Agenda and minutes

Public Rights of Way Committee
Monday, 10th June, 2019 2.00 pm

Venue: Committee Suite 1,2 & 3, Westfields, Middlewich Road, Sandbach CW11 1HZ. View directions

Contact: Rachel Graves  Democratic Services Officer

Items
No. Item

1.

Apologies for Absence

Minutes:

Apologies were received from Councillors B Puddicombe and D Stockton.

2.

Declarations of Interest

To provide an opportunity for Members and Officers to declare any disclosable pecuniary and non-pecuniary interests in any item on the agenda.

Minutes:

Councillor S Pochin declared that she was the local ward member for Item 8 – Application for the Extinguishment of Public Footpath No.20 in the parish of Bunbury, and for Item 9 – Proposal for the Diversion of Public Footpath No.6 (part) in the parish of Stoke, and stated that she had not taken part in any discussions on these applications.

 

Councillor Pochin also declared in relation to Item 10 – Proposed Diversion of Unrecorded Footpath off St Anne’s Lane, Nantwich, that she knew the developer and that she had not discussed this application with them.

 

Councillor L Wardlaw declared in relation to Item 10 - Proposed Diversion of Unrecorded Footpath off St Anne’s Lane, Nantwich, that she had, as Portfolio Holder and Deputy Leader, approved the deed of dedication creating the public footpath link and would leave the meeting during consideration of this item.

 

Councillor S Akers Smith declared that she had been present when Congleton Town Council had discussed and approved to support Item 6 – Application for the Addition of a Public Footpath between Newcastle Road to Padgbury Lane, Congleton and that she would not take part in the consideration of this application.

3.

Minutes of Previous meeting pdf icon PDF 79 KB

To approve the minutes of the meeting held on 11 March 2019.

Minutes:

RESOLVED:

 

That the minutes of the meeting held on 11 March 2019 be confirmed as a correct record.

4.

Public Speaking Time/Open Session

In accordance with paragraph 9 of Appendix 7 of the Procedure Rules, members of the public may speak on a particular application after the Chairman has introduced the report, provided that notice has been given in writing to Democratic Services by 12 noon one clear working day before the meeting.  A total of 6 minutes is allocated for each application, with 3 minutes for objectors and 3 minutes for supporters.  If more than one person wishes to speak as an objector or supporter, the time will be allocated accordingly or those wishing to speak may agree that one of their number shall speak for all.

 

Also in accordance with paragraph 2.32 of the Committee Procedural Rules and Appendix 7 of the Procedural Rules a total period of 10 minutes is allocated for members of the public to address the Committee on any matter relevant to the work of the body in question.  Individual members of the public may speak for up to 5 minutes but the Chairman will decide how the period of time allocated for public speaking will be apportioned where there are a number of speakers.  Members of the public are not required to give notice of the intention to speak, however as a matter of courtesy, a period of 24 hours notice is encouraged.

 

Members of the public wishing to ask a question at the meeting should provide at least three clear working days’ notice in writing and should include the question with that notice. This will enable an informed answer to be given. 

 

 

Minutes:

The Chairman advised the she would invite those registered to speak to come forward to speak when the relevant application was being considered by the Committee.

5.

Terms of Reference pdf icon PDF 27 KB

To note the Committee’s Terms of Reference as set out in the Constitution.

Minutes:

RESOLVED:

 

That the Terms of Reference of the Public Rights of Way Committee be noted.

6.

Wildlife and Countryside Act 1981- Part III, Section 53: Application No.CO/8/40, for the Addition of a Public Footpath between Newcastle Road (A34) to Padgbury Lane, in the Town of Congleton. pdf icon PDF 144 KB

To consider the application for the addition of a Public Footpath between Newcastle Road to Padgbury Lane in the town of Congleton.

Additional documents:

Minutes:

The Committee considered a report which detailed an investigation into an application for the addition of a Public Footpath between Newcastle Road (A34) and Padgbury Lane in the town of Congleton to the Definitive Map and Statement.

