Application for Public Path Diversion Order, Public Footpath No. 2 (Part) in the of The

Name of Planning, Access and Rights of Way Committee Committee Date 15th May 2018 Report author Eifion Jones Job title Rights of Way Officer Contact details 01874 620452 [email protected] Purpose of report To consider making a public path order to divert a section of public footpath no. 2 in the Community of The Vale of Grwyney Single Integrated Not applicable Assessment List of Enclosures Enclosure 1: Plan of proposal Enclosure 2: Statement of Reasons Enclosure 3: Additional Statement of Reasons Enclosure 4: Numbered photographs Enclosure 5: Plan showing camera locations Public interest test Not applicable Recommendations (i) that the application to divert public footpath no. 2 (part) in the Community of The Vale of Grwyney be approved and that an order be made under section 119 of the Highways Act 1980; (ii) that an order be made subject to the applicant reimbursing all of the Authority’s costs in accordance with the policy concerning the recovery of costs for public path and rail crossing order; (iii) that an order be made subject to the applicant entering into an agreement with the National Park Authority to meet all costs involved in bringing the diversion route of the footpath into a fit condition for use by the public and that all necessary works undertaken by the applicant are completed to the satisfaction of the National Park Authority; (iv) if no representations or objections are duly made to the order during the statutory objection period, or if any so made are withdrawn, that the order be confirmed as an unopposed order.

1.1 Details of the Application

Applicant: Mr Stephen Hindmarsh, Ty’n y Cae, , , NP8 1EL Landowner: Mr Stephen Hindmarsh, Ty’n y Cae, Glangrwyney, Crickhowell, Powys NP8 1EL Location: Ty’n y Cae, Glangrwyney, Crickhowell, Powys NP8 1EL Grid Ref: 323936,216615 Community: Vale of Grwyney

The application has been submitted by Mr Hindmarsh (“the applicant”) to the National Park Authority (“the Authority”) under section 119 of the Highways Act 1980 (“the Act”). A map showing details of the present and proposed routes is shown at Enclosure 1. The applicant has submitted a statement of reasons for the proposed diversion with the application. The statement is shown at Enclosure 2.

In summary, the statement raises the following issues as grounds for a diversion:

i) the number of walkers staying into the garden has significantly increased and, they find it difficult to find a way out;

ii) the applicant’s young children are dismayed and frightened by being confronted by strangers in the garden. Whilst the existing layout of the drive can be confusing (leading to these incidents), the safety of family members and the security of the property is the main concern;

iii) it is increasingly common for walkers’ dogs to be left to run free. This has caused some distressing incidents;

iv) theft has become more of a problem in the area and there is a worry that strangers in the garden may not always be stray walkers;

v) re-routing the footpath will allow greater protection for the family, privacy and security of the property;

vi) re-routing the footpath will give walkers a more fulfilling experience by allowing them to walk through an attractive riverside setting; vii) a survey of local walkers and visitors suggests that they would prefer to walk by the river; viii) the added distance is 140 yards which would add no more than a minute to complete

The Authority undertook a consultation exercise based on the contents of this statement.

An additional statement was provided several months after the application was submitted following a change of circumstances. The additional statement is shown at Enclosure 3.

In the statement the following additional issues are raised: i) the family has acquired two horses and these are kept in the field where the footpath is located;

ii) should the application be successful it is intended to double fence the footpath at a minimum width of 3 metres. This will solve the problems with dogs worrying sheep;

iii) should the application be successful, the National Park Authority will be allowed to replace the stile, at the northern end of the footpath, with a more accessible gate

The Authority undertook a second consultation exercise in order to bring the additional statement to the attention of consultees.

1.2 Details of legislation

Section 119(1) of the Act states that an authority may make an order where it appears to be expedient to divert a path in the interests of the owner, lessee or occupier of land crossed by the path or of the public.

Section 119(2) of the Act states that a public path diversion order shall not alter a point of termination of the path if that point is not on a highway, or, where it is on a highway otherwise than to another point which is on the same highway, or a highway connected with it, and which is substantially as convenient to the public.

Section 119(6) of the Act states that before an authority confirms an order they must be satisfied that the diversion to be effected by it is expedient as stated above and further that the path will not be substantially less convenient to the public in consequence of the diversion and that it is expedient to confirm the order having regard to the effect which the diversion would have on public enjoyment of the path as a whole.

1.3 Site description and associated issues

Ty’n y Cae is located approximately 250 meters to the north of the village of Glangrwyney. Footpath no. 2 proceeds from the A40, from the middle of the village, and proceeds northerly following the private road to Ty’n y Cae before entering a field and passing to the west of the property. It continues into a second field before terminating on a minor road to the south of the village of Llangenny. The footpath is currently furnished with three stiles, one on each field boundary. Horses are kept in the first field. Sheep are sometimes present in both fields.

