Agenda and minutes

Apologies were received from Councillors D Flude and T Fox.

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

In the interests of openness, Councillor S Pochin declared that she knew the applicant the Item 6 – Application for the Diversion of Public Footpath No.8 (part) in the parish of Brindley and that she had not discussed the application with them.

To approve the minutes of the meeting held on 12 March 2018

RESOLVED:

That the minutes of the meeting held on 12 March 2018 be confirmed as a correct record and signed by the Chairman.

In accordance with paragraph 9 of Appendix 7 of the Procedure Rules, members 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 paragraph 2.32 of the Committee Procedural Rules and Appendix 7 of the Procedural Rules 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. 

Mr Mark Hope of Friends of Heritage Green spoke in relation to the village green application considered at the last meeting and that the late objection by Rochdale Borough Council had been made by telephone and had not been submitted in writing. He had contacted the previous Chairman of this Committee seeking for the application to be called back to the Committee for reconsideration and was disappointed that it was not on the agenda today.

In response it was reported that Rochdale Council had informed Cheshire East Council that they were recalling their delegation of this application and therefore Cheshire East Council could no longer deal with the matter.

To consider the applications to upgrade Footpath No.13, Siddington, to Bridleway and upgrade part of Footpath No. 8, Siddington, to Bridleway.

The Committee considered a report which detailed an application to upgrade Public Footpath No.13 Siddington to Bridleway and upgrade part of Public Footpath No.8 Siddington to Bridleway.

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

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.

Where the evidence in support of the application was user evidence, section 31(1) of the Highways Act 1980 applied, which states:

“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.”

The twenty year period was calculated retrospectively from the date when the right of the public to use the way was brought into question.

The application had been submitted in April 2005 by Pat Amies on behalf of Border Bridleways Association to amend the Definitive Map and Statement by upgrading part of Public Footpath No.8 and Public Footpath No. 13 in the parish of Siddington to bridleways.  The applications were based on user and documentary evidence. As the two routes claimed were largely used in conjunction with one another via the interconnecting Restricted Byway No.12, the applications were considered together.

Investigation of the application for the upgrade of Public Footpath No.13 Siddington had revealed that the whole of the route was now recorded as an unclassified road.  The section of Woodside Close that was of uncertain status had been the subject of a Highways Dedication agreement in 2005 between Macclesfield Borough Council, the landowner and Cheshire County Council.  This added a section of highway between the already adopted part of Woodside Close and the part of Nursery Lane (Public Footpath No.13) which had been left as  ...  view the full minutes text for item 5.

To consider the application to divert part of Public Footpath No. 8 in the Parish of Brindley.

The Committee considered a report which detailed an application requesting the Council to make an Order to divert part of Public Footpath No.8 in the parish of Brindley.

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 section of Public Footpath No.6 Brindley to be diverted and the proposed diversion belonged to the applicant.  Part of the path to be diverted was currently obstructed by a large building and the public currently followed a permissive route around the building and a pond. 

The proposed diversion between Points C-D-B on Plan No.HA/130, would commence at a new junction with Public Footpath No.11 Brindley and continue in a south westerly direction alongside a field boundary and would then turn south easterly to re-join the current definitive line at Point B.  The proposal would be in the interest of the applicant due to reasons of privacy and security.  By diverting the footpath it would remove it from a farm area and also resolve the issue of the farm building obstructing the definitive line.

The Committee noted that no objections had been received during the informal consultations.  The Committee considered that the proposed route would not be substantially less convenient than the existing route.  Diverting the footpath from the applicant’s farmyard would improve their privacy and security.  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 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 in the parish of Brindley by creating a new section of public footpath and extinguishing the current path, as illustrated on Plan No.HA/130, on the grounds that it is expedient in the interests of the landowners.

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. 32 in the Parish of Nether Alderley.

The Committee considered a report which detailed an application requesting the Council to make an Order to divert part of Public Footpath No.32 in the parish of Nether Alderley.

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 diversion ran jointly belonged to a group of landowners.  The land had been jointly purchased and written permission had been provided by each landowner.  The current line of the section of footpath to be diverted ran through the boundaries of a number of paddocks.  There was one pedestrian gate to pass through with the rest of the paddocks having gaps in their boundaries to keep the definitive line clear. 

The proposed diversion would follow a current permissive route between Points A-C-B as shown on Plan No.HA/131.  The proposed path would commence at Point A and continue to cross the field to a kissing gate (Point C), already installed by the applicant, on the paddock boundary.  It would then follow an enclosed section to Point B.  The proposal was in the interests of the applicants due to reasons of privacy, security and better land and livestock management.

The Committee noted the comments received from Nether Alderley Parish Council, East Cheshire Ramblers in relation to the ongoing maintenance of the new path and also the issues raised by the local residents and the responses sent by the Public Rights of Way Officers.

The Committee considered that the proposed route would not be substantially less convenient than the existing route.  Diverting the footpath would move the footpath out of the paddocks, improving their privacy and security. 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 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.32 in the parish of Nether Alderley by creating a new section of public footpath and extinguishing the current path, as illustrated on Plan No.HA/131 on the grounds that it is expedient in the interests of the landowners.

