Hampshire County Council ITEM

Regulatory Committee

30 November 2005

Application for a Public Path Diversion Order for

Footpath Nos. 36 & 38 in the Borough of Fareham

Report of the Director of Recreation and Heritage

Contact: Andrew Jones: Ext 6891 E-mail: [email protected]

Orders for the Diversion of Footpaths and Bridleways may be made under Section 119
of the Highways Act 1980, as amended by the Wildlife and Countryside Act 1981,
in the following circumstances:-

"Where it appears to a council as respects a footpath or bridleway in their area
(other than one that is a trunk road or a special road) that,

in the interests of the owner, lessee or occupier of land crossed by the path or way

or

of the public,

it is expedient that the line of the path or way, or part of that line, should be diverted (whether on to land of the same or of another owner, lessee or occupier), the council may, subject to subsection (2) below, by order made by them and submitted to and confirmed by the Secretary of State, or confirmed as an unopposed order,:

(a) create, as from such date as may be specified in the order, any such new footpath or bridleway as appears to the council requisite for effecting the diversion; and

(b) extinguish, as from such date as may be so specified in accordance with the provisions of subsection (3) below, the public right of way over so much of the path or way as appears to the council requisite as aforesaid.

An order under this section is referred to in this Act as a 'public path diversion order'."

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

1. Summary

1.1 Hampshire County Council has received an application to divert Footpath Nos.36 & 38 in the Borough of Fareham, as shown on the attached plan.

1.2 It is proposed that the application for diversion of Footpath Nos.36 & 38 be considered under Section 119 of the Highways Act 1980, as amended by the Wildlife and Countryside Act 1981, on the grounds that the diversion is in the interests of the public.

2. Parties to the Application

2.1 The application has been made by Mr Giles Wheeler-Bennett, acting as Agent for Mr & Mrs Peter Barfoot of Great Posbrook Farm, Posbrook Lane, Titchfield, Fareham, Portsmouth PO14 4EZ.

2.2 Mr Barfoot is the freehold owner of the majority of the land affected by both the existing footpaths and the proposed new routes.

2.3 The remainder of the land affected this proposal (south of the field boundary near Points H and M) is owned by Hampshire County Council and managed by County Estates.

3. The existing routes

3.1 Fareham Footpath No.38 commences at Point A (GR 452742 105302) and then proceeds east and south across fields margins and along tracks to a junction with the U485 Posbrooke Lane at Point C (GR 453466 104998).

3.2 The length of Fareham Footpath No.38 affected by the proposal is approximately 922 metres.

3.3 Fareham Footpath No.36 commences at Point K (GR 452505 104224) on a junction with Fareham Footpath No.37 (Brownwich Lane). It then continues north eastwards across field systems, planted with cereals or arable crops, to a junction with Fareham Footpath No.38 at Point B (GR 453234 105082).

3.4 The length of Fareham Footpath No.36 affected by the proposal is approximately 1140 metres.

3.5 There also appears to be, in addition to these two public rights of way, an unrecorded path that runs between Points H (GR 452546 104408) and L
(GR 453072 104888) and which may have been used in the past as a `desire route' during periods when there are no standing crops in the fields. This route H-L appears on the Millenium Photographic cover and on the Ordnance Survey published mapping, and there is a finger post at Point H indicating the alignment of the path. It is intended that any public rights that might have been acquired along this route will also be diverted onto the new alignment of Fareham Footpath No.36. It is not intended to make a formal request for an Extinguishment or Diversion Order on the unrecorded path at this time, although this option is always available if a future claim is ever made.

3.6 The length of this unrecorded footpath is approximately 705 metres.

4. The proposed new path

4.1 It is proposed that Fareham Footpath No.38 will be diverted from the current alignment A-B-C to a new alignment E-F-G.
Point E (GR 452705 105136) is located at a junction with Fareham Footpath No.37 (Brownwich Lane) and the new alignment will proceed east and south along a 3.0 metre wide verge defined by fences and/or hedges on the northern boundary of the field. The new route passes through Point F before emerging at a gate on Posbrooke Lane at Point G (GR 453448 104906).

