Hampshire County Council ITEM

Regulatory Committee

06 September 2006

Application for a Dedication Agreement, a Public Path Diversion Order

and a Public Path Extinguishment Order for various public

Rights of Way on the Cadland Estate in the Parish of Fawley

Report of the Director of Recreation and Heritage

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

Extracts from the Highways Act 1980

Section 25(1) - Creation of a Footpath or Bridleway by Agreement

A Local Authority may enter into an agreement with any person having the necessary power in that behalf for the dedication by that person of a footpath, bridleway, or restricted byway over land in their area ...

Section 118 - Stopping up of Footpaths and Bridleways

Orders for the Extinguishment of Footpaths, Bridleways or Restricted Byways may be made under Section 118 of the Highways Act 1980, as amended by the Wildlife and Countryside Act 1981, on the grounds that:-

"the path or way is not needed for public use"

Members must be satisfied that it is expedient to extinguish the right of way, having regard to the extent (if any) to which it appears to them that the path or way would, apart from the 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.

Section 119 - Diversion of Footpaths and Bridleways

Orders for the Diversion of Footpaths, Bridleways, or Restricted Byways 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, bridleway, or restricted byway 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."

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 dedicate, divert or extinguish a number of footpaths and bridleways on the Cadland Estate in the Parish of Fawley, as shown on the attached large scale plans (five).

1.2 It is proposed that:

1.2.1 the offer to dedicate new footpaths and bridleways, together with the change in status of some existing routes from footpath to bridleway, be accepted with thanks.

1.2.2 the application for diversion of a number of footpaths and bridleways be approved under Section 119 of the Highways Act 1980, as amended by the Wildlife and Countryside Act 1981, on the grounds that the diversions are in the interests of the public.

1.2.3 the application for extinguishment of a number of footpaths be approved under Section 118 of the Highways Act 1980, as amended by the Wildlife and Countryside Act 1981, on the grounds that these footpaths are not needed for public use.

2. Parties to the Application

2.1 The application has been made by David Lambley, the Assistant Estate Manager for Longdown Management, Longdown, Marchwood, Southampton SO40 4UH.

2.2 Mr Lambley is acting as agent for the Cadland Estate, which is owned by Mr Maldwin Drummond OBE.

2.3 The Cadland Estate is the freehold owner of all of the land affected by both the existing footpaths and bridleways and the proposed new routes.

3. The reasons for the application

3.1 The area of the Cadland Estate in question was subject to extensive gravel extraction during the 1980s and the lessee, Hall Aggregates, was able to secure a number of Temporary Extinguishment or Diversion Orders from the County that allowed their operations to proceed without endangering the general public.

3.2 Following reinstatement of these gravel workings, the owner of the Cadland Estate,
Mr Maldwin Drummond, wrote to the County in September 1997 with a series of proposals that would:

a) take into account any minor changes in the routes of existing public rights of way brought about by the reinstatement programme.

b) facilitate the management of the natural environment required to bring the Cadland Heathland Project to fruition.

c) facilitate the introduction of a Countryside Stewardship Scheme approved by MAFF.

d) improve access to the countryside for members of the public, via approved routes across the estate.

3.3 It is apparent that the landscape of the Cadland Estate has changed significantly as a result of the extraction/reinstatement operations over the last twenty years and it is clear that the previous alignments do not necessarily reflect either the current pattern of usage on the ground, or the optimum network of footpaths and bridleways that could provide maximum benefits for users.

3.4 It has taken some time for these proposals to be developed and consulted on, both informally and formally with interested parties, but Officers are now in a position to document the changes that are proposed and to make appropriate recommendations to Members.

4. The existing routes and proposed diversions

4.1 Attached to this report are five large scale plans that attempt to illustrate the changes that have been proposed by the Applicant:

4.1.1 Plan 1 - shows the current routes of the definitive alignments of the public rights of way within this section of the Cadland Estate.

4.1.2 Plan 2 - shows the twelve sections of footpath and bridleway that are to be diverted and the routes that they will subsequently take.

4.1.3 Plan 3 - shows the routes of five new footpath sections and two new bridleway sections that will be dedicated by the Cadland Estate, together with four sections of footpath that will remain on the existing alignment but which will be upgraded to bridleway status.

4.1.4 Plan 4 - shows the routes of three footpath sections that will be extinguished.

4.1.5 Plan 5 - shows the network of public rights of way that will result from the proposed changes illustrated on Plans 2, 3 and 4.

4.2 Annex A to this report lists the changes that are depicted on Plans 2, 3 and 4 above.

4.3 Annex B to this report lists the National Grid coordinates of all points referenced on Plans 2, 3 and 4.

5. The benefits to the public

It is felt that the proposed changes to the network of public rights of way over the Cadland Estate will benefit the walking and riding public in the following respects:

5.1 The definitive alignments will be realigned to follow routes that are already in use by the public, and which in general follow dry all-weather tracks that are clear of vegetation, easier to follow and that resolve anomalies in the network.

