This is the reply to the objection sent about the diversion and extinction of the footpaths across the site next to Oak Gardens:-
DATE: 8th September 2017 OUR REF: 055D/055E/521 YOUR REF:
TOWN AND COUNTRY PLANNING ACT 1990, SECTION 257
The Cheshire East Borough Council (Footpath No. 14 (Part) Parish of Bunbury)
Public Path Diversion Order 2017
The Cheshire East Borough Council (Unrecorded Footpath, Land off Oak Gardens, Parish of Bunbury) Public Path Extinguishment Order 2017
I acknowledge receipt of your objection to the above Orders; I believe your email was acknowledged by a colleague in my absence on 11th August 2017.
I would just like to make comment on a few points that you raise in your objection.
Section 257 of the Town and Country Planning Act 1990 was amended by Section 12 of the Growth and Infrastructure Act 2013 and now reads:
“(1A) Subject to section 259, a competent authority may by order authorise the stopping up or diversion in England of any footpath, bridleway or restricted byway if they are satisfied that—
(a) an application for planning permission in respect of development has
been made under Part 3, and
(b) if the application were granted it would be necessary to authorise the
stopping up or diversion in order to enable the development to be carried out.”
The change in the legislation now means the Borough Council, as Planning Authority, can make an Order diverting and extinguishing a footpath before planning permission is granted, providing that the application has been formally registered with the Council.
So, in this case, the developer approached the public rights of way team and began the process of applying to divert/extinguish the footpaths once they had submitted their planning application but before the planning permission was granted. The legislation states that an Order can be made before, but can only be confirmed once planning permission is granted. This does not specify the type of permission so it is possible to confirm an Order after Outline permission has been granted.
I appreciate from your comments that you believe it would be pre-emptive to lose and alter the rights of way before the detail of the planning permission is decided, however as stated above the legislation does allow the Borough Council to make the legal order. The public rights are not extinguished or diverted until such time that the Order is confirmed.
The Cheshire East Borough Council is satisfied that the Orders comply with the legal grounds and tests laid down in Section 257 of the Town and Country Planning Act 1990. The Borough Council’s Rights of Way Committee gave approval for the Orders to be made.
The Public Rights of Way team does wherever possible make contact with developers at an early stage in the planning process when rights of way are affected by development. We work with them to negotiate the best possible route for the right of way through the development and seek improved facilities for users.
With regard to your comments on the Borough Council’s Nature Conservation Officer; although he did not respond to the initial consultation on the proposals, he has now submitted comments to the Order. His comments will be put to the developer and his recommendation implemented wherever possible.
In your objection you refer to the various pre-commencement conditions, the only condition relevant to the public rights of way is condition 8. The ‘approved footpath plan’ referred to is the plan approved by the Borough Council’s Rights of Way Committee which is now the subject of these Orders. If the layout is significantly changed at the reserved matters stage then the Order(s) could either be amended or if necessary annulled and a new Order(s) made.
As objections have been made to both Orders the Council will now have to refer the Orders to the Planning Inspectorate for determination. An Inspector from the Planning Inspectorate will hear the objections at a public inquiry or hearing, or in writing if the objectors agree. The Inspector can confirm an Order, confirm it with modifications, or refuse to confirm it.
It should be noted that the right of objection to an Order is a statutory right, but it should be exercised in a reasonable manner. The costs involved in dealing with objections to orders can be awarded against objectors in cases of unreasonable behaviour. The pertinent factor in this instance is whether the diversion is necessary to enable development that has been approved. Our Rights of Way Committee concluded that this test had been met.
I would be grateful if you are considering withdrawing your objection if you would let me know by 22nd September 2017, after this date if I have not heard from you I will assume you are continuing with your objection and a file will be prepared and sent to The Planning Inspectorate.
Definitive Map Officer
Tel: 01270 686158