Decision Maker:

Regulatory Committee

Date of Decision:

15 October 2008

Decision Title:

Footpath at Bridgemary School Gosport

Rescission of Decision that Special Extinguishment Order be made

Decision Reference:

343

Report From:

Director of Environment

Contact name:

David Veal

Tel:

01329 824366

Email:

[email protected]

EXECUTIVE SUMMARY

1) Summary of Decision Area:

1.1. The Committee considered a report at its meeting on 5 January 2005 (copy attached as Appendix 1) and resolved that a Special Extinguishment Order should be made. A report was brought to Committee on 23 July 2008 recommending that decision be rescinded. Members wished for fuller information and the item was deferred. This report seeks to provide the fuller information requested and recommends that the decision of 5 January 2005 be rescinded for the reasons set out in this report.

2) Legal Framework for the Decision:

2.1. Section 118B Highways Act 1980

Section 118B(1)(b) This section applies where it appears to a council that, as respects any relevant highway for which they are the highway authority and which crosses land occupied for the purposes of a school it is expedient, for the purpose of protecting the pupils or staff from:

(i) violence or the threat of violence,

(ii) harassment,

(iii) alarm or distress arising from unlawful activity, or

(iv) any other risk to their health or safety arising from such activity,

that the highway should be stopped up.

Section 118B(4) Where this section applies, the council may be order made by them and submitted to and confirmed by the Secretary of State, or confirmed as an unopposed order, extinguish the public right of way over the highway.

Section 118B(5) An order under subsection (4) above is in this Act referred to as a "special extinguishment order".

Section 118B(6) Before making a special extinguishment order the council shall consult the police authority for the area in which the highway lies.

Section 118(8) The Secretary of State shall not confirm a special extinguishment order made by virtue of subsection (1)(b) above, and a council shall not confirm such an order as an unopposed order unless he or, as the case may be, they are satisfied that the stopping up of the highway is expedient as mentioned in subsection (1)(b) above and that it is expedient to confirm the order having regard to all the circumstances, and in particular to

(a) any other measures that have been or could be taken for improving or maintaining the security of the school,

(b) whether it is likely that the coming into operation of the order will result in a substantial improvement in that security,

(c) the availability of a reasonably convenient alternative route, or if no reasonably convenient alternative route is available, whether it would be reasonably practicable to divert the highway under section 119B below rather than stopping it up, and

(d) the effect which the extinguishment of the right of way would have as respects land served by the highway, account being taken of the provisions as to compensation contained in section 28 above as applied by section 121(2).

3) Summary Recommendations

3.1. That the decision of the Committee of 5 January 2005 that a Special Extinguishment Order be made, be rescinded.

1) Purpose of the Report:

1.1. To recommend rescission of the decision of the Regulatory Committee of 5 January 2005 that a Special Extinguishment Order be made.

2) Parties to the Application:

2.1. Hampshire County Council.

2.2. Gosport Borough Council.

2.3. The local Member, Councillor Wright.

2.4. Hampshire Constabulary.

2.5. Open Spaces Society.

2.6. Ramblers' Association.

2.7. Statutory Undertakers.

3) The Existing Route:

3.1. The footpath subject of this report is a metalled path running in a north-easterly direction linking Nobes Avenue to Wych Lane, Gosport for a distance of some 145 metres, as shown on the attached location plan.

4) Reasons for the Application:

4.1. Since the decision made by the Regulatory Committee on 5 January 2005 objections to the proposed closure of the footpath have been received.

5) Summary of Consultation:

5.1. Consultations to the proposed closure have been carried out with the following:

(i) Hampshire Constabulary;

(ii) Local Member;

(iii) Gosport Borough Council;

(iv) Open Spaces Society;

(v) Ramblers' Association; and

(vi) Statutory Undertakers.

