Diverting a public footpath to allow a scheme

If a public footpath crosses your site, the planning permission does not move it. You need a separate public path order, and on most schemes that is section 257 of the Town and Country Planning Act 1990: an order made by the local planning authority to stop up or divert 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.

Treat it as a parallel programme, not a post-permission formality. An unopposed order can be confirmed by the council in a few months. An opposed one goes to the Secretary of State and is determined through the Planning Inspectorate, and that adds the better part of a year.

Which power applies to a path affected by development

Three routes get confused, and using the wrong one wastes months.

Section 257 is the development route. The order can only be made where it is necessary to enable the permitted development, so the permission generally needs to be in place, or at least the application determined, before the order is made. Some authorities will progress a draft order in parallel and confirm it after permission, which is worth asking about at pre-application stage.

Section 258 covers extinguishment of rights over land acquired or appropriated for planning purposes, which is relevant on council-led and regeneration sites rather than private development.

Note that a path shown on the definitive map is only part of the picture. Unrecorded rights may exist, and an application to add a route to the definitive map can be made by anyone at any time, which is why a search of the definitive map and statement plus the authority's register of outstanding applications belongs in site due diligence rather than in the planning submission.

Who decides and how long it takes

The local planning authority makes the order and advertises it. If no objection is received within the objection period, the authority can confirm the order itself. If an objection is made and not withdrawn, the authority must refer the order to the Secretary of State, and a Planning Inspectorate case officer will decide whether it is determined by written representations, a hearing or a public inquiry.

A realistic programme for a site with one footpath to divert:

1. Pre-application discussion with the authority's rights of way team and the planning case officer, before the layout is fixed.
2. Planning application submitted, with the diversion shown on the layout and explained in the Planning Statement.
3. Permission granted, usually with a condition preventing obstruction of the path until the order is confirmed and the replacement route is available.
4. Draft order prepared and advertised, with site notices at each end of the affected length, newspaper publication and notice to prescribed bodies and statutory undertakers.
5. Objection period of at least 28 days.
6. Confirmation by the authority if unopposed, or referral to the Secretary of State if not.
7. Certificate of works or confirmation that the new route is open, and the definitive map modified.

Allow four to eight months unopposed. Allow twelve to eighteen if the order is opposed and goes to an inquiry. Build that into the cash flow rather than the optimism.

Evidence of necessity

The section 257 test is necessity, and necessity is judged against the permission as granted. That gives a neat practical consequence: the more clearly the approved layout depends on the path being moved, the easier the order is to justify.

What a decision maker looks for:

• the approved drawings showing built form, levels or infrastructure across the existing line of the path
• an explanation of why the development cannot reasonably be built around the path, dealing with the obvious alternatives
• the proposed replacement route drawn with widths, surface, gradients and boundary treatment
• a comparison of the old and new routes for length, convenience, directness, safety and amenity
• confirmation that the new route is deliverable on land within the applicant's control

Where the path runs along a desire line between a residential area and a school, a shop or a station, the public interest arguments carry real weight and a longer diversion will be resisted. Where the path crosses the middle of a field with no particular destination, objections tend to be about principle rather than inconvenience.

Objections and determination by the inspectorate

Objections come from a predictable set of parties: local residents, the parish or town council, and the national amenity bodies that must be notified, including the Ramblers and the Open Spaces Society.

The arguments that succeed are specific. A replacement route that is longer, narrower, enclosed between fences, unlit, routed behind rear gardens or up a steeper gradient attracts a credible objection about safety and usability. One that is a similar length, surfaced, overlooked by frontages and integrated into the street network usually does not.

Two tactical points. First, engage the amenity bodies before the order is advertised, because an objection withdrawn is an inquiry avoided. Second, if an inquiry becomes likely, the evidence you prepared at application stage is what you will be defending, so get the replacement route right the first time rather than offering improvements under pressure.

Temporary closures during construction

A diversion order deals with the permanent position. Building work next to a path that remains open needs a temporary closure, which is a separate instrument obtained from the highway authority under the Road Traffic Regulation Act 1984 where works are being executed on or near the highway.

Temporary closures have limits on duration and usually require a signed alternative route. Practical points that save arguments on site:

• apply early, because notice periods and advertising requirements apply
• provide a signed temporary route that is actually walkable, not a notice saying the path is closed
• keep the temporary route separated from construction traffic, and show it on the Construction Traffic Management Plan
• renew before expiry, since an expired closure means an obstructed highway

Building without the order

Obstructing a public right of way is an offence. Section 137 of the Highways Act 1980 covers wilful obstruction of the free passage along a highway, and a footpath is a highway for these purposes.

A planning permission is not a defence. It authorises development; it does not authorise interference with public rights. Highway authorities can and do require obstructions to be removed, and individuals can pursue remedies of their own. On a part-built site that means a stop to the works at the worst possible moment, and the order process still has to be completed afterwards from a weaker negotiating position.

Houses have been sold with a public footpath running through the garden because somebody assumed the order had been dealt with. That is a conveyancing problem, a construction problem and a reputational problem at the same time.

Replacement route quality

The replacement route is where the whole application is won or lost, and it is worth designing properly rather than fitting it into the leftover land.

Treat it as a street rather than leftover land. A 2 metre minimum surfaced width for a footpath, with 3 metres or more where cycling is likely, frontages or open boundaries rather than close-boarded fences on both sides, gradients that a pushchair can manage, and lighting where the route will be used after dark. Where the route passes through the development, align it with the street pattern so it is overlooked. Where it runs along an edge, keep a landscaped margin rather than a narrow corridor.

If the scheme is large enough to need a Transport Assessment, the diverted route belongs in it, alongside the walking and cycling network analysis. Where highway works are also required, the route and the works are usually delivered together, and the agreement that follows the permission is the same mechanism described in section 278 agreements and how they follow a permission.

Record the final route on a plan drawn to the standard the authority needs for modifying the definitive map, with the old line and the new line both shown and widths annotated. That drawing outlives everyone involved in the project.

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

PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval. This is general guidance, not legal advice; rights of way procedures should be confirmed with the local authority and a qualified professional before you rely on them.