Hampshire County Council

Regulatory Committee Item 14

10 January 2007

Application for a Public Path Diversion Order for

Part of Footpath No.707 in the Parish of Awbridge

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 proposes to make an Order to divert part of Footpath No.707 in the Parish of Awbridge, as shown on the attached plan.

1.2 It is recommended that an Order be made 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. Background to the proposal

2.1 The current definitive alignment of Awbridge Footpath No.707 between Points A and C results from a County Council Diversion Order that came into effect in July 1977. The chosen alignment followed the eastern side of a hedge and field boundary that were in existence at that time.

2.2 At approximately the same time that the 1977 diversion came into effect, a planning application was submitted to develop the plot of ground on which `Foxgloves' now stands. In order to gain access from Cooks Lane, the developer purchased a section of the adjoining field (east of the line A-B-C) to accommodate a driveway, bringing the existing footpath within the revised boundary of the property and leading to the removal of the original hedge and field boundary north of Point A.

2.3 The definitive alignment of Awbridge Footpath No.707 was not diverted at that time or during subsequent development. At some stage, a septic tank was constructed at or near Point X and the excavated soil appears to have been used to create a raised bed held back by a brick retaining wall, requiring the public to walk down a fenced reserve between Points A and X.

2.4 A Mr Clive Webb purchased `Foxgloves' in mid-2005, but he advises that he was not made aware of the existence of a public right of way within the property at that time.

2.5 There is thus an outstanding anomaly between the footpath shown on the Definitive Map and the line which is used in practice. Whilst not a major problem on the network, it does make it difficult for Officers to sign the correct route, and walkers are likely to be confused as to the route they should use, particularly as it passes through a private garden at this point.

2.6 The path forms part of a promoted route (the Test Way) and so Officers feel that it is particularly important to have the legal route and the used route on the same alignment. Indeed, it was because of an organised walk on this route that the current landowner was alerted to the discrepancy and contacted the County Council to seek clarification.

2.7 Officers and Mr Webb are both keen to resolve the anomaly. Whilst the misalignment is not particularly great, Officers feel that the County Council should take this opportunity to resolve the anomaly and provide an open and useable path which can then be clearly signed and waymarked.

2.8 It is the opinion of Officers that no blame for the continuing obstruction attaches to the current landowner and that it would not be in the public interest to insist upon the reinstatement of the definitive alignment.

3. Proposed course of action

3.1 The County Council proposes to make an Order to divert the definitive alignment onto a route that is both available and safe for public use. This will resolve any uncertainty over the route taken by the legal right of way through this property and ensure that the alignment shown on the Definitive Map corresponds with the path that will be used by members of the public on the ground.

3.2 The landowner has agreed to reimburse the cost of advertising the Order in the local press, and to fund the construction of a ramp between Points Y and Z to a specification approved by the Rights of Way Area Officer.

3.3 Officers believe that it would be appropriate for the County Council to waive the administration fees associated with the making of this Order and Members are requested to confirm this course of action.

4. Parties to the Proposal

4.1 Mr and Mrs Clive Webb of `Foxgloves', Cooks Lane, Awbridge, Romsey, Hampshire SO51 0HS are the freehold owners of all land affected by both the existing footpath and the proposed new route, and they have given their consent to the proposal by the County Council to divert the right of way.

4.2 The fence on the field boundary to the east of Point Y is in the ownership of another local resident, who has given his consent to the proposal for a change in alignment at Point A, but is not minded to either remove the existing stile at that point or to replace it with a kissing gate. The County has no powers to require the stile to be replaced.

5. The existing route

5.1 The section of the existing route that is the subject of this proposal begins at Point A (GR 433336 123572) at a stile over a post and rail fence. It then continues north and west over a raised flower bed and retaining wall, across a tarmac driveway at Point B (GR 433322 123592) and thence down a grass verge on the eastern side of a boundary wall to a junction with the U86 Cooks Lane at Point C (GR 433312 123614).

5.2 The length of Footpath No.707 affected by the proposal (A-B-C) is approximately 48 metres.

6. The proposed new path

6.1 The proposed route of the diverted section of Awbridge Footpath No.707 begins at a stile at Point A (GR 433336 123572) and then proceeds in a northerly direction down a 1.2 metre wide fenced reservation to Point X (GR 433330 123588).
The path will then proceed along the top of a gentle cross slope, between a newly constructed low fence to the west and a post and rail fence bordering the field to the east, to reach Point Y (GR 433328 123598), beside a field access gate. From this point, the new route descends via a short graded ramp to a junction with Cooks Lane at Point Z (GR 433320 123615).

6.2 The length of the proposed route A-X-Y-Z will be approximately 48 metres.

6.3 The proposed route will have a width of at least 1.5 metres, with the exception of the section A-X which is restricted between existing fences to a width of 1.2 metres.

