Agenda and minutes

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

There were no declarations of interest.

To approve the minutes of the meeting held on 11 June 2012 as a correct record

RESOLVED:

That the minutes of the meeting held on 11 June 2012 be approved as a correct record and signed by the Chairman.

Members of the public may speak on a particular application after the Chairman has introduced the report provided 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 Procedure Rule No.35 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 Committee. 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 should provide at least 3 working days notice in writing, and should include the question with that notice.  This will enable an informed answer to be given.

One member of the public had registered to speak in relation to Item 6: Application to Upgrade Public Footpath No.9 Higher Hurdsfield to Bridleway.  The Chairman advised that he would invite them to speak when the application was being considered by the Committee. 

To consider a report seeking approval of the fees and charges to be levied by the Legal Orders Team for Public Path Orders, Temporary Closures and other work from 1 October 2012 onwards.

The Committee considered a report that detailed the fees and charges levied by the Legal Order Team for Public Path Orders, Temporary Closures and other work from 1 October 2012 onwards.

Members were informed that charges were made in accordance with the Local Authorities (Recovery of Costs for Public Path Orders) Regulations 1993 as amended by the Local Authority (Charges for Overseas Assistance and Public Path Orders) Regulations 1996 and DEFRA Rights of Way Circular 1/2009.  Charges were also made for written responses for public rights of way searches.

The report detailed the current and proposed charges in respect of the following services:

• Public Path Diversion Orders
• Emergency and Temporary Closures
• Gating Orders
• Property Searches

The fees from applicants paid the salary of the officer dealing with the applications and costs were monitored to ensure that they reflected the true cost of the administrative process.  The hourly rate had been calculated at the penultimate spinal column point for grade 8 plus an additional 20% to cover overheads.  There was no profit element to the charges and none may be levied. 

RESOLVED:  That

(1)       subject to any departmental review of charging policy or the implementation of statutory regulations relating to local authority charges, the following charges apply from 1 October 2012:

a.      Public Path Diversion Orders resulting in a confirmed order will be £1575.00 plus the actual advertising costs

b.      Emergency and Temporary Closure:   

a.      for an emergency 5 day or 21 day closure (not requiring press advertisement) the charge will be £165.03.
To extend the closure for a further 21 days will cost £165.03.

b.      a 6 month temporary closure will be £630.00 plus two advertisements

c.      for referring an extension to a temporary closure to the Secretary of State the charge will be £311.60 plus the cost of one advertisement

c.      Gating Orders: the charge will be the same as public path diversion orders - £1575.00

d.      Property Searches: the charge for searches will be £68.00.

(2)       any increase in charges relating solely to inflation be implemented by Officers without the need for Committee approval.

To consider the application to upgrade Public Footpath No. 9 Higher Hurdsfield to Bridleway status

The Committee received a report detailing an application made by Mr R Spoors of Roewood Lane, Macclesfield to modify the Definitive Map and Statement by upgrading Public Footpath No.9 Higher Hurdsfield to a Public Bridleway.

Mr Spoors addressed the Committee as the applicant and also on behalf of the British Horse Society and two local residents – Judith Mosscrop and Mike Blamey. He spoke in opposition to the proposed Order and asked the Committee to approve an Order to upgrade Public Footpath No.9 to Public Bridleway along the definitive route and not the alternative route suggested.

The application to upgrade Public Footpath No.9 Higher Hurdsfield to a Public Bridleway was submitted in July 2003 – between points A-B-C-H-I-D-J-E on Plan No.WCA/004.  The application was supported by 11 user evidence forms and a number of historical documents.

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

There are two events that are relevant to this application section 53(3)(c)(i) and section 53(3)(c)(ii), the first requires modification of the map by addition of a right of way and the second required modification of the map by the upgrading of a right of way: -

“(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…;

(ii)        that a highway shown in the map and statement as a highway of particular description ought to be there shown as a highway of a different description.”

Where evidence in support of an application was user evidence, section 31(1) of the Highway 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 it.”

This required that the public must have used the way without interruption and as of right; that is without force, secrecy or permission. Section 31(2) states that “20 years is to be calculated retrospectively from the date when the right of the public to use the way is brought into question.”

All evidence must be evaluated and weighed and a conclusion reached whether, on the ‘balance of probabilities’ the alleged rights subsist.  With regards to the addition of a right of way (section 53(3)(c)(i)) the lesser test of ‘reasonably alleged to subsist’ may be used.  Any other issues such as safety, security, suitability, desirability or the effects on property of the environment are not relevant to the decision.

There were a number of dates which  ...  view the full minutes text for item 15.

To consider a report on the investigation into the alignment of Public Footpath No.12 in the parish of Hough

The Committee received a report which detailed an investigation into the alignment of Public Footpath No.12 in the parish of Hough.

