A208
Licensing and Regulatory
Committee
14 September 2009
Public Path Orders for Denston Hall Estate
1.
Purpose of the Report
1.1
A formal objection has been made to the Public Path Orders that were made on
19 June 2007 to make changes to several public footpaths within Denston Hall
Estate.
1.2
Negotiations with the objector have failed and she is not willing to withdraw her
objection, consequently the Orders cannot be confirmed.
1.3
A Committee decision is sought on how to proceed.
2.
Background
2.1
Mr and Mrs Macaire are the landowners for Denston Hall Estate. Footpaths 7, 8, 9
and 10 cross the estate land linking either end of the road which passes through
the village and to public footpaths in adjoining parishes.
2.2
The junction of Footpaths 7, 8 and 9 is within the ornamental gardens of Denston
Hall and is obstructed by a lake which was created by Mr and Mrs Macaire,
following the damming of a stream several years ago. Footpath 10 crosses a
meadow and part of the rear garden of an adjoining property.
2.3
In 1997, Public Path Orders were made to extinguish Footpaths 7, 8 and 9 on the
grounds that they were not needed for public use and alternative paths would be
made available by agreement with Mr and Mrs Macaire. These alternative paths
were already available on the ground as permissive paths. These Orders failed
following public objections and a public inquiry where the Inspector would not
confirm the Orders. The Inspector concluded that the use of Footpath 7, 8 and 9
had diminished or practically ceased partly because they had not been maintained
(and obstructed by the lake) and partly because good alternative paths had been
provided by permissive footpaths. If the alternatives ceased to be available and
the existing footpaths were adequately maintained, the existing footpaths would
seem likely to be used at least to an extent this would make it inexpedient to
extinguish them.
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2.4
In December 2000, Mr and Mrs Macaire made a further application to extinguish
the part of Footpath 7 that crosses the park land to the front of the Denston Hall
and enters the lake together with all of Footpath 9. Also to divert Footpath 8 so
that the part which enters the lake is extinguished and that the remainder follows
the line of the permissive path already in existence from the Hall drive along the
north side of the River Glem in a westerly direction. In addition they agreed to the
creation of a path to follow the River Glem in an easterly direction from the Hall
drive to meet the point where Footpath 9 joins the public road. This route was
already a permissive path for most of its length and would be a replacement for
the routes to be extinguished. This would create Footpath 27, as shown on the
map attached as Appendix A to the report.
2.5
In December 2005, a meeting was held with Mr and Mrs Macaire, Suffolk County
Council Rights of Way Officers and representatives of the Ramblers Association
resulting in an agreement for Public Path Orders to be made by St Edmundsbury
Borough Council to make the changes depicted on the map at Appendix A. In
addition to the application for changes to Footpaths 7, 8 and 9, agreement was
made to extinguish Footpath 10 and create a further new path in replacement,
which would be Footpath 26, as shown on the map attached as Appendix A.
2.6
All necessary consultations were carried out and consents obtained to the making
of the Public Path Orders. At the annual Denston Parish Meeting held in July 2006
consent was given to the proposals.
2.7
Miss Hilary Bradfield of Broom Cottage, Lower Green, Denston objected to the
making of the Orders. The grounds of her objection are the proposed diversion
routes will not be more convenient or enjoyable for the people living locally and
she believes the existing paths are needed by the public and it is not expedient to
create new paths to replace the existing paths.
2.8
The objection is valid and reasonable with reference to the relevant legislation
detailed at Section 3 below.
2.9
Suffolk County Council as Highway Authority agreed to the proposed changes as
they addressed the obstructed routes of Footpaths 7, 8, 9 and 10 and are of the
opinion that should the Path Orders be confirmed they will solve the obstruction
issue. The alternative for Suffolk County Council would be to take enforcement
action but practically, the removal of the well established lake would be a major
problem.
2.10
Mr and Mrs Macaire wish to pursue their application, their aim being to remove the
Public Rights of Way from the near vicinity of Denston Hall.
2.11
The strength of public support for the proposed changes is not known as there
have been no letters of support received. However, since the introduction 28 day
Public Notice Period, two telephone calls objecting to the proposals have been
received. These objectors are aware that their objection has no legal standing but
would come forward if they were allowed to voice their opinion at a public inquiry.
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3.
Relevant Legislation
3.1
All the Orders were made under the provisions of the Highways Act 1980 (the Act)
and have been written so that they are to be considered together as each is
dependent on each other.
