Hampshire County Council Item 5

Regulatory Committee

9^th April 2003

Proposal to Extinguish Part of the Width of Footpath 4, Eversley

Report of the Director of Recreation and Heritage

Contact: Sally Plummer, ext 6040

Extinguishment of a footpath or bridleway may be made under Section 118 of the Highways Act as amended by the Wildlife and Countryside Act 1981, on the grounds that it is not needed for public use.

Highways Act 1980, Section 118:

Stopping up of footpaths and bridleways

(1) Where it appears to a council as respects a footpath or bridleway in their area (other than one which is a trunk road or a special road) that it is expedient that the path or way should be stopped up on the ground that it is not needed for public use, the council may by order made by them and submitted to and confirmed by the Secretary of State, or confirmed as an unopposed order, extinguish the public right of way over the path or way. An order under this section is referred to in this Act as a `public path extinguishment order'.

(2) The Secretary of State shall not confirm a public path extinguishment order, and a council shall not confirm such an order as an unopposed order, unless he or, as the case may be, they are satisfied that it is expedient so to do having regard to the extent (if any) to which it appears to him or, as the case may be, them that the path or way would, apart from the order, be likely to be used by the public, and having regard to the effect which the extinguishment of the right of way would have as respects land served by the path or way, account being taken of the provisions as to compensation contained in section 28 above as applied by section 121(2) below.

(3) A public path extinguishment order shall be in such form as may be prescribed by regulations made by the Secretary of State and shall contain a map, on such a scale as may be so prescribed, defining the land over which the public right of way is thereby extinguished.

(4) Schedule 6 to this Act has effect as to the making, confirmation, validity and date Where, in accordance with regulations made under paragraph 3 of the said Schedule 6, proceedings preliminary to the confirmation of the public path extinguishment order are taken concurrently with proceedings preliminary to the confirmation of a public path creation order or public path diversion order made under section 119 below then, in considering-

(a) under subsection (1) above whether the path or way to which the public path extinguishment order relates is needed for public use; or

(b) under subsection (2) above to what extent (if any) that path or way would apart from the order be likely to be used by the public; the council or the Secretary of State, as the case may be, may have regard to the extent to which the public path creation order or the public path diversion order would provide an alternative path or way.

(5) For the purposes of subsections (1) and (2) above, any temporary circumstances preventing or diminishing the use of a path or way by the public shall be disregarded.

(6) In this section and in sections 119 to 121 below `council' includes a joint planning board, within the meaning of the Town and Country Planning Act 1990, for an area which comprises any part of a National Park.

1. Summary

Mr M J Slater of Bakers Farm, Eversley has applied to have part of the width of Footpath 4 in the Parish of Eversley extinguished on the grounds that it is not needed for public use. (See attached location plan.)

Objections were received following consultation with user groups and local people, it is not felt to be expedient to make an order and the Regulatory Committee is recommended to refuse the application.

2. Background Information

The statement for the relevant part of Footpath 4 reads,

`From road A327 through field gate, and westwards along earth track enclosed 20ft wide (6.1 metres) between wall and hedge...'.

The Footpath at present leaves Eversley Street (A327) and runs westwards along a narrow path, approximately 1.2 metres wide at its narrowest point. The path continues westwards towards Lower Common, however only the first 30 metres or so is affected by this application. As shown on plan A attached, a driveway has been built over the route of the footpath. This appears to have been built over twenty years ago, however, according to local people, the full width of the footpath was still accessible along the drive way until a few years ago when gates were locked. It is understood that the obstructions that exist now, a fence, hedging and drive pillar, have appeared over the last twenty years or so.

The applicants were informed that the current width of the footpath is too narrow and that the minimum acceptable width would be 2 metres. The applicants agreed to open up the path to the two metres width prior to the making of any order.

The footpath also makes up part of the Blackwater Valley Trail, a long distance footpath which is promoted by the Blackwater Valley Countryside Service, sponsored by Hampshire County Council.

3. Summary of Consultations

Hart District Council

No response

Eversley Parish Council

Objects to the application on the grounds that there would be no public benefit, the narrowed path becomes muddy and often impassable in winter and it is felt that were an order to be made, other landowners would be encouraged to follow a similar course of action.

Local Member

Councillor Glen

Objects to the proposal and supports the comments made by the Parish Council. Councillor Glen would also like to recommend that the Committee ensure all obstructions are removed.

The Highways Section, Environment Department

No comment

The County Archivist

The area is not affected by an enclosure map.

The route is shown on the OS 6" scale sheet 1^st edition (1871-2) and the Tithe Map of 1842. On the Tithe Map the route is shown as possibly gated approximately 30 metres from the start of the path at the A327. The section of the route beyond this is numbered 422a and recorded in the award as `Driftway'.

The Planning Section, Environment Department

No response

British Horse Society

No response

The Ramblers Association

No objection provided that it is first made a condition that the two metres width be opened up.

Open Spaces Society

States that it is not the policy of the Open Spaces Society to condone the unlawful enclosure of public rights of way within private properties. The Society makes a counter proposal, that the County Council serve notice on the landowner to remove the obstruction, then gate and wall the drive as shown on plan B attached.

