Meeting documents

1 THE ISSUE

1.1 The proposal is to create a public footpath which runs along the top of the escarpment adjacent to Lansdown Road and to divert sections of public footpaths BA5/29 and BA5/12 as detailed in this report.

2 RECOMMENDATION

2.1 The Regulatory (Access) Committee authorise the Divisional Director Environmental Services to make a Public Path Creation Order to create a new public footpath and to make a Public Path Diversion Order to divert sections of public footpaths BA5/29 and BA5/12 as detailed in this report and confirm the Orders if unopposed.

3 FINANCIAL IMPLICATIONS

3.1 The Council will be liable to pay the cost of advertising the making of the Orders in the Bath Chronicle. If objections are received against the Orders and the Committee decides to send the matter to the Secretary of State for determination then the Council will have to meet the costs of preparation for any public inquiry, hearing or written representations that subsequently take place. The Council will also have to cover the cost of providing the location for any public inquiry or hearing.

3.2 If the Orders are confirmed the Council will be responsible for covering the costs of any subsequent newspaper adverts, the cost of bringing the new paths into a condition suitable for public use and any compensation which may become payable as a consequence of the coming into operation of the Order. All costs will be met from the existing Public Rights of Way budget.

4 HUMAN RIGHTS IMPLICATION

4.1 The Human Rights Act incorporates the rights and freedoms set out in the European Convention on Human Rights into UK law. So far as it is possible, all legislation must be interpreted so as to be compatible with the convention.

4.2 The Committee is required to consider the proposals in accordance with the principle of proportionality. The Committee will need to consider the protection of individual rights and the interests of the community at large.

4.3 In particular, the convention rights which should be taken into account in relation to this application are Article 1 of the First Protocol (protection of property), Article 6 (the right to a fair hearing) and Article 8 (right to respect for family and private life).

5 THE LEGAL BACKGROUND

5.1 The Council has a discretionary power to make Public Path Orders. When considering proposals for a Public Path Order, the Council should first consider whether the proposals meet the requirements set out in the legislation reproduced below. In deciding whether to make an Order or not, it is reasonable to consider both the tests for making the Order and for confirming the Order (R. (Hargrave) v. Stroud District Council [2002]). Even if all the tests are met, it may exercise its discretion not to make the Order.

5.2 Creation Order. Before making a creation order under section 26 of the Highways Act 1980 ("the Act") the Authority must be satisfied that there is a need for a right of way in the area. In reaching its decision, the Authority must have regard to:

• the extent to which the path or way would add to the convenience or enjoyment of a substantial section of the public, or to the convenience of persons resident in the area,
  
• the effect which the creation of the path or way would have on the rights of persons interested in the land, account being taken of the provisions to compensation,
  
• the needs of agriculture and forestry,
  
• and the desirability of conserving flora, fauna and geological and physiological features.

5.3 Diversion Order Before making a diversion order under section 119 of the Act the Authority must be satisfied that it is expedient to divert the path in the interests either of the public or of the owner, lessee or occupier of the land crossed by the path.

5.4 The Authority must also be satisfied that the diversion order does not alter any point of termination of the path, other than to another point on the same path, or another highway connected with it, and which is substantially as convenient to the public.

5.5 Before confirming a diversion order, the Authority or the Secretary of State must be satisfied that:

• the diversion is expedient in the interests of the person(s) stated in the order,
  
• the path will not be substantially less convenient to the public as a consequence of the diversion,
  
• it is expedient to confirm the order having regard to the effect it will have on public enjoyment of the path as a whole, on other land served by the existing path and on land affected by any proposed new path, taking into account the provision for compensation.

6 THE REPORT

6.1 Creation The public footpath which is proposed to be created is shown by a solid blue line on the plan contained in Appendix 1 and hereafter referred to as "the Plan". The route commences at a junction with Lansdown Lane (Point A on the Plan) and runs near to the southwestern boundary of playing fields and a track owned by the Council until it reaches a boundary at point B on the Plan. At this point the route crosses into land that is believed to be owned by the only other landowner affected by the proposals ("the Landowner").

6.2 The proposed footpath continues in a generally southeasterly direction along the top of an escarpment, and over predominantly rough pasture, until it reaches a junction with public footpath BA5/12. The proposed route would have a width of 2 metres along its full length and is hereafter referred to as "the Creation Route". The route would be created without any limitations, however it is likely that kissing gates would be subsequently authorised under section 147 of the Act to prevent the ingress and egress of livestock; the likely locations of these structures are denoted by orange stars on the Plan.

