Agenda and minutes

To receive any apologies for absence

There were no apologies for absence.

To provide an opportunity for Members and Officers to declare any disclosable pecuniary 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 16 March 2015

RESOLVED:

That the minutes of the meeting held on 16 March 2015 be confirmed as a correct record and signed by the Chairman.

Member 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 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 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. 

One member of the public had registered to speak in relation to Item 7.  The Chairman advised that he would invite them to speak when the application was being considered by the Committee.

To note the Committee’s Terms of Reference and membership as appointed at Council on 27 May 2015

Councillor Martin Hardy (Chairman)

Councillor Dorothy Flude (Vice Chairman)

Councillor Rhoda Bailey

Councillor Stan Davies

Councillor Martin Deakin

Councillor Toni Fox

Councillor John Wray

RESOLVED:

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

To consider report on the achievements of the Council in terms of its public rights of way functions during the year 2014-15 and the proposed work programme for the year 2015-16

The Committee received a report which detailed the achievements of the Public Rights of Way service during 2014-15 and set out the proposed work programme for 2015-16.

The Rights of Way Manager reported on the work carried out during 2014-15 by the Network Management and Enforcement Team and the Legal Orders Team.

It was reported that:

·         238 planning application consultations and 142 rights of way searches completed

• 52 temporary and emergency closures of rights of way had been made
• 661 problems on the network had been logged in 2014-15
• 5 public path orders had been confirmed, 22 cases were in progress, with a backlog of 43 applications
• 1 orders had been contested and would be referred to the Planning Inspectorate
• 4 Definitive Map Modification Orders had been confirmed, 7 were in progress, with a backlog of 23
• 2 Definitive Map Anomaly investigations had been carried out and there was a backlog of 400+

The budget for Rights of Way services had remained as set throughout the year allowing the Team to both plan spending and clear some of the previous backlog that had arisen between 2010 and 2013. 

RESOLVED:

That the Annual Report for 2014-2015 be noted and the proposed Work Programme for the Public Rights of Way Team 2015-2016 be approved.

To consider the application for the addition of a Public Footpath between Public Footpath Audlem No. 28 and Cheshire Street, Audlem

The Committee received a report which detailed an investigation into an application to for the addition of a public footpath between Public Footpath No.28 and Cheshire Street, Audlem.

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 (3)(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 that evidence and decide on the outcome whether to make a Definitive Map Modification Order.  The event relevant to this application was Section (3)(c)(i), which required modification of the map by the addition 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.”

Where the evidence in support of the application is 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.” 

Section 31(2) states that “the 20 years is calculated retrospectively from the date when the right of the public to use the way is brought into question.”

The application had been submitted in April 2005 by Audlem Parish Council to modify the Definitive Map and Statement for the parish of Audlem by adding a currently unrecorded route as a Public Footpath.  The route applied for ran from Public Footpath No.28 Audlem, on the towpath to the south east of the Shroppie Fly Public House  and ran in a generally north easterly direction to join Cheshire Street, Audlem – points A-B-D-E on Plan No.WCA/008.  An additional loop had also been claimed, from point D running north westerly through the pub car park then northerly up a grassy slope to point C, then turning south easterly along the top of a bank through a wooded area back to point B.  The application was based on user evidence; a total of 10 user evidence forms were submitted with the application. 

John White, North and Mid Cheshire Ramblers, spoke in support of the application and confirmed that he had used the claimed route as the Ramblers had used the car park as a start point for their walks.

A detailed investigation of all the evidence submitted with the application had been undertaken, together with additional research.  In addition to the user evidence, an investigation of the available historical documentation had been undertaken to establish whether the claimed route had an earlier origin. 

From the historical documentation investigation,  ...  view the full minutes text for item 7.

To consider the application to divert part of Public Footpath No.8 in the parish of Crewe

The Committee considered a report which detailed an application from Mr S Wheeler of Race Farm, Waldrons Lane, Coppenhall, Crewe requesting the Council make an Order to divert part of Public Footpath No.8 in the parish of Crewe.

In accordance with Section 119(1) of the Highways Act 1980 it was within the Council’s discretion to make an Order to divert a public footpath 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 the Applicant.  The section of Public Footpath No.8 Crewe to be diverted entered a field and ran along the eastern boundary close to the Applicant’s property before entering a fenced section leading to an exit stile at the north eastern field corner (points A-C on Plan No.HA/101).  Diverting this section of footpath to run along the northern field boundary would afford the applicant improved security and privacy by taking path users further away from the Applicant’s property buildings and adjacent land. 

The proposed new route would start at the junction with Waldrons Road, north of the start point for the current route, from where it would enter into a fenced section of path via a kissing gate. It would run along this fenced section in a generally east, south easterly direction along the northern field boundary to join the current footpath immediately before the stile at the north eastern field corner (point D-C on Plan No.HA/101).

The fenced section would have a width of 2.5 metres and have a grass surface. A drain would be installed at the beginning of the new route from Waldrons Road to resolve current drainage issues and this would be covered and the path surface levelled.

Relocating the start point of the footpath along Waldrons Road would not significantly affect connectivity to the wider path network.

