Archived decisions

Decision Maker:

Regulatory Committee

Date of Decision:

1 July 2009

Decision Title:

Proposal to record a path between Salisbury Road and Whinwhistle Road in Copythorne Parish as a public right of way

Decision Reference:

806

Report From:

Director of Culture, Community and Rural Affairs

Contact name:

Colin Piper

Tel:

01962-846043

Email:

[email protected]

EXECUTIVE SUMMARY

1) Summary of decision area:

1.1. An investigation into the history of a path on the boundary of Copythorne and Wellow Parishes has revealed evidence that the route has been in existence for many years and is currently used by the public on foot, bicycle and horseback. It is considered that the public has acquired a right of way, through a common law dedication, and it is proposed that a Definitive Map Modification Order be made to recognise this status.

2) Legal framework for the decision:

2.1. WILDLIFE AND COUNTRYSIDE ACT 1981: (53)

Duty to keep definitive map and statement under continuous review:

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

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

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

b) the expiration... of any period such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path;

c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows -

i) that a right of way which is not shown on the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way [to which this Part applies]

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

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

2.2. PRESUMED DEDICATION AT COMMON LAW:

Use of a way by the public without secrecy, force or permission of the landowner may give rise to an inference that the landowner intended to dedicate that way as a highway appropriate to that use, unless there is sufficient evidence to the contrary. Unlike dedication under S.31 Highways Act 1980, there is no automatic presumption of dedication after 20 years of public use, and the burden of proving that the inference arises lies on the claimant. There is no minimum period of use, and the amount of user which is sufficient to imply the intention to dedicate will vary according to the particular circumstances of the case. Any inference rests on the assumption that the landowner knew of and acquiesced in public use.

3) Summary of issues to be decided:

3.1. The primary issue to be decided by this Committee is whether there is evidence to show that the public right of way 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 public right of way is considered to subsist then the route, status and width of that way must also be determined and authority is required for the making of an Order to record that right on the definitive map.

4) Recommendations:

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

1) Purpose of report:

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

2) Claimant:

2.1. There is no claimant in this case, the investigation has been initiated by the Hampshire Countryside Access Forum following completion of a project to identify `lost ways` that are needed for contemporary public access.

3) Landowners:

3.1 There is no known owner for the vast majority of the route. The Department of Transport own a very small portion, at the south-western end, probably linked to the recent improvements to the A36.

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

4.1. The path runs from the Salisbury Road (A36) north-eastwards for about 200 metres to Whinwhistle Road. It is a natural continuation of Blackhill Road to the south west. The route is bounded on both sides by earth banks and mature trees set between five and seven metres apart. Down the middle of the enclosed lane is a professionally surfaced path about 3.0 metres wide. There are no barriers or gates across the route, but at its junction with the Salisbury Road the useable path has been narrowed to 1.5 metres between fences and ramped to gain access to the main road. It is believed that this is a fairly recent alteration to allow for continued access to the Salisbury Road following highway improvements that raised the level of the main road.

5) Background to the claim:

5.1. In recent years a project called `Discovering Hampshire's Lost Ways' has identified a number of routes around the county where the research carried out for the Countryside Access Plans showed a need for public access and where there is also evidence for the existence of a public right of way. Although this route is currently being used by the public, it is only by recording rights on the definitive map that the future of the path, as a public right of way, can be secured. The Countryside Access Forum has asked the Definitive Map Team to bring forward some of these routes for consideration by members so that they can be recorded on the definitive map if the evidence supports the existence of a public right of way.

5.2. This route was the subject of debate in 1973-74 when Wellow Parish Council gathered evidence of use with the intention of getting the route recorded on the definitive map. At that time the only method of updating the map was through a periodic review of the whole county. The passing of the Wildlife and Countryside Act in 1981 allowed highway authorities to make orders for individual paths to be added to the map, but this route has never been the subject of a formal application and the evidence from 1974 has not been acted upon.

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, whether as a footpath, bridleway, restricted byway or byway open to all traffic.

6.2. Any changes to the definitive map must reflect public rights that already exist. It follows that changes to the definitive map must not be made simply because such a change would be desirable, or instrumental in achieving another objective. Therefore, before an order changing the definitive map is made, members must be satisfied that public rights have come into being at some time in the past. This might be the distant past (proved by historic or documentary evidence) or in the recent past (proved by witness evidence).

