Archived decisions

Decision Maker:

Regulatory Committee

Date of Decision:

2 September 2009

Decision Title:

Proposal to make a Definitive Map Modification Order to correct the line of Over Wallop Footpath 3

Decision Reference:

898

Report From:

Director of Culture, Communities and Rural Affairs

Contact name:

Emma Noyce

Tel:

01962 845319

Email:

[email protected]

EXECUTIVE SUMMARY

1) Summary of decision area:

1.1. The Rights of Way section has discovered that the depiction of Over Wallop Footpath 3 on the current edition of the Definitive Map and Statement is at odds with the path as shown on previous editions of the Map. Evidence suggests that a mistake was made in the production of an earlier edition of the Map. It is therefore recommended that a Definitive Map Modification Order be made to correct this error.

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: -

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

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.

3) Summary of issues to be decided:

3.1. The issue to be decided by this Committee is whether there is evidence to show that the current depiction of Footpath 3, Over Wallop, is incorrect and requires modification.

4) Recommendations:

4.1. That a Definitive Map Modification Order be made to amend the Definitive Map so as to show Footpath 3 Over Wallop on line A-B-C (Appendix 1). The particulars described in the Definitive Statement for this footpath to remain unchanged.

1) Purpose of report:

1.1. The purpose of this report is to set out the facts of the case to enable Members to decide the correct line of Footpath 3 Over Wallop. If Members decide that the line of the footpath as currently shown requires modification, then authority is sought for a Modification Order under Section 53 (c) (iii) Wildlife and Countryside Act 1981.

2) Claimant:

2.1. There is no claimant in this matter. This investigation has taken place because the County Council has become aware of an anomaly on the Definitive Map. The County Council has a continuous duty to keep the map and statement under review under section 53 (2)(b) of the Wildlife and Countryside 1981.

3) Landowners (please refer to the map attached to this report):

The land of A-B-C is not registered with the Land Registry. Notices, marked for the attention of the landowner, have been posted on site but no individuals have come forward in response. Over Wallop Parish Council have indicated that they own the land over which route A-B passes, but officers have not had written confirmation of this. Route B-C passes to the east of land registered to the Winchester Diocesan Board of Finance (who have been notified of this investigation, but have not, at the time of writing, responded).

The title of D-E is registered to Graham and William Carr of Stonor Farm, Stonor, Henley on Thames. E-F is registered to Mr and Mrs Pearce of Suddern Farm House, Over Wallop. Both parties have been informed of the investigation.

The ownership of G-B is not registered and no owners have come forward in response to the notices posted on site.

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

4.1. Route A-B runs northwards from the C124 (Salisbury Lane) along the eastern edge of a grass playing field. The line of A-B skirts the edge of the cricket outfield. The path has no boundary to its western edge and is bounded by a spinney to the east. At its northern end the path passes the foundations and remnant walls of a (now-removed) structure to the east to meet Over Wallop Footpath 1.

4.2. Route B-C runs northwards from Over Wallop Footpath 1. The path is bounded along its entire eastern edge by a substantial wall which forms the boundary of Suddern House. The southern half of B-C is bounded to the west by a line of hedges, trees and fencing. This section of path is not surfaced. The northern half of this path passes along the grass verge on the eastern edge of a tarmac access road (which leads to the Parish Church). The path meets the B3084 (Station Road) at C, at which point there is a wooden `footpath' fingerpost, erected by Hampshire County Council, pointing southwards along the same path.

4.3. Officers have not walked the length of D-E as it is not possible to do so. From the parts of the `path' which are visible the following has been observed: Route D-E runs northwards from the C124. At the point it leaves the C124 it is a surfaced track which runs along the western edge of a compound which looks to be used for the storage of large containers. From point E, looking southwards, there is a post and wire fence, and high vegetation. There is no evidence of a path leading southwards from point E to point D.

4.4. Officers have not walked the southern end of path E-F. From point E, looking northwards, there is a post and wire fence. There is a stile in this fence providing access to Over Wallop Footpath 2. There is no visible path leading northwards from point E, and there are a number of temporary and more permanent stock control fences across the line of E-F. The northern half of E-F forms the access drive to Suddern House. At the point it meets the B3084 there are two substantial wrought iron gates (open when the site was visited by officers). The path continues southwards along the tarmac access drive to Suddern House.

4.5. Although not under consideration for the purposes of this report, it is clear that there is a very well worn route between G and B. This route meanders through a spinney.

5) Background to the investigation:

5.1. The most recent (4^th Edition) Definitive Map was published on the 1^st January 2008. This map shows Over Wallop Footpath 3 following route D-E-F. Following the publication of this map the owners of Suddern Farm contacted the Rights of Way department to report that members of the public were attempting to walk down their driveway (E-F) instead of the route the landowner believed to be the public right of way (B-C).

5.2. Officers did some preliminary research into the matter and it became clear that the location of this path, as shown on various editions of the Definitive Map, had altered from time to time and the current mapping did not correspond with the definitive statement for the path.

5.3. This matter falls to the Regulatory Committee to determine as part of Hampshire County Council's duty to keep the Definitive Map and Statement under continuous review.