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. 5 in the Parish of Bosley.

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

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 section of Public Footpath No.5 Bosley to be diverted and the proposed diversion ran belonged to the applicant.  Stiles Meadow Farm had been a large commercial farm and had subsequently been sold as individual smallholding properties.  The section to be diverted commenced next to an outbuilding and ran along a tarmacked private driveway and passed directly in front of a residential property.   There had been issues with privacy and security at Stiles Meadow Farm mainly due to the remote location and lack of secure gates.  Livestock was also kept at the applicant’s property and these were at risk when being moved due to the fact that a lockable gate could not be put across the driveway.

The proposed diversion would be to the north of the present path – between Points A-C-B on Plan No.HA/129.  It would have a minimum width of 2 metres and the area would be cleared of the trees and shrubbery that were currently in place. The path would be surfaced with material that was of equal quality to the tarmacked drive.  The proposed diversion would run alongside a farm building where there was currently a large drop on the northern side and to ensure safety of walkers this section would be enclosed with a post and rail fence.

The Committee noted that no objections had been received during the informal consultations and noted the comments reported at the meeting from East Cheshire Ramblers and the response from the Public Rights of Way Officer. The Committee considered that the proposed route would not be substantially less convenient than the existing route. Diverting the footpath would be of benefit to the applicant as it would remove the path from their driveway and improve their privacy and security.  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 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 in the parish of Bosley by creating a new section of public footpath and extinguishing the current path, as illustrated on Plan No.HA/129, on the grounds that it is expedient in the interests of the landowners.

2        Public Notice of the making of the Order be given and in the event of there being  ...  view the full minutes text for item 8.

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

The Committee considered a report which detailed an application from Mr and Mrs Wildblood of Lower Pedley Hill Farm, Aldlington requesting the Council to make an Order to divert part of Public Footpath No.12 in the parish of Adlington.

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 legal definitive line of Public Footpath No.12 Adlington had been partially obstructed and offline for decades.  When the current owners purchased the property they had opened up the definitive line and requested to be placed on the diversions application waiting list. The section of footpath to be diverted ran in very close proximity to the applicants home.  In addition, it was at an elevated level close to two bedroom windows, facilitating a clear view directly into the house.  There was a stile and seven steps for users to negotiate up a short steep slope with a gradient of 1:3.  The path ran beneath a low established tree and bush canopy which afforded little natural day light for walkers. 

The proposed diversion would follow the field boundary directly to the east of the property and re-join the existing line of the footpath at the northern end of the field.  Written permission had been obtained from the adjacent landowner.  The footpath would leave Pedley Hill 20 metres to the east of the current route at a slightly wider section of the road, which would provide improved visibility for walkers, drivers and horse riders using the road.  A kissing gate would be installed as the path left Pedley Hill, with one step between the road and gate.  There was then a short slope with a gradient of 1:4, which would provide a slightly easier walking route. The proposal was in the interests of the applicant as it would improve their privacy and security of their property.

The Committee noted that no objections had been received during the informal consultation.  The Committee considered that the proposed route would not be substantially less convenient that the existing route.  Diverting the footpath would be of the benefit to the applicant as it would move the footpath away from the applicant’s home, improving privacy and security and also provide a safer and more accessible exit onto Pedley Hill for walkers.  It was considered that the proposed route would be a satisfactory alternative to the current one 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.12 in the parish of Adlington by creating a new section of public footpath and extinguishing the  ...  view the full minutes text for item 9.

To consider the application to divert part of public footpath No. 16 in the parish of Wilmslow.

The Committee considered a report which detailed an application by the National Trust requesting the Council to make an Order to divert part of Public Footpath No.16 in the parish of Wilmslow.

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 section of path to be diverted and the proposed diversion ran both belonged to the applicant.  The section of path to be diverted took walkers from the junction between Restricted Byways Nos. 18 and 22, Point A as shown on Plan No.HA/128, up a slight embankment, through a narrow gap between an oak tree and stone wall and across the corner of an agricultural field to the gate at Point B. 

The proposed diversion would move the path out of the field and to the east of the current alignment onto a permissive path, which ran parallel to the agricultural field boundary and reconnected with the definitive line of the path at Point B.  The permissive path was already in use by members of the public and was 2.5 metres wide with a hard, level well drained surface throughout.  The diversion would be in the interests of the landowner as it would divert walkers out of the agricultural field and improve land management.

The Committee noted that not objections had been received during the informal consultations and noted the comments from the Peak and Northern Footpaths Society stating that this was a retrospective application, which satisfied all the requirements with the only qualification being that it no longer visibly linked to Footpath No.21. The Committee considered that the proposed diversion would not be substantially less convenient than the existing route.   Diverting the footpath would improve the landowners’ agricultural and land management responsibilities.  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 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.16 in the parish of Wilmslow by creating a new section of public footpath and extinguishing the current path, as illustrated on Plan No.HA/128, on the grounds that it is expedient in the interests of the owners of the land crossed by the right of way.

