Agenda item

HIGHWAYS ACT 1980 SECTION 118 - APPLICATION TO EXTINGUISH PUBLIC FOOTPATH NO 302151 IN THE PARISH OF ALSTON MOOR: DISTRICT OF EDEN

[Electoral Division: Alston and East Fellside]

 

To consider a report from the Executive Director – Economy and Infrastructure (copy enclosed)

 

Minutes:

The Committee considered a report from the Executive Director – Economy and Environment which proposed that the County Council extinguish public footpath no 302151 at Haggs Bank in the parish of Alston Moor District of Eden.

 

The route of public footpath no 302151 passed through the curtilage of the property at Haggs Bank before ascending steep rough pasture that was being developed as a bunkhouse and camping area.

 

The applicant landowner had applied to extinguish the whole length (126 metres) of the footpath, for the reasons of security and safety.

 

The Countryside Access Officer took members through the report in detail.

 

Members recalled that this item was presented to them at their previous meeting where it was deferred to a future meeting because it appeared the wrong District Council had been consulted. Officers had investigated the situation and found that it was an error in the report and the correct authority had been consulted.

As a result of consultations Cumbria and Lakes Joint Local Access Forum had commented that this proposal was not supported by them as the alternative existing routes would be far less convenient, direct and user-friendly than that created by a diverted FP 302151 passing through the camping ground.

Members noted that in the update sheet the local member for Alston and East Fellside had submitted a statement supporting the application to extinguish this route.

The pasture crossed by footpath no 302151 was bordered on three sides by other public rights of way, so the extinguishment of this short length of footpath would not detract from the convenience or enjoyment of the footpath network in the area.  The alternative paths had similar or better surfaces than the path to be extinguished and were visibly more obvious on the ground.

The Countryside Access Officer reminded members that there was only one reason that the County Council could make a legal order to extinguish a path and that was that it was expedient on the ground that it was not needed for public use.

The officer was satisfied that the proposed extinguishment met the legal tests set out in Section 118 of the Act and, if Members approve the recommendation in this report, the order would be made in the interests of the landowner.

One of the members asked whether there were any footways/pavements along the A689.  If any of the alternative routes passed along a busy highway they did not feel as if this was a practical alternative.  Officers confirmed that there was no pavement in this location and there was no segregated footpath.

The Lead Lawyer reminded members that the interests of the landowner should not be taken into consideration.  The only test to be applied was that the footpath was not needed for public use.

A question was asked about the accessibility of the proposed routes and whether the route proposed for extinguishment was less accessible that the others.  The officer confirmed that the current route 302151 was not as accessible to less able users as one of the alternatives.

Members wondered how often the path proposed for extinguishment was used.  The officer said  the County Council did not hold usage figures for this route.

One of the members asked for clarification on the safety aspect of this application. Was the decision based on the safety and security of users of the footpath or of the property where the footpath bounded.

The officer responded to say that the reasons of security and safety were provided by the applicants for wanting a deletion but these were not grounds on which members could decide to make the order.  He reinforced the reasons stated earlier by the Lead Lawyer that the only test to be applied was that the footpath was not needed for public use.

The Chair then opened the meeting up to public participation, and Mr Geoff Wilson was called into the meeting. 

 

Mr Wilson spoke to say that he did not feel that this application for extinguishment met the legal tests, and outlined the reasons why, and that an application to have a public right of way extinguished must not be taken lightly. He felt the Council’s presumption should be to not close any paths. 

 

The officer’s report correctly quoted the 1980 Highways Act that there was only one reason that may justify the extinguishment of a public right of way, which was that it was expedient that the path or way should be stopped up on the ground that it was not needed for public use.  However, the officer report does not advise members as to why the closure of footpath 302151 was expedient.

 

The expediency of such an extinguishment must be satisfied, and in this case Mr Wilson felt it had not been.  The report says that the application was made for reasons of safety and security, but does not explain how the presence of the footpath in question compromised the safety or security of anyone at this location. There were many public paths that passed through camp sites.  

 

Mr Wilson wondered why the committee report failed to explain to members why the other two alternative footpaths were also not deemed to pose risks to the safety and security of the camp site. 

 

Mr Wilson did not feel that because there were other paths in the area which were equally convenient and enjoyable to use, this was a reason for accepting that the path in question was not needed for public use.  The act required members to have regard to the extent to which the public would be likely to use the path, but members had been given no indication of the recent levels of use of the path. 

 

Mr Wilson’s final point, which he felt was the most significant, was that the officer’s report failed to advise members that planning consent had not yet been granted for the development of the camp site. A planning application was made on 30 November 2015 (15/1107), and to date remained undecided.  The committee surely cannot grant approval for the extinguishment of a path that was claimed to affect the safety and security of a development for which planning consent had not yet been granted.

 

The Chair thanked Mr Wilson for his statement, and one of the members asked Mr Wilson whether the alternative routes mentioned were suitable. 

 

Mr Wilson replied to say that there were no additional routes being provided for the extinguishment of the route, only footpaths which were already in existence and being used.

 

One of the members felt that the fact that planning permission for the development of the campsite had not yet been granted may have a material effect on this decision. 

 

The officer confirmed that the property in question was the camping barn referred to by the Local Member for Alston in the update sheet, and he also confirmed that planning permission had not yet been granted for the development of the campsite.  However, he stressed that this was still not grounds for not making the order.

 

The Development Control Manager reminded members that the extinguishment of public footpaths was rare and the members did not take these lightly.  The only real test would be the evidence on the usage of the footpath, which as stated by the officer, the County Council did not hold.

 

He felt this order was unusual in that if planning permission had been granted and the site had been developed, it would then be easier to understand whether there were issues of safety and security at the campsite.  He left that without the planning permission in place the grounds for the order became less concrete.

 

The Lead Lawyer spoke to say that the basis of the legal decision to be made on a Section 118 order was simply whether the path was needed for public use.  With regards to an alternative route the County Council had to be careful not to divert into Section 119 diversion territory.  She reiterated the decision to be made today was whether or not this footpath was needed for public use, and whether it was expedient.

 

Members had a number of concerns about the need to extinguish this route and this was debated in detail, with a number of views being expressed.

 

Upon conclusion of the discussion it was proposed from the floor that the officer recommendations be moved, and this was seconded and put to a vote.

 

One of the members took the Committee back to the letter from the local member for Alston, referred to in the update sheet, in which she stated that the extinguishment order would reflect what currently happened on the ground. This was that both residents and visitors in the majority of cases, used the alternative routes already in place.  She wondered whether residents already avoided using this route because it was already used as a campsite.

 

The officer responded to say that he deferred to the local member’s experience and views that the route proposed for extinguishment was not as regularly used as the alternative routes.  He thought maybe the reason for this was simply that it was less convenient. Users had to cross through properties, across undulating ground of differing levels and it was not as obvious on the ground as the alternative routes.

 

A proposal was made from the floor to move to defer this application until the outcome of the planning application was known.  This was seconded and then put to a vote.  With 6 for, 8 against and 1 abstention this motion was lost.

 

The officer recommendation was moved, seconded and then put to a vote, and with 10 for, 4 against and 1 abstention it was

 

RESOLVED,     that, pursuant to the power set out at Part 2G paragraph 2.1(g)(ii) of the County Council’s Constitution, an order be made under Section 118 of the Highways Act 1980 to extinguish public footpath no 302151 in the parish of Alston Moor shown A-B as shown on the plan at Appendix A and that all necessary action be taken to confirm the order.

 

Supporting documents: