REPORT TO THE DEVELOPMENT CONTROL AND REGULATORY BOARD – 19TH JANUARY 2006

PROPOSED DEFINITIVE MAP MODIFICATION ORDER

ADDITION OF PUBLIC FOOTPATH - CARLTON HAYES, NARBOROUGH

REPORT OF THE CHIEF EXECUTIVE

PART A

Purpose 1. To ask Members to re-consider this application in the light of further

evidence now available to the County Council. Recommendation 2. That the previous decision of the Board on 21st August 2003 (Minute No.

298 refers) be rescinded and no Order be made under Section 53 of the Wildlife and Countryside Act 1981, as shown on the map attached to the report.

Reason for Recommendation 3. Given new evidence showing the lack of a clear and obvious intention on

the part of the landowner to dedicate for public use a public right of way as opposed to a permissive way, the evidence is insufficient to show that on the balance of probabilities or otherwise, an Order should be made under the provisions of the Act.

Circulation Under Sensitive Issues Procedure 4. Mr. B. Garner CC. Officer to Contact 5. Mr. John Prendergrast, Chief Executive's Department, telephone 0116

265 6014

B

The historical evidence documents and letters referred to in this report are available on Leicestershire County Council’s website - www.leicestershire.gov.uk - and copies can also be obtained by contacting the Committee Officer (direct tel. 0116 265 6225).

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PART B Background 6. At the meeting of the Board on 21st August 2003 Members considered a

Report (attached as Appendix A) on an application by the Narborough and Littlethorpe Parish Council requesting that a public footpath be added to the Definitive Map and Statement under the provisions of the Wildlife and Countryside Act 1981. The footpath claimed to link existing footpath W29 ('the Black Pad') to Ten Pound Lane crossing land presently owned and occupied by the Alliance and Leicester plc Headquarters.

7. Representatives of the Alliance and Leicester attended the meeting and

the Estate Manager for the Alliance and Leicester spoke on the application.

8. On consideration of the evidence then available and on officer advice

regarding the legal criteria applying to such applications, it was resolved that an Order be made to add the way as a public footpath to the Definitive Map.

9. However, that decision was dependent on further advice from officers

that at that time there remained outstanding a response from the previous landowner, the National Health Service, and other enquiries pending regarding certain aspects of the evidence. It was indicated that if any further evidence indicated there should be a significant re-appraisal of the evidence, then it was possible that a further report would be required. In the event, the evidence now available to the County Council suggests the past history of the alleged footpath differs substantially from that it was assumed to be in August 2003. As a result, it is felt that it would be difficult for the County Council to meet the legal criteria for such applications.

10. Applications to add public rights of way to the Definitive Map are drawn

from Section 53 Wildlife and Countryside Act 1981. This particular provision has been the subject of considerable controversy and there have been a number of Orders made by Local Authorities which have subsequently led to appeals which have produced a number of important Judgments over the years.

11. Section 53 of the Wildlife and Countryside Act 1981 states:- "53(2) As regards every Definitive Map and Statement the Surveying

Authority shall - (a) As soon as reasonably practicable after the commencement

date, by Order make such modifications to the map and statement which appear to them to be requisite in consequence of the occurrence before that date, of any of the events specified in sub-section (3); and

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(b) As from that date, keep the map and statement under

continuous review, and as soon as reasonably practicable after the occurrence, on or after that date, of any of those events, 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) include the following:- "(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 in 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."

12. Any person may make an application for a Definitive Map Modification

Order if there is sufficient evidence which shows a right of way not presently shown on the Definitive Map ought to be shown thereon. However, although Section 53 enables a Local Authority to make such an Order, the basis upon which such an Order should be made and the extent of the evidence which is required before the Authority can make an Order is not part of the statutory provisions and has to be found elsewhere. In many cases, this leaves Local Authorities having to consider whether there is any sufficient historical evidence to show it must have existed on or before the date when the Definitive Map and Statement were first issued. In Leicestershire, the first date when the Definitive Map was issued was in 1952. Additionally, Applicants may claim that before or after that time the public was actually using the right of way as of right and for such a sufficient period of time to show that they had acquired such a right by implied dedication and the landowner not taking steps to challenge such use or prevent such use taking place.

13. These cases often raise very complicated and difficult issues. It is of

course becoming increasingly difficult to find reliable evidence to show a right of way has been continually in use since that time.

14. With this application, the case for adding the way to the Definitive Map

rests on a combination of documentary evidence (essentially consisting of historical maps) and then either supported by or independently as a separate claim of implied dedication, by statements submitted to the County Council by local residents that use has been taking place over a considerable period of time.

15. Within the original Report (Appendix A) there is attached a bundle

('Document Attached') consisting of copies of a summary of user evidence in this case (no. 1), letters of support (nos. 1A to 1E) and historical evidence (nos. 2 to 17). In addition to that, your officers have

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carried out archive research to establish whether there was any indication of a footpath along the route claimed at the time when the application was made in 2000.

The report also contains letters in support and also the comments of the

Director of Community Services. Legal Considerations 16. When considering the evidence, Members will need to apply the correct

test when deciding if the evidence shows a right of way exists or not. There have been a number of appeal cases which give guidance on this issue and in particular at what point the order making authority could be satisfied it was right to make an Order. The first point to be made is that an Order proposing to add a public right of way onto private land should not be lightly made.

17. The most appropriate advice is to be found in a case usually referred to

as the Bagshaw and Norton case. In that matter, the Court held that under Section 53(3)(c)(i) of the Wildlife and Countryside Act when considering an application to add a right of way to the Definitive Map (e.g. there was nothing shown at present) there were two tests to be applied. These are:-

Test A: That a right of way exists on the balance of probabilities? To

establish this would generally require clear evidence in favour of the application, and no credible evidence to the contrary.

