Agenda and minutes

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.

No declarations of interest were made.

To approve the minutes of the meeting held on 14 March 2016

RESOLVED:

That the minutes of the meeting held on 14 March 2016 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. 

Four members of the public had registered to speak in relation to Items 12 – Application to Upgrade Public Footpaths No.8 Marbury cum Quoisley and No33 Wirswall to Bridleway, and  Item 13 – Application for the Diversion of Public No. 12 (part) Goostrey. 

The Chairman advised that he would invite them to speak when the applications were being considered by the Committee.

To note the Committee’s Terms of Reference and membership as appointed at Council on 11 May 2016:

Councillor Martin Hardy (Chairman)

Councillor Dorothy Flude (Vice Chairman)

Councillor Rhoda Bailey

Councillor Stan Davies

Councillor Toni Fox

Councillor Les Gilbert

Councillor John Wray

RESOLVED:

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

To consider whether to accept a delegation of powers from Rochdale Borough Council to determine two village green applications on that Council’s behalf

The Committee considered a report seeking acceptance of a delegation of powers from Rochdale Borough Council to determine two village green applications on that Council’s behalf.

Rochdale Borough Council had approached Cheshire East Council with a request to accept a delegation under S101 of the Local Government Act 1972, with the effect that Cheshire East Borough Council assumes the functions of Commons Registration Authority for Rochdale Borough Council in respect of two village green applications.

Rochdale Borough Council owned the land subject to both applications, and in the interests of transparency, their preference was that another authority determined the applications on its behalf. 

Under S101(1)(b) of the Local Government Act 1972, a local authority may arrange for the discharge of any of its functions by any other local authority.

Rochdale Borough Council had agreed to meet the reasonable costs properly incurred by Cheshire East Council in determining the two applications.

The Committee unanimously

RESOLVED:

That the delegation be accepted from Rochdale Borough Council, made under Section 101 of the Local Government Act 1972, of its powers to determine the following two village green applications:-

a)  lane at Swift Road, Bamford

b)  Heritage Green, Norden

To consider the report of the Independent Expert

The Committee considered the report of the Independent Expert on the application to register land at the rear of Gorsey Bank Primary School, Wilmslow as a village green.

The Public Rights of Way Committee had previously resolved that the Council appoint an independent expert to consider the application.  Mr Stephen Sauvain QC was appointed and he had held a public inquiry to consider the evidence over the course of 16 to 19 November 2015 and had subsequently produced a report.

Mr Sauvain QC in his report concluded that there was insufficient evidence that the land had been used “as of right” for the requisite period by a significant number of inhabitants of the locality or of a neighbourhood within the locality , and that in accordance with the decision of the Supreme Court in Regina (Newhaven Port & Properties Ltd) v East Sussex County Council [2015] A.C 1547, the registration of the land as a village green would be incompatible with the statutory purposes for which the land was held.

Members of the Committee considered the report and recommendations of the Independent Expert and unanimously

RESOLVED:

That the report of the Independent Expert, Mr Stephen Sauvain QC, be accepted and that the application to register the land to the rear of Gorsey Bank Primary School as a village green be rejected for the reasons set out in the Independent Expert’s report.

To consider the report of the Independent Expert

The Committee considered the report of the Independent Expert on the application to register land at Banky Fields, Congleton as a village green.

The Public Rights of Way Committee, at its meeting on 16 March 2015, had resolved that the Council appoint an independent expert to consider the application and prepare a report making a recommendation as to how the application should be determined.

Mr James Marwick of Counsel was appointed as the independent expert.  Mr Marwick issued his Preliminary Advice on 30 March 2015, which advised that the legal question of whether the use of the land was ‘by right’ or ‘as of right’ was likely to determine the application and concluded that the application could be dealt with by way of written representations and invited parties to submit further evidence and written representations.

In accordance with instructions Mr Marwick produced a report in which he concluded that:-

“a)  the land was open space regulated under the Open Spaces Act 1906 and has, on the evidence, been laid out as open recreational space at all material times.  As such, the land was at all material times held out for a statutory purpose for use as open space by the public.

b)  that in accordance with the Supreme Court decision in Regina (Barkas) v North Yorkshire County Council [2014] UKSC21, as a matter of law use of land held under statue for the purposes of public recreation is use “by right” and not use “as of right”.

c)  Therefore the application should be rejected.

