Meeting documents

7.8 Additionally, the Existing Footpath runs immediately adjacent to a swimming pool which is currently under construction. Diversion of the public right of way would mean that the Landowner could construct a wall around the swimming pool to further improve privacy; without prior diversion of the Existing Footpath the wall would constitute an unlawful obstruction.

7.9 Objector 2 states that; "...it is extremely unusal (sic) to see a walker in the garden of Abbots Barn Farm. This and the limited numbers of users means that intrusion could only ever (be) regarded as be (sic) negligible." However, it should be noted that the Existing Footpath is currently unusable due to the presence of a fence and hedge across the legal line of the right of way and if the path was not to be diverted then the Existing Footpath would have to be made open and available for use by the public. Use of the Existing Footpath would be likely to increase and guidance from the Planning Inspectorate states that a diversion should be; "...considered as if the path was open in a useable condition."

7.10 Objector 2 has also partially objected on the grounds that the diversion would not improve security for the Landowner and that the diversion would not therefore be expedient in their interests. However, the Landowner's application form stated that `privacy' rather than `security' are the grounds for seeking the diversion. The diversion of the footpath would improve privacy for the Landowner and on these grounds the Order should be regarded as being expedient in the interests of the Landowner.

7.11 Point of Termination. The proposed diversion would not alter the current points of termination and this test should therefore be considered to have been met.

7.12 Convenience. The diversion would increase the distance which users would have to walk by approximately 17 metres; this represents a 17% increase on the current section of footpath which is approximately 100 metres long.

7.13 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 longer recreational walk rather than as a means of getting from one point to another. The 17 metre increase in the length of their walk is therefore likely to represent a much smaller percentage increase in their overall walk.

7.14 Objector 2 states that: "Since the diverted route has been in place the use of this footway has fallen away markedly". However, during site visits and while checking the site notices the Proposed Footpath was well used by both recreational walkers and dog walkers. The diversion is not `substantially less convenient' for the public and this tests is considered to have been met.

7.15 Enjoyment. The proposed diversion would take the footpath no more than 19 metres away from the existing legal route. The Proposed Footpath enjoys substantially the same terrain, and views across the countryside to the east, as the Existing Footpath.

7.16 Objector 1 has objected on the grounds that there is; "...a particular heritage value as this path (CL12/9) which is a continuation, within the Conservation Area, of a path/road system that was formed as part of Hinton Blewett's medieval `planned' village layout. These paths, and this path in particular, were the only means by which earlier inhabitants were able (to) connect with neighbouring farms, the Church, village green, the Manor, the Rectory and other villages/settlements beyond, the significance of which would be lost if this definitive path was to be diverted."

7.17 In further correspondences, Objector 1 has stated that; "...the footpath was on agriculture land until the mid 1990s when retrospective permission was sought to move the garden boundary." The Proposed Footpath (which follows the boundary of a field) would therefore appear to share more physical characteristics with the historic nature of the path than the Existing Footpath (which now runs over a driveway and garden). The Proposed Footpath deviates from the Existing Route by no more than 19 metres and any perceived loss of enjoyment as a result of not walking the historic line of the footpath is not considered to be so great as to justify not diverting the footpath; this test is therefore considered to have been met.

7.18 Affected Land. The proposals are not considered to have an adverse affect on the land onto which the footpath is proposed to be diverted and the Existing Footpath does not provide the sole or primary means of access to any parcels of land. This test is therefore considered to have been met.

7.19 Other considerations. In considering the merits of the proposed diversion, the Council must give due regard to the effect on farming, forestry and the keeping and breeding of horses. The Landowner has confirmed that the diversion would not adversely affect farming operations and that the land is not currently used for forestry or the keeping and breeding of horses.

7.20 None of the land affected by the proposals is subject to a particular biodiversity designation and the diversion is not likely to adversely affect biodiversity.

7.21 The Existing and Proposed Footpaths follow routes which are largely comparable in terms of terrain and navigability for the visually impaired; the diversion is likely to have a neutral effect on members of the public with disabilities.

7.22 Objector 2 states that; "The diversion has allowed the garden at this property to be extended into an area designated as agricultural land unlawfully". The change of use of land is a matter for the Authority's Planning and Building Control department; diversion of the footpath does not equate to consent for a change of land use and visa versa.

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 Gaps and Gates. The proposals do not contain any limitations on the Proposed Footpath, however two gates which are already in situ would be authorised to control the egress and ingress of livestock; these conform to the principle of `least restrictive access'.

8.3 Other policy considerations. The proposals would not adversely affect the connectivity of the rights of way network, equalities considerations, gradient of the path, maintenance liability, public safety, status and width of the right of way or access to features of interest on the public footpath.

8.4 The proposals are therefore considered to have met the criteria set out in the Council's Public Path Order Policy.

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 attached at Appendix 5.

10 EQUALITIES

10.1 An equalities impact assessment has been carried out in relation to these proposals and is attached at Appendix 6.

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 for 6 weeks.

11.3 As stated above, 2 objections were received against the proposals and these are reproduced, with information redacted in compliance with the Data Protection Act 1998, at Appendix 2.

12 ISSUES TO CONSIDER IN REACHING THE DECISION

12.1 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.