Top

Top

Agenda Item No. 5

 

The Vale of Glamorgan Council

 

Report to Planning Sub Committee (Public Rights of Way): 19th November, 2013

 

Report of the Director of Development Services

 

Highways Act 1980 s119 Proposed Public Path Diversion Order

Footpath No.5 Lavernock

 

Purpose of the Report

1.             To consider an application to divert part of the above path. The application is made by the Vale of Glamorgan Council.

Recommendation

2.             That the Council, being the relevant highway authority for the affected footpath, proceed with making an order to divert part of Footpath No.5 Lavernock as described in the attached order plan and schedule.

Reason for the Recommendations

3.             Diversion of Footpath 5 is in the interest of the landowners. The existing definitive alignment runs across an open field that is cultivated on a seasonal basis and then through the Bay Caravan Park to terminate on St Mary’s Well Bay Road.

4.             The diversion of the path from the centre of the field to the field boundary would benefit farming practice by removing the need to reinstate a route through crops and instead allow path users to follow the headland. The removal of the path from the caravan park would provide greater flexibility in the siting of static caravans in addition to resolving current obstructions.

5.             The application is made as part of the Coastal Access Improvement Programme and follows from negotiations between the Vale of Glamorgan Council and landowners to provide a usable route able to comprise the Wales Coast Path.

6.             The path diversion retains connections to the same highways. The proposed alternative route is no less convenient to the public.

Background

7.             Public Footpath No.5 commences on Fort Road and proceeds south-westwards across fields and through the Bay Caravan Park to terminate on St Mary’s Well Bay Road. The footpath currently traverses the Caravan Park and is obstructed by static caravans and security fencing.

8.             It should also be noted that Public Footpath No.1 Lavernock runs parallel to Public Footpath No.5 through Lavernock Nature Reserve and along the cliff top to the south of Bay Caravan Park. Footpath 1 provides the only other east-west coastal link in the area. This link has, however been lost due to erosion. Erosion resulting in the physical loss of a public footpath has the effect of legally extinguishing the portion of path affected. Whilst Public Footpath 1 previously provided an accessible route from east to west it is not the subject of this application.

9.             Through negotiation with the adjacent landowners it has been possible to create a new path running parallel to the eastern boundary of the caravan park, which terminates on the proposed diversion route of Public Footpath No.5, FP5 will continue on to St Mary’s Well Bay Road.

10.        The proposal provides an opportunity to conclude the provision of a vital missing link in the Vale of Glamorgan’s section of the Wales Coast Path.

11.        The effect of the diversion of Footpath No.5 would be to move the footpath from the alignment A-B-C-D (bold line) to A-E-F (dashed line) as shown on the order map.

12.        The order map and schedule are included describing the changes in greater detail.

Relevant Issues and Options

13.        In deciding whether to make a diversion order it is reasonable to consider both the tests for making the Order and for confirming the Order (R. (Hargrave) v. Stroud District Council [2002]). Even if all the tests are met, the council may exercise its discretion not to make the Order.

14.        Before making a diversion order it must appear to the Council that it is expedient to divert the path in the interests either of the public or of the owner, lessee or occupier of the land crossed by the path.

15.        The Authority must also be satisfied that the diversion order does not alter any point of termination of the path, other than to another point on the same path, or another highway connected with it, and which is substantially as convenient to the public.

16.        Before confirming an order, the Council, or the Welsh Government, if the order is opposed, must be satisfied that:

a)           The diversion is expedient in the interests of the person(s) stated in the order,

b)           The path will not be substantially less convenient to the public as a consequence of the diversion,

c)           It is expedient to confirm the order having regard to the effect it will have on public enjoyment of the path as a whole, on other land served by the existing path and on land affected by any proposed new path, taking into account the provision for compensation.

 

17.        Convenience should be interpreted as meaning ease of use, whereas enjoyment can take into account other factors such as the views to be enjoyed from the path or way.