 

Under Section 53 of the Wildlife and Countryside Act 1981, the Borough Council had a duty, as surveying authority, to keep the Definitive Map and Statement under continuous review.  Section 53(c) allowed the Authority to act on the discovery of evidence that suggests that the Definitive Map and Statement needed to be amended.  The Authority must investigate and determine the evidence and decide whether to make a Definitive Map Modification Order or not.

 

One such event - under section 53 (3)(c)(i) was where

 

“(c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows:-

 

(i) that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way such that the land over which the right subsists is a public path, a restricted byway or, subject to 54A, a byway open to all traffic.”

 

The evidence could consist of documentary/historical evidence or user evidence or a mixture of both.  Where the evidence in support  was user evidence, section 31(1) of the Highways Act 1980 applied: - “Where a way .... has been actually enjoyed by the public as of right and without interruption for a full period of twenty years, the way is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate.”

 

The application had been submitted by Mr Alan Wrench on behalf of the Congleton Group of The Ramblers’ Association to amend the Definitive Map and Statement by the additional of a footpath between Newcastle Road and Padgbury Lane, in the town of Congleton.  The application was made on the basis of user evidence from seven witnesses; with a further two witnesses later submitting evidence. 

 

The report before the Committee detailed the investigation carried out into the application. 

 

In addition to the evaluation of the user evidence, an investigation had been carried out into historical documentation to establish if the claimed route had an historical origin. It was found that the claimed route was shown on Commercial County Maps of 1819, 1830 and 1831, the Congleton Tithe Map of 1845 and Ordnance Survey maps.

 

Nine people had claimed use of the route and all had completed standard user evidence forms. The relevant 20 year period was 1994 to 2014, when the application was made.  All the users claimed use of the route on foot, with eight out of the nine users stating they had used the claimed route in excess of the 20 year period. The route had been used for a variety of recreational purposes such as dog walking, visiting friends and walks organised by  ...  view the full minutes text for item 6.

7.

Wildlife and Countryside Act 1981- Part III, Section 53: Application no. MA/5/252 - Application for the Deletion of Footpath nos. 15 (part) and 23 between Charles Head Farm and Neighbourway Farm Parishes of Rainow and Kettleshulme and Application no. MA/5/174 - Application for the Deletion of Footpath no. 23 Parish of Kettleshulme pdf icon PDF 253 KB

To consider the applications for the deletion of part of Public Footpaths No.15 and No.23 in the parish of Rainow and Kettleshulme.

Additional documents:

Minutes:

The Committee considered a report which detailed an application to amend the Definitive Map and Statement  by deleting Public Footpath Nos. 15 (part) and 23 between Charles Head Farm and Neighbourway Farm in the two parishes of Rainow and Kettleshulme.

 

Under Section 53(2)(b) of the Wildlife and Countryside Act 1981 the Council was required to keep the Definitive Map and Statement under continuous review and make such modifications to the Map and Statement as appears requisite in consequence of the occurrence of certain events.

 

One such event under section 53(c)(iii) required the modification of the Map and Statement to delete a public right of way where:

 

“(c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows:

 

(iii)       that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification.”

 

The evidence could consist of documentary/historical evidence or user evidence or a mixture of both.

 

The following case law test and government guidance notes also needed to be considered when considering deletion cases:

·         DEFRA Government Circular 1/09 (1990)

·         Trevelyan v SOS [2001] EWCA Civ 266 and Burrows v SOS [2004] EWHC 132

·         Planning Inspectorate Rights of Way Section Advice No 9 (2006).

 

The application had been made by Marie Cunningham in March 2016 and had included a large amount of documentary evidence such as maps, letters and other material sourced from Cheshire Archives, Cheshire East Council Records and elsewhere.  In addition there were also twenty statements attached from individuals who stated that they did not believe that Public Footpath Nos. 15 and 23 were public footpaths.

 

Reference had been made to a previous application made in 1991 to delete Public Footpath No.23 Kettleshulme – MA/5/174.  It was understood that this application had been left undetermined at the time.  It was Officers’ opinion at the time that there was insufficient evidence to support the application; however Officers had given the applicant further time to submit additional evidence but this was not forthcoming and the application was left in abeyance.