6.3 The Creation Route would provide an approximately one mile long, stile-free route within close proximity to where a significant proportion of Bath's inhabitants live. The Creation Route would also form part of a longer circular walk as shown in red on the plan at Appendix 2. The National Trust has created a similar circular walk to the southeast of the city known as the Bath Skyline Walk and this has proven to be very popular.

6.4 The Creation Route would provide the public with extensive views over Weston and much of the western half of Bath and North East Somerset, while on a clear day it is possible to see the Welsh coast, approximately 25 miles away. Also Beckford's Tower, a Grade I listed, 120 foot neo-classical tower, is visible to the northeast. Photographs of the views from the Creation Route are contained in Appendix 3.

6.5 The creation of the proposed footpath would also meet the objectives of two key policy documents. Recommended Actions 4.6 and 4.9 in the Joint Rights Of Way Improvement Plan identify the need to; `Carry out improvements to fill in the gaps...' which have been `identified...in the wider recreational network that will improve accessibility and connectivity.' Additionally, the creation of the footpath would contribute towards one of the Council's eight key priorities set out in the Corporate Plan (2008-2011), namely the creation of `public spaces that we all can enjoy'.

6.6 As stated above in paragraph 6.1, the section of the Creation Route between points A and B on the Plan runs over Council land which is used for playing fields. The proposals would not have a significant effect on use of the land. Agreement has already been obtained from the Council's Parks and Green Spaces team to allow public access along this section. This may be achieved either by including the section between A and B on the Plan in the Creation Order or by means of a dedication of that length as Access Land under section 16 of the Countryside and Rights of Way Act 2000. Further discussions will take place with Parks and Green Spaces to agree this element of the proposals.

6.7 The section of the Creation Route which runs over the Landowner's property (between points B and C on the Plan) is already recorded as Access Land under the Countryside and Rights of Way Act 2000 and as such the public already have a right of access to this land subject to the general restrictions in that Act which place limits on the activities which can be carried out under the right of access. The land is mostly rough pasture and the Council will pay for the supply and installation of any kissing gates which may be required on the footpath to prevent the ingress and egress of livestock. The presence of a footpath is therefore likely to have only a minimal effect on the use of the land for agriculture.

6.8 The Landowner lives at Chelscombe Farm which is approximately 250 metres from the closest point along the Creation Route. Additionally, the pre-existing right of access already allows the public onto land closer to Chelscombe Farm than the Creation Order in itself allows. The impact on the Landowner is not therefore perceived excessive and section 28 of the Act provides compensation for any loss caused by the coming into operation of the Creation Order.

6.9 The land affected by the Creation Route does not have a specific wildlife conservation designation and there are no known flora, fauna, geological features or physiological features of special significance. These fields do contain wildflowers and anthills, as referred to in an email from a member of the public contained in Appendix 4; however, the exact alignment of the Creation Route will be sited to minimise the impact on wildlife in the vicinity. As stated above, the fields through which the Creation Route runs are already recorded as Access Land and by identifying a specific path it is hoped that members of the public will be encouraged to adhere to a common route across the land. This would minimise the public's impact on the more sensitive areas of land and the creation of a public footpath across the land is therefore unlikely to have a negative effect on flora, fauna, geological or physiological features.

6.10 Diversion. The footpath which is proposed to be diverted is the section of BA5/29 and BA5/12 delineated by a solid red line on the Plan. The path runs from point D on the Plan in a generally easterly direction through Chelscombe Farm yard to a junction with BA5/25 at point E on the Plan and is hereafter referred to as "the Current Diversion Route". The footpath would be diverted to a line delineated by a solid green line on the Plan and runs from point D on the plan in a generally northeasterly direction to a junction with the Creation Route at point F on the Plan. The proposed diversion route would have a width of 2 metres along its full length and is hereafter referred to as "the Proposed Diversion Route".

6.11 The Proposed Diversion Route would be created without any limitations, however it is likely that kissing gates would be subsequently authorised under section 147 of the Act to prevent the ingress and egress of livestock; the likely locations of these structures are denoted by orange stars on the Plan. All land affected by the diversion proposals is believed to belong to the Landowner who resides at Chelscombe Farm.

6.12 The Diversion Order would be made in the interests of the public as the new path would provide a better link into the Creation Route. Path users coming from Weston to the southwest and wanting to walk the Creation Route heading northwest would have to walk approximately 550 metres less using the Proposed Diversion Route as opposed to the Current Diversion Route. The Proposed Diversion Route would also avoid passing through a steep sided gully to the north east of point D and avoid going through Chelscombe Farm yard which has been obstructed for a number of years. The diversion would therefore be expedient in the interests of the public on the grounds that it would be more readily accessible for users and significantly reduce the distance they would need to walk.

