Archived decisions

Decision Maker:

Regulatory Committee

Date of Decision:

11^th March 2009

Decision Title:

Application for a Public Path Diversion Order for
part of Footpath No.12 in the Parish of Longparish

Decision Reference:

605

Report From:

Director of Recreation and Heritage

Contact name:

Andrew Jones

Tel:

01962 846891

Email:

[email protected]

EXECUTIVE SUMMARY

1) Summary of Decision Area:

1.1. The definitive alignment of Longparish Footpath No.12 commences on the northern verge of the U54 Mill Lane and passes behind the rear gardens of houses fronting onto the B3048 road before traversing rough pasture to a footbridge over the River Test.

1.2. Members are requested to approve the recommendation by Officers that an Order should be made for the permanent diversion of part of Longparish Footpath No.12.

2) Legal Framework for the Decision:

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.

3) Summary of Issues to be Decided:

3.1. Officers believe that it is expedient to divert the footpath in the interests of the landowner. The proposed alignment will be no less convenient or enjoyable than the current route, and members are therefore requested to authorise the making of an Order under s119 of the Highways Act 1980 for the diversion of this public right of way.

4) Recommendations:

4.1. It is recommended that an Order be made for the diversion of Footpath No.12
in the Parish of Longparish from that section of the current definitive alignment, running between Points A, B, and C, to a new route running between Points A, D, E and C on the attached plan.

1) Purpose of Report:

1.1. Hampshire County Council has received an application to divert part of Footpath No.12 in the Parish of Longparish, as shown on the attached large scale plan.

1.2. It is proposed that the application for diversion of part of Longparish Footpath No.12 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 that it is expedient that the line of the path should be diverted.

2) Applicant:

2.1. Dr & Mrs David Wright
Yew Tree House, Longparish, Andover SP11 6PT

3) Landowners:

3.1. Dr & Mrs David Wright
Yew Tree House, Longparish, Andover SP11 6PT

3.2. Mrs K Dinesen
Lower Mill, Longparish, Andover SP11 6PS

3.3. Mr J Curl
1 Elm Cottage, Longparish, Andover SP11 6PW

4) Description of the Routes (please refer to the map attached to this report):

4.1. Current Route

Longparish Footpath No.12 commences at Point A (GR 443216 144392), at a junction with the U54 Mill Lane, and proceeds in a generally north easterly direction along the rear fences of private properties to a kissing gate at Point B (GR 443270 144440). It then continues in a generally easterly direction across rough grassland to Point C (GR 443342 144450) and crosses the River Test by footbridge some 450 metres further on.

The length of the current route of Longparish Footpath No.12 between Points A and C is approximately 142 metres.

4.2. Proposed Route

The diverted route of Longparish Footpath No.12 will commence at Point A (GR 443216 144392) at a junction with the U54 Mill Lane and proceed in a south easterly direction beside a beech hedge to Point D (GR 443244 144378). The path will then bend to the north east to pass through Point E (GR 443286 144412) and continue across rough grassland to reach Point C (GR 443342 144450).

The length of the diverted route of Longparish Footpath No.12 between Points A, D, E and C will be approximately 148 metres.

The diverted section of Footpath No.12 will have a width of 1.8 metres throughout its length and will be defined by hedges and/or post and rail fences between Points A, D and E.

No structures or barriers will be required on the diverted route, although it is within the power of the Rights of Way Area Officer to authorise appropriate gates at a later date if it becomes necessary to control the movement of livestock in the fields to the east.

The Rights of Way Area Officer (Central) has confirmed that no further works will be required to bring the new route up to the standard required for use by the public.

4.3. The cost of advertising the Diversion Order, together with the administrative costs up to the order-making stage, will be met by the applicant. The County Council has no power to charge for administrative costs after the Order has been made.

5) Background to the Application

5.1. Dr Wright purchased a section of land (approximately defined by the rectangle A-B-E-D) some years ago and wishes to incorporate this into the garden of Yew Tree House. At present, Footpath No.12 separates the two sections of garden and the applicant would prefer members of the public to adopt the new route, which has been in use as a permissive footpath for at least the last two years and has gained wide local acceptance.

6) Compliance with our Diversions Criteria

6.1. The Rights of Way Office of Hampshire County Council has published Guidance Notes for landowners who are considering an application for diversion (http://www3.hants.gov.uk/making-changes/diversions.htm),
in order to ensure that the diverted route should be no less convenient to use than the existing route and should not adversely affect the public's enjoyment of the path as a whole, and the recommendations contained therein have been taken into account in developing this proposal.

6.2. The diverted route (148m) is not significantly longer than the current footpath (142m) and structures, such as the kissing gate at Point B, have been eliminated in the new alignment. This should make the footpath more accessible to those with limited mobility, particularly as the surface has been constructed to be flat and level.

6.3. The new route between fences should be more obvious to walkers on the ground and will be reinforced by additional way-marking once the diversion process is complete.

6.4. There is no quoted width for the current route of Longparish Footpath No.12 in the Definitive Statement of public rights of way. By including a stated width of 1.8 metres, the proposal for the diverted route should remove any areas of uncertainty that may currently exist on the ground.