 

Marie Cunningham attended the meeting and spoke in support of her application, and making reference to the documentary historical evidence, stating that she believed that Public Footpath Nos. 15 and 23 had been included in error and that there had been confusion over the routes as they were in close proximity to Public Footpaths Nos. 16 and 95. She stated that  Rainow Parish Council had not claimed Public Footpath No.15 and Kettleshulme Parish Council had not claimed Public Footpath No. 23 in their surveys for the Definitive Map so there was no continuity of the route.

 

The report before the Committee detailed the investigation carried out into the documentary historical evidence and user evidence statements and the responses from the consultation undertaken with the user groups/organisations. The report concluded that, whilst it was always a possibility that an error did occur,  ...  view the full minutes text for item 7.

8.

Highways Act 1980 Section 118: Application for the Extinguishment of Public Footpath No. 20 Parish of Bunbury pdf icon PDF 114 KB

To consider the application for the extinguishment of Public Footpath No.20 in the parish of Bunbury.

Additional documents:

Minutes:

The Committee considered a report which detailed an application from the landowner requesting the Council to make an Order to extinguish Public Footpath No. 20 in the parish of Bunbury.

 

In accordance with section 118(1) of the Highways Act 1980 it was within the Council’s discretion to make an Order if it appeared to the Council that it was expedient that a path or way should be stopped up on the ground that it was not needed for public use.

 

The application to extinguish Public Footpath No.20 Bunbury had been made by one of the landowners directly affected by the right of way on the basis that it was not needed for public use and on the grounds that other alternative footpaths existed within the vicinity of Footpath No.20.

 

It was noted that prior to accepting the application, diverting the path under section 119 of the Highways Act 1980 on the grounds of privacy and security was considered.  However, looking at other footpaths in the area, it was concluded that there was no practical solution with regards to permanently diverting the footpath.

 

Public Footpath Nos. 19 and 21 Bunbury ran in close proximity to Public Footpath No.20, and both connected with Public Footpath No.17, as illustrated on Plan No. HA/140. 

 

From the informal consultation, twelve letters of support had been received with ten of these stating that there were better alternative paths than Public Footpath No.20 and as such had chosen not to use Footpath No.20.  One letter of objection had been received. 

 

Peak and Northern Footpaths Society had initially objected to the proposed extinguishment but this had been withdrawn when informed of the support for the application by members of the public.   South Cheshire Ramblers had responded that they did not object to the path being extinguished.

 

The Committee considered the extent to which the path was used, was likely to be used, the availability of adequate alternative routes and the effect an extinguishment would have on the land served by the footpath and the effect on the rights of way network in the area and concluded that Public Footpath No. 20 Bunbury was not needed for public use and that the legal tests for the making of an extinguishment Order were satisfied.

 

The Committee unanimously

 

RESOLVED:  That

 

1          an Order be made under section 118 of the Highways Act 1980 to extinguish Public Footpath No.20 in the parish of Bunbury, as illustrated on Plan No.HA/140 on the basis that it is expedient to do so on the ground it is not needed for public use.

 

2          Public Notice of the making of the Order be given and in the event of there being no objections within the period specified, the Order be confirmed in the exercise of the powers conferred on the Council by the said Act.

 

3          In the event of objections to the Order being received, Cheshire East Borough Council be responsible for the conduct of any hearing or public inquiry.

9.

Highways Act 1980 Section 119: Proposal for the Diversion of Public Footpath No. 6 (part) in the Parish of Stoke pdf icon PDF 113 KB

To consider the application to divert part of Public Footpath No.6 in the parish of Stoke.

Additional documents:

Minutes:

The Committee considered a report which detailed an application from Mr PH Bourne and Partners of Stoke Hall Farm, requesting the Council to make an Order under section 119 of the Highways Act 1980 to divert part of Public Footpath No.6 in the parish of Stoke.

