Archived decisions

Decision Maker:

Regulatory Committee

Date of Decision:

22 April, 2009

Decision Title:

Application for the addition to the Definitive Map of a bridleway, and to upgrade Farringdon Footpath 4 to bridleway, in the Parish of Farringdon

Decision Reference:

699

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, made under section 53(5) of the Wildlife and Countryside Act 1981, to record a bridleway through Brightstone Copse in Lord's Wood, Farringdon, and to upgrade part of Farringdon Footpath 4 to bridleway. The claim is based on evidence from 46 local residents, who used the paths on horseback and with bicycles between 1956 and 2007. The public was excluded from the site in 2007. The claim is recommended for acceptance.

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.

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 bridleway 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 a Definitive Map Modification Order be made to record a bridleway between Brightstone Lane and Kitcombe Lane in Farringdon, shown on the attached map as A-B, and to upgrade to a bridleway that part of Farringdon Footpath 4 shown between the points B and C.

4.2. Route A-B has a width that varies between 2.5 and 4 metres, and route B-C is 2.75 metres wide.

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 .

2) Claimant:

2.1. The application was made in 2007 by Mrs. S. Oppenheimer and Mrs. I Thomas, of Four Marks.

3) Landowners:

The landowner is the Dulwich Storage Company Limited, of London.

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

4.1. The claimed path runs from the C96, Brightstone Lane (point A on the map), across Brightstone Copse in a south easterly direction, and then curves to run in an easterly direction, running parallel to Farringdon Footpath 4. It joins Footpath 4 at point B and and runs on the same route as the footpath in a south easterly direction to meet Kitcombe Lane (Newton Valence BOAT 32) at point C. It runs through woodland, and the first part from Brightstone Lane slopes uphill.

4.2. The entrance to the path at point A currently has a five-barred wooden field gate preventing entry, and has post and rail fencing flanking both sides of it, with four strands of barbed wire between and above and below the rails. The gate is closed with a substantial chain and padlock. It has the words `LORDS WOOD' written on it. Where the path meets Farringdon Footpath 4, there is a finger post and access is gained to Footpath 4 via a wooden kissing gate, which also has the words `LORDS WOOD' written on it. Alongside this is another five-barred wooden gate, also closed with a stout chain and padlock. This gate has the same words written on it. This gate has similar post, rail and barbed wire fencing alongside it. The length of the claimed route is 526 metres, with the section between A and B being 360 metres and between B and C 166 metres.

5) Background to the claim:

5.1. It appears from the user evidence that the public has enjoyed uninterrupted access for some years through Lord's Wood, in the parish of Farringdon. This use came to an end in 2007, when two substantial wooden field gates were put up at both ends of the claimed path, to prevent the public gaining access to the wood. A wood in this location has been shown on maps dating from the 18^th century, though a feature on the ground following a very similar course to the claimed path only appeared on Ordnance Survey maps from the 1870s. It appears that the wood was used by tenants in the 18^th century, and regularly cut over for coppicing. Had there been any fixed path through the wood at this time on the same or similar line to that being applied for, it is unlikely to have been public in nature.

5.2. Although some of the users were under the impression that Lord's Wood was a part of the Rotherfield Estate, it seems that it has been part of the Chawton Estate for many years, but was sold off in 1938.

5.3. Part of the route is recorded on the definitive map as Farringdon Footpath 4, and its definitive statement is as follows:

From Road U.228 at junction with No. 3 to Parish Boundary

From U.228 northwestwards then southwestwards along 9 ft. wide grass ride through Lords Wood, through field gate, along verge of pasture, over rails at Battle's Cottage, across pasture, through hunting gate, across pasture, over stile, across arable field, over stile, crossing No. 22, through gap, across pasture, and over rails at the Parish Boundary.

The section that coincides with the claimed path is shown in italics.

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 a 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. 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. Map of Farringdon Manor Farm, 1771

This estate map includes `Bridestone' Lane, and `Bridestone Cops' is shown as woodland. This map does not show the claimed path. (See Appendix 1 for an evaluation of historic documents.)

7.2. Ordnance Survey Old Series first edition, 1810

This map records Brightstone Lane, with an area of woodland corresponding to Lord's Wood to the south of it, though the wood has a slightly smaller area and different profile along part of its southern boundary compared to its present extent. Kitcombe Lane is also shown, with a section of road connecting it to Lord's Wood, and this road would appear to correspond to a section of Farringdon Footpath 4, which is also part of the claim. The rest of the claimed route is not shown.

