Agenda Item No.
PLANNING-SUB COMMITTEE (PUBLIC RIGHTS OF WAY)
Minutes of a meeting held on 26th February, 2014.
Present: Councillor F.T. Johnson (Chairman); Councillors H.C. Hamilton, Mrs. V.M. Hartrey, H.J.W. James and E. Williams.
Also present: Councillor P.J. Clarke.
(a) Appointment of Vice-Chairman –
RESOLVED – T H A T Councillor E. Williams be appointed Vice-Chairman of the Sub-Committee for the ensuing municipal year.
(b) Minutes –
RESOLVED – T H A T the minutes of the meeting held on 27th November, 2013 be approved as a correct record.
(c) Declarations of Interest –
No declarations were received.
(d) Definitive Map Modification Order (No. DMO/53/378) Wildlife and Countryside Act 1981 Section 53(2) Public Footpath 75, Barry nr Nant Talwg Pumping Station (DDS) –
The Sub-Committee were updated on the outcome of the above Order.
Committee were reminded that on 29th July 2011 the Planning Sub-Committee (Public Rights of Way) determined an application brought jointly by Mrs. Gallimore and Underdown to add a public footpath to the Definitive Map.
The decision of the Sub-Committee was for a Definitive Map Modification Order to be made in respect of addition of a footpath between Points B-E of the Draft Order map, a copy of which was shown at Appendix 1.
The reason for the decision was that the application appeared to satisfy the requirements of Section 53 of the Wildlife and Countryside Act 1981 in respect of Sections B-E of the Draft Order plan.
Objections had been received to the Order from Mr. Alan Kind, on the basis that the width of the path detailed within the Order was excessive.
Objections were also received from one of the applicants, Mrs. Gallimore. These were on the basis that the lamp post to which notice of the order was attached was several metres away, that the schedule did not record a stile in situ as a limitation and that the Disability Discrimination Act had not been correctly applied.
The Council referred the objections and Order to the Planning Inspectorate for determination. The Council and Mr. Kind sought that the matter be dealt with by way of written representation. Mrs. Gallimore requested that it be dealt with by way of Public Inquiry. This was initially refused and a public hearing schedule though was later upgraded to a public inquiry. The Council gave notice of intention to seek costs against Mrs. Gallimore believing that the hearing would have been reasonably avoided in the context of the nature and strength of her objections. Mrs. Gallimore subsequently gave notice of intention to seek costs against the Council.
The public inquiry was held on 25th June 2013.
The Inspector declined to confirm the Order as a result of the inquiry.
The Inspector considered the case on the basis of Highways Act 1980 s31 and common law. The Inspector took the test to be the balance of probabilities.
In relation to the Highways Act, the Inspector concluded that insufficient evidence of use existed in order to raise a presumption of dedication under the 1980 Act.
Under common law, the Inspector reported that she believed the evidence supported an acceptance by the landowners of public use of a route to Porthkerry Country Park from the east, supporting an intention to dedicate a public right of way.
In reaching this conclusion, the Inspector took account of the making of the Order by the Council, who owned most of the land crossed by the route, and the lack of objection by Welsh Water, who owned the pumping station. However, the Inspector was not satisfied that clear evidence of a single identifiable route accepted by the public existed.
The Inspector was therefore not satisfied, on the balance of probabilities, that the Council, or the objectors who were the original applicants and apparently supported confirmation of the route, had discharged the burden of proof to demonstrate the dedication of a public footpath over the Order route, or any other associated alignment, at common law.
The Inspector also made two awards of costs. Copies of the costs decisions were attached to the report.
Since that date, Mrs. Gallimore had sought judicial review of the Inspector’s decisions, the process for which was still ongoing.
In accordance with the procedural note for the Determination of Applications, made under Section 53 of the Wildlife and Countryside Act 1981, Committee considered further late representations submitted by Mrs. Gallimore by e-mail on 21st February 2014, and reproduced below:
'Agenda Item 5: Footpath 75:
Item 22 of the Report: Judicial Review proceedings were filed by me on the 23rd January 2014. I have asked that all three of the Inspector’s Decisions be judicially reviewed. The Defendant party, the Welsh Ministers, are represented by the Treasury Solicitors based in London. The Vale of Glamorgan was also served as an 'Interested Party’ along with Mrs Underdown. Acknowledgements of Service and Summary Defenses had to be filed by 18th February.
The Welsh Ministers have not filed an acknowledgement of service with the Court nor have they submitted a defense.
Mrs Underdown filed an acknowledgement of service with the Court stating she would not be contesting my Permission Claim
The VOG Council has not filed an acknowledgement of service with the Court
The papers are now with the Judge for my Permission Claim to be determined.'
Having considered the contents of the report and the late representations, it was
RESOLVED – T H A T the contents of the report be noted.
Reason for decision
Prior to the commencement of formal business at 27th November 2013 meeting of this Sub-Committee, discussions took place as to whether the Sub-Committee should, in future, receive update reports in relation to any Orders made by the Sub-Committee which were subsequently challenged. Consensus emerged that this course of action would be followed in future.
