Agenda item

(1)          The Panel Members visited the site before the meeting.  This visit was attended by Mr Steve Kelsey (landowner), Mr Michael Wood (ET Landnet), Mr Brian Swann (Cranbrook and Sissinghurst PC), Mr John Donaldson and Mr Graham Smith (Ramblers) and some 8 members of the public.  The Panel inspected the current route and the proposed new route. 

 

(2)       The Principal Legal Orders Officer introduced his report on the application to divert parts of Public Footpath WC108 which had been received from the owners of Great Swifts Manor at Cranbrook.  The applicants had also offered to create an additional length of path around the edge of an adjoining field to benefit users of the existing PROW network. 

 

(3)       The Principal Legal Orders Officer then explained the reasons given by the applicants for the path to be moved.  The current route ran down a busy driveway used daily by some 50 to 80 vehicles. It also ran across on land fronting the property where children and dogs played.  Moving the route would overcome the resultant Health and Safety concerns.  Dog excrement contaminated the machinery used to cut the grass and the resultant hay crop.   Some members of the public also tended to attempt to force their way through the main gates, resulting in damage to the motor which was expensive to repair.

 

(4)       The Principal Legal Orders Officer went on to set out the relevant Legal Tests. 

 

(5)       The Legal Tests for the diversion of a public path were contained within section 119 of the Highways Act 1980.  These enabled the County Council to  make an Order to divert a public path if it was satisfied that it was expedient to do so, either in the interests of the owner, lessee or occupier of the land crossed by the path in question, or if it was expedient in the interests of the public. It could not be diverted if the end of the path was not on another highway. The Order could not be confirmed by the Secretary of State when objections had been received unless the Council was satisfied that the route would not be substantially less convenient to the public as a result of the diversion, and that confirmation of the Order was expedient having regard to the effect of the diversion on public enjoyment of the route as a whole.

 

(6)       Legislation relating to the creation of a Public Footpath by Order was contained within Section 26 of the 1980 Act which provided that the authority could create a public path over the land if it appeared to the Council that there was a need for a public path and if it was satisfied that it was expedient to do so after having regard to:

 

(a)       the extent to which the path would add to the convenience or enjoyment of a substantial section of the public, or to the convenience of persons resident in the area; and

 

(b)       the effect which the creation of the path would have on the rights of persons interested in the land.

 

(7)       The Principal Legal Orders Officer also set out the County Council’s own criteria for promoting a Public Path Change Order. These were:-

 

“ (a)     The status of the route must not be in dispute at the time of the application, unless the Public Path Order is being implemented concurrently with an application under Section 53 of the Wildlife and Countryside Act 1981;

 

(b)       The applicant must agree to meet the County Council’s costs of promoting the Order and bringing the new path into a fit condition for public use (as set out within section 3 of the Policy);

 

(c)       The applicant must also agree to defray any compensation which may

become payable as a result of the proposal;

 

(d)       The definitive line should, where it is considered by the County Council to be reasonably practicable be open, clear and safe to use.

 

However, nothing in this policy is intended to prevent the County Council promoting a Public Path Change Order in any case where it considers it appropriate in all the circumstances to do so.”

 

(8)       The Principal Legal Orders Officer turned to the responses to consultation.  He said that Tunbridge Wells BC had written that it did not support diversions of PROWs especially in the High Weald as this was contrary to its Landscape and AONB Management Plan unless there were compelling safety or security reasons or if a satisfactory alternative of at least equal value could be provided.   The Borough Council did not consider this to be the case. It had made no comment about the proposed additional route. 

 

(9)       Cranbrook and Sissinghurst PC had initially supported the proposal but had then reconsidered and objected on the grounds that the route was some 400m longer than the original; that the current line was well used and pivotal in picking up the path to Sissinghurst; that the applicant’s claim to the taking of a hay crop was inaccurate; that there was historical evidence that the path had been used for at least 250 years; that important views of Cranbrook would be lost; and that in the context of the emerging National Development Plan and the draft Local Plan, there could be large developments at Wisley, necessitating the provision of footpaths providing cohesion between settlements.  