Legal Implications (to Include Human Rights Implications)

18.        The power to make an order is discretionary only. No right of appeal exists against the Authority’s decision not to make an order.

Crime and Disorder Implications

19.        None

Equal Opportunities Implications (to include Welsh Language issues)

20.        None

Corporate/Service Objectives

21.        Determination of applications is pursuant to aims within the Council’s Rights of Way Improvement Plan.

Policy Framework and Budget

22.        This report is a matter for decision by delegated authority

Consultation (including Ward Member Consultation)

23.        Consultations were issued on the 20th December 2012 and consultees invited to respond within 21 days. Results are as below

 

Consultee & Organisation

Comments / Reply

Bob Guy Operational Manager – Countryside & Economic Projects, VoG.

No Response

Geraint Davies, Legal Services, VoG

No Response

Erica Dixon, Ecologist, VoG

No Response

Marcus Goldsworthy, Operational Manager – Developmant Control, VoG.

No Response

Huw Morgan, Visible Services (Coastal Erosion), VoG

No Response

Councillor B Penrose, VoG Ward Member

No Response

Councillor K Mahoney, VoG Ward Member

No Response

Sully Community Council

No Response

National Grid Plant Protection

No Response

National Power Plc

No Response

Openreach BT

No Objection

Dwr Cymru/Welsh Water

No Response

Virgin Media

No Objection

Cable and Wireless c/o Atkins Telecom

No Objection

Environment Agency

No Objection

Sports Council for Wales

No Response

CTC

No Response

Open Space Society

No Response

The Ramblers Association

No Response

The Ramblers Association Wales

No Response

Ramblers Association – Penarth and District Group

No Response

Barry and Vale Friends of the Earth

Objection

 

24.        One objection was received from the Friends of the Earth. The objection was on the following basis:

Friends of the Earth (Barry & Vale) are opposed to this proposal.

 

It would consolidate loss of a significant length of coastal path.  A short diversion through or around the caravan site into the Lavernock Nature Reserve is a very feasible alternative and would route the path on a striking part of the coast.  It would also join to the cliff access to St Marys Well Bay. 

 

This is in the published 2011 Coastal Path CAIP route, and we see no reason for your far inferior proposal.

 

However, the priority for the Coastal Path would be to take up the original intention from the time of Gwyn John and earlier, as you and I discussed by phone, which was to set back the eroded path on the cliff edge above St Marys Well Bay into the Caravan site.  This priority would much better fulfill the aims set for the Wales Coastal Path.  In restoring this short section, you would naturally consider meeting the aims for access to sections of the coastal route for people with more demanding access needs (prams/buggies, cyclists, etc.) which require rather wider setback. 

 

The diversion in your plan is similar to one proposed some 10 years ago, which was stopped by objections. While the Caravan site owners have to resolve their long-standing blockage of the registered path, part of the price they should pay is to agree a deal whereby the cliff-top path is restored set back into the fringe of their site.

 

25.        The application relates to diversion of Public Footpath 5, Lavernock. The correct tests for assessing the application are as set out above, being those of interest, expediency and convenience.

26.        Public Footpath 1 is not the subject of the order and it is not accepted that an objection founded in a desired approach to an issue on an unaffected path is relevant to those tests.

27.        Public Footpath 1, which has become inaccessible due to natural erosion, will remain recorded on its current alignment where it so exists. A solution to achieve dedication of additional land around the cliff fall by agreement has previously been unsuccessful though the opportunity to negotiate a rolled back alignment in the future, or to consider the merits of acquiring rights by compulsion under a creation order, would remain open to the Council regardless of the outcome in the current case. 

Relevant Scrutiny Committee

28.        Economy and Environment.

Background Papers

Order plan and schedule.

Email of objection.

Contact Officer

Sandra Thomas, Public Rights of Way Assistant, Countryside and Economic Projects - Tel 01446 704705.

Officers Consulted:

Officers consulted in relation to proposals as above

Responsible Officer:

Rob Thomas – Director of Development Services