Test B: If not, is it reasonable to allege that the right of way subsists? If

there is a conflict of credible evidence, and no incontrovertible evidence that a way cannot reasonably be alleged to subsist, then the answer must be that it is reasonable to allege that one does exist.

18. This case tells the Local Authority it is not a requirement that there

should be conclusive evidence that a right of way exists. That is, evidence that is so unchallengeable it would be clear to anyone that a right of way does exist. Of course, there are very few instances where the evidence is so clear cut, that the order making authority could make that decision without further consideration to whether the landowner challenged or prevented such use constituting a right of way. In most cases, there is a requirement to balance the evidence in support of the application and that against it, to see whether the evidence complies with either Test A or Test B. The difference between the tests, of course, is that Test B sets a lower standard and it would be possible to say that an order should be made if any reasonable person thought that a right of way had been shown to exist. In each case, both Test A and Test B requires the Local Authority to make an assessment of the evidence and make a judgement upon that evidence.

19. Therefore, the Authority needs to be able to look at each piece of

evidence and decide for itself whether it is relevant to the claim that a

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right of way exists, and if it is so relevant, what weight is to be attached to it. In that respect, it is not unknown for statements to be compared with what has been said by other witnesses, or against documentary evidence, which may place that evidence in a certain light. That is, although witnesses are not required to give evidence on oath, their statements may be taken as indicative of their personal recollections as they remember it. It is often also the case that witnesses will not be aware of the general background to the ownership of the land and may have no understanding as to what is in fact within the legal capability of the owners or managers of that land.

20. This may have some particular significance in this case given that it

seems the land was purchased by public subscription for the purposes of relocating the Leicester Asylum in the early 1900s and had been continued to be used for hospital purposes until 1947 when it was taken over by the National Health Service and continued as a hospital facility. Therefore, over a very considerable period of time from at least 1907 to about 1995, the land was part of hospital grounds and therefore the main emphasis in terms of land use was that of a hospital and not necessarily private land uses which might usually be associated with the presence of walkers, such as in the countryside.

Case in Support of the Application 21. Without wishing to over-simplify the case, a summary of the case in

favour of the application would be as follows. (a) That the route relies partly on the Fosse Way. (b) That on the establishment of the former Leicester Asylum the public

were still permitted to have access across the route in question without interruption or challenge.

(c) That the landowner took no steps to indicate the land was private,

by way of any notices or warnings, until land was purchased by the Alliance and Leicester plc in 1995.

Evidential Issues 22. The case therefore relies upon an acceptance that the documentary

evidence (mainly consisting of the historical maps) together with the user evidence shows that there has been a continuous footpath which has been described as at least partly following the old Roman Road. However, the Applicant is not required to set out the basis upon which it is suggested the right of way legally exists and that is a matter which the County Council has to determine. In this case your officers have taken some considerable time to assess the evidence and also to undertake further enquiries where this shows there is a need to clarify issues which have arisen.

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23. Your officers see the matter as falling into a series of three questions a. Does the documentary evidence consisting of the historic maps, in

itself, show that a right of way subsists or is reasonably alleged to subsist over the way claimed?

b. Does the user evidence show that there is a case for implied

dedication of a footpath on the basis that it subsists or is reasonably alleged to subsist?

c. If neither of the above is sufficient to show a right of way subsists,

does the evidence as a whole show that a right of way existed in past times or which the public could have used?

Evidence in Support of the Application A. Documentary Evidence (historic maps) 24. In paragraph 14 of the 2003 report (Appendix A), the Director of

Community Services provides comments on the map evidence which has been discovered which relates to Narborough and its surrounding area.

25. In Appendix A the Director has provided a map (entitled 'Approximate

Route of Fosse Way Roman Road at Carlton Hayes, Narborough'). On this, there is plotted a line of the Fosse Way as suggested by local residents and the Ordnance Survey and also a line which shows a straight extension as identified by Leicestershire Museums Service.

26. Neither line follows the route of the alleged footpath. There is possibly a

small section adjoining the Black Pad end which may be close to the line suggested by local residents. In fact there is no reliable evidence within a couple of hundred yards exactly where the old road went. It is not identified on any maps from the early 19th Century onwards.

27. The Ordnance Survey of 1886 gives an indication of the physical layout

of the land at that time. Both Ten Pound Lane and Forest Road are clearly depicted as highway. However, the land between which is now Carlton Park is shown to be composed of fields. There are four fields in question. In none of these fields is there shown to be any gap, stile or any crossing point which would enable the public to have reached Ten Pound Lane from the Black Pad or vice versa.

Historical Evidence Document no. 6 which is the Public Path Diversion

Order of 1899 related to public footpath W29 but does not indicate the alleged path at all.

28. Forest Road is marked in 1888 as Upper Fosse Way. Ten Pound Lane

is also called Fosse Way, but both these ways turn south to connect to Leicester Road (B4114), itself an old highway.

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29. The Ordnance Survey of 1904 again shows no visible presence of any footpath at all between Forest Road and Ten Pound Lane nor are there any apparent crossing points in the field boundaries.

30. It is only the 1916 edition Ordnance Survey which shows any reference

to a track between what is now the Black Pad and the driveway to the Leicester Asylum. The Leicester Asylum is shown complete on the 1916 Ordnance Survey together with the buildings which later constituted the farm. However, there is no continuance of the alleged footpath beyond the driveway to the hospital.

