Meeting documents

1 THE ISSUE

1.1 To consider objections received against the Bath and North East Somerset Council (Public Footpath BA25/21, Brook Lodge, Wellow) Public Path Diversion Order 2009 ("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 formally resolve to abandon the Order.

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 Bath Chronicle. 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 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 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 with regard to Public Path Orders under the Highways Act 1980 ("the Act"). On 12^th July 2005 the Regulatory (Access) Committee resolved to authorise the making of a Public Path Diversion Order.

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 point of termination of the path is not altered other than to another point on the same highway, or a highway connecting with it, and which is substantially as convenient to the public.
  
• the path will not be substantially less convenient to the public as a consequence of the diversion,
  
• due regard has been given to the effect the diversion will have on public enjoyment of the path as a whole,
  
• due regard has been given to the effect of the diversion on other land served by the existing path and on land affected by any proposed new path, taking into account the provision for compensation,
  
• due regard has been given to farming, forestry and the keeping and breeding of horses, as well as the Council's wider responsibilities to consider biodiversity and the needs of those with disabilities.

6 PPO POLICY

6.1 In addition to the legislative considerations detailed in section 5 above, the Order should also be considered in relation to the Council's adopted Public Path Order Policy. The policy sets out the criteria against which the Council will assess any Public Path Order, these expand on and are in addition to the tests set out in the legislation. The criteria are:

• Connectivity
  
• Equalities Impact
  
• Gaps and Gates
  
• Gradients
  
• Maintenance
  
• Safety
  
• Status
  
• Width
  
• Features of Interest

6.2 The Policy stresses that the Council will seek to take a balanced view of the proposals against all the criteria as a whole.

7 LEGISLATIVE CONSIDERATIONS

7.1 Eleven objections were received against the Order (see Appendix 2) and the points raised in the letters of objection are considered, along with a wider assessment of the Order's compliance with the legislative tests and the PPO Policy criteria, below.

7.2 Expediency. The Order was made in the interests of the owner of the land over which a section of the current footpath runs ("the Landowner") and it must therefore be shown to be expedient in their interests for the path to be diverted. It should be noted at this point that the existing footpath runs over a driveway immediately adjacent to Brook Lodge, through a garden and across a pastoral field.

7.3 In the application form the Landowner states that the reason for seeking the diversion of the footpath is in the interests of improving `security'. While there may be a perception that the existence of the public footpath through the Landowner's property poses a security risk, it remains to be demonstrated whether diverting the footpath would be a suitable and appropriate means of actually improving security. One of the objectors has objected partially on these grounds.

7.4 The Landowner has also raised concerns about the lack of privacy as a result of the footpath currently running immediately adjacent to Brook Lodge and through the surrounding garden. Diversion of the footpath would stop members of the public from being able to see into the garden and improve privacy for the Landowner. On these grounds the Order should be regarded as being expedient in the interests of the Landowner.

7.5 Point of Termination. While the southern terminus of the section of footpath being diverted will remain the same, the northern terminus would be moved from a junction with Bull's Hill adjacent to Brook Lodge (Point A on the Order Map) to a new junction with Bull's Hill beneath a viaduct approximately 160 metres along the road to the southeast (Point E on the Order Map). Therefore, in order for the diversion to fulfil the second legislative test the new junction with Bull's Hill must be substantially as convenient to the public as the existing junction.

7.6 The existing junction brings the footpath users out onto Bull's Hill on the outside of a bend in the road and immediately opposite a pedestrian footway. Users therefore enjoy good views of oncoming traffic from the east and adequate views of oncoming traffic from the northwest. Additionally footpath users continuing their journey towards the centre of the village of Wellow, which is were the majority of users are likely to be travelling, are able to start their journey along Bull's Hill on a footway.

7.7 Conversely, the proposed new junction of the footpath would bring users out onto Bull's Hill on the inside of a bend with no pedestrian footway. While users would enjoy an adequate view of oncoming traffic from the northwest, the views of traffic travelling from the southeast would be very poor. This is partially owing to the existence of a brick pillar belonging to the viaduct and partially owing to the existence of a bend in the road immediately to the southeast of the viaduct pillar; 5 of the objectors have partially objected on these grounds. Even with the siting of a convex mirror opposite the footpath's proposed junction the proposed terminus of the footpath would not be substantially as convenient for the public.

