A report seeking approval from the Sub-Committee to carry out a statutory consultation to make Public Path Extinguishment Order to stop up part Footpath 11 under Section 118 of the Highways Act 1980 (“the 1980 Act”) and under Section 53A(2) of the Wildlife and Countryside Act 1981 (“the 1981 Act”).

Further to Minute 38 of the previous meeting, the Sub-Committee received a report that sought approval from the Sub-Committee to undertake a statutory consultation to make a Public Path Extinguishment Order to stop up part of Footpath 11 under Section 118 of the Highways Act 1980 (“the 1980 Act”) and under Section 53A(2) of the Wildlife and Countryside Act 1981 (“the 1981 Act”).  The Footpath 11 Rearrangement Plan was attached to the report at Appendix 1 and photographs of Footpath 11 illustrating alignment and surface conditions was attached at Appendix 2.

At the previous meeting the Sub-Committee had requested further information on the background and justification for the proposed modification to the footpath and had deferred consideration of the report to the next meeting.

The report explained that a reserved matters application for Phase 2A had been submitted for a residential Extra Care Home with 129 dwellings and a car park with 82 spaces.  The supporting application documents had indicated that the existing pedestrian/cycle access route (Footpath 11) would be retained along the southern boundary of the site and planning approval had been granted in January 2016.  The footpath had subsequently been closed and temporarily diverted during construction to ensure the works could be carried out safely.  A further reserved matters application for Phase 1C had been submitted for landscaping works and it had subsequently been identified that the proposed landscaping in connection with Footpath 11 did not comply with the widths that had been set out in the Definitive Map and Definitive Statement. 

A review of all application plans had been carried out and a site visit had taken place and it was determined that the retaining wall, that had been constructed to address level changes within the site, encroached onto part of the public footpath without lawful authority.  This had resulted in a permanent narrowing of the route, reducing the width from approximately five metres to three metres.  Consequently, the legal width, as recorded in the Definitive Map and Statement, was no longer accurate or reflective of the current on-site conditions.  The application plans and supporting documentation did not indicate that the proposed works would impact the legal width of Footpath 11 and the developer had not been aware of this inconsistency until the landscaping proposal had been developed in detail.  Following completion of the development, it had been identified that the full recorded width of the footpath could not be reinstated and in light of this the developer, St Edwards Homes Ltd, had submitted an application for a Public Path Extinguishment Order. 

The report explained that the footpath remained continuous, clearly defined and accessible, continued to serve its public function as a pedestrian route without causing any material inconvenience of disadvantage to users.  Following the development, the surface had been improved to a standard suitable for all users, including those with restricted mobility.  The making of an extinguishment order would regularise the position on the ground and ensure that the Definitive Map and Statement accurately reflected the extent of the public right of way that was available for public use.

As the development was complete there was limited options available to amend the footpath order to reflect the changes that had been made to the width.  Section 257 of the Town and Country Planning Act 1990 was not available as the development was already practically completed and could not be applied retrospectively.  Section 119 of the Highways Act 1980 (diversion) was also not applicable, as the footpath had not been diverted only narrowed and followed the original alignment.  As such, given the portion of the footpath had been permanently lost, the most appropriate legal route was a Public Path Extinguishment Order under Section 118 of the 1980 Act.  This would allow the Council to extinguish part of the footpath if it was satisfied that it was expedient to do so on the ground that it was not needed for public use.  As a result, an application had been made but the developer for a Public Path Extinguishment Order and the developer had agreed to pay the Council’s fees in making and confirming the order.

The report set out a number of reasons as to why it was expedient to extinguish the path on the grounds that it was not needed  for public use and proposed making a combined order under Section 118 of the Highways Act 1980 to extinguish the part of the width no longer needed for public use, and Section 53A(2) of the Wildlife and Countryside Act 1981, to modify the Definitive Map and Statement so that it accurately recorded the lawful extent of the footpath.  If no objections were received the report also proposed that the Council confirmed the order itself and if objections remained unresolved, the order would be referred back to the Sub-Committee to decide whether the order should be submitted to the Secretary of State for determination.

The Sub-Committee discussed the report and acknowledged that the developer had agreed to pay the Council’s fees in making and confirming the order but, asked if it was too late for the Council to claim further compensation from them.

Resolved –

(1)      That the report be noted, including the Footpath 11 Rearrangement Plan as set out in Appendix 1, attached to the report, illustrating the widths to be extinguished;

(2)      That the officer recommendation be agreed and the Executive Director of Economic Growth and Neighbourhood Services, in consultation with the Director of Legal and Governance grant authority to make a Public Path Extinguishment Order to stop up that part of Footpath 11, as detailed in the report, under Section 118 of the Highways Act 1980 (“the 1980 Act”) and Section 53A(2) of the Wildlife and Countryside Act 1981 (“the 1981 Act”);

(3)      That amendment of the Definitive Map and Statement to reflect the changed to Footpath 11 once the order is confirmed be agreed;

(4)      That subject to no objections being received the Executive Director of Economic Growth and Neighbourhood Services, in consultation with the Director of Legal and Governance, be granted authority to confirm the Public Path Extinguishment Order to stop up that part of Footpath 11 as detailed in the report;

(5)      That in the event of objections being received that are not withdrawn a report be submitted to a future meeting to decide whether to submit the order to the Secretary of State for determination.