Hampshire County Council

Regulatory Committee Item 11

21 May 2008

Application for a Public Path Diversion Order for part of

Footpath No. 42 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 part of Footpath No.42 in the Borough of Fareham, as shown on the attached large scale plan.

1.2 It is proposed that the application for diversion of part of Fareham Footpath No.42
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 landowner and of the public.

2. Parties to the Application

2.1 The application has been made by Mrs J Cunane of Railway Cottage, 14 Segensworth Road, Titchfield, Hants PO15 5DY.

2.2 Mrs Cunane is the freehold owner of the land over which section A-B-C of the current route passes and over which section A-D of the diverted route will pass.

2.3 Hampshire County Council is the freehold owner of the land over which section D-E-F of the diverted route will pass.

3. The existing routes and proposed diversions

3.1 Current Alignment

3.1.1 The section of Fareham Footpath No.42 affected by this proposal commences at Point A (GR 453968 107282), at a wooden stile on the northern boundary of Fareham Borough, and runs in a south easterly direction along the southern boundary of the railway curtilage to Point B (GR 454022 107248). It then continues in a south south easterly direction, passing close to the private residence known as Railway Cottage, to reach the main Segensworth Road at Point C (GR 454048 107166).

3.1.2 The length of the current route of Fareham Footpath No.42 between Points A and C is approximately 152 metres.

3.2 Proposed Alignment

3.2.1 The diverted route of this section of Fareham Footpath No.42 will commence at Point A (GR 453968 107282) and continue in a generally south easterly direction along the north side of an existing fence to Point D (GR 453975 107264). It will then pass through a gap to run along the southern face of this fence to Point E (GR 454010 107244). The diverted route will then continue in a south south easterly direction to reach the main Segensworth Road at Point F (GR 454028 107168).

3.2.2 The length of the proposed diversion between Points A and F will be approximately 140 metres.

3.2.3 The proposed footpath will have a width of 2.5 metres between fences/hedges throughout its length.

3.2.4 The costs of processing the Diversion Order, plus any works necessary to bring the new footpath up to a standard suitable for public use, will be met by the applicant.

4. Background to the application

4.1 The applicant was aware of the presence of a public right of way when she purchased the property several years ago, but has found the presence of walkers in very close proximity to the residential buildings to be more unsettling than she envisaged. It has also restricted her ability to develop the site to improve security and amenity for her young family

4.2 Insufficient space exists between the house and the applicant's western boundary to propose a diversion of the footpath along this route, but the neighbouring agricultural land (Tynefield Farm), which is owned by Hampshire County Council and let to a tenant farmer, does offer potential for a route just beyond the western boundary.

4.3 On 1st March 2007, the Executive Member (Policy & Resources) approved the diversion of the footpath along the eastern edge of Tynefield Farm.

4.4 The Estates Office is aware of the current proposal made by the applicant and is willing to allow the footpath to be diverted along the stretch D-E-F, provided that all costs, including any compensation payable to the County Council and the County Council's agricultural tenant, are payable by the applicant.

5. The benefits to the public

It is felt that the proposed changes to the alignment of Fareham Footpath No.42 will benefit the public in the following respects:

5.1 The diversion of this footpath will remove a perceived sense of invasion of privacy likely to be experienced by members of the public when they find that the right of way passes through a private garden and close to a residential building.

5.2 It should be possible to dispense with the stile that currently obstructs the footpath at Point A - no other barriers will be required along the length of the diverted route.

5.3 The County will provide a new fence/hedge boundary along the western edge of the diverted route, which, with appropriate signage, will help to make the route of the new footpath more obvious to casual users.

6. Summary of Consultation

The proposal was sent out for formal consultation on 29^th February 2008 to the following representative groups, with the request that any comments should be submitted to the County Council within a period of six weeks:

6.1 Local Member - Councillor Geoff Hockley
Councillor Hockley has confirmed that the proposal has his support.

6.2 Fareham Borough Council
Fareham Borough Council has confirmed that they have no objections to this proposal.

6.3 Rights of Way Area Officer
The Rights of Way Area Officer for South Hampshire is in favour of this proposal.

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

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

6.6 Hampshire County Archivist
The Tithe Map for Titchfield was consulted, but there is no evidence of the existence of a route of higher status on or near this alignment at that time.
The Ordnance Survey County Series plans from the 1860s onwards have also been inspected by Officers, with a similar result.

6.7 The Ramblers' Association
The Ramblers' Association has confirmed that they have no objection to this proposal.

6.8 The Open Spaces Society
The Open Spaces Society has not commented on this proposal.

6.9 Land Access & Recreation Association (LARA)
LARA has confirmed that they have no objection to this proposal.

6.10 National Farmers Union
The National Farmers Union has expressed satisfaction with this proposal.

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

7. Comments on Consultation Replies

7.1 Of the responses received from the consultation exercise, all are either in favour of the proposal, or have no objection to it.

8. Criteria for Assessment of the Proposal

8.1 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 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.

8.3 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:

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

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

8.3.3 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.

9. 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:

9.1 The proposal for diversion of Fareham Footpath No.42 is in the interests of the public, as it will provide a clear, well marked route for walkers with the minimum of impediments to those with limited mobility, and in the interests of the landowner, as it will increase the privacy and security of the inhabitants of Railway Cottage .

9.2 The proposed diversion will not be substantially less convenient than the existing route, in that the diverted section A-D-E-F (140 metres) is slightly shorter than the equivalent section of the current route A-B-C (152 metres).

9.3 The proposed diversion will not affect the enjoyment of the path as a whole,
as it will remove a perceived sense of invasion of privacy and provide a clear, level path with a pleasant hedged border.

9.4 The Rights of Way Area Officer for South Hampshire will complete a Schedule of Works detailing any changes that may be required on the diverted route to bring it up to a standard suitable for use by the public.

9.5 It is unlikely that there will be any increase in the cost of maintaining the route at public expense.

10. Recommendation

10.1 It is recommended that an Order be made for the diversion of section A-B-C of Footpath No.42 in the Borough of Fareham from the current definitive alignment to a new route running between Points A, D, E and F on the attached plan.

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 No.42
Rights of Way Office, Mottisfont Court, Winchester