Diverting a public right of way and what the order costs

A public footpath running through your site does not stop the development, but it does add an order, a programme risk and a bill that most appraisals miss. The cost of a right of way diversion order is rarely a single fee. It is the council's legal and officer time, advertising, the cost of building the new route to an acceptable standard, possible compensation, and, if anyone objects, the cost of defending the order before an inspector. Treat it as a workstream with its own timetable rather than a form to send in.

The power to divert a path for development

Where the diversion is needed to allow development to go ahead, the relevant power is section 257 of the Town and Country Planning Act 1990. The local planning authority may make a public path order diverting or stopping up a footpath, bridleway or restricted byway where it is necessary to enable development to be carried out in accordance with a planning permission.

Two consequences follow from that wording. The order is tied to a permission, so the planning application comes first or runs alongside. And the test is necessity in relation to that development, which means the order has to be justified by what the permission actually authorises, not by what would be convenient.

Where a diversion has nothing to do with development, the route is different: sections 118 and 119 of the Highways Act 1980 deal with extinguishment and diversion in the ordinary course, with their own tests. Stopping up a road rather than a path to enable development engages section 247 of the 1990 Act and an order made centrally, which is a longer process again.

Who makes the order and when

The order-making authority is the council, acting on its own initiative or, far more commonly, on a developer's request. You are not the applicant in any formal sense, which matters: the council decides whether to make the order at all, and it carries the duty to protect public rights while doing so.

Expect to be asked for a legal agreement first. Under it you pay the authority's costs, provide the plans, fund the new route and indemnify the council. Councils publish their charges for path orders and they vary widely, so ask for the current schedule and the basis of charging rather than working from a figure someone quoted years ago.

The order itself must describe the existing route and the proposed route precisely, with width, surface and any limitations, because what it records becomes the definitive position on the map and statement.

Advertising, objections and the risk of an inquiry

Once made, the order is advertised in a local newspaper and by notices on site at each end of the affected length, and served on the prescribed bodies: the national amenity and user organisations, the parish or town council, statutory undertakers and affected landowners. There is a period, normally 28 days, in which objections and representations may be made.

What happens next depends entirely on whether anyone objects.

User groups object as a matter of course where a diversion lengthens a route, worsens the surface, moves a path from a field edge to a position between fences, or removes a view. Those are the features to design out before the order is advertised, because an objection withdrawn is worth more than an objection defeated.

The cost difference between an unopposed order and one determined after an inquiry is substantial, and it falls on the developer under the agreement. The procedural choices mirror those in planning appeals, where the same cost gradient applies, as set out in our note on appeal route costs from written representations to inquiry.

What the developer is expected to pay for

Build the budget in six parts.

• The council's charge for making and processing the order, including officer time, legal work, advertising and site notices.
• The cost of determination where the order is opposed, including the authority's costs of preparing a statement of case and attending any hearing or inquiry, and your own advisers.
• Construction of the new route: formation, surfacing to the standard the authority specifies, drainage, gates or kissing gates, bridges or culverts where needed, fencing and waymarking.
• Compensation claims from those whose land or interests are affected by the order, which the agreement will normally pass to you.
• Ongoing obligations where the authority requires the new surface to be maintained for a period before adoption of maintenance responsibility settles.
• Temporary closure costs during construction, which are separate from the order itself.

Surface standard is the item most often underpriced. A path diverted onto a new alignment within a housing estate may need to be lit, drained and built to a specification closer to a footway than a field path, and the authority is entitled to ask for that where the character of the route has changed. The division of responsibility between a path order, a highway works agreement and an adoption agreement is covered in our piece on section 278 and section 38 highway costs.

Timescales and the effect on a start on site

The order cannot take effect until it is confirmed, and in most cases the new route has to be built and certified before the old one closes. Until that happens the existing path stays open and must not be obstructed, which is both a legal duty on the authority to protect and an offence on the part of anyone who wilfully obstructs a highway.

That single point wrecks more programmes than the order process itself. A site where the path crosses the middle of the first construction phase needs either the order confirmed and the new route built before work starts, or a temporary closure, or a revised phasing plan.

Ask the council for its own published indicative timescale and treat it as the optimistic case. Then ask when the committee or delegated decision to make the order would be taken, because that step alone can sit in a queue.

Temporary closures during construction

A temporary closure is a different instrument, usually a temporary traffic regulation order under the Road Traffic Regulation Act 1984, obtained from the highway authority on grounds of danger to the public or works in the highway. It buys time rather than a permanent solution.

Three limits to plan around. The duration is restricted, commonly to six months for a footpath with any extension needing the Secretary of State's consent. An alternative route normally has to be signed and available. And the application has its own lead time and fee, published by the highway authority.

Where a long construction programme crosses a path, a sequence of temporary closures is not a substitute for a diversion order, and authorities notice when it is being used that way.

Sequencing the order with the permission

The order that works is the one designed into the scheme rather than bolted on.

1. Identify every recorded route across the site from the definitive map and statement, not from the Ordnance Survey base, and check the recorded width and status.
2. Design the layout so routes stay on or close to their existing alignment through open space wherever possible, which removes the objection before it is made.
3. Where diversion is unavoidable, agree the proposed alignment, width and surface with the rights of way officer informally before the planning application is submitted.
4. Submit the application showing the diversion, with the path shown on the layout rather than only in text.
5. Enter the agreement and ask the council to make the order once permission is granted.
6. Programme construction of the new route ahead of any works that would obstruct the old one.
7. Keep the order and the certification correspondence with the title documents, because a plot buyer's solicitor will ask.

Early engagement with the rights of way team costs nothing and changes outcomes more than anything else on this list. They will tell you which features draw objections in their area.

To see which supporting documents a scheme crossed by a path needs, browse the report types by category, and the costs of the drafting work itself are set out on the pricing page. For the wider question of what authority-side processes cost a developer, our note on planning performance agreements covers the same ground.

This is general guidance, not legal advice. Path order procedure and charges differ between authorities, so check the position with your local planning authority and its rights of way team, and take advice from a qualified professional, before relying on it.