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 being received, Cheshire East Borough  ...  view the full minutes text for item 10.

To consider the application to divert part of public footpath No. 12 in the Parish of Bunbury.

The Committee considered a report which detailed an application requesting the Council to make an Order to divert part of Public Footpath No. 12 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 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 section of the current path to be diverted and the proposed diversion ran belonged to the applicant. It was proposed that approximately 48 metres of public footpath than ran through the middle of the applicant‘s garden be diverted closer to the property’s boundary – as shown on Plan No.HA/127.  The path was to be separated from the garden area by a planted hedge.  The path would have a recorded width of 2.5 metres and would run through an open area of approximately 15.5 metres and its widest point and 4.5 metres at its narrowest point.

The diversion would be in the interests of the landowner as it would divert walkers way from the middle of the garden and the improve privacy and security of the property.

Responses to the informal consultation had been received from the Open Spaces Society on the height of the proposed hedge and the Mid Cheshire Footpath Society had opposed the diversion on the grounds that it was longer, more confusing and added nothing to the walk or for the householder.  Bunbury Parish Council had objected to the diversion on the basis that it was not in the garden, that the land had never been a garden and that it was a field and had always been a field. The applicant had confirmed that the land was formally classified as a garden/amenity land and not a field in a planning decision notice under section 191 TCPA.

The Committee noted the responses to the informal consultation and the Public Rights of Way Officers responses.  The Committee considered that the proposed route would not be substantially less convenient than the existing route.  Diverting the footpath would preserve the landowner’s privacy and security.  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 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.12 in the parish of Bunbury by creating a new section of public footpath and extinguishing the current path, as illustrated on Plan Number HA/127, on the grounds that it is expedient in the interests of the owners of the land crossed by the right of way.

2       Public Notice of the making of the Order be given and in the  ...  view the full minutes text for item 11.

To consider a report on the achievements of the Council in terms of its public rights of way functions during the year 2017-18 and the proposed work programme for the year 2018-19.

The Committee considered a report which detailed the achievements of the Public Rights of Way team during 2017-18 and set out the proposed work programme for 2018-19.

The Acting Public Rights of Way Manager reported on the work carried out during 2017-18 by the Network Management and Enforcement Officers, Technical Administration Officer, Countryside Access Development Officer and the Legal Orders Officers. Specific performance was detailed in the Appendices to the report.

The budget for Public Rights of Way had remained as set throughout the year which had allowed the team to plan spending more efficiently.

The addition of the two fixed term appointments to the Rights of Way Team had helped to reduce the Public Path Order waiting list.  Measures were being considered to make the process for Public Path Orders and Definitive Map Modification Orders more efficient in an effort to reduce the back log.

The Deputy Portfolio Member for Environment, on behalf of the Portfolio Holder – Councillor D Stockton, thanked the Public Rights of Way Team for their work and contribution to Cheshire East Council and stated that the Portfolio Holder recognised the challenges faced by the Team.

RESOLVED:

That the Annual Report for 2017-18 be noted and the proposed Work Programme for the Public Rights of Way Team for 2018-19 be approved.

To consider a report on proposed changes to the way that some applications for diversion orders and definitive map modification orders are processed and determined.

The Committee considered a report which detailed proposals to change the way some applications for Diversion Orders and Definitive Map Modification Orders were processed and determined.

It was proposed that the previous pilot scheme to allow applicants for Public Path Orders under the Highways Act 1980 and Town and Country Planning Act 1990 to instruct agents to act on their behalf to process their applications would continue. The Public Rights of Way Team would exercise discretion in all cases as to whether or not to accept an applicant’s request to use an independent agent.

A system using external consultants to investigate Definitive Map Modification Orders applications was to be introduced to reduce the backlog and deal with cases set against tight timescales.  If an applicant’s case had not been determined within 12 months of registration they could appeal to the Secretary of State for a direction, requiring their case to be investigated and determined to a given timescale.  Due to staffing pressures it was difficult to meet the timescales imposed by the Secretary of State directions and investigate cases on the existing backlog.

Currently Public Path Order cases were presented to the quarterly Rights of Way Committee for determination.  This could have a knock on effect on the speed at which they could be processed, Orders made, advertised and confirmed and costs recovered by creating a log jam of cases awaiting determination.  It was proposed that a report be taken to the Constitution Committee seeking an amendment to the scheme of delegation so that that any Public Path Order applications that were not contested or contentious at the pre-Order consultation stage be delegated for determination to the Public Rights of Way Manager in consultation with the Chairman and Vice Chairman of the Public Rights of Way Committee.

RESOLVED:  That

1        the report be noted, and

2        the Constitution Committee be recommended to amend the scheme of delegation to allow the Public Rights of Way Manager to determine, in consultation with the Chairman and Vice Chairman of the Public Rights of Way Committee, any Public Path Order applications that are not contested or contentious at the pre-Order consultation stage.