Public rights of way across a development site

A planning permission does not authorise you to block, fence or build over a public right of way. The two regimes run in parallel, and a scheme can hold a valid permission and still be unlawful the day the fence goes up. Anyone planning development on land crossed by a footpath, bridleway, restricted byway or byway open to all traffic needs the diversion or stopping up order running alongside the application, not after it.

Start with the definitive map and statement held by the surveying authority, which is the county council or the unitary authority. Under Part III of the Wildlife and Countryside Act 1981 that authority must keep the map under continuous review, and section 56 makes the map conclusive evidence of the rights it shows. Conclusive as to what is on it. Not exhaustive, which is the trap.

What the definitive map does and does not settle

The map shows four categories of public right: footpath, bridleway, restricted byway and byway open to all traffic. Each carries different rights, and the statement that accompanies the map records limitations such as gates, stiles and recorded widths.

Where a route appears on the map, it exists as a public highway with at least the rights shown. Where a route does not appear, it may still be a public right of way established by long use or by express dedication, and a definitive map modification order can be applied for at any time by anyone. An unrecorded path used by villagers for thirty years is a live risk to a layout, and it will surface during consultation rather than before it.

So check the map, then check the ground. Worn desire lines, stiles, waymarker discs, a gate with a spring closer, a gap in a hedge that everyone uses. All of these are evidence that somebody may claim a right, and finding them at option stage costs a fraction of finding them at consultation. Our guide to reading the definitive map covers the search itself in more detail.

Identifying paths crossing or adjoining a site

Ask the rights of way team for a plain copy of the definitive map extract and the relevant pages of the statement, and ask separately whether any definitive map modification order applications are registered against the land. Authorities keep a register of those applications under section 53B of the 1981 Act, and a pending application will not appear on the map itself.

Then check three further sources. The local plan proposals map sometimes shows promoted routes. The land registry title may record rights that are private rather than public, which matters because a private right of way over the same strip needs a separate legal solution. And the parish council usually knows the route history better than anyone in the district office.

Record what you find on a dedicated rights of way plan, at the same scale as the site layout, showing the legal line of the route, the walked line where it differs, and the boundary features that define it. The legal line and the walked line diverge more often than people expect.

Why a permission does not authorise obstruction

Obstructing a public highway without lawful authority is an offence under section 137 of the Highways Act 1980, and the highway authority has a duty under section 130 of the same Act to assert and protect the rights of the public to use and enjoy the highway. Neither duty is switched off by a grant of planning permission.

The practical consequence for a developer is that the route must remain open and usable until a diversion or stopping up order has been made and confirmed, and a temporary closure has to be obtained separately for the construction period. Councils are increasingly willing to prosecute or serve notice where a contractor has fenced a path off without authority, and the reputational cost with the parish council is worse than the fine.

Case officers routinely attach a condition or an informative reminding the applicant of this. Read it. An informative is not permission.

Diversion and stopping up procedures

Three routes matter for development sites.

1. Section 257 of the Town and Country Planning Act 1990: the local planning authority makes an order to stop up or divert a footpath, bridleway or restricted byway to enable development authorised by planning permission to be carried out. This is the usual development route, and most authorities will not make the order until permission is in place.
2. Sections 118 and 119 of the Highways Act 1980: the council makes a public path extinguishment or diversion order on grounds unconnected with a specific permission, for example where a diversion is in the interests of the landowner and does not materially inconvenience the public.
3. Section 247 of the 1990 Act: used where the highway to be stopped up is a road rather than a path, decided by the Secretary of State.

The order is drafted, advertised on site and in a local newspaper, and served on the prescribed bodies including the Ramblers, the British Horse Society for equestrian routes, statutory undertakers and adjoining owners. Objections can be made within 28 days. An unopposed order can be confirmed by the council itself. An opposed order goes to the Secretary of State and is decided by written representations, a hearing or an inquiry.

Timescales and objection risk

The order process is where rural schemes lose their programme. Drafting, legal checks, advertisement, the objection period, negotiation with objectors, and where objections stand, referral to the Planning Inspectorate. Each stage has its own queue, and the queues differ by authority.

Build the order into the programme from the outset and ask the rights of way officer at pre-application stage what their current lead time looks like. Ask also whether the authority charges for the order. Most do, on a published scale covering officer time, advertising and legal costs, and the applicant usually pays.

Objections cluster around three things: a longer route, a less pleasant route, and a route enclosed between fences rather than crossing open ground. Design those objections out and the order is far more likely to go through unopposed, which is the single biggest saving available.

Designing around an existing route

The order you do not need is the one that costs nothing. Where a path crosses the edge of a site, pulling the development line back and treating the route as a green corridor usually costs less than a diversion and reads better in the planning balance.

Where a diversion is unavoidable, the test the council applies looks at whether the new route is substantially as convenient to the public. Keep the length similar, keep it on a reasonable gradient and surface, avoid enclosing it in a narrow fenced alley between rear gardens, and connect it to the same points on the wider network. Agree width, surfacing and boundary treatment with the rights of way officer in writing before the layout is fixed.

The route is also an amenity and ecology asset. Hedgerow retention along a path feeds the biodiversity baseline, which is easier to build if you have already looked at habitat inventory data, and a path that passes a listed farmstead will feature in the setting assessment within a Heritage Statement.

Evidence to submit with the application

Submit the rights of way plan, a short statement setting out the status of each route and what is proposed, and confirmation of any order application already made. Where a temporary closure is needed for construction, say so and cross-refer to the construction traffic arrangements.

Illustrative example. A farmer proposes four barn conversions served by an existing yard, with a recorded footpath running through the yard and out along a field edge. The layout is redrawn to move the parking court south, leaving the recorded line untouched and adding a surfaced margin and a kissing gate. No order is needed, the parish council supports the scheme, and the highway consultation returns no objection. The example is illustrative and each authority weighs the facts its own way.

Where a site sits close to the strategic road network as well, the separate checks in our note on the strategic road network apply on top of this.

Enter your postcode on PlanScope to see which reports a site with a recorded route is likely to need. This is general guidance rather than 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.