31. The 1938 Ordnance Survey does show a complete route as alleged.

However, it also shows two other tracks marked in the same way with the same stippled markings to the Parish boundary. Both of these go from the hospital driveway across to the east. It is to be noted that at no time, including when the Parish Council carried out its survey in 1951, were these other two routes ever claimed as public rights of way. However, they appear to be of exactly the same significance on the Ordnance Survey and both of these give access to land to the north and north west of the Leicester Asylum. It is now impossible to find whether these two tracks now exist.

32. The conclusions of the archive research is that there is no indication of a

footpath along the route claimed by the Parish Council until the Ordnance Survey of 1916. This is approximately seven years after the Leicester Asylum (later to become Carlton Hayes Hospital) opened. This shows a path by two parallel broken lines labelled F.P. and extending as far as the access drive to the Asylum. However, the trackway linking that access drive to Ten Pound Lane is not shown. This suggests that the eastern part of the footpath did not exist in 1916.

33. No map shows any connection at all between the Black Pad and Ten

Pound Lane until 1938 when the Leicester Asylum generated considerable change to the land and probably resulted in more pedestrian movement than before.

34. The map evidence fails to give strong support for the application and in

some aspects bring it into considerable doubt. The complete absence of any recorded link on these maps between Ten Pound Lane and what is now the Black Pad (Footpath W29) at least until the Leicester Asylum was built questions whether it ever had the historical significance claimed by the Parish Council.

B. Implied or Presumed Dedication 35. The Applicant has provided a number of statement user forms. It may be

presumed the purpose of these evidence forms is to show a right of way was being exercised by the public over many years. It is of course also possible to conjecture from the provision of these forms that it has been stated that the right of way must have come into existence by way of long

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standing public use and therefore an implied or presumed dedication had taken place.

36. The concept of implied or presumed dedication is one of the most difficult

areas in rights of way law. There is of course a general principle if there can be proved to have been substantial use by the public over many years, that could be sufficient to create a legal right of way. Where the landowner must have been aware that large numbers of people were using a particular route and there was a lack of any action by the landowner to challenge or stop its use this could show the landowner intended the public to have that right. It is important to note that use by the public does not in itself create a public right of way. Such use is only evidence that a way could be physically found and possibly those using it believed they had a right to do so, raising the presumption of dedication by the landowner. In fact, the landowner may be able to show there was no sufficient intention to dedicate it and the right of way is merely a permissive way, which the landowner ultimately could still close.

37. A presumed or implied dedication by the landowner of a right of way may

arise either under common law or by virtue of statutory provisions, and in particular Section 31 of the Highways Act 1980. Section 31 provides the main criteria under which an implied and presumed dedication can be found. The common law provisions which pre-date the modern statutory framework still exist, but are rarely applied as they tend to place a stronger emphasis on the need to show the landowner intended to dedicate. Section 31 requires a number of criteria to be met. The full wording of Section 31 (as relevant to this application) is referred to in paragraph 10 of Document A (August 2003 report) and it is only necessary to bring to Members' attention those parts of Section 31 which appear to be relevant in this case. These are:-

a) For a full period of 20 years. This period referred to in sub-section

(1) is to be calculated retrospectively from the date when the right to use the way is first brought into question, whether by notice or otherwise. In this particular case considerable emphasis has been given as to when notices were erected which might seek to challenge the right of way. In any case, members have to decide whether when the right of way was brought into question (usually referred to as the 'BIQ' test) and if there is a period of 20 years prior to that of use.

b) Enjoyed by the public as of right. To meet that criteria the public

does not have to have conscious thought that they are asserting a right against the owner of the land in each and every occasion when they walk it. It is a test which can be satisfied if it can be shown that from the time it was first used and throughout its use it can be reasonably inferred that the public had acquired a belief that they had a right to do so rather than doing so by consent or licence.

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c) Unless there is sufficient evidence that there was no intention during that period to dedicate it.

38. In this case the Parish Council provided 17 statement forms and 5 letters

referring to use of the way by local residents and in the belief that it was a public footpath. To that end, the Applicant has clearly provided evidence that the path has been in use and it has quite clearly been the case that it has been walked by local residents in the past. The question is whether such use was of such sufficient scale or nature that it amounted to an implied dedication by the landowner.

39. In Appendix A, a summary (document attached no. 1) was included

indicating how long individuals had used the path, whether they believed it to be a public footpath, whether they had seen any obstructions and also whether they had seen any notices on the way.

40. However, given the new evidence which has come to light an individual

assessment of each of these statements and particularly the weight to be given to them, is required. Where appropriate a comment is provided about the relevance and weight of each statement. These are taken in the same sequence from the original Report (Appendix A).

a) Mrs. P. Allaway - states use between 1962 to 1985 in the belief it to

be a public footpath. However, she also refers to having seen a sign at the Black Pad end of the alleged footpath indicating the land was private property and there is no public right of way. She says this was in 1995.

b) Mr. F. Bailey - states use between 1947 to the early 1990s believing

it to be a public footpath. He refers to having seen a notice quoting Section 31 of the Highway Act 1980 at the Black Pad end of the footpath. He states it was not accessible at either end due to steel fence and brambles.

c) Ms. Barnett - states use between 1979 to 2000 in the belief it to be a

public footpath. She recalls a gate was closed with padlock in about 1995 with a notice saying this is a private. She recalls the gateway was overrun with nettles and brambles.

d) Mr. S. Carter - states use between 1947 to 1981 in the belief it was

a public footpath. It is to be noted his use ceased by 1981 and therefore for the purposes of the 'BIQ' test his use only falls partly within the 20 year period to the application being submitted in 2000.

