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Agenda Item No

The Vale of Glamorgan Council

 

Planning Sub Committee (Public Rights of Way): 18th November, 2015

 

Report of the Head of Regeneration and Planning

 

Town and Country Planning Act 1990 s257 Proposed Public Path Diversion Order Footpaths Nos.21 and 22 Wenvoe

Purpose of the Report

  1. To consider an application made by Redrow Homes South Wales to divert the above footpaths.

Recommendation

That the Council, being the relevant highway authority for the affected footpaths proceed with making an order to divert Footpath No.21 Wenvoe and Footpath No.22 Wenvoe, as described in the attached order plan and schedule (Appendix 1).

Reason for the Recommendation

The footpaths are affected by a residential development; consent references. 2013/00884/OUT, 2014/00452/RES. It is necessary make an order to enable development to be carried out in accordance with the grant of planning permission

Background

  1. Footpath No. 21 commences on the un-adopted lane leading to Burdonshill. The Footpath proceeds northwards over a field with good views across the channel, the Footpath descends to the northern corner of the field and enters a second field, the Footpath turns north-eastwards to run parallel to the northern boundary of the field. The Footpath terminates at its junction with an adopted path which runs behind No.14 Clos Llanfair.
  2. The effect of the Order would be to divert Footpath No.21 as it crosses the housing development, the proposed alignment will follow the new road layout to exit directly onto Clos Llanfair, terminating at this point.
  3. Footpath No.22 commences on the adopted highway (Port Road) and proceeds north-north-westwards over the housing development to exit onto Clos Llanfair, terminating at this point.
  4. The effect of the order would be to divert Footpath No.22 to start on the adopted highway (Port Road) approximately 64 metres north of its current position. The path proceeds north-westwards for approximately 130 metres before continuing to follow close to its original alignment. The path exits directly onto Clos Llanfair, terminating at this point.
  5. 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).
  6. Initially the applicant proposed a more substantial diversion of Footpath No.21, consultation upon this first proposal raised a number of objections and concerns. The applicant's second proposal again generated a number of objections. This report considers the applicant's third proposal revised in light of a site meeting with local residents.

Relevant Issues and Options

  1. 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.
  2. 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.
  3. 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 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;
  1. 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.

Resource Implications (Financial and Employment)

  1. 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

  1. None

Legal Implications (to Include Human Rights Implications)

  1. The power to make an order is discretionary though having approved development good reasons should exist for declining to make an order that would enable it to be implemented. No right of appeal exists against the Authority's decision not to make an order

Crime and Disorder Implications

  1. None

Equal Opportunities Implications (to include Welsh Language issues)

  1. None

Corporate/Service Objectives

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

Policy Framework and Budget

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

Consultation (including Ward Member Consultation)

  1. Consultations were issued on the 16th October 2015 and consultees invited to respond by the 31st October, 2015. Results are as below
  2. Consultee & Organisation

    Comments / Reply

    Internal Departmental Consultations, VoG.

    No Outstanding Observations

    Councillor J C Bird, VoG Ward Member

    No objection

    Wenvoe Community Council

    No objection

    National Grid Plant Protection

    No response

    National Power Plc

    No response

    Openreach BT

    No response

    Dwr Cymru/Welsh Water

    No response

    Virgin Media

    No response

    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 Spaces Society

    No objection

    Sports Council for Wales

    No observations

    The Ramblers Association

    No response

    The Ramblers Association Wales

    No response

    Ramblers Association - Penarth and District Group

    No response

    Wenvoe Residents Action Group

    No objection

    Friends of the Earth

    No response

    Adjacent landowner - 26 Rectory Close

    No response

    Adjacent landowner - 28 Rectory Close

    No response

    Adjacent landowner - 29 Rectory Close

    No response

    Adjacent landowner - 30 Rectory Close

    No response

    Adjacent landowner - 31 Rectory Close

    No response

    Adjacent landowner - 33 Rectory Close

    No response

    Adjacent landowner - 9 Clos Llanfair

    No response

    Adjacent landowner - 10 Clos Llanfair

    2 objections

    Adjacent landowner - 13 Clos Llanfair

    No response

    Adjacent landowner - 14 Clos Llanfair

    No response

    Adjacent landowner - The Firs

    No response

    Adjacent landowner - Woodside House

    No response

    Adjacent landowner - The Rectory

    No response

    Adjacent landowner - 4 Port Road

    No response

    Individual - Mr Ian Moody

    No objection

    Individual - Mrs Karen Gallimore

    Objection

    Individual - Mr Alun Davies

    Comments received

    Individual - Mr Peter Merritt

    Comments received

    Individual with land usage rights for the adjacent land to the west of the development

