Stopping up a highway to allow development

Planning permission does not give you the right to build over a public highway. If your scheme sits across an adopted road, footway, footpath or bridleway, you need a stopping up order as well, and until that order takes effect the public right of passage survives. Obstructing a highway is an offence under the Highways Act 1980 regardless of what your permission says. The order process runs on its own timetable, typically measured in months, and it is the item most often left off a development programme.

When an order is needed

Check the extent of the adopted highway before you fix the layout. It is frequently wider than the carriageway, extending to the back of the verge or the boundary wall, and the highway authority's records rather than the title plan are the definitive source.

An order is needed where the development would permanently obstruct, build over or remove any part of a highway. That includes footways, grass verges within the highway, turning heads and cul-de-sac stubs, and public footpaths crossing the site.

It is not needed for temporary works, which are dealt with by a temporary traffic regulation order and a licence from the highway authority, nor where the land is simply unadopted, nor where a right of way has never actually existed despite local assumption. Establishing which of those applies is the first piece of work, and it is a legal question rather than an engineering one.

The powers and who makes the order

Three routes cover almost every case.

The word necessary appears in both planning powers and it means the same thing it means everywhere else in this field. The development as permitted has to be incapable of being carried out without the order. A scheme that could be redesigned around the highway will not satisfy it.

Use section 257 for a footpath and section 247 for a carriageway. Where both are affected, you will usually be running two processes in parallel with different decision makers, and they need co-ordinating.

Applying once permission is granted

The ordinary sequence is permission first, order second. The application is made to the national casework team with the planning permission, a plan showing the highway to be stopped up and any replacement, and a statement explaining why the order is necessary.

1. Confirm the highway extent with the highway authority and obtain a plan they will accept.
2. Secure the planning permission, including any reserved matters that fix the layout.
3. Submit the application, with the fee and the draft order plan.
4. The draft order is advertised, site notices are posted and notices are served on the highway authority, statutory undertakers and affected frontagers.
5. Objections are invited within the stated period, normally at least 28 days.
6. If objections are withdrawn or resolved, the order is made. If not, a hearing or local inquiry may follow.
7. The order is made and comes into force, at which point the highway rights are extinguished.

The step that consumes time is step six, and objections from statutory undertakers are far more common than objections from the public.

Running the order before permission is granted

There is a concurrent route. The 1990 Act allows a draft order to be advertised before planning permission has been granted, so that the two processes overlap rather than run end to end. The order cannot be made until the permission exists, but the advertisement and objection period can be completed in advance.

On a scheme where the highway position is clear and the planning outcome is reasonably predictable, that can save several months. On a scheme where the layout may change at committee, it wastes the advertising cost and produces a draft order that no longer matches the approved plans.

Use it where the red line and the highway extent are settled. Avoid it where the access arrangement is still in negotiation with the highway authority.

Advertisement, objections and inquiry risk

Objections come from three directions and each behaves differently.

Statutory undertakers object to protect apparatus under the highway. Water, gas, electricity, telecoms. Their objections are usually resolved by agreeing a diversion or by including protective provisions in the order, and the answer is to open those conversations before the advertisement rather than after.

Frontagers and access holders object where they would lose vehicular or pedestrian access. Private rights of access are not extinguished by a stopping up order in the same way as public rights, and an affected frontager has a genuine interest that needs dealing with by agreement.

Amenity and user groups object to footpath orders, particularly where a route has local significance. A section 257 order that removes a well-used path without an attractive replacement will attract objections and may go to inquiry.

Inquiry risk is the programme risk. An unopposed order is administrative. An opposed one can add many months, and the outcome is not certain.

Replacement highway and apparatus

Where the order provides for a replacement highway, its specification has to satisfy the highway authority, and the construction is normally delivered under a highway agreement that follows the permission, as described in section 278 agreements and how they follow a permission.

Get the replacement designed and agreed in principle before the order is advertised. An order describing a replacement route that the highway authority later refuses to adopt is worse than useless.

Apparatus in the existing highway does not move because the highway has been stopped up. Statutory undertakers retain rights over their apparatus, and a diversion has to be negotiated and paid for separately. Those diversions are frequently the longest lead item on the whole project, particularly for high voltage cables and large diameter mains. Ask for budget estimates at feasibility stage.

Where the strategic road network is involved, an entirely separate set of considerations applies, and the approach in when National Highways objects to an application is the relevant one.

Programme, cost and what to do first

Treat the order as a parallel workstream with its own programme line, not as a post-permission formality.

Budget for the application fee, advertising in a local newspaper and the official gazette, plan preparation, legal fees, and the cost of any hearing or inquiry. Add the cost of apparatus diversions, which will dwarf the rest.

For an unopposed order, plan on several months from application to the order coming into force. For an opposed one, plan on considerably longer and build a contingency into the land purchase conditions.

Three things to do in the first week of a project where a highway crosses the site.

• Obtain the highway authority's adopted highway plan and the definitive map extract for any public path.
• Commission utility record searches and identify apparatus in the affected length.
• Establish whether any frontager relies on the highway for access.

As an illustrative example, a site with a redundant cul-de-sac stub running into it looks like a straightforward section 247 case. The stub carries a foul sewer, a low voltage cable serving three houses and a street light. The order is unopposed by the public and objected to by two undertakers. Resolving those objections, agreeing diversions and completing the order takes most of a year, while the planning permission sits ready to implement.

Transport evidence for the application itself sits separately, and a Transport Assessment or a Construction Traffic Management Plan will usually be needed alongside. To see which documents your scheme is likely to need, enter your postcode on PlanScope.

This is general guidance, not legal advice, so 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.