6) Issue to be decided:

6.1. The issue to be decided by this committee is whether there is evidence to show that the definitive map requires modification. More specifically, members are asked to consider whether or not an error was made in the preparation of the 3^rd edition of the Definitive Map of 1964, which now requires correction.

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 there is evidence to show that the route as shown on the current edition of the definitive map is incorrect, and that a modification Order should be made to show the correct line of the route.

6.3. 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.

6.4. Good quality copies of the documents referred to in this report are available for inspection in the offices of the Rights of Way section. Members are urged to inspect these when considering this report.

7) Documentary evidence:

7.1. Ordnance Survey County Series Mapping, 1870-1908

7.1.1 The first edition of the Ordnance Survey county Series maps (published in or around 1870) shows a double pecked line in the location of A-B, which probably represents a pathway. A substantial trackway is shown in the location of D-E. This feature has the parcel number 212, the book of reference which accompanies this map gives 212 as `Road'. There are no apparent obstructions along the route of B-C, though for the most part the specific route is not illustrated, save for the northern part of the route which is shown enclosed by solid lines. E-F is shown in double pecked lines as a continuation of D-E. No path is shown along the line of G-B.

7.1.2 The second edition of the County Series map (c.1895) is much the same as the first. The key differences are that there are solid lines at point C and F separating the paths from the road. There are two solid lines across path B-C at the north and south boundaries of what is now the rectory.

7.1.3 The third edition of this map (c.1908) is again similar, though this time route A-B is annotated FP, given as Foot Path in the legend.

7.1.4 Though these maps are of use in showing the physical features which may or may not have existed in the late 19^th century, they do not indicate whether the routes shown on them are public or private and are of limited value in the assessment of this path.

7.2. Draft Definitive Map c 1952

The National Parks and Countryside Act 1949 required every County Council to survey the rights of way in their area and prepare a draft map of those paths. On 17^th December 1951 the County Surveyor wrote to Over Wallop Parish Council, enclosing a draft map of public rights of way and requesting the Parish Council's comments.

The County Council does not have the actual map sent to the Parish Council, though it does have in its possession two maps which are likely to be have been prepared in conjunction with that sent to the Over Wallop Parish Council. The two maps differ slightly. Both are undated and untitled.

The first map (Draft Map A) shows a path along the alignment of D-E and E-F. The second map (Draft Map B) shows a path on the alignment of A-B and E-F. The part of the path along E-F appears to have been struck out with pencil markings.

On the 26^th October 1953 the Clerk of Over Wallop Parish Council wrote to the County Council stating "

"Footpath No.3 by Suddern House

In our copy rough draft map this was shown on the east side of Suddern House [E-F]. The correct line is along the west side of that property [B-C]...In our copy draft map the path is still shown on the east side of the house, whiles in the copy map at Stockbridge it is shown in its correct position along the west side of the property. Can our copy draft map be rectified to correspond?"

On the 2^nd November 1953 the County Surveyor replied to the Parish Council stating:

"...the shewing of No.3 at Suddern house on the east side of the property is a copying error and can be amended on the map in your possession".

This would suggest that after November 1953 copies of the Draft Definitive Map held on deposit for public comment at both the District Council and Parish Council offices showed Footpath 3 following route B-C at its northern end and, probably, A-B at its southern end. No formal objections were received to the draft maps following the clarification by the Parish Council in November 1953.

7.3. 1^st Edition Definitive Map 1957

Following a lengthy consultation process the 1^st edition of the Definitive Map of public rights of way was published in 1957. This map shows FP 3 following route A-B-C.

7.4. 2^nd Edition Definitive Map, 1958

In March 1957 all Parish Councils were asked to suggest any amendments which could be made to the Definitive Map. As far as officers can tell, over Wallop Parish Council did not suggest any amendments. Therefore, in 1958 the second edition of the Definitive Map was published showing Footpath 3 following A-B-C.

7.5. Draft 3^rd edition Definitive Map, 1958-1964

Following the publication of the 2^nd edition map, a draft 3^rd edition was produced. This map shows Footpath 3 following line D-E-C. There is no record of any legal Order affecting the route of Footpath 3 between 1958 and 1964 (in fact, officers have no evidence of any legal Order ever having affected the route of this path) and no record of any comments regarding the change in the depiction of the path as mapped.

7.6. 3^rd Edition Definitive Map, 1964

The 3^rd edition of the Definitive Map published in 1964 shows the southern half of Footpath 3 on route D-E. The northern half of the route commences at point E and terminates at approximately point C.

7.7. 4^th Edition Definitive Map, 2008

The 4^th edition of the Definitive Map shows the Footpath 3 following route D-E-F. Again, Officers are not aware of any legal Order which would have affected the route of this path between the publication of the third and fourth editions of this map.

7.8. Definitive Statement

Each definitive map is accompanied by a definitive statement which describes the route of the path. The definitive statement which accompanies the 1^st Definitive Map reads:

"From Road C.214 at Suddern Farm to Road B.3084

From road C.124 through gateway, north-eastwards along verge of cricket ground outfield on west side of spinney, along 6ft. wide grass track enclosed between hedges, then along grass track on west side of wall, crossing No.1, along 3ft wide path on west side of wall, through wicket gate, along verge of pasture on west side of wall and over post and rail fence to road B.3084."