6.13 The diversion will not affect the southwestern terminus of the footpath which will remain at point D on the Plan. Although the northeastern terminus will be altered from point C to point F on the Plan, if the Creation Order is made and confirmed then this will ensure that there is still highway connecting with the original point of termination. For this reason, the Diversion Order should contain a clause stating that, if confirmed, the Diversion Order will not take effect until the Creation Order has been confirmed and taken effect.

6.14 There is obviously an overlap in the legislation between the expediency of the diversion in the interests of the public and the convenience to the public; the Proposed Diversion Route would be significantly more convenient for members of the public wishing to travel northwest along the Creation Route. Members of the public wishing to travel from Weston to Lansdown (to the east of Chelscombe Farm) could use public bridleway BA5/53, public footpath BA5/28 and public footpath BA5/25. This route is approximately 50 metres longer than using the Current Diversion Route, which is insignificant in the context of a journey which would already be 1110 metres. The two routes are otherwise largely comparable and the diversion would therefore represent an overall gain for the convenience of the public.

6.15 There is also an overlap in the legislation between the public's enjoyment of the route and the `expediency' and `convenience' tests discussed above in paragraphs 6.9 to 6.11. Given the discussions in these paragraphs and the largely comparable nature of the Current and Proposed Diversion Routes, the diversion should be regarded as having a neutral or positive impact on the public's enjoyment of the footpath.

6.16 The Landowner is able to access all of their land without using the Current Diversion Route. Taken as a whole, the diversion should be regarded as having a positive impact on the Landowner's property and if this is the case then no compensation would be payable. The Proposed Diversion Route would take the public away from the Chelscombe Farm buildings and may increase the value of the property.

6.17 Although the Landowner has not made any written objections, during a meeting with officers on 11^th February 2009 she voiced her opposition to the proposals, stating that she did not want any footpaths to be put on her land. Although the creation of a footpath would have a minor negative effect on the Landowner, this must be considered in relation to the significant public benefit gained. The Landowner also asserted that that there is no right of way through the farm yard and that it is not therefore possible to divert the footpath. However, the right of way which the Landowner claims does not exist is recorded on the Definitive Map and Statement ("the DM&S") and its inclusion provides legally conclusive proof that the rights do exist. Additionally, the Council has not received any evidence to show on the balance of probabilities that the rights have been incorrectly recorded and no application has been made to the Council for the path to be deleted from the DM&S.

6.18 The Council has received support for the proposals from David Waterstone of the Ramblers' Association, Sue Toland of the Primrose Hill Community Woodland Trust, Charlcombe Parish Council and the Joint Local Access Forum (see Appendix 4). Seven statutory undertakers responded to the consultation and stated that their plant would not be affected by the proposals.

7 RISK MANAGEMENT

7.1 A risk assessment related to the issue and recommendations has been undertaken, in compliance with the Council's decision making risk management guidance.

8 EQUALITIES

8.1 An equalities impact assessment has been carried out in relation to these proposals.

9 CONSULTATION

9.1 Ward Councillor; Parish Council; Staff; Other B&NES Services; Service Users; Local Residents; Community Interest Groups; Stakeholders/Partners; Section 151 Finance Officer.

9.2 Letters and plans detailing the proposals were sent to statutory undertakers, user groups, ward members, Charlcombe Parish Council, the Landowner and adjacent landowners and the Joint Local Access Forum. Additionally, notices were erected and maintained on site and posted on the Council website for a period of 6 weeks.

10 ISSUES TO CONSIDER IN REACHING THE DECISION

10.1 Social Inclusion; Customer Focus; Sustainability; Property; Human Rights; Corporate; Health & Safety; Other Legal Considerations.

11 ADVICE SOUGHT

11.1 The Council's Monitoring Officer (Council Solicitor) and Section 151 Officer (Strategic Director - Support Services) have had the opportunity to input to this report and have cleared it for publication.

11.2 Advice from the Council's Planning & Environmental Law Team has been taken upon this matter.

12 CONCLUSIONS

12.1 The proposals to make the Orders for the Creation Route and the Proposed Diversion Route meet their respective legislative criteria set out in this report and in broad terms would significantly improve access for members of the public whilst striking a reasonable balance between private and public rights.

12.2 It is therefore recommended that the Committee should authorise the making of a Creation Order and a Diversion Order as detailed above and confirmation both of the Orders if no duly made objections are received to either.