7.3. Christopher Greenwood's Map, 1826

This map is very similar to the Ordnance Survey first edition, and shows Brightstone and Kitcombe Lanes, and the section of Farringdon Footpath 4 in a similar way.

7.4. Farringdon Tithe Map and Apportionment, 1839 and 1840 (HRO 21M65/F7/91/1-2

The map shows Brightstone Lane, Brightstone Copse and Lord's Wood. The claimed path is not shown, and neither is the section of Footpath 4 that appeared on the earlier maps, connecting with Kitcombe Lane. The woodland has a different profile on the tithe map, and extends right down to Kitcombe Lane, as it does today.

7.5. Ordnance Survey County Series Map, 1:2,500, first edition c. 1871

The county does not hold a copy of this map.

7.6. Ordnance Survey County Series Map, 1:2,500, second edition 1895

A route closely approximating to the claimed path is shown on this map, by means of parallel pecked lines. It is braced into the surrounding plot of woodland, indicating that it is included in the recorded acreage of the adjoining land. The claimed path is different from the path shown on the map once it reaches the south eastern corner of Brightstone Copse. On the OS map a path continues in a south south easterly direction to link up with the present Footpath 4, whereas the claimed path continues diagonally across two plots to link with Footpath 4. This map gives no indication as to whether this path is public or private in nature, and what its status is.

7.7. Ordnance Survey County Series Map, 1:2,500, third edition 1909

The path through Lord's Wood is shown on this map in a very similar way to the previous edition. On this edition, however, the path is annotated `F.P.', indicating that it was considered to be a footpath at the time. We do not know from the map itself whether the use that had worn the feature sufficiently for it to be recorded by the surveyor was public or private in origin.

7.8. Highways Act 1980 Section 31 (6) declaration, 1993

Rights of Way Section files contain a copy of a declaration and plan made under Section 31 (6) of the Highways Act 1980, on 15^th April 1993. This consists of a statutory declaration by Charles Scott that he does not intend to dedicate any further public rights of way (whilst acknowledging those that already exist on an attached map) in Lord's Wood. Mr. Scott was informed by Hampshire County Council on 28^th April 1993 that his statutory declaration would be held on deposit for six years, `after which time a fresh plan and declaration should be deposited'. This material does not contain a statement and plan, which should be deposited before a statutory declaration and plan is made.

8) User evidence:

8.1. Forty user evidence forms were received with this application in 2007. A further 15 forms were received subsequently, making a total of 55, disclosing use by 55 witnesses. Each form was accompanied by a map which indicated the route(s) that had been used. Seventeen witnesses were written to asking for interviews, which correspondence resulted in five signed statements. One further witness gave a statement only, making a total of 56 witnesses.

8.2. Appendix 2 is a table that shows the use of the path by 46 people. These are witnesses who have used the route on horseback and with bicycles, both of which uses are supportive of the claim for bridleway status. Forty-five witnesses had used the path on horseback, three with bicycles and seven reported that they had only used it on foot, which is not supportive of bridleway status. The table shows 43 of the horse riders as one witness's evidence could not be included because no dates for use have been given. Another witness is not included because all of her use of the path was with permission of the landowner, and therefore not as of right. A further witnesses works sporadically for the previous landowner and therefore his use was probably not as a member of the public. The seven users on foot are not shown in the table, as their evidence could only be used to support a claim for footpath from A to B, since B to C is already a public footpath.

8.3. This table is, of necessity, a generalisation, but may give a feel for the extent of the use claimed. Frequency of use varies from a handful of times a year to daily, with many users riding the path on a weekly basis. Users were prevented from accessing the woodland by the erection of a locked gate and fencing, and all use on horseback seems to have ceased when this happened in 2007. A summary of the use put forward by witnesses can be found at Appendix 3.

8.4. The earliest reported use of the path was in 1956, and there were two users in that decade, and this was also the case during the 1960s. Ten new users started riding the path in the 1970s, with seven further new users in the 1980s. The bulk of the use was during the 1990s and up to 2007, when there were 30 users. There are 14 witnesses who used the path for more than 20 years.

8.5. Thirty-four witnesses report the obstruction of the path in 2007, and three said that the path had only ever been obstructed by fallen trees, while 6 others said the path had `not been obstructed until now'. None of the users seem to be attempting to use the path since it was fenced off. Some witnesses have marked on their maps where gates are, at point A where the path leaves Brightstone Lane, and at point B, at the junction with Farringdon Footpath 4.

