Agenda Item No. 6 (b) Rights Of Way Committee

24 February 2015

Highways Act 1980 Section 25 and permissive access agreements

Earnley / / : proposed creation of Public Footpaths and permissive bridleways

Report by Director for Highways and Transport

Executive Summary

The Environment Agency has delivered a Managed Realignment Scheme along the coast between Bracklesham and Selsey to protect the area from future flooding. A wider benefit of the scheme has been the creation of new public access opportunities, and landowners propose to dedicate various public footpaths and permissive footpaths and bridleways.

The relevant legal tests are set out in paragraph 4 below.

Conclusion

It is considered the many proposals within this package to be an excellent opportunity to enhance and support recreational access around Medmerry. The proposals are reported to Committee due to the considerable size of the package, the liability for which exceeds the reasonable limit assigned under officer delegation powers.

Recommendation

i. That the Director of Law, Assurance and Governance be authorised to enter into creation agreements with the Environment Agency, the RSPB and the owner of Wilsons Farm under Highways Act 1980 section 25. ii. That the Director of Law, Assurance and Governance be authorised to enter into permissive footpath and bridleway agreements with the Environment Agency, the RSPB and the owner of Wilsons Farm.

1 Introduction and General Location (see Overview Plan)

1.1 The West coast between Bracklesham and Selsey (known as Medmerry) is largely flat and undeveloped, and on blustery days can be considered quite wild; yet in sunny and benign conditions there is considerable beauty and awe to be found in the wildlife and its large open skies.

1.2 This is a dynamic length of coast and for many years the Environment Agency has actively managed a shingle ridge defence to prevent flooding of homes and land. However, with increasing annual costs being unsustainable, also the risk of more extreme weather events making doubtful whether historic defences would prove adequate in future, the Agency developed and has now implemented a Managed Realignment Scheme.

1.3 A 7km embankment has been created behind the former flood defences, which have now been intentionally breached so as to allow land to flood on tides and reduce tidal water pressure on the coast. The scheme has created 183 hectares of new inter-tidal habitat allowing wave and storm energy to naturally dissipate. The scheme has greatly improved the standard of flood protection for over 300 homes, the water treatment works and the main road into Selsey.

1.4 The Environment Agency identified wider public benefits of its scheme beyond flood protection, which included opening Medmerry to public access opportunities. As owner of much of the land, acquired as part of its development project, the Environment Agency has offered to dedicate various public footpaths and provide additional permissive public footpaths. In addition it is willing to allow permissive public access on pedal cycle and horse on certain paths so more people can enjoy the landscape and local access opportunities. In support of this strategy it has already created many paths for public use. Other local landowners have agreed to enter into similar dedication and permissive access agreements to provide public users with an integrated package of routes for use.

2 Background

2.1 Historically there have been few public footpaths across the land and no paths for cyclists or horseriders to enjoy excepting the foreshore. The latter is now unusable for all as access between Bracklesham and Selsey as the former flood defence has been purposefully breached.

2.2 In proposing to dedicate these routes as public footpaths and permissive routes, once accepted by the highway authority it will enable them to be signed consistently with other public rights of way and permissive path around . The paths would additionally be added to Ordnance Survey mapping.

3 Proposal (see Overview Plan and individual plans)

3.1 Given the size and significance of the package of proposals it is intended to consider the package collectively rather than separately consider each and every length.

Public Footpath proposals

3.2 The Environment Agency’s proposed public footpath dedications are outlined on the Overview Plan. Attention is drawn to the following points:

• the Overview Plan omits to record the existing connection of the two public footpaths close to Ham Farm with each other and to the existing public footpath to the east (roughly where the number ‘7’ is shown). These sections of public footpath were created when District Council earlier diverted the former public footpaths prior to creation of the embankment; • there is no proposed dedication of public footpath (or permissive bridleway access) shown on the plan relating to Maps 4 and 5. This land is outside of the Environment Agency’s ownership and negotiations are continuing between the owner and the Agency to agree public access for the future and so link the east and the west parts of the site; and, • there is no proposed dedication of public footpath (or permissive bridleway access) to connect the Environment Agency’s land with the foreshore west of West Sands Caravan Park, Selsey (Map 8). The Agency is continuing to negotiate with the landowner to formalise access over the shingle.

