8.
These powers are to be used for the following purposes:
(a)
the construction and/or improvement of The Undercliff Drive,
and works in connection with such, for which s239 and s240 of the Highways Act
are relevant
(b)
to provide protection for the realigned and improved
Undercliff Drive against landslide (as a result of which some of the
limitations on the use of s239 do not apply – see s249)
(c)
to provide a new means of access to Timber, for which s 129
and s 240 are relevant
(d)
to mitigate any adverse effects the existence or use of the
highway will have on its surroundings - s 246
9.
Planning Permission No. TCP/26467/-P/01465/04 permitting the
scheme contained a condition that the Council and all landowners enter an
agreement for long term management of the environment with English Nature.
These obligations can only realistically be met by the Council as freeholder of
the relevant parcels of land. Furthermore, much of the work of construction and
improvement of the highway itself, and its protection from the risk of
landslide, is to take place on land outside the Council’s ownership or control.
10.
The works will involve collecting water that at present
discharges from numerous small springs in and close to the areas of landslide.
This water will be carried away through lined and regarded ditches,
watercourses and balancing ponds to discharge in to the existing watercourses.
There is a power under section 110 Highways Act 1980 which enables this work to
be carried out without including the section in the Compulsory Purchase Order.
It is a power that is available to the highway authority if necessary or
desirable in connection with the construction, improvement or alteration of a
highway.
DESCRIPTION,
LOCATION AND PRESENT USE OF THE LAND
11.
Continuing investigation as to land
ownership has resulted in the areas of land now being divided into 17 plots of
land and a revised table is attached as Appendix
3.
Plans showing the land required are attached
at Appendix 4.
Whilst
most of the land to be acquired is primarily woodland/scrubland the following
areas require special mention.
Land
identified at Area 3 (plot 15. the owners have negotiated an Option for IWC to
acquire the whole of their land for the sum of £410,000. The legal formalities
have not been concluded. As IWC have been negotiating the option in parallel
with the CPO no proposals are considered necessary to assist these displaced
owners.
Land
identified at Area 3 (plots 11, 12, 13 and 14) are currently used and run as a Caravan Park business. The owners have not objected to a large part
of their land being subject to the CPO. The work to be carried out will prolong
the life of the business. It is understood by the consultants advising IWC
High-Point Rendel that the geology of the land at plots 11, 12, 13 and 14 are
so unstable that the life of the business is limited in the absence of the
works proposed.
Land
identified at Area 3 (plot 16) will take part of the driveway to the land. As a result it has been agreed that this land
will be afforded a new access through land to be acquired at Area 3 (plot 15).
The new route is acceptable to the owner.
PLANNING
CONSIDERATIONS
12.
When this matter was reported to the Cabinet in
June, it was explained that planning consent was granted in March 2005. Within the planning permission, it was a
requirement for the Council to enter into an agreement with English Nature
covering the management of the drainage works and monitoring. Negotiations are well underway with English
Nature. The agreement that is proposed
will involve detailed technical schedules containing a ground dewatering scheme
and management/monitoring for this unique scheme.
13.
The Undercliff Defence Committee
issued Judicial Review proceedings in May 2005 challenging the planning
permissions on various grounds. The
Council strenuously resisted this application and on 19 September an order was
made in the High Court of Justice Queens Bench Division Administrative Court
that the application for permission to apply for Judicial Review was refused,
the reasons given for the refusal being contained in the Council’s acknowledgement
of service (defence).
14.
The area in which the works are to be
carried out has decreased but all these works will fall within the compass of
the existing planning permission.
15.
Side Roads Orders will need to be made
in conjunction with the Compulsory Purchase Order. These Orders will be made under s,14 and
s,124 of the Highways Act 1980 and all other powers enabling them in that
behalf, to extinguish an existing access onto the highway, create a new access
onto the highway and reclassify a length of highway which will become a
pedestrian right of way.
FINANCIAL/BUDGET
IMPLICATIONS
16.
