HERTFORDSHIRE COUNTY COUNCIL
DEVELOPMENT CONTROL COMMITTEE
TUESDAY 5th APRIL 2011 AT 10.00 AM.
REVIEW AND UPDATE OF RIGHTS OF WAY SERVICE POLICIES, STANDARDS AND PRIORITIES, FOR THE FUTURE MANAGEMENT OF THE PUBLIC RIGHTS OF WAY NETWORK IN HERTFORDSHIRE
Report of the Director Environment & Commercial Services
Author: Richard Cuthbert, Head of Rights of Way, Tel: 01992 555292
Executive Member: Stuart Pile (Highways and Transport).
1.0Purpose of report
1.1The report provides an update to Rights of Way (RoW) policies, standards and priorities and seeks endorsement from this Committee to adoptthis revised approach to the management of the network through their application. The suggested revisions to the policies, standards and priorities are considered to be robust, transparent and legally defensible.
2.0Background
2.1The main objective for the Rights of Way Service remains unchanged and is:
“That the County Council as Highway Authority seeks through its future investment to provide a fully open, legally defined and easy to use public rights of way network.”
2.2This objective is pursued within the framework provided by legislation and the policies, key principles and budget provided by the County Council. However, it is recognised that the current budget is limited and there is now a need to review existing policies to be able to prioritise investment and deal with any implications arising from meeting our duties, for example under the Equalities Act 2010.
2.3The policies, standards and priorities of the Rights of Way Service need to bereviewed,to ensure the Service can continue to meet its published standards, as a result of:-
- Changes to national legislation requiring new policies and rendering some of the existing policies redundant or out of date.
- 25% (£363,000) reduction in revenue and staff funding and 46% (£171,000) reductions to capital resources of the Service.
- Updatesfor clarity and best practice.
2.4The Access team has been reorganised withthe decrease in staff resources, by altering officer areas to continue to cover the network. Maintenance and enforcement issues have been reprioritised, to continue to resolve high priority cases. However waiting times may increase to get cases resolved, due to the reduction in officer numbers. The Definitive Map team continues to work on priority cases, although decreased staff resources in this team, means there will be a reduction in the total number of cases that can be dealt with per year. As cases add routes to the map the network is gradually expanding, bringing with it increasing maintenance liabilities.
2.5The annual survey of the condition of Public Rights of Way, samples the condition of one third of the network (by length),giving a full inventory every
3 years. The survey provides intelligence of the condition of the assets across the whole network on a rolling cycle. It is planned to keep the resulting inventory up to date, make regular inspections of the entire network and provide cover for insurance claims. However with budget restrictions this will have to revert back to 20% per year, giving a full inventory only every 5 years. It is proposed to re-invite tenders for the contract (currently with Mouchel)to reduce the cost byat least 50% (from £25,000 to less than £12,500 per year).
2.6The original 3 key principles remain relevant, as they seek to promote an approach that can manage backlogs and progress towards objectives, through the effective, robust and justifiable prioritisation of limited resources.
These principles are to:-
i. Prioritise routes where there are public safety issues
ii. Prioritise routes according to the level of use
iii. Prioritise routes where the County Council’s actions could result in a significant positive impact on the network.
The main change here is to clarify that public safety issues focus on maintenance and protection work rather than improvements.
2.7Through investment from other sources, such as the Local Transport Plan,s106 opportunities and possibly Landfill Tax and the Community Infrastructure Levy (CIL) when it starts, further works may be implemented, including by other agencies, to create sustainable transport routes and promote the wider use of the Rights of Way Network. Many funding sources cannot,however,be used for statutory duties.
3.0Statement of Policies.
3.1This statement contains the Rights of WayService’s policies, originallyagreed in 2001, set within the framework of the main objective and key principles outlined above. The policies were developed from experience in both Hertfordshire and other highway authorities. These policies have been reviewed and need to be updated due to changes in legislation, resources and priorities. The original Statement of Policies is attached as Appendix A and the suggested changes to it and new policies are set out in detail below.
3.2(original)Policy 1Reclassification of RUPPs (Roads Used as Public Paths) was removed by Committee Resolution in 2008/2009, as it was superseded by the changes in legislation which introduced Restricted Byways. It is proposed that all other policies will now be renumbered starting from one.
3.3(renumbered)Policy 1 Evidential Modification Orders(MOD)
Modification Order cases will normally be investigated in the order in which duly made applications are received, subject to the availability of suitably experienced officers, except in any of the following circumstances where a case may be investigated sooner:
- where it will satisfy one or more of the key principles
- where the physical existence of a claimed route is threatened by development
- where investigation of a case would involve substantially the same evidence and forms part of or joinsthe route currently under investigation or about to be investigated and will provide significant cost or efficiency savings
- where there is only user evidence available
The improvements which have been made to this policyare to ensure that cases are dealt with by officers with appropriate experience; where there is only user evidence available, the application will be dealt with as a higher priority than currently, and; investigation of several cases involving the same evidence is likely to be limited to the same or adjoining route.
