Decision details

The Committee considered a report which outlined the investigation to divert part of Public Footpath No. 7 (part) in the Parish of Buerton.

It was noted that the following legal tests which had been considered had been omitted from the report.

In accordance with Section 119(1) of the Highways Act 1980 it was within the Council’s discretion to make the 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 Public Path Orders Officer had been in regular correspondence with the landowner over the last 14 months to establish the permission to have the diversion route on their land.  This had involved regular emails and a site meeting to establish the precise route of the path and the width.  The landowners expressed a wish to provide a diversion to allow the local community and the wider public the opportunity to continue to walk in and enjoy the local environment but at the same time, wanted to continue to use the field as part of the farm business plan. It was considered that it was expedient to divert the footpath in the interests of the public.

Section 119 (2) of the 1980 Act also stipulates that a public path diversion order shall not alter the point of termination of the path if that point was not on a highway, or, where it was on a highway, otherwise than to another point which was on the same highway, or a highway connected with it, and which was substantially as convenient to the public.  The proposed diversion would connect the existing part of Buerton FP No. 7 from point A on the attached plan within the report, to Buerton FP No, 29 at Point B.  The length of the proposed route was 94 meters.  The proposed diversion was considered, as convenient as the current route.

Where there were no outstanding objections, it was for the Council to determine whether to confirm the Order.

Where objections to the making of an Order were made and not withdrawn, the Order would fall to be confirmed by the Secretary of State.

In considering whether or not to confirm the Order, the Secretary of State where the Order was opposed, or the Council where the Order was unopposed, must be satisfied under the provisions of Section 119 (6) of the 1980 Act that the path or way was not substantially less convenient as a consequence of the diversion having regard to the effect of the following 3 points:

1        What impact the diversion had on the public enjoyment of the path as a whole. It was considered that the diversion would provide a connected network where a natural event had made the current route impassable. However, the diverted route would still be close to the brook and would be as enjoyable as the current path if it were available.

2        What effect that the coming into operation of the Order would have as respects other land served by the existing public right of way. This had been considered and there were no impacts.

3        What effect that any new public right of way created by the Order would have as respects the land over which the rights were so created and any land held with it. This had been considered and there were no additional impacts.

In confirming an Order the Secretary of State where the Order was opposed, or the Council where the Order was unopposed, would also have regard to any material provision of the Rights of Way Improvement Plan prepared by the local highway authority and the effect of the path or way on the needs of agriculture, forestry and biodiversity.

The Committee considered the application and evidence as set out within the officer report. The Committee agreed that a Public Path Diversion 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.7 (part) in the Parish of Buerton by creating a new section of public footpath and extinguishing the current path as illustrated on plan no. HA/155 within the report on the grounds that it was expedient in the interests of the public.

RESOLVED: (Unanimously)

That the Highways & Transport Committee

1. Agree that a Public Path Diversion Order be made under Section 119 of the Highways Act 1980, to divert part of Public Footpath No.7 in the Parish of Buerton as illustrated on plan no. HA/155 within the report on the grounds that it is expedient in the interests of the public.

2. Agree that 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. Note that in the event of objections being received, Cheshire East Borough Council be responsible for the conduct of any hearing or Public Inquiry.