Section 53 of the Wildlife and Countryside Act 1981 placed a duty on the Borough Council to keep the Definitive Map and Statement under continuous review.  Section 53(3)(c) allowed for an authority to act on the discovery of evidence that suggested that the Definitive Map needed to be amended.

An investigation had been carried out into the alignment of Public Footpath No.12 in the parish of Hough as a result of a query by the landowner of a field where part of the footpath ran.   As part of an enforcement procedure the landowner had questioned whether the footpath actually ran on their land as there were discrepancies between the Definitive Map and the early stages of the Definitive Map process.

The contention over the existence and exact route of the footpath had been simmering for many years, with path users experiencing problems since the mid 1980s.    In 1986 planning permission, which had been refused by Crewe and Nantwich Borough Council, was granted on appeal for Quarantine Kennels at Hollies Farm.  The existence of the footpath must not have been disclosed by this process as the kennels were constructed over the footpath, obstructing the route.  It was at this point that it came to light that the original path recorded on the Definitive Map was anomalous as there was a gap between the end of the adopted highway and the commencement of the footpath adjacent to Hollies Farm, which made enforcement to remove the obstruction complicated.

In 1994 research was undertaken into this anomaly and a modification order was made and confirmed which recorded an additional length of path - number 12A, linking footpath 12 to Birch Lane adjacent to Hollies Farm.  In 1995 the landowner had inquired about diverting Footpath No.12. However negative comments were received from consultation undertaken and works order was issued to re-open the path by the installation of three stiles, signage and waymarking. 

Further problems were reported in 1996 and 1997 about the route not being clearly marked as the existing waymarking was on the wrong side of the hedge.  Further waymarking work was issued and on inspection the path was usable.  In 1999 there was another complaint about a locked gate and a fence obstructing the footpath.  When inspected by the maintenance officer the path was found to be available.  At a meeting with the Public Path Officer the discrepancies between the route shown on the Definitive Map and available on the ground were discussed.  Theyreferred to part of the path that ran along the access drive to Yew Tree Farm and then crosses the boundary into the adjacent field.  The Definitive Map showed the path continuing on the Yew Tree Farm side of the boundary and not entering that particular field at all.  This matter was looked into by the Public Path Officer with reference to internal documents that formed the process  ...  view the full minutes text for item 16.

To consider the proposal to create two public footpaths in the parish of Goostrey

The Committee received a report which detailed a proposal to create two public footpaths to establish a pubic right of way connection between Goostrey Village and the existing rights of way network.

Under Section 2 of the Local Government Act 2000, a local authority had the power to do anything to improve the economic, social or environmental wellbeing for their area.  In accordance with this power, the Council may enter into a Deed of Dedication to create a public right of way.

The Goostrey Footpaths Group had for a number of years sought to establish footpath connections from the existing permissive path in Galey Wood, to the north of the village, to Restricted Byway No.11 known as Appleton’s Lane.  This aspiration was registered during public consultation for the Cheshire East Rights of Way Improvement Plan – reference W64. 

Agreement had been reached with the landowner – Cheshire Farms Service, to create a new public footpath and the designation of a currently permissive footpath as a public footpath.  The proposed route was detailed on Plan No.LGA/001.

RESOLVED:

That public footpaths be created under Section 2 of the Local Government Act 2000 in the Parish of Goostrey, as illustrated on Plan No.LGA/001, and that public notice be given of these public footpaths.

To consider the proposal to enter into a creation agreement to create new bridleways in the parishes of Aston by Budworth and Pickmere

The Committee considered a report which detailed a proposal to upgrade Public Footpath No.10 Pickmere and Public Footpath No.9 Aston by Budworth to Public Bridleway by a Creation Agreement, Deed of Dedication and a Creation Order.

Under Section 2 of the Local Government Act 2000, a local authority had the power to do anything to improve the economic, social or environmental wellbeing for their area.  In accordance with this power, the Council may enter into a Deed of Dedication to create a public right of way.

Under section 25 of the Highways Act 1980 a local authority may enter into an agreement with any person having the capacity to dedicate a public footpath or bridleway. 

Under section 26(1) of the Highways Act 1980 where it appeared to a local authority that there was a need for a footpath or bridleway over land in their area and they are satisfied, having 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, and

·        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 as to compensation

If it was expedient that the path or way should be created, the authority may by order made by them and submitted to and confirmed by the Secretary of State, or confirmed by them as an unopposed order, create a footpath or bridleway over the land.

An application had been received in September 2008 to upgrade Public Footpaths No.10 Pickmere and No.9 Aston by Budworth to Public Bridleway.  The claim was based on long usage of the footpaths by horse riders.  The application was currently number 13 on the Definitive Map Modification Order applications waiting list and it would be a number of years before the application was allocated to an officer to investigate.  In view of this it was proposed to proceed with a Creation Agreement, a Deed of Dedication and a Creation Order. 