e) Mr. D. Dennett - states use between 1946 to 1976 in the belief it

was a public footpath. He recalls seeing at the Black Pad end a notice quoting Section 31 of the Highways Act 1980 and a gate closure.

f) Mr. P. Ellis - states use between 1961 to 1994 believing it to be a

public footpath. He recollects seeing a notice quoting Section 31 of

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the Highways Act 1980 stating this roads "pathway is private and is not dedicated as highway".

g) Mr. S. Ellis provides an identical statement to that of Mr. P. Ellis. h) Ms. J. Farmer - states use between 1957 to 1996 (until closed)

believing it to be a public footpath. She does not recall seeing any signs or notices along the route at all.

i) Ms. M. Farmer - states use between 1959 until closed in the belief it

was a public footpath. She also does not recall seeing any notices at all.

j) Mrs. E. Green - states use between 1965 to 1994 in the belief it was

a public footpath. She recalls seeing a notice in 1995 stating "Section 31 Highways Act 1980 this road/'pathway' is private and is not dedicated as a highway". She recalls there was a spring gate at the Black Pad end overrun by brambles.

k) Mr. D. Noakes - states use between 1948 to 1994 averaging about

four to five times a year but has indicated 'no' to the question of whether he believed the route to be public. However, there is a note in his statement, written in to say, Mr. Noakes meant to indicate 'yes' as to be public. He does not recall seeing any signs or notices along the route. He says he believed it to be a very old 'short cut' used by people living and working in nearby areas for at least 300 years.

l) Ms. E. Smith - states use between the 1960s during the day time in

the belief it was a public footpath. In response to the question of notices she has not indicated whether the answer is 'yes' or 'no'. She recalls the gates to Carlton Hayes from the top of the Black Pad were never locked and there was always free access to Ten Pound Lane. However, her use would pre-date the relevant period of 20 years for the purposes of Section 31.

m) Mr. E. Tometzki - states use between 1954 and 1994 in the belief it

was a public footpath. He does not recall seeing any notices at all. He does, however, add that he used to live at the farmhouse in Carlton Hayes Hospital grounds between 1971 and 1981 and also worked for the hospital from 1950 to 1981. Therefore, in view of his employment at the hospital and also that he lived at the farmhouse, use by him cannot be taken into account for the purposes of Section 31.

n) Mrs. B. Watkins - states use between 1968 to 1988 and later in

1991 to 1995. She says she was a regular user but believed it to be a public footpath. She says there was a lock on the gate with a closure sign at the Black Pad end at the time when the Sylvia Reid House was taken over as office space.

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o) Mrs. I. Wilson - states use between 1940 to 1990 believing it to be public. She does not recall, however, seeing any signs or notices at all.

p) Mr. G. Young - states use from the late 1930s through to closure, with occasional use but believing it to be a public footpath. However, he does not recall any notices until the notice appeared on the large gates at either end as the present landowner arrived.

q) Mrs. M. Young - states use from the 1950s on or off at various times

to closure of the route. She states she believed it to be a public footpath. She states there were no notices of any sort until the land was sold to the Alliance and Leicester around 1980 when the track was blocked off and one hand-gate removed at Ten Pound Lane.

r) Mr. E. Webster-Williams - states use for two or three months in

March 1986. He believed it to be a public footpath. He did not see any notices or signs on the route (additional statement).

It is difficult to find a convincing or consistent thread from these

statements. Some persons stopped using it before 1995 but saw notices. Some continued up to 1995 and saw no notices at all. At least two lived or worked at the hospital and therefore had an obvious implied consent to be there. Only five people say there were no notices until 1995.

41. In addition to the above statements a number of letters have been

received in support of the application. These are included in the 'documents attached' of Appendix A as ‘Letters of Support nos. 1A to 1E’.

42. One particular letter has raised some interest. In the letter of

15th December 2003 from Mrs. Mary Young, Acting Secretary of the Narborough Hayes Residents' Association, she recounts some of the history of the site. She refers to the land at the original time when the Asylum was open which she says was in 1907. She says that metal railings were put in surrounding the land but hand-gates were placed in position where the track entered the lower end nearest Forest Road which was then Forest Lane. The other end joined Ten Pound Lane. When the farm buildings were erected a slight diversion was made at the side of the farm. She does mention the hospital was built for private use and that many people of both villages (Narborough and Enderby) worked there and the hospital also provided housing for staff in the area. Local village communities became involved in the hospital and charities were soon set up and running. She states that prior to this time, around 1960, (referring to when the farm itself came into disuse from about 1948) the gates to the main entrance were removed and the hospital grounds were opened up so that patients had more freedom to move about outside if necessary. The two village communities continued to be involved as garden fetes were arranged every year, cricket matches took place and dances were regularly held in the Beautiful Ballroom. Other facilities were tennis, archery and croquet. The church before and at the time was also well attended by patients, staff and members of the public. The

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WVS got involved in a mobile library which was run by one of the local residents.

43. Although the statements clearly refer to use by local residents for some

years, a crucial issue has arisen as to whether the use was as of right or whether it was by toleration by the hospital authority. The principle difficulty for anyone managing the hospital between 1907 to 1995 had, just as is the case today with the main complex of the Alliance and Leicester Headquarters, is that the land on which the alleged footpath lies is remote from the main complex. Given that the land was acquired as a hospital in 1907 and that the patients were understood to be voluntary patients who had considerable freedom when it was appropriate to do so, both to wander the hospital grounds and also to leave the hospital, questions have arisen as to whether public access to the land was appropriate for such use.

