BOROUGH OF POOLE

CANFORD CLIFFS AND PENN HILL AREA COMMITTEE

19THJULY 2010

The Meeting commenced at 10am and concluded at 11.50am.

Present:

Councillor Ms Atkinson (Chairman)

Councillors Mrs Deas, Mrs Dion and Parker

Also attending:

Councillors Mrs Haines and Sorton

Officers attending:

Steve Cattle – Assistant Democratic Services Manager, Legal & Democratic Services

Sophia O’Sullivan – Rights of Way Officer, Transportation Services

Russell Wileman – Senior Solicitor, Legal & Democratic Services

Members of the public present:Approximately 38

CCPH15.10APOLOGIES FOR ABSENCE

No apologies for absence were received.

CCPH16.10DECLARATIONS OF INTEREST

Councillor Mrs Deas declared a personal interest in M.CCPH11.10 as a Member of the Royal Motor Yacht Club and also as she had been asked by the Proprietor of the Sandbanks Boat Yard and Marina Company Ltd to speak on his behalf at a Planning Committee in connection with a Planning Application at Ravine Road. She had acted as a Ward Councillor in this matter in an unbiased manner. (No objection was raised to the attendance of Councillor Mrs Deas at the Meeting).

CCPH17.10AN APPLICATION FOR A DEFINITIVE MAP MODIFICATION ORDER TO ADD A PUBLIC FOOTPATH AT SANDBANKS

The Assistant Democratic Services Manager, advised the Meeting that the Council’s Constitution required that Area Committees should have responsibility to deal with various functions relating to rights of way, including the duty to make a Definitive Modification Order. Therefore, a special meeting of the Canford Cliffs and Penn Hill Area Committee had been convened to consider this matter. In view of the likely number of people wishing to attend the Meeting it had been necessary to issue guidance on who would be able to speak at the Meeting and for how long. The following would apply for this Meeting:

*Those persons wishing to speak at the Meeting must have registered with Legal & Democratic Services no later than twenty four hours before the meeting.

*Speakers had been decided on a first-come basis.

*Up to a maximum of four people could speak for each side and speakers would be given no more than five minutes (each up to a maximum of twenty minutes for each side).

*At the end of the debate, speakers who had registered would be allocated a further one minute to sum up.

Following the presentation by the Rights of Way Officer the following speakers would make presentations:

*The Applicant (Sandbanks Association), Mrs June Topham, Mrs Allison Sepping, Mr John Sprackling and Mr Bernard Aston.

*The Sandbanks Boatyard & Marina Company Ltd – Mr Edwin Simpson.

*Members of the Committee would then ask questions after each Speaker and each of the Speakers would be given one minute each to sum up.

The Committee would then retire to consider the findings and return to announce its decision, following which the Meeting would close.

It was also pointed out that at a meeting of the Transportation Advisory Group previously, Councillors Mrs Haines and Sorton had spoken strongly in favour of the proposed Order. They were personally recorded in the Minutes of the Meeting of 4th February as having made those comments in support. The Head of Legal & Democratic Services had felt that Councillor Mrs Haines and Sorton were in a position of having expressed such strong views in the past that would amount to pre-determination and therefore they had been advised not to sit as Members of the Area Committee, but they would be entitled to make a statement of their views to the Committee if they so wished.

Sophia O’Sullivan, the Rights of Way Officer, submitted a report on behalf of the Head of Transportation Services seeking determination of an application for a Definitive Map Modification Order to add a public footpath to the Definitive Map and Statement running eastwards from Public Footpath 82 at the rear of 48 Panorama Road to the small beach beyond.

The Area Committee was advised that the Authority was under a statutory duty to keep the Definitive Map and Statement under continuous review under Section 53 of the Wildlife and Countryside Act 1981 and this application was being considered under Section 53 (3)(c)(i) of the Wildlife and Countryside Act 1981.

The Report highlighted the fact that similar applications had been considered previously on two occasions. The first application was made in 1994/95, when Dorset County Council managed the Network. The second was in 2004 and made to the Borough of Poole. On both occasions the Applications were refused and the Order was not made.

Dorset County Council had refused the Application, which was for a longer path continuing onto the foreshore, on the basis that the route was not defined and the High Water Mark had moved, making it impossible to tell where the path travelled. The refusal by the Borough of Poole in 2004 concerned the application of the Prescription Act 1832. This was the subject of an appeal to the Secretary of State which was withdrawn before it was determined in favour of a fresh application being made. It was this fresh application, made in 2009, that was the subject of the Report.

