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.16 in the Parish of Sherfield English

Decision Reference:

733

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 Sherfield English Footpath No.16 commences on the northern verge of the U86 Doctors Hill and continues in a generally north westerly direction, across fields, to a junction with the C186 Branches Lane.

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 Sherfield English Footpath No.16 between Points A and B 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, 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) Recommendation:

4.1. It is recommended that an Order be made for the diversion of Footpath No.16
in the Parish of Sherfield English from that section of the current definitive alignment running between Points A and B, to a new route running between Points A 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.16 in the Parish of Sherfield English, as shown on the attached large scale plan.

1.2. It is proposed that the application for diversion of part of Sherfield English Footpath No.16 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. Stuart Goodwill
WYG Planning & Design, St Clairs Farm, Wickham Road,
Droxford, Hants SO32 3PW

3) Landowners:

3.1. Mr & Mrs P Kyle-Henney
Horseshoe Farm, Doctors Hill, Sherfield English, Hants SO51 6JX

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

4.1. Current Route

The definitive alignment of Sherfield English Footpath No.16 commences on the northern verge of the U86 Doctors Hill and proceeds in a generally north westerly direction, along the edge of a wood, to a stile at Point A
(GR 430264 123586), at the start of the diverted section. It then continues along the lower edge of a hedge and up a shallow valley to a second stile at Point B (GR 430168 123720), on a junction with Footpath No.40. The path then follows a route to the west and north, and continues as Footpath No.18b to a junction with the C186 Branches Lane.

The length of the current route of Sherfield English Footpath No.16 between Points A and B is approximately 168 metres.

4.2. Proposed Route

The diverted route of Sherfield English Footpath No.16 will commence at a gap in the fence at Point A (GR 430264 123586) and proceed in a northerly direction on the eastern side of a hedge, to a junction with Footpath No.40 at Point C (GR 430284 123708).

The length of the diverted route of Sherfield English Footpath No.16 between Points A and C will be approximately 122 metres.

The diverted section of Footpath No.16 will have a width of 2.0 metres throughout its length and will not be confined between fences.

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 crossed by the path.

The Senior Countryside Access Ranger (South West) 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. Mr Kyle-Henney has recently purchased the site and is in the process of constructing a new residence that will be located somewhat closer to the current definitive alignment than is the case with the present structure.
He has therefore applied for the diversion of the middle section of Footpath No.16, in order to improve the privacy and security of this dwelling and to remove the possibility of a perceived sense of invasion of privacy on the part of users of the path.

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 inter alia 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 (122m) is somewhat shorter than the equivalent section of the current footpath (168m), and structures, such as the stiles at Points A and B, have been eliminated in the new alignment. This should make the footpath more accessible to those with limited mobility.

6.3. The current width for this section of Sherfield English Footpath No.16 is quoted as 6ft in the Definitive Statement of public rights of way. The new width of 2.0 metres will provide a marginal improvement in this respect.

7) Consultations with Other Bodies:

7.1. Local Member - Councillor Roy Perry
Councillor Perry has been consulted and has stated that he would wish to support the views of Sherfield English Parish Council in this matter.

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. Sherfield English Parish Council
The Parish Council has confirmed that they have no objection to the proposal, provided that Footpath Nos.16 and 40 are suitably maintained.

7.4. Rights of Way Area Officer
The Senior Countryside Access Ranger for South West Hampshire is in favour of this proposal and has specified the works that will be required to put the 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.

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 only shown as a field boundary on the Tithe Map of Sherfield English 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 they would support the proposal if the landowner was prepared to enter into a maintenance agreement for the path. Officers do not consider this to be appropriate.

7.9. The Open Spaces Society
The Open Spaces Society has confirmed that they have no objection to the proposal.

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, most are either in favour of the proposal, or have no objection to it. The only exception to this statement is the response by the Ramblers' Association.

8.2. The Romsey Group of the Ramblers' Association has commented that they would like to see the landowner sign up to a maintenance agreement as a pre-condition for making the order. Officers consider that this would not be an appropriate measure, as the County has an obligation to maintain the surface of the route, and any agreement might not be enforceable against future successors in title. The exchange of correspondence on this subject is included at Appendix 3, as requested by the Romsey RA Footpath Secretary.

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, one point of termination has been moved from Point B to Point C, which will make a better connection for those continuing eastwards on Footpath No.40 and not add greatly to the distance for those continuing westwards.

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 follows a gentle slope 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 improve the privacy and security of the new residential development, which is currently under construction.

10.2. The proposed diversion will not be substantially less convenient than the existing route, in that the diverted section A- C (122 metres) is slightly shorter than the equivalent section of the current route A-B (168 metres).
It also has no structures that would impede access and the route makes a better connection with adjacent paths, making it easier for those who wish to continue to the east of Point C.

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.16 in the Parish of Sherfield English from that section of the current definitive alignment running between Points A and B, to a new route running between Points A 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\Sherfield English Fp 16

Proposal File

ATJ/Div/Sherfield English Fp 16

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 the new residential buildings at Horseshoe Farm will be improved.

Environmental

None