Stopping up and diverting a highway for development

If a development needs part of the existing highway, whether that is a cul-de-sac head to be built over, a footpath crossing the site or a service road to be realigned, the planning permission on its own achieves nothing. Public rights over that land survive the grant of permission, and building over them is an obstruction of the highway. The right has to be extinguished or diverted by an order, and that order is a separate process with its own decision maker, its own publicity and its own objection window.

It is the item most likely to sit on the critical path of a scheme and the one most often picked up after the decision notice rather than before.

Which order, and who makes it

Section 247 of the Town and Country Planning Act 1990 authorises the stopping up or diversion of a highway to enable development to be carried out in accordance with planning permission. In England the application goes to the Secretary of State, handled by the casework team at the Department for Transport, and the order is made centrally.

Section 257 deals with footpaths, bridleways and restricted byways where an order is needed to enable development. Here the local planning authority makes the order itself, which sounds simpler and often is, until an objection arrives and the order has to be referred onward for confirmation.

Two neighbouring provisions come up. Section 248 covers a highway crossing or entering the route of a proposed new highway, and section 258 deals with extinguishing rights of way over land held for planning purposes. Outside the planning legislation, the Highways Act 1980 provides routes for stopping up and for public path orders that are not tied to development, and those are the highway authority's tools rather than the developer's.

Establish which provision applies early, because the wrong application to the wrong body loses two months before anyone notices.

The evidence an application needs

The order has to be necessary to enable the permitted development. So the application starts with the permission, the approved layout, and a plan showing exactly what is to be stopped up, hatched and dimensioned, alongside any replacement route.

Where a route is being diverted rather than extinguished, the replacement matters as much as the closure. A diverted footpath that is longer, narrower, less overlooked or less convenient will attract objections, and rightly. Show the replacement at an adequate width, on a surface that suits its use, with the connections at each end drawn and the levels resolved.

The wider transport case usually sits in the Transport Assessment submitted with the application, and the order application should be consistent with it. Contradictions between the two are the first thing an objector's agent looks for.

Ownership needs establishing separately. A highway is a right of passage over land, and the surface vests in the highway authority while the subsoil commonly belongs to the adjoining owner. Extinguishing the public right does not convey anything. Where you need the land as well as the right, that is a separate acquisition.

Publicity, objections and the inquiry risk

The procedure requires the draft order to be advertised, with notices in a local newspaper and displayed at each end of the affected length, and served on the statutory undertakers and the bodies the legislation prescribes. A period is then allowed for objections.

Three groups object regularly.

Statutory undertakers, where apparatus lies within the highway to be stopped up. Their objection is usually procedural rather than hostile, held until diversion arrangements are agreed and the cost is settled. Under the street works legislation those diversion costs fall to the developer, and for a busy urban street with gas, water, electricity and telecommunications apparatus in the same trench they can be substantial and slow to price.

Rights of way interests, on section 257 orders. National and local walking organisations, parish councils and individual users will engage where a route has historic or recreational value, and they are experienced objectors.

Local residents, where the closure affects access, parking or a route to a school.

If objections are not withdrawn, the matter goes to a hearing or a public inquiry. That is where the programme risk lives. An unopposed order might be confirmed within several months. An opposed one, with an inquiry to arrange, evidence to prepare and a decision to await, can take a year or more.

The practical response is to deal with objectors before the order is advertised rather than after. Approach the undertakers early with a plan and a willingness to pay for diversions. Speak to the parish council. Offer an improved replacement route rather than the minimum.

Programme and the build sequence

Plot the order against the construction programme and the answer is usually uncomfortable. The stopped up land is frequently where the spine road, the first plots or the site access are intended to go, so nothing can start until the order is confirmed.

Three sequencing decisions help.

Design the phasing so the first works avoid the affected land. Even a modest amount of early activity elsewhere keeps a site live and keeps the contractor engaged.

Keep the existing route open until the last moment. Closing a footpath before the order is confirmed is an offence and an obstruction, and it turns neutral neighbours into objectors.

And treat any temporary construction accesses as a separate consent exercise, because a temporary traffic regulation order for a road closure during works is a different instrument from a stopping up order and runs on its own timescale.

Conditions tying the development to the order

Councils commonly impose a condition preventing commencement or occupation until the relevant order has been confirmed and the works completed. A negatively worded condition of that kind is acceptable where there is a reasonable prospect of the action being carried out within the life of the permission.

Read the wording carefully. There is a real difference between a condition requiring the order to be confirmed before occupation and one requiring it before commencement, and the second can stop a site for a year. Where the highway to be stopped up is not needed until a later phase, argue for the condition to bite at that phase rather than at the start.

The same discipline applies where the scheme also depends on highway works under a section 278 agreement, and where visibility splays on third party land are involved. Those are the recurring problems in forming an access onto a fast rural road, and a condition drafted without regard to the sequence creates a deadlock that only a section 73 application can unpick.

Costs, and who pays

The developer pays. That includes the application fee where one applies, the advertising, the cost of preparing plans and the order itself, the authority's or department's administrative costs, the diversion of statutory undertakers' apparatus, the construction of any replacement route, and the cost of a hearing or inquiry including the applicant's own representation.

Budget for the apparatus diversions as the largest and least predictable element. Utility quotations take time to obtain, are valid for limited periods, and have a habit of increasing once a trial hole shows what is actually under the road.

One final point that is easy to miss. An order takes effect when it is confirmed, but a right of way cannot be physically obstructed until the order comes into force and, where a replacement is required, until that replacement is available for use. Build the certification of the new route into the programme, because a contractor who closes the old path on the strength of a confirmed order and an unfinished replacement has created a fresh problem.

Enter the site postcode on PlanScope to see which transport and highways documents your scheme is likely to need. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval. This is general guidance, not legal advice. Check the position with your local planning authority, the highway authority or a qualified professional before relying on it.