Agenda item

To consider the application to extinguish part of Public Footpath No.2 in the parish of Edleston

The Committee considered a report which detailed an application from Bovis Homes Ltd (Northern Region) requesting the Council make an Order under Section 257 of the Town and Country Planning Act 1990 to extinguish part of Public Footpath No.2 in the parish of Edleston between points A and B as shown on Plan No. TCPA/033.  A second application had been made under Section 118 of the Highways Act 1980 to extinguish part of Public Footpath No.2 in the parish of Edleston between points B and C as shown on Plan No. TCPA/033.

In accordance with Section 257 of the Town and Country Planning Act 1990, as amended by Section 12 of the Growth and Infrastructure Act 2013, the Borough Council, as Planning Authority, can make an Order extinguishing 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 which had been granted.

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 grounds that it was not needed for public use. 

Planning permission had been granted for outline permission for a residential development of 118 dwellings with associated works – planning reference 14/5841N.  The reserved matters application had also been granted  permission – planning reference 16/0983N. 

The current line of Public Footpath No.2 Edleston between points A and B would, under the approved development, be obstructed by two properties and their gardens, a private driveway and it would also run over what would be an adopted highway.  It was considered necessary to extinguish this part of the Footpath to allow for the residential development as detailed in the planning application. 

If the Order was made to extinguish this section of the Footpath it would leave a section of cul-de-sac path approximately 44 metres in length, as shown between Points B and C on Plan No. TCPA/033.  This section of path fell outside the development area and as it was considered that it would serve no useful purpose to the public, a second application had been made by the Applicant to extinguish this section of public footpath on the grounds that it was not needed for public use.  This section of path ran through the garden of the adjacent property Laburnum House.  It was believed that this section of footpath had had very little use by the public as it had been a cul-de-sac path since 1958 when the continuation of the path to the north was stopped up by legal order.

Alternative footpaths were available.  The Applicant was retaining and improving Public Footpaths Nos. 3 and 4 Edleston on their current alignment and would form part of the open space area on the development.  From point C on Plan No. TCPA/033 there was a route through to Queens Drive via Public Footpath No.3 Edleston and Public Footpath No.2 Nantwich.  There would also be a pedestrian access from the end of the new estate road to link with Public Footpath No.3 Edleston.

The Committee noted the that an objection had been received from Mr Howell of Queens Drive, who was objecting to the proposed extinguishment of Public Footpath No.2 Edleston on the grounds that the path was used and that it was a valuable route to the stream.  He stated that from the northern end of Public Footpath No.2 he continued to use routes both east and west along the field edge.  It was noted that these routes were not shown on the Definitive Map and that Public Footpath No.2 had been a cul-de-sac route since the connecting northbound footpath had been stopped up by legal order in 1958. 

The Committee considered the application and concluded that it would be necessary to extinguish part of Public Footpath No.2 Edleston between points A and B, as illustrated on Plan No. TCPA/033, to allow for the residential development to take place.  It was considered that the legal tests for the making and confirming of an Extinguishment Order under Section 257 of the Town and Country Planning Act 1990 were satisfied.

Although there was an outstanding objection to the extinguishment of Footpath, the Committee concluded that there was little evidence of the public wishing to use the cul-de-sac route.  The proposed development would affect the northern section of the Footpath  and would leave a redundant section of footpath approximately 44 metres in length.  The Committee  noted that there were alternative routes available and concluded that the section B to C, as shown on Plan No. TCPA/033 was not needed for public use. It was considered that the legal tests for the making and confirming of a Extinguishment Order were satisfied.

The Committee unanimously

RESOLVED: That

1        An Order be made under Section 257 of the Town and Country Planning Act 1990 to extinguish part of Public Footpath No.2 Edleston, between Points A and B as illustrated on Plan No. TCPA/033, on the grounds that the Borough Council is satisfied that it is necessary to do so to allow development to take place.

2        An Oder is made under Section 118 of the Highways Act 1980 to extinguish part of  Public Footpath No.2 Edleston between points B and C, as illustrated on Plan No. TCPA/033, on the grounds that it is not needed for public use.

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

4        In the event of objections to the Order being receive and not resolved, Cheshire East Borough Council be responsible for the conduct of any hearing or public inquiry.