One point that requires clarification is that of the route of the footpath as it approaches Ty’n y Cae from the south. This is alluded to in the first statement as detailed above.

The route in use on the ground is slightly different to that shown on the Definitive Map in that it is located on the opposite side of the hedge that comprises the western boundary of the private drive. A length of approximately 40 metres of the footpath is shadowed in this manner by this alternative route. The route of the footpath as shown on the Definitive Map is not usable in its entirety at this point due

to the presence of a hedge. The difference between the positions of the two routes is a matter of a few metres and impossible to identify on an Ordnance Survey 1:25000 map, that most commonly used by walkers.

There is a very obvious stile and fingerpost located on the alternative route at this point and it is somewhat difficult to see how a walker, unfamiliar with the footpath, could walk into the curtilage of Ty’n y Cae thinking that the footpath was being followed (see photograph 1 in Enclosure 4).

This is only an issue as Ty’n y Cae is approached from the south. No such problem exists whilst approaching from the north.

From that point onwards the footpath passes to the west of Ty’n y Cae and parallel to a fence/hedge line that demarcates its curtilage. The front of the property is visible from the footpath although it is partly obscured where hedges are present and dependent on seasonal growth (see photographs 3 and 4 in Enclosure 4).

It is understood that sheep have been present in both fields at various times of the year. The southern field is where the horses, mentioned in the second statement, are now kept.

Both fields are level and the surface of the footpath is largely grass. There is evidence of the passage of walkers as the footpath is quite well worn in some areas.

The applicant’s intention is to divert the footpath to the western side of the two fields so that it follows parallel to the river. At its furthest distance this would take the diversion approximately 90 metres away from the original footpath and increase the length of the entire footpath by approximately 140 metres. The total length of the footpath would increase from 795 metres to 935 metres.

At a speed of 5 km/h1 that equates to an additional 1 minute and 40 seconds of journey time. This calculation is based purely on the additional distance and does not take into account the presence of the stiles on the footpath.

The route of the diversion is elevated considerably above the river and would be set back 5 metres from the water’s edge. The river is a Special Area of Conservation (“SAC”) and Natural Resources have insisted that a corridor exist between the line of the diversion and the river. The intention being to provide a buffer zone alongside the river which would provide an area of cover for otters. The installation of a fence between the diversion and the buffer zone would also prevent walkers, dogs and stock from entering the area thereby reducing disturbance. Natural Resources Wales have given assent for the diversion citing these two requirements as conditions.

1 3 km/h equates to 2 minutes and 48 seconds; 7 km/h equates to 1 minute and 12 seconds

The fencing would be installed at the applicant’s expense.

A single gate will be required on the route of the diversion (the proposed location is shown in photograph 8 in Enclosure 4). There is no intention to have any stiles along the route. This, combined with the fact that the applicant will allow the Authority to replace the stile at the northern end of the footpath if the diversion is successful will render the complete route stile free.

1.4 Consultation responses

Powys County Council - no reply County Councillor - no reply The Vale of Grwyney Community Council – object to the application Natural Resources Wales - assent received (as a SAC is affected) Ramblers Association – in response to the first consultation - “…we will be happy to support this proposal. The diversion would be a pleasant route to take, giving glimpses of the river and following a route already in use by some of the path users. It affords more privacy to the residents of Ty’n-y-cae” and, in response to the second consultation - “We will be happy to support this latest proposal. The replacement of a stile by a gate will make the route easier to use and the second fence should ensure that walkers and their dogs keep to the path” Open Spaces Society - no reply Byways and Bridleways Trust - no reply British Horse Society - no reply Auto Cycle Union - no reply The Beacons Park Society - no reply Local Access Forum - no objection Statutory Undertakers - no objections

1.5 Objections received

Two objections have been received to the application. One from the Community Council (a statutory consultee) and one from a local resident (who is not a statutory consultee, was not consulted by the Authority and has no legal interest in the land).

The Community Council responded to both consultations undertaken by the Authority. It’s response to the first was as follows:

“The Community Council is not in favour of this footpath being diverted and would like to see it remain in its existing position. It therefore objects to this application.”

The response to the second was as follows:

“The Council has examined the plans supplied and sought the community’s views on the proposed diversion. Feedback reveals considerable opposition with a petition containing some 75 signatures received from people requesting the footpath remain

in its existing position. The Community Council is therefore unable to support the application to divert this footpath and recommends it be rejected”.