3.2
Section 26 of the Act provides for compulsory powers for local authorities to create
footpaths and bridleways. The local authority has to be satisfied that there is a
need for a footpath or bridleway and have regard to the extent to which the path
or bridleway would add to the convenience or enjoyment of a substantial section
of the public, or to the convenience of persons resident in the area. The local
authority also needs to have regard for the effect the creation of the path or
bridleway would have on the rights of persons interested in the land and to take
account of any claim for compensation for loss caused by the creation.
3.3
Section 118 of the Act provides that where it appears to a council that a footpath
or bridleway in their area should be stopped up on the grounds that it is not
needed for public use, the council may make an Order which will be referred to as
a Public Path Extinguishment Order.
3.4
Section 119 of the Act provides that where it appears to a council that a footpath
or bridleway in their area, in the interests of the landowner or the public, should
be diverted, the council may make an Order.
3.5
The Public Path Orders Regulations 1993 prescribes the procedure for Public Path
Order making and also states that the council cannot confirm Public Path Orders to
which formal objections have been received. Any such Orders should be sent to
the Secretary of State for confirmation.
3.6
Department of the Environment Circular 2/1993: Public Rights of Way, Annex C,
Paragraph 3 provides that although local authorities have no statutory power to
withdraw a Public Path Order that has been made, they may formally resolve not
to proceed with the Order.
4.
Options
4.1
The Committee is asked to consider the following options:(a)
Submit the orders to the Secretary of State (Department of the
Environment, Food and Rural Affairs) to adjudicate confirmation of the
Orders;
(b)
formally resolve not to proceed with the Orders in accordance with
Section 3.5 above;
(c)
not proceeding with the Orders would lead to two further options:(i)
Suffolk County Council taking action in relation to the obstructions;
or
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(ii)
St Edmundsbury Borough Council to liaise with Mr and Mrs Macaire
to develop another project in an attempt to address all the issues
and satisfy the objections. However if this option failed, option (i)
would be the only option available to solve the problem.
5.
Conclusion
5.1
Submission of the Orders to the Secretary of State would result in an Inspector
deciding to deal with the matter by one of the following three methods:(a)
by written representations providing all parties agree;
(b)
by Public Hearing (a small public inquiry); or
(c)
by a full Public Inquiry. It cannot be ascertained which method the
Inspector will use prior to submission, but the Council has to pay the fees
involved in the event of a public hearing or inquiry.
5.2
The views of the Inspector at the previous inquiry are still relevant in relation to
the extinguishment of the paths, i.e. if the existing footpaths were adequately
maintained, the existing footpaths would seem likely to be used at least to an
extent this would make it inexpedient to extinguish them. The present proposals
have the advantage over those considered in the 1997 inquiry, in that there are
now formal Creation Orders proposed to replace those being extinguished but it
remains that the present footpaths, if maintained, could be used.
5.3
It is not known whether or not an Inspector would be able to refer to the
comments made at the previous inquiry, but it would be a fair assumption that the
same conclusion could be reached and the Orders would remain unconfirmed.
5.4
Formally resolving not to proceed would not solve the obstruction issue and would
not be well received by Mr and Mrs Macaire. It would also preclude the
opportunity to formally create the permissive path along the river in an easterly
direction from the Hall’s driveway.
5.5
Unfortunately, this is a matter that should have been resolved many years ago. It
is apparent that Mr and Mrs Macaire in creating the lake have deliberately
obstructed the route of Footpaths 7, 8 and 9 and by creating alternative routes
have encouraged the public not to use the existing legal paths in the hope that
they will be extinguished. Suffolk County Council sees the current Public Path
Orders as a solution to the obstructions and would prefer them to be confirmed to
taking enforcement action.
6.
Recommendations
6.1
It is RECOMMENDED that:(a)
the Council formally resolves not to proceed with the Public Path Orders in
accordance with Department of the Environment Circular 2/1993; and
(b)
further negotiations be carried out with Suffolk County Council and Mr and
Mrs Macaire to address the issues so that a conclusion may be achieved to
the satisfaction of all concerned.
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7.
Site Map
7.1
A map of the area is attached at Appendix A. The existing routes of the public
paths are shown as a red solid line and the replacement diversion and creation
routes are shown as a black broken line.
For further information, please contact:David Dale, Rights of Way Officer, Planning and Engineering Services
Telephone: (01284) 757627, or email: david.dale@stedsbc.gov.uk
W:\Democratic WP Services\Committee\Reports\Licensing & Regulatory Committee\2009\09.09.14\A208 Public Path Orders
for Denston Hall Estate.doc
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