44. In particular, the suggestion is that local people were welcomed on to the

land and in particular on occasions where there were events taking place which local people were invited to participate together with patients and staff. Given the nature of use of the land the question has to arise as to whether the hospital authorities would have been prepared to allow such use to have taken place on the grounds that it would have created a burden on the land which had been purchased by public subscription for hospital purposes. It is doubtful indeed whether the Trustees who would have held the land in legal ownership could have, or would have, been prepared to dedicate the land for such public use given the effect this would have had on the viability of the land and also the ability to stop people crossing the hospital grounds. There is no evidence to suggest that between 1907 and 1995/96 whoever was responsible for the management of the site took any steps to encourage the use of the claimed right of way.

45. There is no doubt that with the acquisition of the land by the Alliance and

Leicester plc security at the site has been considerably enhanced. Although the footpath lies some way from the main complex, it is understood that some security measures are taken and although the Alliance and Leicester permit use of the land for general public access, there is no suggestion that it is prepared to allow this to be used as a public right of way rather than a permissive route. It is also understood that public access to the land is not confined to the claimed footpath but does occur over a wider extension of land adjoining the main access to the Alliance and Leicester plc Headquarter complex. It is difficult to see how public access to the land would have been consistent with the purposes for which the hospital had been set up. Given the lack of documentary evidence which shows any route contiguous with the footpath claimed by the Parish Council until at least partly in 1916, the inference may be that the origin of the alleged route comes from the foundation of the hospital.

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46. There must also be a question of whether the hospital authorities would have been able to ascertain that people were crossing the hospital grounds. The main body of staff and management would have been located at the hospital itself and given the frequent passage of traffic between the hospital, Sylvia Reid House and other parts of the hospital which at the time were partly Crown land, it is difficult to see how access could have been restricted. Indeed, the tenure of the history of the hospital grounds appears to suggest that local people were welcome to mix with patients to a certain extent and take part in the events, but that of course is a very different legal situation as it would be by licence and permission, rather than by right. None of the user statements go back before 1945. Therefore, there is no evidence that can be considered which shows use has taken place before the hospital was built. All indications of use before 1900 are purely based on map evidence (which is to say the least non-supportive) and assumption. In fact, the map evidence shows no field gaps or crossings until the hospital was built.

Intention to Dedicate 47. Bearing in mind that even if it were to be shown there has been a

sufficient period of use by the public as of right, even a substantial length of public use would not in itself create a public right of way if there was sufficient evidence of a lack of intention to dedicate. The appropriate period in question here, in my opinion, has to be taken from the time when it was brought into question (the 'BIQ' test). Therefore, it is essential to establish when the rights of the public, if any, were brought into question by the landowner or by any other action.

48. There is no doubt that the erection of notices brings the question of the

public right into question. Because there is an inconsistency in the evidence relating to when notices were erected, investigations were taken up with the National Health Service Trust to establish if there was evidence to be obtained.

Subsequently, in 2004 and 2005 statements were taken from two

witnesses on that issue. New Evidence 49. As part of further enquiries undertaken since the meeting of the Board in

August 2003, officers were able to obtain a response from the NHS Trust to their earlier enquiry.

In February 2004 an interview took place with an authorised

representative of the Leicestershire and Rutland Facilities Partnership N.H.S. The interview was carried out by a solicitor in the presence of a record maker. The interview took place at the NHS offices at Thurmaston.

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50. Appendix B - Statement of Mr. L. Pearson Mr. Pearson was present at the former Nurse Training Centre at Carlton

Hayes Hospital from 1989 to 1992. He was familiar with the site. At the Forest Road (Black Pad) end he remembers there being two

gates. The first provided access to the rear garden of Sylvia Reid House and the second provided access for the farmer to the field adjacent. Both gates were normally padlocked. He says that in 1989 (which would be when he was first based at Carlton Hayes) he recalls there being signs on both gates in similar wording as the signs which exist at the same location today. He believes the signs and the gates were in existence for up to 10 years prior to 1989. He recalls that any person seen on the farm would be challenged by the farmer when the land was tenanted and also by staff members and security officers and asked to leave if they were not en route to the hospital itself. There were no security staff based near the path as it was fairly remote from the main building. He also recalls that events took place at the hospital and farm including cricket matches and charity events to raise funds for the hospital. On those occasions visitors would enter the grounds by way of the hospital main gate.

51. Given his clear recollection there were signs present in 1989, some years

before the Alliance and Leicester acquired the site, it was felt necessary to bring this to the attention of Narborough Parish Council to see if there is any additional evidence that could be obtained.

In January 2005 your officers were able to interview a further witness in

respect of this matter. 52. Appendix C - statement of Mrs. S. Human

She recalls moving into the Narborough area in April 1986. She recalls at that time a notice on the gate (point D on the Order Plan) which stated "Section 31 Highways Act 1980. This road/pathway is private and is not dedicated as a highway". Due to the weathering of the notice it appeared to her the notice may have been approximately two or three years old.

She also recalls at point A on the Order Plan (Black Pad end) a notice

affixed to a gate which stated 'Section 31 Highways Act 1980. This road/pathway is private and is not dedicated as a highway'. She states she was aware that hospital staff used to live in the some of the houses along Carlton Avenue, Narborough and they would use the track from King Edward Avenue towards point C on the plan for access.

53. She confirms that she is a Narborough Parish Councillor and was also

present at the Parish Meeting when the issue of the alleged footpath was discussed. She states that she did mention she had seen the notices but that the majority of those present at the meeting support the application subsequently made to the County Council.