7.8 Convenience. While the legislation requires any new terminus of a path to be substantially as convenient for the public, the path as a whole must also not be substantially less convenient. The majority of footpath users are likely to be travelling to and from the west and the diversion would increase the distance these users would have to walk by approximately 60 metres; this represents a 23% increase on the current footpath which is approximately 265 metres long.

7.9 The nature and location of the footpath within the wider rights of way network is such that the majority of users are likely to be using the path as part of a much longer recreational walk. The 60 metres increase in the length of their walk is therefore likely to represent a much smaller percentage increase in their overall walk. The small minority of footpath users who travel to and from the footpath from the east would have to walk approximately 260 metres less as a result of the diversion. Therefore while the diversion may not be as convenient, on the whole it is not considered to be `substantially less convenient' for the public.

7.10 Enjoyment. The existing footpath follows a route reserved exclusively for pedestrians. The proposed diversion however would require path users travelling to and from the west to walk along a 60 metre section of Bull's Hill, which is a full vehicular highway. This section of Bull's Hill does not have an adjacent pedestrian footway and follows a wide bend. Additionally, the relatively narrow width and the speed which vehicles regularly travel along this section of road make it particularly unsuitable for pedestrians. The risk to path users would be significantly increased by requiring them to use this section of Bull's Hill and all 11 of the objectors have objected, at least partially, on these grounds.

7.11 The existing footpath affords good views of the valley and countryside to the south from a vantage point at point B on the Order Map. Diverting the footpath would obscure these views which would be particularly undesirable as the majority of public use the footpath for recreational purposes; two of the objectors has objected partially on these grounds.

7.12 It has been suggested, particularly by Objector 9 (see Appendix 2), that if a field contains horses or livestock then members of the public would prefer and would be safer walking across the centre of the field rather than following the headland. Three of the objectors have objected partially on these grounds. There does not appear to be any statistical evidence to substantiate this claim and anecdotal evidence suggests that crossfield paths are just as safe for, and desirable to, members of the public.

7.13 The animals which are kept in the field through which the current and proposed footpaths run regularly congregate south of point E on the Order Map; partly because of the shelter afforded by the viaduct overhead and partly because this is where they are fed. Members of the public may be dissuaded from using the footpath as a result of feeling intimidated by the need to pass so close to these animals. Additionally, the increased contact between the public and the animals may, in turn, increase the public's risk of injury. Three of the objectors have objected partially on these grounds.

7.14 The existing footpath has a flight of steps immediately south of point B on the Order Map which some users may find difficult to negotiate; the proposed route would be step-free. However, on balance the requirement to negotiate a hazardous section of Bull's Hill and the loss of views would substantially decrease the public's enjoyment of the path as a whole.

7.15 Affected Land. The Order will have the affect of diverting the footpath off of land owned by `the Landowner' (as defined above) and diverting the footpath onto land owned by Railway Paths Ltd. This land is already used as a private access track to the agricultural fields and sewage works to the south. The addition of public rights over the track is not regarded as having any negative impacts which would not be mitigated by the provision of compensation. Additionally, it should be noted that Railway Paths Ltd have not raised any objection to the Order.

7.16 The existing public footpath does not provide the sole or primary means of access to any parcels of land and the Order is not therefore considered to have a detrimental effect on land served by the public footpath.

7.17 Other considerations. In considering the merits of the Order, the Council must give due regard to the effect on farming, forestry and the keeping and breeding of horses. It is partially on these grounds that the National Farmers' Union and the tenant farmer of the land between B and C and between E and H on the Order Map have objected. As discussed in paragraph 7.12 above, diverting the footpath along the boundary of the field rather than across the middle of the field is not anticipated to increase the risk to path users and would not therefore affect the tenant's insurance premiums. It should however be considered whether the tenant farmer would be adversely affected by the likely increase in interaction between path users and farm animals which congregate at the gate at point E on the Order Map.

7.18 None of the land affected by the Order is subject to a particular biodiversity designation and the ground beneath the proposed footpath is no more susceptible to being churned up by users than the existing footpath. The Order is not therefore likely to adversely affect biodiversity.

