Hampshire County Council

Regulatory Committee Item 15

4 January 2006

Application for a Public Path Diversion Order for

Footpath No.53a in the Parish of Selbourne

Report of the Director of Recreation and Heritage

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

Section 119 of the Highways Act 1980

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 the Act as a 'public path diversion order'."

Before making the Order, Members must be satisfied that the diverted route will be substantially as 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 No.53a at Oakhanger in the Parish of Selbourne, as shown on the attached plan.

1.2 It is proposed that the application for diversion of Selbourne Footpath No.53a should be approved 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 and Mrs Kilner of Oakhanger Cottage, Oakhanger, Nr Bordon, Hampshire, GU35 9JU, on the grounds that the diversion is in the interests of the public.

2.2 Mr Giles Wheeler-Bennett, Chartered Surveyor and Land Agent, of West Court, Lower Basingwell Street, Bishops Waltham, Southampton, SO32 1AJ
is acting as agent for Mr and Mrs Kilner in this application.

2.3 Mr and Mrs Kilner are the freehold owners of the majority of land affected by both the existing footpath and the proposed new route.

2.4 The remainder of the land covered by the existing route is in the ownership of
Mr and Mrs Boyson of Oakhanger Farm, Oakhanger, Hampshire, GU35 9JA.
Mr and Mrs Boyson have both given their consent to the diversion of Selbourne Footpath No.53a.

3. The existing route

3.1 The existing route of Selbourne Footpath No.53a begins at a stile at Point A
(GR 476965 135980) on the eastern verge of the C70 Oakhanger Road, near the Red Lion Public House. It then proceeds east and north across marshy meadows (following an alignment which results from a previous diversion completed in 1990), over two intermediate stiles, to a further stile and bridge at GR 477172 136070. The footpath then follows the south side of a drain, across pasture land,
to a junction with Footpath No.52 at Point B (GR 477295 136025).

3.2 The length of Selbourne Footpath No.53a affected by the proposal is approximately 360 metres

4. The proposed new path

4.1 The proposed route of Footpath No.53a will begin at Point A (GR 476965 135980) and proceed generally eastwards across the better drained section of marshy meadow to a gate at Point C (GR 477055 135965). It then continues east and north across grazed pasture, through three further gates, to a junction with Footpath No.52 at Point B (GR 477295 136025).

4.2 The total length of the proposed route A-C-B will be approximately 340 metres.

4.3 The proposed new route will have a minimum width of 2.0 metres throughout its length.

5. The background to the application

The proposed changes to Selbourne Footpath No.53a in the vicinity of Oakhanger Cottage will benefit the landowner in the following respect:

5.1 The security and privacy of Oakhanger Cottage will be increased.

5.2 The management of livestock (currently the keeping and breeding of Llamas) in the fields south of the drain will be facilitated.

6. The benefits to the public

The proposed changes to Footpath No.53a in the vicinity of Oakhanger Cottage will benefit the walking public in the following respects:

6.1 The northern (lower) section of the marshy meadows east of the Oakhanger Road do not provide ideal conditions for walkers, particularly in the winter months. By keeping to the southern section of these meadows, the diverted route (Section A-C) will be significantly drier and firmer underfoot than the current alignment.

6.2 The second part of the diverted route (Section C-B) follows the crown of a low rise, providing good views across the surrounding countryside. This section has also been planted with trees which will add to the visual pleasure as they mature.

6.3 Potential conflict between the landowner's pets and livestock and any dogs that are accompanying walkers (and which may not be restrained) would be minimised.

6.4 Although there are no lateral restraints on the revised alignment, the landowner would ensure that a minimum width of 2.0 metres is dedicated and available for the whole of the diverted route.

6.5 The eastern section of the current alignment has become overgrown by trees and bushes bordering the drain and members of the public have already started to use a section of the realigned route south west of Point B.

6.6 The total length of the current alignment of Footpath No.53a is approximately 360 metres. The total length of the revised alignment (Section A-C-B) is approximately 340 metres. There is therefore not a significant change in footpath length.

7. Summary of Consultation

The proposal was sent out for formal consultation on 12^th October 2005 to the following representative groups:

7.1 Local Member - Cllr Mark Kemp-Gee
Councillor Kemp-Gee supports the proposal

7.2 East Hampshire District Council
No response to consultation

7.3 Selbourne Parish Council
The Parish Council supports the proposal

7.4 Rights of Way Area Officer - North East
The proposal has the support of the Area Rights of Way Officer

7.5 HCC - Highways Management
Highways Management has no objection to this proposal

7.6 HCC - Environment Department
The Environment Department has no comment on this proposal

7.7 Hampshire County Archivist
19^th Century mapping shows the previous alignment of Selbourne Footpath No.53a (prior to the diversion in 1990). The Archivist did not find evidence of any higher rights shown on historic maps

7.8 The Ramblers' Association
The Ramblers' Association supports the proposal - "The local group has expressed their liking for it".

7.9 The Open Spaces Society
The Open Spaces Society has no objection to the proposal, although they have sought assurance that the stiles already in existence on the new alignment will be replaced by gaps or kissing gates.

7.10 Land Access & Recreation Association (LARA)
LARA has no comment on the Proposal

7.11 British Horse Society
No response to consultation

7.12 National Farmers Union
The NFU has no objection to the proposal

8. Comments on Consultation Replies

8.1 Comments received from user groups as a result of the consultation exercise have been either favourable or neutral.

8.2 No objections were received to this proposal.

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:

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

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

9.3.3 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 and that it is expedient for the Council to make an order in that:

10.1 The proposal for diversion of Selbourne Footpath No.53a is in the interests of the public, as it will provide a more direct all-weather route for walkers, which will avoid areas known to be marshy in the winter months.

10.2 The proposed diversion will not be less convenient than the existing route. The new route (340 metres) will be slightly shorter than the previous alignment (360 metres). Bridges and stiles on the existing route will be replaced by self-closing gates where stock fencelines cross the new route.

10.3 The proposed diversion will not affect the enjoyment of the path as a whole, as there will be improved views across the fields in all directions

10.4 The surface of the track onto which Footpath No.53a will be diverted is such that it is likely to require minimal maintenance at public expense.

11. Recommendation

It is recommended that an Order be made for the diversion of Footpath No.53a
in the Parish of Selbourne, in the interest of the public.
The new route of Selbourne Footpath No.53a will run from Point A
(GR 476965 135980) on the eastern verge of the C70 road, through Point C
(GR 477055 135965) to terminate at Point B (GR 477295 136025) on a junction with Selbourne Footpath No.52.

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/Selbourne Footpath No.53a
Rights of Way Office, Mottisfont Court, Winchester