Rights of way, access tracks and objections about them

Planning permission does not authorise anyone to block a public footpath. If a scheme is built across a recorded right of way, the developer needs a separate diversion or stopping up order, made under its own procedure with its own objection period, and obstructing the path before that order takes effect remains unlawful. Private rights of access work the other way round: they are a matter between the parties, and the planning system will not refuse an application because the applicant has no legal right to use a track.

Getting those two apart is the difference between an objection that changes something and one that is answered in a sentence.

How a public right of way interacts with a permission

A public right of way is a highway. Footpaths, bridleways, restricted byways and byways open to all traffic are all highways with a public right of passage, recorded on the definitive map and statement held by the surveying authority, which is the county council or the unitary authority.

When a planning application would affect one, the local planning authority considers the effect on the right of way and on the people who use it: whether the route would be made less attractive or less safe, whether an alternative is available, whether the development would in practice obstruct it. Those are material considerations and they belong in a planning representation.

What the authority cannot do is authorise the obstruction. Permission and the right of way sit side by side, and the developer has to deal with the path separately. Guidance expects authorities not to grant permission for development that would obstruct a right of way without considering whether the necessary order is likely to be made, which is a point worth raising where no application for an order has been made.

Diversion and stopping up orders run separately

Three routes cover most cases, and they are not interchangeable.

The procedure for each follows the same shape. A draft order is published and advertised, notices are posted on site and at each end of the affected length, and there is a period, commonly 28 days, in which anyone may object. If objections are made and not withdrawn, the order cannot simply be confirmed by the authority that made it. It goes to the Secretary of State, who may deal with it by written representations, a hearing or a public inquiry.

The sequencing point matters. An order made under section 257 cannot take effect before the permission it enables exists, and practice on whether an order can be progressed alongside an undetermined application varies. Ask the order-making authority directly where the timing affects you.

The definitive map and how to check it

Start with the definitive map and statement. The surveying authority holds it, most publish an online version, and the statement contains the written description, which sometimes records a width or a limitation that the map alone does not show.

Four checks are worth making.

1. Is the route recorded, and as what: footpath, bridleway, restricted byway or byway open to all traffic. The classification determines what the public may do on it.
2. What width is recorded in the statement. A path shown as a line on a map may have a recorded width of two metres or more, and a development that leaves a narrow gap between fences is not providing the recorded width.
3. Are there recorded limitations, such as a gate or a stile, which the landowner may maintain.
4. Is there a pending application to modify the map. Claims that a route should be recorded are made through a definitive map modification order application, and the authority keeps a register of them.

Where a route is used by the public but not recorded, the position is more involved. Claims rest on evidence of use over a statutory period or on historical documentary evidence, and a statutory cut-off date for recording certain historic rights has been set and then moved, so confirm the current position with the surveying authority rather than relying on an old summary.

Mapping of recorded routes also appears in national planning datasets, which is useful for a quick check and is not a substitute for the definitive map and statement.

Private rights of access and why planning ignores them

This is where most objections about access tracks fail.

If your neighbour's development will use a track over which they have no private right of way, or will overload an easement, that is a civil matter. It is resolved between the parties, through negotiation or through the courts, and not through the planning application. The planning authority has no power to adjudicate private rights, and permission does not grant any right to cross land the applicant does not control.

Inspectors say this plainly on appeal. An objection that the applicant has no right to use the drive, however well founded in property law, will be noted and set aside as a matter outside the planning decision.

Two qualifications are worth knowing. Where the lack of access means the development could never be built, deliverability can occasionally be raised, although it rarely carries weight because the authority will reason that permission can be granted and simply not implemented. And ownership certificates on the application form must be correct: where development involves land the applicant does not own, the right certificate must be signed and notice given to the owner. A certificate signed incorrectly is a procedural point worth checking, because it can invalidate the application.

So if the real issue is a private right, take advice from a property solicitor rather than writing a longer planning objection.

Construction traffic over a shared track

This is the issue that generates the most heat on rural and backland sites, and it has two halves.

The private law half is whether the applicant may use the track for construction traffic at all, and in what manner. An easement for access to a single dwelling may not extend to heavy construction vehicles or to a larger number of dwellings, and the answer lies in the wording of the grant.

The planning half is what the authority can control. Conditions can require approval of a construction traffic management plan covering routeing, vehicle sizes, delivery hours, wheel washing, passing places, surface repairs and a named site contact. A Construction Traffic Management Plan submitted with the application rather than deferred to a condition gives neighbours something concrete to comment on.

Ask for specific things in your representation: hours that avoid the school run, a limit on vehicle size compatible with the track width, an obligation to record the condition of the track before works begin, and a point of contact. Those are conditions an officer can impose. A request that construction traffic should not use the track at all is one they cannot, where the applicant asserts a right to use it.

Where a condition is later breached, the enforcement route is specific, and what breach of condition notices achieve is worth understanding before you report it.

Objecting to a diversion order

The order process is separate from the planning application, and so is the objection. Objections go to the order-making authority within the published period, in writing, and they should address the statutory test rather than the merits of the development.

For an order to enable development, the questions are whether the order is necessary to enable the permitted development to be carried out and, on confirmation, whether the disadvantages to the public outweigh the case for the change. Points that carry weight include:

• The proposed route is substantially longer, steeper or less convenient
• The new route runs beside a road or through a car park rather than across open land
• The surface, width, gates or furniture on the new route are worse
• The diversion severs a link in a wider network, affecting a circular route or a connection to a school or a bus stop
• The new route is less safe or less attractive, reducing the public enjoyment of it

Be specific and measurable. A statement that the new path is 180 metres longer and crosses an estate road twice is stronger than a statement that the diversion is unacceptable.

Objecting does not stop the order. It removes the authority's ability to confirm it unopposed, which means the Secretary of State decides, often after written representations.

Where the issue belongs in a representation

Split your case in two and say which is which.

In the planning representation, deal with the effect of the development on the right of way and its users, the availability and quality of any alternative, whether an order has been applied for, and the construction traffic controls you want conditioned. Reference the application drawing numbers.

In the order objection, deal with the statutory test, the comparison of routes and the public disadvantage, within the published objection window.

Keep the private rights argument out of both and take it to a solicitor. Once a decision is issued, reading a decision notice as a neighbour will show you what was actually conditioned, and whether a right of way order was required as part of it.

If you want to see what evidence an applicant should have supplied, the report types index lists what a scheme of each kind normally includes.

This is general guidance and not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.