Stopping up an adopted highway under section 247
Public highway rights survive the grant of planning permission. If your building footprint crosses adopted highway, you need a stopping up order before you can build over it.
If your scheme builds over an adopted road, footway or verge, planning permission alone will not let you do it. Public highway rights survive the grant of permission, and the only way to remove them for development is a stopping up order under section 247 of the Town and Country Planning Act 1990.
The test is narrow. An order may be made where the Secretary of State is satisfied that the stopping up or diversion is necessary to enable development to be carried out in accordance with a planning permission that has been granted. Necessary, not convenient.
When an order is needed
Look at the adopted highway extent rather than the title plan, because the two rarely match. Highway usually includes the carriageway, the footway, and often a verge or a service strip behind it. Building a wall, a building line or a car park across any of that requires the public rights to be removed first.
Three situations account for most orders.
- A new building footprint that encroaches onto a length of adopted footway or a highway turning head
- A redevelopment that closes an existing access road and replaces it with a new layout
- A site assembly where a short spur of adopted road runs into the middle of the development area
An order is not needed where the works sit entirely on private land, even if that land is subject to private rights of way. Private rights are a separate problem with a separate solution, usually a deed of release or an application to the Upper Tribunal. And an order is not the right instrument for works in the highway that leave the rights intact, which belong in a section 278 agreement with the highway authority.
Who makes the order and on what test
Section 247 orders are made by the Secretary of State, in practice through the transport casework function of central government rather than by the local planning authority. That is the first thing to explain to a client who assumes the council can deal with it.
The statutory test has two limbs. There must be an extant planning permission for development, and the stopping up or diversion must be necessary to enable that development to be carried out in accordance with it. An order cannot be used to tidy up an unwanted road, and it cannot be used speculatively before there is any permission to enable.
The decision maker also considers the effect on those who use the highway. Where the order stops up a route without providing an alternative, the case has to explain why the loss is acceptable, referring to the alternative routes available and their length. Where the order diverts rather than extinguishes, the replacement route's width, surfacing, lighting and gradients all come under scrutiny.
Bear in mind that stopping up removes public rights over the surface. It does not transfer ownership. The subsoil beneath a former highway generally belongs to the adjoining frontagers, so check the title position before you assume you can build on it.
The application and the evidence required
A well-prepared application contains a small number of documents, each doing a specific job.
- A plan showing the existing highway to be stopped up or diverted, coloured and dimensioned, at a scale the casework team accepts.
- A plan showing any replacement highway, with its proposed width and construction.
- A copy of the planning permission and the approved layout drawing, with the conflict between the two clearly readable.
- A statement explaining why the stopping up is necessary to implement that permission, addressing alternatives.
- Details of statutory undertakers' apparatus in the affected length, and the arrangements agreed with each undertaker.
The apparatus point is the one that delays applications. Gas, water, electricity and telecoms plant beneath a road being stopped up has to be diverted, protected or made the subject of retained rights, and undertakers respond at their own pace. Start those enquiries when you submit the planning application, not when you apply for the order.
Where the layout changes after permission is granted, keep the drawings aligned. A minor realignment may be handled by a section 96A non-material amendment, but an order plan that no longer matches the approved layout will be sent back.
Objections and the inquiry route
The draft order is advertised in a local newspaper and in the official gazette, notices go up at each end of the affected length, and there is a period during which any person may object.
Unopposed orders proceed on the papers. Where objections are made and cannot be withdrawn, the Secretary of State may hold a local inquiry or a hearing, and that changes both the cost and the timetable. Objections from statutory undertakers about their apparatus are usually resolved by agreement. Objections from residents about the loss of a walking route are harder, because they go to the merits.
The most useful preparation is to remove the reason for objection before advertisement. Walk the route. Identify who actually uses it, whether there is a school run, a bus stop or a shop at either end, and design the replacement so the diversion adds the least distance it can.
Timescales and the effect on programme
An unopposed order takes months rather than weeks, and an opposed order that goes to inquiry takes materially longer. Because the process is sequential, with an advertisement period, an objection period and then the making and confirmation of the order, there is no way to compress the middle of it.
That sits awkwardly with the usual funding assumption that construction starts shortly after conditions are discharged. Where a stopping up order is needed, treat it as a parallel workstream with its own critical path, and record it alongside the other obligations that will appear as a local land charge against the site.
Section 253 of the 1990 Act allows the procedural steps to begin in anticipation of planning permission, so the draft order can be advertised before the decision is issued. The order still cannot be made until permission exists. On a constrained site that provision is worth using, because it moves the advertisement and objection period off the critical path.
Footpaths, bridleways and the section 257 alternative
Where the route in question is a footpath, bridleway or restricted byway rather than a vehicular highway, the order is made under section 257 of the 1990 Act, and the local planning authority makes it. That is a different animal: quicker, less costly and decided locally, with confirmation by the authority itself where the order is unopposed.
Section 116 of the Highways Act 1980 offers a third route, through the magistrates' court, where a highway is unnecessary or can be diverted to make it nearer or more commodious to the public. It is used mainly by highway authorities and it does not depend on a planning permission.
Choosing the wrong instrument wastes a season. The distinguishing questions are what kind of highway it is, whether the purpose is to enable a specific development, and whether the highway authority is willing to promote the order itself.
Sequencing the order against the permission
The order to aim for is: fix the layout, obtain the permission, advertise the draft order using the section 253 anticipation power where the timing allows, resolve objections, then have the order made and confirmed before you need to build over the affected length.
Where access is a reserved matter, the geometry is not fixed at outline stage, so the order work cannot start in earnest until the reserved matters approval settles it. That is a good reason to seek approval of access at outline rather than reserving it. The transport evidence behind that decision, usually a Transport Assessment, should show the stopped up length and the replacement arrangements rather than treating them as a detail.
Browse all 66 report types on PlanScope to scope the evidence base for a site with highway constraints.
This is general guidance rather than legal advice. Check the position with your local planning authority, the highway 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.
Frequently asked questions
Who makes a section 247 stopping up order?
The Secretary of State, in practice through the transport casework function of central government rather than the local planning authority. That surprises clients who assume the council can deal with it. Orders affecting footpaths, bridleways and restricted byways are different: those are made by the local planning authority under section 257.
Can I apply for an order before planning permission is granted?
The procedural steps can begin in anticipation of permission under section 253 of the Town and Country Planning Act 1990, so the draft order can be advertised before the decision is issued. The order itself cannot be made until the permission exists. On tight programmes this moves the advertisement and objection period off the critical path.
Do I own the land once the highway is stopped up?
Not automatically. Stopping up removes the public rights over the surface. The subsoil beneath a former highway generally belongs to the adjoining frontagers, so check the title position before assuming you can build on the stopped up length. Acquiring the subsoil may be a separate transaction.
What happens if someone objects?
Unopposed orders proceed on the papers. Where objections are made and not withdrawn, the Secretary of State may hold a local inquiry or hearing, which changes both cost and timetable. Objections from statutory undertakers about apparatus usually settle by agreement; objections from residents about losing a walking route go to the merits and are harder.
What is the difference between section 247 and section 257?
Section 247 covers highways generally, including vehicular roads, and orders are made centrally. Section 257 covers footpaths, bridleways and restricted byways, and the local planning authority makes the order to enable development. The section 257 route is quicker, less costly and decided locally, with confirmation by the authority where the order is unopposed.
Sources and further reading
This article is general guidance about the planning system in England and, where stated, the rest of the UK. It is not legal or professional advice. Check your local planning authority’s validation requirements and take professional advice for your specific site.