Hampshire County Council

Regulatory Committee Item 11

23 July 2008

Application for a Public Path Diversion Order for part of

Footpath No. 1 in the Parish of Bishops Waltham

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.1 in the Parish of Bishops Waltham, as shown on the attached large scale plan.

1.2 It is proposed that the application for diversion of part of Bishops Waltham Footpath No.1 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 also that there is net benefit to the public.

2. Recommendation

2.1 It is recommended that an Order be made for the diversion of section A-B-C of Footpath No.1 in the Parish of Bishops Waltham from the current definitive alignment to a new route running between Points A, D, and C on the attached plan..

3. Parties to the Application

3.1 The application has been made by Admiral J Nunn of No.4 Godfrey Pink Way, Bishops Waltham, Hampshire SO32 1PB.

3.2 Admiral Nunn is the freehold owner of the land over which section A-B of the current route passes.

3.3 Eastleigh Borough Council is the freehold owner of the land over which section A-D of the proposed route will pass. The Borough Council has given its formal agreement for the footpath to be diverted across its land.

3.4 Hampshire County Council is the freehold owner of the land over which section B-C of the current route passes and over which section D-C of the proposed route will pass. The Senior Ranger in charge of this resource has given his agreement for the change in route.

4. The existing routes and proposed diversions

4.1 Current Alignment

4.1.1 The section of Bishops Waltham Footpath No.1 affected by this proposal commences
at Point A (GR 455832 117090), on the western bank of a natural spring, and runs in a southerly direction through the property known as No.4 Godfrey Pink Way to Point B (GR 455838 117064) on the southern boundary. It then continues in a southerly direction across pasture land known as The Moors, to a kissing gate at Point C
(GR 455838 116944) on the eastern verge of the B2177 road.

4.1.2 The length of the current definitive alignment of Bishops Waltham Footpath No.1 between Points A and C is approximately 146 metres.

4.2 Proposed Alignment

4.2.1 The diverted route of this section of Bishops Waltham Footpath No.1 will commence at Point A (GR 455832 117090) and continue in a generally south easterly direction along the edge of the spring to an existing kissing gate at Point D (GR 455850 117070). It will then continue in a generally southerly direction across The Moors to terminate at an existing kissing gate at Point C (GR 455838 116944).

4.2.2 The length of the proposed diversion between Points A, D and C will be approximately 160 metres.

4.2.3 The proposed footpath will have a width of 2.0 metres throughout its length.

4.2.4 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.

5. Background to the application

5.1 The current route of Bishops Waltham Footpath No.1 should have been diverted under s257 of the Town & Country Planning Act when the estate was developed in the early 1990s, so as to skirt the eastern boundary of No.4 Godfrey Pink Way, but this does not appear to have been the case.

5.2 This omission was brought to light in 2007 when the original purchaser of No.4 Godfrey Pink Way attempted to convey the property to the applicant, only to discover that the definitive alignment of Footpath No.1 passed within the boundaries of the property.

5.3 Winchester City Council retains title to the remainder of the land conveyed by the developer when the individual plots were sold off and the Head of Legal Services has confirmed that they would support a proposal for the path to be diverted onto the route currently in use by members of the public.

6. The benefits to the applicant

It is felt that the proposed changes to the alignment of Bishops Waltham Footpath No.1 will benefit the applicant in the following respects:

6.1 The title to No.4 Godfrey Pink Way will be cleared of a right which has not been exercised by members of the public for the last 15 years.

7. The benefits to the public

It is felt that the proposed changes to the alignment of Bishops Waltham Footpath No.1 will benefit the public in the following respects:

7.1 The route currently in use by the public (A-D-C) will be recorded on the Definitive Map of Public Rights of Way.

8. Summary of Consultation

The proposal was sent out for formal consultation on 11^th April 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:

8.1 Local Member - Councillor Peter Mason
Councillor Mason has been consulted on this proposal.

8.2 Winchester City Council
The Head of Legal Services at Winchester City Council has expressed support for this proposal.

8.3 Bishops Waltham Parish Council
Bishops Waltham Parish Council has confirmed that "the changes are logical and will be beneficial to all footpath walkers".

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

8.5 HCC - Highways Management
Highways Management has no objection to this proposal.

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

8.7 Hampshire County Archivist
The County Archivist has confirmed that there is no historic evidence for the existence of a route of higher status on or near this alignment. The Ordnance Survey County Series plans from the 1860s onwards have also been inspected by Officers, with a similar result.

8.8 The Ramblers' Association
The Ramblers' Association has been consulted on this proposal.

8.9 The Open Spaces Society
The Open Spaces Society has confirmed that they have no objection to this proposal.

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

8.11 National Farmers Union
The National Farmers Union has no objection to this proposal.

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

9. Comments on Consultation Replies

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

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 which:

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 1980 and that it is expedient for the Council to make an order in that:

11.1 The proposal for diversion of Bishops Waltham Footpath No.1 is in the interests of the public, as the path currently in use by the public will be recorded on the Definitive Map of Public Rights of Way, and in the interests of the landowner, as it will remove an encumbrance from the title to No.4 Godfrey Pink Way.

11.2 The proposed diversion will not be substantially less convenient than the existing route, in that the diverted section A-D-C (160 metres) is only marginally longer than the equivalent section of the current route A-B-C (146 metres).

11.3 The proposed diversion will not affect the enjoyment of the path as a whole,
as it will provide an improved view of the natural spring to the east of the path and a clearly signposted route south to the junction with the public road

11.4 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.

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

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/ Bishops Waltham Footpath No.1
Rights of Way Office, Mottisfont Court, Winchester