The plan illustrates what would be the position on the ground were notice to be served on the landowner to remove the obstruction. The Open Spaces Society has been contacted to verify that this is what was intended by the proposal and this has been confirmed.

British Driving Society

No response

National Farmers Union

No objection

Cyclists Touring Club

No objection providing that the fence and hedge are removed to the agreed width of 2 metres prior to an order being made.

Trail Riders Fellowship

No response

LARA

Objects until the possible higher status of the route has been investigated.

Any possible higher rights that may exist along this route will be unaffected by the extinguishment of part of the width. The application would only extinguish recorded widths at present, should a later investigation show the route to have a higher status and a greater width, then the recorded width and status would change accordingly.

All Wheel Drive Club

No response

Blackwater Valley Countryside Service

Concern was raised regarding disabled use of the path which is something that the Blackwater Valley Service would be looking to encourage in the future. They would therefore ask for a minimum of 3 metres width.

There is no legislation governing minimum standards for disabled access. However, BT Countryside For All Standards and Guidelines (1997) recommend a minimum width of 1.2 metres for urban fringe and managed landscape paths while the Department of Transport's `Guide to Best Practice on Access to Pedestrian and Transport Infrastructure' (2002) states that within an urban environment paths should be at least 2 metres wide.

4. Comments received from local members of the public

Mr Brian Webb

Objects to the proposal on the grounds that the full 20 feet width is needed to avoid a narrow and muddy path, that the vehicular rights held by himself and his neighbours will conflict with public use on a narrow path, that the closed in nature of the reduced width is a potential crime danger point, that it will reduce the width of a historic path and is not in the public interest.

The claims for private vehicular rights over the route can not be considered within this report. The application is only for the extinguishment of public lrights and any concern at the obstruction of private rights must be dealt with as a separate matter between the individuals involved.

Mrs Freda Andrews

Objects on the grounds that this path has been part of Eversley for as long as she can remember and that with the width reduced it will become very muddy.

Mr C Webb

Objects on the grounds that it has been a right of way since 1690 and that until 1998 when the applicant padlocked the gates, the public had access to the full width of the path. It is felt that should the current landowner be allowed to encroach upon this right of way, then it may set a precedent for other landowners in similar situations.

Mr and Mrs Michael Padmore

Object on the grounds that the vehicular rights should be protected and narrowing the path would be detrimental to the aesthetic quality of the path.

Ms Tonie Parker

Objects to the proposal due to the damage to the aesthetic quality and the mud and flooding that narrowing the path will cause.

It was felt that both Mr and Mrs Padmore and Ms Tonie Parker had misunderstood the extent of path being extinguished. A letter of clarification was sent to them, explaining that it was not the width of the path along the entire length of the path that was being considered, only the first 30 metres and asking if they wished to maintain their objections in light of this.

Both replied that their objections still stood, Ms Parker adding that the start of the footpath has always been available to the public and that restricting its width now will mean that it will be easier to close the path completely in the future.

5. Comments made by the applicant

The applicant states that the path gets minimal use with 3 to 4 people using it daily during the week and up to 12 users on Sundays. It is felt by the applicant that the lack of complaint from the public regarding the restriction in width, a restriction that has existed for such a long period of time, demonstrates that the full width of the path is not needed for public use. The applicant also denies the existence of private vehicular rights.

6. Evidence of Usage

Section 118 of the Highways Act 1980 requires that the County Council have regard to i) whether the path is needed for public use and ii) the likely use that the path would get. Any temporary circumstances preventing or diminishing the use of a path should be disregarded.

Hampshire County Council has the power to make an extinguishment, not a duty. Although it could be feasibly argued that there is no actual need for this added width, the question must be whether it is expedient to make an order removing this width from public use. The lack of widespread public outcry at the loss of the width mentioned by the applicant may be explained by the obstruction of this path by degrees over an extended period of time rather than a restriction that took place overnight. The objections received to this proposal demonstrate that there is sufficient public concern to question the expediency of making an order.

Officers are of the opinion that the likely use of the full width of the footpath is the same as the likely use of the entire width of the unobstructed part of Footpath 4. It is asserted by local people that use of the entire width of the footpath would take place as this is an integral part of the enjoyment of the route.

6. Conclusion

The footpath has a recorded width of 6.1 metres but is currently restricted to approximately 1.2-1.4 metres. This obstruction would appear to have come about gradually over many years. Although it may be possible to argue that there is no public need for the full width as the obstruction has not prevented use of the path, it is likely that the full width would be used were it available. Having received objections to the proposal it would appear to officers to be inappropriate to make an order extinguishing public rights over part of the width.

7. Recommendation

That members refuse to make an order for the extinguishment of part of the width of Footpath 4, Eversley.

Section 100 D - Local Government Act 1972 - background papers

The following documents disclose facts or matters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of the report. NB the list excludes: (1) published works and (2) documents which disclose exempt or confidential information as defined in the Act:

File: Eversley, Footpath 4, Extinguishment of Part of the Width, ref:13/06/01

Rights of Way Office, Mottisfont Court, Winchester