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Agenda Item No

 

The Vale of Glamorgan Council

 

Planning Sub Committee (Public Rights of Way): 24th November, 2014

 

Report of the Director of Development Services

 

Town and Country Planning Act 1990 s257 Proposed Public Path Extinguishment Order Footpath No.2 Porthkerry

 

Purpose of the Report

1.         To consider an application made by Taylor Wimpey South Wales to extinguish part of the above footpath.

Recommendation

That the Council, being the relevant highway authority for the affected footpath, proceed with making an order to extinguish part of Footpath No.2 Porthkerry, as described in the attached order plan and schedule (Appendix 1).

Reason for the Recommendation

Part of the footpath is affected by a residential development; consent ref. 2012/00937/FUL. The site layout will provide access through the development upon completion of works. It is necessary make an order to enable development to be carried out in accordance with the grant of planning permission.

Background

2.         Footpath No.2 commences on Porthkerry Road, Rhoose and proceeds southwards along a lane to cross the rail line at a small level crossing. The path continues southwards over land with planning consent for a residential development, exiting on to Trem Echni (adopted highway), the path continues southwards to terminate on The Wales Coast Path at Dams Bay. The path is a valuable link between the community of Rhoose and the coast.

3.          The effect of the order would be to extinguish part of Footpath No.2 between points A and B as shown in the attached order plan as a bold black line.

4.         The order plan and schedule are included describing the changes in greater detail (Appendix 1), also attached is the order plan with the development overlaid (Appendix 2).

5.         Public Footpath 2 will remain open and available until completion of the estate road, which will provide the alternative route. The public footpath will be unaffected by works during development of the estate and therefore will not require temporary closure.

Relevant Issues and Options

6.          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 is 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.

7.          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.

8.          In addition to establishing necessity the Council are also able to decide whether or not it will exercise it’s 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 is suggested the following may be taken into account:

  • The interest of the general public;
  • The particular affect 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;

9.         These factors should be matters which were not taken into consideration at the time of the grant of the original planning permission and it is not open to question the merits of the original planning application. Loss of amenity of the general public does not necessarily have to be subsidiary to any benefit to the developer.

10.      In the current case it is noted that planning consent granted in 2012/00937/FUL includes provision for enclosure of gardens across the route currently occupied by the public right of way by way of erection of fencing. It is submitted that this is incompatible with retention of the highway. Layout of the footways within the development site provide an alternative route.

Resource Implications (Financial and Employment)

11.      Reasonable costs of the Public Path Order process (prior to referral to the Planning Inspectorate where required to do so) will be met by applicant.

Sustainability and Climate Change Implications

12.      None

Legal Implications (to Include Human Rights Implications)

13.      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

14.      None

Equal Opportunities Implications (to include Welsh Language issues)

15.      None

Corporate/Service Objectives

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

Policy Framework and Budget

17.      This report is a matter for decision by the Planning Sub-Committee (Public Rights of Way)

Consultation (including Ward Member Consultation)

18.      Consultations were issued on the 12th June 2014 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

Councillor P J Clarke, VoG Ward Member

No Response

Councillor H J W James, VoG Member

No Response

National Grid Plant Protection

No Objection

National Power Plc

No Response

Openreach BT

No Response

Dwr Cymru/Welsh Water

No Response

Virgin Media

No Objection

Vodaphone c/o Atkins Telecom

 No Objection

Natural Resources Wales

No Objection

British Horse Society

No Response

Byways and Bridleways Trust

No Response

CTC

No Response

Auto Cycle Union

No Response

Welsh Trail Riders Assn.

No Response

Open Space Society

No Response

The Ramblers Association

No Response

The Ramblers Association Wales

No Response

Ramblers Association – Vale of Glamorgan Group

 No Response

Friends of the Earth

Objection

Adjacent landowner – Network Rail

No Response

Adjacent landowners – 48 Maes y Gwenyn

Objection

Adjacent landowners – 49 Maes y Gwenyn

Objection

Adjacent landowners – 50 Maes y Gwenyn

No Response

Adjacent landowners – 53 Maes y Gwenyn

No Response

Adjacent landowners – 54 Maes y Gwenyn

No Response

Adjacent landowners – 55 Maes y Gwenyn

No Response

 

19.      The application has received three objections at pre-order consultation

1.    Mrs Erica Smith, 48 Maes y Gwenyn (Appendix 3

In reply to your letter of the 12/06/2014, the only concern I would like to raise is that I would expect that a boundary wall be erected between the new development and the existing properties which currently back onto the footpath, as I do not see why the existing fence maintained by the current residents should be incorporated into the new scheme. Also from my point of view being the only property which will back onto the part of the footpath which will remain I would definitely expect a wall to be erected as I do not consider a wooden fence sufficient for both safety and privacy as I would expect there to be far more use of the footpath once the development on the other side of the rail track is under way and also once a proper path is created on the development behind out property. I have noted that properties on other developments which run along side footpaths all seem to have a wall erected. I have obviously had discussions with my immediate neighbours and they are of the same opinion that we would not be happy if a wall were not erected.

