reported that their use was stopped by the erection of the barbed wire fence across the path in June 2004, though some continued walking until 2007 when a secure steel fence was installed. Fourteen users refer to a gate at the Lodge, which was the main entrance to the hospital, and there are differing recollections about whether this gate was open, closed or locked. Some people who recall the gate being closed said it was possible to get around the side. Two users speak of a stile between points A and B, near London Road and six of a gate in that location. Two witnesses state that it had a gap to one side, by which access was gained. One witness described the route A to E as a service road for the hospital and wide enough for a tractor to pass along. Two witnesses thought that there had been a gate at the corner of the walled garden in the early 1970s, and they took it to be marking a boundary indicating the limit of the hospital, and so did not go beyond it while the hospital was in use. Consequently, they did not know if it was locked. Two witnesses thought there might have been a gate there, one seeing posts in that location and the other seeing mesh fencing on the ground. One user referred to `various attempts' to close the site off, but was not able to be specific about dates, while another referred to a `home-made barrier that could be stepped around', but again could not be specific about when this was in place. A fence with a sign near point E is recalled by one user in the 1970s, but this was short lived. Two people mentioned a gate near the gatehouse, `that was always open for cars'. It has not been possible to pinpoint where and when any structure across the path in this location was put in place, how long it was there for and whether it was kept in good repair.

8.5. Eighty-one of the witnesses recall seeing at least one Health Authority notice reading `Private Property' and `Keep Out'. The witnesses use terms such as `obsolete', `out of date', `broken' and `faded'. In fact, these signs are still legible, one at a point between A and B and another near point E, and were put up probably between 1964 and 1987. Both signs are fixed above eye level in trees, both facing the claimed path. Thirteen others saw `Private Property' and/or `Keep Out' signs but did not attribute them to the Health Authority. One user said that he thought the Health Authority sign applied to the area past where the sign was fixed, and assumed that meant the whole area, including the paths over it and the claimed path, which he continued to use. Another said she came habituated to seeing the sign and therefore it did not deter her from using the path. One user said he had no idea what land the sign applied to, and another said it was vague and not clear what it applied to. Had it been on a gate it would have been clearer and had more of a deterrent effect. Six witnesses thought the sign applied to the land behind the tree and not to the path. Two users recalled a notice reading `Hospital, Private' near the walled garden, and a `Hospital Quiet Please ' sign between points A and B. It does seem that some of the walkers on the site were reluctant to go near to the hospital buildings out of respect for privacy or because they felt it to be inappropriate. Seventy-nine users report seeing deterrent signs on the fences that were erected in June 2004. Similar signs are in place today on the steel fence surrounding the site. Eleven witnesses refer to signs in more generalised terms, making their placing and content difficult to pinpoint.

8.6. The site was made completely unavailable to users in December 2007 by the erection of a metal fence. The June 2004 fences were cut and some witnesses admit that they continued to use the paths after this time. A witness speaks of the site being protected by Guardwell after the site was sold in 1988, and another correctly identifies Mr. Jeremy Lomax as the caretaker, though not by name. Two witnesses said that they were stopped or challenged prior to 2004 (one witness thought it might have been in the late 1980s or early 1990s, and the other disregarded the challenge because she viewed the path as being public and could not recall when it happened). Another user said there may have been a security presence, while an additional witness said there were `no regular security patrols' (no dates given). One witness reported that a friend had been confronted by two men with guns and told to leave the land in October of 2004. A further witness reported being challenged and told not come through the land in 2005. Another said she had heard of people being challenged and turned back, and noted the presence of security staff, this being after 2004. What can be understood from the user evidence is that only two witnesses reported challenges in the period 1984 to 2004.

