APPENDIX 2: 4 July 2006 Development Control Committee Report

Agenda No.

HERTFORDSHIRE COUNTY COUNCIL

DEVELOPMENT CONTROL COMMITTEE

TUESDAY, 4TH JULY 2006 AT 10.00 A.M.

ST ALBANS DISTRICT

APPLICATION TO EXTINGUISH FOOTPATH ATFRANCISBACONSCHOOL,ST ALBANS, HERTFORDSHIRE

Report of the Director of Environment

Author:Graeme StarkTel: 01992 556185

Local Member: Rob Prowse

Adjoining Members: Brian Lee and Iris Tarry

1.Purpose of Report

To consider whether the County Council should make an order to extinguish a footpath at FrancisBaconSchool, Hill End Lane, St Albans.

2.Summary

2.1An application was made by Francis Bacon School(“the School”) on 18th May 2005 to extinguish a section of St Albans City Footpath 89 (“St Albans FP89”) under section 118B(1)(b) of the Highways Act 1980. This type of order is known as a “Special Extinguishment Order”. The legislation governing this can be found at Appendix 1. Plan A shows the route of St Albans FP89 and its location in relation to FrancisBaconSchool. It is the section between points A and B on Plan A which the School has applied to have extinguished.

2.2The County Council as highway authority for Hertfordshire can make a Special Extinguishment Order“where it appears to them that as respects any relevant highway for which they are the highway authority and which crosses land occupied for the purposes of a school, it is expedient to extinguish the footpath for the purpose of protecting pupils and staff from :

violence or the threat of violence,
harassment,
alarm or distress from unlawful activity or
other risks to their health or safety arising from such activity.”

The School must provide evidence in support of their application to satisfy the above tests.

2.3If a Special Extinguishment Order is made, it must be publicised. If at the end of the publicity period no objections to the making of the order are received, then the Special Extinguishment Order can be confirmed by the County Council. The confirmation of an order will bring it into legal effect.

2.4If any objections are received, a public inquiry must be held to determine whether the order should be confirmed or not.

2.5Before a Special Extinguishment Ordercan be confirmed, consideration must be given all the circumstances and in particular to:

any measures that have or could have been taken for improving or maintaining the security of the school
whether the order will result in substantial improvement in that security
the availability of a reasonably convenient alternative route
or if this is not available whether it would be reasonably practicable to divert the highway rather than stopping it up.

2.6If the highway rights on a section of St Albans FP89 are extinguished, then this section of the route would cease to be a public right of way and the County Council as highway authority would no longer be legally responsible for the maintenance of this section of the route.

2.7Representations against this application have been received from the Open Spaces Society, the Bushey and District Footpath Society, the Ramblers’ Association, the East Herts Footpath Society, the British Horse Society, the Hertfordshire Rights of Way Association and St AlbansCity and District Council.

Conclusion

It is considered that the facts of the case barely meet the legislative tests required to make a Special Extinguishment Order and that they would be unlikely to meet the tests to confirm the order.

It is therefore recommended that a Special Extinguishment Order is not made at this time and that the making of any such order is deferred until the applicants have more clearly satisfied the Director of Environment that all the tests in the legislation are met.

4.Description of the site and application route

4.1FrancisBaconSchool in St Albans was built in the mid 1960s to the north of a county road - Hill End Lane.

4.2St Albans Footpath 89 is shown on the legal record of rights of way (the Definitive Map and Statement) running east-west along Hill End Lane between the school buildings and the playing fields. It is the section of this footpath between points A and B on Plan A, where it runs between the school buildings and playing fields, which the Schoolhas applied to have extinguished.

5.Consultations

5.1On 9 January 2006, the County Council carried out an informal consultation and wrote to St AlbansCity and District Council, the local members and a number of user groups to ascertain their views regarding this application.

5.2Replies were received from Mr Chris Beney on behalf of the Open Spaces Society and the Bushey and District Footpath Society, Mr Phil Escritt on behalf of the Ramblers’ Association, Mr Mark Westley on behalf of the East Herts Footpath Society, Dr Phil Wadey on behalf of the British Horse Society, Mr John Barnes on behalf of the Hertfordshire Rights of Way Association and Mr Mike Lovelady on behalf of St Albans City and District Council. Their main concerns were:

the perceived lack of steps taken to secure the boundaries of the school premises
whether any alternative routes through the school grounds had been considered
whether the school does occupy the land
the problems of the alternative route outside of the school grounds such as that suggested along Drakes Drive.

5.3A meeting was convenedon 24 March 2006 between the representatives of FrancisBaconSchool and its supporters and those who had voiced opposition to the proposed extinguishment.No mutually agreeable solution was found. (See Appendix 3).