4.2 The total length of the proposed route of Fareham Footpath No.38 will be approximately 786 metres.

4.3 It is proposed that Fareham Footpath No.36 will be diverted from the current alignment K-D-L-B to a new alignment H-D-M-F.
Point H (GR 452546 104408) is located at a junction with Fareham Footpath No.37 (Brownwich Lane) and the new alignment will proceed east along a
3.0 metre wide verge on the southern boundary of the field.
At Point M (GR 452838 104364) the footpath then turns north along a wide machinery access track between the two main fields, continuing to a junction with Fareham Footpath No.38 at Point F (GR 453146 105006).

4.4 The total length of the proposed route of Fareham Footpath No.36 will be approximately 1017 metres.

4.5 An additional footpath will be dedicated along the southern field boundary from Point M (GR 452838 104364) to Point J (GR 453220 104298), in order to complete the lower east-west link between Fareham Footpath No.37 (Brownwich Lane) and Posbrooke Lane.

4.6 The making of the Public Path Diversion Order for Fareham Footpath Nos.36 & 38 will be made dependent upon the signing and completion of the Dedication Agreement for this new footpath between Points M and J.

4.7 All of the proposed new routes will have a minimum width of 3.0 metres throughout their lengths.

5. The reasons for the application

5.1 The applicant wishes to fence the area immediately south and west of the farmhouse (west of Point B) for the keeping and grazing of horses. The verge immediately south of the new fenceline E-F-G will be edged with a hedge to soften the line of the fence and then planted with wild flowers. It is in this verge that the new alignment of Fareham Footpath No.38 will run.

5.2 The field to the west of the machine access track (between points F and M)
is normally irrigated and sown to tall crops such as maize, making it difficult
to locate and maintain the definitive alignment of Fareham Footpath No.36 (and the unrecorded footpath between Points L and H occasionally used by members of the public). The new route between F and M is clear throughout the year and should provide a much improved surface for walkers.

5.3 The agricultural land to the south of the line H-M-J will not be traversed by any footpath once the diversion has been implemented.

6. The benefits to the public

6.1 Following diversion, the pattern of footpaths available within Great Posbrooke Farm should benefit members of the public walking within this area and, in addition, provide improved links to other routes in the wider network - in particular via the newly dedicated footpath M-J to the south and east.

6.2 The routes and directions of these footpaths will be more evident on the ground and the surfaces can be improved and maintained to a higher standard than is possible when traversing cultivated fields.

6.3 Potential conflict between walkers and vehicles or dogs in the vicinity of The Farmhouse (west of Point B) will be minimised.

6.4 The diverted route of Footpath No.38 (between points E-F-G) and the southern boundary of the main field (between points H-M-J) will be planted with hedges, trees and wild flowers.

6.5 All of the new routes will provide unrestricted views south towards the Solent and the Isle of Wight.

6.6 The new alignments can be more easily mown and maintained by the County, although in practice it is likely that the landowner will carry out some surface clearance.

7. Summary of Consultation

The proposal was sent out for formal consultation on 5^th September 2005 to the following representative groups:

7.1 Local Member - Cllr Geoffrey Hockley
Councillor Hockley has approved the proposal

7.2 Fareham Borough Council
No response to consultation

7.3 Rights of Way Area Officer - South
The proposal has the support of the Area Rights of Way Officer

7.4 HCC - Highways Management
Highways Management has no comment to make on this proposal

7.5 HCC - Environment Department
Environment Department has no objection in principle to the proposal, although the Ecology Officer has some suggestions on the planting mix to be used by the applicant

7.6 HCC - County Estates
County Estates (as one of the landowners) has approved the proposal

7.7 Hampshire County Archivist
The Ordnance Survey Map of 1859 shows the current alignment of both footpaths. The Archive does not suggest that any higher rights exist over the route to be diverted.

7.8 The Ramblers' Association
The Ramblers' Association has proposed that the diverted route of Fareham Footpath No.38 should follow the alignment E-B-C (i.e. they are content to divert the western half of Fp38, but would prefer the eastern half to remain on the current routing) - the applicant has rejected this counter-proposal.
The Ramblers' Association has no objection to the proposal for diversion of Fareham Footpath No.36.

7.9 The Open Spaces Society
The Open Spaces Society has no objection to the proposal, but would like to see a link from the alignment M-F through to Occupation Lane (GR 453120 105255). Occupation Lane is classified as `P' in CHALIST and Highways Management has been unable to unearth any evidence of public rights for pedestrian access along this route.
The applicant has rejected this counter-proposal.

