Public rights of way across a site and the diversion order

Planning permission does not move a public footpath. If a right of way crosses your site, you need a separate order under section 257 of the Town and Country Planning Act 1990 to divert or extinguish it, and until that order is confirmed and the replacement route is available, obstructing the path remains an offence. Developers discover this late, usually when the groundworks contractor fences a line across a well used path and the first complaint reaches the council's rights of way officer.

Treat the order as a parallel consent with its own programme, its own objection route and its own risk of refusal. It is the item most likely to delay a start on site on a path crossed field.

Why permission and the order are separate things

A planning permission authorises development. It confers no right to interfere with a highway, and a public footpath, bridleway or restricted byway is a highway in law. Obstruction is dealt with under the Highways Act 1980, and the local highway authority can require removal of the obstruction whatever your permission says.

Two routes exist for development sites. Section 257 of the 1990 Act allows the local planning authority to make a public path order where it is necessary to do so to enable development to be carried out in accordance with a planning permission. Section 247 deals with stopping up or diverting a highway other than a public path, typically an adopted road, by order of the Secretary of State.

There are also diversion and extinguishment powers in sections 118 and 119 of the Highways Act 1980, which sit with the highway authority and are not tied to a planning permission. They are slower in practice for development, because the test is different and the authority has no particular reason to prioritise your scheme.

One sequencing rule governs everything else: a section 257 order cannot normally be made until planning permission exists, and the path cannot be obstructed until the order is confirmed. That is a serial dependency, not a parallel one.

Who makes the order and how it is confirmed

The local planning authority makes a section 257 order. Procedure follows Schedule 14 to the 1990 Act: the order is made, notice is published in a local newspaper, notices go up at each end of the affected length and on site, and copies go to the statutory bodies and to any local amenity and user groups entitled to be notified.

Representations and objections have a statutory period of at least 28 days. What happens next depends on whether objections are withdrawn.

If there are none, or they are withdrawn, the authority can confirm its own order. If an objection stands, the order has to be referred to the Secretary of State, which in practice means the Planning Inspectorate deciding it by written representations, a hearing or an inquiry. That referral is where the months go.

Authorities also charge for the process. Fees for advertising, legal work and officer time are commonly recovered from the applicant under a cost recovery agreement, and the amount varies by authority, so ask for the current figure before you budget.

Timescales and the objection route

An unopposed order on a short length of path, with a willing authority and a clean alternative route, can be made and confirmed in a few months. An opposed order referred to the Secretary of State takes substantially longer, and the written representations route is faster than an inquiry.

The objectors are predictable. Parish councils, the local ramblers group, the British Horse Society on bridleways, and individual users who have walked the route for years. They object on convenience, on enjoyment, and on the quality of the replacement route rather than on the merits of the development, which has already been decided.

What that means for programme is simple enough. Where the path crosses the middle of a phase one plot, treat 12 months as a sensible planning assumption and start the order process the week permission is granted, not when the contractor arrives.

Designing a diversion that will be confirmed

The test the decision maker applies is whether the diversion is necessary to enable the development and, on confirmation, whether it is expedient having regard to the effect on the public. A route that is obviously worse than the one it replaces attracts objections and loses.

Get these right and most objections fall away:

• A direct line rather than a dog leg around the perimeter of the site, with no significant increase in length.
• A surfaced width that matches or exceeds the existing route, with a specification suited to the user group, including horses where the route is a bridleway.
• Gradients and surfacing that keep the route usable in winter and accessible to people with limited mobility, with no new stiles.
• Natural surveillance along the route, avoiding alleys between close boarded fences and the backs of garages.
• Boundary treatment, drainage and planting shown on a drawing rather than left to the construction stage.
• Furniture, waymarking and gates specified, with gates preferred to stiles and a clear line of sight at road crossings.

Set it out on a dedicated plan with the existing route in one notation and the proposed route in another, cross referenced to the section drawings and to the landscape proposals. Put the same drawing in the Planning Statement so the planning case and the order application describe the same thing.

Illustrative example. A footpath runs diagonally across a 40 unit greenfield site to a village hall. The scheme diverts it along a 3m wide shared surface through the central green space, with lighting, no new stiles and a 15m increase in length. The parish council objects on principle, the order is referred, and the Inspectorate confirms it on written representations. The figures here are illustrative rather than taken from a decided case.

Temporary closures while you build

Even where the final diversion is agreed, construction needs the path kept open or temporarily closed. A temporary closure is a separate application to the highway authority, usually under the Road Traffic Regulation Act 1984, and it takes weeks rather than days to advertise.

Plan the sequence so the diverted route is built and open before the old line is closed. Where that cannot be done, the temporary route needs the same thought as the permanent one, and the construction method statement should show the fencing, signage and crossing points. That material sits naturally in the Construction Traffic Management Plan, alongside the vehicle routeing, and our note on what must be submitted before work starts on site covers how that fits the conditions that bite before work starts.

Users will walk the desire line regardless of your fencing. Build the diversion early and the problem largely solves itself.

Conditions tying the order to the development

Expect a condition. The usual form prevents occupation, or sometimes the start of a particular phase, until the order has been confirmed and the replacement route constructed and open to the public. Where the condition requires action on land the applicant does not control, a Grampian form is used.

Argue about the trigger point, not the principle. A condition tied to the start of any development on a large site can stall the whole scheme over a path affecting one plot, while a condition tied to occupation of the dwellings adjoining the route is enforceable and workable. Offer the narrower wording with reasons, in writing, before the officer drafts it.

Where an objection from the rights of way officer or a user group is holding up determination, the approach in our guide to clearing a statutory consultee holding objection applies to the path as well.

Checking the position before you buy

Three searches, all worth doing at option stage. The definitive map and statement held by the surveying authority is the legal record of recorded public rights of way, and the statement often records width and limitations the map does not show.

Then ask the authority for pending definitive map modification order applications affecting the land, because an unrecorded historic route can still be claimed and a clean map today is not a guarantee. And walk the site, because paths in regular use that do not appear on the map are the ones that generate claims.

Permissive paths, concessionary routes and access under countryside stewardship agreements are different again, created by agreement and capable of being withdrawn. Do not assume a well trodden route is a public right of way, and do not assume it is not.

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. Enter your postcode on PlanScope to see which documents a site with a path across it is likely to need.