    No response

    Adjacent landowner - field to the west of the development

    No objection

    Adjacent landowner - strip of land to the west of the development

    No response

       
    1. Individuals that provided comments in relation to the second proposal were contacted and encouraged to make a fresh response in light of the extensive changes to the proposal; only those individuals that chose to respond to this third consultation are listed above.
    2. The application has received three objections and comments from two individuals:

     

    1. Mrs Karen Gallimore (Appendix 3)
    2. Mr Malcolm Bradley (Appendix 4)
    3. Mrs Janet Bradley (Appendix 5)
    4. Mr Alun Davies (Appendix 6)
    5. Mr Peter Merritt (Appendix 7)

     

    1. Officer comments on the objections and comments are as follows:
    1. Objection from Mrs Karen Gallimore (Appendix 3)
    2. Mrs Gallimore submits objections in relation to the second proposal by the developer and has indicated that she wishes those objections to stand, albeit that the proposals now under consideration (third proposal) vary from these. Wenvoe Residents Action Group, referred to by Mrs Gallimore, had previously objected to the second proposal though have since withdrawn those objections upon proposals being amended to the third plans in accordance with discussions that took place on site.
    3. Mrs Gallimore provides an account of her consideration of various files, documents, her observations in relation to temporary closures, of the development and other matters.
    4. These include challenging the validity of a legal event modification order made on 24th November 2003. In the absence of an application for an evidential Definitive Map Modification Order supported by appropriate evidence there is no reason to suppose that the network described in the Definitive Map and statement, as modified, is, however, incorrectly recorded. For clarity The Gully, whilst outside the development and not directly subject of this order, is adopted and shaded as such on appropriate plans.
    5. Specific points made by Mrs Gallimore in relation to points A-B in the second proposals are no longer relevant. A more general point is introduced by Mrs Gallimore however that the necessity test is undermined by the ability to amend the site layout (such as to allow for the retention of the current alignment of Footpath 21). The correct test is that the authority needs to be satisfied that an order is necessary to allow development to be carried out in accordance with a planning permission that has been granted. The site layout plan as agreed forms part of that grant. It is therefore appropriate to consider the plans in the context of what has been agreed.
    6. Mrs Gallimore also considers the proposed connection of FP21 and 22 to Clos Llanfair near numbers 9 and 10. The concerns of residents that a barrier should be erected at point H (point J in proposal 2 and therefore in Mrs Gallimore's objection) have been addressed in the latest proposals with a kissing gate offered. Mrs Gallimore raises queries as to landownership. No outstanding issues are reported in this regard.
    1. Objection from Mr Malcolm Bradley (Appendix 4)
    2. Mr Bradley objects to the proposals stating that many reasons exist as to why the path should remain in its traditional form but specifically citing the popularity of the path and the change in aspect that the order would bring (from countryside to housing estate).
    3. The merits of granting planning approval for the estate, or otherwise, have previously been considered and authority has been awarded. It is clear that the agreed layout plans would be incompatible with the retention of public path rights on the existing alignment and it can therefore be shown necessary to alter the alignment. The proposals maintain access through the site.
    1. Objection from Mrs Janet Bradley (Appendix 5)
    2. Mrs Bradley objects to the proposals in similar terms also highlighting the historic availability, popularity of the path and the change in aspect that the order would bring (from countryside to housing estate). Mrs Bradley also queries the affect of a water main on the path and asserts that the path should be incorporated into the development.
    3. As above the merits of granting planning approval for the estate or otherwise have previously been considered and authority has been awarded. The agreed layout plans would be incompatible with the retention of public path rights on the existing alignment and it can therefore be shown necessary to alter the alignment. The proposals maintain access through the site.
    1. Comments from Mr Alun Davies (Appendix 6)
    2. Mr Davies advised that he had been objecting to the closure of the path that runs between 13 and 14 Clos Llanfair and sought clarification of the amended proposals. This clarification was provided and no further response received from Mr Davies.
    1. Comments from Mr Peter Merritt (Appendix 7)
    2. Mr Merritt draws attention to drawing revisions in his comments. The plans overlaid on the attached draft orders are the latest approved at the time of writing.

    Relevant Scrutiny Committee

    1. Economy and Environment

    Background Papers

    Appendix 1 - Order plan and schedule.

    Appendix 2 - Order plan with development overlaid.

    Appendix 3 - Objection - Mrs Karen Gallimore.

    Appendix 4 - Objection - Mr Malcolm Bradley

    Appendix 5 - Objection - Mrs Janet Bradley

    Appendix 6 - Comment - Mr Alun Davies

    Appendix 7 - Comment Mr Peter Merritt

    Contact Officer

    Gwyn Teague, Public Rights of Way Officer, Regeneration- Tel 01446 704810.

    Officers Consulted

    Legal Services

    Ecologist

    Bob Guy - Operational Manager Regeneration

    Emma Reed - Head of Visible Services and Transport

    Responsible Officer:

    Marcus Goldsworthy - Head of Regeneration and Planning