Archived decisions

HAMPSHIRE COUNTY COUNCIL

Decision Report


Decision Maker:			Regulatory Committee
Date of Decision:			2 September 2009
Decision Title:			Application for the addition to the Definitive Map of a footpath, around the perimeter of `Sandpit Field' between Black Horse Lane and Shedfield Footpath 14, Shirrell Heath, in the Parish of Shedfield
Decision Reference:			982
Report From:			Director of Culture, Communities and Rural Affairs
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(3) of the Wildlife and Countryside Act 1981, to record a footpath around the perimeter of `Sandpit Field' between Black Horse Lane and Smiths Lane, Shirrell Heath, in the Parish of Shedfield. The claim is based on evidence from 43 local residents, 17 of whom have provided user evidence forms and/or statements. They used the paths between 1969 and 2003, when the public was excluded from the site. 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 footpath subsists, or is reasonably alleged to subsist. The burden of proof in these matters is `on the balance of probabilities', so it is not necessary for evidence to be conclusive before a change to the Definitive Map can be made.
3.2. If a right of way is considered to subsist, or Members consider that it is reasonably alleged to subsist, then the route, status and width of that way must also be determined and authority is required for the making of an Order to record that right on the Definitive Map.
4) Recommendations:
4.1. That a Definitive Map Modification Order be made to record a footpath around the perimeter of `Sandpit Field' between the U203, Black Horse Lane, and Shedfield Footpath 14, Shirrell Heath, Shedfield. The route is shown on the attached map as A to D, via points E, B C, D and F, and D to G
4.2. Officers recommend a width varying between 1 and 2 metres.

MAIN REPORT:

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 of the Highways Act 1980 and/or through a dedication at common law.

2) Claimant:

2.1. The application was made in 2003 by Mrs. Marilyn Warn on behalf of Shedfield Parish Council.

3) Landowners:

The landowners are Mrs. S. Handley-Merrick and Mrs. J.E. Stevenson, who are represented by Blake Lapthorn Linnell of Southampton.

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

4.1. The route runs from Black Horse Lane, point A on the attached map, and runs south westwards roughly parallel to the boundary fence of `Sandpit Field', via point E (where some users going round the field in a clockwise direction have cut the corner), down to point B. The path then runs south east, parallel to the boundary fence, to point C, and then north east to point D, again parallel to the boundary fence. At point D, there is a spur to the east to exit the field at point G, into Smiths Lane (Shedfield Footpath 14) and out to the C20, High Street Shirrell Heath. From point D the path runs north west along a track parallel Shedfield Footpath 14 (this path is now fenced off, which is reflected in the current mapping) to exit again at point A on to Black Horse Lane. Where the corner is cut south of A, the path passes through points E and F.

4.2. Photographs supplied of the route before it was closed off show a large flat field with boundary hedges, with a grassy surface. The claimed path is about one metre wide, with a surface consisting of trodden grass sometimes worn down to earth, and is a discernible feature in the field.

5) Background to the claim:

5.1. `Sandpit Field' is so called because for some years it was the site of excavations for sand. Hampshire County Council's Mineral and Waste Section record that the first planning application is dated 1957, and was for sand extraction. On the north and south boundaries of the field lie Shedfield Footpath 14 and Shedfield Footpath 13. Obviously, the public had access to these two public footpaths, but it seems that some members of the public also started walking round the perimeter of the field, some even while the works were still in operation. The bulk of use seems to be by people walking their dogs. There is no evidence of the existence of the path prior to this.

5.2. It seems to be agreed that the pit was filled in with refuse and levelled off, and there is evidence that this happened in the late 1970s. It also seems to be the case that the top soil used to finally cover the material deposited in the pits is rather thin. There are no reports of the field having been used for any agricultural purpose.

5.3. The first recorded user dates from 1940, when the sandpit was still in operation and the majority of use ceased in 2003, when the landowner fenced off the field and placed signs reading `Private Land' alongside the fence at intervals. These signs are still in place.

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

This map shows the field around which the claimed path runs. The present Shedfield Footpath 14 is shown as a track feeding in from a fork in Smiths Lane, which narrows down considerably. Footpath 14 runs parallel to a solid boundary along part of the northern edge of the field, and is shown by means of parallel pecked lines. The path emerges on to Black Horse Lane which was, at this time, known as Sandy Lane. Sandpit Field has an extension to the north , where its boundary encloses a plot numbered 1015, and a path branches out of Footpath 14 to follow the edge of this plot, to join Black Horse Lane some distance to the east of where Footpath 14 itself emerges. This branch of the path is also shown by means of parallel pecked lines. Shedfield Footpath 13 is shown on its undiverted route across field number 1052, to the south. There is no suggestion of any footpath round this field at the time the map was surveyed. Footpaths 13 and 14 are braced into the land surrounding them.

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

By 1895, a line has appeared across the entrance of the field from Smiths Lane, suggesting a gate across it. Footpath 14 is shown as in the previous map, with a path branching north from it, but the braces are not shown. The field is marked as `Allotment Gardens'. The claimed route is not shown.