The Compulsory Purchase Order
procedure was set out in the report to 7 June Cabinet. Acquisition costs are estimated at £550,000,
these are included within the costs of the works. In addition there will be legal and surveyor’s
fees and the extent of these fees will depend on whether the Compulsory
Purchase Order is opposed, and an inquiry takes place and how long that inquiry
needs to sit for.
LEGAL
IMPLICATIONS
17.
A Compulsory Purchase Order
application can be made whilst negotiating with landowners in parallel.
18.
The enabling acts that will provide
the Council with the power to make a Compulsory Purchase Order are s239, s240(1)
s246 and s250 of the Highways Act 1980.
HUMAN
RIGHTS IMPLICATION
19.
Consideration has been given to the rights set out in
Article 8 (Right to Respect for Private and Family Life) and Article 1 of the First Protocol (Right to
Peaceful Enjoyment of Possessions) of the European Convention on Human
Rights. The impact this proposal may
have on the owners/occupiers of the land in question and other third parties
have been carefully considered.
20.
In relation rights protected by Article 1 of the First
Protocol your officers believe that the making of the Compulsory Purchase Order
would be lawful and proportionate to the impact on the interests protected by
that Article.
21.
Article 8 Human Rights issues have been considered in
respect of each parcel of land as follows:-
Plot 1 – comprises woodland
subjected to the landslide that occurred in March 2001. At present land is of
little amenity or monetary value and equates to a small proportion of that in
the ownership of a single landowner. The
land will once works are complete benefit from the stabilisation, and will be
more in keeping environmentally and visually. Article 8 Rights do not arise.
Plot 2 – comprises a mix of
woodland and amenity (garden) also subjected to the landslide that occurred in
March 2001. (Amenity use no longer viable.) The land required equates to
approximately 65% of that part of the property known as Orchard Close. Article
8 Rights have been considered but it is felt that the loss of garden land in
this particular case does not amount to an interference with the rights
protected by Article 8.
It should be noted that in
relation to Plot 2 the land will once works are complete benefit from the
stabilisation, and will be more in keeping environmentally and visually. In
addition the remaining land will benefit from the works.
Plot 3 – Land required
comprises a mix of woodland and amenity (garden) also subjected to the
landslide that occurred in March 2001. (Amenity use no longer viable.) The land
required equates to approximately 0.6% of the property known as Orchard Close.
The land will once works
are complete benefit from the stabilisation, and will be more in keeping
environmentally and visually. In addition the remaining land will benefit from
the works.
Article 8 Rights do not
arise.
Plots 4 and 5 – Land
required comprises woodland and amenity (garden and grounds to property). The
land required is a very small proportion of that in the ownership of a single
landowner.
The landowner will benefit
from the works; approximately 185 metres of carriageway will be stabilised and
both boundary walls over this length will be maintained by the local authority.
In addition the drainage system will be managed by that same body.
Article 8 Rights do not
arise.
Plot 6 – Land required
comprises woodland and equates to approximately 1.25% of the land north of Undercliff Drive
owned by a single landowner. The latter
also owns Plots 4 and 5.
The land will accommodate a
section of realigned carriageway, with the remainder as part of the mitigation,
landscaped to maintain its current status.
Article 8 Rights do not
arise.
Plot 7 – Land required
comprises woodland and equates to approximately 50% of the land owned by an
unknown owner.
The land will accommodate a
section of realigned carriageway, with the remainder as part of the mitigation,
landscaped to maintain its current status.
Article
8 Rights do not arise.
Plot 8 – Land required
comprises woodland and has the designation of a nature reserve. 100% of Plot 8 is
required.
The land will accommodate a
section of realigned carriageway, with the remainder as part of the mitigation,
landscaped to maintain its current status.
Article
8 Rights do not arise.
Plots 9 and 10 – Land
required comprises woodland which was subjected to the landslide that occurred
in March 2001. Ownership of the parcel
of land to the north of the public footpath is currently known to belong to one
of the plot owners. The parcel of land
to the south equates a small proportion of land owned by a single landowner who
resides a considerable distance from the site.