3.4Policy 2Public Path Orders (PPOs)
Public Path Order cases will normally be processed in the order in which applications fulfilling our requirements are received, subject to the availability of suitably experienced officers, except in any of the following circumstances where an order may be processed sooner:
- where an order would satisfy one or more of the key principles
- where an application has been made to HCC in its capacity as Planning Authority, or for a School’s Special Order
- where the processing of an order would save significant costs likely to be incurred in other rights of way functions
- where an order is appropriate following consultation paid for by the applicant
The improvements which have been made to this policy will ensure that only PPOapplications which contain the information necessary to process them will be logged;that cases are dealt with by officers with appropriate experience and;that applications made by schools for special orders will be dealt with as a priority. In addition, where an applicant is willing to pay all the necessary costs, they can now appoint and pay an externalAgent (rather than HCC) to consult on their application. This will reduce the current backlog of such applications and it is expected that by 2012 they maybe able to be dealt with soon after or on application. Creation orders are not normally subject to application,but it is proposed that they should be dealt with under this policy,in date order, by officers with appropriate experience.
District Councils can also make Public Path Orders under the Highways Act 1980and they are still required to make the necessary orders associated with planning applications under the Town and Country Planning Act 1990. If a local planning authority grants planning permission which affects a right of way, but they fail to make the necessary order(s) under the Town and Country Planning Act, the County Council will request that the District Council resolves this by the District Council making the relevant order(s) under the Highways Act 1980.
3.5Policy 3Processing Dedications and Creation Agreements
Dedications and Creation Agreements will normally only be processed in any of the following circumstances:
- where a dedication or creation agreement will satisfy one or more of the key principles
- where a dedication or creation agreement is offered in lieu of a Modification Order investigation and it satisfies the evidence
- where the requirement to make a dedication or creation agreement forms part of an obligation in a section 106 agreement
- where it meets a high priority Rights of Way Improvement Plan (RoWIP) objective
The main change to this policy is adding the last bullet point.
3.6Policy 3aAccepting maintenance liability on Dedications and Creation Agreements
Maintenance liability will normally only be accepted in the following circumstances:
- where little or no initial additional expenditure is required by HCC to bring a route into a fit condition for use AND
- where a path has been dedicated or created free from limitations which would be onerous on the public’s use and enjoyment of the path AND
- where the addition of a path is of public benefit, e.g. where a landowner dedicates a route instead of HCC incurring the expense of a MOD investigation.
The main changes to this policy are the proposed addition of ‘where a landowner dedicates a route instead of HCC incurring the expense of a MOD investigation’.
Where the dedication satisfies the evidence and is made in lieu of a MOD order route that requires maintenance, it would be for HCC not the landowner to bring to route into a fit condition for use.
3.7Policy 4Widths of new routes
The County Council recommends that there shall be minimum legal widths of
2 metres for footpaths, 4 metres for Bridleways and 5 metres for Restricted Byways which are created by Public Path Orders or Dedications and will usually require a wider width unless there are clear reasons for only providing the minimum.
The main changeto this policyis adding a recommended minimum width for Restricted Byways. It is also being improved by reinforcing the message that the widths areminimum widths, not standard widths and it is likely that a greater width would be sought. For instance, a footpath serving a busy route may be required to be provided with a 3.0 metre width.
3.8Policy 4aOrders made by other authorities
The County Council will normally object to Public Path Orders made by other authorities within Hertfordshire where:
- they create routes which are less than the minimum widths described in the previous policy
- they create routes which are subject to unnecessary limitations as described in the following policy.
The main change to this policy is adding the second bullet point.
3.9Policy 5Limitations on new routes
The County Council does not normally support the inclusion of any structures as limitations on routes created by Public Path Orders and dedications where those structures could otherwise be authorised (e.g. gates) or are an aid to passage (e.g. bridges).
The main changes to this policy are adding the “aid to passage” words and the examples in brackets.
3.10Policy 6 Maintenance and Enforcement Priority for Action
The County Council will normally prioritise action on the Public Rights of Way network in accordance with the three key principles. The following exceptional circumstances also apply:
- where practical work is required prior to a Public Path Order coming into effect or in order to open up a newly recorded right of way
- where there is evidence that either the Definitive Map or the Definitive Statement is incorrect.
There are no changes to this policy; however there are proposed changes to the response regimes for inspecting and dealing with reports. The two tables at Appendix Billustrate the changes, which are a result of experience over the past 10 years since the Good Practice Guide was adopted and the Service’s expected ability to respond in future with fewer staff and budget resources.
3.11Policy 7Maintenance of bridges and path surfaces (Shared public/private use)
Where a public footpath or bridleway also carries private vehicular rights, the County Council may consider making a contribution towards the costs of maintenance of the surface or towards any structures, such as bridges. The actual sum will reflect the cost that the County Council would incur to repair the surface and may vary in accordance with the key principles. The contribution from the County Council will not normally exceed a maximum of 10% of the cost of any appropriate maintenance works.
