Agenda item

To consider an application for the Diversion of Public Footpath No 4 (parts), Parish of Henhull.

The Committee considered a report which detailed the investigation to divert parts of Public Footpath No4 in the Parish of Henhull.

An application had been received from Stone MC Ltd on behalf of a consortium of housing developers (the north west divisions of Taylor Wimpey, Redrow Homes and David Wilson Homes), requesting that the Council make an order under section 119 of the Highways Act 1980 to divert two sections of Public Footpath No. 4 in the Parish of Henhull.

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.

A former application for this diversion had been made in 2018 under section 257 of the Town and Country Planning Act 1990 (TCPA 90 s257) as it was considered necessary to do so to enable the Kingsbourne residential development in Nantwich, to go ahead as detailed in the outline planning application (13/2471N), and the reserved matters application, 16/4601N.  Specifically, it was necessary to divert one section of Footpath No. 4 Henhull to enable the building of a house, garage and gardens whose footprints lay across the current definitive alignment of the footpath section such that they would otherwise unlawfully obstruct it. 

The diversion proposal was progressed and an Order had been made.  The Order remained unopposed following formal advertising and the next stage of the process was to install the diversion route before the final administrative stages of the diversion process could be completed.

A site inspection revealed that before the diversion was completed, on the alignment of the current route to be diverted, a house, garage, and gardens had been constructed.  This had voided the diversion under TCPA 90 s257 because the legal test was no longer applicable as it was then no longer necessary to divert the footpath to enable construction of the house, garage, and gardens since they had already been constructed.  Development had already gone ahead. 

Consequently, the incomplete diversion under TCPA 90 s257 was abandoned, and the developers sought the same diversion under the legislation of section 119 of the Highways Act 1980, to rectify the situation.

Under section 119 of the Highways Act 1980 the Council may accede to an applicant’s request if it considered it expedient in the interests of the landowner to make an order to divert the footpath.  

The land over which run both the sections of footpath to be diverted, and the diversion routes, was owned by the applicant.

It was noted that two sections of Henhull Footpath No.4 were proposed for diversion, both linked by a short section of the current footpath.

No objections had been received following a consultation and engagement exercise with the ward Councillor, Parish and Town Councils, user groups, statutory undertakers and the Council’s Nature Conservation Officer.

The Committee considered that the proposed route would not be substantially less convenient than the existing route and diversion of two footpath sections would benefit the landowner by realigning the footpath as per the permitted development that had been granted, and by resolving an obstruction issue. 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)   That an Order be made under Section 119 of the Highways Act 1980, as amended by the Wildlife and Countryside Act 1981, to divert parts of Public Footpath No.4 Henhull by creating a new public footpath and extinguishing the current path as illustrated on Plan No. HA/147 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 and not resolved, Cheshire East Borough Council be responsible for the conduct of any hearing or public inquiry.