Both parcels of land will
once works are complete benefit from the stabilisation, and will be more in keeping
environmentally and visually. Plot 9 – Public footpath V124 will be reinstated as part of the works.
Article
8 Rights do not arise.
Plot 11 – Land required
comprises woodland which was subjected to the landslide that occurred in March
2001, and equates approximately to 30% of land owned as part of the Undercliff
Glen caravan site.
The land will once works
are complete benefit from the stabilisation, and will be more in keeping
environmentally and visually. In addition the remaining land will benefit from
the works, providing additional stability to the property.
Plot 12 – Land required
comprises woodland which was subjected to the landslide that occurred in March
2001 and equates approximately to 18% of land owned as part of the Undercliff Glen
caravan site.
The land will once works
are complete benefit from the stabilisation, and will be more in keeping
environmentally and visually. In addition the remaining land will benefit from
the works, providing additional stability to the property.
Plot 13 - Land required for
easement to provide temporary safety fencing.
Article 8 issues do not
arise.
Plot 14 – Land required for
easement to provide temporary safety fencing.
Article 8 issue do not
arise.
Plot 15 – land required
comprises residential and amenity (garden).
100% of property required.
The land will accommodate a
section of realigned carriageway and access to Timber with the remainder as
part of the mitigation, being landscaped.
Article 8 issues arise because the parcel of land is used
in part as a residence however the Council have negotiated to acquire this property
at market value enabling the occupants to re-house themselves.
Plot 16 – Land required
comprises amenity together with part of the existing access.
This property will benefit
from a new access and will gain a parcel of land as mitigation for that being
required. In addition the works will provide long term stability to this
property.
Article 8 Rights arise in
that part of the driveway to the property is being taken however an alternative
route has been provided and land offered in exchange. It is considered that any
interference is lawful, necessary and proportionate to the Council’s legitimate
aim.
Plot 17 – Land required
comprises woodland, and equates to a small proportion of land owned by a single landowner.
The land will once works
are complete benefit from the stabilisation, and will be more in keeping environmentally
and visually.
Article 8 Rights do not
arise.
22.
As part of the mitigation for the scheme, all land acquired
will be managed by the local authority for the life of the scheme in accordance
with the legal agreement between English
Nature and the Isle of Wight Council.
23.
At the current time apart from the owners of Woodington Area
3 (15) all other land owners are unable to agree to the acquisition of the
land.
24.
The owner of Plot 1 is opposed to the scheme on the basis
that the Council will cause more damage to the area than the landslip and that
the environment will be damaged so as to affect the climate of the Undercliff.
25.
The owners of Plots 2 and 3 are opposed on the grounds of
the loss of garden to Plot 2, that there will be inadequate land left for Plot
2 to have a garage and sufficient parking and that the scheme with the
associated works will not enhance the sale value of Plot 2.
26.
The owners of Plots 4, 5 and 6 are not in favour of the
works required to implement the scheme as they feel the nature of the roadway
may be changed from a little used winding byway into a less attractive modern
way along which vehicles will travel faster.
27.
Plot 7 the owner is unknown.
28.
Plot 8. Isle of Wight Wildlife Trust object to the scheme on
the grounds that the road scheme represents a short term and unsustainable
response to the challenges of the Island’s
coastline. Also that the works will destroy the nature reserve.
29.
The owners of Plot 9 are in negotiations to acquire the land
but these have not been concluded.
30.
The owners of Plot 10 have made no comment.
31.
Plots 11, 12, 13 and 14 are owned by two companies. The Directors of these Companies point out
that these parcels of land form part of an operational entity and managers
accommodation. They are concerned about the impact on their caravan business.
32.
Plot 15. As indicated
negotiations have been underway to acquire this land in the first instance by
way of an Option.
33.
The owner of Plot 16 objects to the scheme unspecifically
but has engaged in potentially positive negotiations.
34.
