ENCLOSURE 5 1.1 Application for a Public Path Diversion Order, Restricted Byway No. 6 in the Community of Llantilio Pertholey Eifion Jones Applicants: Olwen Hughes, Pentre Farm, Llanddewi Skirrid, Abergavenny, Monmouthshire NP7 8AW & Swansford Solutions Ltd., 6 Agincourt Street, Monmouth, Monmouthshire NP25 3DZ Location: Pentre Farm, Llanddewi Skirrid Grid Ref: SO34051770 Map No: SO31NW Community: Llantilio Pertholey Summary of the definitive route: the restricted byway commences from a point approximately 95 metres to the south south west of Pentre Farm (dwelling house) and proceeds in a generally north easterly direction along the tarmaced road leading to Pentre Farm and into the yard. It crosses the yard and passes to the eastern side of the dwelling house and proceeds along a track, turning to an east by south direction, then through a field gate and up a grass slope through a young tree plantation to a field gate in the boundary of Pentre Farm. Total length approximately 305 metres. The total length of the route in use by the public includes a section of (gated) metalled public road (not shown on the Definitive Map), extending south from the beginning of the restricted byway, is approximately 615 metres. Summary of the proposed route: the proposed route commences from a point on a public road (opposite the starting point of restricted byway no. 5) approximately 300 metres south by east of Pentre Farm (dwelling house) and proceeds in a north north easterly direction through a field gate and onto an unsurfaced track. The route follows the track in an easterly direction, up a slope through a young tree plantation then in a north north easterly then north north westerly direction passing between the edge of the plantation (fenced) and the boundary hedge to a field gate in the boundary of Pentre Farm. Total length approximately 430 metres. Details of application The application has been submitted under section 119 of the Highways Act 1980 in the interests of the landowner. A map showing the proposal is shown at Annex 2. The reason put forward by the applicants for the diversion is: “security for occupants and autistic son” ENCLOSURE 5 As can be seen from the summary of the definitive route above, the restricted byway shares the road that provides private vehicular access to Pentre Farm (which is no longer a working farm) and passes through the yard of Pentre Farm. The restricted byway is located adjacent to several out buildings and passes within 5 metres of the dwelling house. Details of legislation Section 119 of the Highways Act 1980 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. 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. 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. Previous application Members should be aware that a previous application was made to divert this right of way in 1998 by Mr Luke and Ms Hughes of Pentre Farm. At that time the route was a Cart Road Bridleway and the application was made to Monmouthshire County Council under section 117 of the Highways Act 1980. The County Council subsequently made an application to Abergavenny Magistrates’ Court for an order under section 116 of the Highways Act 1980 to divert the route. That application failed. No transcript of the Magistrates’ decision is available and the only information available as to why the application was refused is that the proposal contained in the application presented a “significant detraction from public enjoyment”. The detraction resulted from the fields in question being extremely wet and would be badly poached by horses; the woodland planted by the occupants of Pentre Farm would obscure the fine views of the Skirrid, the Blorenge and southern Monmouthshire; the existing route was attractive and on firm ground and could be walked in stout shoes even in wet weather. ENCLOSURE 5 Member will note that many of the consultation replies make reference to this previous application. Restricted byway status By virtue of the section 47 of the Countryside and Rights of Way Act 2000 the Cart Road Bridleway became a Restricted Byway in November 2006. That legislation brought all restricted byways within the bounds of section 119 of the Highways Act 1980. This meant that applications for diversions of restricted byways could be dealt with via a local authority order rather than a magistrates’ court order. The application now submitted to the National Park Authority is identical to that submitted in 1998 save for a change in the applicants’ details. The application has been resurrected by taking advantage of the change in status and the resulting new procedure. Consultation Responses Monmouthshire County Council (Public Rights of Way Officer) – no reply Monmouthshire County Council (Traffic and Development Section) – no reply Llantilio Pertholey Community Council – “Refuse. Route proposed inappropriate for walkers and horses, due to gradient and boggy conditions”. County Councillor – no reply Countryside Council for Wales – no reply Ramblers Association – “...object to the above application...In 1999 the occupants of Pentre Farm...made an application to Monmoushire County Council to divert CRB6. This application was considered at Abergavenny Magistrates Court...and was rejected on the grounds that there would be a ‘significant detraction from public enjoyment’. Grounds for rejection were that, the fields in question were extremely wet and they would be badly poached by horses; the woodland planted by the occupants of Pentre Farm would obscure the fine views of the Skirrid, the Blorenge and southern Monmouthshire; the existing route was attractive and on firm ground and could be walked in stout shoes even in wet weather.” Open Spaces Society – “I made a site visit starting at point C up the slope, although a relatively dry period, there was evidence of slight equestrian use which had greatly poached the wet surface despite such limited use. Further along the more flat section towards point B, the ground was waterlogged, also undergrowth on the surface restricting the width to approx 12 inches, with deep poaching by horses hoofs, obviously such a surface if regulary used ENCLOSURE 5 by equestrians, driving (wheeled vehicles) and mountain bikers, would become a quagmire for all classes of users...there now subsists a planted wood/plantation adjacent (to) the diversion, this has ramifications for the diversion in that each year the trees will grow ever higher, not only losing the feeling of openness and views to the users, but the very important loss of sunshine and wind will not readily reach the surface of the diversion, therefore as the trees grow, the diverted way will become less and less dry...There is (sic) also the ramifications...being in effect a field edge diversion, the duty to keep the surface free of obstruction/undergrowth would pass from the landowner to the highway authority...I invariably find, such fenced in ways become unusable because of such vegetation, particularly in high summer or wet growing conditions...Finally, it is not a typical diversion but a much longer inferior muddy and poached track compared to the existing, which is largely excellent sealed/hard surface which can be used in the 4 seasons, unlike the proposed diversion. This...was recognised and found wanting by the previous magistates’ decisions, I too would make a formal objection to such an order...” Byways and Bridleways Trust – no reply British Horse Society – no reply Auto Cycle Union – no reply The Brecon Beacons Park Society – ‘The Brecon Beacons Park Society oppose this application. This application was rejected by Abergavenny Magistrate Court in 2000 on the grounds that there would be ‘significant detraction from public enjoyment’. Grounds for rejection were that, the fields in question were extremely wet and they would be badly poached by horses; the woodland planted by the occupants of Pentre Farm would obscure the fine views of the Skirrid, the Blorenge and southern Monmouthshire; the existing route was attractive and on firm ground and could be walked in stout shoes even in wet weather. The grounds for rejection remain. The diversion is extremely muddy from use by horses. Privacy and security do not constitute grounds for a diversion...Also note that if this diversion is approved then the road marked A-C on the plan will effectively become a private drive to Pentre Farm maintained at public expense”. (Former) Eastern Area Local Access Forum – Comment 1 (Chairman): “...physical conditions on the ground render the diversion route less suitable that it appears on paper...Hoof marks indicate that the grassy strip has recently been used by a few ridden horses...they have already had the effect of cutting up the soft red soil beneath the grass, making it muddy and difficult to walk on in places. If the route were to be used heavily by horse riders, I ENCLOSURE 5 fear that the ground would soon become cut up, and difficult for walkers to use...If, after due deliberation, the Committee decide to make an order, certain accommodation works will be necessary...I would suggest hardcore along B-C...” (Former) Eastern Area Local Access Forum – Comment 2 (Member): “...no objection to the diversion.