Public rights of way across a development site

A public right of way across a development site is a highway, and a planning permission does not touch it. That single point costs developers more programme than almost any other overlooked consent. The permission says you may build. The footpath says the public may walk where your foundations are going. Reconciling the two takes a separate order, made by a different part of the council, on a timetable that has nothing to do with the eight or thirteen week determination period.

Start it early. On sites where a path crosses the developable area, the order timetable, not the planning application, is what sets the start on site.

Finding what is recorded

The definitive map and statement is the legal record of public rights of way, maintained by the surveying authority under the Wildlife and Countryside Act 1981. It records four categories: public footpath, which is on foot only. Bridleway, which adds horses and pedal cycles. Restricted byway, which adds non-mechanically propelled vehicles. And byway open to all traffic.

The map is conclusive evidence of the rights it shows. It is not an exhaustive record, so the absence of a line does not prove there is no right.

Ask for the statement as well as the map. The statement carries the description, any recorded width and any limitations such as gates or stiles, and it is frequently the document that decides an argument about whether a route is two metres wide or six.

Then walk the site with the map. Look for gates, stiles, waymarks, worn desire lines, and the point where the route enters and leaves. Photograph what you find. A path shown on the map that has been physically obstructed for twenty years still exists in law, and so does a well-trodden route that appears nowhere on the map.

Two further searches are worth the fee. Any pending definitive map modification orders, because a claim in progress will surface at the worst moment. And any deposits made under the Highways Act 1980 by previous owners, which help establish whether unrecorded rights could have arisen.

Why permission is not enough

A public right of way is a highway, and it is an offence to obstruct free passage along a highway without lawful authority. The highway authority can require the obstruction to be removed and can prosecute.

Planning permission is not lawful authority for that purpose. Nor is a condition, nor a section 106 obligation, nor an approved layout showing the path in a different position. Only an order made under the relevant statute moves or extinguishes a public right of way.

Developers get caught because the two processes sit in different places. The planning officer approves a layout with the path realigned through the new open space. Nobody makes the order. The contractor fences the site and a local walking group reports it.

The section 257 route

Section 257 of the Town and Country Planning Act 1990 is the development route. A local planning authority may make an order stopping up or diverting a footpath, bridleway or restricted byway where it is satisfied that this is necessary to enable development to be carried out in accordance with a planning permission.

The sequence in practice is:

1. Approach the council's rights of way team early, before the layout is fixed, and discuss what would be acceptable.
2. Submit a request with a plan showing the existing route, the proposed route and the land ownership, together with the planning permission or application reference.
3. The council drafts and makes the order, consults the prescribed bodies including the local highway authority, the parish council and the national user organisations, advertises it in a local newspaper and posts notices on site.
4. Objections may be made within the advertised period, commonly 28 days.
5. If unopposed, the council can confirm the order itself. If opposed and the objection is maintained, the order is referred to the Secretary of State and determined by the Planning Inspectorate.
6. The order takes effect on confirmation and the definitive map is amended.

Costs are usually recovered from the developer under an agreement with the council, covering officer time, advertisements, notices and any inquiry.

The test is necessity to enable the development. That is a real hurdle where the path could be retained with a modest layout change, and inspectors have refused orders where the diversion was for convenience rather than necessity.

The Highways Act alternative

Sections 118 and 119 of the Highways Act 1980 provide the general routes for extinguishment and diversion, outside the development context. Section 119 diversion can be made in the interests of the owner, lessee or occupier of the land, or of the public.

It is sometimes the better route where there is no planning permission yet, or where the diversion improves the route for users and can be justified on its own merits. The tests are different: a section 119 order requires the new route not to be substantially less convenient to the public, and requires the council to consider the effect on public enjoyment of the path as a whole.

Whichever route is used, one principle applies throughout. A diversion that offers a worse route than the one it replaces attracts objections and fails. A diversion offering a wider, better surfaced, better connected route away from vehicle movements is confirmed.

Costs, timing and who carries the risk

Order costs are modest against a development budget. The programme risk is not.

Build the order into the appraisal at the point the site is acquired. An unopposed order takes months. An opposed one referred to the Planning Inspectorate can take a year or more, and there is no guarantee at the end of it, because the inspector applies the statutory test rather than weighing the commercial consequence of refusal.

Two ways to reduce the risk. Engage the user organisations before the order is drafted, since an objection withdrawn at draft stage never becomes a referral, and the national organisations are consistent about what they will and will not accept. And avoid making the permission dependent on the diversion: a layout that works with the path in its existing position, with the diversion as an improvement rather than a necessity, is a scheme that can start on site while the order runs.

Designing around a retained route

The cheapest answer is usually to keep the path where it is and design the scheme around it.

Do not route it between two close-boarded fences. An enclosed alleyway with no overlooking is a crime and antisocial behaviour problem, and the council's designing out crime officer will say so.

Do not run it through a car park or across a service yard. Do give it frontage, so that houses look onto it, and surface it to a standard that works in winter.

Where a path crosses the scheme, treat it as an asset and set out how it connects to the wider network in a Green Infrastructure Plan. Describe the pedestrian connections and the effect on route users in the Transport Statement, because the highway officer will look for it. And deal with construction phase management, including any temporary closure and the alternative route, in the Construction Management Plan.

Temporary closures during works are granted by the highway authority under the road traffic legislation, for a limited period, and usually on condition that an alternative route is signed and maintained. Apply in good time and expect the authority to ask why the works cannot be phased to keep the route open.

If you want to see which documents a constrained site is likely to need, the report types by category is a quick way to check, or check a site by postcode.

This is general guidance rather than legal advice. Check the position with your local planning authority or a qualified professional before relying on it.

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