Members of the Committee considered the report and recommendations of the Independent Expert and unanimously

RESOLVED:

That the report of the Independent Expert, Mr James Marwick, be accepted and that the application to register the land at Banky Fields, Congleton, as a village green be rejected for the reasons set out in the Independent Expert’s report.

To consider the report of the Independent Expert

The Committee considered the report of the Independent Expert on the application to register land at Bell Avenue, Sutton as a village green.

The Public Rights of Way Committee, at its meeting in December 2014, had resolved that the Council appoint an independent expert to consider the application and prepare a report making a recommendation as to how the application should be determined.

Mr James Marwick of Counsel was appointed as the independent expert.  Mr Marwick issued his Preliminary Advice on 25 April 2015, which advised that the legal question of whether the use of the land was ‘by right’ or ‘as of right’ was likely to determine the application and concluded that the application could be dealt with by way of written representations and invited parties to submit further evidence and written representations. 

In accordance with instructions Mr Marwick produced a report in which he concluded that:-

a)  The land was acquired by Macclesfield Rural District Council (a predecessor in title to Macclesfield Borough Council and Cheshire East Borough Council) as part of a larger conveyance of land executed on or about 21 March 1947.

b)  the Land was subsequently lawfully laid out as a housing estate sometime in the post-war period.

c)  At all material times, a local authority was entitled to lay out open space in connection with the laying out of the housing estate: section 80 of the Housing Act 1936 and later provided for by section 12 of the Housing Act 1985 which was the relevant statute in force during the 20 year period.

d)  use of the Land had been “by right” and not “as of right” from 1993 to 2006 in circumstances where qualifying user must be shown from 1993 to 2013. Therefore the recommendation is that the application be rejected,”

Members of the Committee considered the report and recommendations of the Independent Expert and unanimously

RESOLVED:

That the report of the Independent Expert, Mr James Marwick, be accepted and that the application to register the land at Bell Lane, Sutton, as a village green be rejected for the reasons set out in the Independent Expert’s report.

To consider the outcome of the Judicial Review on the decision to refuse to register land at Black Firs Lane, Somerford as a village green and consider how to proceed with the village green application

The Committee considered a report detailing the outcome of the Judicial Review of the decision to refuse to register land at Black Firs Lane, Somerford as a village green.

An application in respect of land along the verge of Black Firs Lane and Chelford Road, Somerford was initially submitted in May 2013 and refused by the Public Rights of Way Committee on 15 September 2014, following a written report provided by the independent expert, Mr James Marwick.

The decision to refuse the application was subsequently challenged by Judicial Review proceedings in the High Court on the following ground:-

(i)  did the Defendant act in breach of the rule of natural justice that no one should be judge in their own case?

(ii)  if the Defendant was entitled to act on the advice of an independent legal expert, was Mr Marwick such as expert?

(iii)Was Mr Marwick’s advice vitiated by procedural error by allowing the Defendant to put in evidence opposing the village green application out of time and not giving Mr Bell the opportunity to comment on the late evidence before giving his opinion?

(iv) Was the decision of the Defendant procedurally erroneous in that Mr Marwick did not hold a public inquiry to find facts?

In respect of Grounds (i) and (ii) the court found in favour of the Council, finding that the Council’s practice of appointing an independent expert to consider the matter and report to the Public Rights of Way Committee, who would determine the matter, was a lawful process in keeping with the rules of natural justice, and that Mr Marwick was a suitable independent expert.

In respect of Grounds (iii) and (iv) the court found the Mr Marwick had fallen into error, procedurally, by accepting late highways evidence from the Council and not giving Mr Bell sufficient time to comment on it, and that there was sufficient dispute over matters of fact such that the testing of the evidence in a non-statutory public inquiry was required.

Consequently the case was lost and the decision quashed on account of the two linked procedural errors made in the course of consideration of the matter by Mr Marwick.

On account of the finding, the Council must re-determine the matter and it was prudent to do so by means of a non-statutory public inquiry held by an independent expert, who would report to the Committee for a determination.

RESOLVED:

That the Director of Legal Services be authorised to appoint an appropriately qualified independent expert to conduct a non-statutory public inquiry to consider the application and provide the Public Rights of Way Committee with a report and recommendation for determination.