3.3 In addition to the Agency’s proposals, the Royal Society for the Protection of Birds (RSPB) and the owner of Wilsons Farm, Ham Lane have agreed to dedicate short lengths of public footpath. These will be, respectively, to connect with the beach at Bracklesham and across the access drive to Wilsons Farm off Ham Lane.

Permissive access proposals

3.4 The proposed permissive footpath and bridleway proposals are indicated on eight individual plans accompanying this consultation.

3.5 Several permissive footpaths are proposed at various points along the embankment crest so walkers can enjoy panoramic views. These routes are not intended for cycle and horse use in case such use may degrade the flood embankment.

3.6 Pedal cyclists and horseriders are to be offered access on the proposed permissive bridleways. These will largely follow most of the proposed public footpath dedications and additional grassed surfaces have been provided for the comfort of horses.

3.7 Permissive access rights are offered by the Environment Agency, the RSPB and the owner of Wilsons Farm until 2025 and thereafter unless six months’ notice in writing given by either the Agency or the County Council to the other at any time on or after 2025. As with other permissive access agreements, the agreement will cease should the current owners sell the land. Further, the Environment Agency has reserved the right to stop all permissive access on the first Monday each February (should it choose to do so), also to give 14 days’ advance notice to the County Council in the event it plans maintenance works and is unable to safely keep access available.

Path widths

3.8 Public Footpaths and permissive footpaths will be 2m in width excepting where constrained by a bridge or culvert. In practice many will be wider where the path follows, for example, the maintenance track running alongside the embankment. Permissive bridleways will be a minimum of 3m surfaced width with horseriders able to use the adjacent grassed surface if they choose. Most paths have a grassed verge or are unenclosed so permitting path users regardless of mode to pass each other safely and conveniently.

Path surfacing

3.9 Where paths will follow routes the Environment Agency will use for its future maintenance needs, surfaces of Type 1 stone have been laid above geogrid. Those paths on the ramps and embankment top are Type 1 stone dressed with limestone. The County Council considers these specifications to be robust and will provide safe and convenient use for many years to come.

Path signage

3.10 Should the routes be accepted by the County Council, it will install signage in accordance with county wide standards. So as to minimise the visual impact on the open landscape, the Council’s will limit signs generally to oak fingerpost and fingerarms at junctions of paths.

Gates

3.11 A number of gates have already been installed on the various paths; these are shown at points on the individual permissive plans and are for the purposes of stock control (some of the land will in future be grazed) or public safety. Where these are sited on existing footpaths, the gates are subject to the County Council’s standard consent procedure; gates on the new routes will be recorded as part of the dedication agreements. Gates on the various footpaths will have a minimum gate width of 1.2m; many gates for use by cyclists and horseriders will meet the 1.52m standard though some will be slightly less.

4 The Legal Tests

4.1 It is proposed to dedicate the various public footpaths shown on the Overview Plan as public footpaths by means of public path creation agreements under the Highways Act 1980 section 25. The County Council is able to enter into an agreement with any party subject to being satisfied that that party has the necessary power to dedicate; the County Council is satisfied that the Environment Agency, the RSPB and the owner of Wilsons Farm own the land crossed by the various paths.

4.2 The County Council has powers as a local authority to enter into permissive access agreements and generally chooses to enter into such agreements where it is advantageous to the public to do so. It is proposed to enter into permissive bridleway agreements with the Environment Agency, the RSPB and the owner of Wilsons Farm so as to create various permissive footpaths and permissive bridleways for public enjoyment and convenience.