7.10 Land Access & Recreation Association (LARA)
LARA has no objection to the Proposal

7.11 British Horse Society
BHS has commented that their Area Representative "is currently collecting user information to support a claim for a bridleway within the area covered by this proposal ... which appears to coincide with the Points H-L-B-C on your map". They would support the proposal if the route H-M-L-F-C could be upgraded to bridleway status, otherwise they will continue with their claim. The Public Record Office has not produced any evidence that would support historic bridleway rights.
The applicant has rejected this counter-proposal and will vigorously oppose any future claims for a bridleway along this alignment.

7.12 National Farmers Union
The National Farmers Union supports the proposal

7.13 Cyclists Touring Club
No response to consultation

8. Comments on Consultation Replies

8.1 Comments received from user groups as a result of the consultation exercise have, for the most part, been either neutral or favourable. There are no strong objections to the proposal for diversion of Fareham Footpath Nos.36 & 38.

8.2 The Ramblers Association has objected to the realignment of the eastern half of Fareham Footpath No.38 - it has not been possible for the applicant to accommodate their wishes.

8.3 The Open Spaces Society has requested an additional north-south link to connect Fareham Footpath No.36 at Point F with Occupation Lane - it has not been possible for the applicant to accommodate their wishes.

8.4 British Horse Society intends to submit a claim for higher rights on Fareham Footpath No.36, but would accept that they could be applied equally to a diverted route (preferably H-M-L-F-C) - it has not been possible for the applicant to accommodate their wishes.

9. Criteria for Assessment of the Proposal

9.1 The Council, as a Highway Authority, has the power to make a Public Path Diversion Order, if it is considered expedient to do so in a particular case.

9.2 Section 119(2) of the Highways Act 1980 requires that a Diversion Order should not be made unless the new termination point is substantially as convenient to the public as the existing termination point.

9.3 Section 119(6) of the Highways Act 1980 requires that a Diversion Order should not be confirmed unless the new path or way will not be substantially less convenient to the public in consequence of the diversion and that it is expedient to confirm the order having regard to the effect which:

1. the diversion would have on public enjoyment of the path or way as a whole;

2. the coming into operation of the order would have as respects other land served by the existing public right of way; and

3. any new public right of way created by the order would have as respects the land over which the right is so created and any land held with it.

10. Conclusion

Officers are of the opinion that the proposed diversion satisfies the criteria required by section 119 of the Highways Act 1980 and that it is expedient for the Council to make an order in that:

10.1 The proposal for diversion of Fareham Footpath Nos.36 & 38 is in the interests of the public, as it will provide an improved and more convenient all-weather route for walkers (see paragraphs 6.1 - 6.6).

10.2 The proposed diversion will not be less convenient than the existing route. The current length of Fareham Footpath No.38 is approximately 922 metres from Points A to C - the length of the diverted route will be some 786 metres. The current length of Fareham Footpath No.36 is approximately 1140 metres from Points K to B - the length of the diverted route will be some 1070 metres.
An additional 392 metres will be added to the network by the dedication of a new section of footpath between points M and J.

10.3 The proposed diversion will not affect the enjoyment of the path as a whole, as there will be improved views south along the length of the proposed alignment and the surface underfoot will be greatly improved along the field sections of these routes.

10.4 The alignment and surfacing of the diverted routes will help to reduce the cost of maintenance at public expense. The applicant has suggested a programme of works and improvements to the diverted routes, which will be implemented once the Order for Diversion has been confirmed, and these proposals have been endorsed by the Area Officer for the Southern Area.

11. Recommendation

11.1 It is recommended that an Order be made for:

1. the diversion of Footpath No.38 in the Borough of Fareham from the current route to a new alignment running from Point E (GR 452705 105136), through Point F, to Point G (GR 453448 104906).

2. the diversion of Footpath No.36 in the Borough of Fareham from the current route to a new alignment running from Point H (GR 452546 104408), through Points M and L, to Point F (GR 453146 105006).

11.2 If Members agree to accept the recommendation for a Diversion Order to be made, work will commence on the drafting of a Dedication Agreement for the new footpath between Points M and J. This document will be signed by the applicant before the Order for Diversion of Fareham Footpath Nos.36 & 38 is made.

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 which have 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: ATJ/DIV/Fareham Footpath Nos.36 & 38
Rights of Way Office, Mottisfont Court, Winchester