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54. A site survey was undertaken by officers in 2000. This site survey recorded the existence of the signs referred to. These are referred to as old and weather beaten.

55. Members have to consider the relevance of these statements and also

the weight to be attached to these. Obviously, Members will notice that there is a clear contradiction of evidence between those of who have submitted user forms in support of the application and the more detailed statements of Mr. Pearson and Mrs. Human. The important point to be made is that it is not necessarily the case that some people are more accurate in their recollections than others. It is not required that Members decide that Mr. Pearson and Mrs. Human are wrong and that others are right in which they recall seeing in 1995 and could not have seen previously. The question for Members is whether they feel confident there were no notices on site prior to 1995 and if there were, whether these are likely to have been seen by people at that time.

56. It is not impossible, however, that there were notices at one or both ends

of the alleged route which have become a common place feature of the site boundaries and have perhaps even become aged and were concealed by vegetation (which it has to be said is present in some quantity). Such notices may have been missed. The recollection of Mr. Pearson is obviously important. He was based at the hospital apparently full time over a period of three years and as Estate Manager was responsible for the land itself. His clear recollection is that in 1989 when he arrived at the hospital site and familiarising himself with the site he recalls that there were notices. He believes the signs may have existed for up to 10 years prior to 1989. That is to some extent consistent with the condition of the notices when they were seen by officers in 2000. Although it is not impossible that notices can age fairly rapidly in open weather conditions, his evidence is that the signs were there when he arrived in 1989.

57. Mrs. Human is also quite clear in her recollection. She only became

aware of the route in 1986 when she moved into the area and took to exercising her dog. Her clear recollection at that time (and which she made clear to the meeting of the Parish Council when the matter was considered), was that there were signs which she recalls when she first used the path.

Her evidence, therefore, corroborates that of Mr. Pearson. 58. It is to be further noted that six of the people who submitted user

statement forms apparently have never seen any notices, although between 1995-2000 they clearly must have been fairly prominent.

59. The provision of such notices is to some extent consistent with the

position of the Hospital Trust prior to sale of the land.

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60. However, there is a clear conflict of evidence as to whether notices were present on site prior to 1995. If such notices were present, these could only have been installed by the Hospital Management at that time or been in existence for some years. Whatever the situation that is a clear indication the hospital did not intend there to be a public right of way. If that is the case, it is difficult to construe an argument that over the many years in which the hospital was in operation the Trustees of the hospital could have said that they knew of and were prepared to grant a public right of way.

61. It is the case that stiles were apparently provided at points along the

route. These are at both access points and apparently at a point close to the farm itself before it was disused. However, the suggestion that these must have been provided to facilitate public access could equally be answered by a suggestion they were installed for the benefit of staff and patients to enter and leave the hospital. The hospital itself was not a secure psychiatric unit. Patients were allowed to leave the premises and indeed may even have shopped in the local village before returning to the hospital.

62. The period of 20 years must be a full period of 20 years and without any

interruption or challenge by the landowner which may indicate the lack of intention to dedicate.

It is important to establish when the 'BIQ' event occurred and then to count back 20 years. To do that, the following chronology may assist.

Chronology 63. i) 1949 In 1949 the County Council prepared the first Definitive Map for the

County. This was based on survey returns from the Parish Councils who were given guidance on the task of surveying their area, identifying public rights of way whether footpath, bridleway or other status and then submitting this for the purposes of being included in the first draft Definitive Map and Statement. The Narborough and Littlethorpe Parish Council submitted a return for its area but did not include this way as a claimed footpath. The Narborough Parish Council survey was returned in 1951 with the following comments in respect of this particular route.

"This footpath has not been marked up on the map, as according to

the extract from the Enclosure Award 1752 it was closed at the time. It is, however, still marked on the ordnance sheet as a footpath (FP). Starting at the end of the 'Black Pad' (No. 6) through an iron field gate that runs across plot 295, a short distance in 319 and then into 98 ending on the service road to Farm. The whole FP is within the Mental Hospital grounds and for that reason is presumably not a public footpath. It follows the line of the Upper Fosse Way.

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The Director of Community Services identified the route described would appear to be the same route that is the subject of this application, except it does not extend as far as Ten Pound Lane.

It has to be noted that in fact the Enclosure Award in question does

not refer to any closure. In addition, it is to be noted that had the footpath been closed as a result of such an Enclosure Award, any subsequent public use over a substantial period of time would have been enough to have generated an argument that public rights of way had been recreated. The Parish Council in 1951 did not believe the footpath to be public as it crossed the Mental Hospital grounds on which basis it was not presumably a public footpath. This, in my view, constitutes a significant comment on the status of the way at that time. It is to be noted that even when submitting this survey, Narborough Parish Council did not describe the footpath as continuing onto Ten Pound Lane.

ii) In 1957 the County Council carried out a Review of rights of way in

accordance with the provisions of the National Parks and Access to the Countryside Act 1949. Proposals were then published and there was no application by the Parish Council to add this route as a public footpath at that time.

iii) In 1968 under the provisions of the Countryside Act the County

Council was required to carry out a further review of rights of way and to publish any draft proposals for change. In the period 1978-1980 all Parish Councils were consulted on proposals at that time to change the Definitive Map. It was then open to the Parish Council to have this footpath added to the Review Map as a public footpath.

iv) 1981. Under the provisions of the Wildlife and Countryside Act

1981, the Definitive Map then came under continuous review. That is, it was no longer necessary to wait until a Review of the map had been announced before an application could be made to the County Council to add a footpath to the Definitive Map. However, there was no application at any time after 1981 to 2000 to add this way to the Definitive Map and Statement.

v) 1995. There appears to be no doubt that steps were taken by the

Alliance and Leicester plc at that time to secure the boundaries of the site. It appears at that time that padlocks were fitted to the gates. It was also at this time that it is said that notices were first erected on the site. However, it is to be noted that no action was taken at that time either to submit any complaint to the County Council about these actions, or directly to the Alliance and Leicester plc. Those steps clearly in themselves constitute an interruption or challenge to public use but did not result in any response from the public.