To consider report on the achievements of the Council in terms of its public rights of way functions during the year 2015-16 and the proposed work programme for the year 2016-17

The Committee considered a report which detailed the achievements of the Public Rights of Way service during 2015-16 and set out the proposed work programme for 2016-17.

The Public Rights of Way Manager reported on the work carried out during 2015-16 by the Network Management and Enforcement Team and the Legal Orders Team.

It was reported that:

• 253 planning application consultations and 123 rights of way searches completed
• 66 temporary and emergency closures of right of way had been made
• 601 problems on the network had been logged in 2015-16
• 1 public path orders had been confirmed, 20 cases were in progress, with a backlog of 48 applications
• 4 Definitive Map Modification Orders had been confirmed, 7 were in progress, with a backlog of 33
• 2 Definitive Map Anomaly investigations had been carried out and there was a backlog of 415

The implementation of the Deregulation Act 2015 would require an appraisal of processes and policies for dealing with Definitive Map Modification Orders and Highways Act diversions.  Tight timescales were being introduced requiring their processing within time limits and additionally the processing of Highway Act diversions would become a duty rather than a discretionary service.

The budget for Rights of Way had remained as set throughout the year allowing the Team to both plan spending and clear some of the previous backlog that had arisen.  To facilitate an increased work output a small additional resource not exceeding £15,000 had been made available from other areas.

RESOLVED:

That the Annual Report for 2015-16 be noted and the proposed Work Programme for the Public Rights of Way Team 2016-17 be approved.

To consider the application for the upgrading of Public Footpaths No.8 Marbury cum Quoisley and No.3 Wirswall to Bridleways

The Committee considered a report which detailed an investigation into an application for the upgrading of Public Footpaths No.8 Marbury cum Quoisley and No.3 Wirswall to Bridleway.

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 the evidence and decide on the outcome whether to make a Definitive Map Modification Order.  The event relevant to the application was Section 53 (3)(c)(ii), which required modification of the map by change of status of a right of way:

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

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

The evidence could consist of documentary/historical evidence or user evidence or a mixture of both. All evidence had to be evaluated and weighed and a conclusion reached whether, on the ‘balance of probabilities’ the alleged rights subsist.  Other issues such as safety, security, suitability, desirability or the effects on property or the environment were not relevant to the decision.

The application had been submitted in 2005 by Miss B Harden and Mrs A Williams to amend the Definitive Map and Statement by upgrading footpaths in Marbury cum Quoisley and Wirswall to bridleways.  The application was based solely on historical evidence dating from 1812 to 1954.  There was no evidence of any use on horseback or bicycle. 

Sofie Paton-Smith spoke in objection to the application and stated that she had carried out her own research and believed that the bridleway rights had been removed and that the route was a footpath.  She was awaiting evidence from the County Records Office, which she thought may affect the decision. 

Two letters of objections from Caroline Paton-Smith and Elaine Von Dinther had been circulated to the Committee members.

A detailed investigation of the evidence submitted had been undertaken, together with additional research.  The application had been made based on historical evidence and the following documents had been supplied by the applicant: Marbury and Wirswall Tithe Maps and Apportionment (1837-1840); the Finance Act Plan, Field Book entries (1910, 1913); the National Parks and Access to the Countryside Act Parish Survey for Wirswall (1954) and copies of a diversion of part of the claimed route made through the Quarter Sessions dated 1812.

The historical evidence has showed that the claimed route appeared in a number of documents of good provenance.  The Quarter Sessions diversion records for 1812 were legal documents and although it did not show the full length of the route, it clearly showed that the route continued and indicated a status of ‘bridle and footway’.  The Tithe Maps (1838-40) showed a consistent alignment  ...  view the full minutes text for item 12.

To consider the application to divert part of Public Footpath No.12 in the parish of Goostrey

The Committee considered a report which detailed an application from Robin Carr Associates (agent) on behalf of Mr & Mrs Dick of Swanwick Hall, Booth Bed Lane, Goostrey, requesting the Council to make an Order to divert part of Public Footpath No.12 in the parish of Goostrey.

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.

Margaret Barker, on behalf of Congleton Ramblers and Goostrey Footpath Group, said that they were opposed to the proposed route due to the gradients of the path, which would exclude some users of the present path.  The proposed route would be less enjoyable and convenient than the present path and views of the 17^th century hall would be lost and failed to meet the legal test for the granting of an Order.  The proposed new route would potentially run in part next to a proposed new housing development.

