Meeting documents

1 THE ISSUE

1.1 To consider objections received against the Bath and North East Somerset Council (Public Footpath CL4/19, Long House Farm, Church Lane, Chew Stoke) Public Path Diversion Order 2008 ("the Order") (see Appendix 1) and to decide whether to abandon the Order or to send it, along with objections received, to the Secretary of State ("the SoS") for determination.

2 RECOMMENDATION

2.1 The Regulatory (Access) Committee is asked to agree that the Order and objections to the Order should be sent to the SoS for determination, and to recommend that the Order be confirmed as made.

3 FINANCIAL IMPLICATIONS

3.1 The Applicant has agreed to pay the Council's standard administration charge of £800 for the making of the Order and also the cost of advertising the making of the Order in the Chew Valley Gazette. The Applicant must cover the costs of any subsequent newspaper adverts and also the cost of bringing the new route of the path into a condition suitable for public use, if the Order is confirmed.

3.2 If the Committee decides to abandon the Order then the Applicant will be able to reclaim the costs that have been paid to the Council so far. If the Committee decides to send the matter to the SoS 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.

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 application 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 with regard to Public Path Orders under the Highways Act 1980 ("the Act"). The Divisional Director for Environmental Services decided on 6^th October 2008 that the diversion proposal met all of the necessary criteria set out in section 119 of the Act and followed the officer's recommendation in deciding to make an Order and to confirm it in the absence of sustained objections (see Appendix 2).

5.2 As objections have been duly made and sustained the Council may not confirm the Order. The Council should therefore:

a) make a formal resolution not to proceed with the Order, or

b) send the Order, together with the objections, to the SoS for determination.

5.3 Before Confirming an Order the SoS must be satisfied that;

• the diversion is expedient in the interests of the person(s) stated in the Order (in this case the landowner),
  
• the path will not be substantially less convenient to the public as a consequence of the diversion,
  
• and that 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 Following the decision made by the Divisional Director for Environmental Services on 6^th October 2008, an order was made on 10^th December 2008 and advertised on 19^th December 2008. Two objections were received against the Order, both of which are reproduced in Appendix 3.

6.2 Objector 1 Mr David Cowling of Chew Stoke raised two issues in his letter of objection which could be classed as referring to the public's enjoyment of the path. Mr Cowling states that the diversion will; `impair the views on the village obtained from the existing path.' However, the proposed footpath enjoys substantially the same views of the village of Chew Stoke as the existing footpath. The village cannot be viewed along the full length of the proposed footpath but this is also the case on the existing footpath; the issue of differing views should not therefore be considered to be a significant consideration in relation to the Order.

6.3 Mr Cowling goes on to state that; `The diversion will route the path along another path that frequently floods and can be difficult to traverse on such occasions. The diversion then proceeds up an existing rough and uneven path shrouded by trees and often difficult to negotiate especially when wet.' The path which Mr Cowling refers to as being particularly liable to flooding is the public footpath which runs southwest from point W on the Order Plan. This path appears to have been relatively recently surfaced with crushed concrete and drainage has been installed along its full length. As a result even during the relatively wet weather experienced in January and February of this year the surface has remained free of flooding.

6.4 The path which Mr Cowling identifies as being `rough and uneven' is the public footpath which runs southeast from point A on the Order Plan. The path is indeed very muddy during wet weather and as a result a contractor has been employed to carry out surfacing works to ensure that this section is firm and even underfoot in future. The works will be completed during the spring and Mr Cowling has previously indicated that he might be prepared to reconsider his objection if these works were to go ahead. The sections of path which Mr Cowling refers to would be of a high standard prior to the Order coming into effect and it is already in a better condition than the surface of the existing path which is badly poached.

6.5 In the final paragraph of the objection letter, Mr Cowling states that; `...the existing path is no longer accessible being fenced off and no longer marked properly. I would like to see this corrected as soon as possible.' Although the existing footpath is indeed blocked at point Z on the Order Plan this was only discovered when the paths were surveyed prior to production of the Order Plan. This appears to be due to an error made by Avon County Council, the previous highway authority for the area, and not a deliberate act by the landowner. An alternative boundary crossing already exists less than 20 metres away and the fact that the footpath is blocked should not in this instance be a material consideration in relation to whether the Order should be confirmed.

6.6 Objector 2 Mr John Ives of Long Ashton objected to the Order on the grounds that he did not believe it had been demonstrated that the diversion was expedient in the interests of the landowner. However, the diversion is expedient as it would improve farm management and increase privacy and security for the landowner.

6.7 Previously, dogs belonging to users of the footpath have become aggressive towards to the landowners horses and foals and this has led to the horses becoming badly spooked. This created a danger to the stable-hands while leading the horses and a danger of the horses injuring themselves. There was also the credible threat that the aggressive behaviour of the dogs could have resulted in the horses being bitten and diverting the footpath out of the field would reduce the danger of this happening in the future.

6.8 The landowner has also previously experienced problems with members of the public leaving the footpath and trespassing to see the horses in the barn southwest of point Y on the Order Plan. Previously this unexpected occurrence has led to foals and young stock becoming spooked and again creating a danger for the stable-hands in the barn with them and to the foals themselves. These are issues which the landowner raised with the Council's Field Officer prior to making the diversion application.

6.9 The landowner lives in the recently converted barn labelled as `Long House Farm' on the Order Plan. The existing footpath looks in through the windows on the gable-end of the house and the diversion would therefore increase privacy for the landowner. Additionally, diverting the footpath would improve security, as it would allow the gates at point W on the Order Plan to be locked and a more secure boundary could therefore be created.

6.10 Mr Ives also raises the issue of the existing footpath being blocked however, as detailed in paragraph 6.5 above, this does not appear to have been a deliberate act by the landowner and should not be deemed a relevant consideration in relation to whether the Order should be confirmed. A response was sent to Mr Ives' previous correspondence and the full exchange of correspondences with Mr Ives' is contained in Appendix 4.

6.11 The Applicant has entered into a conditional dedication agreement, whereby a public footpath will be created across their land between point B on the Order Plan and the public footpath to the west if the Order is confirmed; a copy of the dedication agreement is contained in Appendix 5.

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.

7.2 If the Committee decides to abandon the Order, or if the SoS decides not to confirm the Order, then the Council must resolve the obstruction lying on the current legal route of public footpath BA7/1 at point Z on the Order Plan.

8 EQUALITIES

8.1 An equalities impact assessment has been carried out in relation to this Order.

9 CONSULTATION

9.1 Ward Councillor; Parish Council; Service Users; Local Residents; Community Interest Groups; Statutory Undertakers.

9.2 Prior to the making of the Order, extensive negotiations and site meetings were held with the Parish Council and the Ramblers Association to agree an acceptable alignment for the new path; both these organisations support the Order as made.

9.3 Copies of the Order were sent to all consultees and a notice advertising the making of the Order was erected on site, at Bath Central Library and in Trimbridge House in Bath as well as placed in the Chew Valley Gazette.

10 ISSUES TO CONSIDER IN REACHING THE DECISION

10.1 Social Inclusion; Customer Focus; Sustainability; Property; Human Rights; 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 sustained objections received against this Order do not throw doubt on whether the criteria of section 119 HA1980 have been met. No substantive new issues are considered to have been raised by the objections.

12.2 It is therefore recommended that the Committee should decide to submit the Order, together with objections, to the SoS for determination, with a request that the Order be confirmed as made.