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

This map shows `Sandpit Field' in a similar way to the depiction in the first edition. On this map Shedfield Footpath 14 is marked `F.P', and braced into the land on either side of it. The lane to the north is now called Blackhorse Lane, and the words `Allotment Gardens' run across the field with Shedfield Footpath 13 crossing it, and into Sandpit Field. The placing of these words would imply that Sandpit Field and the two fields to the south west of it were all given over to allotments. The claimed path is not shown.

7.4. Aerial photograph of Shirrell Heath, 1947 (HRO 134M87/179)

No workings in Sandpit Field are shown on this photograph, which seems to be under one crop. A worn track can be seen along its northern edge, this presumably being Shedfield Footpath 14. There is no evidence of the claimed route.

7.5. Shedfield Rights of Way Map, c.1948-1949

This map is on an Ordnance Survey base, on which lines representing rights of way have been drawn. Shedfield Footpaths 13 and 14 are shown by means of blue lines, which the legend indicates were claimed under the Rights of Way Act 1932. No path corresponding this application was claimed.

7.6. Shedfield Rights of Way Map, 1950s

This map is very similar to the one described above, not dated, but from the 1950s. It was signed by the chairman of the Parish Council. This map shows Footpaths 13 and 14 (marked `F.P.'), but no path round the perimeter of Sandpit Field.

7.7. Extracts from Shedfield Parish Council Minutes 1966-1974 (Hampshire Record Office `HRO' 100M85/PX18)

24^th August 1966

The surveyor of the Rural District Council had experienced difficulty in August 1966 in defining the line of Footpath 14, and the Chairman of the Parish Council asked that any action on this be deferred until the sandpit ceased to be worked. This suggests that the sandpit works were impinging on the footpath closest to the line of the path being claimed.

7.8. 7^th December 1966

Droxford Rural District Council had agreed to re-instate Footpath 14 by the end of December, and re-site their notice `Trespassers will be prosecuted'. It is not known where this notice was sited.

7.9. 13^th September 1973

Footpath 13 had recently been diverted, to a location adjacent to the sandpit. The Council had agreed to forward a letter to the Divisional Planning Officer and County Surveyor informing them that the planning conditions were not being complied with, and that a fence should be erected in the interests of safety. The letter was to stress that the `situation was dangerous'. This implies that the operation of the sandpit was not compatible with the presence of a footpath between the edge of the pit and the diverted Footpath 13, and an earlier meeting had already recorded that the operation was interfering with the line of Footpath 14.

7.10. 22^nd October 1973

As no reply had been received to the letter discussed above, it was agreed to write another letter to the Clerk of the County Council and the Divisional Planning Officer, so that the erection of safety fencing could be enforced.

7.11. 6^th December 1973

A letter from the Clerk of the County Council stated that `there was no danger if people kept to the diverted path', but admitted that `the sandpit could be a hazard to those who might wander from the path'. A letter had been sent to the operators pointing out the potential danger. The Divisional Planning Officer wrote that the `only planning contravention related to the matter of depth', and a formal request had been made by the operator to increase the depth to 25 feet. A councillor was still worried about the safety situation at the sandpit, and it was agreed to write to the operators asking them to erect a safety fence. It was also agreed to write to the Divisional Planning Officer to ask whether the sides of the pit should be sloped to prevent subsidence.

7.12. 14^th January 1974

Hall Aggregates wrote to the Parish Council to inform them that the protective fence had already been installed.

7.13. Correspondence 1974 to 1983

The Parish Council continued to monitor the situation at the sandpit and the application to increase the depth of the excavation. A requirement of the planning condition of April 1977 was that the pit was to be filled with inert material to a level above the winter water table. In November 1977, there were worries that the material being tipped into the sandpit might be toxic waste, and in January 1978 there were reports that it was rat infested. In November of that year, it was said that a number of children were playing around the pit, which was filled with water. In October 1979 it was alleged that fires were being lit and children were `using sheets of polystyrene to float on the water'. The footpath at the sandpit was stated to be dangerous in March 1980, and in March 1981 it was reported that `the sandpits are still 12 feet deep in places'. In May 1982 it was stated that `signs across the sandpit ought to be replaced and the footpath be reinstated', and that the rubbish in the sandpit needed to be covered. A member of Rights of Way staff inspected the footpath in 1983, and said that it would be waymarked. There is no explicit reference to which footpath these reports refer, but it is likely to be Shedfield Footpath 14, as it lay within the field from which sand had been extracted.

7.14. National Grid Map Sheet SU 5613 and 5713, 1964

Only the sheet showing the lower part of Sandpit Field is available to officers. This map shows Smiths Lane entering the field, and where it runs into the field there is a line, which may signify a gate. Just beyond this line is the start of a path or track, shown by parallel pecked lines. There is a brace across this track showing it to be part of the field. Its location suggests that this is Shedfield Footpath 14. That part of the field shown on this map has solid boundaries around it. On the other side of southern boundary of Sandpit Field is a track, with its southern edge marked by a pecked line, and this is Shedfield Footpath 13. Two discrete areas of Sandpit Field are bounded by pecked lines, one occupying the south eastern corner of the field, and the other the north western corner, in both cases right up to the boundary fence. This sheet does not show any footpath around the perimeter of the field. For the rest of Sandpit Field, officers have had to rely on the Order plan for a diversion of Shedfield Footpath 13, where this map has been joined to sheet SU5614 and 5714 to give a complete view. The Order plan is discussed below.

