Archived decisions

Contact: Alison Quant, ext 5099 email: [email protected]

Barbara Beardwell, ext 5157 [email protected]

1. Summary

1.1 An application has been received under Section 117 Highways Act 1980 (`the Act') from Alan Saunders, 36 Chilbolton Avenue, Winchester, for the County Council, as highway authority, to make an application in the Magistrates' Court pursuant to Section 116 of the Act for an order to extinguish highway rights over land at Byron Avenue, Winchester. A plan showing the area of land in question is attached together with a selection of photographs.

1.2 Such requests are not uncommon. Under Section 116 of the Act, only highway authorities can make an application to a Magistrates' Court for an order extinguishing highway rights, but a private person may make a request under Section 117 of the Act. If the highway authority grant the request they may, as a condition of making the application, require the applicant to make such provision for any costs to be incurred by the highway authority in connection with the matter as they deem reasonable. The grounds for making an Order in this case would be that the highway was unnecessary.

1.3 The land in question is a small roughly triangular shaped parcel of land measuring approximately 34 square metres at the head of Byron Avenue adjacent to a point where the metalled path leading from Shelley Close emerges at the hammer head in Byron Avenue. The land is part of the verge in Byron Avenue and forms part of the sight line when entering Byron Avenue from Shelley Close. The path from Shelley Close to Byron Avenue is currently maintained as adopted footpath, but may also be used by cyclists.

1.4 There is evidence that the route from Byron Avenue to Shelley Close is well used as part of a network which gives access through the wooded area to the west of Western Primary School through tracks linking Chilbolton Avenue and Cheriton Road. Although not definitive footpaths it is possible that these tracks have acquired highway status through long usage.

1.5 Whilst the land in question is part of the public maintainable highway, and the top "two spits" vest in the County Council as highway authority, the subsoil is not owned by the County Council. If highway rights were extinguished the highway land would revert to the owner of the subsoil as part of his landholding, and the County Council would no longer have any interest in the land. Subject to any necessary planning consents, if highway rights were extinguished the land could be developed or fenced in any way the landowner may chose to do. In the present case this would have an adverse effect on forward visibility and the perception of public safety. Current Hampshire County Council design standards (Movement, Access, Streets and Spaces Guidance) recommends that a high level of forward visibility is maintained and routes are easy and attractive to use. If highway rights were to be extinguished this would mean that these design standards would not be achieved.

1.6 The land is not registered at HM Land Registry, and it is not known who the owner is. It may be presumed that the land forms part of the landholding of the original developer of the houses in Byron Avenue, on whose land the highways, footways and verges (including this piece of land) were constructed, so there would have been an owner originally. It is not however known who the current owner of the land is.

1.7 The Highways Management section of the Environment Department, who process these requests, has carried out the usual preliminary consultations with, amongst others, all statutory undertakers, to ascertain if any have apparatus in the land in question. One statutory undertaker (SSE Power Distribution) has apparatus in the land in question, but their rights would be protected should the highway rights be extinguished. However, statutory undertakers and telecommunications system operators can remove their apparatus from land over which highway rights have been extinguished and recover the costs of relocating the apparatus from the highway authority.

1.8 One objection has been received in respect of the application. Orange, the telecommunications systems operators have, on appeal, been granted planning permission to erect a telecommunications mast on the land in question. The grant of permission has been upheld by the House of Lords. Solicitors acting for Orange have written in indicating they will resist any application.

1.9 As indicated above before highway rights can be extinguished the Court must be of the view that the highway is unnecessary. Whether or not a highway is unnecessary is a question of fact. In the leading case of Ramblers Association v Kent County Council (1990) it was held that in deciding whether or not a highway is unnecessary the Court should bear in mind the question for whom the highway is unnecessary. It has to be unnecessary for the public who have a right to travel up and down the way in question. The highway should be unnecessary for the sort of purposes the public might reasonably be expected to use the highway.

1.10 Only lawful and reasonable public user of the highway is to be considered. User which relates to purposes other than passage - for example car parking - should not carry any weight.

1.11 As indicated above the land in question forms part of the sight line or visibility splay between Byron Avenue and Shelley Close. As such it is necessary, and it would not be a reasonable exercise of the County Council's discretion to grant the request and agree to make an application to extinguish highway rights on the land in question.

2. Crime Prevention Issues

2.1 Retention of the highway verge would prevent further enclosure which could increase the fear of crime in the location by reducing visibility and amenity.

3. Impact Assessment

3.1 Race and equality impact assessment has been considered in the development of this report and no adverse impact has been identified.

Recommendations

1. That a request made pursuant to Section 117 of the Highways Act 1980 be refused in respect of an application to extinguish highway rights at land at Byron Avenue, Winchester.

2. That approval be given to reimburse the fee of £500 already paid by the applicant for the preliminary consultation stages.

399/QA