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Agenda Item No

 

The Vale of Glamorgan Council

 

Planning Sub Committee (Public Rights of Way): 2nd April 2014

 

Report of the Director of Development Services

 

Definitive Map Modification Order (No. DMO/53/379) Wildlife and Countryside Act 1981 Section 53(3)(c)(i) Romilly Park Road to FP72f, Barry

 

Purpose of the Report

1.            To further update members on the progress of the above order and confirm authority for its re-making

Recommendations

1.         That there has been no material change in circumstances since the decision of the sub-committee on the 16th July 2012 and that it remains the case that the footpath subsists or is reasonably alleged to subsist as at the date of this meeting.

2.         That the Vale of Glamorgan Council, being the relevant highway authority for the affected footpath, make an order to record the application route A-B-C as a public footpath and authorise the Head of Legal Services to make and seal the order.

Reasons for the Recommendations

1.         As set out in the investigation report attached as Appendix A and previously presented on 16th July 2012, as updated by this report.

2.         To authorise the making of the order.

Background

2.            On 16th July 2012 a report dealing with a claim that a route running from the 'Southern end of Footpath 72, Barry’ to 'Romilly Park Road, Barry’ should be recorded as a public footpath was presented to the Public Rights of Way Sub Committee.

3.            The Sub Committee considered the contents, including an appended investigation report, and resolved to make an order in favour of recording the path. An order was made on 2nd October 2012.

4.            Objections to the order were received from Mr P Walden and Mrs K Gallimore; within the objections reference was drawn, amongst other things, to the year being omitted from the date of the sealing text.

5.            Statutory Instrument 1993 No. 12, Rights of Way, The Wildlife and Countryside Act (Definitive Maps and Statements) Regulations 1993, Schedule 4, Paragraph 1 provides that 'A modification or reclassification order shall be made in duplicate with the seal of the surveying authority ('the authority’) and the date of making inserted after the order before the schedule.

6.            Consideration was given to the extent to which the omission of the year from the date of the sealing text was material and to seek modification of the order upon referral to the Planning Inspectorate so as to include the full date. This was considered particularly in light of the fact that the order taken as a whole was unambiguous as to the year, having including it in its title.

7.            It was considered that though modification of the order may fall within an inspectors power there nevertheless existed a risk that modification could be declined at a late stage, exposing the authority to additional costs being incurred. Alternatively seeking return of the order to allow it to be remade in correct form would provide a clearer basis from which objections could be considered on the basis of substantive matters raised.

8.            The order was referred to the Planning Inspectorate in which it was accepted by the Council that the date as stated is defective and without seeking modification. The Planning Inspectorate issued its decision to return the order on 30th January 2014. The order and rejection letter are available in Appendix B

9.            Following return of the order the application was reconsidered by the Public Rights of Way Sub Committee on 26th February 2014.

10.         It is considered, however, that all papers relevant to the making of the decision had not been forwarded to Members within the required period prior to the meeting of the Sub Committee on 26th February, and on that basis, this report is brought back to committee for further consideration.  

Relevant Issues and Options

11.         Papers including investigation report and appendices are provided to this meeting for further consideration.

12.         The evidence submitted in relation to the application and the investigations of the Council has not altered since the Sub Committee considered it last on 16th July  2012.

13.         The Wildlife and Countryside Act 1981 s56(3) requires that orders be made within six months of the relevant date. A further resolution reaffirming to make an order would therefore provide for an appropriate new relevant date which shall be the date of this meeting.

Resource Implications (Financial and Employment)

14.       Costs will be incurred primarily in terms of officer time and advertising. Resource implications cannot be taken into account when determining Definitive Map Modification Order applications, which need to be assessed against the legal tests.

Sustainability and Climate Change Implications

15.         None

Legal Implications (to Include Human Rights Implications)

16.         The Determination of DMMO applications under s53 of the Wildlife and Countryside Act 1981 is a statutory duty.

17.         The application under consideration remains that submitted on 7th April 2010.

Crime and Disorder Implications

18.         None

Equal Opportunities Implications (to include Welsh Language issues)

19.         None

Corporate/Service Objectives

20.         Determination of DMMO applications is a statutory duty. Maintaining and reviewing the definitive map are also aims within the Council's Rights of Way Improvement Plan.

Policy Framework and Budget

21.         This report is a matter for decision by the Public Rights of Way Sub-Committee.

Consultation (including Ward Member Consultation)

22.         Pre-order consultations in respect of the application were carried out on 11th January 2011 prior to the meeting of the Public Rights of Way Sub Committee on 16th July 2012. 

23.         A number of further submissions have been received from Mrs K Gallimore which relate to the Council’s procedures for consultation under schedule 14 and 15 of the Wildlife and Countryside Act 1981. The same issues have been considered in proceedings relating to another DMMO application and have been determined not to have any merit.

24.         The submissions received from Mrs. Gallimore also comprise further representations which had already been considered during proceedings brought for leave to bring judicial review proceedings in respect of the Council’s decision to resolve to make the order in July 2012. Those proceedings were dismissed and it is not considered that the representations made have any relevance to the evidence set out in the investigation report or members consideration of this application. The submissions are available in Appendix C

Relevant Scrutiny Committee

25.       None.

Background Papers

None

 

Contact Officer

Gwyn Teague, Public Rights of Way Officer, Countryside and Economic Projects - Tel 01446 704810.

Officers Consulted:

Bob Guy –Operational Manager, Countryside & Economic Projects

 

Geraint Davies - Lawyer

Responsible Officer:

Rob Thomas – Director of Development Services

 

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