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Strategic land development and public rights of way

Takeaways from webinar on 2 February 2021 hosted by Karen Howard, Matthew Stimson and Grace Mitchell from our planning & environmental team.

What are public rights of way and why are they relevant?

  • A public right of way (PROW) is a type of highway - a route across land over which the public at large has a right to pass/ repass without permission or interference.
  • They are distinguishable from both private rights of way/ easements which are personal and exclusive to individuals and permissive rights of way, which can be withdrawn by the grantor at any time.
  • Fall into five main classes: footpaths, bridleways (by foot, horses, cycles), restricted byways (foot, horseback, non-mechanically propelled vehicles, driving animals) bridleways open to all traffic (BOATs) and cycleways. Each have different implications upon development, important to understand the extent of the right as well as the physical description.
  • A definitive map and statement, showing the route of the path and providing a description of the extent of the right and the physical characteristics of a path, is maintained by the local authority. It is conclusive evidence that a route specified is a public right of way, however it is not conclusive evidence that other rights of way do not exist.
  • As routes change all the time, there is a duty on the local authority to keep the map and statement under review. Applications for new rights of way can be made at any time, which may frustrate development, important to be certain of route of path when comes to stopping up/ diversion.

Impact on strategic land development

  • Serious implications of not taking PROW into consideration, including the potential to commit an offence for obstruction or the offence of building over a highway.
  • Parish councils also have power to maintain public paths under Highways Act, without prejudice to the local authority’s duty to maintain.

Constraint to development?

  • PROW may limit where development can take place (including the roads that may be constructed to access a development). This will be factored in when considering the housing yield of a development.
  • May be a cause for public opposition to a development.
  • A stopping up/ diversion order may weigh against a development scheme.

Opportunity for development?

  • May provide a means of access and therefore make a site more sustainable.
  • Provides an opportunity for enhancement.
  • Can create a new public footpath by agreement under section 25 Highways Act 1980.
  • Important to consider implications at outset to manage risks; stopping up existing paths which will need to be organised separately to the application and will often be made after the planning permission stage. This should be factored into a long stop date in a contract.
  • May suggest a landowner makes a declaration under section 31A of the Highways Act to the extent that there are no further rights of way of which he is aware of, in order to prevent a new right of way being created. Important to consider the responsibility and timescales involved in this declaration.
  • Should plan how third  party PROWs are dealt with, including right to terminate/ extension of time in contract, who shall be responsible for dealing with an application and assistance between parties.

Relevance to Planning

  • The need for a stopping up/diversion of a PROW will need to be made clear in a planning application.
  • If the LPA considers that paths can be maintained during development, this may cause an application to stop up or divert a highway to be refused.
  • Options to consider include temporary closure/ diversion, permissive path agreements for alternative routes.
  • n.b: temporary stopping up orders are only effective up to six months. For larger and longer-term development, a s106 and/or s278 agreement may be more appropriate. These also provide a means to deliver improvements.
  • If the development will create new paths to be adopted, dedication agreements should be considered and can be dealt with in a s106 Agreement supporting the development.

Options and procedures for stopping up and diversion

1. Section 257 TCPA – to be used where the stopping up is necessary for a development to be carried out in accordance with a planning permission. 

  • Discretionary, stopping up/diversion should not be presumed wherever there is permission.
  • Not appropriate for substantially completed developments.
  • Applications can be made pre-application, although will not be granted until after the permission is issued.
  • Should not override considerations of consultees’ interests.

2. Section 118 Highways Act – for when a path is no longer needed for public use.

3. Section 119 Highways Act – when the stopping up/ diversion would be in the interests of the landowner/ public, so long as the diversion will not be substantially less convenient (considering physical features, safety concerns, potential maintenance costs) and it would be expedient taking factors such as public enjoyment into account.

  • Open Spaces Society v Secretary of State for Environment, Food and Rural Affairs illustrated a shift to the balance swinging in the favour of the landowner, who may wish to secure a diversion for health or privacy.
  • Making an order - A similar process applies when making an order under any of the provisions:
  • Publish notice in paper stating general effect of the order, specifying where the order is available for inspection and details of how to object (min. 28 days from publication).
  • Serve notice on all interested parties
  • Display notice on either end of the footpath
  • Applicant is to pays costs
  • Confirming the order – if no objections/ objections resolved and withdrawn, order will be confirmed. If there are objections, under s257 process, order must be submitted to the Secretary of State to resolve. S119 contains a discretionary right to submit the order to the Secretary of State.
  • Once confirmed, must ensure:
    • Same publicity and notice requirements must be complied with
    • Definitive Map must be amended to reflect changes.
  • Challenging order – can apply to High Court within six weeks on the grounds that local authority acted ultra vires or didn’t carry out correct procedure.
  • Compensation – unavailable for s118 and s257. Can be made pursuant to s119 if affects value/ enjoyment of land. Application must be made within six months.

Managing consultation

  • Important to ensure the definitive line of the path is kept open throughout, rather than assume it will be diverted and obstruct. If not kept open this may result in an application to divert less likely to be accepted.
  • Since right of way proposals are focussed around trust, can often be quite emotive process for consultees.
  • Consultees – the district/borough council should be consulted, along with statutory undertakers, Ramblers Association, Byways and Bridleway Trust and British Horse Society (maybe others).
  • County council will likely carry out a broader consultation in the initial stages, including issuing and publicising non-statutory notices to prepare for any formal objections that are likely to be made.
    • Must be given 28 days to respond to consultation letter, which must include: reasons for order and benefits, details of how proposal will meet the legislative tests and policies, how the diversion will be made to a suitable standard, details of the physical features. A copy of the draft order and plan should be attached, with an extract of Definite Map.
  • Helpful to arrange site visit to meet consultees and start dialogue about their concerns.
  • Consultation report must be complete and accurate, with any objections to be sent to county council.

Reform

  • Often problems with timing and point at which pathway/bridleway is needed, conflict between separate regimes.
    • Especially so where there is much needed housing/regeneration. Should consider whether can be incorporated into scheme at an early stage.
  • Consultation and report in 2012/3 which suggested options to improve and support progress on planning applications and diversions.
  • Ideas for reform include:
    • More collaboration between highways and planning authorities.
    • Requirement for early consultation with prescribed bodies for those planning applications involving PROW.
    • Ensure all highways are considered when allocating areas for redevelopment at local plan stage, consider any necessary improvements and time scales.
    • Planning application forms to ask whether there is a PROW within/adjacent to proposed development.
    • Planning officers and PROW officers working more closely together.
    • Information on PROW should be made available on public authority websites, including procedures and important contacts within the highway authority.
    • Planning and PROW work should be undertaken by the same authority – advertising the application should include the PROW rather than being done separately.
    • Planning authorities should be able to make decisions on PROW without needing to refer to the Secretary of State, as it currently takes significant amount of time.
  • If more discussion up front, may make it less emotive.
  • Key – make PROW a material consideration in planning process, as opposed to being within an entirely separate regime. Should ensure the public interest is considered as early as possible.

Question: Impact of COVID-19? 

  • Reform in this area is low on the priority list, not yet had regulations through providing details of the end of process for historic public rights of way being added to the register.

Question: What is the typical timeframe for stopping up under s257?

  • There is not a straightforward answer; whilst there are timeframes for advertisement and objections, there is no statutory procedure for applying.
  • Six months as a guide assuming little or no objection but this could be longer, considering county councils’ application procedures differ and many suffer from a resource problem.

Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2021.

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