The Meeting was advised that on receiving the present application, consultations were carried out. As a result of the consultation, two objections had been received; one from the Sandbanks Boatyard and Marina Company Ltd and one from the owner of the adjoining property that backed onto the private beach. As objections to the making of the Order had been made in response to the consultation, the Application fell to be determined by this Area Committee. The objections from the Sandbanks Boatyard and Marina Company Ltd were very detailed and had raised legal issues concerning the Authority’s jurisdiction in determining the application. The full Submissions made by the Barrister instructed by the Boatyard, Mr Edwin Simpson, were also included as an Appendix to the Report. Owing to the nature of the Submissions made by Mr Simpson, Officers had sought legal advice from Miss Noémi Byrd of Counsel. Her advice was also contained in the Report.

In conclusion, the Report stated that the evidence in this case was conflicting. However, in the view of the Authority, it was reasonable to accept the evidence of those claiming use of the path within the twenty year period and reasonable to reject the evidence of the Landowners who said that use by the public had been challenged. There was no incontrovertible evidence that demonstrated a lack of intention to dedicate within the twenty year period from 1974 to 1994. The claimed Path was not of a character that use of it could not give rise to a public footpath at common law. It was therefore considered that a reasonable person might reasonably allege that the Path subsisted. Following the advice in the case law outlined in the Report, it was the considered view of the Authority that the path was reasonably alleged to subsist and that the application should be allowed and an Order made under section 53 (3)(c)(i) of the Wildlife and Countryside Act 1981.

The Chairman called on Mrs June Topham to make her Presentation:-

Mrs June Topham said:

“I am speaking on behalf of the Sandbanks Association which strongly supports this application for a Definitive Map Modification Order. This application relates to a small but vital “Spur” running west to east off Footpath 82 to a beach on the eastern side of the Sandbanks Marina (formerly Davis’s Boatyard). Footpath 82 is an existing registered Right of Way running south to north from Panorama Road. The beach has been in existence since time immemorial. There has been a path to this beach since before paths were registered. Since the 1920s there has been a small boatyard on the beach known as Davis’s Boatyard accessed by Footpath 82. Davis’s rented the area of sand (north of number 48 Panorama Road) which was occupied by their boat. In 1994 this piece of sand became available and Mr Davis bought it. He applied for Planning Permission to improve and delineate his boatyard. Permission was granted in 1994 with conditions, two of which were:

*Timber posts shall be erected along the western boundary of the boatyard, alongside the public Right of Way, at a distance of no more than 1.6 metres apart…. The posts shall be installed concurrently with the development hereby approved and thereby retained.

Reason: In order to prevent piecemeal development of the site and therefore in the interest of visual amenity.

This delineation extended the line of Footpath 82 down to the foreshore.

Condition 5: a 1.8 metre strip of land along the southern boundary of the site …… shall be made available for public access through the site at all times and the strip of land shall be demarcated by posts/bollards of a design and at a spacing to be agreed in writing by the local planning authority.

Reason: In the interests of maintaining public access to the harbour beach at all times.

Mr Davis complied with these conditions. The area of the yard was defined by the required posts, Footpath 82 went to the foreshore, and the eastwards “Spur” went to the beach. In 1997 Mr Davis applied for permission to concrete the area of sand between the posts for hard standing for the storage of boats. In July of that year, permission was granted with the condition that:

The 1.8 strip of land along the southern boundary of the site shown on the approved plan ….. shall not be concreted and shall be available for public access through the site at all times. The posts that currently demarcate this land, ….. shall be permanently retained for this purpose.

Reason: in the interests of maintaining public access to the harbour beach at all times.

This clearly indicated that the Council fully recognised that, with formal construction of Davis’s existing boatyard, the previous free access to the beach and foreshore, had become obstructed. Therefore they imposed these conditions as compensation.

However, the posts along both sides gradually disappeared and in 2000 this strip of land was concreted over. Unfortunately, no one realised the importance of this and therefore did not draw the Council’s attention to the fact, that Mr Davis was breaching his planning permission by removing the posts and cementing the path. At this time, pedestrian access to the beach was not limited or restricted. In December 2004 two notices appeared against the northern fence of Number 48 Panorama Road, saying:

“NO RIGHT OF WAY THROUGH THE BOATYARD” and “THIS IS NOT A PUBLIC FOOTPATH”.

We alerted the Footpaths Officer and she informed us that Mr Davis claimed he had made an agreement with the Council in 1997 that access along this path was “by permission”. We had never seen any evidence of this and there has certainly never been any indication that this was the case. Even after the notices went up, access to the beach was unchallenged and unobstructed. In August 2005, on advice from the Footpaths Officer, we sent in ten evidence forms and a request for a Modification Order. In the Association’s view, the footpath was public in that the Council had made a condition that it was to be open to the public for the purposes of beach access. The footpath was not going through the boatyard, which was the other side of the post line. We continued to use the footpath and did so without obstruction until November 2007, when Sandbanks Marina bought the boatyard and put a six foot high fence against the northern fence of number 48 Panorama Road, thus preventing everyone from using a well-loved and much-used facility.