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vi) 2000. A formal application was made to Leicestershire County Council by the Narborough and Littlethorpe Parish Council under the provisions of Section 53 of the Act to add this to the Definitive Map and Statement. It is to be noted this was five years after the path was closed to public use.

64. For the purposes of counting back to establish the BIQ occasion, the

date of 1995 is obviously the most striking event. With the apparent physical closure of the path and notices erected to tell people it is not a public highway it was obviously now in dispute.

65. However, there is in my view a very strong argument that the footpath

was first brought into question as early as 1951. It is not required that the act or challenge which brings the footpath in question is carried out by a landowner. Section 31 simply requires the question of the status of the way is brought in to question. It could be by someone raising the issue as to whether public rights of way exist at all over the way. It is not uncommon that in 1951 Parish Councils carrying out the survey often missed rights of way which later they realised they had to make an application for. However, that generally applies to instances where a way is of such a nature that it may have been missed on the survey and only later it becomes an issue, perhaps when the right of way is closed or a landowner challenges the right to the public to use it. In this case, however, the Parish Council looked at this particular route and decided not to show it. They went further by actually telling the County Council it was not a right of way. Although the Parish Council was mistaken in its belief the way may have been closed in the 18th Century as part of the Enclosure Award, their failure does appear to be of some significance.

66. The procedure was that in 1951 any proposals would be published in

newspapers and the landowner would obviously have the opportunity of defending their position at that time. It is also to be noted that when the land was sold by the Hospital Trust (NHS) in 1995 to the Alliance and Leicester plc no mention was made of a right of way across the land which might burden the freehold to the land. Had it been the case that a right of way was acknowledged to exist by the Hospital Trust or this was apparent by public use, it is surprising that this was not made clear at the time when disposal of the land took place. It would have been a significant legal condition on the sale as it posed a serious lack of security.

67. The final test (c) is - "The way is to be deemed to have been dedicated

as a highway unless there is sufficient evidence that there was no intention of ignoring that period to dedicate it."

68. Assuming that the appropriate count-back period for the purposes of the

BIQ test is 1995, then the public use has to be shown to exist between 1975 - 1995. When this case was submitted to the Board for consideration in 2003 it was an important aspect of the case in support of the application that there had been no action by the landowner until 1995 to challenge such use. However, evidence now available to the County

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Council suggests the strong probability that there were notices present on site before 1995 which challenged public use. There is no doubt that the posting of notices in itself is sufficient under Section 31(6) of the Highways Act 1980 to prevent the creation of any public right of way across private land.

69. For that purpose, landowners frequently erect notices referring to either

the Highways Act 1980 or to its predecessor, the Public Rights of Way Act 1932 stating that there is no public footpath and that the land is private.

70. In 2000 when the application was submitted to the County Council, the

owner of the land (Alliance and Leicester plc) had clearly stated its position that it recognised no right of way across the land it had acquired from the former Hospital Trust. Therefore, the issue is whether prior to that time it could be said the owner intended there to be a right of way and whether there was sufficient evidence to show that even before that time the owner of the land had no intention to dedicate a public right of way.

Summary 71. The documentary evidence (maps) is clearly inconclusive. The physical

existence of the footpath is only noted in years after the hospital itself was established. Had there been substantial public use prior to that time this would have been recorded as a physical track on the ground and there appears to be no such track. When it does appear, it is firstly only from the Black Pad end up to the hospital drive. The next part between the drive, passing by the farm and then finishing at Ten Pound Lane only appears later in 1938.

72. The hospital was clearly private grounds and not intended to be a public

facility. There is some doubt as to whether the Trustees of the hospital, set up by private subscription, even had the power to dedicate a public right of way. It is an important point of law that if a landowner cannot actually dedicate a right of way expressly, by offering it to the public for such use, then such a right of way cannot be imposed on the owner of the land. That is because if a landowner lacks the necessary legal power to dedicate the public cannot acquire it by use of it so as to create dedication by default. It is not possible today to establish whether the Hospital Trust was bound by any conditions which would allow them to dedicate the land.

73. It seems to be accepted that the hospital regime was fairly relaxed.

Members of the public may well have come onto the site to speak to patients or even take part in events with patients. It is not indicative of a public right of way but only of a licence or consent by the hospital authorities. Such a right to wander over the hospital grounds or take part in events does not create a public right of way.

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74. In 1949 the Parish Council could have claimed this route as a public footpath. It did not do so in the belief it was not a public right of way. However, if use had been taking place at that time it does seem questionable as to why is was not claimed as a public right of way even based on a substantial period of use. No action was taken to claim the route as a public right of way until the Alliance and Leicester acquired the site.

75. There is only inconclusive evidence regarding the possible existence of

notices. Those supporting the application say they did not appear until 1995. However, those who recall the site in more detail recall there were notices there in 1986 and 1989. Members may wish to consider whether the Estate Manager, Mr. Pearson, with daily involvement at the site would have been more likely to have been aware of the existence of these notices and what they were there for. On balance, if a preference has to be made for deciding whether the weight of evidence is more one way than the other, it may be assumed that the more detailed statements outweigh those who clearly are referring to the time when they made their statements in 2000. By 2000 the footpath had apparently been closed.