7) Consultations with Other Bodies:

7.1. Local Member - Councillor Michael Woodhall
Councillor Woodhall has been consulted on this proposal.

7.2. Test Valley Borough Council
The Head of Legal Services at Test Valley Borough Council has been consulted but did not make any comment on this proposal

7.3. Longparish Parish Council
The Clerk to Longparish Parish Council summarised the views of members in a letter to the Rights of Way Office dated 26^th November 2008. It would appear that views are finely divided within the parish - some residents are opposed to the principle of rerouting historic rights of way, whereas others welcome the improvements that have already been made on the ground. The Parish Council feels that it cannot give unqualified support to the application for diversion of Footpath No.12, but that it would not object to the proposal if three local issues were addressed:
1) Potential for access by a neighbour, Mr Curl, from the rear of his property onto the current alignment of Footpath No.12 - resolved, a signed Third Party Agreement has now been received from Mr Curl.
2) Potential for access by a neighbour, Mr Young, from the rear of his property onto the current alignment of Footpath No.12 - resolved, a signed Third Party Agreement has now been received from Mr Young.
3) Design of any gates required for livestock control, if these are subsequently licensed - the Area Officer would ensure that DDA guidance is taken into account, so that any structures that may be required are appropriate and do not restrict access by those with limited mobility.

7.4. Rights of Way Area Officer
The Rights of Way Area Officer for Central Hampshire is in favour of this proposal and has confirmed that no further works are required to put the footpath into a condition suitable for use by the public on foot.

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

7.6. HCC - Environment Department
Environment Department has been consulted on this proposal.

7.7. Hampshire County Archivist
The County Archivist has confirmed that the current alignment is shown as a footpath on the 1841 Tithe Map of Longparish and that there is no evidence of the existence of higher rights on this particular route.

7.8. The Ramblers' Association
The Ramblers' Association has confirmed that it has no objection in principle to the proposal.

7.9. The Open Spaces Society
The Open Spaces Society does not support the proposed footpath diversion. They consider the current route to be acceptable and can see no advantages in the proposed alignment. They consider the diversion to be unnecessary and likely to set a precedent that could spread throughout the Test Valley.

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

7.11. National Farmers Union
The National Farmers Union has confirmed that they have no objection to this proposal.

7.12. Cyclists Touring Club
The Cyclists Touring Club has been consulted on this proposal.

8) Comments on Consultation Replies

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

8.2. The Open Spaces Society consider the proposal to reroute Footpath No.12 to be unnecessary and a waste of limited public funds.
Officers assert that it is not necessary to prove a need for the diversion to take place - the landowner has applied for the diversion in his own interests, the majority of the cost will be reimbursed by the applicant, the rights of the public are not prejudiced by the proposal and members have a power to determine the application as submitted to the County Council.

9) Criteria for Assessment of the Proposal

9.1. 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, and if (as in this case) it is in the interests of the landowner.

9.2. 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. In this case, the points of termination are not altered.

9.3. Section 119(6) of the Highways Act 1980 sets out criteria to be considered before a Diversion Order is confirmed. The new path or way should not be substantially less convenient to the public in consequence of the diversion and it may then be expedient to confirm the order, having regard to the effect which:

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

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

c) 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.

Although these are not the criteria to be applied at the Order making stage, subject to any matters that may be raised in response to the Order, Officers feel that the proposal meets these tests.

9.4. Section 29 of the Highways Act 1980 requires the County to have due regard to the needs of agriculture, forestry and nature conservation when considering the making of public path creation agreements. Officers confirm that there are no adverse effects on these activities associated with the making of this Order.

9.5. Section 69 of the Countryside and Rights of Way Act 2000 requires the County to have due regard to the needs of persons with mobility problems. This is further reinforced by the requirements of the Disability Discrimination Act 2005. Officers confirm that the requirements of those with limited mobility have been taken into account when developing the proposal for the new route. The route chosen for the diversion is flat and level ground and no structures are currently required that would impede those members of the public with limited mobility.

10) Conclusions:

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:

10.1. The proposed diversion will allow the applicant to enjoy his extended garden in privacy and security.

10.2. The proposed diversion will not be substantially less convenient than the existing route, in that the diverted section A-D-E-C (148 metres) is not significantly longer than the equivalent section of the current route A-B-C (142 metres), it is level and has no structures.

10.3. The proposed diversion will not affect the enjoyment of the path as a whole, as it will provide a clear, level path that can be effectively signed.

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

11) Recommendations

11.1. It is recommended that an Order be made for the diversion of Footpath No.12 in the Parish of Longparish from the current definitive alignment
A-B-C to a new route running between Points A, D, E and C on the attached plan.

Links to the Corporate Strategy

Yes

No

Hampshire safer and more secure for all

_

Maximising well-being

_

Enhancing our quality of place

_

OR

This proposal does not link to the Corporate Strategy but, nevertheless, requires a decision because:

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.)

(Quote list of documents here: e.g. list the relevant letters, memos, etc. and their location)

Document

Location

General Correspondence

I:\Recreation and Heritage\Countryside Service\
Rights of Way\Andrew Jones\Diversions\Longparish Fp 12

Proposal File

ATJ/Div/Longparish Fp 12

IMPACT AREA

IMPACT LEVEL

COMMENTS

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

Equality & Diversity Impact

None

Crime Prevention (under Section 17)

Slight

The security of Yew Tree House will be improved, as the public will not have easy access to the rear of the property