Hampshire County Council Item 6

Regulatory Committee

7^th January 2004

Proposal to modify Diversion Order for Footpath 32, Ashford Hill With Headley

Report of the Director of Recreation and Heritage

Contact: Sally Plummer ext : 6040, email: [email protected]

Diversions of footpaths and bridleways may be made under Section 119 of the Highways Act 1980 as amended by the Wildlife and Countryside Act 1981 as being either: -

"Expedient in the interests of the owner, occupier or lessee of land crossed by the right of way" and/or "Expedient in the interests of the public".

Members must be satisfied that the diverted route will not be substantially less convenient to the public, and must have regard to the effect which a diversion will have on the enjoyment of the path as a whole.

1. Summary

1.1 At the Regulatory Committee meeting of 10^th April 2002, members made the decision to make an order under Section 119 Highways Act 1980 to divert Footpath 32 Ashford Hill with Headley as shown on the attached order plan.

1.2 Following the making of the order, an objection was made requesting that a section of the path to be diverted be left in place as a cul-de-sac.

1.3 It is proposed that the order should be submitted to the Secretary of State for confirmation as modified to take account of the objection.

1.4 Members consent is sought for this course of action.

2. Background

2.1 The order was made in the interests of the landowner as the diversion removes the footpath from the farmhouse drive and avoids the walker doubling back on themselves.

2.2 The only objector to the order was the Open Spaces Society, which is concerned with the removal of footpath rights from the section marked on the attached order plan as D-C and their objection is made on the grounds that:

a) It is an attractive 200 metre length of woodland path

b) The applicant does not own the land that this section of path crosses

c) Although the extra length will be an increase in maintenance burden for the County Council, the diversion order reduces the length of footpath overall and therefore is adequate compensation.

d) The track that the cul-de-sac path will meet at point C on the attached order plan, which is not a recorded right of way at present, may well have higher rights and if a claim were to be made and investigated, the cul-de-sac path would serve good purpose.

2.3 The Open Spaces Society has stated that were the order to be modified to include this length of path, it would withdraw its objection.

2.4 The fact that the applicant does not own this stretch of path as is mentioned by the Open Spaces Society has no bearing upon this. The owner of the land in question has signed a consent form indicating his agreement to the order being modified as suggested. Point b therefore is irrelevant.

2.5 There is some merit in point a, as the path is indeed an attractive path through woodland. However, there would normally be some reluctance to leave a cul-de-sac path as it would serve no useful purpose in the network and users will be forced to return the way they have come. The County Council will also remain responsible for maintenance of the surface of this path and the public purse will be required to fund its clearance.

2.6 Nevertheless it could be argued that an attractive cul-de-sac path is in fact an asset to the network and that in any event the path should not be extinguished until we are satisfied whether public rights do or do not exist along the track mentioned.

2.7 It is therefore open to the County Council to:

a) proceed with the order as it stands and send the papers to the Secretary of State for resolution, or;

b) send the order to the Secretary of State requesting that the order be modified to leave C to D remaining as public footpath.

3. Proceeding with the order as it stands

3.1 If the County Council wishes to proceed with the existing diversion order it must send it to the Secretary of State for resolution by an inspector, who will decide (by way of written representations, public hearing or public inquiry) whether or not the order should be confirmed as made, as modified or not confirmed at all.

3.2 The order complies with the criteria laid out under the Highways Act 1980 and as such it is felt that it can be defended to an inspector through any of the above mentioned processes.

4. Modifying the Order

4.1 The County Council can send the existing order to the Secretary of State with the request that it be modified prior to confirmation. The Secretary of State has the power to modify a public path order to divert or extinguish a lesser length of path.

4.2 As the modification does not affect any new land, the Secretary of State will not be required to re-advertise. There is some concern that this would deprive an interested party from objecting to the proposed modification. Although, from the responses we have received, it is not though likely that there would be anybody prejudiced by this modification.

5. Conclusion

On balance, we are minded to recommend to members that the order be proceeded with on the basis of the modifications proposed by the Open Spaces Society.

6. Recommendation

That the order be submitted to the Secretary of State with the request that the order be modified to show the section of path between D and C on the order remaining as public footpath.

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: Ashford Hill with Headley, Footpath 32

File Ref 9/10/01

Mottisfont Court, High Street, Winchester