Stopping up a public right of way for a development

Planning permission does not authorise you to block a public right of way. You need a separate stopping up order right of way procedure, made under different legislation, decided by a different body, on a different timetable. Build over a footpath without one and you have obstructed the highway, which is a criminal offence under section 137 of the Highways Act 1980, and the fact that you hold planning permission is no defence.

The order is the item that controls the programme on a surprising number of sites. Six to twelve months is normal where nobody objects. Where there is an objection and an inquiry, it can be considerably longer.

Why permission alone is not enough

A public highway, including a footpath or bridleway, exists independently of the planning system. It is a public right that can only be removed or moved by a statutory order. A planning permission tells you the development is acceptable in land use terms. It says nothing about the right of the public to walk across the site.

Two consequences follow. A permission can be granted for a scheme that cannot lawfully be built until an order is confirmed, and the authority granting the permission is often not the authority making the order. On a two tier site the district grants permission while the county is the highway authority, and for vehicular highways the order is a matter for central government casework rather than either council.

So the first question on any site crossed by a path is not whether permission is likely. It is who makes the order and how long they take.

The order making powers

Three routes matter, and choosing the wrong one wastes months.

Section 247 of the Town and Country Planning Act 1990 authorises the stopping up or diversion of a highway, including a road, to enable development to be carried out in accordance with a planning permission. These orders are made by the Secretary of State, processed through central government casework, and the application is made after permission is granted, although section 253 allows the procedure to begin in anticipation of permission in defined circumstances.

Section 257 of the same Act authorises a local planning authority to make an order stopping up or diverting a footpath, bridleway or restricted byway where it is necessary to do so to enable development to be carried out in accordance with a planning permission. The authority makes the order and, if nobody objects, can confirm it itself. If there are unwithdrawn objections, it goes to the Secretary of State.

The public path orders under sections 118 and 119 of the Highways Act 1980 are the general extinguishment and diversion powers, used where the reason is not the implementation of a planning permission. They have different tests, including an expediency test on diversion and a test of whether the path is needed on extinguishment, and they are harder to use for development purposes.

Most development cases involving footpaths therefore run on section 257, and most involving a road run on section 247.

Timing against the planning permission

The statutory test on both development-related powers is that the order is needed to enable development authorised by the permission. That links the order to a specific permission, which has two practical effects.

You cannot usually apply before the permission exists, which puts the order after determination in the programme. And if the permission is later varied so the development changes, the order may no longer correspond to what you are building. A section 73 application that moves a building across the line of the former path is the classic way to invalidate an order you have already obtained.

The sequence that works:

1. Identify the path from the definitive map and statement at the earliest site appraisal, not from a site visit.
2. Design the layout so the path is diverted around the development rather than extinguished, if at all possible.
3. Include the proposed diversion on the application drawings so the authority can see the intention.
4. Apply for the order immediately on grant of permission.
5. Do not start any work that affects the path until the order is confirmed and has come into force.

Point one deserves emphasis. The definitive map and statement held by the surveying authority is the legal record. A path that is unused, overgrown and invisible on the ground is still a public right of way if it is on the map, and the checks on ownership certificates that you run at submission will not pick it up.

Objections and the inquiry risk

Orders are advertised, notices are posted on site and at the ends of the path, and the order is open to objection for a defined period. The bodies that object are predictable: national and local walking and riding organisations, the parish or town council, the local access forum, and individual users.

What they object to is rarely the principle. It is the quality of the replacement route. Longer, less direct, less pleasant, against a fence line, through a car park, with a worse surface, with gates instead of an open crossing. The objection that defeats an order is usually that the diversion is substantially less convenient to the public.

So design the replacement route properly. Width at least equal to the existing, a surface fit for the user group, a clear line with natural surveillance, no blind corners between fences, no steps where the original had none, and a hedge or planting on at least one side. Spend money on this. It is cheaper than an inquiry.

Where objections are not withdrawn, a local inquiry or hearing follows, with an inspector reporting to the Secretary of State. Allow for that possibility in the programme rather than assuming a clear run. The position on waiting for consultee responses and the officer's case file is a useful analogy: the formal clock is not the same as the practical timetable.

Diversion rather than extinguishment

Extinguishment removes a public right permanently and attracts more resistance than any other element of a scheme. Diversion keeps the connection and moves the line.

Authorities and user groups will almost always accept a well-designed diversion, and inspectors are sympathetic to development that maintains connectivity. Extinguishment tends to succeed only where the path is redundant in fact, where it duplicates another route, or where it leads nowhere because the land beyond is already developed.

If your layout requires extinguishment, test whether a redesign could divert instead. A path along the edge of a development parcel costs plot depth. An inquiry costs a year.

Temporary closures during construction

A separate mechanism again. Where a path has to be closed while works are carried out, a temporary traffic regulation order under the Road Traffic Regulation Act 1984 is the usual route, applied for from the highway authority with a stated duration and an advertised alternative route.

Temporary closures are administratively simpler than orders but they are not instant, and they have maximum durations with extension procedures. Build them into the construction programme, and do not use a temporary closure to pre-empt a permanent order. Authorities notice, and enforcement follows.

Signage, barriers and a maintained alternative route are conditions of the closure rather than optional extras. A Construction Traffic Management Plan that deals with pedestrian routes alongside vehicle movements covers this properly, and it is a document authorities increasingly ask for by condition.

Programming the order into the build

Treat the order as a long lead consent on the critical path, alongside statutory undertaker diversions and any highway agreement. The sensible programme assumptions: apply within a fortnight of permission, allow the statutory notice period plus the authority's own administrative time, and hold a contingency for an inquiry on any site where a user group has already commented on the planning application.

Two things to avoid. Do not let the main contractor onto a parcel crossed by a confirmed-but-not-in-force order. And do not rely on an undertaking from the authority that it will not enforce: it has no power to authorise obstruction.

One honest uncertainty: authorities differ a great deal in how quickly they process section 257 orders, and a few have no dedicated officer for it at all. Ask the rights of way team directly what their current timescale is before you fix the programme, and ask in writing.

A Planning Statement that sets out the right of way position, the proposed diversion and the order route reassures the officer that the scheme is deliverable. Browse the PlanScope report types to see what else a scheme of your scale needs.

This is general guidance, not legal advice. Check the position with the highway authority, the rights of way team 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.