5.2 The newly dedicated routes will provide the public with improved access, in particular from the residential areas to the north of the Fawley Bypass, together with a more rational network of footpaths and bridleways across the estate.

5.3 The proposed diversions do not introduce any significant change in the length of network, nor do they restrict access to routes or points of interest which are accessible from the current alignment.

6. Summary of Consultation

The proposal was sent out for formal consultation on 5^th May 2006 to the following representative groups, with the request that any comments should be submitted to the County within a period of six weeks:

6.1 Local Member - Councillor Lee Dunsdon
Councillor Dunsdon has not commented on this proposal.

6.2 New Forest District Council
New Forest District Council has not commented on this proposal.

6.3 Fawley Parish Council
Fawley Parish Council accept and support the proposed changes. The council also made a number of constructive comments on the proposals.

6.4 Rights of Way Area Officer - West
The Rights of Way Area Officer has given his support to this proposal.

6.5 HCC - Highways Management
Highways Management has not commented on this proposal.

6.6 HCC - Environment Department
Environment Department has not commented on this proposal.

6.7 Hampshire County Archivist
The Ordnance Survey 6 Inch Map of 1868 appears to show a pattern of tracks similar to the current definitive routes of the footpaths and bridleways across the Cadland Estate. The Archive does not suggest that any higher rights existed over the routes under consideration.

6.8 The Ramblers' Association
The Ramblers' Association has been consulted and has no comment to make on this proposal.

6.9 The Open Spaces Society
The Open Spaces Society has no objection to this proposal.

6.10 Land Access & Recreation Association (LARA)
LARA has no objection to this proposal.

6.11 British Horse Society
The British Horse Society has not commented on this proposal.

6.12 British Driving Society
The British Driving Society was informed of this proposal and has made a request for the inclusion of Restricted Byways through the estate, in order to provide access for carriage drivers. The Farm Manager of Cadland Estate has considered this request, but is unable to provide a solution that would allow carriages to use the tracks and still prevent motorcycles from gaining access to the estate.

6.13 National Farmers Union
The National Farmers Union "fully supports the proposed changes, which appear to be logical from an agricultural point of view while at the same time bringing substantial benefits to users."

6.14 Cyclists Touring Club
The Cyclists Touring Club has not commented on this proposal.

6.15 Motoring Organisations
The Trail Riders Fellowship, the Autocycle Union and the All Wheel Drive Club have all been informed of the proposed changes and were offered the opportunity to apply for a full consultation pack, but none has opted to do so.

7. Comments on Consultation Replies

7.1 All of the responses received from the consultation exercise are either in favour of the proposals, or have no objection to them.

7.2 There were no objections to the proposals.

8. Criteria for Assessment of the Proposal

8.1 Dedication

8.1.1 The only statutory criterion for consideration under Section 25 of the Highways Act 1980 is that the local authority must be assured that the applicant has the power to make the dedication.

8.1.2 Members should, however, ensure that the routes on offer represent good value that will more than offset the cost involved in drawing up the agreement and the on-going commitment by the County to maintaining these new rights of way.

8.2 Diversion

8.2.1 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.

8.2.2 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.

8.2.3 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:

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

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

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.

8.3 Extinguishment

8.3.1 There is only one relevant criterion against which the proposal for extinguishment of a public right of way must be considered - is the path or way no longer needed for public use?

8.3.2 Members must be satisfied that it is expedient to extinguish the right of way, having regard to the extent (if any) to which it appears to them that the path or way would, apart from the order, be likely to be used by the public, and having regard to the effect that the extinguishment of the right of way would have as respects land served by the path or way.

9. Conclusion

9.1 Dedication

9.1.1 Cadland Estate is the registered owner of all the land covered by the package of proposed dedications shown on Plan 2 and therefore has the power to enter into an Agreement.

9.1.2 The County proposes to bear the costs incurred in making the Dedication Agreement.

9.1.3 The Applicant has agreed to bear all other costs involved in the construction of any barriers required to restrict the movement of livestock and the surfacing of the new routes to an acceptable standard, as specified by the Rights of Way Area Officer.

9.1.4 The newly dedicated routes should not incur extraordinary costs for subsequent routine maintenance.

9.2 Diversion

9.2.1 The original proposal was submitted to the County before the HCC Diversion Policy was ratified by Members in June 2002, but Officers believe that it complies with the requirements of this policy nonetheless.

9.2.2 Officers are of the opinion that the proposed diversions shown on Plan 3 satisfy 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:

The proposal for the package of diversions shown on Plan 3 is in the interests of the public, as it will provide a network of clearer, wider and drier through routes for walkers and riders. It will also help to resolve any anomalies between the route currently used by the public on the ground and the legal alignment shown on the Definitive Map.

The proposed diversions will not be substantially less convenient than the existing routes. There is no significant change in the overall length of footpaths and bridleways available to the public and the new routes will provide access to all points currently served by the definitive alignments.

The proposed diversions will not affect the enjoyment of the paths as a whole,
as the new routes will provide a better walking surface with pleasant views of the surrounding countryside.