The opportunity to create a Public Bridleway had arisen due to a recent change in the ownership of Walthall Farm.  Public Footpath No.9 Aston by Budworth ran over the land of this farm.  Walthall Farm had previously been a County Farm, which was sold in November 2010.  A condition was placed in the sale particulars that the buyer must enter into a Creation Agreement under section 25 of the Highways Act 1980 to dedicate the section of Public Footpath No.9 Aston by Budworth which ran on their land as a bridleway.

The remainder of Public Footpath No.9 Aston by Budworth ran on Council owned land and this could be dedicated as a public bridleway in a Deed of Dedication under section 2 of the Local Government Act 2000.

However, the land over which the southern section of the proposed route – Public Footpath No.10 Pickmere ran was unregistered.  Attempts  ...  view the full minutes text for item 18.

To consider the application to divert part of Public Footpath No.28 in the parish of Sandbach

The Committee received a report which detailed an application from Mr Ian Whitter of Brook Farm, Wheelock, Sandbach, requesting the Council to make an Order under section 119 of the Highways Act 1980 to divert part of Public Footpath No.28 in the parish of Sandbach.

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 interests of the public or of the owner, lessee or occupier of the land crossed by the path.

The applicant owned the land up to the field boundary at point F on Plan No.HA/068 amended.  Mr D Witter owned the land over which the section of the footpath and the proposed diversion ran between point F and G on Plan No.HA/068 amended and had provided written consent and support for the proposal. 

Part of the definitive line of Public Footpath No.28 Sandbach had been unavailable for a number of years and an unofficial diversion had been in place.  Whist the unofficial route was not recorded it was thought that it was put in place by Cheshire County Council in order to provide a useable route on the ground for the public after unsuccessful negotiations with the previous landowner at that time.

It was proposed to divert three sections of the footpath.  The first section to be diverted ran through the yard at Brook Farm. Diverting the footpath out of the yard would be of benefit to the landowner in terms of farm management, as well as removing any risk of accidents between members of the public and farm machinery.  It would also allow the applicant to improve the privacy and security of their property.

The second and third sections to be diverted ran across fields which were currently used for crops and had been unavailable on the ground for a number of years.  The proposed diversion would run across land to the north of the fields following the field boundary and be on permanent grassland.  Moving the legal line out of the fields would allow the landowner greater freedom in utilising the land and would also provide a more easily accessible route for users as only two gates would be required on this section, whereas seven were required on the existing legal line. 

The Ramblers Association had raised concerns about this section of proposed diversion as it was initially proposed to move the paths slighter further north and onto lower ground.  They were concerned that the route would be unsuitable for walkers during the winter months.  As a result the proposal was amended to move the proposed path onto higher ground - points D-E and points F-G on Plan No.HA/068 amended. 

The Committee noted that no objections had been received from the second informal consultations and considered that the proposed route would not be substantially less convenient that the existing route.  The diversion would provide a more accessible  ...  view the full minutes text for item 19.

To consider the application to divert part of Public Footpath No.13 in the parish of Warmingham

The Committee received a report which detailed an application from Mr D Cough of Axis (agent) on behalf of Mr H Torrence of TATA Chemicals Europe Ltd, PO Box 4, Mond House, Winnington Lane, Northwich, requesting the Council to make an Order under section 119 of the Highways Act 1980 to divert part of Pubic Footpath No.13 in the parish of Warmingham.

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 interests of the public or of the owner, lessee or occupier of the land crossed by the path.

The land over which the current path and the proposed diversion ran belonged to TATA Chemicals Europe Ltd.  The section of Public Footpath No.13 Warmingham to be diverted ran though a farmyard where it was obstructed by a building and then it ran across a pasture field which was significantly uneven underfoot due to heavy usage by cattle. 

Diverting the path would resolve the obstruction issue and take users away from the farmyard along a route which would be better underfoot and more convenient.  The new route would be 2m wide, not be enclosed and would have two kissing gates and a sleeper bridge would be installed.  The new route would be more enjoyable for users as it would reduce the need to pass through a yard busy with large livestock and plant/vehicular machinery. Be more convenient since it would not be obstructed and would have a more even surface.

The Committee noted that no objections had been received from the informal consultations and considered that the proposed route would not be substantially less convenient than the existing route.  Diverting the footpath would enable better land and stock management; safer control of operational machinery and vehicles in a busy farmyard; improve the privacy and security of property in the farmyard and resolve the issue of the current obstruction by a building in the farmyard.  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.