7.15. Shedfield Footpath 13 Diversion Order, 1972

This Order was made on 10^th July 1972 and confirmed on 3^rd August 1973. Its purpose was to divert Shedfield Footpath 13 from its diagonal course across the field to the south west of Sand Pit Field, to put it running on the other side of the fence from B to C. The Order plan is helpful, because it supplies the National Grid map for the part of Sandpit Field not available to officers. The sandpit is shown in its operating state on the Order plan. There are two access points, one from Smiths Lane, and another on to Black Horse Lane. This latter is not in the same position as that shown on current mapping, but runs on the path which branches out of Footpath 14 and runs north eastwards along the line of a fence. Where Smiths Lane enters the field, a track runs some 6 metres away from the boundary fence in a north westerly direction (Footpath 14 presently runs hard up against the northern boundary fence). This track then opens out into a wider area, and leads to some kind of three sided structure, where it is suggested sand or gravel was stored for collection by lorries. The track then turns by this structure, to narrow again and lead to a sandpit on the north side. Interpolating from the pecked line which delineates the area marked `Sand Pit', it appears that there was a second, substantial, pit occupying the southern corner of the field, starting at a point almost 80 metres south west of G and almost 50 metres north west of the corner. Where the track turns to the north east (almost at point F) there appears to be a raised mound, which may consist of the top soil that was removed from the field for the excavation. A small black square occupying the space between the northern limit of the entrance track from Smiths Lane and the boundary fence is likely to have been a small hut. There is no suggestion of the claimed path on this map, save that the entrance track from Smiths Lane runs along parallel to the northern boundary fence of the field. It is not possible to trace the track of Footpath 14 beyond the entrance to the works. The Order map shows a boundary fence on the southern side of the field (the base map was revised in 1964). This may not have been present by 1973, when the Parish Council expressed about the safety issues arising from the close proximity of the workings to the footpath. The positions of the two sand pits in the field, extending right to the boundary fences, suggest that it would not have been easy to walk around the perimeter of the field while they were in operation, and any use had not given rise to a feature prominent enough to be shown by the OS surveyor in 1964.

7.16. Planning Application 77/00063/OLD, 1977, Winchester City Council Planning Portal

A planning application was received on 26^th June 1974, in which Hall Aggregates (South Coast) Limited applied for mining operations to be carried out to `increased depth', and for restoration of the land to agriculture. Permission was granted on 22d April 1977, with a number of conditions. These concern, amongst other things, how and when the land was to be restored, when the machinery could operate, but also specified that `the existing trees and hedges on the boundaries of the site shall be maintained to the satisfaction of the County Planning Authority until the site has been restored to the satisfaction of the County Planning Authority'.

7.17. Hampshire Millennium Aerial Photograph of Sandpit Field, 1999

This photograph was taken before Footpath 14 was fenced out of Sandpit Field. Sandpit Field appears to be hedged all round, and the claimed path is clearly shown as a worn track. The track does not hug the boundary line, because users have cut the corners. This is particularly true of point B, which is some way into the field from the corner. Where users have not been entering or leaving the field at point A, they have walked in a curve to cut the corner to get to point D. This is the first piece of concrete evidence recording the claimed path and its location.

7.18. Photographs provided by Mr. K. Small, 29^th August 2003

Eleven photographs were taken by Mr. Small from a number of different viewpoints, illustrating the location, width and surface of the claimed path. Most of these show a well trodden and defined path, with a grass and earth surface. Most of the path visible in the photographs is about one metre wide, but near point F, the path looks as if it is about 2 metres wide. Between D and F, there are two paths, with Footpath 14 nearer to the boundary and the claimed path about two metres to the south of it. Both paths are clearly defined.

7.19. Photograph provided by Mrs. S. Udall, undated

This photograph is taken from Black Horse Lane and shows the place where it was once possible to pull off the road and enter Sandpit Field. This is the point where Footpath 14 emerges on to the Lane, and shows the rusting gates which are mentioned by several witnesses. The tarmac surface of the Lane extends towards the field, and the gate is lying across the entrance, in two parts with a post, and a number of large stones. In this location now, a padlocked metal gate is in place across the entrance to the field flush with the edge of the Lane, and access to Footpath 14 is provided through a metal kissing gate.

7.20. Material from Shedfield Parish Council current files 2003

Email from Area Rights of Way Officer (South) to Shedfield Parish Council, 1^st September 2003

The officer responsible for maintenance and protection of rights of way in Shedfield wrote to inform the Parish Council an application to have the route around the perimeter of Sandpit Field recorded on the Definitive Map could be made if there were sufficient evidence to support it. She also stated that Footpath 14 was the route `which the landowner wishes to enclose to prevent trespass'.