8.7. Some use was with permission, and any use with permission cannot count towards the acquisition of a public right. Nine witnesses said they had explicit permission, though in one case it was primarily to shoot rabbits on the site. Of these, four witnesses were told by Danbuild staff that it was all right to walk on the site. The applicant described the Danbuild staff as friendly and happy to receive news of problems so they could be resolved. It has not proved possible to obtain dates when this permission was given, though it must have been after 1990, so the use by these witnesses while the site was in the hands of Danbuild (until 2001) must be discounted. Two users (mother and daughter) mentioned an advertisement in the local newspaper in the late 1990s, giving permission for the public to use the hospital site for dog walking, and they considered that their walking of the route from E to D to B via C was with permission from that time onwards. They could produce no evidence of the advertisement, when it was published or who placed it, and if any conditions attached to the permission. Another witness said that the hospital had given the village a right of way from the Lodge through the hospital grounds to Malthouse Meadows. The fourth edition of the OS County Series shows a path from Haslemere Road through Malthouse Farm and this utilises the section F to E and a short stretch of E to B. There are two paths which would take walkers directly to the hospital, while the claimed path from E to D would take walkers further to the north east. No evidence has been produced regarding which of the hospitals had given the permission, what route it took inside the hospital grounds, when the permission was given, what kind of right or of any conditions attached to that right. Permission had been given to one user by a hospital worker, while another reported that the Hospital Secretary stated that no permission was required as public use of the site was not prohibited. One witness took the view that no permission was required because the route was public, and six others said that it was not necessary, though five witnesses also said they didn't know who owned the site. Four users were employees of the hospital or landowner, and one had lived in the nurses' home. Any use of the claimed path by these witnesses whilst they were employees must also be discounted, though one said that she used a slightly different path to get to the hospital. One of these employees recorded that the sanatorium did not want the public on the site because of the risk of infection. Six witnesses thought they had used a private right to visit patients or people who lived on the hospital site, another to visit a field to feed and water their horses, and six others referred to using a private right to go to the hospital for the annual fete and for coffee mornings. Use of a private right cannot count towards the acquisition of a public right.

8.8. Witnesses reported that they saw other users while walking the path, both locals and strangers, most of whom were on foot, and many of whom were dog walkers. There were occasional sightings of children on bicycles and two of the interviewees had used it with bicycles. One witness described the path as being `very busy along the avenue of rhododendrons' (presumably the section A to B to E), and many users said they walked the path because they saw others doing the same.

8.9. What can be understood from this evidence is that local people have used a route around the site of the former King George's Hospital from at least the mid-1970s (see Appendix 2), until new barbed wire fences closed the site off in June 2004. The erection of this fencing brought the public's right to use the route into question, and therefore the relevant period for the purposes of section 31 of the Highways Act 1980 is 1984 to 2004.

8.10. The questions which remain unanswered from this evidence relate to how the land was managed by the freeholder(s), specifically whether there has been any intention to dedicate public rights of way over the land and, if there has been no intention to make such a dedication, how the freeholder(s) have demonstrated this to the public. Methods of doing this include the use of locked gates, fences, notices, challenges to the public and the making of a deposit under the terms of Section 31(6) of the Highways Act 1980 with the highway authority.

9) The Landowner:

9.1. The present landowner, Intercontinental Land and Development Company Limited, is represented by its agent Mr. W. Gair of Urban Renaissance Villages and also by Lovells LLP, and both have made submissions, summaries of which are given below. The full submissions are available to Members to read.

9.2. Mr. Gair is of the opinion that `there is no evidence that the route has ever been dedicated as a right of way' and `in view of the steps taken by the landowners over time, [does not] believe that public rights of way have ever been acquired by user'. Users have been seen by Mr. Gair, and no permission has ever been given to anyone to use the path or have access to the land. Mr. Gair has attempted to turn back members of the public, when seen, since 2001, though these efforts have been unsuccessful. Other members of the company's staff have been instructed to tell members of the public encountered on site that there are no public footpaths on the land. A statutory declaration from Mr. Jeremy Lomax, who has carried out caretaking duties on the site since 1990, is included in the submission and this is detailed at 9.8 to 9.10.

9.3. Mr. Gair points out that the Parish Council has a private right of way along a route partly co-incident with the claimed path, as the result of a transfer made between a previous owner and Bramshott and Liphook Parish Council in a deed dated 9^th May 1997. No maintenance or improvements have been made to the path. Mr. Gair cites the transfer between a previous owner, Danbuild, and the Parish Council, clause 5.3 of a section 106 agreement between Danbuild and East Hampshire District Council, and paragraph 3 of schedule 3 of a section 106 agreement between Helical and East Hampshire District Council to be evidence that neither the Parish Council or East Hampshire considered any part of the claimed path to be public between 1997 and 2007.

9.4. A letter dated 2^nd July 2008 from Lovells LLP is included in the submission. Both section 31 of the Highways Act 1980 and common law are considered, and the arguments are summarised as follows. Lovells take the making of the application as the bringing into question of the public's right to the claimed path, and this occurred in 2004. About the same time, signs were put up to indicate that trespassers would be prosecuted. The relevant period is therefore 1984 to 2004, in which time the public must have actually enjoyed the path as of right and without interruption. Further, `the Highways Act 1980 does not apply to land owned by the Crown and therefore section 31 does not operate against the Crown'. The hospital site was sold on 15<sup>th</sup> July 1988, and therefore section 31 of the Highways Act cannot apply before 1988. It is argued that the requirement for 20 years use cannot be fulfilled. Where the common law is concerned, there is no evidence of any express dedication of the path. The onus lies upon the applicant to show that a dedication has taken place, and it is the view of Lovells that no dedication can be inferred because of the steps taken by landowners `which are inconsistent with dedication'. The user evidence forms may be evidence of dedication, but these can be rebutted by various acts of interruption, and a single act of interruption carries much greater weight than many acts of enjoyment of the path by the public.