7. The benefits to the public

7.1 The alignment shown on the Definitive Map will now match the route used by walkers on the ground. The direction and extent of the footpath will be made more immediately obvious to members of the public using this section of the Test Way, through both earthworks and improved waymarking. Officers consider that it is in the interests of the public to have an accurate and up-to-date Definitive Map that properly reflects the paths which are in use.

7.2 The presence of a septic tank below ground level and raised inspection covers at the top of the driveway pose potential dangers to members of the public who may stray into this area. Walkers will, in future, be routed away from this area.

7.3 Pedestrians will not be crossing or following the driveway to the property and will thus avoid any potential conflict with vehicular traffic.

7.4 The length of the proposed diversion (48 metres) is no greater than the length of the current alignment affected by the diversion.

8. Summary of Consultation

The proposal was sent out for formal consultation on 27^th January 2006 to the following representative individuals or groups:

8.1 Local Member - Cllr Roy Perry
Councillor Perry has been consulted on the proposed diversion.

8.2 Test Valley Borough Council
TVBC circulated the proposal to Head of Planning, Head of Technical Services, Head of Leisure Services and the Ward Member in February 2006. A letter from the Planning Dept was received by HCC on 18^th August, in which they recorded their objections to the inclusion of steps in the original proposal. TVBC was informed by return that the steps in the original proposal had now been replaced by a ramp in the revised proposal. The specification for this ramp was agreed at a site meeting with a representative of TVBC Planning Department on 21^st November 2006, and the initial objection lodged by TVBC has now been withdrawn.

8.3 Awbridge Parish Council
The Parish Council has no objection to the proposed diversion.

8.4 Rights of Way Area Officer - West
The Area Rights of Way Officer supports the proposed diversion.

8.5 HCC - Highways Management
Highways Management has been consulted on the proposed diversion.

8.6 HCC - Environment Department
Environment Department has been consulted on the proposed diversion.

8.7 Hampshire County Archivist
The Archivist did not find evidence of any higher rights shown on historic maps.

8.8 The Ramblers' Association
The Rambler's Association has been consulted on the proposed diversion.

8.9 The Open Spaces Society
The Open Spaces Society (OSS) objected to the original proposal to divert the footpath along the top of the slope and thence via a set of steps to the road below. OSS proposed a long graded ramp extending between Points X and Z as an alternative to the use of steps. The current proposal for a graded ramp between points Y and Z has taken into account a number of the OSS suggestions, yet still allows unrestricted access to the field gate into the adjoining property at Point Y.
OSS also objected to the retention of a stile and fence to the east of the line between Points A and X. It has not been possible to increase the width of path between these points, as the fence to the east of this line is the property of an adjoining landowner, so this objection remains unresolved.

8.10 Land Access & Recreation Association (LARA)
LARA has no objection to the proposal.

8.11 National Farmers Union
No response to consultation.

8.12 Cyclists Touring Club
No response to consultation.

9. Comments on Consultation Replies

9.1 The majority of comments received from representative individuals and groups as a result of the consultation exercise have been either neutral or in favour of the proposal.

9.2 There were no objections to the principle of realigning the definitive alignment to match the route that the public could use on the ground.

9.3 There were a number of objections to the detailed proposals for implementation of the new route and insofar as it is possible these have been addressed in the revised proposal that is now submitted to Members for consideration.

10. Criteria for Assessment of the Proposal

10.1 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.

10.2 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.

10.3 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 that:

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

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

10.3.3 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.

11. 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:

11.1 The proposal for diversion of Awbridge Footpath No.707 is in the interests of the public, in that the southern section of the definitive alignment is currently inaccessible, as a result of long term obstruction, and the northern section follows a private driveway where walkers may encounter vehicles manoeuvring. It is in the interests of the public to have a Definitive Map which accords with paths that are used and available on the ground.

11.2 The proposed diversion will not be less convenient than the existing route. The new route (48 metres) is the same length as the current alignment.

11.3 The proposed diversion will not affect the enjoyment of the path as a whole, as it will provide a clearly defined route that is easily accessible by walkers and that will be shown as the legal alignment on the Definitive Map.

12. Recommendation

12.1 It is recommended that an Order be made for the diversion of part of Footpath No.707 in the Parish of Awbridge, in the interests of the public.

The proposed route of the diverted section of Awbridge Footpath No.707 begins at Point A on the attached plan and then proceeds in a northerly direction down a fenced reservation to Point X. The path then proceeds along the top of a gentle cross slope, to reach Point Y beside a field access gate, and from this point it continues via a short graded ramp to a junction with Cooks Lane at Point Z.

12.2 It is also recommended that the administrative costs associated with the making of this Order should be absorbed by the County Council, whilst the cost of advertising the Order in the local press and bringing the new route up to a standard suitable for use by the public will be reimbursed or paid by the landowner.

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/Awbridge Footpath No.707
Rights of Way Office, Mottisfont Court, Winchester