Cabinet considered whether or not to exercise its powers under section 205 of the Highways Act to enable road widening at Heathfield Road, Sunninghill.

The Lead Member explained that Woodlands Lodge and Boxwood House were dwellings in Heathfield Avenue, Sunninghill which had been the subject of two separate planning applications to demolish the existing pair of semi-detached houses and in each case create an apartment building with associated car parking.  The first application was for 10 apartments and had been refused planning permission by the Windsor Rural Development Control Panel on 17 December 2012. The second application was for 8 apartments and was refused on 2 May 2013 following consideration by the Windsor Rural Development Control Panel.

The applicant (Millgate Homes) appealed both decisions and planning consent was granted by the Planning Inspector on 25 March 2014. The Planning Inspector, in allowing the two appeals, imposed a number of conditions including one that required the developer to widen Heathfield Avenue to a minimum of 4.8 metres for the first 15 metres from its junction with Kings Road. No development could commence until a scheme had been submitted and approved in writing by the Local Planning Authority. In order to discharge this condition and widen the road it would be necessary to convert a section of grass verge to carriageway. Ownership and use of the grass verge was disputed between the developer and residents. An amicable solution could not be reached.

Cabinet was addressed by Chris Ryder-Richardson and Peter Swift on behalf of Heathfield Avenue residents.

Mr Ryder-Richardson stated that in July 2014 the council refused a request for a section 205. In October 2015 legal advisers recommended refusal again. Since then there had been contradictory arguments from Millgate homes. For example, the vendors of the two houses imaginatively claimed that the Heatherlands verge was used as a passing place and the loss of the facility caused great inconvenience. However, even after allowing for increased traffic from the development, Millgate claimed that the widening was not needed and had applied for the condition to be removed. Millgate had said the existence of telegraph poles meant all the verges were highway, but at an earlier development in the Avenue Millgate extended the fenceline around a verge containing exactly the same equipment. No highway right of way was registered in the title when that development was sold. Mr Morrow, the vendor of Boxwood declared the verges were not owned. However he wrote a letter in 2004 where he claimed the verges were privately owned. A gardener employed by Mr Morrow claimed he parked his equipment on the verge, 160m away from the garden in which he worked, when there was ample room on the driveway. Future use of the highway should be considered, but future use would not increase if the flats were not built. Residents had provided tangible evidence that: the verges were privately owned; no presumption of dedication had been created; owners had demonstrated contract intentions; and the council was not obliged to act and had no powers under section 205. Having read the new submissions the legal adviser, backed by a QC, had recommended refusal for a third time including that dedication could not be presumed under common law or the Highways Act and the council could not use a section 205. The residents’ case was in line with the officer’s report and Mr Ryder-Richardson urged Members to accept the recommendation and reject the application as having no merit.

Mr Swift referred to a map that had been added to the agenda papers on the borough website. It was indicative and not to scale. At paragraph 1.7 of the report it showed that Heathfield Avenue was not included in the definitive map. The new map showed Pinewood with no verges, reflecting a new fenceline erected by Millgate during the development to encapsulate the verge back into the primary garden. However, the land registry map clearly showed the verge at Pinewood prior to the land registry assessment, which could be taken to have thoroughly considered the status of the Pinewood verge before being fully incorporated. This indicated the land registry was satisfied that the street was only in the confines of the narrow lines and the council could do the same. Ownership of the verge was not relevant. The point in dispute was whether or not the verges had been dedicated. Consistent evidence sourced over many years from a majority of residents was that no such presumption could be made. The report supported by a QC fully supported this contention. Without the presumption the verges could not be considered to be highway and as a result the council could not impose a section 205.

Councillor Hilton commented that since the deferral on 29 October 2015 he had read and re-read the paperwork including 11 statutory declarations, submissions from residents and the applicant, and the detailed analysis by legal services. The addendum from page 31 onwards importantly related only to the question did the verges form part of the highway? The legal officer had concluded that, as stated on 29 October 2015, the verges did not form part of the highway. No additional information or evidence had been provided on the second question, whether or not the council had the powers to carry out the road widening. The recommendation remained unchanged. On page 6 of the report it stated that the applicant could refer a decision to the High Court, which would be the final arbiter, however Councillor Hilton felt the case made by the legal officer was compelling and would stand up in court. He urged Cabinet to support the recommendation. He requested that if Members agreed the recommendation, the two planning applications to remove the relevant conditions relating to road widening be formally refused.

The Chairman commented that Cabinet was not in a position to undertake the refusal of the planning applications, but he was sure that the Lead Member for Planning had noted Councillor Hilton’s comments.

The Lead Member apologised to residents for the time the process had taken, but he emphasised the importance of assessing all the evidence provided from both sides. The recommendation was that as the land did not form part of the private street the council could therefore not utilise its powers under section 205. The Chairman agreed that the report clearly demonstrated at pages 49-50 that the verge failed to meet the test for dedication.

The Principal Member for Policy thanked all the attendees at the meeting; it was good to see a display of community engagement.

RESOLVED UNANIMOUSLY: That Cabinet does not exercise its powers under section 205 of the Highways Act to enable the road widening.

Councillor Hilton left the meeting at 7.48pm.