Part 1 (Open to ITEM NO. the public)

REPORT OF THE LEAD MEMBER FOR DEVELOPMENT SERVICES

To the: Cabinet On: Tue, March 19, 2002

TITLE: Public Bridleway No. 13 Irlam / Holmgrade Development

RECOMMENDATIONS: That procedures be reviewed to ensure that the ongoing update of records continues as speedily as possible and that internal consultation procedures are amended as necessary.

That in any future land sales, conditions concerning the need to secure the appropriate orders regarding highways prior to commencement of development are included in the terms of the sale.

That in future cases any planning permissions granted by the City Council, shall include conditions requiring the developer to obtain the appropriate orders concerning highways prior to the commencement of development.

That in future cases the Highway Authority takes the appropriate legal action when a highway is obstructed without the necessary highways order being in place.

That the agreement outlined in paragraph 3.2 be approved.

EXECUTIVE SUMMARY:

The report gives the details regarding the obstruction of a public bridleway. It sets out revised policies and procedures to deal with such cases in the future and seeks approval to a negotiated agreement in this particular case.

BACKGROUND DOCUMENTS: Case files CONTACT OFFICER: Ian Crook

WARD (S) TO WHICH REPORT RELATES: Cadishead

KEY COUNCIL POLICIES: Unitary Development Plan

DETAILS: Report attached. 1.0 BACKGROUND

1.1 The City Council agreed to dispose of a piece of land on Fir Street Cadishead to Holmgrade Builders Limited. This disposal was finalised on 21st March 2001.

1.2 At the time of the disposal and in negotiations leading up to the disposal it was pointed out to the proposed purchaser that Bridleway No. 13 Irlam would need to be diverted or extinguished.

1.3 Prior to disposal Holmgrade Limited applied for planning permission to erect 11 dwelling houses reference 00/41379FUL. The application was approved on 2 October 2000. No reference was made to the need to divert or extinguish the bridleway.

1.4 Holmgrade Limited started work on the site in early 2001 prior to either the land sale being finalised or a diversion or extinguishment order for the Bridleway being obtained

1.5 As part of the routine inspection process the City Council’s Rights of Way Officer, found that the developer was on site (6 February 2001).

1.6 At that time officers reviewed the current position and considered that the developer should be supported in a Diversion Order.

1.7 The Rights of Way Officer advised the developer on 8 February 2001 that they were obstructing a public Bridleway and advised that both a permanent and temporary closure was required. The temporary closure was required to enable security fencing to be erected for the duration of the works.

1.8 A letter was sent to Holmgrade Limited on 14th February 2001 explaining the situation and asking him to apply for the temporary and permanent closures

1.9 On the 9 April 2001 applications were received for both temporary and permanent Closures.

1.10 The temporary closure order was processed and came into force on 1 June 2001 and is currently in force until 14 March 2002.

1.11 Normally closure/diversion orders involving public footpaths and bridleways that are needed for a planning permission to be carried out are undertaken via the Town and Country Planning Act Section 257and the Secretary of State makes the decision as to whether or not the order should be made, in the event of opposed orders usually via a Public Inquiry.

1.12 The Secretary of State will not make orders in retrospect if development has substantially started.

1.13 In this case as development was substantially under way when the applications were received then the only procedure in order to obtain a diversion was to use the Highways Act. 1.14 Other discussions took place and it was decided based on the record evidence available at that time to progress a diversion order under Section 119 of the Highway Act (Diversion of footpaths and bridleways). This was confirmed by the Lead Member on 29 May 2001.

1.15 This was revised by an officer decision after further legal advice to process the diversion under Section 116 of the Highways Act - Power of Magistrates’ Court to authorise stopping up or diversion of highway.

1.16 The permanent diversion was advertised and two objections received, one written representation from Mr Lee representing the Open Space Society and one from Ms Gaffney representing the Pedestrian’s Association saying she would appear at the hearing.

1.17 The order proceeded to magistrates’ court on 16 November 2001 and was adjourned to be completed on 7 December 2001.

1.18 During the evidence and cross-examination on the 16 November 2001various issues were raised to be checked for the 7 December 2001. During the course of checking for further evidence records came to light, which questioned the basis of the application.

1.19 After careful consideration the application was withdrawn on the grounds that the proposed new route already had the status of adopted highway and therefore an extinguishment order should have been processed.

2.0 CURRENT SITUATION

2.1 The current situation is most unsatisfactory. There are 9 properties, which have been completed, 7 of which are affected by the bridleway. Because the bridleway is still in existence these properties cannot be sold. A number of these properties are occupied. This situation has been extensively reported in the local and national media. It is acknowledged by officers that, even though the principle of development of the vacant land is one that should have been encouraged, development should only have taken place once the necessary diversion order had been obtained.

3.0 PROPOSED SETTLEMENT

3.1 Officers have conducted negotiations with both the developer and the objectors to resolve the situation.

3.2 The agreed settlement is as follows: -

a) The existing part of Bridleway 13 is extinguished between points A & B on the attached plan. b) Horse riders will continue to use the existing Sandy Lane, marked B-C on the attached plan.

c) A new footpath will be created and added to the definitive map shown as (1) on the attached plan.

d) A 2m wide strip of land will be safeguarded from Fir Street to the railway line marked (2) on the attached plan for possible future use as a public footpath. If the boundary of planning application 01/43323\FUL is amended accordingly this will enable the application to be approved.

e) The City Council will use its best endeavours to promote a new public footpath across to Rowson Drive shown (3) on the attached plan, by the quickest means possible.

f) The developer will contribute the land for d) and construct e).

g) a) And c) Will be promoted using Section 119 of the Highways Act 1980.

h) d), e) and f) will be the subject of legal agreements between the parties.

i) The objectors agree not to oppose the Section 119 Order.

j) The City Council will take the recommendations, on future policy in respect of highways and the above agreement to Cabinet on 19th March following which the appropriate legal agreements and highway order can be progressed.

k) The City Council agrees to set up a non-statutory Rights of Way forum by April 2003, to which both the Open Space Society and the Pedestrians Association will be invited.

4.0 FUTURE POLICY IN RESPECT OF HIGHWAYS

4.1 Clearly as the City proceeds with regeneration and the development of vacant land, it will be necessary at times to consider the needs of development alongside the existing highways.

4.2 It is proposed to review procedures regarding updating of records and internal consultation to ensure that highway rights are always given full weight of consideration during the development process.

4.3 Further, the following protocols are proposed in relation to the policy for dealing with such issues: -

a) Sale of Land by the City Council

In any sale of land by the City Council, conditions will be imposed upon the sale to ensure that development cannot commence prior to obtaining the appropriate Order under the Town and Country Planning Acts. b) Grant of Planning Permission

At the planning application stage, any grant of planning permission shall contain conditions, which prevent the commencement of development prior to obtaining the appropriate Orders under the Town and Country Planning Acts.

c) Development Stage

If development commences without first obtaining the necessary Highway Order, then full consideration will always be given to the need for enforcement action under the Planning and Highways Acts.

5.0 CONCLUSION

5.1 That the proposed settlement is endorsed and the recommendations for future procedures are approved.

Councillor B Warner Lead Member for Development Services