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.13 Warmingham by creating a new section of public footpath and extinguishing the current path, as illustrated on Plan No.HA/074, on the grounds that it is expedient to do so in the interests of the owner 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 being received, Cheshire East  ...  view the full minutes text for item 20.

To consider the application to divert part of Public Footpath No.19 in the parish of Bunbury

The Committee received a report which detailed an application from Mr & Mrs Stubbs of Greenacres, Wyche Lane, Bunbury, requesting the Council to make an Order under section 119 of the Highways Act 1980 to divert part of Public Footpath No.19 in the parish of Bunbury.

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 interests of the public, or the owner, lessee or occupier of the land crossed by the path.

The land over which the current path and the proposed diversion ran belonged to Mr & Mrs Stubbs.  The section of Public Footpath No19 Bunbury to be diverted ran though the property of the applicants giving rise to concerns relating to privacy and security.  Furthermore the current path alignment through the property was obstructed by a building.  Diverting the footpath out of the property would offer improved privacy and security whilst resolving the alignment issue. 

The proposed new route (D-C on Plan No.HA/073) would follow a current permissive path that ran between the two properties ‘Greenacres’ and ‘Lynton’.  The new route had a width of 1.7 metres and was enclosed.  The new route would be more enjoyable for users by reducing the need to pass through a private garden and more convenient since it would not be obstructed.

The Committee noted that no objections had been received from the informal consultations and considered that the proposed route would not be substantially less convenient than the existing route.  Diverting the footpath would offer improved privacy and security to the applicants’ property and resolve the outstanding obstruction issue.  It was therefore 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. 

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.19 Bunbury by creating a new section of public footpath and extinguishing the current path, as illustrated on Plan No.HA/073, on the grounds that it is expedient in the interests of the owner 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 being received, Cheshire East Borough Council be responsible for the conduct of any hearing or public inquiry.

To consider the application to divert part of Public Footpath No.9 in the parish of Ridley

The Committee received a report which detailed an application from Mr Robert Latham, Ridley Bank Farm, Wrexham Road, Tarporley, requesting the Council to make an Order under section 257 of the Town and Country Planning Act 1990 to divert part of Public Footpath No.9 in the parish of Ridley.

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

Planning permission had been granted to the applicant in May 21012 (Planning Permission Ref: 12/1235N) for the erection of a cattle shed at Ridley Bank Farm and the existing alignment of Public Footpath No.9 Ridley would be affected by the construction of the cattle shed. 

The proposed route was approximately 407 metres long and would take users away from the cattle shed whilst allowing them to follow a distinct boundary hedge before crossing a pasture field to meet the current footpath in the south west field corner – as shown on Plan No.TCPA/011.

The Committee noted that no objections has been received from the informal consultations and concluded that it was necessary to divert part of Public Footpath No.9 Ridley to allow the development to be carried out.  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.

RESOLVED:  That

(1)       An Order be made under Section 257 of the Town and Country Planning Act 1990 to divert part of Public Footpath No.9 Ridley, as illustrated on Plan No.TCPA/011, on the grounds that the Borough Council is satisfied that it is necessary to do so to allow development to take place.

(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 being received and not resolved, Cheshire East Borough Council be responsible for the conduct of nay hearing or public inquiry.

To consider the application to divert part of Public Footpath No.5 in the parish of Odd Rode

The Committee received a report which detailed an application from Mr Geoffrey Harvey of 14 Salop Place, Kidsgrove, Stoke on Trent, requesting the Council to make an Order under section 257 of the Town and Country Planning Act 1990 to divert part of Public Footpath No.5 in the parish of Odd Rode.

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

Planning permission had been granted to the applicant in February 21012 (Planning Permission Ref: 11/4517C) for the development of a detached dwelling at Higher Bank Farm, 54 Scholar Bank, Scholar Green.  The existing alignment of Public Footpath No.5 Odd Rode would be affected by the construction of the new dwelling. 

Part of the current line of the footpath at Higher Bank Farm was unavailable at several points due to demolition remains and an obstructing building.  The planned development would result in the path being further obstructed.  Therefore the footpath diversion was required to resolve these issues by providing a public access between the building for which planning consent had been granted and a further building that was intended in the future.  The length of the footpath to be diverted was approximately 68 metres.

The Committee noted that no objections has been received from the informal consultations and concluded that it was necessary to divert part of Public Footpath No.5 Odd Rode to allow the development to be carried out.  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.

RESOLVED: That

(1)       An Order be made under Section 257 of the Town and Country Planning Act 1990 to divert part of Public Footpath No.5 Odd Rode, as illustrated on Plan No.TCPA/010, on the grounds that the Borough Council is satisfied that it is necessary to do so to allow development to take place.

(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 being received and not resolved, Cheshire East Borough Council be responsible for the conduct of any hearing or public inquiry.