7.21. Letter from RBL Developments to Shedfield Parish Council, 26^th September 2003

This letter confirms that works would start on site during the week commencing 6^th October 2003, when the line of Footpath 14 would be defined and established, and which would be `fenced in its entirety to prevent the current misuse and trespass which is currently taking place'. The Area Officer had specified the type of kissing gate that would be installed. This would happen in the second week of October 2003, and `thereafter, no access will be given to the public as our Client will be using the field for the grazing of livestock'.

7.22. Hampshire Aerial Photography, 2005

This photograph was taken about two years after Footpath 14 was fenced out. Although all public access was stopped in October 2003, the walked path around the field described in the 1999 aerial photography is still visible.

8) User evidence:

8.1. Ten user evidence forms were received with the application in 2003, with another three being provided after the investigation was started. A total of 11 statements were given, including five from users who had not completed user evidence forms, therefore disclosing evidence from a total of 19 users.

8.2. Also included with the evidence provided with the application is a copy of a petition signed by users of the claimed route. The compiler of the petition stated that, while the users did not in principle `object to areas of the Sandpit being fenced....there is another established path that circles the whole of the Sandpit and which many of us have been walking on a daily basis for in excess of 20 years'. Having taken advice from Hampshire County Council, it was suggested that those in support of trying to have a legal right of way established should sign the petition. There were 30 signatures, of which four witnesses went on to fill in user evidence forms. The petition gives the names, phone numbers and place of residence of the users, with dates showing the duration of the use, and its frequency. No further information is available. Those who later filled in user evidence forms are included in the figures given at 8.1. This evidence does not have the weight of that provided by the user evidence forms, in that the petition invited users to provide only the minimum of evidence to indicate the extent of their use, though it does show that the path has been used by more people other than those whose evidence appears in this report.

8.3. Both of these pieces of user evidence have been put into the form of charts, which are Appendices 1 and 2. One of those witnesses who gave a statement is not included in Appendix 1, because he did not use the path very much and did not give any details of dates or frequency of use. These charts are, of necessity, a generalisation, but may give a feel for the extent of the use claimed. Frequency of use varies from `occasional' to two users who used the path three times a day. Almost half the users report walking the route daily. Users were prevented from accessing the field where the path runs by the erection of fencing and locked gates during the week commencing 6^th October 2003. Six users say they used it in 2004, and it may be that they are mistaken in their recollections of the date, because the majority of evidence indicates that the fencing was effective in stopping access. Two witnesses who gave statements said that they had expected the fences to be cut by users, but they were not. A summary of the use put forward by witnesses from user evidence forms and statements resulting from completed user evidence forms and interviews can be found at Appendix 3.

8.4. The earliest reported use of the path was in 1940, and there were three users in the period 1940-1960. There were 6 users by 1970, and 9 by 1980. After this time, use increased significantly, with 23 users during the decade 1980 to 1990, 39 between 1990 and 2000 and 43 from 2000 until all access ceased in 2003. There are 16 witnesses who used the path for more than 20 years, including two users who have used the path for 63 years and one for nearly 60 years. Use of the path while sand extraction was taking place must have been difficult, judging by the extent of the sandpit on the National Grid mapping and the material in the Shedfield Parish Council minutes from the 1960s and 1970s. This may explain why the number of users increased markedly from 1980 onwards, when the restoration of the field had been completed. Three witnesses say that the field was mowed once a year.

8.5. Eight of the users who filled in forms or gave statements reported being stopped from using the path by the erection of fencing in 2003 to delineate the southern boundary of Footpath 14, and the installation of locked metal gates. Eight witnesses also report that this fencing obstructed the claimed path. None of the users seemed to have attempted to use the path since it was fenced off.

8.6. Eleven of these users report a gate at or near point A, on Black Horse Lane, and some report that it was lying on the ground. One of the users submitted an undated photograph of this gate, with an arrow on the photograph pointing past the gate in towards the field, annotated `Blackhorse Lane entrance to sandpit'. From the evidence of users of the path there was a gap at the side of this gate which allowed entry onto the definitive footpath as well as the claimed path. Two other witnesses refer to a gate at point D. One witness said this gate did not reach quite across the gap, so a vehicle could not access the field. It was wooden and very overgrown, `not in use'. There was a gap at the side. The witness thought this gate had been put up after the field had been levelled in 1978 to keep out vehicles. The other witness confirms the overgrown condition of the gate and the gap at the side. None of the witness recall any stiles, or having to climb over anything to get access to the field.

8.7. There are seven references to notices associated with the claimed path. Six of them seem to be to the signs that are currently visible in the field, which read `PRIVATE LAND NO ACCESS OR TRESPASS ALLOWED - CONTACT C D JORDAN AND SON 023 92661391'. All the witnesses associate these notices with the erection of the fencing in 2003. One witness describes this fencing as being put along the definitive footpath, and this had the effect of excluding the public from the rest of the field. The only other information about notices refers to a sign on the gate at point D, which warned the public to keep to the footpath (presumably Footpath 14), and had a rough sketch of the location of Footpath 14.