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

6.4. The burden of proof in these matters is `on the balance of probabilities', so it is not necessary for evidence to be conclusive before a change to the definitive map can be made. If there is genuine conflict in the evidence, for example between the evidence of users on the one hand and landowners on the other, members should make an Order so that the evidence can be tested at a public inquiry. However, this is not a step which should be taken simply to avoid making a difficult decision.

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

7) Documentary evidence:

7.1. 1759 Taylor's Map

This is not a particularly accurate map, but it is possible to identify the path in question. It appears as part of a very long, continuous road or track, shown by pecked lines and coloured brown, that runs in a fairly straight line from the New Forest to the bridge at Wellow Mill. The southern `spur' of Whinwhistle Road, going south from point B, does not appear on this map.

7.2. 1791 Milne's Map

This is a better quality, more accurate, map and the alleged path is clearly shown as part of the same long, continuous route from the forest to the bridge at Wellow Mill. Again, the southern spur of Whinwhistle Road does not appear on this map.

7.3. 1810 Ordnance Map (1 inch to 1 mile)

This map shows the route in the same manner as Milne's map of 1791.

7.4. 1826 Greenwood's Map

Again, the claimed route is part of a much longer route shown by parallel pecked lines. This map shows, for the first time, the southern spur of, what is now Whinwhistle Road.

7.5. 1842-44 Tithe Maps

The Eling Tithe map of 1842 does not show the path in question, but it is situated on the very edge of the map, on the boundary of East Wellow Parish. This map does show Blackhill Road and Whinwhistle Road by a combination of solid and pecked lines and coloured brown. The East Wellow Tithe Map, made in 1844, again has the alleged path on the very edge of the parish. The very end of the path in question, where it meets the Salisbury Road, is shown by brown colouring that indicates the existence of a highway of some description.

7.6. 1870 Ordnance Survey County Series Map (25 inches to 1 mile)

This map shows the alleged path by solid lines, set about six metres apart, on the same alignment that it has today. The route has been given the parcel number 16 which the accompanying Book of Reference describes as a `Public Road'.

7.7. 1895 Ordnance Survey County Series Map (25 inches to 1 mile)

This map shows the path in the same manner as the earlier map of 1870. There are no lines across the path to indicate the existence of a barrier or gate of any description.

7.8. 1908 Ordnance Survey County Series Map (25 inches to 1 mile)

There is no change in the depiction of the route compared to the earlier OS map of 1895.

7.9. 1929 Handover Maps

These maps shows those routes that the Rural District Councils considered to be publicly maintainable highways when responsibility for their upkeep was handed over to the County Council. The route does not appear on the Romsey map but it is shown on the New Forest map. It is highlighted with a solid black line, a notation that does not appear in the legend, and has been annotated "Bridle Path".

7.10. 1943-44 Wellow Parish Council Minutes

22 April 1943 - Repairs to Footpath Salisbury Road to Wind Whistle

It was reported that the military had damaged this in their last military exercise and the Clerk was instructed to write to the proper authority claiming damages.

15 July 1943 - Claim damages to Black Hill cut

The Clerk reported that he had accepted the offer of £3 received from the Military Authorities for damage done by troops to the entrance to the footpath from Black Hill to Wind Whistle Road. The Council confirmed this acceptance and the Clerk was instructed to have the repairs put in hand.

21 October 1944 - Footpaths

Mr Batten was asked by the Council to inspect the Black Hill - Wind Whistle footpath and report on its condition and was authorised to have it re-gravelled if necessary.

1 June 1950 - Repairs to Footpath Black Hill to Whinwhistle

The Clerk was instructed to have 4ft concrete posts erected at each entrance to this footpath in order that ingress was denied to motor traffic.

7.11. 1956 Memo from County Surveyor to County Secretary

The memo is entitled `Whinwhistle Farm, East Wellow' and although there is no map with the letter it is obvious that it is referring to the alleged path. It reads in part:

"The length B to C on the plan, which is actually in the area of the New Forest Rural District, is not at present shown in any way as a public highway. It would appear, however, that on the map deposited with the County Council by the Rural District Council...this length was shown as a bridle path. In view of its usefulness I, therefore, suggest that it should be added to the map prepared under the National Parks and Access to the Countryside Act 1949, at the next review as a bridleway."

There is no evidence that, at the two subsequent reviews in 1958 and 1964, this route was considered for inclusion on the definitive map.