76. In law, the Authority has to be satisfied that even on the lower standard

of proof required of Section 53(3)(c)(i) of the Wildlife and Countryside Act 1981 that a right of way has been reasonably alleged to subsist. In this case there is a clear conflict of evidence and, given the lack of historical evidence supporting the right of way, any case for its existence has to be found in the application itself. Although the user forms sufficiently cover the period of 20 years prior to 1995, they are obviously ambiguous when it comes to the question of when notices were erected on site.

77. Further, if the appropriate period of time is counted back 20 years from

1951, for which there is a very strong case in terms of when it was brought into question by the actions of the Parish Council, there is no witness who could today give evidence of what the situation was at that time. However, in 1951 the Parish Council could have claimed the footpath but claimed only the Black Pad. For those reasons, it would be difficult to put forward an argument that prior to 1951 there is any evidence available to show a right of way was being used at that time and without challenge by the owner of the land.

78. A further inspection was carried out on 13th November 2005. It was

noticed that the notices in question appeared still to be attached to the railings at both ends of the alleged route. At the Black Pad end the notice was clearly visible and completely unobstructed. It could clearly be seen by anyone who was standing facing the Alliance and Leicester Headquarters at that point. At that point there is a gate which gives access onto what appears to be the former agricultural track which lies between the Black Pad (footpath W29) and the Alliance and Leicester Headquarters. This intervening track is considerably overgrown and there appears to also have been some earth movement which would have made walking across this to have been extremely difficult. There

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are railings erected across it which would prevent any vehicle from making use of this way. There is no access at that point to the rear of Sylvia Reid House which now appears to be completely walled and enclosed. There is a second gate along what appears to be the immediate boundary of the Alliance and Leicester Headquarters. Both gates are considerably overgrown and there is no indication of any use which may have taken place for a very considerable time.

79. At the Ten Pound Lane end of the alleged footpath there remains a gate.

The gate is not locked but would be impossible to open due to the substantial overgrowth and a particular hedge which has been strongly rooted into the ground. It was not possible to open the gate and there are no apparent indications that it has been open for some considerable years. There is a notice also at this end which was clearly visible.

80. Following the line of the alleged footpath within the grounds of the

Alliance and Leicester, it is clearly the case that this lay within the fold of the land. The buildings which now constitute the Alliance and Leicester Headquarters are set back on the skyline. There is considerable drop in the land from that point all the way down to Leicester Road (B4114). At this time, it is possible that anyone walking the line of the alleged route could not have been seen from any buildings erected towards the rear of the site. Whether this was the case when the former Carlton Hayes Hospital buildings were still in situ is not easy to see. Nevertheless, the driveway to the former Leicester Asylum is still clearly visible although the gates on Leicester Road have now been shut off. This driveway rises quite steeply until it reaches the top of the incline. During the course of the site visit two persons were seen to enter the land with dogs and then to wander over the fields. Neither, at any time, came close to the line of the alleged footpath.

81. The existence of a public footpath of course does not give a right to roam

across land for the purposes of general recreation or dog walking. 82. In assessing the application your officers have tried to see whether there

is a sufficient body of evidence to suggest whether on documentary evidence or user evidence there is an accumulation of evidence showing a public right of way.

83. In 2003, any concerns over the ability of the hospital to dedicate a right of

way were put to one side as it appeared that any such right had only been brought into question when the land was acquired by the Alliance and Leicester plc.

84. However, the position now appears to be quite different. The crucial

point appears to be in 1951 when the Parish Council had the opportunity to claim this footpath but did not do so because it crossed the hospital grounds. It is your officer's view there can be no clearer indication at that time of considerable doubt as to whether a public right of way existed. It was the duty of the Parish Council to search out rights of way in their Parish and claim these for the future public use. They did not do so

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because they had enough doubt as to its legal status as to persuade them not to claim it.

85. Given the further uncertainty about when notices were erected, the only

reasonable conclusion that can be reached is that the way in question only came physically into existence after the establishment of the hospital. There is no evidence of actual public use taking place prior to the establishment of the first draft Definitive Map. In those circumstances, any case to put forward at a Public Inquiry would have to rely upon documentary evidence, together with any acquisition of such a right since 1949. It is difficult to find any period of 20 years when it could be suggested the hospital management authority of the time had intended to dedicate the way as a public footpath.

86. In those circumstances, there appears to be insufficient evidence to be

able to sustain a successful case at Inquiry and it is recommended that no order now be made.

Public Access 87. In October 2005 the Director of Community Services approached the

Narborough and Littlethorpe Parish Council suggesting a meeting to discuss how public access to the land could be enhanced. The Parish Council was made aware the application was to be re-considered. A possible option to protect local use of the land might be to enter into arrangements with the Alliance and Leicester plc for an access agreement. Given that there is no present use made of the footpath, which has only limited public utility, but a desire for local people to be able to access the land, such an arrangement could protect those rights for years to come. Such agreements usually last from 10-20 years during which time the public, within reasonable bounds, are able to enjoy the land and be comfortable in their rights to be on the land.

88. However, the Director was informed that the Parish Council had

considered the option but had resolved not to accept the possibility of a permissive path and was looking to the County Council to approve the original application.

89. It is to be noted that the suggestion of an access agreement would have

had a wider benefit for local people than that suggested by a permissive path arrangement. In those circumstances County Council officers have not pursued this option further and whether it would be possible to do so in the future obviously depends on the situation at that time.

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