8.6. None of the witnesses recall seeing any gates, stiles or notices. Neither do any mention being stopped, or having heard of anyone else being stopped.

8.7. All of the witnesses say that they had no connection with the landowners of Lord's Wood, except for one, who does and has done occasional contractual work there. Some of the witnesses were unclear about who owned the land. There seems to have been a general perception by some people that Lord's Wood was a part of the Rotherfield Estate, which it is not and apparently never has been, having been included in the Chawton Estate until 1938. Latterly, Lord's Wood had belonged to Baroness Sharples, who sold it on to Mr. Charles Scott. One user erroneously sought permission from Sir James Scott (the owner of the Rotherfield Estate), but then asked Charles Scott, the actual owner. She began riding the route in 1972, and had obtained permission from Baroness Sharples in October 1974, and so only two years of her use can count towards the acquisition of a public right on horseback. Her daughter also sought permission from Sir James. Another had permission to ride on the Rotherfield Estate, but knew this did not include Lord's Wood. One of the applicants had sought permission to ride on the Rotherfield Estate in 1982, because she thought Lord's Wood was a part of it, but realised this assumption was wrong, and then correctly identified the owner. Her two daughters indicated that she had permission from Sir James. A further witness thought the wood belonged to Sir James and rode with someone who had permission to ride in Lord's Wood, and so felt `safe' to ride there. It may be that riding with a person who has permission from the landowner would affect the `quality' of the use of the second rider.

8.8. None of the witnesses said they had used the path in the exercise of a private right. Use of this kind cannot contribute to the acquisition of a public right.

8.9. Witnesses report that they saw other users while riding the path, both locals and strangers, on foot, horseback and occasionally with bicycles. One of the applicants speaks of the path being used extensively, and two users said they used the path because other people did.

8.10. The claimed path runs through an area of woodland where there are many rides, and it is not uncommon in such circumstances to find that people have been using additional routes as well as the way being claimed. `Wandering' over open woodland, not on tracks, does not contribute to the acquisition of a public right, where use must be over a consistent linear route. This area of woodland has many `rides' or cleared tracks in it. Each completed user form was accompanied by a map on which the witness was invited to indicate the ways that had been used. Only one witness had not drawn such a line. All the other maps were examined, firstly to see whether each witness had used the claimed route, and secondly to see what other routes had been used. All the routes used through Lord's Wood were plotted on a map and the frequency of citation of use for each route counted. It emerged that the claimed route received the greatest use by a large margin, and there were no other tracks that could be put forward for consideration as public rights of way. One of the questions on the user evidence forms is `Have you always followed exactly the same route?', inviting a `yes' or `no' answer. The form invites users to show any variations in other colours or symbols. Witnesses can sometimes seem to interpret this as applying to the whole route they have used, of which the claimed path may only be a part. Of the 55 users, 4 gave no answer to this question; 3 of these showed the claimed route on their map with no additional routes being used, while the fourth witness indicated that he had used several other routes in the woodland as well as the claimed path. The majority of users said that they had always followed the same route, and showed that they had not used any other routes than the claimed path. Nineteen witnesses said they had not followed exactly the same route, and all but one of these indicated additional routes in the woodland had been used. What is not possible to say from the forms is the relative frequency of use of all of the routes. Obviously, where a number of routes feature, this may result in reduced frequency of use of the claimed route.

8.11. What can be understood from this evidence is that local people have used a route through Brightstone Copse from Brightstone Lane to Farringdon Footpath 4, on horseback, from the late 1950s and early 1960s, until Lord's Wood was closed off with barbed wire fencing, kissing gates and locked five bar gates in 2007. The erection of these fences and gates 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 1987 to 2007.

8.12. It is not unreasonable to conclude that this use by the public is capable of giving rise to a presumption of dedication under s.31 of the Highways Act 1980. Such a presumption will not arise if there is sufficient evidence that the relevant owners of the land did not intend to dedicate such a right to the public.

9) The Landowner:

9.1. The landowner is represented by an agent, Mr. Richard Scholfield of Woodland Investment Management (WIM) Ltd. Mr. Tim Slade (Rights of Way and Countryside Access Consultant) has made a submission on behalf of the landowner, a summary of which is given below. The full submission is available to Members to read.