7.12. 1963 Ordnance Survey National Grid Map (1/2500 scale)

The path is shown on this map by pecked lines set between solid lines about six metres apart. There is a solid line across the path at the south-western end that would indicate the existence of a gate or barrier.

7.13. 1967 Letter from Wellow Parish Council to County Land Agent

Dated 22 June the letter reads, in part:

"During recent Council meetings various matters concerning the condition of footpaths used by the parishioners were raised and I have been instructed to inform you of them and request you to put them in a better state of repair. 1) The footpath between the C17 (Whinwhistle Road) and the A36, has deteriorated, being extremely muddy during wet weather. We are not absolutely sure whether this path is in the parish of Copythorne or Wellow..."

7.14. 1973 Correspondence between Wellow Parish Council and County Council

18 May 1973, Parish to County

"My Parish Council are concerned about the state of the above footpath which lies on the boundaries of Wellow and Copythorne. There appears to be a right of way but it does not appear as such on the definitive maps. Could you find out for us which authority is responsible for its upkeep?"

21 May 1973, County to Parish

"It is confirmed that the path is not shown as a right of way on the definitive map. The assumption must be that it was not claimed as a public footpath and, therefore, its maintenance is outside the jurisdiction of any local authority. In view of the concern shown by your parish Council, it is suggested that they approach the land owner to ascertain whether or not he would be willing to dedicate use of the path to the public."

30 September 1973, Parish to County

"My Council are concerned with the fact that this footpath is not recognised as such on the Footpath Definitive Map. As it is in frequent use is there any possibility of it being recognised as a footpath with an official number? As it exists at present only half of it is in Wellow and the other half is in Copythorne. Copythorne are obviously uninterested in it as only Wellow residents use it."

2 October 1973, County to Parish

"I enclose a map of the area and hope you will be good enough to indicate the line of the path to which you refer. Would you also please arrange for completion of the enclosed statement forms and return all documents to me. Provided your witness statements substantiate the claim, the path will be shown on the next review of the definitive map."

2 February 1974, Parish to County

"I enclose copies of the form you sent me recently for completion in respect of placing the above footpath on the Definitive Footpath map. "

The forms referred to are from local residents detailing their use of the path. This evidence is set out in paragraph 8 below. Due to a change in legislation there has been no "review" of the definitive map since 1974, therefore the evidence was not acted upon.

7.15. 1977 Ordnance Survey National Grid Map 1/2500 scale

The route is defined on this large-scale map by parallel solid lines down the middle of which is a single pecked line which is annotated "Path (um)" At the south-western end there are partial solid lines across the mouth of the track which appears to represent a staggered barrier, and at the north-eastern end there are two dots which are annotated "Posts".

8) User evidence:

8.1. User evidence consists of the original six forms or statements submitted by Wellow Parish in 1973/74, plus three short statements from members of the Cyclists' Touring Club made in the last few months. The officers have not conducted a wider survey of users because it is considered that the documentary evidence combined with the user evidence detailed below supports a reasonable allegation for the existence of a public right of way. A summary of the users is as follows:

8.2. Ms P Cossburn of East Wellow (2009)

"I can confirm that during the last 25 years I have regularly used this path, locally known as `The Cut'. I have used it as a footpath to access the New Forest at Black Hill on average twice per week since coming to live at East Wellow in 1987. The path is frequently used by walkers, cyclists and horseriders to avoid the path alongside the A36. The surface has been well maintained and the drainage much improved in recent years which makes it much more acceptable for use by cyclists. I know of numerous other Wellow residents who use this path regularly."

8.3. Mr R Eales of Whinwhistle Road (1973)

Mr Eales alleges use on foot from 1923 to 1973 for `shopping'. He has seen others use the path on foot, on horseback and with vehicles.

8.4. Mrs A Finmore of East Wellow (1973)

Mrs Finmore claims she used of the path on foot and horseback between 1936 and 1973. She adds:

"I've been on the Parish Council for 25 years and have seen all the residents of Whinwhistle constantly using this short cut to get to the village shops, children riding bicycles to school and pony riders. Now that we have such a large increase in horses in Whinwhistle this little lane is more than necessary."

8.5. Mr G Godwood of Canada Common (1973)

Mr Godwood used the path from 1933 to 1973 on foot and horseback and has seen others walking and riding horses. He says:

"Many years ago RDC erected posts to stop vehicles using path. This has been a footpath as long as any living person can remember."