The main changes to this policy are stressing that 10% policy is a maximum not a standard contribution, i.e. it may be significantly less at 2% or 5% for example.
3.12Policy 8New ditches, ponds and channels etc.
Where a landowner creates a new ditch, pond or channel etc that crosses an existing right of way, a suitable bridge or structure must be provided, which can accommodate all legitimate users safely and without restriction. Structures may be supplied and erected by the County Council or approved agents, in which case landowners will normally be charged up to 100% of the reasonable costs of the installation. Where a structure is required by the County Council to bebuilt to a higher specification, the County Council will bear the additional cost. Absence of any structure can be construed as 'wilful obstruction' on behalf of the landowner. Exceptions may include instances where a path is recorded in the Definitive Map and Statement subsequent to the new feature being created.
The main changesto this policy are just for clarity in the wording.
3.13Policy 9Authorising structures on PRoW
The County Council’s policy is to keep the number of authorised structures erected on the Public Rights of Way network to a minimum, consistent with theEquality Act 2010, public safety and good husbandry. In keeping with national guidance and British Standard 5709, the least restrictive option will normally be chosen in each case, which will also be stockproof where required.
The main changes to this policy are adding references to the Equality Act 2010, the new national guidance from DEFRA and to the British Standard, “BS5709, Gaps Gates & Stiles”.
Least Restrictive Option Hierarchy
Footpath / Bridleway / Restricted Byway / BOATGap / Gap / Gap
Two-way pedestrian gate / Two-way bridle gate / Kent Carriage Gap
One-way pedestrian gate / One-way bridle gate / Bollards
Kissing Gate / Horse ‘step stile’ / Gate with step-through
Barrier / Gate with step-through / Frontier Gate
Squeeze / Frontier Gate / Field Gate
(Stile*) / Field Gate / -
*New stiles will no longer normally be authorised in Hertfordshire, due to the requirements of the Equality Act 2010.
3.14Policy 10 Charging for new or replacement structures
i.New structures = it is the landowner’s responsibility to apply for authorisation to erect a new structure. The authorisation may allow the landowner to erect the structure to an approved specification. The landowner may allow the Council to erect the structure, provided the owner bears 100% of the costs incurred.
ii.Existing structures in breach of authorisation (i.e. poor condition) = landowner pays 100% of all costs incurred.
iii.Existing structures but authorisation is withdrawn / is revised (i.e. in satisfactory condition & being maintained, but upgrade needed to achieve better access) = HCC pays up to 100% of the costs incurred to achieve the upgrade.
iv.Existing structures maintained in accordance with the authorisation = HCC shall contribute not less than 25% of proven maintenance expenses reasonably incurred.
The main changes to this policy are a rewording of the whole policy, to bring it up to date and clarify the County Council’s position.
3.15Policy 11Agricultural obstructions
The County Council will normally take direct action to remove crops or to reinstate paths where landowners have failed in the duties imposed on them by the Highways Act sections 134 and 137A. Action will only be instigated after the County Council has served the necessary notices. Consideration will be given to prosecuting repeat offenders and reclaiming all reasonable costs.
The main changes to this policy are just for clarity in the wording.
3.16Policy 12Legal and Court Action
The County Council may take legal action where there is a realistic prospect of a conviction and such action can be shown to be in the public interest and we cannot secure compliance by other reasonable means.
This is a proposed new addition, which is related to the above policy on agricultural obstructions, but also applies across the whole range of Rights of Way enforcement activities.
3.17Policy 13Permanent Traffic Regulation Orders
The County Council will follow the guidelines in government circular 1/09 and national guidance, normally by seeking to reduce damage and/or danger to an acceptable level before considering an order. Cases for order making may be considered for advice by the Development Control Committee where:
i. Management measures have failed or can be shown to be inappropriate; and
ii. There is sufficient evidence of damage or conflict to support an order under the Road Traffic Regulation Act 1984 section 1(1a – f).
When considering the making of a Permanent Traffic Regulation Order the County Council will give preference to those activities which cause the least disturbance to other users and will consider proposals to ban or regulate certain classes of traffic when in the wider public interest.
The changes to this policy are just for clarity in the wording.
3.18Policy 14Temporary Traffic Regulation Orders
When considering the making of an order, under the Road Traffic Regulation Act 1984 section 14 or the Town Country Planning Act 1990 section 261, public safety will be given a high priority. Alternative routes will only be provided on existing public highways which are convenient and safe for the traffic being diverted onto them. Alternative routes within construction sites will only be endorsed where provisions regarding public safety, width, surfacing and fencing are secured e.g. through a planning condition, a section 106 agreement [Town and Country Planning Act 1990],or other form of written agreement.
The changes to this policy are just for clarity in the wording.
3.19 Gating Orders Policy
The County Council recently adopted a policy on gating Orders, which applies both to Herts Highways and the Rights of Way Service, along with our Agents. Therefore no additional policy is required. The existing policy will be referred to inany list of Rights of Way policies for completeness.
4.0The Hertfordshire Rights of Way Good Practice Guide (GPG).