 

In accordance with section 119(1) of the Highways Act 1980 it was within the Council’s discretion to make an Order if it appeared to the Council to be expedient to do so in the in interests of the public or of the owner, lessee or occupier of the land crossed by the path.

 

The land over which the section of path to be diverted, and the proposed diversion ran, belonged to the applicants.  The application had been made on grounds of privacy, security, agricultural purposes and improved land management.

 

The path ran thorough a farm yard and within close proximity to residential property.  Part of the path to be diverted was obstructed by an industrial slurry tank, thought to have been installed during the 1970s.  A short permissive path was in place to go around the tank.  The proposed diversion, as shown on Plan No.HA/141A, would move the path away from the farm yard, property and slurry tank and would be 2 metres wide with a natural grass and earth surface. 

 

The Committee noted that no objections had been received during the informal consultation process and considered that the proposed route would not be substantially less convenient than the existing route.  Diverting the footpath would resolve the long standing obstruction by the industrial slurry tank.  It was considered that the proposed route would be a satisfactory alternative to the current one and that the legal tests for the making and confirming of a Diversion Order were satisfied.

 

The Committee unanimously

 

RESOLVED: That

 

1          An Order be made under Section 119 of the Highways Act 1980, as amended by the Wildlife and Countryside Act 1981, to divert part of Public Footpath No.6 in the parish of Stoke, by creating a new section of Public Footpath and extinguishing the current path, as illustrated on Plan No.HA/141A, on the grounds that it is expedient in the interest of the owners of the land crossed by the path.

 

2          Public Notice of the making of the Order be given and in the event of there being no objections within the period specified, the Order be confirmed in the exercise of the powers conferred on the Council by the said Acts.

 

3          In the event of objections to the Order be received, Cheshire East Borough Council be responsible for the conduct of any public inquiry.

10.

Town and Country Planning Act 1990 Section 257: Proposed Diversion of the Unrecorded Footpath, off St. Anne's Lane, Nantwich pdf icon PDF 98 KB

To consider the application to divert the Unrecorded Footpath off St Anne’s Lane, Nantwich.

Additional documents:

Minutes:

Having previously declared an interest Councillor L Wardlaw left the meeting during consideration of this application.

 

The Committee considered a report which detailed an application from Vision for Nantwich requesting the Council to make an Order under Section 257 of the Town and Country Planning Act 1990 to divert the unrecorded footpath, off St Anne’s Lane, Nantwich.

 

In accordance with section 257 of the Town and Country Planning Act 1990 the Borough Council, as Planning Authority, can make an Order diverting a public footpath if it was necessary to do so to enable development to be carried out in accordance with a planning permission which had been applied for or granted.

 

Planning permission had been submitted for a mixed development of 31 no. apartments, hotel, restaurants, retail units and assisted car parking, including the demolition of No.17 Welsh Row – planning application 18/6313N.

 

The footpath to be diverted was an unrecorded route running across land to the east and southeast of St Anne’s Lane, Nantwich, as shown on Plan No.TCPA/057.  It was currently a well-used link from the Nantwich Riverside Park to Welsh Row and a diversion would allow for the retaining and recording of the pedestrian link on the Definitive Map and Statement.  The diversion was necessary to allow a mixed development of the land off St Anne’s Lane.

 

Alongside the diversion, a deed of dedication was proposed to create a public footpath which would link the proposed diversion to the existing Public Footpath No.4 on Mill Island, in order that the diversion does not create a cul-de-sac path on the Definitive Map.  The land was owned by Cheshire East Council and the route would follow the unadopted sealed surface path across the northern end of Mill Island.

 

The Committee considered the application and concluded that it was necessary to divert the unrecorded footpath to allow for development to be carried out in accordance with planning application 18/6313N.  It was considered that the legal tests for the making and confirming of a Diversion Order under section 257 of the Town and Country Planning Act 1990 were satisfied.

 

The Committee unanimously

 

RESOLVED:  That

 

1          a Public Path Diversion Order be made under Section 257 of the Town and Country Planning Act 1990 on grounds that Cheshire East Borough Council is satisfied that it is necessary to do so in order to enable development to be carried out.

