5. The landowner has asked for the footpath to be diverted away from the buildings on grounds of the security and privacy of the occupants of Chillerton Barns which have been converted for permanent residency rather than as holiday accommodation. The applicant’s letter is Item 3 Appendix 1.

6. With reference to points 2 and 3 of the applicant’s letter concerning an all-weather surface, the surface specification was amended to grass as more suited to the surrounding landscape. This was the specification consulted upon.

LOCATION AND SITE CHARACTERISTICS

7. Chillerton Farm is situated in an isolated position below Chillerton Down within the AONB. The Chillerton Barns development is a complex of farm buildings arranged around a central yard situated opposite the farm house on Newport Road a little south of Chillerton village and is surrounded by open fields at the base of the down. This is an extremely unspoiled agricultural area that has retained its character as downland used for sheep farming.

Factual

8. AB is not an historic route. The path originally ran across the yard and was diverted to its present position in 1986.

9. An application for change of use of the field area ABCDEF from agricultural to domestic garden was refused in 1999. A letter from the Planning Officer sets out the current planning position (Item 4 Appendix 1).

Committee

10. None.

COUNCIL POLICY

11. No formal policy exists specifically for diversion orders.

FORMAL CONSULTATION

12. The responses of consultees are attached in Appendix 2 and summarized below.

Parish and Town Councils

13. Gatcombe Parish Council supports reinstatement of the path in its present position (following temporary closure during building works).

Local Member

14. No comment.

User Groups

15. The Ramblers’ Association does not consider there is any reason to divert the existing path on grounds of privacy or because the existing path may be difficult to find. It considers the proposed path exits on to the road in a more dangerous position with respect to traffic and also adds 30 metres of road walking for those coming from Chillerton. The proposed path would be fenced making it less enjoyable. A precious crossfield path would become a headland path with poorer views. The proposed path would be visually intrusive in the landscape compared to the existing one. The presence of the existing path would assist in ensuring the land adjacent to the buildings would remain grass field.

The AONB Officer

16. The AONB Officer draws attention to the Council’s duty under the Countryside and Rights of Way Act 2000 to consider the impact of its policies and decisions on the purpose of the AONB designation which is to conserve and enhance the landscape.

17. Chillerton Down is designated as Chalk Down landscape character type in the AONB Management Plan. The AONB Officer expresses his concern that no further part of the open fields surrounding Chillerton Barns should be taken into the domestic curtilege of the development as this would be detrimental to the agricultural character of the landscape. Public Footpath G12a runs through these fields and is visible from both the road and the down.

18. The AONB Officer’s view is that there are insufficient security and privacy issues to justify diversion, that it is not required for planning purposes, will not benefit the public as the proposed path will be less commodious due to fencing in, and will provide little benefit to the landowner in light of existing planning consents. The path will also provide important access to the new Open Access land of Chillerton Down.

LEGAL BACKGROUND

19. Full legal guidance on Diversion Orders is set out in Appendix 3. The Council has the power to make a diversion order in response to representations from a landowner but no duty to do so. There is no right of appeal against the Council’s decision.

20. Under the Highways Act 1980 s119 an order may be made in the interests of the landowner as long as the public are not substantially inconvenienced.

21. In confirming an order, the Council should take into account the effect of diversion on enjoyment of the path as a whole. If an order is made and is unopposed, it is confirmed under delegated powers, so it is appropriate for Members to consider this when making their decision whether to make the order.

22. There are no issues which may lead to a requirement to pay compensation under s119(6)(b) or (c).

ISSUES

The landowner’s interest

23. The residential units do not face on to the path and only have small windows overlooking it. The path does however start only a few feet from the back door to the first unit. This is inconvenient for the potential owner and walkers may find it a deterrent.

24. Apart from this point, the privacy issues cannot be considered significant. However, the position of the path so close to the building is undoubtedly a deterrent to potential purchasers and diversion would clearly be in the interest of the owner.

Landscape Character

25. Preservation of the landscape character of the area, particularly in the AONB, must be an important concern in considering changes to rights of way. The character and history of the rights of way network in its own right is also important. Consideration should be given to what might be lost in eliminating an existing path, or what may be visually intrusive or otherwise detrimental in creating a proposed new route.

26. The AONB Officer’s view that the agricultural character of the landscape should be protected by resisting any application for change of use is supported. It is not considered however that retention of the path in its present position will influence this outcome, since if any such application were to be approved, there would be strong grounds for including a path diversion under the Town and Country Planning Act 1990 as incompatible with the development being permitted.

27. The present proposal would move the path from one side of the area ABCDEF to the other without any great change in character apart from the fact that the new path would be fenced in with agricultural fencing. The path is not heavily used and provided width is adequate, there should be no greater risk of an unsightly trodden line than on the present path. It is therefore not considered that the proposed path would have a significantly detrimental impact on the landscape character of the area.

