Diverting a public footpath through a working farmyard

A footpath diversion through a farmyard is applied for under section 119 of the Highways Act 1980, to the county or unitary council acting as surveying authority, and it succeeds or fails on one question: whether the replacement route is substantially less convenient to the public. Safety, biosecurity and livestock movements explain why you want the diversion. They do not, on their own, carry the order. The route you offer does.

Start by walking the alternative with a member of the public in mind rather than a tractor.

Why a farmyard route creates a real conflict

A right of way running between a slurry store, a grain dryer and a loose housing shed is a problem for everybody using it. Telehandlers reverse without sight lines. Cattle move between buildings twice a day. Dogs off leads meet stock. In wet months the surface is the yard, which is not a surface any walker wants.

The farm side of it is equally uncomfortable. Construction and maintenance work in a yard crossed by a public path engages duties to members of the public under health and safety legislation, and the practical answer of fencing the route off is an obstruction of the highway, which is an offence.

Biosecurity is the argument most likely to be underweighted by an authority and most likely to be accepted once it is evidenced. A path passing directly through a stock yard rather than around it is a disease pathway, and a written note from the holding's veterinary surgeon carries more weight than an assertion in a covering letter.

The diversion power and the statutory tests

Section 119 lets the surveying authority make an order diverting a footpath, bridleway or restricted byway where it appears expedient in the interests of the owner, lessee or occupier of the land, or of the public.

Three tests then have to be satisfied before the order can be confirmed.

1. Expediency in the interests of the landowner or the public, which is the entry test and is usually the easiest to meet.
2. The new route must not be substantially less convenient to the public. Convenience covers length, gradient, surface, width, exposure, the number of gates or stiles and the directness of the connection at each end.
3. It must be expedient to confirm the order having regard to the effect on public enjoyment of the path as a whole, and to the effect on land served by the existing route.

The second test is where most applications fail, and it is a comparison rather than an absolute standard. A diversion adding 60 m to a path while replacing a concrete yard with a mown headland along a hedge is very likely to pass. One adding 400 m along the edge of an arable field with a stile at each end will not.

Do not confuse section 119 with section 257 of the Town and Country Planning Act 1990. That is the development-led route, available where diversion is necessary to enable development carried out under a planning permission, and it is made by the local planning authority rather than the surveying authority. A farm diversification project with permission for conversion often uses section 257, whereas an operational safety problem in an existing yard uses section 119. Where a scheme involves buildings as well as access, the diversification into workshops and offices and the path order need to be programmed together.

Who applies, and what it costs

The landowner or occupier applies to the surveying authority, which is the county council in two-tier areas and the unitary or National Park authority elsewhere. The authority decides whether to make the order. There is no right to an order, only a right to ask.

Councils publish a charging schedule for public path orders. Expect an application fee, the cost of advertising the order in a local newspaper, the cost of notices, and, where the order is opposed and goes forward, the costs of the determination process. Some authorities also require the applicant to fund the physical works and enter an agreement to do so before the order is made.

Budget the works properly. A diversion that is granted and then delivered as a muddy gap in a hedge invites complaints and can end with the authority requiring remedial work. Surface, width, drainage, waymarking and gates all belong in the cost plan.

Timescales vary widely. An unopposed order that the authority is willing to make can complete in a matter of months. An opposed one that goes to the Planning Inspectorate takes considerably longer, and a public inquiry longer still.

Consultation before the order is made

Every hour spent consulting before the application reduces the risk of an objection that cannot be withdrawn.

• The parish or town council, which is a statutory consultee on the order and a common source of objections
• The local access forum and the principal user groups, including walking and, for bridleways, riding organisations
• Any neighbouring landowner whose land the new route would cross, since their agreement is a precondition rather than a courtesy
• The authority's own rights of way officer, whose informal view on the convenience test is the single most useful piece of advance information available
• Regular users of the path, who are often local residents and whose support in writing is worth having

Take the officer's suggestions on the alignment seriously. A route amended before the order is made costs nothing. The same amendment after the order is advertised means starting again.

What happens when the order is opposed

The order is advertised in a local newspaper and by notices at each end of the affected length, with a period, normally 28 days, for representations and objections.

If no objections are received, or if all objections are withdrawn, the authority can confirm the order itself. If any objection stands, the authority cannot confirm it and must submit the order to the Secretary of State, where it is determined by an inspector from the Planning Inspectorate through written representations, a hearing or a public inquiry.

The written representations route is the usual one and the least expensive. The inspector will visit the site, walk both routes and apply the statutory tests. A well-prepared applicant provides a comparison table of the two routes and photographs of both in winter conditions rather than in July.

Objections from national user organisations are often principled rather than site-specific, and they are frequently withdrawn where the alignment is improved. Ask what would satisfy them, because the answer is usually a specific change to width, surface or furniture.

Temporary closures while works are under way

A diversion order is a permanent change. Where the need is temporary, because a building is being constructed or a yard resurfaced, the instrument is a temporary traffic regulation order under the Road Traffic Regulation Act 1984, applied for through the highway authority.

Temporary closures carry their own notice requirements and a time limit, and an alternative route normally has to be provided and signed. Where the works sit alongside a planning permission, the arrangements belong in the construction management plan rather than being handled separately, so that the authority can see access, signage and reinstatement in one place.

Closing a path without an order, or fencing it during works, is an obstruction. It also tends to convert a neutral parish council into an objector to the permanent diversion you are about to apply for.

Evidence that supports the application

Assemble the pack before writing the covering letter.

1. An order plan to a stated scale showing the existing route in one notation and the proposed route in another, with points lettered and widths given.
2. A statement of the case against each of the three statutory tests, addressing convenience directly rather than in general terms.
3. A route comparison table: length, surface, width, gradient, gates and stiles, exposure, connections at each end.
4. Photographs of both routes, taken in winter as well as summer.
5. Evidence of the operational problem, including the yard layout, vehicle movements, stock movements and any veterinary or safety advice.
6. Written confirmation from any other landowner affected.
7. A specification and a costed undertaking for the physical works, with a proposed maintenance regime.
8. A record of the pre-application consultation and any support received.

Where the diversion accompanies a development proposal, the case for it also belongs in the planning statement, because an officer assessing the buildings will want to know that the access question has an answer rather than a hope.

To see which supporting documents a farm project is likely to need, enter the postcode on PlanScope and work from the report list it produces.

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.