PLANNING SUB-COMMITTEE (PUBLIC RIGHTS OF WAY)
Minutes of a meeting held on 17th March, 2016.
Present: Councillor F.T. Johnson (Chairman); Councillor Mrs. M.R. Wilkinson (Vice-Chairman); Councillors Mrs. V.M. Hartrey and R.A. Penrose.
(a) Apology for Absence –
This was received from Councillor H.J.W. James.
(b) Minutes –
RESOLVED – T H A T the minutes of the meeting held on 18th November, 2015 be approved as a correct record.
(c) Declarations of Interest -
No declarations were received.
(d) Highways Act 1980 Section 26 – Proposed Public Path Creation Order Footpath No. 61, Llantwit Major (HRP) –
The Sub-Committee was requested to consider an application to create a new public footpath, No. 61, Llantwit Major, by means of Creation Order.
Late representations relating to the application had been distributed to the Members of the Sub-Committee by electronic means the previous day and copies were distributed at the meeting.
The effect of the order would be to add a public footpath to the Definitive Map.
Footpath No. 61 would commence at Boverton Mill Farm at the termination of the adopted highway. The path would proceed south-south-eastwards following the alignment of Mill Lane, an unadopted track, to terminate at its junction with public footpath No. 3 Llantwit Major, which continues southwards to its junction with the Wales Coast Path.
The Order Map and Schedule were included describing the changes in greater detail attached to the report at Appendix 1.
The section of path in question was not currently recorded as public in any capacity and as such no clear rights existed along it upon which the public can rely.
Licence agreements had previously been in place in relation to a car park at the end of lane and though use continued in practice, the agreements had expired.
Formalisation of the link had significant support from local residents. A petition that ran to 563 names in support of the route, in addition to accompanying letters from a further nine individuals, had previously been submitted. The issue was also brought up regularly at Llantwit Major Town Council Footpath Forum meetings. It was understood that the Town Council had been attempting to secure provision of the route for some time.
Efforts had previously been made to conclude creation of the route by agreement however difficulties had been encountered in demonstrating ownership of title across much of the lane. This was with the exception of a short piece alongside Boverton Mill at the northern end of the lane and a further short section between B-C.
In deciding whether to make an Order it was reasonable to consider both the tests for making the Order and for confirming the Order. Even if all the tests were met, the Council may exercise its discretion not to make the Order.
Before making a Creation Order under the Highways Act 1980 Section 26, it must appear to the Council that a path or way was needed and that it was expedient for a way to be created. In doing so, Authorities must have regard to the extent to which ways would add to:
- The convenience or enjoyment of a substantial section of the public; or
- The convenience of persons resident in the area.
- In both cases the effect that the creation would have on the rights of persons interested in the land should be considered, subject to account being taken of the Act’s provisions as to compensation (HA 1980, s28). Authorities should also have regard to the needs of:
Agriculture (including breeding or keeping horses);
The desirability of conserving flora, fauna and geological and physiographical features.
Before confirming an order, the Council, or the Welsh Government if the order is opposed, must be satisfied that the tests listed above have been met.
In the current case the path was needed to provide a link between existing highways and was expedient in the absence of other formal rights. The path would add both to the convenience or enjoyment of a substantial section of the public and to the convenience of persons in the area from which there is significant support. In the case of a substantial section of the public the path would ensure a link was available from Boverton to the Wales Coast Path, an internationally promoted long distance trail, and would therefore form a valuable addition to the tourism offer of the area.
Where ownership rights were demonstrated, the Council had agreed or budgeted for compensation to reflect the detriment, if any, of the addition of rights.
No agriculture, forestry or conservation issues arose.
Following presentation of the report and late representations, the application was
DEFERRED – Site visit.
(e) Town and Country Planning Act 1990 S257 Proposed Public Path Diversion Order Footpaths Nos. 21 and 22 Wenvoe (HRP) –
The Sub-Committee received a report which sought authorisation to amend the application made by Redrow Homes South Wales to divert footpaths Nos. 21 and 22, Wenvoe, which had previously been brought to the Committee on 18th November, 2015.
Late representations relating to the application had been distributed to Members of the Sub-Committee by electronic means the previous day and copies were distributed at the meeting.
The Sub-Committee met on 18th November, 2015 and authorised the making of an Order to divert public rights of way Nos. 21 and 22 Wenvoe, the Order being necessary to enable a residential development to be carried out in accordance with the grant of planning permission; consent references 2013/00884/OUT, 2014/00452/RES. Order Maps and Schedules considered at that meeting were attached at Appendix 2 to the report.
An amendment to the layout of the development was subsequently brought to Planning Committee on 11th February, 2016 and consent was given for the changes, consent reference 2015/00601/RES. The amended layout, if implemented, would obstruct the alignment of the diversion previously proposed and approved by the Sub-Committee on 18th November, 2015.
A further amendment to the proposed alignment of Footpath 21 was therefore required to ensure the diversion follows the most recent amended site layout. This would entail minor changes to the previous proposal, retaining the substantive elements of the proposals though offsetting the route to take account of slight changes in the footprint of buildings and road layouts
The latest Order Plan and Schedule as amended were included, describing the changes in greater detail, and were attached to the report at Appendix 1 and Appendix 3 by reference to the new layout.
The issues and options remained unchanged from the application brought to Committee in November and remained valid when reviewing the latest proposal.
Before making an order to stop up or divert a footpath or bridleway under the Town and Country Planning Act 1990 s257 the Council must be satisfied that it was necessary to do so in order to enable development to be carried out in accordance with the grant of planning permission. It should not, however, be assumed that an order should be made simply because planning permission has been granted.
The necessity test entails examining the activities authorised by the planning permission (both operational development and changes of use) to see whether they are or are not compatible with the retention of highway rights. An activity which would involve obstruction of a highway (for example the erection of a structure across the line of a highway or introducing a use such as outdoor storage or long term parking) would be incompatible with the highway and enable necessity to be established.
In addition to establishing necessity, the Council was also able to decide whether or not it would exercise its discretion to make an order. Having arrived at a conclusion that it was right for the planning permission to be granted however, there must be good reasons for deciding that an Order, which would permit implementation of that permission, should not be made or confirmed. In determining this, it was suggested the following may be taken into account:
- The interest of the general public;
- The particular effect on some members of the public such as occupiers of property adjoining the highway noting this may have more importance than even that of the general public;
- Any potential financial loss to members of the public.
These factors should be matters which were not taken into consideration at the time of the grant of the original planning permission and it was not open to question the merits of the original planning application. Loss of amenity of the general public did not necessarily have to be subsidiary to any benefit to the developer.
Having considered the contents of the report, the late representations and the discussions at the meeting, it was
(1) T H A T the Council, being the relevant Highway Authority for the affected footpaths, proceed with making an Order to diver Footpath No. 21 Wenvoe and Footpath No. 22 Wenvoe, as described in the Order Plan and Schedule as attached to the report at Appendix 1.
(2) T H A T the previous resolution of the Planning Sub-Committee (Public Rights of Way) to make an Order in relation to Footpaths 21 and 22 Wenvoe on 18th November, 2015 be rescinded.
Reasons for decisions
(1) The footpaths are affected by a residential development, consent references 2013/00884/OUT, 2014/00452/RES, 2015/00601/RES. It was necessary to make an Order to enable development to be carried out in accordance with the grant of planning permission.
(2) The approval of plans which supersede those considered on 18th November, 2015 now renders the resolution of that date unnecessary.