9.2. Mr. Slade assumes that there is no historic evidence for the origin of the path, and states that `for an order to be made it would be necessary to show that user evidence indicates that a right of way is reasonably alleged to subsist either under s.31 of the Highways Act 1980...or at common law'. It is Mr. Slade's view that `for dedication to have occurred at common law it would be necessary to show that the landowner had carried out some overt act which a reasonable person would interpret as being his intention to dedicate the way as public'. His understanding that there is no evidence of any such action and so focuses his comments on the question of whether public rights have arisen under statute.

9.3. Under Section 31 of the Highways Act 1980 the law will presume a dedication if there is evidence that the way has actually been enjoyed by the public as of right unchallenged for 20 years. The calculation of the 20 year period is retrospective and the date is taken from the `bringing into question' of the public's right to use the way. Mr. Slade puts forward three `possible events' as candidates for a bringing into question, that is 1^st November 2007, when the application for a definitive map modification was made; July 2007, when a locked gate and fencing prevented any further public access to Lord's Wood; the deposition and the deposition of a statutory declaration under Section 31(6) of the Highways Act with Hampshire County Council by the previous landowner on 20^th April 1993.

9.4. Mr. Slade considers the statutory declaration made by Mr. Scott in 1993 to be very important. The declaration was accompanied by a map at the scale of 1:2,500 showing Weathermore Copse and Lord's Wood, and this declaration acknowledged only those public rights of way recorded on the definitive map and no others. A letter dated 28^th April 1993 from Hampshire County Council acknowledged receipt of this deposit and plan and stated that it would hold the deposit for six years. He outlines the necessary process, which results in sufficient evidence that no additional ways have been dedicated. It is his view that Mr. Scott `made the statement, deposited the map and submitted the statutory declaration all the same time', and the Council's letter of acknowledgement was an indication that `they accepted this as a valid s.31(6) deposit'. Mr. Slade states that he knows of no further declarations having been made.

9.5. Mr. Slade turns his attention to the three events that he considers could be seen as bringing the public's right to use the claimed path into question. If the date of the application was to be taken as serving this purpose, then Mr. Slade refers to the earlier obstruction of the path by a gate and fence and the previous deposit under Section 31(6) as a clear demonstration by the landowner not to dedicate the path as a public right of way. The situation is similar if the obstruction of July 2007 was chosen as the date of bringing into question, in that the declaration indicates that there was no intention to dedicate, in Mr. Slade's view. If the deposit of the declaration is taken as the date of bringing into question, Mr. Slade contends that the evidence for deemed dedication is weak, because in his view three of the seven witnesses were riding in the period 1973 to 1993 with permission, two of the others give answers that need to be tested but are not willing to come to a public inquiry, there was use of multiple routes in the woodland, and some witnesses did not use the path over the whole 20 year period.

9.6. Mr. Slade's conclusions are therefore

· There is no user or documentary evidence of a dedication at common law. Therefore the council would need to rely on s.31 of the 1980 Act if it were to make a modification order.

· For there to be a presumption of dedication under s.31 the council must decide on a date on which the right of the public to use the route was brought into question.

· If the council were to choose one of the dates in 2007 there is clear evidence in the preceding 20 years of lack of intention to dedicate.

· If the Council were to decide that the 1993 deposit constituted `bringing into question' then evidence that the route was actually enjoyed by the public as of right and without interruption for a full period of 20 years is very week indeed, for the following reasons:

· Three of the seven witnesses who claim to have used the route as far back as 1973 did so with permission as not as of right.

· Of the four remaining witnesses two do not cover the full period of 20 years.

· Of the two remaining witnesses one has stated that they have not always followed exactly the same route and the other has not answered this question. If the council were to rely on this evidence it would expect it to be tested at a public inquiry, but both these witnesses have indicated their refusal to attend such an inquiry.

· If these seven witnesses are discounted by the council, as Mr. Slade believes they should be, there are no other witnesses on the bar chart indicated public use during the full period of 20 years preceding 1993.

· The evidence of Mrs. Bonney and Miss Sloper indicates that, at least in the first part of the 20 years preceding 1993, the landowner issued permits to ride the route; a clear intention that he did not intend to dedicate it to the public at large.

· Mr. Slade's overall conclusion is that the evidence he has seen does not indicate that a right of way is reasonably alleged to subsist and therefore no order should be made.

9.7. Mr. Charles Scott, the former owner of Lord's Wood, has provided this investigation with evidence. Mr. Scott owned the wood from 1978 until 2006, when it was sold to the present owner. Mr. Scott was in receipt of a grant from the Forestry Commission, under Dedication Basis III, a scheme which was in operation from 1974 to 1981. As the owner of the woodland, Mr. Scott took the view that he should provide an element of public access to meet the requirements of this scheme. To achieve this end, public access would not be deliberately prevented, and therefore people were not stopped from walking or riding in the wood. Therefore, Mr. Scott considered that any use of the woodland by the public was permissive in nature. It was in Mr. Scott's mind that he would allow public access, and so he spoke to, and reminded, people that he saw in the woodland that their use of it was permissive.

9.8. At the time of his purchase of the land, there were a number of signs in the wood reading `Private - beware snakes' and `Private wood...for a permit to walk or ride please contact Southfield Farm Estate'. Mr. Scott removed the signs referring to the Southfield Farm Estate, and left in place `the more generic "Private" signs'. When these signs eventually deteriorated, early in the 1990s, Mr. Scott put up various `Private' signs to inform people that the woodlands were private property. For many years there was only one neighbouring house to Lord's Wood, and Mr. Scott made a point of introducing himself to the owners so that they were aware that the woodland was private, though he `made it plain that [he] was content for occupants of that neighbouring house to walk their dogs in the wood'. In 1993 he spoke to the head of Rights of Way, concerning the making of a disclaimer under section 31(6) of the Highways Act 1980, acknowledging any existing rights of way over the land, but indicating that he did not intend to dedicate any others. Mr. Scott drew the attention of officers to this document, which was deposited in April 1993. Mr. Scott provided a copy of the letter he sent to Mr. Piper on 2<sup>nd</sup> February 1993, and draws attention to its last paragraph, which reads that he confirms that he had owned the woodland since 1978, and `do not recognise any rights of way other than the long standing publicly documented footpaths'.

10) Consultations with other bodies:

10.1. The following persons and bodies have been consulted about the claim: East Hampshire District Council, Farringdon Parish Council, the local Member, the Open Spaces Society, the Ramblers' Association, the British Horse Society, the British Driving Society, the Trail Riders' Fellowship, LARA, Byway and Bridleway Trust, 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 area respondent of LARA reports that he has never used the claimed path, and does not have any knowledge of others using it. He has only ever seen walkers leaving the woodland to join Kitcombe Lane, which he has used many times.

10.3. The representative of The British Horse Society has no evidence to offer, but the Society does support the claim.

11) Analysis of the evidence:

11.1. The historic and documentary evidence does not prove, on the balance of probabilities, that any part of the path was a bridleway, and thus the application must turn on evidence of use in recent years.

11.2. 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

11.3. 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.

11.4. There are two events which unequivocally bring the public's right to ride horses on the path in Lord's Wood into question, both occurring in 2007. A third event is less clear cut, that of the deposit of a declaration under section 31(6) of the Highways Act 1980 in April 1993 by the former owner of the wood, Mr. Charles Scott. The question of whether a deposit of a declaration under Section 31(6) is a bringing into question has not been decided in the recent case R (on the application of Godmanchester Town Council) v. Secretary of State for the Environment, Food and Rural Affairs.

11.5. Dealing with the two events in 2007, the first occurred in July, when gates and fencing prevented any further public access to the wood. The second date is 16^th November 2007, when the application was made. Both of these events would give a relevant period of 1987 to 2007.

11.6. The evidence in the forms indicates that the only obstructions that would have caused an interruption to use, that is any physical or actual prevention of the public's enjoyment of the way, were occasional fallen trees. Six witnesses said that the path was not obstructed `until now [2007]', and 34 others referred to the gates and fencing, when public access was ended. One user mentioned a stile, but did not indicate on the form where it was. The evidence graph indicates use in every year. There is no requirement that every witness has to have used the path for twenty years.

