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Public Report abc Public report Report to 21 st August 2014 Planning Committee Report of Executive Director for Place Title Petition – Request for the City Council to take action against the closure of the footpath adjacent to 7a Rowleys Green Lane 1. Purpose of the report 1.1 A petition with 27 signatures has been presented by Councillor Harvard to request that the City Council take action regarding the closure of the footpath adjacent to 7a Rowleys Green Lane. In accordance with the City Council's procedure for dealing with petitions, those relating to rights of way are heard by the Planning Committee. 2. Recommendations 2.1 The Planning Committee is recommended to: (a) agree that it can be reasonably alleged that the footpath has been dedicated as a highway on the basis of the evidence currently available; (b) subject to the approval of recommendation (a) above, to approve the use of Highways Act 1980 S143 to serve notice on the landowner to remove all obstructions and re-open the footpath; (c) approve the making of a modification order to add the footpath between Rowleys Green Lane and footpath B23 in Warwickshire to the City of Coventry (Former County Borough) Definitive Map and Statement of Public Rights of Way. 3. Background 3.1 A petition presented by Councillor Harvard has been received by the City Council containing 27 signatures requesting that:- Petition against the closure of the B23 footpath at Rowleys Green Lane, Longford, Coventry. 1 It is important to clarify that the B23 footpath is actually in Warwickshire and finishes at the City boundary. It is open for use, and is on the Warwickshire Definitive Map. However the continuation of the path from the city boundary (which runs along the rear of number 7a through to Rowleys Green Lane is currently blocked which is the section that the petitioners seek to be unblocked. The whole of this path is on land belonging to No 7a. 3.2 The property at 7a Rowleys Green Lane was built in the 1980’s following the sale of land adjacent to 7 Rowleys Green Lane which previously formed part of the Title WK214073 comprising open space in the County of Warwickshire to the rear of 7 to 21 Rowleys Green Lane. 3.3 Ordnance Survey maps dating back to 1906 show a footpath from Rowleys Green Lane to the open space. The Title for 7a Rowleys Green Lane (WK54274) also shows the footpath within the red line boundary. It should, however, be noted that the representation of a footpath on an Ordnance Survey map is not evidence in itself of the existence of a right of way. However, it is important evidence to be taken into account when determining whether a public right of way might exist. 3.4 The footpath is not shown on the City of Coventry (Former County Borough) Definitive Map and Statement. However a formal claim was received in January 2007 from the Rambler’s Association for the footpath to be added to the Definitive Map and Statement of Public Rights of Way. The Council, as the relevant “surveying authority”, is obliged to modify the map following the occurrence of certain specified “events”. Once such event is “ the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows that a right of way which is not shown on the definitive map and statement subsists or is reasonably alleged to subsist over land in their area to which the map relates” (Section 53(3)(c)(i) of the Wildlife and Countryside Act 1981). This claim for this footpath to be added to the definitive map and statement is one of over 100 which were submitted by the Ramblers Association in a period between 2005 and 2007. In the intervening years a lack of resources in the Rights of Way team has meant that little progress has been made with validating or investigating this claim. 3.5 In their claim for the footpath to be added to the definitive map and statement, the Ramblers Association provided the following information: • The claim is for the short, unrecorded, end of the accepted public footpath which is recorded on the Warwickshire Definitive Map as B23. There is no alternative shown on any known Ordnance Survey map from the end of Warwickshire footpath B23 to Rowleys Green Lane. • The existing public footpath, and the claimed section, is well used by the public. • The evidence which resulted in B23 being included on the [Warwickshire] Definitive Map in the 1960’s is therefore considered to be applicable to this part as well on the basis that the footpath had to terminate at a public highway not just in the middle of a field. 3.6 Furthermore, Nuneaton and Bedworth Borough Council had erected a sign at the Rowleys Green Lane end of the footpath some years ago to mark this footpath as the entrance to the Sowe Meadows open space and this footpath was promoted as part of a circular walk known as “Your Green Tracks (Exhall)”. Barriers had been installed at either end of this section of footpath to stop motorcycles or bicycles from using it. It is not known if these were erected by the City Council or the Borough Council, however 2 there is no recorded objection from the then landowner on whose land they were erected. 3.7 The property at 7a Rowleys Green Lane was bought by its present owner in August 2013. He immediately raised concerns with the Officer responsible for Public Rights of Way about the use of the footpath and alleged that anti-social behaviour was taking place. He was advised of the claim for the footpath to be added to the definitive map and statement and that the footpath would need to be kept open if the definitive map modification order process was successfully completed by the City Council. 3.8 In early 2014 the landowner approached the Council about closing the footpath for maintenance purposes associated with the house. The Council requested from the landowner our reasonable costs for making a temporary legal order to close the footpath. However the landowner object to this as the footpath was not a recorded right of way and the Council accepted this point and apologised for the confusion and that an order was therefore not necessary for a temporary closure for the purposes of maintenance. 3.9 At the end of March 2014 the owner closed the footpath on his land by erecting barriers and signs at his boundary stating ‘Keep out private land’. In April 2014 it was observed that the landowner had commenced construction of a wall affecting the line of the footpath. At the same time the landowner has removed the previous boundary fence/hedge between his garden and the footpath and has effectively removed all trace of the footpath across his land. These building works are subject to a separate investigation by planning officers. 3.10 In May 2014 a petition was presented to the City Council requesting that the City Council takes action regarding the closure of this footpath. It should be noted that there is no statute of limitations in English Law on the time a public right of way is not used, with the axiom being ‘once a highway, always a highway’. Therefore, there is no legal reason for any particular course of action to be taken within a set timeframe. 4 Options considered and recommendation 4.1 There are three options available to the City Council: i) Do nothing if Members are satisfied that a public right of way cannot be reasonably alleged on the basis of the information currently available. However, if Members agree that, on the balance of probabilities, a public right of way may subsist here, it should be noted that the City Council has a duty to ‘assert and protect’ the rights of the public to use the footpath. If the City Council continues to do nothing, it could be failing to comply with that duty and be compelled to do so through the Courts. ii) Issue a notice to the landowner using the City Council’s powers under S143 of the Highways Act 1980 for the removal of the obstructions of the footpath once the route has been included on the definitive map and statement. The definitive map and statement records existing rights and the process could take several years to complete. In the meantime, it is likely that the public will be excluded from using a route that they are entitled to use and the City Council may be at risk for failing in its duty to ‘assert and protect’ the rights of the public as above. iii) Issue a Highways Act 1980 S143 notice to secure the re-opening of the footpath for public use and to make a modification order adding the footpath to the definitive map and statement as soon as resources allow. This is the recommended option. 3 4.2 If a definitive map modification order is made, then Schedule 15 of the Wildlife and Countryside Act 1981 provides for a public notice and a 42 day objection period. If no objections are made, then the Council can confirm the order itself. If objections are received and not subsequently withdrawn, the matter must be referred to the Secretary of State to determine. The Secretary of State will then appoint an inspector to investigate the matter and recommend whether or not to confirm the order. To do this The Inspector may hold a local Public Inquiry or hearing or through written representations.
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