In the view of the Sandbanks Association there is more than sufficient evidence here to show that:

(a)A footpath to the beach existed long before 1994

(b)With formal creation of Davis’s Boatyard in 1997, the Planning Authority recognised this fact by granting their permission with the relevant conditions, intending them to be retained in perpetuity.

(c)Until 2007 it had been possible to get to the beach unobstructed and unchallenged.

We therefore request that you grant this Modification Order”.

The Chairman called on Mrs Alison Sepping to make her Presentation:

“My name is Alison Sepping and I speak on behalf of the Sandbanks Association and also a resident of Sandbanks for twenty five years. I want to emphasise the strength of feeling that people have about being able to use this Path and enjoy the harbour beach. I made the most of this access through the 1980s and 1990s, particularly in taking my young children to play on the beach, sheltered from the wind and to paddle in the warm, shallow, safe water. In more recent years we have walked our dog here from home. This little beach never became crowded as it was generally only known by Sandbanks’ residents, local fishermen, some regular holidaymakers and some who had a home on Sandbanks. My neighbour, June, who has lived in the Wessex Water House for fifty years, has brought up five children on Sandbanks and has been used to taking them all paddling and for picnics along the path to this beach and over the years, has taken her twelve grandchildren. Now, her great grandchildren are deprived of the experience. The Sandbanks Association has been in persistent correspondence with the Borough of Poole over continued access to this path since 2004, when the first notices appeared. Following advice from the Footpaths Officer at the time, an application for an amendment to Footpath 82 was submitted, with written evidence from ten families. This application was turned down apparently on a technicality to do with the timing of the application, and the Association was informed of the right of appeal to the Secretary of State via DEFRA. This appeal was launched, and at this stage 75 families gave written evidence of use of the Spur path. This included people who had lived in the area for over sixty years, some who had grown up in the area, now live elsewhere, but who come back on holidays and some who had used the path in the course of their work.

There were families who had gone to the beach together for three generations and those who had especially enjoyed Bird watching, swimming, boating, picnicking and enjoying the sunset. The path and beach had been used frequently, all year round and no one reported being stopped or challenged. One child, now in her forties, had been rowed from the beach round to the Sandbanks Store to fetch the newspaper. One man wrote that he had first been shown the path on moving to Poole in 1997 by his Mother who had herself used the path as a child in the 1930s. It was thus a huge body of written history of the footpath which was sent in to DEFRA.

The Sandbanks Association was then persuaded by the new Footpaths Officer to retract the Appeal to DEFRA as this process might take many years, and to put in a fresh request for a Definitive Map Modification Order to the Borough of Poole, which would manage the necessary steps much more quickly. This was done in 2009. A completely new set of evidence forms was required, so forty of the original seventy families were asked, and willingly filled out all the details again. By now there was a huge amount of concern at the complete block of access to the Spur path and to the beach because of the high fence with razor wire constructed hard up against the fence along which the footpath had run.

All we want is the freedom to visit this beach, using the Spur path, as we and our families and forebears have done, to enjoy the particular features of this part of the harbour and to preserve this precious amenity for those who visit and value this part of Sandbanks”.

In response to a question Mrs Sepping stated that no specific vote had been taken by the Sandbanks Association at one of its meetings to support the application. The Association had merely facilitated the evidence gathering. The Meeting was also advised that there was clear evidence of usage between 1974 and 1994.

The Chairman called on Mr Bernard Aston to make his Presentation:

“Having lived in Poole for fifty years and been a resident of Sandbanks for thirty-eight, we know Footpath 82 very well. In the 1970s, 80s and 90s, we walked down Footpath 82 by the Royal Motor Yacht Club and then eastwards onto the beach. We used to walk to the Sandbanks Motor Yacht Club and also from the Sandbanks Motor Yacht Club the other way and on several occasions we used the beach with our children as this was a safe and quiet spot often used by local families. We were never challenged by anyone suggesting we did not have a right of way. We cannot understand why Sandbanks Marina has been allowed to block this path access and feel this may be a devious move for further developments in the future.

We see no reason why access via the path to the beach should be taken away from the residents of Sandbanks. We have lost many open spaces here already and feel the Council should make sure we lose no more”.

The Chairman called on Mr Sprackling to make his Presentation:

“I am Chairman of the Branksome Park, Canford Cliffs and District Residents’ Association. I was born and brought up in Poole and I have lived in Poole for most of my life, apart from a period from 1974 to 1999 when my work took me away, although I returned to Poole on frequent occasions throughout this period to visit my ailing parents.