11.7. To qualify, user must be without force, stealth or permission. None of the witnesses reports having to go through a gate or do anything that would be described as using force to gain entrance to the claimed path, so use appears to have been without force. One witness reports that she did not see others while using the path, but all the other users said they had seen locals and strangers on the path, either on foot or on horseback. Therefore, it would appear that the path was being used in an open way. This is supported by Mr. Scott's statement that he knew that there was public use of the woodland, and he did nothing to deliberately stop it, because some degree of public access was required in return for the payments he received from the Forestry Commission. As to the issue of permission, there is some confusion in the minds of the users about who owned the woodland, some thinking that it was part of the Rotherfield Estate and being aware that permission was required to ride over Estate land. Some therefore sought the permission of the owner of the Rotherfield Estate. Any use of the path under this mistaken impression can be counted as Sir James Scott was not the freeholder. The user by those witnesses who were granted permission by either the Southfield Estate or from Mr. Scott would not count as use as of right and must be disregarded. Such use has not been included in the table at Appendix 1.

11.8. Use must be by the public at large. Use of a way should not consist solely of a particular class of person, such as the employees of a particular employer, tenants of a particular landlord, or customers of a particular business, if it is to be recorded as public. Only one of the witnesses had any connection with the landowner, on an intermittent basis. The use of the rest of the witnesses was as of right in its nature. The location of the path means that those using it come from a wide area around the woodland, and therefore their use qualifies as being by the public `at large'. While it can be said that evidence taken from users living at a number of different addresses might be felt to carry more weight than evidence from the same number of users living at one address, there is nothing to suggest that evidence should be taken from only one user at an address. Even though a number of witnesses come from the same address, officers feel that the quantity of user evidence is enough so as to be capable of giving rise to a presumed dedication at common law.

11.9. None of the witnesses reports having been stopped while using the path, or having heard of anyone else being stopped. This accords with Charles Scott's statement that he did not deliberately stop public access. None of the users recall being told that the path was not public, but this is in conflict with Mr. Scott's assertion that he spoke to those he saw to remind him that use was with his permission.

11.10. Dedication of a public right of way will not be presumed if there is sufficient evidence that the landowner did not intend to dedicate the path as a public right of way. Therefore, the evidence put forward by the past and current owners must now be examined.

11.11. Charles Scott was the owner of the woodland when the bulk of use on the path took place and has provided information about how he viewed, and managed, public access to Lord's Wood. The terms of the grant that he received from the Forestry Commission required that there should be access for the public to the woodland, and Mr. Scott did nothing to actively prevent the public from entering the woods. However, it was in his mind that he did not wish users to acquire public rights over routes in the woodland and that their use was permissive. To this end, he maintained the `private' element of existing signage in the woods, spoke to the occupants of a neighbouring property to emphasise the private nature of the woods, reminded those he met in the woods that the woodland was private and any use was permissive, and deposited a disclaimer under section 31(6) of the Highways Act acknowledging those public paths already in place in the woodland, but no others.

11.12. In relation to this information, it should be noted that none of the witnesses report seeing any notices at all in Lord's Wood, and none of them say that they were ever stopped or told that the path was not public. The witness who worked for Mr. Scott says that he saw no signs of the nature suggested, and did not see Mr. Scott in the woods when he was riding there.

11.13. The fencing of the wood to prevent public access in July 2007 is a bringing into question of the public's right to use the claimed path. There is conflict in the evidence regarding measures (particularly notices and informing users that they were riding with permission) taken to show that the landowner did not intend to dedicate during the preceding twenty year period July 1987 to July 2007.

11.14. Where the 1993 disclaimer under s.31(6) of the Highways Act is concerned, which the landowner might wish to rely upon to show a lack of intention to dedicate during the period 1987 to 2007, the requirement is that the landowner makes a deposit of a statement and plan with the highway authority. The plan should show the extent of the land owned, and the public rights of way that are already in existence. The statement acknowledges the existence of those rights of way, but no others, but offers no protection to the owner against the acquisition by the public of additional rights unless a statutory declaration is filed within ten (formerly six) years.

11.15. What was deposited by Mr. Scott in 1993 was a statutory declaration only. It had not been preceded by a statement and plan. Mr. Slade draws attention to this deposit as evidence that the landowner did not intend to dedicate the claimed path. It may well be sufficient to prevent any inference being drawn under common law that the landowner intended to dedicate any rights of way. However, its effect on section 31 is more debatable. It is clear from the Godmanchester case that the landowner's intention [not to dedicate] means what the users of the way would reasonably have understood his intention to be. In other words, acts negativing an intention to dedicate must be overt and directed at the users. As an alternative, the procedure in section 31(6) (or 31(5), can be adopted, but if a landowner seeks to rely on these as an alternative to acts which are obvious to any user of the path, he surely needs to comply with those statutory procedures, not a hybrid or alternative version, as is the case here. For this reason, officers believe that the 1993 statutory declaration is ineffective to prevent any presumption of dedication arising under the Highways Act. The County Council's acknowledgement letter accepting the deposit, which Mr. Slade says indicates that this was a valid deposit under section 31(6), notes that Mr. Scott wished to disclaim the existence of any public rights of way other than those already shown on the definitive map over Lord's Wood and Weathermore Copse. There is nothing in the letter which refers to the validity of the deposit under the terms of the section. The highway authority undertakes to do nothing other than hold these deposits and make them available for consultation by the public. Accordingly, there is doubt about the effectiveness of the deposition of a disclaimer under section 31(6) in 1993 to demonstrate the intention not to dedicate a public bridleway over the claimed path.

