1. Like ordinary roads, public rights of way are highways in law. The closure or diversion of a right of way for any reason is unlawful unless properly authorised by a county or district council, or by the Secretary of State. This note, which applies to England and Wales, seeks to explain the administrative and legal procedures which apply when rights of way are affected by development.
2. The Town and Country Planning Act 1990 defines development as "the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land”. The Act requires (subject to certain exceptions) that planning permission is obtained before such development is carried out.
Planning permission
3. Most applications for planning permission are made to the district council or unitary authority (although there are certain exceptions - applications for mineral extraction for example, which are decided at county level). After an application for planning permission has been made it is entered on the local authority's planning register, which is open for inspection by the public. Most authorities have an online register. The authority sends the application to other relevant authorities for their comments; and sometimes also consults local groups. A short period, 14 or 21 days, is allowed for the public to comment: planning authorities are expected to decide applications within eight weeks.
4. If an application affects a right of way it must be advertised on site and in a local paper (Article 8 of the Town and Country Planning (General Development Procedure) Order 1995): authorities must take into account any representations made within 21 days of the display of the site notice.
5. A planning application may seek permission in one of two forms: outline or detailed. Outline permission is only for the principle of the erection of buildings. When it is granted certain 'reserved matters', not included in the grant of outline permission, must be approved before development starts. Approval of the reserved matters is effectively the same as the granting of detailed planning permission. Reserved matters usually things like access to the site, materials to be used, design and layout. If the application for outline permission contains all the necessary information the authority may grant detailed permission.
The effect of planning permission on rights of way
6. A planning permission is a right to carry out development, not to interfere with or move or block a right of way. The existence of a right of way across the site of a proposed development does not lead automatically to the rejection of the application, because the authority has power to make an order to divert or extinguish the right of way to enable the development to take place. However, the effect that the development proposed in a planning application will have on a right of way is a material consideration which planning authorities must consider when deciding an application.
7. Government encourages planning authorities to take the need for crime prevention measures into account when considering planning applications. It recommends that wherever possible footpaths and alleyways should be wide, clear of hiding places, well-lit and follow a direct route.
8. It is the view of the Ramblers' that in most cases development can accommodate a right of way as a safe and convenient feature. It is often possible to retain a distinct path separate from the pavements alongside roads, whether on its existing route or through or around open spaces or woodland or by water features. Government circular 01/09 says any alternative alignment should avoid the use of estate roads for the purpose wherever possible and preference should be given to the use of made up estate paths through landscaped or open space areas away from vehicular traffic.
9. An order separate from, and subsequent to, the grant of planning permission will be necessary to bring about diversion or extinguishment of the right of way. There will be an opportunity for the public to object at the time that the order is published.
10. But any objection by that stage has to be on the footing that the diversion or extinguishment is not necessary to enable the development to take place. So anyone learning of proposals to develop land crossed by, or near to, a public right of way should inspect the planning application, consider the effect that the development will have on the right of way, and make appropriate representations to the planning authority. It is essential to register concern about the effect on the right of way while the grant of planning permission is being considered by the planning authority, so that the effect on the path may be taken into account before the application is decided.
Diversion and extinguishment orders for rights of way affected by development
11. Once satisfied that it is necessary to divert or extinguish a footpath or bridleway in order to enable development to be carried out in accordance with the planning permission granted, the planning authority makes the appropriate order under section 257 of the 1990 Act. The Rights of Way Review Committee recommends a pre-order consultation of any interested parties over such matters as the new route, its surface and conditions, with a view to forestalling objections at the formal stage of the process.
Orders by the Secretary of State
12. The Secretary of State is empowered to make orders affecting rights of way for reasons similar to those available to local authorities. The Secretary of State's powers extend to the extinguishment or diversion of byways open to all traffic and ordinary roads. The Secretary of State rarely exercises his powers in relation to footpaths and bridleways.
Coming into effect of orders
13. An order which extinguishes a right of way under the Town and Country Planning Act 1990 is normally drafted to come into effect immediately on the order's confirmation, regardless of whether or not the development ever takes place. Orders which divert, or bring into existence new rights of way, should be drafted to come into operation not on confirmation, but upon certification by the order-making authority that the new route has been satisfactorily created. This provides an incentive for the developer to get the new routes made up, and prevents the order from taking effect if for any reason the development fails to be carried out as planned. The task of preparing the new path is the developer's, not the authority's.
14. If an order comes into operation other than on the date on which it was confirmed or at the expiration of a specified period beginning on that date, the authority has to advertise its coming into operation in a local paper.
15. Authorities must send copies of confirmed orders to the Ordnance Survey. OS will then show the change made by the coming into operation of an order on the next revision of a map at 1:25,000 or 1:50,000 scale.
16. The surveying authority (i.e. the county council or unitary authority) is under a duty to make an order under section 53 of the Wildlife and Countryside Act 1981 to modify the definitive map and statement of public rights of way so as to reflect the change made by a confirmed order.
Rights of Way: A Guide to Law and Practice, John Riddall & John Trevelyan, Open Spaces Society and Ramblers' Association, 2007.
Planning and Public Rights of Way Rights of Way Review Committee.
Circular 01/09, Department for Environment, Food and Rural Affairs.
