Checking public rights of way before fixing a layout

A public right of way check development teams do properly at the start costs an afternoon. Done late, it costs a redesign, because a footpath crossing the site cannot be built over, fenced off or informally moved. The legal route to change it is an order under separate legislation, it runs on its own timetable, and objections send it to the Planning Inspectorate.

The definitive map is the starting point and the only authoritative record. Everything else, including the council's online mapping, is a convenience copy.

The definitive map and statement and where they live

Every surveying authority, normally the county or unitary council, keeps a definitive map and a definitive statement under Part III of the Wildlife and Countryside Act 1981. The map shows the routes. The statement describes them, sometimes with widths, limitations and conditions that the map cannot express.

The map is conclusive evidence that the rights shown exist, at least to the extent shown, at the relevant date. It is not conclusive that rights not shown do not exist, which is the source of most unpleasant surprises.

Four categories appear on it: public footpath, bridleway, restricted byway and byway open to all traffic. Each carries different rights, and a bridleway crossing a proposed access road is a different design problem from a footpath.

Most authorities publish an interactive map online. Read the disclaimer on it, because almost all of them state that the online version is not the definitive map. For a site you are buying or designing, ask the authority for a formal search of the definitive map and statement, and read the statement rather than only the map.

Reading a route against the site boundary

Print the definitive map extract at the same scale as your site plan and overlay them properly rather than by eye.

Three things to establish. Where the route runs relative to your red line, whether the recorded width is stated in the statement or has to be inferred, and whether the route on the ground matches the route on the map. Historic paths frequently sit somewhere other than their recorded line, and the recorded line is the one with legal force.

Then look at the connections. A path that enters your site and stops at the boundary of a neighbouring field may continue as an unrecorded route, and the parish council will know.

Unrecorded routes and claimed rights

Two mechanisms create rights that the map does not yet show.

Historic rights that were never recorded can be added by a definitive map modification order, made by the authority on evidence of past use or documentary sources. Anyone can apply. The statutory framework around a cut-off date for recording pre-1949 rights has changed more than once, so verify the current position rather than relying on a date you remember.

Presumed dedication is the second. Where a way has been used by the public as of right and without interruption for twenty years, section 31 of the Highways Act 1980 raises a presumption that it has been dedicated as a highway. That is why landowners erect signs and close paths for a day each year.

Check the authority's register of modification order applications before you buy. A pending application over your site is a material risk, and it does not appear on the definitive map at all.

Diversion and stopping up procedures

Once you know a route is there, there are three routes forward, and only one of them is quick.

The section 257 route exists precisely for development. The authority must be satisfied that the order is necessary to enable development to be carried out in accordance with a planning permission. In practice most authorities will make the order only once permission is granted, or will make it and then not confirm it until permission exists.

An order is advertised, served on prescribed bodies including the user groups, and open to objection. If nobody objects, the authority can confirm it itself. If anyone does object and does not withdraw, the order goes to the Secretary of State and is dealt with by the Planning Inspectorate through written representations, a hearing or an inquiry.

Timescales and objections

Unopposed orders take months. Opposed orders take a good deal longer, because the Inspectorate's process runs to its own queue.

Who objects is predictable: national and local user groups for walkers, riders and cyclists, the parish council, and neighbours who use the path. The objections that succeed are usually about the substitute route being longer, less attractive, less safe or less usable, rather than about the principle.

So design the replacement route as though it were the point of the application. Comparable or better surface, comparable or better width, decent gradients, no long enclosed sections between fences, a sensible connection at each end and no new road crossings if you can avoid them.

And do not obstruct the existing route while any of this is going on. Obstructing a highway is an offence, and building over a path before the order is confirmed is the fastest way to lose the authority's cooperation.

Designing around a route instead

For a great many sites this is the right answer, and it usually improves the scheme.

Bring the path into the public space of the scheme rather than pushing it to a boundary. A route running along a green corridor with dwellings fronting it has natural surveillance. The same route running between two 1.8 metre close-boarded fences becomes a place people avoid after dark, and the council's urban design officer will say so.

Keep the recorded width available, allow for the connection points, and avoid making the route a service or bin collection strip. Where the path crosses an estate road, treat the crossing as a designed feature with visibility in both directions.

An illustrative example: a 70-unit scheme had a footpath entering at the north-east corner and running diagonally across the site. The first layout stopped the path at the site edge and proposed a diversion around the perimeter, which drew objections from three user groups. The revised layout kept the diagonal as a landscaped route through the central open space, with houses fronting it, and needed no order at all. This example is illustrative rather than a real case.

What the authority expects in the application

Show the route on the site plan, labelled with its official number and parish. Say in the planning statement whether it is affected, and how.

Where the route is unaffected, describe how it will be protected during construction: fencing, signage and a temporary closure under road traffic legislation where one is really needed and has been applied for.

Where a diversion is proposed, submit the proposed line, the surface and width specification, and a short comparison of the existing and proposed routes on convenience, safety and amenity. That comparison is what the order will be judged on.

Run the rights of way check alongside the rest of the desk work. Using MAGIC to check designations around a site covers the environmental datasets, finding the Green Belt boundary for a site covers the policy boundary, and checking whether a site is on a brownfield land register covers allocations.

You can browse the 66 PlanScope report types by category to see which supporting documents the rest of the application will need.

This is general guidance, not legal advice. Check the position with the surveying 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.