9.5. In the material from Lovells, included by Mr. Gair in his submission, there is reference to 84 of the users who walked the path during the period of Crown ownership, and to Mrs. Keens, a former Parish Councillor, who believes that the Health Authority did not allow members of the public to use the path. Mrs. Keens considers that land lying within the hospital boundaries was `always private' and that the public were only allowed to use a path from Malthouse Meadows which is partly co-incident with the claimed route on fete days, once a year. A statutory declaration by Jeremy Lomax details evidence of various measures which must have been taken during the time that the Health Authority owned the site, including the erection of notices, which are acknowledged by 42 users, though described as `broken, defunct and obsolete'. These notices are not illegible and remain on site. `It is difficult to see how the others did not if they all regularly use the same path as claimed'.

9.6. In the letter detailing the advice given to Mr. Gair by Lovells, there is reference to one user admitting to using the path with the permission of a hospital worker (paragraph 13), and therefore his use cannot be as of right. The `formidable body of evidence' required to support the acquisition of a public right at common law is `not established', either before or after the Health Authority's ownership. The next owners Danbuild employed Mr. Lomax to `fix fences and padlocks on gates and turning trespassers away from the site', as well as other signs `warning members of the public to keep out of the site'. Two users report having received permission from a Danbuild agent so their use cannot have been as of right.

9.7. The provision of a private right of way partially co-incident with the claimed path to the Parish Council suggests that the path was not a public footpath in 1997. No such provision would have been necessary had it been one. The request for a dedicated public footpath from East Hampshire District Council in a section 106 agreement also suggests that the route was not public in 2000. Since being in the ownership of Helical, the caretaker Mr. Lomax has carried out instructions to secure the site and turn away members of the public. A section 106 agreement imposing on Helical an obligation to make available permissive paths which run over part of the claimed path also indicates that it was not a public footpath in 2007.

9.8. Mr. Jeremy Lomax has made a statutory declaration on 19^th April 2007 giving details of his employment by both Danbuild and Helical as caretaker of the site. Mr. Lomax has been carrying out this job since March 1990. The statement lists the measures that, in his view, were designed to keep trespassers out of the site while the hospital was in operation:

· A gate at the Lodge

· Two identical Portsmouth and South East Hants Health Authority signs reading `Private Property Keep Out' fixed to trees at two points beside the claimed path

· Old rail fencing which he says was across the path

· Old posts and broken mesh fencing which had stretched across path by walled garden

· `Two posts which may have supported a previous obstruction to the path by London Road'

· Wooden fencing around the boundary of the path near the river at the London Road end

· A `Private Property Keep Out' notice on the main gate at the Lodge, which has subsequently disappeared

9.9. On behalf of Danbuild Mr. Lomax had:

· Affixed notices reading `Private Property, Keep Out', on the main gate, by the corner of the walled garden, and by the river near London Road

· Fixed the main fence by the walled garden, the river and London Road

· Installed locks on the main gate

· He also `told any trespassers [he] saw that the land was private and that they were trespassing on countless occasions'.

9.10. In 2004 Mr. Lomax took further steps to `keep trespassers out of the site', on behalf of Mr. Gair of Urban Renaissance Villages:

· He put up a large sign on the main gate reading `Danger, Trespassers Will Be Prosecuted, No Parking'

· He closed the gap between the main gate and the old posts with barbed wire

· He put up signs reading `Danger Keep Out, No Trespassing' at locations around the site

· He put up post and barbed wire fencing around the site and across the path south of E and north of B

· He repaired the fencing by London Road and installed barbed wire

· He put up a gate by the London road with a sign reading `Danger, Trespassers Will Be Prosecuted'

· He changed the padlocks on the main gate

These measures prompted the public to deface and remove signs, tear down fences and destroy padlocks. Mr. Lomax `made many efforts to reinstate the various barriers and signs' which were `always met with the actions outlined above'. He also told any trespassers that the land was private on countless occasions. Twenty six photographs support Mr. Lomax's statement.

10) Consultations with Other Bodies:

10.1. The following persons and bodies have been consulted about the claim, East Hampshire District Council, Bramshott and Liphook Parish Council, the local Member, the Open Spaces Society, the Ramblers' Association, Hampshire Highways Management, Minerals and Waste and the Rights of Way Area Officer (North East). At the time of writing, the following responses have been received.