5.4In accordance with the requirements of section 118B(6) of the Highways Act 1980, the County Council has consulted the Hertfordshire Police Authority about the application for a Special Extinguishment Order. The Hertfordshire Police Authority are in support of this application.

6.Considerations for the making of a Special Extinguishment Order

6.1Section 118B(1)(b) of the Highways Act 1980 enables the County Council to extinguish a footpath which crosses land occupied for the purposes of a school provided it is satisfied that it would be expedient on safety grounds so long as certain criteria can be met. Two sets of legal tests must be applied and satisfied: one set to make an order and a second set to confirm an order so that it comes into effect. See Appendix 1.

6.2The legal tests that must be satisfied for an order to be made are:

(a)The route must be a relevant highway within the meaning of the legislation.

The Highways Act 1980 defines a ‘relevant highway’ as:

any footpath, bridleway or restricted byway
any highway which is shown in the Definitive Map and Statement as a footpath, a bridleway or a restricted byway, but over which the public have a right of way for vehicular and all other kinds of traffic, or
any highway which is shown in a Definitive Map and Statement as a byway open to all traffic.

The route subject to this application is recorded in the Definitive Map and Statement (DM&S) for Hertfordshire as part of St Albans City Footpath 89. It was originally recorded on the DM&S in reference to a ‘Road Closure Order’ made in 1967 by St Albans District Council, although no copy of the order has yet been found. St AlbansCity and District Council have found a ‘Temporary Closure Order’ from 1969 and a ‘Weight Restriction Order’ from 1976 (See Appendix 2). The ‘Temporary Closure Order’ was made under the Road Traffic Regulation Act 1967 and it may be that there was a misunderstanding and that the route’s status was recorded in error.

Irrespective of this possible error, the route is currently recorded on the DM&S as a footpath and is therefore a relevant highway within the definition of the Highways Act 1980.

(b)the relevant highway must cross land occupied for the purposes of a school:

FrancisBaconSchool is a foundation school used as a secondary education school. Although FrancisBaconSchool owns the land immediately to the north and the south of the footpath, it does not own the land over which the footpath runs. Despite all possible attempts by the School, including the placing of a notice in the local paper asking for people with an interest in the land to come forward, the ownership of the sub-soil over which the footpath runs remains unknown. The footpath is currently not fenced off from the school buildings to the north or the school playing field to the south and is therefore open to the rest of the school site. Staff and pupils use the land during break-times and to move between school buildings; the land over which the footpath runs should therefore be considered to be occupied for the purposes of a school, irrespective of its ownership.

(c)the extinguishment of the right of way must be expedient for the purposes of protecting the pupils or staff from:

violence or the threat of violence
harassment
alarm or distress arising from unlawful activity, or
any other risk to their health or safety arising from such activity.

FrancisBaconSchool has provided the County Council with 41 incident statements detailing problems they feel are related to the footpath; one from 1994, one from 1995 and the remainder from a period between November 2002 and March 2005.

Eight of these incidents could be reasonably construed as constituting violence or the threat of violence.
Eight could be reasonably construed as constituting harassment
31 of these incidents could be reasonably construed as causing alarm or distress arising from unlawful activities, and
18 of these incidents could be reasonably construed as constituting a risk to the health and safety of staff and pupils arising from unlawful activity.

The incidents vary widely in their nature and include:

Seventeen incidents involve individuals riding motorised scooters or motorbikes on the public footpath and adjoining school playing fields, which is an offence under section 34 of the Road Traffic Act 1988. The County Council are aware of five of these incidents having been reported to the police.
In November 2005 a 17 year old male attempted to enter school grounds by the footpath armed with an iron bar with the intent to assault a pupil. The offender was subsequently arrested and received a final police warning.
In February 2005 a member of staff was assaulted by an individual who gained access to the school premises via the public footpath. The offender was convicted of public order offences as a result.
In June 2003, four large window panes were broken by vandals throwing rocks, which the member of staff who completed the report and the Youth Crime Reduction Officer contend were thrown from the footpath.
There are two separate reports from early 2003 of pupils being followed along the footpath by unknown individuals. These were reported to the police.
In January 2005, a member of staff reported the theft of keys and property from the changing rooms adjacent to the footpath. It is not possible however to be sure that the theft was a result of the footpath.
In November 2005 two youths stole personal items from the changing rooms adjacent to the footpath. The youths were subsequently arrested and during police interview admitted to using the footpath as a means of entering and exiting the school.
Two of the incident reports detail the use of the public footpath by individuals whose behaviour does not appear to have been either threatening or unlawful. They do not therefore appear to contribute towards evidence that the path should be stopped up in the interests of pupil and staff safety.