The text of the objection from the local resident is as follows:

“I have owned property in Glangrwyney for 14 years and have lived here for 7 of those years. During this time I have used the above footpath on many occasions as it forms part of a very pleasant 45 minute circular walk via Llangenny. I am strongly against the proposal as it is an unnecessary and inconvenient diversion. I understand that this is a second attempt to re-route the footpath – the first application being turned down. Whilst nothing has changed in the interim I feel I must respond to some of the points raised in Mr Hindmarsh’s letter in support of the application.

Para. 1 The reason for the confusion was that originally the path ran up the drive and in front of his house. The “increased number of walkers straying into his garden” could be remedied by signage.

Para. 2 Surely he was aware that this could be a problem when he bought a house with a footpath running through the property?

Paras. 3/4 A “Dogs must be on a lead at all times” sign would surely alleviate the occurrences?

Para. 5 A re-routing of the path will not deter criminals intent on robbery, and, again, he knows his privacy would be compromised when he bought the home.

The “more fulfilling experience of a riverside setting…” is disingenuous at best – taking a dog leg like this is counter-intuitive to the vast majority of walkers.

Para. 6 The so called “survey” of a number of local walkers is only anecdotal evidence, in fact, all the walkers I have consulted prefer the current route.

Para. 7 The “minute” to walk the extra 140 years equates to a walking speed of 4.8 m.p.h. – well above that of the average walker. However, I do agree that the footpath should be more clearly defined with better signage.

If the Authority were to insist on reinstatement then the footpath should return to the original route up Mr. Hindmarsh’s drive and in front of his house which would be a much greater intrusion on his privacy that at present. As the proposed diversion is unacceptable to the vast majority of walkers I would contend that a suitable compromise would be the choice of the preset footpath more clearly defined with better signage…”

1.6 Discussion

Matters arising from the contents of the objections are discussed below at 1.7 in the context of the legal tests. However, the local resident who has objected has raised the issue of a previously rejected application. This was a similar, but not identical application, and was rejected by the Authority in December 2000 after an objection was submitted by the Community Council. The Authority rejected the application because there was insufficient justification of need (for the diversion); the diversion would be less commodious to the general public; and, the diversion route would be subject to erosion. However, the application at that time, was recommended for approval by officers.

1.7 The legal tests

The first test states that “an authority may make an order where it appears to be expedient to divert a path in the interests of the owner of land crossed by the path or of the public.”

The applicant has listed several reasons in the application as to why a diversion is required. Some of these could be remedied by other actions, some not.

The issues raised are examined below:

i) walkers staying into the garden – it may well be the case that more signage on the private road leading to Ty’n y cae might alleviate the issues with walkers straying. However, the existing sign is very obvious and additional signage does not guarantee that this would be the case;

ii) dogs being allowed to run free - signage stating that dogs must be kept on a lead at all times might alleviate some of the problems with dogs but that would only be the case if walkers with dogs chose to obey the signs. Legally, dogs do not have to be on a lead in this type of environment2 (regardless of the presence of sheep or horses) therefore neither the applicant nor the Authority could enforce such a sign. Obeying the sign would therefore be a voluntary choice that walkers would make;

iii) strangers in the garden may not always be stray walkers – walkers straying from the footpath would become trespassers (which is not a crime). However, it would be very difficult to prove that they were there for any other reason other than straying off the footpath or getting lost. This raises understandable concerns for the applicant but such instances are not isolated and are common, to varying degrees, to anyone with public rights of way on their land;

iv) greater protection for the family, privacy and security of the property – whilst the footpath is located outside the curtilage of Ty’n y Cae it is still very close to the dwelling and its immediate environs. The footpath passes in front of the

2 They only have to be under close control

whole length of the dwelling and although screened by a hedge for the majority of that distance it is likely to impact on the privacy of the residents. The applicant has not demonstrated that any breaches of security have occurred beyond the presence of people in the garden. However, the property, albeit close to the village is relatively isolated and it is understandable therefore that concerns regarding security would exist;

v) a more fulfilling experience for walkers – the present route of the footpath passes largely along the side of two fields of pasture on a level surface (see photograps 2, 5 and 7 in enclosure 4). The route is pleasant enough and provides a quiet environment within which to walk. The footpath passes a small woodland to the north of Ty’n y Cae and nears the river as it passes through the northern- most field. Any comparison between the footpath and the proposed diversion will be subjective but it is considered that the proposed diversion would provide a pleasant route alongside the wooded area by the side of the river. It provides views of the river and opportunities to glimpse wildlife associated with riverine habitat (see photographs 9, 10, 11 12, 13 and 14 in Enclosure 4). As the route is level and will be free of stiles it will provide opportunities for those with mobility problems (that perhaps preclude them from using the existing footpath) to access countryside very close to the village;