8.6. Mr W Mansbridge of Crawley Hill (1974)

Mr Mansbridge frequently used the path on foot between 1910 and 1974. He says: "It is used by huntsmen and pony tracking to the forest."

8.7. Mr F Melsom of West Wellow (1973)

Mr Melsom used the path on foot and bicycle from 1945 to 1973. He has seen other people use the route on foot, horseback, cycle and with prams. He mentions the existence of posts at each end to keep ponies from rushing in to main road.

8.8. Mr J Nicholson of East Wellow (1974)

Mr Nicholson walked the path 160 times per annum between 1959 to 1974.

8.9. Mr E Painter of Whinwhistle Road (c1973)

Mr Painter submitted a signed statement which is undated. It reads, in part:

"I am now in my ninety second year. This path was always a public right of way for all traffic, except wheeled traffic. The path was always kept in repair by Embley and Paultons Estates. In 1894 the path was repaired, Embley Estate supply the gravel, the Paultons Estate found the labour. In that year on a Saturday I was with my father repairing the path, I was 12 years of age. In 1926 I spoke to the Copythorne Parish about the state of the path, a committee of the Wellow and the committee of Copythorne Parish met at the Salisbury end of the path and agreed to share the expense of repairs to the path and drains. I was asked to carry out the repairs, which I did. I found the gravel and labour, Mr Cole, clerk to Wellow Parish Council settled with me for the amount, which was £8. Since then the path was repaired by the Romsey District men, and cement posts and rails was placed to keep the forest ponies back.

8.10. Mrs A Rackham of Wellow (2009)

"As a family we have regularly used this track since we came to Wellow in 1984. Although much of the track lies within Copythorne Parish, any maintenance has been done either by Wellow parishioners with gravel supplied by Wellow Parish Council or by one of the Wellow parish councillors. I have been involved in the past when serving on the parish council. The track in question is in constant use by cyclists, walkers and horseriders, all year round."

8.11. Mr I Taylor of Wellow (2009)

"I can confirm that I have used this path to cycle from Whinwhistle Road to Blackhill Road on a number of occasions to avoid having to cross the A36 at the A36/Whinwhistle Road junction. I have also regularly observed the path being used by walkers and equestrians in particular."

8.12. Mrs R Willey of East Wellow (1973)

Mrs Willey claimed use on foot, twice daily, from 1934 to 1973. She has seen other people use the route on foot and horseback `very frequently'. She adds:

"Since I moved into the area in 1934 I personally have always understood this to be a public right of way and have continuously used it as such without hindrance. Prior to the introduction of a cattle grid at the junction of Blackhill Road and Salisbury Road, concrete posts were erected, presumably by the RDC, to slow the speed of forest ponies passing from the right of way to the common land opposite and vice versa."

9) The Landowner:

9.1. Department of Transport

No comment

10) Consultations with other bodies:

10.1. Wellow Parish Council

No comment, but see below.

10.2. Copythorne Parish Council

The parish clerk has written to say:

"As a resident of Wellow since 1977 and the former clerk of Wellow Parish Council between 1977 and 2007, I can confirm that the track has, and continues to be used, as a footpath by the general public. As the track forms the boundary between Copythorne and Wellow Parishes there has always been a reluctance on the part of the parish councils to incur expenditure on maintenance. However, when the A36 was upgraded several years ago, Wellow PC arranged for the contractor to dig out ditches and resurface the track which resulted in a much improved `footpath', particularly at its lower end. The track is well used and much appreciated by the local population and its addition to the definitive map will be well merited."

10.3. Test Valley Borough Council

No comment

10.4. New Forest District Council

The Principal Engineer has written to say that:

"After consultation with local members we are pleased to be able to support the designation of this path as a public right of way."

10.5. Local Member (Wellow) - Councillor Perry

Councillor Perry has known this track for the 30 years he has lived in Wellow. He has observed that It is demonstrably well used by the public, including horse riders.

10.6. Local Member (Copythorne) - Councillor Heron

No comment

10.7. Ramblers Association

The Footpath Officer for the Romsey Group has replied to say:

"Our group welcomes a possible inclusion of this track on the definitive map. This track is heavily used by walkers and horse riders, who gain access to Blackhill Common, in the New Forest National Park, on the south side of the A36. I understand that the surface of the track was repaired by the road contractors when the A36 was improved at Blackhill a few years ago. Apart from horse droppings, the track is in good condition."

