Public rights of way as a development constraint

A public right of way across your site survives planning permission. Permission authorises the development, and it does nothing to the footpath: the right remains until it is diverted or extinguished by a separate order, and obstructing it in the meantime is an offence under section 137 of the Highways Act 1980. That is the single point most self-builders learn too late, usually when the foundations are in and a walker arrives with a copy of the definitive map.

So the constraint has to be settled at design stage. Find the recorded routes, find out whether anything unrecorded is claimed, and decide whether you are designing around the path or applying to move it.

What the definitive map records and what it omits

Every surveying authority, usually the county or unitary council, keeps a definitive map and statement under Part III of the Wildlife and Countryside Act 1981, and has a duty to keep it under continuous review. The map shows footpaths, bridleways, restricted byways and byways open to all traffic. The statement gives the particulars: the route description, and often the width, the surface and any limitations such as a stile or a gate.

The map is conclusive evidence that the recorded rights exist. It is not conclusive that other rights do not, which is the distinction that matters when buying land. A route absent from the map may still be a public highway if it was dedicated and never recorded.

Get the statement as well as the map. A footpath recorded with a width of 2 metres and a footpath recorded with no width stated lead to different layouts, and the width entry governs what you have to leave clear.

Searching the map and the statement

Most authorities publish the definitive map through an online mapping service, which is the right starting point and not the end of it.

1. Obtain a formal search or a certified extract of the map and statement covering the site, with the date.
2. Ask for the register of applications for definitive map modification orders, since a pending application over your land is a live risk.
3. Ask whether any orders have been made but not yet confirmed, because an unconfirmed order sits in limbo.
4. Check the local land charges search and the conveyancing enquiries, which sometimes reveal a route the mapping does not.
5. Walk the site and look for evidence of use: a worn line across a field, a gap in a hedge, a stile, a waymark disc.

The walked evidence is worth more than people expect. A worn desire line that does not appear on the map is exactly the pattern that supports a claim of unrecorded rights.

Unrecorded routes and claimed rights

Public rights can arise through long use. Section 31 of the Highways Act 1980 provides for deemed dedication where a way has been enjoyed by the public as of right and without interruption for 20 years, unless there is sufficient evidence that the owner had no intention to dedicate. Rights can also be established at common law.

Anyone can apply to the surveying authority for a modification order to add a route to the definitive map, and applications frequently follow the appearance of a development proposal. The authority investigates the evidence, and the process is slow.

Legislation has also provided for a cut-off date extinguishing certain unrecorded pre-1949 rights, and the arrangements around that date have been changed and reviewed more than once. Check the current position rather than relying on a figure you have seen quoted, because it has moved.

If you are buying land, the practical protection is a statutory declaration of non-dedication or a deposited statement and declaration under section 31(6) of the Highways Act 1980, which records the owner's lack of intention to dedicate.

Why a permission does not remove a right of way

A planning permission and a highway order are separate decisions taken under separate powers. Two routes exist for moving a path to allow development.

An order under section 257 of the Town and Country Planning Act 1990, made by the local planning authority where it is necessary to authorise development for which permission has been granted. And an order under sections 118 or 119 of the Highways Act 1980, made by the highway authority on public interest or landowner application grounds.

Neither order can be relied on in advance. A section 257 order normally follows the grant of permission, it is advertised, objections can be made, and an objection that is not withdrawn sends the order to the Secretary of State, which can add many months. Design on the basis that the order may not be made.

Diverting a path onto a less attractive route, or into a corridor between two close-boarded fences, is the objection most commonly raised and most commonly upheld.

Designing a layout around a recorded route

Keeping the path where it is usually costs less than moving it, and it makes the application easier.

The things that make a retained route work: the recorded width kept clear, an aspect that is overlooked rather than enclosed, a surface suitable for the recorded status, sight lines where the path crosses an estate road, and lighting decided deliberately rather than by default. Avoid running the path between rear garden fences, which creates an unsupervised alley and attracts objection from both users and future residents.

Where the path crosses a highway within the site, treat the crossing as a design feature with a raised table or a narrowing rather than as a gap in a kerb. Where the status is a bridleway or a byway, the width and surface requirements are greater and horses and vehicles have to be accommodated.

Set this out in the Planning Statement and show it on the layout, and use the Design and Access Statement to explain how the route is overlooked and how it connects beyond the site boundary.

Temporary closures during construction

You cannot simply fence a path off while you build. A temporary closure requires a temporary traffic regulation order from the highway authority, usually on grounds of danger to the public from the works, and authorities require notice periods that are measured in weeks rather than days.

Plan for it. Establish the lead time, propose an alternative route that is usable rather than notional, and programme the works so the closure period is as short as the sequence allows. Signage at both ends and at any intermediate junction is normally required.

The protection measures, the alternative route and the responsible person belong in the Construction Management Plan, which is also where site hoarding, wheel washing and delivery routes sit.

Evidence to include with the application

Submit the constraint rather than leaving the officer to find it. A layout plan showing the recorded route with its reference number and status, an extract of the definitive map and statement with the date of the extract, and a short note stating whether the route is retained on its recorded line, retained with an improved surface, or the subject of a diversion order to be sought.

Where a diversion is proposed, show both the existing and proposed lines on one drawing, state the length and width of each, and explain why the replacement route is at least as convenient. Objectors compare the two lines directly, and so do inspectors.

Our note on non-statutory designations that still stop schemes covers the wider point that constraints without statutory force still decide applications. A recorded right of way has statutory force, and it is one of the few constraints that cannot be resolved by the planning permission itself.

This is general guidance, not legal advice. Check the position with your local planning authority, the surveying authority and 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.