The cricket ground and spinney are marked on Appendix 1. The walls mentioned are likely to be the boundary walls of Suddern Farmhouse. Therefore, this statement describes path A-B-C.

This statement was not amended for any of the subsequent editions of the definitive map and remains the current statement for the path.

7.9. Path Surveys, 1979-1991

From time to time members of the public, members of the Rambler's Association and County Council officers have conducted surveys of the paths in Over Wallop. Three such surveys of the path were conducted between 1979 and 1991.

The first survey, conducted in 1979 by the Rambler's Association clearly describes path G-B-C. At the bottom of the page, the following footnote is added:

"The path marked on the map is not the path described in current statement. Both exist on the ground. Above description is the path described in statement. The following describes path marked on map..."

There follows a description of path D-E-F.

Within the same file is a piece of note paper containing notes on Over Wallop paths. This note is undated and it is not known who wrote it. The note states:

"Footpath No. 3

Footpath used is the one not on the map but the one described in current statement"

In 1991 a further survey was conducted by a member of the public. His notes describe path G-B-C as "a well defined, well used path which is signed at each end and also where it crosses [FP1]". He then goes on to state:

"I would like to draw your attention to the fact that the signed footpath does not agree in alignment with that shown on the 6" definitive Right of Way Plan. I suspect that the latter route, which follows a parallel tract, is incorrect and should be amended."

In each of these cases it appears that the surveyors were aware of a discrepancy between the used route and the route shown on the definitive map, though it would appear that they (mistakenly) believed that route G-B was that described in the definitive statement.

8) User evidence:

8.1. No specific evidence of use has been gathered in the consideration of this matter, though it is clear that path G-B-C is a well worn route. A-B is available for use. There is no through access from D to E or from E to F.

9) The Landowners:

9.1. Mr Carr of Stonor Farm, owner of D-E, agrees that the path should follow A-B-C.

10) Consultations with other bodies:

10.1. The following bodies have been consulted namely: The Ramblers' Association, The Open Spaces Society, Over Wallop Parish Council, HCC Environment, HCC Highways, the HCC Countryside Access Manager and the local Member, Councillor Woodhall.

10.2. The Ramblers' Association welcomes the chance to rectify the anomaly but point out that the walked line follows G-B.

10.3. The Countryside Access Manager for the Over Wallop area welcomes the proposal.

11) Analysis of the evidence:

11.1. This table describes how the path has been shown on the various editions of the definitive map over time:

Date

Edition

Southern half of FP3

Northern half of FP3

c1952

Draft 1^st Edition A

D-E

E-F

c1952

Draft 1^st Edition B

A-B

E-F

1957

1^st Edition

A-B

B-C

1958

2^nd Edition

A-B

B-C

1958-1964

Draft 3^rd Edition

D-E

B-C

1964

3^rd Edition

D-E

E-C

2008

4^th Edition

D-E

E-F

11.2. The first edition of the definitive map, dated 1957, is highlighted in bold as it provides our first legally conclusive evidence of the location of Footpath 3, unless it can be shown that a mistake was made on this map. Officers have no evidence that a mistake was made at this time, and have no evidence that there were any objections to the depiction of the route on the published map.

Once on the map, a route may only be changed by legal Order. Officers are not aware of any Order affecting the route of this path, and therefore, any change to the route of the path following the publication of the 1^st definitive map is almost certainly due to a cartographic error.

11.3. However the maps have changed, there is one thing which has remained constant in the history of this path: the route which is described in the Definitive Statement which accompanies the path. This statement describes Footpath 3 as following A-B-C.

11.4. Although it appears evident that the legal line of Footpath 3 should follow A-B-C, it is also clear that since 1979 people have used path G-B as well, or in preference to, path A-B. Officers recognise that moving the line of the path from D-E to A-B does not provide a perfect solution in that it still does not reflect the use of G-B. However, any member of the public may make an application to record G-B as a public right of way if they so wish.

12) Conclusions:

12.1. The first legally conclusive proof of the location of Over Wallop Footpath 3 is the 1^st Edition Definitive Map of 1957.

12.2. Changes to the location of routes shown on the definitive map may only be made by legal Order. There is no evidence that such an Order has been made in respect of Footpath 3, and therefore, no evidence that the change in the depiction of Footpath 3 (as shown on the third edition of the map) was legally sanctioned.

12.3. Given that each edition of the map (up the 4^th) has been hand drawn, and a number of copies of each map are required to be made, the most likely explanation for the change to the route of Footpath 3 is that a cartographic error took place during the preparation of the third edition of the map.

12.4. Officers consider that the correct course of action is to make a Map Modification Order to amend the Definitive Map so as to show Over Wallop Footpath 3 on line A-B-C.

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: it is statutory function of the County Council.

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 `Over Wallop Footpath 3 anomaly'

Rights of Way Office

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)