10.8. British Horse Society

The County Access and Bridleways Officer has commented as follows:

"This is part of a community circuit used by local riders. It leads to a straight crossing over the A36 into the forest. This has good visibility, and riders have space to wait for gaps in the traffic."

10.9. Cyclists' Touring Club

The Secretary of the Hampshire Group has responded as follows:

"I have used this path at irregular intervals since the late 1980s and it is now very good for cycling as it has a good surface. Its main advantage is that it avoids a difficult junction and use of the busy A36. The crossing of the A36, where the track exists onto the A36, has better visibility."

10.10. Environment Department

No comment

10.11. Hampshire Highways

No comment

11) Analysis of the evidence:

11.1. From the early maps it can be said that this path has physically existed for at least 250 years. It is part of a substantial 'highway' on Taylor's Map of 1759 and appears on all subsequent maps to the present day. It is the only route in the locality that runs north from the Salisbury Road until the construction of the southern spur of Whinwhistle Road at some time between 1810 and 1826.

11.2. It is most likely that this route was an all-purpose highway. There were no other north-south routes for the public to utilise in this locality until the period 1810-1826, and even after that date there is no physical impediment to use by vehicles until 1950 and the erection of posts by the parish council. The strongest evidence for the existence of vehicular rights is the description of the route in the OS Book of Reference of 1870 as a `Public Road' Thereafter, the documentary and user evidence points to a decline in its importance with use primarily by walkers, cyclists and horse riders.

11.3. Mr Painter, who was born in 1882, says that it was a public right of way "except wheeled traffic" and all other references to the route after the turn of the last century have been as a footpath or bridleway. The Handover Map of 1929 describes it as a bridleway and its use after that date is consistent with that description. Many of the references to the path in the various letters and minutes describe the route as a `footpath' but it is obvious that it was also being used by cyclists and horse riders at this time.

11.4. It would seem very likely that the location of the path, forming the boundary between Copythorne and Wellow Parishes, New Forest and Test Valley Districts and Embley and Paultons Estates has been a factor in its exclusion from the definitive map. The path actually falls in Copythorne Parish, but those that have used it are virtually all from the Wellow area. No one has claimed responsibility for the path, although repairs have been carried out on an ad hoc basis, by a number of bodies, over the years.

11.5. There is evidence of use by 11 members of the public from 1910 to the present day with no record of any disruption to their access. All have walked the path, some have cycled and others ridden horses. The route is still being used by walkers, cyclists and horse riders. The only evidence of an obstruction to the route is mention of posts, erected by the Parish Council in 1950, to stop use by motor traffic but this does not appear to have had any impact on other types of user.

11.6. Although this route might originally have been an all-purpose highway, any rights that may have existed for mechanically propelled vehicles will have been extinguished by the Natural Environment and Rural Communities Act of 2006, leaving rights for walkers, cyclists, horse riders and horse-drawn vehicles. This type of right of way is known as a restricted byway. However, the documentary and user evidence post circa 1880 points to the route having a reduced role in the local highway network and the status that would best reflect the use after this date would be a bridleway.

12) Conclusion:

12.1. A public right of way is reasonably alleged to subsist on the route A-B as a result of deemed dedication at common law, based on the actions of the landowner and use by the public. The useable width of the path is 3.0 metres.

12.2. Historically this was probably an all-purpose highway and therefore the status that best reflects that usage is a restricted byway. However, the evidence for this is not overwhelming and members might feel that it is more appropriate to record the route as a bridleway based on documentary evidence and usage after, approximately, 1880.

Links to the Corporate Strategy

Yes

No

Hampshire safer and more secure for all

Maximising well-being

Enhancing our quality of place

OR

This proposal does not link to the Corporate Strategy but, nevertheless, requires a decision because: the County Council, in its capacity as " surveying authority", has a legal duty to amend the definitive map on the discovery of evidence that a right of way which is not shown in the map and statement, subsists or is reasonably alleged to subsist.

Section 100 D - Local Government Act 1972 - background documents

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

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

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

Document

Location

File: CR432

Rights of Way Office Room 200

User evidence

Mottisfont Court

Documentary evidence

High Street

Correspondence

Winchester