The owners of Plot 17 are concerned about the impact of the
road scheme on their hotel business.
35.
There will be interference with the rights of the various
landowners to varying degrees as discussed above. However, having regard
to the public interest in the Highway Reinstatement Scheme and the economic and
social improvements that will result, together with the assistance and
compensation that will be given to those displaced or affected, it is
considered that the degree of interference is proportional to the legitimate
aim of the Council and is in the public interest.
36.
It is the intention that in parallel to the CPO process,
negotiations will take place to seek acquisition by agreement wherever
possible.
CRIME AND DISORDER
37.
The A3055 Undercliff Drive
will in time become impassable to vehicular and possibly pedestrian traffic of
the scheme is not implemented. There is
a high risk that the road could be breached at more than one location with the
result that some properties would be totally isolated. Also access to those premises not affected in
this way would either have to be from St Lawrence to the east or Niton to the
west depending on the location of any breach.
An inland diversionary route via Whitwell and Niton would be the only available
means of gaining access. This could
impact on response times by the Police and other emergency services.
OPTIONS
(a) (i) To
proceed with the decision to acquire the land at Undercliff as described in the
Cabinet report
of 7 June 2005 and this report, compulsorily subject to variation in the
enabling powers to include S.129, S.240 (1), S.246 and S.250 HA1980 alongside S.239.
(ii) To make Side Roads Orders under s.14 and
s.124 of the Highways Act 1980 and all other powers enabling them in that
behalf, in conjunction with the Compulsory Purchase Order.
(b) To continue with negotiations and hope
for a successful conclusion by agreement.
(c) Do nothing.
EVALUATION/RISK
MANAGEMENT
37.
The Cabinet have already approved in
principle the making of a Compulsory Purchase Order, under the Highways
Act. Approval is now sought to proceed
with that Order under S.250 of the Highways Act 1980 as being the appropriate
enabling power. Planning permission
could not have been granted if the Council did not consider the development to
be in the public interest and it is considered that this remains the case: no
subsequent information, nor the judicial review of the grant of permission,
gives cause to alter that decision. The
conditions for the exercise of powers under the above sections of the Town and
Country Planning Act 1990 and the above sections of the Highways Act 1980 are
satisfied in relation to all of the land for subject of the CPO.
38.
The risk of not proceeding with the
Compulsory Purchase Order would result in a failure in progressing the Scheme
for the realignment of Undercliff
Drive. It is evaluated that by not proceeding the
risk would be higher.
RECOMMENDATIONS
39.
(i) To
proceed with the decision to acquire the land at the Undercliff as described in the
Cabinet report
of 7 June 2005 and this report, compulsorily, subject to a variation as to
the enabling powers namely s239, s240(1)
s246 and s250 Highways Act 1980
(ii) To
make Side Roads Orders under s.14 and s.124 of the Highways Act 1980 and all
other powers enabling them in that behalf, in conjunction with the Compulsory Purchase
Order.
BACKGROUND
PAPERS
A3055 Undercliff Drive
remediation proposals – September 2003.
A3055 Undercliff Drive environmental
statement – July 2004.
Acquisition
of Woodington – Executive 15
December 2004.
APPENDICES
ATTACHED:
Appendix
1 – Draft Order and Statement of Reasons
Appendix
2 – Cabinet Report dated 7 June 2005
Appendix
3 – Schedule of relevant areas of land
Appendix
4 – 17 Plot Plans (Plans 1-2, Plans 3-5, Plans 6-7,
Plans 8-9, Plans
10-12, Plans 13-14, Plans 15-16 and Plan 17)
Contact
Point : Helen Miles, Legal Team Leader, ' 823288, email:
[email protected]
COUNCILLOR IAN WARD
Cabinet Member for Environment,
Planning and Transport
|
COUNCILLOR
JILLY WOOD
Cabinet Member
for Resources and Town/Parish Council Empowerment
|
DEREK
ROWELL
Strategic
Director of Economic Development
and
Regeneration