5 Consultations

5.1 The County Council is required to consult with the relevant district council when entering into any public path creation agreement. It undertakes as good practice to consult with other likely interested parties so as to be informed as to the support or concern that may exist within the local community.

5.2 Council, Selsey Town Council and the Ramblers have responded giving their full support.

5.3 The British Horse Society welcomes ‘wholeheartedly’ the proposals for equestrian access and congratulates the landowners – with over 500 horses and ponies on the and only very few existing bridleways, the proposal makes a considerable difference for horseriders. The Society notes a number of gates are sited across the bridleways and, for convenience of all, asks that gates are held open when not needed for stock control; the RSPB, as manager of the land on behalf of the Environment Agency, has agreed to this.

5.4 Any further consultation responses will be reported to Committee members at the meeting.

6 Rights of Way Improvement Plan considerations

6.1 The proposal has been examined in the context of the Rights of Way Improvement Plan (ROWIP) and is considered to be in accordance with all relevant provisions of the Plan. Key aims to provide and improve off-road routes for walkers, cyclists and horse-riders are particularly well met by this proposal. Additionally, the installation of year-round usable surfaces, appropriately graded ramps, viewing points, and minimising the introduction of new gates, will add to all users’ convenience and enjoyment.

7. Impact of the proposal

7.1 Equality Duty. Under the Equality Act, the council has a ‘public sector equality duty’. It must have and show how it had due regard to the need to:

• eliminate unlawful discrimination, harassment and victimisation; • advance equality of opportunity between people who share a protected characteristic and people who do not share it; and • foster good relations between people who share a protected characteristic and people who do not share it.

7.2 The responsibilities of the County Council under the Equality Act have been duly considered and assessed in the course of processing this application. An Equality Impact Report has not been completed as no relevant negative impact upon any of the protected characteristics in the Equality Act 2010 emerged.

7.3 Crime and Disorder Act Implications – The Crime Prevention Design Adviser has been consulted; any response will be reported to the Committee at its meeting.

7.4 Human Rights - It is unlawful for a public authority to act in any way which is incompatible with a convention right. The rights which should be considered are rights pursuant to Article 8, Article 1 Protocol 1, and Article 6.

7.4.1 Article 8 protects the right to respect for private and family life including an individual’s home. This is a qualified right and there may be interference by a public authority if that authority does so with an intention of protecting the right and freedom of others.

7.4.2 Article 1, Protocol 1 deals with the protection of property. Again this is a qualified right and interference of it may take place where it is in the public’s interest to do so subject to the conditions provided by law. Any interference, however, must be proportionate. The main body of the report identifies the extent to which there is interference with these rights and whether the interference is proportionate.

7.4.3 The Committee should be aware of Article 6, the focus of which (for the purpose of this report) is the determination of an individual’s civil rights and obligations. Article 6 provides that in the determination of these rights, an individual is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal. Article 6 has been subject to a great deal of case law. It has been decided that for rights of way matters, the decision making process as a whole, which includes the right of review by the High Court, complies with Article 6.

8 Costs and Works

8.1 The Environment Agency has already undertaken a programme of works to provide the many routes for public enjoyment at its expense. In the event the proposal is accepted the County Council has agreed to be responsible for the costs of signage. Also, the County Council has agreed to maintain path surfaces in future where damage arises from use as public footpath and permissive bridleway use. In practice, many of the routes will follow the Environment Agency’s access tracks, and the Agency will retain liability to maintain where damage arises from its vehicle (or other) access.

Nicola Debnam Director of Highways and Transportation

Background Papers

(a) letter dated 23 December 2013 from Mr Phillips on behalf of Karsel Ltd owner of Wilsons Farm to West Sussex County Council (b) E-mail dated 9 October 2014 from the RSPB to West Sussex County Council

Contact: Jon Perks, Principal Rights of Way Officer, 033022 26703.