 

(10)     The Ramblers had objected on the grounds that the path ran parallel to the drive and crossed at a point with excellent visibility. They claimed that the driveway was not busy driveway and that they did not believe there have been

near accidents; that the path was nowhere near the house so there was no significant security aspect; that the perceived danger of farm machinery was wildly exaggerated;  that the footpath did not use the electric main gate and they could not believe that a walker had damaged it; and that the reasons given were fabrications on the part of the owner who had purchased the land with the PROW and now wished to change it.

 

(11)     The High Weald AONB Unit had submitted several historical maps in support of its comments that Kent County Council had a statutory duty to have regard to the purpose of conserving and enhancing the natural beauty of the High Weald AONB. This duty included the determination of applications for the diversions of PROWs. Objective R1 of the Management Plan stated an objective of maintaining the basic pattern and features of routeways. The current alignment of WC108 was of historic importance serving not only Great Swifts but historically Moat Farm (now gone). It had been used for the local movement of people stock and farm vehicles over 250 years between the farms, green and common and for access around Swifts Park. The diversion would therefore be damaging to the High Weald AONB and impact upon public enjoyment of the route by those who appreciated walking in the footsteps of their ancestors. The High Weald AONB Unit therefore objected to the diversion of the footpath.

 

(12)     The Principal Legal Orders Officer moved on to consideration of the criteria for diversion set out section 119 of the Highways Act 1980.  The first of these was whether it was expedient in the interests of the landowner or the public.  He said that he considered that although not all the grounds put forward by the applicant would individually be sufficient to divert the footpath, the concerns of security and privacy were convincing.  He drew attention to the gate some metres away from the main gate which varied from the legally- defined path and was used by the public. If the Council were to strictly apply the Law and insist on the use of the main gate, it would pose significant security and privacy problems.  Recent Case Law in Somerset had confirmed that this was a valid consideration.   He therefore concluded that this test had been met. 

 

(13)     The Principal Legal Orders Officer then said that the remaining tests were to be applied at the confirmation stage if the first test was met (resulting in an Order being made).   He then said that the path was to be diverted to reconnect with the same highway at the same points as currently existed.  This meant that the application met the test on whether the points of termination would be as convenient.

 

(14)     The Principal Legal Orders Officer pointed out the subjective nature of the remaining tests and the understandable difficulties this caused. He did not believe that the right of way would become substantially less convenient to the public. This was because it was an amenity path that was mainly used for recreational purposes. The diversion might increase the travelling distance for some users whilst reducing it for others.  The headland path subject to the Creation Order was currently enjoyed by the public on an informal basis and the Order would formalise this arrangement.

 

(15)     The Principal Legal Orders Officer did not consider that the diversion would be any less enjoyable to use, in terms of its physical nature, than the current route.   Although the path was old, he did not consider it to be of intrinsic or specialist historic interest.  He therefore did not consider that the proposed diversion would have any negative impact upon public enjoyment of the path as a whole, albeit that others might hold a different opinion.

 

(16)     The Principal Legal Orders Officer said that there would be no detrimental effect on other land served by the existing path. There would also be no detrimental on other land served by the proposed new right of way.

 

(17)     The Principal Legal Orders Officer said that the creation of the proposed new Public Footpath would add to the convenience and enjoyment of path users as well as providing a useful addition to the local rights of way network.

 

(18)     The Principal Legal Orders Officer concluded his presentation by saying that he recommended that the proposed Public Path Diversion Order should be made as the legal tests for the making of the Order had been met. However, because of the subjective nature of the other tests (where many different views had been expressed), the County Council ought to take a neutral stance at any subsequent Public Inquiry.

 

(19)     Mr John Donaldson (Ramblers) said that beauty was a subjective quality.  In his opinion the public footpath was a historical route which afforded a fabulous view overlooking the Weald.  Cranbrook and Sissinghurst PC had nominated the views of the windmill and of Benenden as Protected Views. 

 

(20)     Mr Donaldson went on to say that the current route of the Public Footpath WC108 was more convenient for walkers because it linked to WC103 at a much better point than the proposed diversion. 

 

(21)     Mr Donaldson then said that main electric gate was blocking the right of way.  This problem could have been addressed by an application for diversion of the footpath to the side of the vehicular gate entrance.  

