A new vehicular access across a public right of way

Planning permission does not move a footpath. If a public right of way crosses the land where your new driveway is going, the grant of permission leaves the path exactly where it was, and building over it is an obstruction of the highway rather than an implementation of your consent. An access crossing a public right of way needs two separate decisions: the planning permission, and either an order diverting or stopping up the path, or a design that crosses it lawfully without interfering with it.

Self-builders discover this late and at cost. The permission arrives, the groundworks start, somebody from the ramblers' group photographs a pile of hardcore on a definitive line, and the council's rights of way officer serves notice.

Why a right of way is not extinguished by planning permission

A public right of way is a highway. It exists independently of who owns the land it crosses, and it is recorded on the definitive map and statement kept by the surveying authority under Part III of the Wildlife and Countryside Act 1981. That record is conclusive evidence of the existence of the right, its status and, where recorded, its width.

Nothing in the Town and Country Planning Act 1990 extinguishes a right of way when permission is granted. Wilfully obstructing a highway is an offence under section 137 of the Highways Act 1980, and the rights of way authority can require the obstruction to be removed. Permission to build a house where a footpath runs is permission to build the house once the footpath position is resolved, nothing more.

Case officers do not always spot the conflict, particularly where the path is shown on the definitive map but not on the ground. An approval that contains no reference to the path is not a safe assumption that the path does not matter.

Diversion and stopping up orders, and who makes them

Four statutory routes matter, and picking the wrong one wastes months.

For a self-build plot with a footpath across it, section 257 is the usual choice, because the test is whether the order is necessary to enable the development to be carried out in accordance with the permission. That makes the planning permission a prerequisite, so the sequence is permission first, order second.

Where the path to be affected is a byway or a vehicular highway, the section 247 route applies and the process is longer. Section 118 extinguishment is hard to achieve, because the authority has to be satisfied the path is not needed, and that is a higher hurdle than diversion.

Crossing a footpath with a driveway and the safety case

Often the better answer is not to divert the path at all. A footpath can be crossed at grade by a driveway, provided the public can continue to use it without obstruction and the arrangement is safe.

What the rights of way officer and the highway authority will look for:

• Intervisibility between vehicles and path users, with sightlines clear of planting and walls.
• A surface that does not create a trip hazard or become impassable, and a change in material or texture that tells path users something is happening.
• No gates, chains, bollards or barriers across the public line, because those are obstructions unless specifically authorised.
• The recorded width maintained across the crossing point.
• Low vehicle speeds designed in, with the crossing placed where a driver is already travelling slowly.

A crossing used by two or three vehicles a day is a very different proposition from an estate access taking two hundred, and officers treat them differently. For a single dwelling, a well-designed at-grade crossing usually carries less risk than a diversion application that attracts objections.

Timing a diversion order against the build programme

This is the part that damages programmes. An unopposed order can be confirmed by the authority that made it. An order attracting objections that are not withdrawn must be referred to the Secretary of State and is determined through the Planning Inspectorate by written representations, a hearing or a public inquiry.

Work on the basis of months rather than weeks, and more where objections are likely. Three practical rules.

Do not start the works that depend on the order until it is confirmed and has come into force. An order confirmed but not yet certified or advertised does not authorise anything.

Keep the development capable of being built in accordance with the permission while the order is pending, because a section 257 order rests on the development being authorised.

Budget for the authority's costs. Councils routinely require the applicant to pay their legal and advertising costs under an agreement before the order is made, and the figure is published by some authorities and quoted on request by others.

Objections to a diversion and the consequence

Objections come from user groups, the parish council, neighbours and occasionally the authority's own access officer. The grounds that carry weight are the ones the statute recognises: whether the diverted route is substantially less convenient to the public, and the effect of the diversion on public enjoyment of the path as a whole.

That shapes the design of the replacement route. A diversion of similar length on a similar surface with a similar outlook is defensible. One that doubles the distance, puts walkers along a road verge or squeezes the path between two fences a metre apart is not, and the inspector will say so.

Offer something. A wider route, a better surface, a kissing gate replaced with a gap, or a new link improving a wider circuit all help. Treat the users as consultees from the start rather than as an obstacle, in the same way that projects needing a second consent regime, such as a slipway or jetty on a tidal river or micro-hydropower on an existing weir, depend on engaging the other regulator early.

Definitive map records and how to check them

Before you design anything, inspect the definitive map and statement. Most authorities publish an online rights of way map, but the statement is the document that records width, limitations and conditions, and it is often only available on request or by appointment.

Three checks worth making. Whether the recorded line matches the line walked on the ground, because they diverge more often than owners expect. Whether a modification order application is pending that would add or alter a route across the site. And whether any limitation, such as a stile or a gate, is recorded, since an unrecorded gate you inherited may itself be an unlawful obstruction you are now responsible for.

If the path is not recorded but has plainly been walked for years, take advice before obstructing it. Rights can exist without appearing on the map, and the consequence of guessing wrongly is a modification order application brought against you.

Running the two processes together

A workable sequence for a single plot:

1. Check the definitive map and statement, and walk the route.
2. Design the access so that the path is crossed rather than blocked, if that is achievable.
3. If a diversion is unavoidable, design the replacement route and sound out the rights of way officer informally.
4. Submit the planning application with the path shown on the site plan, the crossing or diversion explained in the planning statement, and the access geometry dealt with in the transport statement or in the design material.
5. Apply for the vehicle crossing over the public highway verge separately under section 184 of the Highways Act 1980, since that is a highway authority matter rather than a planning one.
6. Make the order application once permission is granted, and programme the groundworks around confirmation.

The single most useful thing to do is show the right of way on your submitted site plan with its reference number. It signals to the case officer that you know it is there, and it prevents an approval that cannot be implemented. Enter your postcode on PlanScope to see which supporting documents a new access is likely to need.

This is general guidance, not legal advice. Rights of way procedure is technical, so check the position with your local planning authority's rights of way team or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.