Land use

28. Permission for change of use has been refused once and it must be assumed that ABCDEF will be subject to agricultural use for the foreseeable future. Owners will not be permitted to transform the area into domestic gardens, but it is unlikely that purchasers of the units will leave the land unused. Structures and activities of an agricultural nature would be permitted and experience shows that once the units are occupied, conflicts are likely to arise between their activities and use of the path by the public.

Fencing

29. It is not possible to prevent a path being fenced in, as an owner is entitled to place fences anywhere on his land (subject to planning and any other relevant legislation) provided it does not encroach on the public right of way. The only way of ensuring a convenient path for public use in the long term is to specify an adequate legal width which takes this eventuality into account.

30. While it is not likely that the existing path ABC would be fenced in longitudinally, it is inevitable that the area will be divided by at least one fence across the path and sold with the two adjacent units. If agricultural stock such as domestic fowl, goats etc were introduced, stiles would have to be permitted in such fences.

31. Parallel fencing the proposed new path would have the advantage of eliminating the need for stiles at points E and F and ensure that whatever activities take place in the area of land ABCDEF, footpath users would not be inconvenienced.

Ease of use and safety

32. The proposed path would be easier for the less able in requiring only one stile at D. It would be more difficult in requiring steps at D, whereas the existing path has no steps, although it does now have a ramp near point A due to excavation of soil from the foundations of the building. Reducing the number of stiles is an important for increasing accessibility.

33. Ease of use needs to be considered in context of continuing along the base of the down or upwards over the open access land, neither of which are easy since the down rises relatively steeply from the boundary at points C and D.

34. Main Road Chillerton is a rural ‘C’ Road carrying normal traffic for this type of road. There is a narrow strip of verge between points A and F so it is unnecessary to walk directly in the carriageway between these points or to exit directly on to it. Visibility is not significantly different from these points. It is considered that there is no significant overall safety difference between points A and F, or that the additional distance along the road would be a danger.

Enjoyment of path as a whole

35. ABC was originally a headland path but the field boundary BC has been removed. As the boundaries are light post and wire fences, it is not considered that changing BC to the field edge would be significantly detrimental to views or convenient use.

36. G12a does not terminate close to any other paths at the road so no network linkages would be adversely affected by the diversion.

37. Chillerton Down Open Access land begins at the field boundary CD and may be accessed from the Chillerton Farm area either by Footpath G12a or by Bridleway G12/13 which is a farm track enclosed by hedges. It is not considered that the proposed diversion would adversely affect public access to this land as the existing and proposed paths are equally level.

CONCLUSIONS

38. The 200 metre length of path being considered for diversion is relatively short and is the most level part of a walk using G12a. Conversion of the barns has already affected the purely agricultural character of the existing path. Occupancy of the units will bring further activities likely to cause accidental or deliberate conflicts with the path which will be time-consuming to solve and which experience shows will probably never reach entirely satisfactory solutions.

39. Provided an adequate width is specified for the new path which will ensure it is convenient for use and maintenance, it is considered the new route would not only be in the interests of the owner, but would on balance provide a more enjoyable and trouble-free path for the public in the longer term now that the conversion of the barns has taken place.

FINANCIAL IMPLICATIONS

40. The cost of highway works, administration and advertising an order would be charged to the landowner. The Council would have to bear its own costs in any hearing or public inquiry in the event of objection. These would be accommodated within existing budgets.

LEGAL IMPLICATIONS

41. There are no further legal implications than those outlined in paragraphs 19-22 above and in Appendix 3.

IMPLICATIONS UNDER THE CRIME AND DISORDER ACT 1998

42. It is not considered there are any significant security implications as both the existing path and the new path are within the same enclosure. There would be some security benefit in diverting the path from its current position to the boundary as the path could then be fenced off and would be 25 metres rather than 3 metres from the buildings.

IMPLICATIONS UNDER THE HUMAN RIGHTS ACT

43. In respect of Article 6 (right to a fair trial) of the European Convention on Human Rights, it is considered that by representing the views of both the landowner and the public in the form of the Parish Council and the relevant User Group in this report and by advertisement of the proposed order with the opportunity of independent determination in the event of objection, the Council has met the requirements of this Article.

44. In respect of Article 8 (respect for private and family life) and Article 1 of the First Protocol (protection of property), the interests of the present and future owners of property affected by the path have been carefully considered and balanced with the interests of the public which the Council has a duty to protect.

OPTIONS

45. The Council may make a diversion order or not at its discretion.

EVALUATION / RISK MANAGEMENT

46. There may be statutory objections to the order resulting in a hearing or public inquiry, but it is considered that the arguments in support of the diversion as outlined in the report are well-founded.

47. If the existing path remains, there are likely to be conflict issues requiring considerable officer time which will be avoided by diverting the path to a position where it can be given a good width, fewer stiles and protection from conflicting activities.

RECOMMENDATION

That a Highways Act 1980 Diversion Order be made to divert Public Footpath G12a from the route shown ABCD on the plan to the route FED with an overall width of 3 metres and all recoverable costs to be recharged to the applicant.

PURPOSE / REASON

RECOMMENDATION