vi) survey of local walkers – the applicant has not provided any data from the survey that he undertook beyond what is mentioned in the statement accompanying the application. It is assumed that the applicant has spoken informally to passing walkers in order to derive this comment. However, in the absence of data no further comment can be made on this point;

vii) the added distance is 140 yards which would add no more than a minute to complete – the additional distance has been discussed above at 1.3. In addition, a timed test has been undertaken by a member of staff so that the effect of climbing over the two stiles can also be considered. The time taken to walk the footpath was 5 minutes and 31 seconds. The time taken to walk the diversion was 6 minutes and 33 seconds, a difference of 1 minute and 2 seconds3. The test was undertaken by a member of staff who has no trouble whatsoever climbing over stiles. Clearly, this will not be the case for every member of the public that uses the footpath as the ability to climb the stiles will vary. The additional distance and additional time are not considered to be excessive additions to the length of the footpath or to the time it takes to traverse it. It is likely that the majority of walkers would be using the footpath for pleasure or recreation so the additional time and distance is likely to be irrelevant;

viii) horses – the acquisition of horses and their presence in the southern field could cause issues with dogs. The applicant has already identified that there is an issue

3 A speed of 8.1km/h

with dogs worrying sheep. Additionally, some people are not comfortable when approached by horses; ix) double fencing the footpath at 3 metres – this would ensure that walkers, with or without dogs, would be kept to the footpath. The width is ample to allow walkers to pass each other in comfort;

The second test states that “where an order is made it shall not alter a point of termination of the path if that point is not on a highway, or, where it is on a highway otherwise than to another point which is on the same highway, or a highway connected with it, and which is substantially as convenient to the public.”

There is no change to the termination points of the footpath. This test need not, therefore, be considered further.

An additional tests exist as follows:

Before an authority confirms an order they must be satisfied that the diversion to be effected by it is expedient as stated above and further that the path will not be substantially less convenient to the public in consequence of the diversion and that it is expedient to confirm the order having regard to the effect which the diversion would have on public enjoyment of the path as a whole.

Whilst this test applies before the confirmation of an order it is useful to consider its two strands here as it introduces the concepts of convenience and enjoyment.

However, if the Committee decides to make an order and that order is opposed, these tests are normally applied by the Planning Inspectorate.

Convenience

The test here is whether the path would be substantially less convenient to the public in consequence of the diversion. It has been demonstrated above that both the footpath and the proposed diversion are located on level ground; they traverse two fields of pasture; they are of similar length (the diversion being 140 metres longer); and, they take a similar period of time to walk (the diversion taking 1 minute and 40 seconds longer at 5 km/h and 1 minute and 2 seconds longer in the timed staff test). The most notable difference between the two routes is that the footpath is furnished with two stiles (see photographs 1 and 6 in enclosure 4) and the diversion would be furnished by one gate (see photograph 8 in Enclosure 4 for the proposed position of the gate). Given these facts it is not considered that the diversion would be substantially less convenient to the public in consequence of the diversion.

Effect on public enjoyment

The test here is whether it is expedient to confirm the order having regard to the effect which the diversion would have on public enjoyment of the path as a whole.

In general, the two routes have many similarities. They are located in the same field; their surfaces are the same; their length is similar and the journey time is similar. However, the footpath has stiles, the diversion will not.

It is therefore considered that there will not be any detrimental effect on the public enjoyment of the path as a whole. The replacement of two stiles with one gate will make the use of the footpath easier especially for those who have mobility problems. That may make the footpath accessible to some people who are unable to use the footpath at the present time.

1.8 Conclusion

It is expedient to make an order in the interest of the owner of the land crossed by the footpath.

It is not considered that the diversion would be substantially less convenient to the public in consequence of the diversion.

It is not considered that there will be any detrimental effect on the public enjoyment of the path as a whole.

The application is subject to the Authority’s Policy Concerning Recovery of Costs for Public Path and Rail Crossing Orders. The applicant will therefore reimburse all of the Authority’s costs.

RECOMMENDATIONS:

(i) that the application to divert public footpath no. 2 (part) in the Community of The Vale of Grwyney be approved and that an order be made under section 119 of the Highways Act 1980;

(ii) that an order be made subject to the applicant reimbursing all of the Authority’s costs in accordance with the policy concerning the recovery of costs for public path and rail crossing orders;

(iii) that an order be made subject to the applicant entering into agreement with the National Park Authority to meet all the costs involved in bringing the diversion route of the footpath into a fit condition for use by the public and that all necessary works undertaken by the applicant are completed to the satisfaction of the National Park Authority;

(iv) if no representations or objections are duly made to the order during the statutory objection period, or if any so made are withdrawn, that the order be confirmed as an unopposed order.