8.8. There are eight references to the fences that were put up in 2003 and stopped public access to the field. One witness describes the fencing as being along the Definitive footpath, and another as a `gate and fence blocking all but a path', the latter presumably being Footpath 14. There are no other reports of obstructions anywhere on the claimed path.

8.9. Eight users report being stopped from using the path by the erection of the fences. There are no reports of being stopped, or having heard of anyone else being stopped, for any other reason. None of the witnesses had any connection with the landowner (several said they either didn't know who it was, or had tried to contact the landowner and had found themselves unable to), used the path with permission or in the exercise of a private right. Use of this kind cannot contribute to the acquisition of a public right.

8.10. The users have all walked around the perimeter of the field, with part of the use consisting of cutting the corner at E and F, and the formation of a triangle at E-A-F.

8.11. Witnesses report seeing others, both locals and strangers, there, mainly on foot walking dogs, though horses were occasionally sighted. One witness said that `meeting there was a social thing'.

8.12. What can be understood from this evidence is that local people have used a route around the perimeter from the 1940s onwards for recreational and dog walking, with the bulk of public use falling in the 1980s, 1990s and early 2000s until access was prevented by the erection of gates and fencing in October 2003. 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 October 1983 to October 2003.

8.13. 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, unless there is sufficient evidence that the relevant owners of the land did not intend such a right to the public.

9) The Landowners:

9.1. The landowners, Mrs. S. Handley-Merrick and Mrs. J.E. Stevenson, are represented by Mr. S. Wright of Blake Lapthorn, solicitors. Mr. Wright has made a submission on their behalf, a summary of which is given below. The full submission is available to Members to read.

9.2. Mr. Wright has been provided with information about the history of the site by the landowners both before and during the relevant period of 1983 to 2003. He says that it is noted that 'the application is being considered under the Wildlife and Countryside Act 1981' and `there is therefore no automatic presumption of dedication after 20 years public use (even if that was established) and the burden of proving an inference that the landowner intended to dedicate a way as a highway lies on the claimant'. His clients consider that `the burden has in no way been discharged on what they have seen at present'.

9.3. Mr. Wright notes that the statements made by witnesses show that they have walked around the perimeter of the field over a number of years, and that `not all of the persons making the statements were able to claim that over a period of 20 years'. He further notes that `all of the claims appear to relate to casual recreational use', and that `the predominant feature of a footpath, being a highway, is as a means of passing from one point to another'. It is his view that `whilst that may necessarily incorporate a recreational element that cannot be the predominant purpose', and `there can be no need for persons to walk around the field in question to get from the point of entry at Smiths Lane to the point of exit on to Black Horse Lane because there is already between those two points an existing footpath'. Therefore, it is felt that the `principal purpose of having a public footpath cannot be established in this instance'.

9.4. The landowners say, and will provide statements to support what they say, that `at all relevant times the property was fenced off, and would be seen to have been private land'. They were aware that fences had been damaged at times, but `for the most part the land was clearly divided from the existing public footpath...and they do not consider that most members of the public would have assumed that there was a right of way which deviated from the known route of the public path'.

9.5. The fences were repaired and replaced as required throughout the period. Because the landowners are not resident on the property, they concede that it may not have been possible to keep the fences in place and maintained at all times, but `they are satisfied that they were in place for a sufficient time throughout the relevant period to give a clear indication that the land concerned was private land to which there was no automatic right of public access'. They state that `the fences were always there'.

9.6. The landowners refer to the original use of the field, that gave it its name, and to the fact that part of it was used as a site for landfill by Hampshire County Council. An application was submitted in 1977 for work to take place in the field. It is the view of the landowners that they would have been under a statutory obligation to `secure the land and prevent members of the public having access to it because that could have been a source of danger'. There were `Keep Out' signs in place. It is the belief of the landowners that `as a former landfill, in part, the land would not have been a particularly pleasant environment for casual use of the nature indicated in the statements'. Because of past use, the land is now of `fairly poor' quality, and this is the reason that no substantial use has been made of it. It is pointed out that `mere lack of use does not in any way indicate that it is available for use by members of the public'.

9.7. These points lead the landowners to believe that `members of the public could not over a period of 20 years at any time reasonably have assumed that access to the land and the use of a footpath was being exercised as of right and if that was not the case then the implied dedication cannot have occurred'.

10) Consultations with other bodies:

10.1. The following persons and bodies have been consulted about the claim: Winchester City Council, Shedfield Parish Council, the local Member, the Open Spaces Society, the Ramblers' Association, the Senior Countryside Access Ranger for the Central Area, Highways Management and Minerals and Waste. At the time of writing, the following responses have been received:

10.2. The local Footpath Secretary of the Ramblers' Association says that he would `welcome any addition to the footpath network'. From his researches, the footpath secretary thinks that his members have used Footpath 14, and considers that the most useful path would be from point A to point B, to link up with Footpath 13, thus saving having to walk along the High Street to connect the two paths.