9.2.3 The County proposes that the Applicant should contribute £800 (plus the full cost of advertising) towards the costs incurred in making the Diversion Order. In the case of an opposed Order leading to an Inquiry, this would increase to £1050 plus advertising.

9.2.4 The Applicant will bear all other costs involved in the construction of any barriers required to restrict the movement of livestock and the surfacing of the new routes to an acceptable standard, if such is required by the Rights of Way Area Officer.

9.2.5 The newly diverted routes should not incur extraordinary costs for subsequent routine maintenance.

9.3 Extinguishment

9.3.1 Officers are of the opinion that the proposed extinguishments satisfy the criteria required by section 118 of the Highways Act 1980 and that it is expedient for the Council to make an order, in that they are not needed for public use:

Part of Footpath No.17 crosses a field used for grazing and there is an acceptable alternative route on tracks to the east around the periphery of the field.

A short section of Footpath 18b will be extinguished to accommodate the diversion of Bridleway No.9 to a more northerly route.

Footpath No 51 crosses a field used for grazing of horses and there is an acceptable alternative cross-field path just to the west (Footpath No.12).

9.3.2 The County proposes that the Applicant should contribute £800 (plus the full cost of advertising) towards the costs incurred in making the Extinguishment Order. In the case of an opposed Order leading to an Inquiry, this would increase to £1050 plus advertising.

10. Recommendation

10.1 It is recommended that the offer of new public rights of way be accepted with thanks and that a Dedication Agreement be made for the following routes listed at Annex A:

The creation of 5 new sections of footpath

The creation of 2 new sections of bridleway

The upgrade of 4 sections of footpath to bridleway status

10.2 It is recommended that a Diversion Order be made for the following routes listed at Annex A:

Fawley Footpath No.12

Fawley Footpath No.14

Fawley Footpath No.16

Fawley Footpath No.18a

Fawley Footpath No.19

Fawley Footpath No.21

Fawley Footpath No.50

Fawley Bridleway No.9

Fawley Bridleway No.11

10.3 It is recommended that an Extinguishment Order be made for the following routes listed at Annex A:

Fawley Footpath No.17

Fawley Footpath No.18b

Fawley Footpath No.51

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/Fawley (Cadland Estate)
Rights of Way Office, Mottisfont Court, Winchester

Fawley Parish (Cadland Estate) - Changes to Public Rights of Way

Diversions

Fawley Footpath No.12

From: Point T to Point U

To: Point T, via Point FF, to Point U

Fawley Footpath No.14

From: Point AZ to Point BZ

To: Point EE to Point PP

Fawley Footpath No.16 (Section 1)

From: Point A, via Points B, D, to Point G

To: Point A, via Point C, to Point GG

Fawley Footpath No.16 (Section 2)

From: Point H, via Point J, to Point K

To: Point H, via Point JJ, to Point K

Fawley Footpath No.16 (Section 3)

From: Point M, via Point N, to Point P

To: Point M, via Points KK, N, and LL, to Point P

Fawley Footpath No.18a

From: Point E, via Point R, to Point S

To: Point CC, via Points E, R and DD, to Point S

Fawley Footpath No.18a

From: Point SS, via Point L, to Point X

To: Point SS to Point EE

Fawley Footpath No.19

From: Point U to Point V

To: Point T to Point V

Fawley Footpath No.21

From: Point J to Point L

To: Point GG, via Point G, to Point SS

Fawley Footpath No.50

From: Point D to Point Q

To: Point GG to Point QQ

Fawley Bridleway No.9

From: Point C, via Point E, to Point F

To: Point C, via Points B, AA, BB and CC, to Point F

Fawley Bridleway No.11

From: Point W, via Points Y and HH, to Point Z

To: Point W, via Points MM, Y, and NN, to Point Z

Dedications

New Footpath

From: Point CZ, via Points DZ and EZ, to Point FZ

New Footpath

From: Point DZ to Point GZ

New Footpath

From: Point HZ to Point JZ

New Footpath

From: Point HH to Point NN

New Footpath

From: Point PZ to Point QZ

New Bridleway

From: Point N to Point KZ

New Bridleway

From: Point NZ to Point MZ

Upgrade Footpath to Bridleway Status - Part of Footpath No.12

From: Point LZ to Point MZ

Upgrade Footpath to Bridleway Status - Part of the diverted route of Footpath No.16

From: Point C, via Points GG, H, JJ, K, M and KK, to Point N

Upgrade Footpath to Bridleway Status - All of Footpath No.18b

From: Point UU to Point YY

Upgrade Footpath to Bridleway Status - Part of Footpath No.23

From: Point KZ to Point LZ

Extinguishments

Fawley Footpath No.17

From: Point WW to Point XX

Fawley Footpath No.18b

From: Point TT to Point UU

Fawley Footpath No.51

From: Point MZ to Point RR

Fawley Parish (Cadland Estate) - Coordinates of Referenced Points