(e) Definitive Map Modification Order (No. DMO/53/379) Wildlife and Countryside Act 1981 s53(3)(c)(i) Romilly Park Road to FP72f, Barry (DDS) –
The Sub-Committee were updated on the progress of the above Order, and were requested to grant authority for its re-making.
On 16th July 2012, a report dealing with a claim that the 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.
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.
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.
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.'
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 included it in its title.
It was considered that though modification of the Order may fall within an Inspector’s power, there nevertheless existed a risk that modification could be declined at a late stage, exposing the Authority to the risk of additional costs being incurred. Alternatively, seeking return of the Order to allow it to be remade in correct form would provide a clearer basis form which objections could be considered on the basis of substantive matters raised.
The Order was referred to the Planning Inspectorate in which it was accepted by the Council that the date as stated was defective and without seeking modification. The Planning Inspectorate issued its decision to return the Order on 30th January 2014.
The Sub-Committee also received a presentation on the contents of the report that had been submitted to it on 16th July 2012 and considered late representations submitted by Mrs. K. Gallimore.
In accordance with the procedural note for the Determination of Applications, Committee considered further late representations submitted by Mrs. Gallimore by e-mail on 21st February 2014, and reproduced below:
'Agenda Item 6. Footpath 72
Item 1 of the Report: I believe that my submissions – backed up by statute and case law – represent a material change in circumstances since the Committee’s decision on the 16th July. I suspect the Director wrote his Report prior to my evidence being submitted. I ask that the Committee takes this into account.
Item 19 of the Report: Pre – order consultations were not carried out in accordance with paragraph 1 schedule 15 of the WCA 1981. The only consultations carried out were in respect of the Application and this took place on 11th January 2011 – a schedule 14 requirement. Pre- Order Consultation in accordance with schedule 15 would not have been possible until the decision of the Committee to make an Order had been made i.e. post 16th July 2012.
I understand that when PINS sent the Rejection Letter to the Council dated 30th January 2014 that it was accompanied with guidance as to how to deal with circumstances when an Order is rejected. This guidance needs to be tabled and placed in the public domain. There is no point in me going direct to PINS because it will only put me on FOI so by the time I get the information next weeks Meeting would have taken place.'
In response to the additional information placed before the Sub-Committee, the Public Rights of Way Officer advised that the contents did not amount to a material change on the proposals and further advised that there was little of relevance to what had been included in the original investigative report.
The Public Rights of Way Officer clarified that whilst no resources implications were listed in the report because the Sub-Committee was unable to take them into account, there would be resources implications including officer time and other costs when progressing the Order.
The Members of the Sub-Committee, having deliberated on the application and supporting evidence together with the contents of the detailed report of the Public Rights of Way Officer, unanimously
(1) T H A T there being no material change in the circumstances since the decision of the Sub-Committee of 16th July 2012, it remains the case that the footpath subsists or is reasonably alleged to subsist as at the date of this meeting.
(2) T H A T 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 decisions
(1) As set out in the investigation report previously presented on 16th July 2012, as updated above.
(2) To authorise the making of the Order.
(f) Highways Act 1980 s119 Proposed Public Path Diversion Order Footpath No. 5 Bonvilston (DDS) –
Committee received a report which sought authority to consider an application to divert part of the above path. The application was made by Mr. and Mrs. Summerhayes, Stone Court, Bonvilston.
DEFERRED – Site visit to be held on Wednesday, 2nd April 2014 at 10.00 a.m.
(g) Highways Act 1980 s119 Proposed Public Path Diversion Order Footpaths Nos. 1 and 3 Gileston (DDS) –
The Sub-Committee considered an application to divert part of the above path. The application had been made by the Vale of Glamorgan Council.
Late representations had been received in respect of the application from Ms. L. Garrad-Jones, the contents of which are reproduced below:
'Thank you for your email yesterday regarding the diversion of footpaths No’s 1 & 3. I may well attend the meeting, however would you please include my further comments to the sub-committee as stated below.
I realise that footpath No 3, on the ground, has found its way to my boundary, however on a number of occasions we have encountered security issues with youngsters climbing onto, and on one occasion we know about, over our boundary and onto our land. We obviously cannot predict their intentions but at best it compromises our privacy and at worst compromises our security. Although we dealt with this one incident of trespass ourselves I can see us needing to call the police at some point in the future. If the footpath is formerly alongside our boundary however, the culprits will have a valid excuse for being there, and we and the police will be powerless to act. We therefore need to retain the right and powers to deal with any threat which may arise in future from any persons using the 'public footpath’ as a cover for any threat they intend to pose.
I would therefore respectfully ask the sub-committee to leave the formal route of footpath No 3 exactly where it is now, some distance away from our boundary or alternatively to remove the footpath no 3 altogether from the field and re-route it through the village and the lane to the south of our land joining back up at point G on your plan.'
DEFERRED – Site visit to be held on Wednesday, 2nd April 2014 at 10.45 a.m.