10.3. No other comments have been received.

11) Analysis of the evidence:

11.1. The documentary evidence does not prove, on the balance of probabilities, that any part of the path was a footpath, 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 criteria as listed above, the path is of such a character that it is capable of being a right of way at common law. It is said in the submission of the landowners that the claimed path does not qualify as a public highway for the reasons laid out in paragraph 9.3. The path, though circular in nature, connects with a public highway at each end, and users indicate that they did walk between both Smiths Lane and Black Horse Lane, and destinations beyond, having walked around the field either by themselves, with family members, and very commonly with their dogs. The motive for use of a way is not relevant. What is necessary is for the path to share the characteristics of a highway, that is that it should be linear in nature, with a clear and defined route, and allow users to pass and repass. (Questions such as need, suitability and safety cannot be considered during this investigation, and do not assist in the determination of the question of what public rights can be said to subsist, or be reasonably alleged to subsist ,on the way).

11.4. The event which brought the public's right to walk in Sandpit Field into question is the erection of fences and gates in October 2003. This event was of a character such that the landowners' intention to call the public's right to walk there into question was understood by the public, as evidenced by the comments that occur in the user evidence forms and statements. This event gives a relevant period of 1983 to 2003.

11.5. The evidence in the forms and statements indicates that there were no obstructions that would have caused an interruption to use during that time. Eight witnesses said that the path was not obstructed until it was fenced off in 2003. Even though there were boundary fences to Sandpit Field, two entry points seem to have remained open at A and D throughout the relevant period. The evidence graphs indicate use in every year. The landowners' representative takes the view that not all users can show that they walked the path for twenty years, but there is no requirement that every user must demonstrate use for that length of time, so long as the path has been used by the public in each year of the twenty.

11.6. To qualify, user must be without force, stealth or permission. Despite the presence of boundary fences, 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. All the witnesses who filled in forms or gave statements appear to have seen others, mainly locals, using the path, mostly on foot, but occasionally on horseback. Some also report having used the path on bicycles. Therefore, it seems that the path was being used in an open way. This is confirmed in the letter of 26^th September from the landowners' agent to the Parish Council, which spoke of `current misuse and trespass'. None of the witnesses reports having used the path with permission. Some, for various reasons, attempted to find out who the landowner was, and drew a blank, and some said they did not know who they were. One witness thought the land belonged to the Council. No-one used the path in the exercise of a private right, which use could not count towards the acquisition of a public right.

11.7. 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. The witnesses all say they did not have any connection with the landowners, and therefore this was public in its nature. The location of the path means that users came from the surrounding area, 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 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 there are enough users to raise the assumption that a public right of way has been acquired over the path, on the balance of probabilities, and that the overall quality of the use is such that the use is by the public at large.

11.8. None of the witnesses reports having been stopped by anyone while using the path, or having heard of anyone else being stopped, and none of them recall being told that the path was not public.

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

11.10. The representative of the landowners states that, because the application is being considered under the Wildlife and Countryside Act 1981, there can be no automatic presumption of a dedication of public rights after twenty years' use of a way. This is not an accurate statement. This legislation imposes a duty on the highway authority to keep the Definitive Map under continuous review, and applications to make modifications to the map may be considered under both section 31(1) of the Highways Act 1980, and under common law. Under the provisions of section 31, a presumption of deemed dedication can arise after 20 years' uninterrupted use. The burden lies with the landowner(s) to show that there was no intention to dedicate public rights over a way, provided that the tests outlined in paragraph 11.2 have been met. For a common law dedication it is necessary to demonstrate that the owner knew of, and acquiesced in, the use that has taken place.

11.11. It is said in the submission that the primary purpose of a public highway is to provide a means of passing from one point to another, and the implication is that `casual recreational use' such as dog walking round a field cannot be the predominant use required to contribute to the acquisition of public rights on the path. Further, there is no need for the public to walk around the field to get from Smiths Lane to Black Horse Lane and vice versa, because there is already a public footpath connecting these two highways. Questions such as need, suitability and safety cannot be considered during this investigation, and do not assist in the determination of the question of what public rights can be said to subsist, or be reasonably alleged to subsist, on the way. The claimed path, though circular in nature, connects with a public highway at each end, and users indicate that they did walk between both Smiths Lane and Black Horse Lane, and destinations beyond, having walked around the field either by themselves, with family members, and very commonly with their dogs. A dog is deemed to be a `usual accompaniment' while walking public footpaths, and the motive for use of a way is not relevant. What must be shown by the evidence is that there has been sufficient use by the public for the required period, and it is felt by officers that the path has been used in a way that meets this requirement.

