Diversion/Extinguishment of Highways In Connection with the Development of Land
It is a common experience that a development site can sometimes be crossed by an established public right of way bridle way or bye-way. If development is to be carried out over the land, then an appropriate process must be carried out in order to either extinguish the footpath or to divert it to a route so as to enable the development to take place.
There are numerous ways that a footpath or right of way can be extinguished or diverted and there are three main means to achieve it:
- By using the provisions of the Town and Country Planning Act 1990 and this runs concurrently with the planning application to develop the land. In the event that planning permission is granted, then this will enable an application to be made to extinguish/divert the right of way as necessary.
- If there is a desire to divert or extinguish a right of way outside of a planning application context, then avenues are open under the provisions of the Highways Act 1980 to seek to persuade the Authority with responsibility for the footpath to make a diversion or extinguishment order.
- A further way to extinguish a highway is to make a direct application to the local magistrates court under the Highways Act to secure its removal.
The first two methods require the advertisement of an order to modify the definitive map and statement, which is subject to a period of objection. In the event objections are received to the advertisement and order, it will be necessary to hold an informal public enquiry in order to resolve these objections. The team has experience of both advising on the nature of the appropriate order as well as providing advocacy at the informal hearings in relation to the diversion/extinguishment.
In the event you have a right of way crossing a site which may impede development, the contacts below have experience in dealing with these issues and would welcome a discussion with you to provide advice as to the most appropriate way forward to resolve the issue.
Potential Modifications to the Definitive Map and Statement
There is a requirement on the Local Authority responsible for maintaining the Definitive Map of all rights of way, bridle ways and by-ways to conduct a review of the Map on a regular basis. This review often engages with Parish Councils and neighbourhoods to seek to ascertain whether there are any footpaths, bridle ways or bye-ways that, whilst not recorded on the Definitive Map, are well used by the community.
The effect of this is that the community will be invited to file evidence as to their use and the Council may consider amending the Definitive Map and Statement to include is as a designated right of way. Clearly, this has implications for land owners as the imposition of a right of way across their land could prevent development in the future.
In our experience there are two issues that emanate from this possibility:
- The first is that land owners can make a deposit with the Local Authority under Section 31(6) of the Highways Act 1980. This is a process whereby the land owner files a declaration that either only recorded rights of way exist on the land, or that it has no rights of way over the land.
- The purpose of this declaration is that once it is accepted and registered, it is in place for 20 years and prevents any rights being accrued by prescription and use as of right by members of the public.
- Often land owners overlook this process and are faced with a situation where they are asked to comment on a proposed new footpath and often due to the nature of the land, there is no record whether they had permitted the public erected signs or sought to challenge the use of their land.
In such circumstances there is a need to formally respond to the Local Authority with evidence to seek to either prevent the claims footpath going forward or to prepare for an inquiry should the Local Authority make an order to modify the Definitive Map.
The team has experience of advising both Local Authorities and Land Owners in relation to these regulatory matters and also experience of attending informal enquiries to act as advocate for both the Local Authority or land owner as appropriate.
If you wish to consider any matters in this article please contact the team members below for an informal discussion.