Archived decisions

    Hampshire County Council Item

    Regulatory Committee

    30 November 2005

    Request for authorisation to stop up part of Footpath 17 in Sherborne St. John (now in Basingstoke)

    Report of the Director of Recreation and Heritage

    Contact Alex Lewis extn:6044; e-mail [email protected]

    s.116 Highways Act 1980

    (1) Subject to the provisions of this section, if it appears to a magistrates' court after a view, if the court thinks fit, by any two or more of the justices composing the court, that a highway (other than a trunk road or a special road) as respects which the highway authority have made an application under this section -

    (a) is unnecessary or

    (b)...

    the court may by order authorise it to be stopped up ...

    s.118 Highways Act 1980

    (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...

    (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 to do so 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 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

    1. Summary

    1.1 Part of Sherborne St John Footpath 17 was obstructed when the Basingstoke Popley 3 housing estate was constructed in the late 1960s. Members approval is sought to the making of an order to extinguish the path, which has been unavailable for in excess of thirty years.

    2. Background

    2.1 Work currently being undertaken by the Rights of Way Section towards the publication of a new definitive map of public rights of way has identified a number of anomalies. One of these concerns Sherborne St. John Footpath 17, a footpath which is partly now in Basingstoke and runs between Sherborne St. John and the A33, Reading Road, in Basingstoke.

    2.2 Part of this path runs across land which formed the site of the Popley 2 and Popley 3 housing estates which were constructed by Basingstoke Borough Council in the late 1960s and early 1970s. A diversion order was made by Basingstoke Magistrates on 29 January 1968 which diverted part of the path onto estate roads and footpaths within the Popley 2 housing estate, but no order has been found effecting a similar diversion (or an extinguishment) on the Popley 3 estate. Houses, gardens, roads and parking areas have been constructed over the original alignment of the path. A total of 28 houses and/or gardens would appear to be affected.

    2.3 Searches have been made in Hampshire County Council archives, Magistrates Court records and in the London Gazette, for evidence of a diversion or extinguishment order, but without success. Basingstoke and Deane Borough Council have themselves been unable to provide evidence of any relevant order. The path ought to have been diverted or extinguished before the estate was built, but it appears that it was not.

    2.4 The problem has known to exist for some time, but the small scale of the definitive map and the fact that it did not show any post-1964 development has meant that it was difficult to be sure of the extent of the problem. Recent improvements in our digital mapping (GIS), which enable us to transpose historic mapping onto a modern map base that includes recent development, makes it possible to identify with certainty where the definitive footpath runs and which properties are affected by it.

    2.5 The existence of the footpath will be revealed on a rights of way search of the type often made when a property changes hands. It will have an adverse effect on the value of the property: for so long as a footpath exists through a house or garden it may be un-mortgageable or unsaleable. There are a number of properties for which the existence of the path on the definitive maps could cause a serious problem.

    3. Alternative Routes

    3.1 Whilst the County Council would not normally resolve the obstruction of a right of way by extinguishing the path in question, in the present instance alternative routes have been provided through the estate which serve the same, or a very similar purpose to the original path. The estate road, Carpenter's Down, a little way north of Footpath 17 follows a similar alignment and has a pavement for the use of pedestrians. South of Footpath 17 there is a pedestrian-only path which runs through the estate, again on a similar alignment. It is possible that one or other of these routes was thought to be the definitive line of Footpath 17 and was retained in the belief that, by so doing, there was no need for a diversion order.

    3.2 The public appear to be well served by these alternative routes: the rights of way files do not suggest that the public at large has been inconvenienced or concerned by the obstruction. There is correspondence with Basingstoke and Deane Borough Council in 1994 about the correct line of the path, but the issue remained unresolved. Recently however, the owner of one property affected by Footpath 17 has lost a sale because the prospective purchasers' search has revealed that the path runs through the property. The inability to sell the property is, naturally, causing financial and emotional distress to the seller.

    4. The mechanism for extinguishment

    4.1 The route can be extinguished if it is not needed for public use. There is a strong argument for saying that this part of Footpath 17 is not needed if it has been unavailable to the public for in excess of thirty years, (apparently without complaint) and if alternative routes have been provided and taken up by the public. A stopping up order may be made by a Magistrates' Court on the application of the County Council (s.116 Highways Act 1980), or by the County Council or District Council making an order (s.118 Highways Act 1980) if it is expedient to make such an order. Officers consider that in view of the length of time that the path has been obstructed and the availability of alternative routes, the most expedient method of resolving this issue is for the path to be extinguished.

    4.2 The County Council should not be expected to correct at its own expense the errors or omissions of third parties and the Rights of Way Section would normally expect to the party causing the obstruction, or benefiting from its correction, to fund the application or order remedying the error (in this case, Basingstoke and Deane Borough Council as successor to Basingstoke Borough Council). To this end officers are in dialogue with Basingstoke and Deane Borough Council, but it is not clear at the date of preparation of this report whether they are prepared to make, or finance an order to extinguish the path, or indeed which of the two procedures would be the most efficient. However, to avoid any unnecessary delay, Members' approval is sought so that a way forward can be agreed at the earliest opportunity.

    4.3 Appropriate statutory consultations will take place as and when the appropriate procedure is agreed upon and commenced.

    5. The decision sought

    5.1 Members are asked to authorise officers to attempt to secure the extinguishment of the relevant part of Footpath 17 by a) approving an order to be made by Basingstoke and Deane Borough Council when consulted, or b) by making an application to the Magistrates' Court on behalf of Basingstoke and Deane Borough Council (at their cost) or c) delegating the power to apply to the Magistrates' Court to Basingstoke and Deane Borough Council and providing assistance and advice during the process if required.

    RECOMMENDATION

    That Members agree to the course of action proposed by paragraph 5.1 of this report.

Section 100D - 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 this report.

NB The list excludes (1) published works and (2) documents which disclose exempt or confidential information as defined in the Act.

File Sherborne St John Footpath 17 - Rights of Way Office, Mottisfont Court, Winchester.