11.12. The landowners were not living close to Sandpit Field, and concede that fences round the field may not always have been in perfect repair, though they state that they were always there. However, it is their view that during the relevant period the fencing of the land would have been sufficient to indicate that it was private land, and they feel that most members of the public would not have considered the path round the perimeter of the field to be a right of way. There is no indication from the user evidence that any of the witnesses broke down the fences or climbed over anything to get access to the field. One witness said there was no fence between B and C. The public gained entry by gaps at point A and point D. The majority of public rights of way run over private land. One witness said he knew it was not a public right of way, but no-one told him not to go there, while another thought it was a public footpath. Two other users thought the land belonged to the `Council', and another thought it was common land and an area for recreation. Most simply followed the worn route, part of which ran alongside Footpath 14, which was not separated out until 2003 from the field. One person said he did not think he was trespassing. It could be said that the witnesses walked along a route that they perceived to be freely available, because they saw others doing the same, without challenge. It seems from the witness evidence that they were not disabused of this perception at any time during the relevant period. There is a conflict of evidence over whether the fencing of the field would have been indicative of its private nature and what would be expected of the public in such circumstances.

11.13. The owners of the land state that they were under a `statutory obligation' to prevent access by the public when sand extraction was taking place, because of the dangers posed by the workings. They say that there were `Keep Out' signs in place. None of the witnesses report seeing any such signs before 2003. There is no indication of the dates when these signs would have been in place. The Parish Council minutes of 1982 indicate that there had been signs `across the sandpit', which it was suggested should be replaced. Droxford Rural District Council had put up a notice `Trespassers will be prosecuted' in 1966 at an unknown site, which was then re-sited at an unknown location. It is not known whether Droxford RDC were the owners of the field while the sign was in place. It is also not known whether the signs referred to in 1982 were replaced. In any case, signs reading `Keep Out' or `Trespassers will be prosecuted' would not necessarily constitute a clear instruction to the public with regard to there being no intention to dedicate a way across the land. Therefore, on the matter of signs, there is also a conflict in the evidence.

11.14. The landowners say that the resulting field after the deposition of landfill material would not have been a particularly pleasant environment for recreational walking. They also point out that just because the land has not been used for anything, this is not a reason for the public to suppose it is available for use. Some of the users point up reasons for contrary conclusions. Some felt that it was a safe area to walk, where dogs and children could be safely contained and away from the roads, and others mentioned the wildlife and flowers that flourished because the land was not disturbed once the filling had been completed. The evidence, both written and derived from aerial photography, indicates that the very factors that the landowners believe would prevent the public from using the field for walking were things that drew them there. The beliefs of the landowners were not supported by actions (until October 2003) to disabuse the public of their perceptions, and therefore cannot constitute illustrations of intentions not to dedicate.

11.15. The landowners believe that the public could not have reasonably assumed at any time over the relevant period that their use of the land was as of right, and therefore there cannot be deemed dedication. The users, via this application, believe to the contrary, and there is therefore also conflict in the evidence on this matter.

11.16. There is no evidence that use of the path was permissive by nature, such as notices stating that permission was granted and could be withdrawn at any time, of any annual closures, or any declaration made under Section 31(6) of the 1980 Highways Act.

11.17. This application would seem to give rise to a reasonable allegation that the public have acquired footpath 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 the start of this report). 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 the evidence can be tested.

11.18. This matter may also be considered under common law, where it is the responsibility of the applicant to show that the owners were aware of, and acquiesced in the use of the path by the public. The users must be able to show that it can be inferred from the conduct of the landowners that they 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 those landowners 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 that way by use.

11.19. The length of time that is required to demonstrate sufficient user is not fixed under common law, and depends of the facts of the case. The user must be obvious to the landowners, 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. The landowners seem to have had little to do with this piece of land over the relevant period. They maintained the boundary fences periodically (though did not close the gaps by which the public gained entry to Sandpit Field until 2003) and seem, from the user evidence, to have had the field mowed annually for an unknown number of years. The non-closure of the gaps and the mowing of the field could be seen as acts which facilitated access. In conjunction with the open and unchallenged use of the path by the public, these actions could demonstrate both an intention to dedicate, and acquiescence in the use by the public, and thereby satisfy the requirements of common law.

12) Comments by the Applicant and Landowners

12.1 The landowners have provided three statements from employees who were involved with the pit at Shirrell Heath, and these were taken in July 2009. They are as follows:

· Mr. Ian Martin was employed from 1984 to 1990 in a management capacity and visited the pit at Shirrell Heath regularly. `The site was fenced and secure at all times, as is the requirement of any landfill site'. This was so after the completion of the filling, and signs were displayed reading `Private Property - keep out' around the perimeter. These fences and gates were damaged and `in some cases lying flat on the ground where people were obviously trespassing and walking across the site'. The fences would be reinstated.

· Mr. T. Higgins was employed from 1983 to 1991 at the sandpit, and states that during this period the site was fence and secure, `with clearly marked signage'.

· Tina Smith drove a skip lorry and would take it to the Shirrell Heath site, between 1984 and 1990. She later worked in the office of the controller of skip hire, and continued to visit the site for various reasons. She confirms that the site was operation between 1984 and 1990

12.2 The representative of the landowners makes the following comments.

· It is only accepted that the motive for the use of a way is irrelevant if a way exists. `The right of the public is a right to pass along the highway for the purposes of legitimate travel'. The motive or having access to land is relevant if the motive is not to pass along a definitive path. This does not prevent a path existing around the perimeter of a field, but `the fact that the field has on both sides of it...existing public footpaths, may cast some doubt on whether the intention of users of the field was to exercise a right to pass along a highway'.