Consultation Pre 5 January 2005

5.2 The decision of the Regulatory Committee on 5 January 2005 was a resolution that an Order be made. Under Section 118B of the Highways Act 1980 there is an obligation to consult the police authority before an order is (actually) made. Under Section 120(2) of the Act there is an obligation to consult the District Council (and the Parish Council had there been one) before an order is made. Once an Order has been made, Schedule 6 to the Act requires public consultation by the giving of notice of making the Order and specifying a date within which objections can be made. The notice has to be placed in the Press, served on the owners, occupiers and lessees of the land (in this case the land is owned by the County Council), to the District (and Parish) Council(s) and to any persons prescribed by the Secretary of State and it must also be displayed on the footpath, at Council Offices and any other `appropriate' places.

5.3 The request for the Order to be made came from the School itself, with the support of the Police. There is a Police Liaison Officer based at the School.

5.4 Whilst there are no specific requirements to consult anyone prior to a resolution to make an order being passed, the Environment Department consulted numerous persons, as detailed in paragraph 3 of the original report`.

Consultation Post 5 January 2005

5.5 The District Council has to be formally consulted (under Section 120(2) of the Act) before an order is made and this resulted in an objection letter dated 10 February 2006 being received (copy attached as Appendix 2).

5.6 Officers considered in some detail the issues raised and felt that certain of them were more relevant than others, in the context of the criteria set out in Section 118B, and it was felt that, whilst a detailed response to the letter of objection would need to be prepared, all the relevant issues had been considered by officers in preparing the report to Committee for 5 January 2005 and in deciding the recommendation should be that an order be made.

5.7 A letter dated 8 March 2006 was subsequently received from Dennis Wright, the local County Council Member reinstating his objection to the proposed Extinguishment Order (copy attached as Appendix 3).

5.8 Given the increasing local opposition to the Extinguishment Order a meeting was held at the School on 17 March 2006 at which representatives of the School, the Police, the Borough Council, Councillor Wright, Dave Veal and Liz Ellam attended.

5.9 At this meeting Councillor Wright presented a petition containing in excess of 400 signatures, objecting to the proposed Order. The Borough Council confirmed its opposition to the Order. The Police confirmed their support for the Order.

5.10 It was decided that a survey of use be carried out of the footpath and this took place on 19 July 2006. It was not pre-notified so represents bona fide use of the footpath by 251 pedestrians during a 12 hour period.

5.11 A further meeting was held at the school on 22 November 2006 attended by Dave Veal and Liz Ellam at which the school asked that the County Council proceed with the making of the Order, but in May 2007 a letter was received from the School (copy attached as Appendix 4) in which they stated "it is evident that we will not be able to have the footpath that runs through the college closed."

Reconsideration by Officers

5.12 Officers subsequently considered whether in the light of the objection from the District Council and the local Member and the high level of use and of local opposition to closure whether "having regard to all circumstances" it was still considered expedient to make the Order.

6) Comments on the Consultation Replies:

6.1. Hampshire Constabulary supports the application.

6.2. The local Member, Councillor Wright, objects to the application.

6.3. Gosport Borough Council objects to the application.

6.4. Open Spaces Society objects to the application.

7) Criteria for Assessment of the Proposal that a Special Extinguishment Order be made:

7.1. Initially it must "appear" to the Council that it is expedient that the highway be stopped up for the purposes of protecting the pupils or staff from:

(i) violence or the threat of violence;

(ii) harassment;

(iii) alarm or distress arising from unlawful activity; or

(iv) any other risk to their health or safety arising from such activity.

7.2. Paragraph 2.3 of the original report contained a list of incidents which appeared to officers to fulfil the above criteria.

7.3. Before deciding whether to confirm an order a Council must also consider whether it is expedient to do so having regard to all the circumstances and in particular to:

(i) any other measures that could be taken to improve/maintain the security of the School;

(ii) whether it is likely that the coming into operation of the Order will result in a substantial improvement of security;

(iii) the availability of a reasonably practicable alternative route or, if none is available, whether diversion of the route is possible.

