Public rights of way affected by development

A public right of way diversion is a separate legal process from the planning permission, and it runs on its own timetable. Planning permission does not authorise you to obstruct a footpath. Building across a recorded route without an order in place is an obstruction of the highway, and the fact that a council granted permission for the building is no defence.

That catches developers regularly, because the order process is often left until the contractor is mobilising. Start it early and it is a manageable piece of work. Start it late and it becomes the critical path item nobody costed.

Finding the routes that affect the site

Three checks, all of which should happen at acquisition rather than at planning.

First, the definitive map and statement held by the surveying authority, which is the county council or the unitary authority. This records public footpaths, bridleways, restricted byways and byways open to all traffic, each with a numbered reference tied to a parish.

Second, the authority's register of pending applications to modify the map. A route not yet recorded but subject to a live application is a real risk, and it will not show on a standard search.

Third, evidence on the ground. Worn paths, stiles, gates, waymarkers and gaps in hedgerows suggest use, and use over a long period can create rights whether or not anything is recorded.

Order the definitive map extract formally rather than relying on an online viewer. Authorities charge a modest fee and the formal extract is the document you will need later.

The definitive map and what it proves

The map is conclusive evidence that the rights it shows exist. It is not conclusive that no other rights exist.

That asymmetry is the whole problem. A site can be clear on the definitive map and still be crossed by a public right of way established through long use and never recorded. The Highways Act 1980 provides for a way to be deemed dedicated where it has been used by the public as of right and without interruption for 20 years, and the question of what interrupts that period is heavily litigated.

Modification of the map is dealt with through applications to the surveying authority, which can add, delete or reclassify a route on the evidence. Those applications take years and can be made by anyone, including a neighbour who objects to your scheme.

There is also a long running question about a cut off date for recording historic rights of way, which has been legislated for, deferred and revisited more than once. Check the current position rather than relying on a figure you remember, because it has moved.

Where a route is unrecorded but claimed, the practical options are to design around it, to negotiate a recorded route in an agreed position, or to resist the claim on the evidence. The third is slow and uncertain.

Diversion under planning legislation

Where a footpath, bridleway or restricted byway crosses a site and has to move to allow development, the usual route is an order under section 257 of the Town and Country Planning Act 1990. The local planning authority may authorise the stopping up or diversion of such a route to enable development authorised by a planning permission.

Two features of that power matter.

It is tied to the permission. The order enables the development that has been permitted, so the permission generally has to be in place or the application under consideration, depending on the authority's practice. Making the order first is not available.

And it is discretionary. The authority has to be satisfied it is necessary to enable the development, and it will consider the effect on users. A diversion that adds a long detour, loses a view, substitutes a surfaced path beside a road for a field route, or funnels walkers between garden fences will attract objections and may not be confirmed.

Highways legislation offers a parallel route through sections 118 and 119 of the Highways Act 1980, used where the reason is not development. The tests are different and a highway authority will usually direct you to the planning route where development is the driver.

For vehicular highways rather than paths, section 247 of the 1990 Act is the equivalent power and is made by the Secretary of State, which adds time.

Stopping up and the order process

The mechanics are similar for diversion and stopping up.

1. Pre order discussion with the rights of way officer, agreeing the proposed line, width, surface and any structures.
2. The authority drafts and makes the order, with a plan defining the existing and proposed routes.
3. Publication: notice in a local newspaper, notices on site at each end of the affected route, and service on prescribed bodies including the parish council and the national user organisations.
4. An objection period of at least 28 days.
5. If unopposed, the authority may confirm the order itself.
6. If opposed and the objections are not withdrawn, the order is referred to the Secretary of State and determined by an inspector through written representations, a hearing or an inquiry.
7. Certification that the works are complete and the new route is available, before the old route is extinguished.

Step seven is the one people forget. Most orders are drafted so the old route stays open until the new one is built to the specified standard, which means the construction sequence has to allow for it.

The specification in the order binds you. Width, surface, gradients, drainage, gates rather than stiles, and any structures such as bridges or steps all appear in the order schedule, and building something narrower or steeper than the order says leaves the order uncertified.

Timescales and what causes delay

An unopposed order commonly takes several months from first discussion to confirmation, and an opposed one referred to an inspector takes considerably longer, often more than a year including the inquiry or hearing programme.

What drives objections, in rough order of frequency:

• Increased journey length, particularly where a field path becomes a route alongside a road.
• Loss of amenity and outlook, where a path is moved between fences or buildings.
• Poorer surface or a route that becomes muddy or unlit.
• Severance of a wider network, where the diversion breaks a circular walk.
• Consultation carried out badly, with local users hearing about it from the site notice.

The last one is the most avoidable. Talking to the parish council, the local access forum and the user organisations before the order is drafted turns several of the others into design comments rather than objections. It costs a couple of meetings.

Budget for the possibility of an inquiry even where you expect none. And do not programme the first occupation on the assumption of an unopposed order.

Temporary closures during construction

Where the route can stay in its position but has to close while works happen nearby, a temporary closure is the tool, made by the highway authority under road traffic regulation powers. It has a maximum duration with provision for extension, and it normally requires a signed alternative route.

Apply early, because these orders have their own notice periods, and expect the authority to ask for evidence that the closure is necessary rather than convenient. The same coordination issues arise as with any street works, as covered in our note on temporary road closures and street works during construction.

Keep the closure honest. A path fenced off for eighteen months under a series of short orders attracts complaints, enforcement interest and objections to your next application in the same area.

The closure arrangements, the signed alternative route and the reinstatement standard should appear in the Construction Management Plan so that the authority can condition them together.

Designing the route in rather than moving it

The cheapest order is the one you do not need.

Where a path crosses the site in a position that can be accommodated, keeping it in place removes the legal process, removes the objections and usually improves the scheme. A route retained through a green corridor, with the housing addressing it rather than backing onto it, is better placed in policy terms and easier to defend.

Where a diversion is unavoidable, design the new route as a piece of the scheme rather than as a residual strip: a sensible width, natural surveillance from the surrounding development, lighting where appropriate, a surface suited to the user group, and a connection to the wider network at both ends. Set it out in the Green Infrastructure Plan alongside the other open space and movement provision, and reference it in the Transport Assessment where the route forms part of the walking and cycling strategy.

Where the route runs through a street rather than across open land, the treatment questions are the ones covered in our note on shared surface streets.

And check the order requirements against the layout before the planning submission, because an order line that conflicts with the approved plots means going back for both.

Browse all 66 PlanScope report types to see which documents your scheme is likely to need.

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.