The Committee noted that no objections had be received during the informal consultations and considered that the proposed route would not be substantially less convenient than the existing route.  The Peak and Northern Footpath Society had noted the need for regular maintenance of this footpath.  Diverting this part of the Footpath would be of considerable benefit to the landowner in terms of offering enhanced security and privacy to their property. It was therefore considered that the proposed route would be a satisfactory alternative to the current route 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.8 Crewe by creating a new section of public footpath and extinguishing the current path, as illustrated on Plan No.HA/101, on the grounds that it is expedient in the interests of the owner of the  ...  view the full minutes text for item 8.

To consider the application to divert part of Public Footpath No. 3 in the parish of Bollington

The Committee received a report which detailed an application from Mr Dominic Shaw (agent) of Bower Martin Partnership on behalf of Rowlinson Construction Ltd, London House, London Road, Poynton, requesting the Council make an Order under Section 257 of the Town and Country Planning Act 1980 to divert part of Public Footpath No.3 in the parish of Bollington.

Further to this, for the reasons of public interest, Cheshire East Council proposed that the diversion of a further two parts of Public Footpath No.3 Bollington be included within this Order providing the proposals were unopposed following informal consultation.

In accordance with Section 257 of the Town and Country Planning Act 1980, the Borough Council, as the Planning Authority, can make an Order diverting 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 yet to be granted to Rowlinson Constructions Ltd for a residential development.  The application was cited as Planning Permission Ref: 14/3844M.  The details of the application were for the development of 33 new residential dwellings including 8 apartments, improvements to land levels, amenity, infra-structure and landscaping to suit. The Growth and Infrastructure  Act 2013 allowed for the consideration of the request to divert a public footpath prior to the obtaining planning consent.

Part of the current line of Public Footpath No.3 Bollington would be obstructed by buildings within the proposed residential development and therefore a footpath diversion was required to preserve public access around the residential development.    The land over which the current route ran and over which the proposed route would run was entirely owned by Rowlinson Constructions Ltd. 

The length of footpath proposed for diversion (points A-B-C) was approximately 170 metres.  The proposed new route would be shorter than the current route by approximately 31 metres and would take users along a route that skirted the north and west of the residential development following the meandering River Dean to meet the current route.  The new route would have a width of 2 metres and have a grass surface.

It was considered desirable to raise the footpath onto a bank to help minimise flood risk.  However, recently, the Council had been informed that the Environment Agency required an 8 metre clearance zone on either side of a river to allow access for maintenance etc. and raising the bank for the footpath would affect this zone.  Further discussions would be required to determine whether a raise bank would therefore be possible.  Were it not, then it should be noted that the opposite bank of the river is lower than that onto the development and proposed new route would be located so would naturally hold any flood water.

The existing alignment of the footpath sections proposed for diversion by Cheshire East Council were currently obstructed by the River Dean, which over the years had changed course.  The land over which these sections ran and over which  ...  view the full minutes text for item 9.

To consider the report of the Independent Expert

The Chairman reported that the map at page 93 of the agenda pack was not relevant to this application and had been included in error.

The Committee considered the report of the Independent Person on the application to register land at Pickmere Informal Recreation Open Space, Jacobs Way, Pickmere, Knutsford as a new village green under section 15 of the Commons Act 2006.

The Public Rights of Way Committee, at its meeting on 8 December 2014 had considered the application and resolved:

“a         the Head of Legal Services be authorised to appoint an independent expert to consider the application on the basis of written representations and provide a report.

b.         The Head of Legal Services be given delegated authority to determine if a non-statutory public inquiry should take place upon the recommendations of the Independent Expert, after consulting the Chairman of this Committee.”

On 11 March 2015, the Head of Legal instructed Mr James Marwick of Counsel:

a.    to consider the Application and provide the Head of Legal with a written preliminary review as to whether the matter can be dealt with by way of written representations in the first instance.

b.    If, after considering the Application, counsel is of the view that the Application can be dealt with by way of written representations, to sit as an independent expert to consider the Application on the basis of written representations and prepare a report, to go the Council’s Public Rights of Way Committee, recommending whether the Application should be approved or not;

c.    after considering the Application, counsel is of the view that the Application needs to be dealt with by way of a non-statutory public inquiry, he is to advise the Head of Legal Services in a telephone conference as to the reasons why an inquiry is necessary and, subject to further confirmation from the Head of Legal, to sit as an inspector for the non-statutory inquiry for the purpose of considering the evidence and to prepare a report and recommendation to go the Council’s Public Rights of Way Committee on whether the Application should be approved or not.

Mr Marwick provided a report on 24 March 2015 which advised that the legal question of whether the user of the land was ‘by right’ or ‘as of right’ was likely to be determinative of the application.  He advised that the application could be dealt with by way of written representations and invited the parties to submit further representations and replies on the question of whether the use was ‘as of right’.   

Further evidence, responses and replies were made in April and were passed to Mr Marwick for consideration.  In accordance with instructions, Mr Marwick provided a report dated 15 May 2015, in which he concluded that use of the land had not been “as of right” but permissive for a large balance of the requisite 20 year period and recommended that the application be rejected.  The report was circulated to all parties on 3 June 2015, with an  ...  view the full minutes text for item 10.