Roger Dyke, on behalf of Goostrey Footpath Group, stated that the Group had brought the footpath back into use in 1999 with the aim to make it safely negotiable by the less agile and eventually wheelchair and pushchairs.  The proposed new route had gradients which were longer and steeper than those of the present route which would permanently exclude those people who could cope with the short gentle climb on the present route but not the longer steeper climbs and descents on the proposed route.

Cameron Dick, applicant, stated that they had purchased the property three years ago and had developed an equestrian business at the property.  There was shared access to the house and yard, which could be busy at times and wished to divert the path for safety and security reasons.  He had commissioned an access audit of the proposed path and had implemented a number of the recommendations from the report.

The land over which the current path and the proposed diversion ran belonged to the Mr & Mrs Dick.  The current path ran immediately in front of the residential property and then between it and the adjoining barns/farm buildings through what was originally an area of farm yard, but was now more akin to the driveway, parking area and garages to the house.  Moving the footpath out of such an area would clearly increase the perception of both security and privacy of the property. 

The proposed new route would leave the drive way to Swanwick Hall and pass through a hand gate before running along a field boundary in a generally south south-easterly direction where it turns in an arc and proceeds down a re-graded slope, crossing a footbridge over the brook and continued up a further slope initially along the field boundary and then through open field through a hand gate to re-join  ...  view the full minutes text for item 13.

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

The Committee considered a report which detailed an application from Mr Peter Hollinshead of Honeysuckle Cottage, Heatley Lane, Broomhall, requesting the Council make an Order to divert part of Public Footpath No.5 (part) in the parish of Broomhall.

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 alignment of the current footpath had been inadvertently obstructed by the recent erection of an agriculture building designed for storage and potentially housing cattle.  Honeysuckle Cottage comprised of a small holding with attached grazing land.  The building had been sited in order to best utilise the available land.  A retrospective planning application had been made to the Council and it was the consultation for this application which brought the matter to the attention of the Public Rights of Way Unit.  A site meeting took place with the landowner, during which it became clear that the available route of the footpath had been slightly offline and hence the misunderstanding regarding the siting of the building.  The application for planning permission had been withdrawn until the diversion order had been processed.

The land over which the section of Public Footpath No.5 to be diverted and the proposed diversion ran belonged to the Applicant.  The new route would have a width of 2 metres, with a grass surface and would not be enclosed.  The route would have a kissing gate rather than stiles. The proposed new route would be approximately 135 metres in length compared to the present route of 132 metres.

The Committee noted that no objections had been received during the informal consultations and considered that the proposed route would not be substantially less convenient that the existing route.  Diverting the footpath would be of benefit to the landowner in terms of aiding with land and animal management.  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 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.5 by creating a new section of public footpath and extinguishing the current path, as illustrated on Plan No.HA/105, 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  ...  view the full minutes text for item 14.

To consider the application to divert parts of Public Footpath No.5 in the parish of Prestbury

The Committee considered a report which detailed an application from United Utilities Plc requesting the Council to make an Order to divert part of Public Footpath No.5 in the parish of Prestbury.

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.

Public Footpath No.5 Prestbury was a long path to the north west of Prestbury, which for most of its length followed the River Bollin.  The sections of footpath to be diverted were mid-way along the footpath, adjacent to the United Utilities Sewerage works, and were partly not available on the ground as the River Bollin had moved alignment and the adjacent land had suffered erosion due to the active nature of the river.

It was proposed to divert the effected parts of the footpaths onto a new route that was slightly further to the east of the current route and therefore, a safer distance from the river.  The new route would be 1.2 metres wide and have a rolled gritstone surface for this width. 

In response to the informal consultations on the proposed route, the Peak and Northern Footpath Society stated that they had reservations about the route being so close to the fencing which surrounded the sewerage works as they believed this made the walk less enjoyable.  East Cheshire Ramblers had submitted a letter which stated that they were not opposed to the diversion in principle but considered that the diversion between J and I, as shown on Plan HA/109, was unnecessary as the river was highly unlikely to erode this section of the footpath and also suggested minor amendments to the diversion which could enhance the future enjoyment by the public. 

