Archived decisions

Decision Maker:

Regulatory Committee

Date of Decision:

27^th May 2009

Decision Title:

Application for a Public Path Diversion Order for
part of Footpath No.13 in the Parish of Wickham

Decision Reference:

734

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 Wickham Footpath No.13 commences at the junction of Biddenfield and Titchfield Lanes and continues in a generally northerly direction, across fields and through wooded areas, to the parish boundary and a junction with Shedfield Footpath No.7.

1.2. Members are requested to approve the recommendation by Officers that an Order should be made for the permanent diversion of that part of Wickham Footpath No.13 between Points A, B and C on the accompanying plan.

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, in the following circumstances:-

"Where it appears to a council as respects a footpath, bridleway or restricted byway 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, bridleway or restricted byway as appears to the council requisite for effecting the diversion; and

(b) extinguish, as from such date as may be specified in the order or determined 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, so that he may restrict the movement of livestock kept on the property. The proposed alignment will be not be significantly 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) Recommendation:

4.1. It is recommended that an Order be made for the diversion of Footpath No.13
in the Parish of Wickham 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.13 in the Parish of Wickham, as shown on the attached large scale plan.

1.2. It is proposed that the application for diversion of this part of Wickham Footpath No.13 be approved under Section 119 of the Highways Act 1980, 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. Mrs K Barrett and Mr T Benge
Oakridge, Biddenfield Lane, Shedfield, Hampshire SO32 2HP

3) Landowners:

3.1. Mrs K Barrett and Mr T Benge
Oakridge, Biddenfield Lane, Shedfield, Hampshire SO32 2HP

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

4.1. Current Route

The definitive alignment of this section of Wickham Footpath No.13 commences at a stile at Point A (GR 455730 111490), on the southern boundary of the Applicants' land, and proceeds in a generally northerly direction, across pasture, to a further stile at Point B (GR 455746 111550). It then continues across a gravelled driveway to a further stile at Point C (GR 455748 111560), on the southern boundary of the adjoining property.

The length of this section of Wickham Footpath No.13 between Points A, B and C is approximately 75 metres.

4.2. Proposed Route

The diverted route of Wickham Footpath No.13 will commence at a gap at Point A (GR 455730 111490) and proceeds in a north westerly direction along a reserve beside the pasture, to Point D (GR 455704 111506). It then continues in a north easterly direction, along a continuation of the reserve, to a self-closing gate at Point E (455742 111554). The path then crosses the gravelled driveway to connect with the undiverted section of the path at a second self-closing gate at Point C (GR 455748 111560).

The length of the diverted route of Wickham Footpath No.13 between Points A, D, E and C will be approximately 102 metres.

The diverted section of Footpath No.13 will have a width of 2.5 metres throughout its length.

The Senior Countryside Access Ranger (South East) has produced a Schedule of Works that will be required to bring the new route up to a standard required for use by the public and the landowner has agreed to implement these.

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. The applicants have recently purchased the site and are in the process of remodelling the existing residence and the adjoining land.
Their intention is to enclose the rectangle of pasture land A-D-E-F, so that they may keep a small pony and raise rare-breed fowl. The path would be separated from this pasture by a post and rail fence, supplemented by mesh fencing, so that walkers and their dogs will be able to cross the property without encountering problems with livestock in the field.

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 inter alia 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 in the Guidance Notes have been taken into account in developing this proposal.

6.2. The diverted route (102m) is 27 metres longer than the equivalent section of the current footpath (75m), but it is not considered that this will inconvenience walkers to any great degree.

6.3. The existing stiles at Points A, B and C will be replaced by a gap at Point A and self-closing gates at Points E and C. This should make the footpath more accessible to those with limited mobility.

6.4. There is no stated width for this section of Wickham Footpath No.13 in the Definitive Statement of public rights of way. The diverted route will be an improvement in this respect, in that a width of 2.5 metres will be recorded.

7) Consultations with Other Bodies:

7.1. Local Member - Councillor Frederick Allgood
Councillor Allgood has been consulted on this proposal.

7.2. Winchester City Council
The Head of Legal Services at Winchester City Council has been consulted on this proposal, but did not make any comment

7.3. Wickham Parish Council
The Parish Council has been consulted on this proposal, but did not make any comment.

7.4. Rights of Way Area Officer
The Senior Countryside Access Ranger for South East Hampshire is in favour of this proposal and has specified the works that will be required to put the new footpath into a condition suitable for use by the public on foot.

7.5. HCC - Highways Management
Highways Management has been consulted on this proposal and has no objection.

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

7.7. Hampshire County Archivist
The County Archivist has consulted the Tithe Map for Wickham and confirms that there is no evidence on this map of the existence of higher rights in the vicinity of this particular route. Officers have also examined the Ordnance Survey County Series mapping, with similar result.

7.8. The Ramblers' Association
The Ramblers' Association has confirmed that they would have no real objection to the proposal, provided that the width of the new path is sufficient and that the surface is reasonably level. They have been reassured in both respects.

7.9. The Open Spaces Society
The Open Spaces Society has requested, and received, clarification on the precise location of the new path, but has made no further comment.

7.10. Land Access & Recreation Association (LARA)
LARA has confirmed that they have no objection to this proposal, provided that the widths are clearly stated and that any obstructions conform to the latest guidance.

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, none have any objection to the proposed diversion of this section of footpath.

8.2. The comments made by user groups will be taken into account. A width of 2.5 metres between fences will be stated in any Order that is made. The Countryside Access Manager has made a list of the works that are required to bring the new path up to a standard suitable for use by the public, and will not sign off the Completion Certificate until he is content that all surfaces and structures comply with current guidance on the subject.

9) Criteria for Assessment of the Proposal

9.1. The Council, as 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, neither terminal has been moved.

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 alignment chosen for the diversion crosses level ground and those structures that are required to restrict the movement of livestock have been specified so that they do not impede access by 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 improve the security of livestock which will be kept by the applicant on pasture crossed by the current route.

10.2. The proposed diversion will not be substantially less convenient than
the existing route, in that the diverted section A-D-E-C (102 metres) is
only slightly longer than the equivalent section of the current route A-B-C (75 metres).

10.3. 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.13 in the Parish of Wickham 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.

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\Wickham Fp 13

Proposal File

ATJ/Div/Wickham Fp 13

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)

None

Environment

None