10.2. The representative of the Ramblers' Association who lives in the locality of the path says that his inquiries indicate that the claimed path was `much used by local people', and refers to the attractive trees, Tudor Lodge House and walled garden on the site. He could not offer any evidence of use by ramblers as part of a walk and felt that, with the alternative route in Radford Park and the B2131 it is difficult to make a case from the point of view of ramblers. However, he feels that a case for the path being a local amenity could be made resulting from the `natural beauty and historical interest involved'.

10.3. The other consultees have not responded at the date of the preparation of this report.

11) Discussion of the Evidence:

11.1. The historic and documentary evidence is helpful on the existence of the claimed route. The Tithe Map indicates that two sections of the claimed path were established by 1845. There is nothing on the Tithe Map to indicate whether these sections were public or private in nature.

11.2. The County Series editions of 1895, 1909 and the 1930s, show a large part of the claimed routes already in place. The depiction of a track on an OS map indicates that it was a feature sufficiently pronounced to be recorded by the surveyor, but the map gives no information on whether it was public or private.

11.3. The National Grid map of the 1970s shows, in addition, a path on the same route as the section B to C of the claimed route. It would appear that a number of the different sections of the claimed route were already in existence from at least 1895. There is nothing in the existing documents to indicate whether any of this network was public.

11.4. Therefore, officers are of the view that the historic and documentary evidence does not prove, on the balance of probabilities, that any part of the path was a public highway, and therefore the application must turn on the evidence of use in recent years.

11.5. For section 31(1) of the Highways Act 1980 to operate and give rise to a presumption of dedication the following criteria must be satisfied:

· the physical nature of the path must be such as is capable of being a right of way at common law

· the use must be `brought into question', i.e. challenged or disputed in some way

· use must have taken place without interruption over a period of twenty years before the date on which the right is brought into question

· use must be as of right, i.e. without force, without stealth and without permission

· use must be by the public at large

· there must be insufficient evidence that the landowner did not intend to dedicate a right of the type being claimed

11.6. Dealing with the above criteria as listed, the path is of such a character that it is capable of being a right of way at common law.

11.7. The erection of a post and barbed wire fence around the site and across the claimed path, with associated notices indicating that the public should keep out in 2004, was the bringing into question of the public's right to walk on the site. Therefore, the relevant period for the purposes of section 31 of the Highways Act is 1984 to 2004.

11.8. We agree with the submissions made by the landowners that Section 31 cannot operate to presume a dedication as a result of user when at any time during the twenty year period land was owned by the Crown. In this case, the Secretary of State did not sell the land on which the former hospital stood until July 1988. The effect of owning the land during the first four years of the relevant period is that the evidence of user in the period 1984 to 2004 is not sufficient to fulfil the statutory requirements of Section 31 of the Highways Act 1980, and the application must fail.

11.9. However, the application can be considered under common law, to which the Crown is not immune.

11.10. The user evidence demonstrates that there has been significant use of the claimed routes by the public. However, for a common law dedication to have occurred it is necessary to demonstrate that the owner knew of, and acquiesced in, that use. The users must be able to show that it can be inferred from the conduct of the landowner that he or she had intended to dedicate the route as a public right of way. This may be by an express act of dedication, or it may be implied from a sufficient period of public use without secrecy, force or permission, and the acquiescence of the landowner in that use. This is required in order to meet the two pre-conditions for the creation of a highway, that is dedication and public acceptance of the way by use.

11.11. The length of time that is required to demonstrate sufficient user is not fixed under common law, and depends on the facts of the case. The user must be obvious to the landowner, who may rebut any suggestion of a dedication by acts such as putting up a physical barrier, erecting notices stating that the route is not a public right of way, or turning people back. Advertised annual closures would also be effective.

11.12. There is evidence of user on which Members could find that a dedication has taken place under common law. However, officers feel, in the light of evidence of actions taken by the landowners to deny the intention to dedicate, such as the placing of `private' and `no right of way' signs which were defaced, the erection of barbed wire fencing, the locking of gates and closing of gaps, it would not be safe to do so.

12) Comments by the Applicant and the landowner

12.1 The applicant has made the following comments on the draft report:

· She suggests that `whilst 163 user statements were filled in and signed there is no mention of the fact that in the majority of cases the information applied to the entire family and not just the individual filling in the form. This increases the number of `users' of the path way substantially'.