 

2.    Mr Neil Sweet, 49 Maes y Gwenyn (Appendix 4)

As discussed I am against the extinguishment of the public foot path. At the moment we have access to the rear of our boundary fence for maintenance this will be removed as the properties gardens will be directly behind us. There is no reason to move the path as it does not affect any buildings at all, it only shortens their gardens.

 

3.     Mr Max Wallis on behalf of Barry and Vale Friends of the Earth (Appendix 5)

We do object to this diversion and complete loss of 91 metres of public footpath without compensation.

A slightly diverted right-of-way could easily have been left at the ends of the new gardens.  Such a path could be restored now, to reverse the unlawful blockage, when we'd accept the slight diversion. We would just want that restored path to be widened to shared foot/cycleway width (or the cycleway to be provided from the estate road to the level crossing).

 

Alternatively, we would seek other compensation for the unlawfully blocked-off path, seeing that it is quite unacceptable to develop over rights-of-way as has been done.

 

20.      The Applicant has responded to the points raised by each objector (Appendix 6)

I would comment that objections 1 & 2 are not valid reasons to refuse the extinguishment order. Objection 1 requests a wall in exchange for the extinguishment, there is no justification for this as there is not a wall at present, and the footpath at the point commented upon will remain unaffected by the extinguishment.

 

Objection 2 comments that the rear fence will not be available for maintenance. This situation is replicated across the existing development in many places and is not a valid objection. If the rear of the fence needs to be accessed for any reason, our form of contract and transfer provides reasonable access for an adjoining neighbour to maintain their property.

 

Objection 3 would prefer the footpath to remain in place with the gardens shortened. Whilst it would be possible in theory to retain a 1m access between the 2 developments, this very narrow alley would not be overlooked and would become the focus for anti-social behaviour of all natures. The alternative route, through the new development would, in contrast, be well observed and lit, discouraging wrong-doing. Shortening the gardens would leave them only 6 – 7m long in some cases, which we believe is unacceptable for residences in an area of this calibre.

 

I would also point out that our proposals for extinguishment were presented at the planning stage, and the development was granted planning permission in this knowledge. These objections were not raised at that time.

 

21.      Officer comments on the objections are as follows: 

1.    Mrs Erica Smith, 48 Maes y Gwenyn (Appendix 3) 

The Public Path Order proposes extinguishment of the existing path. In doing so the Council is entitled to require works to be carried out in relation to the footpath that is being stopped up. The Council is not entitled, however, to condition improvement of existing structures that are unrelated to the path being stopped up.  

The remaining section of footpath that is referred to is not affected by the order and as such it is recommended that the objection not be supported. 

2.    Mr Neil Sweet, 49 Maes y Gwenyn (Appendix 4) 

The disadvantage or loss likely to arise to adjoining landowners as a result of the extinguishment may be taken into consideration though should be weighed against the advantages of the proposed stopping up order (i.e. development).

 

In the current case the objector refers to removal of access to the rear of their property affecting their ability to maintain the fenceline. This may be mitigated by the developers submission that their form of contract and transfer provides reasonable access for adjoining neighbours to maintain their property.

 

3.     Mr Max Wallis on behalf of Barry and Vale Friends of the Earth (Appendix 5) 

The existing public right of way is currently open. It is therefore unclear as to the unlawful blockage referred to.  

The permissions and site layout provided by the planning grant include enclosed gardens which, if not subjected to a successful public path order, would be incompatible with retention of the route. It may therefore be established that a public path order is necessary.  

During discussions at the planning application stage the PROW team represented that there did not appear to be anything clearly invalid about the Public Path Order proposals which are now under consideration though it was preferential that existing footpaths be incorporated either on a similar or diverted alignment through a landscaped strip rather than following estate roads. This was communicated to the developers via the planning department. The site layout plan was accepted without further amendment however and the application was approved. 

Having arrived at a conclusion that it was right for the planning permission to be granted there must now be good reasons for deciding that an order, which would permit implementation of that permission, should not be made or confirmed. This is a matter for the authority’s discretion though it remains officers view the proposed order does not appear to be invalid in terms of its assessment against the necessary tests. The existing route to be extinguished is a footpath only and is not required to be compensated by construction of a higher status route such as a cycleway.

Relevant Scrutiny Committee

22.      Economy and Environment.

Background Papers

Appendix 1 -  Order plan and schedule.

Appendix 2 – Order plan with development overlaid.

Appendix 3 – Objection – Mrs Erica Smith

Appendix 4 – Objection – Mr Neil Sweet

Appendix 5 – Objection – Mr Max Wallis, Barry and Vale Friend of the Earth

Appendix 6 – Applicants response to objections

Contact Officer

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

Officers Consulted:

Officers consulted in relation to proposals as above

Responsible Officer:

Rob Thomas – Director of Development Services

 

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