 

2          Public Notice of the making of the Order be given and in the event of there being no objections within the period specified, and in the event that planning consent has been granted, the Order be confirmed in the exercise of the powers conferred on the Council by the said Act.

 

3          In the event of objections being received, Cheshire East Borough Council be responsible for the conduct of any hearing or Public Inquiry.

11.

Town and Country Planning Act 1990 Section 257: Proposed Diversion of Public Footpath No.20 (parts) in the Town of Crewe. pdf icon PDF 89 KB

To consider the application to divert parts of Public Footpath No.20 in the town of Crewe.

Additional documents:

Minutes:

The Committee considered a report which detailed an application put forward by Jacobs UK Limited on behalf of Cheshire East Borough Council requesting that the Council make an Order under section 257 of the Town and Country Planning Act 1990 to divert a section of Public Footpath No.20 in the town of Crewe to enable the development of a new spine road to be undertaken.

 

In accordance with section 257 of the Town and Country Planning Act 1990, the Borough Council, as planning authority, could make an Order diverting a public footpath if it was satisfied it was necessary to do so with a planning permission which had been applied for or granted.

 

Planning permission had been submitted for highway infrastructure measures and associated works in the Leighton area of Crewe, known as the North West Crewe Package – planning reference 18/6118N.

 

The existing alignment of Public Footpath No.20 Crewe would be affected by the development of the new spine road, as shown on Plan No. TCPA/056.  It was proposed that the footpath would be segregated from the road by a green space area.  Safe crossing places of the carriage way would be provided with tactile paving and dropped kerbs to indicate their presence.

 

The Committee considered the application and concluded that it was necessary to divert a section of Public Footpath No.20 Crewe to allow for development to be carried out if planning permission was granted.  It was considered that the legal tests for the making and confirming of a Diversion Order under section 257 of the Town and Country Planning Act 1990 were satisfied.

 

The Committee unanimously

 

RESOLVED:  That

 

1          a public path diversion Order be made under Section 257 of the Town and Country Planning Act 1990 to divert parts of Public Footpath No.20 in the town of Crewe on the grounds that Cheshire East Borough Council is satisfied that it is necessary to do so in order to enable development.

 

2          Public notice of the making of the Order be given and in the event of there being no objections within the period specified, and in the event that planning consent has been granted, the Order be confirmed in the exercise of the powers conferred on the Council by the said Act.

 

3          in the event of objections being received, Cheshire East Borough Council be responsible for the conduct of any hearing or public inquiry.

12.

Public Rights of Way Annual Report 2018-19 and Work Programme 2019-20 pdf icon PDF 152 KB

To consider a report on the achievements of the Council in terms of its public rights of way functions during the year 2018-19 and the proposed work programme for the year 2019-20.

 

Additional documents:

Minutes:

The Committee considered a report which detailed the achievements of the Public Rights of Way team during 2018-19 and set out the proposed work programme for 2019-20.

 

The Acting Public Rights of Way Manager reported on the work carried out during 2018-19 by the Network Management and Enforcement Officers, Technical Administration Officer, Countryside Access Development Officer and the Legal Orders Officers. Specific performance was detailed in the Appendices to the report.

 

The budget for Public Rights of Way had remained as set throughout the year which had allowed the team to plan spending more efficiently, though costs from suppliers for items such as timber and metal furniture had increased.

 

RESOLVED:

 

That the Annual Report for 2018-19 be noted and the proposed Work Programme for the Public Rights of Way Team for 2019-20 be approved.

 

 

13.

Informative Report: Cases of Uncontested Public Path Orders Determined under Delegated Decision pdf icon PDF 65 KB

To note Public Path Orders determined under Delegated Decision.

Minutes:

The Committee received an information report on the uncontested Public Path Order cases that had been determined under delegated decision.

 

One decision had been taken under delegation, which related to a Highways Act 1980 Section 118 application for the Extinguishment of Public Footpath No.13 (part) in the parish of Brereton.

 

AGREED:

 

That the uncontested Public Path Order determined under delegated decision be noted.