7.4. Dealing with the criteria (i), (ii) and (iii) above:

(i) Measures to manage the problem include the installation of a security camera at the entrance, but this only records the occurrences, it does not solve the problem. If someone is identified causing a nuisance the Police are informed, but this does not stop trouble reoccurring. There is some street lighting along the footpath route, but this does not deter undesirables' incursions at night. There are staff on duty at break times and at the beginning and end of the day, however it is the staff who are the focus of much of the confrontation. School budgets do not allow for funding of full-time security staff. If the extinguishment order were to be made/confirmed the School would have arranged for gates and additional security measures to be provided.

(ii) The closure of the footpath would have had a very positive effect for the School. It would have improved security and ensured that staff and students felt less threatened and fearful about going to School during the day. It would also help towards removing what had been identified as one of the biggest threats to community use in the afternoon and evenings.

(iii) There are adopted footpaths to the rear of Bridgemary School at the back of Fisher Road and Portal Road and running through the Holbrook Schools onto Wych Lane which could be used as alternative routes. The alternative routes are metalled footpaths with lighting of a similar condition to other footway/footpath routes which are used frequently by the general public.

8) Director of Environment's Comments

8.1. It is clear that the School has and continues to have problems associated with the existence of the footpath through the School but the situation has not worsened since its approach to the County Council and the School has done what it can to deal with the situation, including the provision of extra lighting and cameras. It has also introduced a more rigorous regime of locking the School gates to prevent unwanted persons entering the School premises. The Police Liaison Officer's current view is that there is not enough evidence to support gating. The school concurs with this view.

8.2. Initially officers considered that the criteria for making a special extinguishment order were met, hence the recommendation in the report of January 2005.

8.3. However, subsequently, when a proposal (in this case to close the footpath) becomes a more definite proposal local people are galvanised into making their views known and this appears to have been the situation here.

8.4. There is a high level of local opposition from members of the public, the District Council and the local County Council Member to the closure of the footpath, essentially on the basis that the alternative routes are not reasonably convenient as they would add substantially to the distance travelled.

8.5. The duty of the County Council as highway authority is to protect and assert the rights of the public to the use and enjoyment of any highway for which they are the highway authority and thus there is a presumption that highways will not be closed off, notwithstanding that legislation exists which enables them to do so. Officers feel that should the order be made there would be several hundred objections made and that a public inquiry would be held. They doubt whether an Inspector would actually confirm closure, in the face of such public opposition to closure.

8.6. On 24 August 2008 a letter from a local resident was sent to the Chairman of the Regulatory Committee setting out local residents' point of view with regard to the proposed closure. A copy of this letter is attached as Appendix 5.

9) Conclusion:

9.1. Since the original consultations and the decision made by Committee in 2005 considerable objection to the proposed closure of the path has been received. This includes a petition signed by some 400 residents opposed to the closure.

10) Recommendation:

10.1. That the decision of the Committee of 5 January 2005 that a Special Extinguishment Order be made, be rescinded.

Links to the Corporate Strategy

Yes

No

Hampshire safer and more secure for all

Maximising well-being

Enhancing our quality of place

Section 100 D - Local Government Act 1972 - background documents

The following documents discuss facts or matters on which this report, or an important part of it, is based and have been relied upon to a material extent in the preparation of this report.

(NB: the list excludes published works and any documents which disclose exempt or confidential information as defined in the Act.)

Document

Location

Special Extinguishment Orders (File ref 262930)

Hampshire Highways, Fareham

IMPACT AREA

IMPACT LEVEL

COMMENTS

WHERE COVERED IN REPORT (Where there are details of how impact could be managed)

Equality & Diversity Impact

L

Maintains more direct highway route

Paragraph 8.4

Crime Prevention (under Section 17)

L

Situation stabilised by alternative measures introduced

Paragraph 8.1

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 has been relied upon to a material extent in the preparation of this report.

NB the list excludes:

1.

Published works.

2.

Documents which disclose exempt or confidential information as defined in the Act.

TITLE

LOCATION

Special Extinguishment Orders (File ref 262930)

Ashburton Court West, Winchester