Applications affecting a public right of way

Planning permission does not give anyone the right to block a public footpath. The two consents are separate, and obstructing a highway, which includes a public right of way, is an offence under section 137 of the Highways Act 1980. Development affecting a public footpath therefore needs a diversion or stopping up order alongside the permission, and the order has its own procedure, its own timescale and its own grounds of objection.

Developers discover this at the worst possible moment, which is usually when the contractor is on site and someone with a dog is standing in the middle of the plot.

Why a permission does not authorise obstruction

The definitive map and statement, kept by the surveying authority under Part III of the Wildlife and Countryside Act 1981, is conclusive evidence of the existence of a right of way and of its status and, in some respects, its width.

A grant of planning permission does not extinguish, divert or suspend anything recorded on it. The permission says the development may be carried out. The right of way says the public may pass along a defined line. Where the two conflict, both remain true until an order deals with the conflict.

Practically that means three checks before the design is fixed. Obtain an extract from the definitive map for the site and a copy of the definitive statement. Walk the route on the ground, because the definitive line and the walked line are often different. And check for unrecorded routes: the absence of a line on the map is not proof that no right exists.

Publicity requirements for affected routes

Where an application would affect a public right of way, the authority must publicise it accordingly, and the way it does so differs from ordinary neighbour notification.

Expect notices on site at each end of the affected section, an entry in the local newspaper, and consultation with the highway authority, the parish or town council and the local access forum. National user organisations are usually notified too, and they respond.

That publicity happens on the planning application, and it is separate from the publicity on any subsequent order. You will consult the same interests twice, on two different documents, with two different objection windows. Plan for it.

Rights of way objections tend to be well organised and well informed about procedure. They are also frequently constructive: a group that objects to a route squeezed between two fences will often accept a route across open space instead.

Diversion and stopping up orders

Three routes exist and choosing the right one matters.

Section 257 of the Town and Country Planning Act 1990 lets the local planning authority make an order stopping up or diverting a footpath, bridleway or restricted byway where it is necessary to do so to enable development to be carried out in accordance with a planning permission. This is the usual route for development.

Section 247 of the same Act covers stopping up or diversion of a highway more generally, including vehicular roads, by order of the Secretary of State, again to enable development. It is slower and used where a road is involved.

Sections 118 and 119 of the Highways Act 1980 are the highway authority's own extinguishment and diversion powers. The tests are different, being about the interests of the public or of the landowner rather than about enabling development, and the route is sometimes preferred where the development link is weak.

Section 253 of the 1990 Act is worth knowing: it allows an order under section 247 to be published in anticipation of planning permission, so the procedure can start before the permission is issued, though the order cannot take effect until permission is granted.

Timescales for an order and objections

An order is drafted, published, and served on the prescribed bodies, with notices posted at each end of the route. The objection period is normally 28 days.

If no objection is made, or objections are withdrawn, the authority can confirm the order itself. That path, start to finish, commonly runs to somewhere between four and eight months once drafting, publication and confirmation are counted, though it varies with the authority's workload.

If an objection is made and maintained, the order must be referred to the Secretary of State, and the Planning Inspectorate deals with it by written representations, a hearing or an inquiry. Add a year, sometimes more.

The programme consequence is straightforward and frequently ignored. Start the order process at the same time as the planning application, not after the decision notice arrives. On a site where the footpath crosses the middle of the developable area, the order is on the critical path and the permission is not.

Sequencing the order against the permission

The order authorises the change. It does not build the replacement route.

Good practice, and often a requirement of the order itself, is that the order does not come into effect until the new route is available for public use. Where the replacement is to be constructed as part of the development, that creates a sequencing problem: you cannot build the new route until you are on site, and you should not obstruct the old one before the new one exists.

Three ways through it. Build the replacement route first, as an enabling work, where the land allows. Phase the development so the affected section is the last part built. Or use a temporary route, formally agreed with the highway authority, while the permanent one is constructed.

Record the sequence in the construction management plan and on the phasing drawing, so the authority can see it has been thought about. A construction management plan that shows the route, the temporary diversion and the signage arrangements answers most of the objections before they are made.

Temporary closures during construction

A temporary closure for construction works is a separate consent again, obtained from the highway authority, normally under section 14 of the Road Traffic Regulation Act 1984.

Applications take time, typically several weeks, and authorities charge for them. Closures are granted for a defined period and can usually be extended, but not indefinitely and not retrospectively.

Two points of practice. Apply early, because the lead time is longer than most programmes assume. And provide a signed alternative route rather than simply closing the path, because a closure with no diversion attracts complaints to the authority and can lead to the notice being revoked.

Fencing and hoarding a right of way without a closure order is an obstruction, whatever the site rules say about health and safety. The safety argument is a reason to apply for the closure, not a substitute for it.

Evidence to submit with the application

The application should let the case officer see the whole picture without asking:

1. A plan showing the definitive line, the proposed line and the extent of the development, at a readable scale with the path reference numbers on it.
2. A statement of why the diversion or stopping up is necessary to enable the development, which is the statutory test under section 257.
3. Details of the replacement route: length, width between boundaries, surface, gradients, drainage, lighting where relevant, and any gates, steps or structures.
4. A comparison of convenience for users: distance, gradient, surface quality and the quality of the experience along the route.
5. Confirmation of who will maintain the new route and under what arrangement.
6. Any correspondence already held with the highway authority or rights of way team.

Item four is the one that decides contested cases. A replacement route that is longer, narrower and enclosed between close-boarded fences will be resisted, and the objection will be that convenience has been reduced. A route of similar length running through open space, with a decent surface, usually goes through.

Set the whole position out in the planning statement rather than leaving it to the transport chapter, and put the order timetable in it too. The resulting decision notice and the associated documents then appear on the statutory planning register, where anyone can check them.

Enter your postcode on PlanScope to see which reports a site crossed by a public right of way is likely to need.

This is general guidance, not legal advice. Check the position with your local planning authority 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.