In response Officers stated that they believed that as the section next to the fence was only a short distance compared to the full length of the route, this would not have a detrimental effect on the overall enjoyment of the route.  This was the most suitable position for the proposed route to ensure the longevity of the popular footpath, also the tree and foliage coverage on this section would make it difficult to divert the route elsewhere.

The Committee noted the comments received from the informal consultation, however they considered that the proposed route would not be substantially less convenient than the existing route.  Diverting the footpath would make the route available for walkers and ensure the safety of the general public by moving the footpath away from the edge of the river bank ensuring the continued enjoyment of the well-used path.  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  ...  view the full minutes text for item 15.

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

The Committee considered a report which detailed an application from Mr R Bright (agent) on behalf of Bathgate Silica Sand Ltd requesting the Council to make an Order under Section 257 of the Town and Country Planning Act 1980 to divert part of Public Footpath No.9 in the parish of Arclid.

In accordance with Section 257 of the Town and Country Planning Act 1980, the Borough Council, as Planning Authority, could 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. 

A planning application had been submitted applying for a ‘southern eastern extension to existing silica sand workings at south Arclid, Arclid Quarry’ – planning reference 09/2291W, and granted on 20 February 2013.

Part of Public Footpath No.9 Arclid was temporarily aligned on a different route to its definitive alignment since it was diverted 30 years ago in 1986 under the Town and Country Planning Act, Sections 257 & 261 to enable sand extraction under the definitive line.

The 30 year temporary diversion of the Public Footpath No.9 would end on 4 July 2016. Thereafter the legal right of way would revert to the definitive alignment which was currently unavailable.  On that date, it would be formally closed via a temporary 6 month closure, to protect the public from dangers posed by ongoing quarrying operations, on condition that an alternative route would be provided for the public by Archibald Bathgate so that a walkable route was available at all times whilst the definitive route was closed.  It was understood that this would initially comprise Hemmingshaw Lane until the route of the proposed diversion had been made available on the ground which could then be used on a permissive basis until the legal process had been completed.

Any Order made would be made after the expiry date of the 30 year temporary diversion and would detail the diversion of the definitive alignment, not the 30 year temporary diversion. 

The land over which the current route ran and over which the proposed route would run was part owned by Archibald Bathgate Silica Sand Ltd and partly owned by Mrs E Beresford of Arclid Hall Farm.  Mrs Beresford has consented to the diversion going ahead across the parts of land in her ownership.

The land over which ran the existing alignment of the footpath section proposed for division would be re-developed on completion of the sand excavations to recreate and re-landscape the excavated area accommodating the proposed diversion route for Footpath No.9 Arclid

The Committee considered the application and concluded that it would be necessary to divert part of Public Footpath No.9 Arclid to allow for the excavations of sand beneath the land.  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  ...  view the full minutes text for item 16.

Information report on the outcome of a Public Inquiry to Determine Cycle Tack Order on Crewe Footpath Nos. 3 (part) and 11 (also known as Footpath No. 36)

The Committee received an information report on the outcome of public inquiry to determine a Cycle Track Order.

The Public Rights of Way Committee, at is meeting on 18 March 2014, considered an application to convert Footpaths No.3 (part) and No.36 Crewe into Cycle Tracks.  The Committee resolved that “An Order be made under Section 3 of the Cycle Track Act 1984 to convert to cycle track those lengths of public footpath between points A-B-D, as illustrated on Plan No.CTA/001”.

Public Notice of the Order attracted three objections, one of which was withdrawn.  The case was submitted to the Department for Transport National Casework Team in May 2015.  A public inquiry was held on 19 January 2016 with the appointed Inspector, Mike Moore.  The Council was represented by Alistair Mills of Counsel, who called Genni Butler, Countryside Access Development Officer and David Wilkinson, Transport Planning Principal Consultant.  The two objectors represented themselves.  Ben Wye, Chair of Governors at Hungerford Primary School also spoke in support of the Order.

Following the inquiry the Inspector issued a report to the Secretary of State for Transport, in which the Inspector recommended that the Order be confirmed.  The Inspector concluded that “none of the factors put forward in opposition to the Order are of such significance, individually or in combination, that they would amount to reasons not to confirm the Order.”

The Secretary of State considered this recommendation and confirmed the Order on 29 February 2016.  The Council was required to give public notice of this decision.

RESOLVED:

That the report be noted.