The County Council are aware of a total of 15 incidents having been reported to the police. Hertfordshire Constabulary have stated that they would ‘strongly support any proposal by the Highway Authority...to ‘stop up’ this footpath.’

The reports provided by the School suggest that a small number of these incidents were a result of people gaining access to the school site via the front entrance of the school rather than via the footpath, while other statements are rather ambiguous about the point of access used.

7.Considerations in relation to confirmation of an order

7.1If a Special Extinguishment Order is made and no objections are received to the making of this order then it can be confirmed subject to the Highway Authority being satisfied that the stopping up of the highway is expedient as mentioned in section 118B(1)(b) of the Highways Act 1980 and that it is expedient to confirm the order having regard to all the circumstances and in particular to:

whether alternative measures, other than closure of the path, have been or could be taken for improving or maintaining the security of the school
whether it is likely that the coming into operation of the order will result in a substantial improvement in that security
the availability of a reasonably convenient alternative route, or the diversion of the current route
the effect which the extinguishment of the right of way would have regards to land served by the highway.

7.2FrancisBaconSchool has taken several steps to improve the security of the school in recent years. In 1996, CCTV was installed around the school and footpath. A sturdy, 6 foot high chain-link fence runs around the eastern, southern and western boundary of the school playing field and in 2005, a set of 8 foot high locked, metal gates were erected at the Drakes Drive entrance to the school. The front boundary of the School is a low hedge. If the footpath had previously been fenced then it is possible that many of the incidents detailed in the 41 incident reports would have been avoided. However, fencing the route in its current position would have several implications such as:

creating a health and safety problem if there was a fire and staff and pupils needed to evacuate to the playing field as they currently do.
staff and pupils would be partially prevented from moving around the buildings immediately to the north of the path because the school buildings have been built right up the path
pupils would no longer have free access onto the school playing fields during breaktimes
the significant cost of erecting a fence along both sides of the 270 metre section of the path which is occupied for the purposes of the school

If the current route was fenced, then a bridge over the footpath or swipe-card activated control gates onto and off of the footpath would alleviate the problem of pupils’ lack of access to the playing fields and circulation around the buildings. It would however increase the cost implicationsof the project and may notallow staff and pupils to safelyevacuate the immediate environs of the school buildings in an emergency.

Representatives of several user groups assert that the route could be fenced and that until this has been attempted, as a measure to improve school security, the legal test of whether alternative measures have been taken, cannot be considered to have been met.

7.3Many of the 41 incidents detailed by the School appear to have been a result of individuals gaining access to the school premises via the footpath. If the footpath is to remain unfenced, as the School maintains it must for the effective running of the school, then access between the path and the school is likely to remain the weak point within the School’s security, especially given that the remainder of the schools boundaries have now been secured. If the path was

stopped up the School would be able to create one secure boundary around the whole of the school building and playing field site. PC Paul Allen, the Youth Crime Reduction Officer for the area, has advised this is likely to result in an improvement to the security of the school.

7.4FrancisBaconSchool have suggested that if the footpath was closed then an alternative route via Drakes Drive would be as reasonably convenient to users. This alternative route would run over a paved footway and is approximately 160 metres longer than the route through the school. Phil Escritt on behalf of the Ramblers’ Association, Mark Westley on behalf of the East Herts Footpath Society and Chris Beney on behalf of the Open Spaces Society and the Bushey and District Footpaths Association have all stated that they do not consider the alternative Drakes Drive route to be reasonably convenient.

If this alternative route was not considered to be as ‘reasonably convenient’ then the route could be diverted rather than stopped up altogether. Despite several suggestions no diversions have been offered by the School on the grounds that the alternative Drakes Drive route is reasonably convenient and that any practicable diversion would not have the desired improvement in school security. A diversion within school grounds would still need to be fenced to achieve the desired improvement in security and the School assert that this is not practical because it would stop staff and pupils being able to freely circulate between the school buildings and playing fields.

7.5The extinguishment of the right of way would appear to have a negligible effect on other land served by the highway. The route does not appear to serve any land except the School’s and that which can already be accessed from London Road or Cell Barnes Lane.

8.Other considerations

8.1The Open Spaces Society, the Bushey and District Footpath Society, the Ramblers’ Association, the East Herts Footpath Society, the British Horse Society, the Hertfordshire Rights of Way Association and St AlbansCity and District Council oppose the application in its current form on the grounds that it fails to meet the tests laid out in the relevant legislation. Copies of their correspondences are available upon request.