7.19 The diversion is likely to be advantageous to those with mobility problems because users will no longer have to negotiate two stiles and a flight of steps. Additionally the proposed footpath, and the section of Bull's Hill which users would have to walk from the existing footpath, has gentler gradients than the existing footpath.

8 POLICY CONSIDERATIONS

8.1 The Public Path Order Policy expands on, and is in addition to, the tests set out in the legislation; therefore some of the policy criteria have already been considered in section 7 above.

8.2 Connectivity. The Order would not adversely affect the connectivity of the rights of way network as the southern end of the footpath would remain unaffected and the northern end of the footpath did not previously connect with another public rights of way; however as stated above, users would have to walk an additional 60 metres further along Bull's Hill to join public footpath BA25/7 which runs adjacent to St Julian's Church.

8.3 Equalities Impact. As discussed in paragraph 7.19 above, the Order would no longer necessitate users to negotiate two stiles and a flight of steps which are difficult for members of the public with mobility problems to use. However, the alteration of the footpath's junction with Bull's Hill is likely to be disadvantageous to those who have a visual impairment as they will no longer have a clear line of sight of traffic travelling along Bull's Hill from the east. Parents with young children may also be disinclined to use the proposed footpath as they would have to walk along the potentially hazardous section of Bull's Hill.

8.4 Gaps and Gates. The Order does not contain any limitations on the proposed footpath, however three gates are likely to have to be subsequently authorised to control the egress and ingress of livestock; these would conform to the principle of `least restrictive access'.

8.5 Gradients. As detailed in paragraph 7.19 above, the proposed footpath enjoys gentler gradients than the existing footpath.

8.6 Maintenance. The applicant would be financially liable for bringing the new path into a fit condition for use by the public. This will require the erection of a new gate at point E on the Order Map and new kissing gates at points G and H; additionally, a signpost would be required at point E and a small amount of clearance work would be required around point H. Once the Council has certified a path it becomes maintainable at public expense and the proposed footpath is not envisaged to have any greater maintenance liabilities than the existing footpath.

8.7 Safety. As detailed in paragraphs 7.7 and 7.10 above, the Order would significantly compromise the safety of path users.

8.8 Status and Width. The status and width of the footpath would not be altered by the Order.

8.9 Features on Interest. The diversion would result in a loss of views across the valley and the countryside from the vantage point at point B on the Order Map. The diversion would however allow the public views from point F on the Order Map of the Somerset and Dorset Railway viaduct which may be of historical interest to some path users.

8.10 The diversion would be beneficial in terms of reducing the gradient of sections of the path and removing stiles. However, when considering all of the PPO Policy's criteria as a whole the Order would, on balance, have an adverse affect on the footpath. The primary factor in this assessment is the increased risk to path users as a result of the alteration of the footpath's junction with Bull's Hill and the necessity of the majority of users to walk along a section of Bull's Hill without a pedestrian footway.

9 RISK MANAGEMENT

9.1 A risk assessment related to the issue and recommendations has been undertaken, in compliance with the Council's decision making risk management guidance and is contained in Appendix 3.

10 EQUALITIES

10.1 An equalities impact assessment has been carried out in relation to these proposals and is contained in Appendix 4.

11 CONSULTATION

11.1 Ward Councillor; Parish Council; Service Users; National and Local User Groups; Local Residents; Affected Landowners; Statutory Undertakers.

11.2 Notices were erected and maintained on site and posted on the Council website and deposited at Bath Central Library and Trimbridge House for 28 days.

11.3 As stated above, 11 objections were received against the making of the Order and these are reproduced, with personal information redacted, at Appendix 2.

12 ISSUES TO CONSIDER IN REACHING THE DECISION

12.1 Social Inclusion; Customer Focus; Sustainability; Property; Human Rights; Health & Safety.

13 ADVICE SOUGHT

13.1 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.

14 CONCLUSIONS

14.1 The sustained objections received against this Order are considered to demonstrate that the criteria set out in section 119 of the Act have not been met. The convenience of using the footpath and the public's enjoyment of the footpath should be considered to be adversely affected if the Order took affect.

14.2 It is therefore recommended that the Committee formally resolves to abandon the Order.