11.16. The other event that could be interpreted as a bringing into question is the making of the application in November 2007, making the relevant period November 1987 to November 2007. This period includes the actions Mr. Scott states that he took and discussed above, the section 31(6) deposit and, as Mr. Slade points out, the putting up of fences and gates that closed off Lord's Wood to public access. The latter action brought home to the public that the landowner did not intend to dedicate any public rights in the woodland, and it is mentioned by 40 of the users. Therefore, there cannot be any presumption of dedication in the period November 1987 to November 2007.

11.17. The action of fencing off the wood in July 2007 would seem to give rise to a reasonable allegation that the public have acquired bridleway rights, on the balance of probabilities, over the path under section 53(3)(c)(i) of the Wildlife and Countryside Act (see the box at start of this report). It is possible that the unrecorded section of the claimed path (A to B) is subject to the `reasonable allegation' test that it subsists as a right of way, while the section that is already a public footpath (B to C) may have to meet the test of `subsisting' as a right of way. Further, where there is a conflict in the evidence, case law [R. v. Secretary of State for Wales ex parte Emery 1996]. provides guidance that a public inquiry should be held so that evidence can be tested. As both parts of the claimed route are subject to the same evidence, it is considered expedient that they should be dealt with together.

11.18. 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.

11.19. 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.

11.20. There is evidence of user on which Members could find that a dedication has taken place under common law. However, even though officers feel that the quantity of user evidence is capable of raising a presumption of dedication at common law, as mentioned in paragraph 11.15 it may well be that the section 31(6) deposit made by the former landowner in 1993 is sufficient to prevent an inference of dedication being drawn.

12) Comments by the Applicant and Landowner

12.1 One of the applicants, Mrs. Ingrid Thomas, wishes to have it recorded that, although Appendix 3 states that she and her two daughters Jess and Charlotte drew a route on their maps that seemed not to include the section from A to B, but only B to C, all three of them have ridden that part of the claimed path from A to B.

12.2 The representative of the landowner Mr. Slade has the following comments:

· Paragraph 7.8 will lead the reader to conclude that no plan was deposited with the statutory declaration in 1993, and he has requested an amendment, which has been made.

· Paragraph 11.15 is contested. Mr. Slade feels that the wording of the acknowledgement letter sent by the Chief Executive's `specifically refers to a statutory declaration and plan disclaiming the existence of other rights of way'. He further states that `since s.31(6) is concerned exclusively with the issue of non-intention to dedicate, it would be unreasonable of the Council to construe the statutory declaration and plan as having any other meaning'. Mr. Slade has requested that a copy of the letter from the landowner's solicitors and the Council's reply be appended to the report `so that Members can draw their own conclusions', and these documents appear at Appendix 4.

· Mr. Slade has requested that his conclusion is quoted in full, and this has been done.

· He considers that the `statutory declaration and plan deposited in 1993 is a clear demonstration of non-intention to dedicate both in relation to the common law and s.31 of the Highways Act. Therefore it interrupts the period 1987 - 2007 and the only reasonable conclusion is that a right of way, as claimed in the application, does not subsist'.

13) Conclusions:

13.1. It is considered that it would be unsafe to recommend that Members find that a common law dedication of a public bridleway has taken place.

13.2. Officers are not satisfied that a public bridleway subsists, but are satisfied that there is a reasonable allegation that a public bridleway subsists. Therefore, in order to test that evidence in accordance with the guidelines in the Emery case, it is recommended that an order be made.

13.3. The width of the path from points A and B varies between 2.5 and 4 metres, and between points B and C is 2.75 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 determine applications for Definitive Map Modification Orders made under s.53 Wildlife and 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 CR1006

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)