Section 257 diversion of a public footpath

Planning permission does not authorise you to build over a public footpath. If a right of way crosses your site and the approved scheme puts a house on it, you need a separate order under section 257 of the Town and Country Planning Act 1990 to divert or stop it up, and until that order is confirmed the path stays where it is and obstructing it is an offence.

This is the programme risk most often discovered late. The permission is granted, the contractor mobilises, and someone notices a dotted line on the definitive map running through plot 14.

What a section 257 order permits

A section 257 order allows the local planning authority, as competent authority, to authorise the stopping up or diversion of 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 already granted.

Two words in that carry the weight. Necessary, which means the development as permitted cannot be built with the path where it is, rather than that the diversion would be more convenient. And already granted, which means the order follows the permission rather than preceding it.

Different routes exist for different situations. Diverting or stopping up a highway with vehicular rights is done under section 247 of the Highways Act 1980 by the Secretary of State, which is a longer process. Diversions on grounds unconnected with development, in the interests of the landowner or the public, use sections 118 and 119 of the Highways Act 1980 and go through the highway authority. Temporary closure during construction is a separate mechanism again.

Why permission alone is not enough

Obstructing a public right of way is an offence under the Highways Act 1980, and the fact that a planning permission exists is no defence. Nor does the permission override the public's right to pass and repass. The two regimes are entirely separate, and a decision notice that says nothing about the footpath has not dealt with it.

Authorities commonly impose a condition preventing development that would obstruct the route until a diversion order has been confirmed and the alternative route provided. Where such a condition exists, building over the path is also a breach of condition, which gives the authority a faster remedy than highways enforcement.

Check the definitive map and statement held by the surveying authority, and check it early. Routes appear on the definitive map that are not visible on the ground, and unrecorded historic routes can also exist, so the absence of a path in the field proves nothing about whether one exists in law.

The application and objection process

The applicant approaches the local planning authority, which decides whether to make the order. That decision is discretionary, and most authorities charge for the work and expect the applicant to fund advertising and the alternative route.

Once made, the draft order has to be advertised in a local newspaper, notices posted at each end of the affected length, and notice given to the prescribed bodies, which include the relevant national amenity and user organisations, the parish council and the statutory undertakers. The objection period is 28 days from the date of the notice.

What objections tend to focus on: the length and convenience of the alternative route, its surface and gradient, the loss of a view or of a quiet route, whether the diversion is really necessary, and whether the new route is well overlooked and feels safe to use after dark. Address all five in the supporting statement before they are raised.

Confirmation, and what happens if it is opposed

If no objections are received, or objections are withdrawn, the authority can confirm the order itself. That is the outcome to aim for, and it is achievable far more often than people expect if the alternative route is designed generously and the user organisations are consulted informally before the order is advertised.

If objections remain outstanding, the authority cannot confirm the order and must refer it to the Secretary of State, which in practice means the Planning Inspectorate. The referral is decided on written representations, at a hearing, or at a public inquiry, depending on the issues.

The order can be made so that it does not take effect until the authority is satisfied the alternative route has been provided to the standard specified. That protects the public and it protects you, because it means the old route remains available until the new one is actually usable.

Programme risk and how to manage it

Treat the order as a long-lead item that runs in parallel with the reserved matters or condition discharge work, not after it. An unopposed order still needs the advertising period, the notice period and the authority's own committee or delegated process. An order referred to the Secretary of State adds a further determination process on top of that.

Practical sequencing:

1. Check the definitive map before you draw the layout, and design the alternative route into the scheme.
2. Talk informally to the parish council and the user organisations before applying for the order.
3. Apply for the order as soon as permission is granted, or earlier if the authority will accept a draft.
4. Build the alternative route early, so that the certification step is not the thing holding up the order.
5. Keep the existing route open, signed and safe throughout.
6. Do not programme any work over the existing line until the order is confirmed and the new route certified.

Because a section 257 order depends on a permission having been granted, the situations that create deemed planning permission are worth understanding, since they can supply the necessary permission in cases where no express grant exists.

Designing an alternative route that gets confirmed

The diversion that attracts objections is the one squeezed against a fence line as an afterthought. The one that gets confirmed is broadly as convenient as the original.

Aim for a route no significantly longer than the existing one, with a surface suitable for year-round use, a width that allows two people to pass, gradients that a pushchair can manage, and no dead-end fencing on both sides for any distance. Keep it overlooked by buildings rather than running behind gardens. Avoid a route that turns two right angles to get around a plot, because that is the sort of detail objectors quote and inspectors notice.

Where the existing route has a view, and the diversion loses it, say so honestly and explain what is offered in return.

Conditions preventing obstruction

Expect a condition in these terms, and read it carefully. The usual form prevents any development on the affected part of the site until the order is confirmed and the alternative route is available for public use. Some authorities go further and prevent any development at all on the site, which is a very different proposition for cash flow.

If the condition is drafted to cover the whole site, ask for it to be limited to the affected area before the decision is issued. Afterwards, it takes a section 73 application to change it.

The 66 report types by category show which supporting documents usually accompany a scheme where public access and layout are in question.

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

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