Rights of way on development sites and section 257 orders

Planning permission does not give you the right to move a public footpath. A public footpath diversion for development needs a separate order under different legislation, made by a different arm of the council, with its own consultation, its own objection period and its own confirmation process. Sites are routinely bought, designed and consented on the assumption that the path will be dealt with later, and the order process then adds six months to a programme that had no slack in it.

Identifying a recorded right of way across a site

Start with the definitive map and statement held by the surveying authority, which is the county council or the unitary authority rather than the district planning department. The map shows footpaths, bridleways, restricted byways and byways open to all traffic, each with a path number. The statement, which people forget to ask for, may record the width and any recorded limitations such as gates or stiles.

The definitive map is conclusive evidence of what it shows, and it is not conclusive that nothing else exists. Unrecorded routes can be claimed through long use, so a path worn across a field that is not on the map is still a risk worth investigating before exchange.

Order a search, walk the site, and photograph what is on the ground. Where the physical route has drifted away from the recorded line, which happens constantly on farmland, you have two problems rather than one. Establishing what a recorded right of way means for a development site is the first piece of due diligence, before any layout work.

Why planning permission does not authorise obstruction

A public right of way is a highway. Building across it without an order is obstruction of the highway, an offence under section 137 of the Highways Act 1980, and the fact that you hold planning permission for the building is no defence.

The practical consequences bite at different points. A contractor who fences a path during construction without a temporary closure order is committing an offence. A developer who builds a house across a footpath has created a permanent obstruction that a member of the public can complain about years later. Purchasers' solicitors pick this up, and a house sale can fall through on it.

So the order and the planning permission need to run in parallel, with a condition tying them together. The usual mechanism is a condition preventing development from beginning, or occupation from taking place, until the relevant order has been confirmed and brought into effect.

Section 257 diversion orders and who makes them

Section 257 of the Town and Country Planning Act 1990 allows the local planning authority to make an order stopping up or diverting a footpath, bridleway or restricted byway where it is satisfied that it is necessary to do so to enable development to be carried out in accordance with a planning permission.

Three features of that wording matter. The authority has to be satisfied the order is necessary for the development, so a diversion that is merely convenient for the layout is vulnerable. The development has to be one for which permission has been granted, which controls the sequencing. And the power sits with the planning authority, so on a two-tier site the district makes the order even though the county holds the definitive map.

The order process runs roughly like this:

1. Pre-order discussion with the rights of way officer about the proposed alternative route, its width, surface and gradients.
2. Draft order prepared, usually at the developer's cost under an indemnity agreement covering the authority's expenses.
3. Order made and advertised in a local newspaper, with notices on site at each end of the affected route and copies served on the prescribed bodies and adjoining owners.
4. An objection period of at least 28 days.
5. If unopposed, the authority may confirm the order itself. If opposed, the order goes to the Secretary of State and is dealt with by the Planning Inspectorate.
6. Confirmation, then a further notice and the date the order takes effect.

Budget six to nine months for an unopposed order and considerably longer if it is opposed and goes to a hearing or inquiry. Those are working assumptions, not guarantees, and rights of way teams are small.

Section 247 stopping up by the Secretary of State

Where the highway affected is a road rather than a path, section 247 of the Highways Act 1980 provides the equivalent route, and the order is made by the Secretary of State rather than the council. Applications are handled by the national casework team, and the test is again whether the order is necessary to enable development to be carried out in accordance with a planning permission.

Section 247 also catches footways and verges forming part of a maintainable road, which is why a scheme that only alters a pavement crossing can still need one. Where both a road and a separate public footpath are affected, two orders under two regimes may be needed, and they will not be confirmed on the same day.

Objections and the order confirmation process

Objections come from the same sources every time: the Ramblers and other user groups, the parish council, local residents who walk the route, and occasionally the British Horse Society where a bridleway is involved. They object to loss of amenity, to a longer or less pleasant route, to surfacing that suits a development rather than a walker, and to routes hemmed between fences.

Most objections are answerable at design stage rather than at inquiry. A diverted route that is wider than the original, surfaced appropriately, hedged rather than close-boarded on both sides, and with no more than a modest increase in length is far less likely to attract opposition. Routes squeezed into a two metre gap between rear gardens attract it every time.

Where the new route forms part of the open space and green infrastructure of the scheme, say so, and show it in the Green Infrastructure Plan rather than leaving it as a line on a drainage drawing.

Programming an order against the build sequence

The sequencing problem is straightforward once you see it. The order needs a permission to be necessary for. The permission needs conditions that reflect the order. And the build cannot start across the path until the order takes effect.

Deal with it by submitting the planning application with the diversion shown as part of the proposal, agreeing the Grampian condition wording before determination, and instructing the order work the week the decision notice arrives. On phased sites, look at whether the first phases avoid the path entirely, which lets construction start while the order runs.

Do not assume an order will be confirmed. Where the alternative route is poor and the objections are strong, an inspector can and does refuse confirmation, and the layout then has to change. A contingency layout that works with the path in place costs little on a site where the route is well used.

Temporary closures during construction

Even where the permanent position is settled, the path usually has to close while work happens. That is a temporary traffic regulation order from the highway authority, typically under section 14 of the Road Traffic Regulation Act 1984, with a defined duration and an advertised alternative route.

Apply early. Lead times of several weeks are normal, and a closure that was not applied for is the reason site fencing goes up around a path that is still legally open. Record the closure dates, the signage and the alternative route in the Construction Management Plan, and make sure the site access arrangements in the Transport Statement match what the closure assumes.

Keep the route walkable where you can. A fenced corridor through a site, inspected weekly and kept free of mud, generates far fewer complaints than a diversion around three sides of a compound.

PlanScope drafts the Planning Statement, Construction Management Plan and supporting documents that sit around a scheme like this, structured to UK planning policy. Enter your postcode on PlanScope to see which reports your site 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.