· Evidence does not require to be conclusive, but the term `balance of probabilities' means that it must be more likely than not that there is sufficient evidence to justify the making of an order. It would not be correct for the County Council to make an order where there is a conflict of evidence, unless the evidence falls on the side of being more likely than not to show a deemed dedication.

· It is for the claimant to prove that it can be assumed from the conduct of the landowner that some actual act of dedication has taken place. Only if that burden is discharged by those claiming use of the way should the landowner be obliged to show that there was no intention to dedicate.

· The decision rests on the user evidence in the period 1983 to 2003. It would be wrong to exclude the history of the site from that evidence.

· Less than half of the users provide evidence from the 1980s onwards. Those who have not used the path for the full 20 years should not be completely disregarded. However, use increased considerably in the years before 2003, when public access was prevented. It is believed that this casts doubt on whether there was continuous use by the public over the 20 year period `where those using the alleged path assumed they had a right to do so'. It is felt that the `evidence amounts to little more than that local people liked walking their dogs around this field without giving a great deal of consideration as to whether it was private land or land to which the public had access'.

· The actions of the landowners should be considered. They `very emphatically' say that they never intended to dedicate the land for public use. That the site was in active use until about 1990 seems to be accepted, but use for mineral extraction and landfill are activities which are incompatible with public use, and they are uses that it would not be expected that the landowner would carry and `by inference agree to dedicate his land for use by the public'.

· The statements provided state that the site was in regular use until about 1990, and that the site was fenced, so that the owners were complying with their obligations under planning permission. Some of the user statements specifically refer to walking around the excavation. `If that is right, it circled the excavation because people who decided to walk their dogs across the field were forced to go around the edge of it, not because they were asserting a public right to establish a footpath around the edge of it'.

· The users refer to gates at points A and D, and it is possible that they were, at times, not fully in place. They were periodically replaced by the landowners, and these efforts, even if not fully effective, should carry weight.

· The landowners' intention was to prevent public access from Footpath 14, but members of the public may have strayed further into the site because Footpath 14 was overgrown. It is felt that the County Council should have been `more vigilant' to maintain the footpath so that this could not happen. `That does not mean that a new footpath has been established'. The `intention of members of the public was to use the existing footpath but they may have been edged off its exact route because of the growth of vegetation'.

· Mowing of the land by the landowner cannot indicate an intention to make it available for public access.

12.3 Officers accept that two employees say that the site was fenced and secure in the period 1983 to 1991. This is, however, in conflict with reports by witnesses that they did not have to pass through or climb over anything to gain access to the field. As mentioned at paragraphs 6.4 and 11.17, an Order should be made where there is a conflict of evidence, in order that the evidence can be tested. The test required of any path to be met in section 31 of the Highways Act is laid out in paragraph 11.3. It is sufficient for the users to provide evidence of walking a linear route unchallenged for the required period provided it meets the criteria laid out in that paragraph. They are required only to pass and repass. As long as the user evidence meets the criteria set out in 11.2 relating to section 31 of the Highways Act, it is for the landowner to show that they did not intend to dedicate a public right of the nature being claimed in order to defeat the claim. Under common law, the burden lies with the applicant to show an act of dedication and acquiescence in public use, which is more onerous. Most applications based on user evidence can be considered under both section 31 and the common law, and may succeed under one or the other, depending on the facts of the case. The users had differing views as to ownership of the land, and whether it was public or private. Most walked there because they saw others doing so, and were not prevented from following suit until 2003. If this use was unchallenged for 20 years, and the other criteria are met, then the presumption of dedication arises at the bringing into question of the public's right to use the way, unless there is sufficient evidence of an intention not to dedicate. Not every user has to have walked the path for a full 20 years. The landowners say they did not intend to dedicate a footpath in Sandpit Field, but a conflict arises because the user evidence does not indicate how they showed to the public that they did not intend to dedicate prior to putting up the fences and gates in 2003. Officers feel, on the balance of probabilities, it is more likely than not that the users have acquired public footpath rights on the route around the perimeter of Sandpit Field.

13) Conclusions:

13.1 There is evidence under section 31 of the Highways Act 1980 that a right of way which is not shown on the Definitive Map and Statement subsists or is reasonably alleged to subsist on the route A to D, via points E, B C, D and F, and D to G. The width of this footpath varies between 1 and 2 metres.

13.2 Members may also consider that a common law dedication has taken place between 1980 and 2003.

13.4 Officers consider that the width of the path varies between 1 and 2 metres.

CORPORATE AND LEGAL INFORMATION ABOUT THIS DECISION:


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 s53 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 CR 770	Rights of Way Office,
	Mottisfont Court, High Street,
	Winchester, SO23 8ZF.

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