 

(22)     Mr Donaldson continued by saying that the current route was not a busy route and that it was nowhere near the landowner’s home.   The concerns about hay gathering were very unconvincing as there was very little dog excrement off the path.   Any excrement that was on the path itself was irrelevant as far as hay gathering was concerned.

 

(23)     Mr Donaldson added that the proposed new route would not be used by many people to walk into Cranbrook as they would continue to use Quakers Lane.  The current dry route was much shorter than the proposed new one and would also be wet and muddy. Therefore, the proposed diversion was substantially less convenient for the public.

 

(24)     Mr Brian Swann (Cranbrook and Sissinghurst PC) said that there should be no diversion.  Any confusion over its route should be ameliorated by improved way marking.  The path had never been used for hay production. The proposed new route was 400m longer than the current one, which was kept dry by the sunshine. The new route, by contrast would involve walking two sides of a triangle instead of directly. It was neither as convenient nor as enjoyable as the current route.

 

(25)     Mr Swann then said that the historical value of the current path had been noted by both the Local History Society and the Cranbrook Preservation Society.   It also enabled people to enjoy the perfect beauty of the countryside. It would be an absolute tragedy if it were lost.

 

(26)     Mr Swann concluded by saying that the landowner could address the health and Safety concerns by creating an entrance to the left of the main gate and creating a new path from this entrance point to the north of the drive.  He could then no longer be accused of blocking the PROW. 

 

(27)     Ms Claire Tester (Kent High Weald AONB Unit) said that the High Weald AONB Management Plan, which had been adopted by KCC, made the High Weald a homogenous area of beauty.  This designation included its paths, roads and tracks.  The aim was to avoid diverting routes unless absolutely necessary.   This particular route had significant historical importance as it had been used by people and animals for 250 years.  She concluded by saying that it was incorrect to say that the diversion would have no impact on the AONB.

 

(28)     Mr Michael Wood (ET Landnet Ltd) said that the new route that would arise from the Creation Order would be to the same standard as the current route.   He added that the diversion was in the Landowner’s interest when all of the factors that had led to the application were treated as a whole.

 

(29)     Mr Wood noted that some of the objectors had suggested creating a new entrance and diverting the path to the north of the drive.  He said that, in practice, this was the route that many walkers used.  In 2018, a walker had wandered off the official path and had been attacked by the landowner’s dog, leading to a significant insurance payment.   There had been other incidents in recent years, although these had been less serious in nature.

 

(30)     Mr Wood said that the current loss of revenue from the taking of a hay crop due to the presence of dog excrement stood at £10k per year.  The proposed new route would enable people who walked their dogs to Cranbrook to use the land on the other side of the fence and away from the road.  Overall, the new route would certainly be less convenient for some and more convenient for others. 

 

(31)     Mr Wood said that when balancing the landowner’s interest against loss of enjoyment, the Panel should take into account that there were very good views from the proposed new path.  He added that he could not understand how objectors could claim that the current route had no impact on the landowner’s property and its privacy.  He asked the Panel to make both Orders

 

(32)    The Principal Legal Orders Officer referred to correspondence from the Open Spaces Society that had previously been circulated to the Panel Members. This had claimed that the style of the report had been “tendentious.”  He said that all reports were written in the same style and that any perceived tendentiousness had not been intended.

 

(33)     During discussion of the report, Members of the Panel raised concerns that there would be a considerable loss of amenity and enjoyment for walkers if the diversion were made, and that the diversion was in reality a very different path with a very inferior view. 

 

(34)     On being put to the vote, the proposed diversion was unanimously rejected whilst the proposed new length of Public Footpath was unanimously agreed.

 

(35)     RESOLVED that:-

 

(a)         the application to make a Public Path Diversion Order to divert part of Public Footpath WC108 at Cranbrook  be not approved on the grounds that there would be a considerable loss of amenity and enjoyment for walkers if the diversion were made, and that the proposed diversion is in reality a very different path with a very inferior view;

 

(b)          the application for the County Council to make a Public Path Creation Order to create a new length of Public Footpath in the vicinity of Great Swifts Manor at Cranbrook be approved; and

 

(c)          in the event of objections to the Order approved in (b) above, the matter be referred to the Planning Inspectorate, with the County Council retaining a neutral stance in respect of the proceedings thereafter.