· Mrs. Hamblen states that Bramshott Parish Council `kept open and maintained the claimed footpath point A, B to F.' This path was cleared regularly by them, especially at the time of the storm in 1987 when the path was blocked by fallen trees. The Parish Council `cleared this whole section...making a large seat for public use at the side of this path...This would seem to bring into question the statement made by Mr. Lomax with regard to his turning people away'.

· The applicant refers to the `historical importance of keeping this area open for those who have an interest...[or are] looking for evidence or information about old times'.

12.2 The landowner's representative has made the following comments on the draft report:

It is the landowner's position that no footpaths have been dedicated over the land under common law or the Highways Act 1980.

· The land was occupied by a sanatorium from 1921 until the mid 1960s, and then by a hospital until 1987. Use by the public at large could not have led to dedication because this would have been incompatible with its statutory uses, particularly when it was a sanatorium because `it would have been entirely inappropriate for members of the public to walk onto the Property and it is highly probable that access to the Property would have been restricted in order to prevent the potential spread of disease'.

· The landowner is currently seeking confirmation of the statutory purposes for the holding of the land, but this is taking some time because the Portsmouth Health Authority is no longer in existence. The results of Freedom of Information requests are awaited.

· Extracts of editions of the Liphook Community Magazine from summer 1975 and summer 1987 have been provided to show that the Elizabethan Gatehouse was seen `but once a year', and that the annual fete run by the League of Friends would provide an opportunity to see the Gatehouse. The landowner feels that `this re-emphasises the fact that access to the grounds was only permitted once a year'. It is also felt that the `those in the community of Liphook with good knowledge of the Hospital did not consider there to be footpaths over the Property permitting access to the Gatehouse as of right'.

· Shortly before the closure of the hospital in 1987, the Magazine published an article referring to the importance of the site to the village, and that the future development of it would be confined to the area of the former buildings. There is no indication that members of the public had access to the site, or any footpaths claimed over it. If there had been sufficient use of paths over the site as `to evidence dedication then reference to this is likely to have been made in this article'.

· When the hospital for the elderly was in operation, the grounds were used by patients and their visitors, and there were routes across the site used by staff to reach the hospital. The 1975 article suggests that there 90 staff and up to 75 patients, and therefore there appears to have been `a significant number of people' using the paths, but this was with permission and cannot contribute to the establishment of public rights.

· A draft statutory declaration has been made by Mrs. Peggy Keens, former clerk to the Parish Council. In this Mrs. Keens says that, to the best of her knowledge, `there has not been widespread public use of the Site until very recently'. Access to the Site during its use for a sanatorium `was very strictly controlled and the public did not use it'. She refers to a path from Malthouse Meadows to the hospital, and says that this was used by staff to gain access to the hospital. `It was not used by the general public or visitors to the hospital as it was widely known to be private property'.

· People accessed the later geriatric hospital via the main entrance, which had a tarmac surface. Mrs. Keens' mother-in-law was in the hospital for four years in the late 1960s and early 1970s, when she visited regularly. The only people she saw were staff, patients and their visitors. When people did walk on the Site, `they would just generally wander all over it'. People needing to get from London Road to Radford Park would use a path outside the boundary of the Site, and she refers to a gate at point A on the plan that indicated that the Site was private in nature.

· The Site was bought by a local resident who put up a high fence that was torn down `at least three times' by the public. Before this, there had been a hedge round the Site.

· Public access was only possible on the days of the annual fete, every summer, when all the local people would be invited on Site by the hospital.

· It is the firm belief of Mrs. Keens that `everyone knew that they were not supposed to walk on the grounds, other than on fete day' whilst the hospital was open, and any other access would be trespass. She wrote a letter to the editor of the Liphook Community Magazine stating this in 2004.

· Whilst Mrs. Keens was involved with the Parish Council between 1959 and 1991 she had access to the Definitive Map, which showed no public footpaths over the Site, and `people in Liphook knew this'.

13) Conclusions:

13.1 That a reasonable allegation that the public have acquired footpath rights on the paths on the site of the former King George's Hospital at Liphook is defeated by Crown ownership of the site from 1984 to 1988, thereby reducing the period of user to sixteen years, and preventing a deemed dedication from taking place.

13.2 That a claim under common law for these paths be refused because the evidence does not support the inference that the landowners intended to dedicate the paths as public footpaths.

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

File CR788

Rights of Way Office

Mottisfont Court, High Street,

Winchester SO23 8ZF

IMPACT AREA

IMPACT LEVEL

COMMENTS

WHERE COVERED IN REPORT (Where there are details of how impact could be managed)

Equality & Diversity Impact

Crime Prevention (under Section 17)