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Despite the common law maxim, 'once a highway, always a highway', a highway can be subject to overriding statute. Consequently, highways may be closed or diverted under many Acts of Parliament, or by natural causes.
- Introduction
- Statutory Provisions
- Creation Agreements
- Town and Country Planning Act 1990 Cases
- Acquisition of Land Act 1981 Cases
- Wildlife and Countryside Act 1981 Cases
1.1. The purpose of this Advice Note is to provide some general background information on public rights of way and some of the various types of rights of way orders which are submitted to the Secretary of State (SoS) for confirmation. Further guidance on rights of way orders can be found in Department for Environment Circular 1/09 sections 4 and 5....
2.1 Highways Act 1980 Creation of Rights of Way
2.1.1 FPs, BWs and RBs may be created by agreement between a local authority and anyone having power to dedicate such a way over the land in question, being in the local authority’s area (Highways Act 1980 (HA 80), section 25). Parish/community councils also have powers to create FPs and BWs by agreement if in their opinion it would be beneficial to the inhabitants of the parish or community (HA 80, section 30). Since they are created by agreement, these cases are not submitted to the Inspect...
2.2 Public Path Extinguishment Orders
2.2.1. A footpath, bridleway or restricted byway can be stopped up by an order made by a council, if it appears to them that it is expedient on the ground that the way is not needed for public use (HA 80, section 118(1)). For extinguishment of ways over railways or tramways see HA 80, S118A. Once again, if objections are received and not withdrawn the order will come to the SoS for confirmation. 2.2.2. Section 118(2) sets out conditions for confirmation of an order. The decision-maker must be...
2.3 Public Path Diversion Orders
2.3.1. Footpaths, bridleways and restricted byways may be diverted by order of a council, under section 119(1) of the HA 80, if it appears to them to be expedient to do so in the interests of either the owner, lessee or occupier of land crossed by the way or of the public. 2.3.2. Section 119(2) specifies certain restrictions on what orders under section 119 may do in terms of altering a point of termination of the way. Subsections (2)(a) and (b) specify, respectively, that an order cannot alt...
3.1. Section 25 of the HA80 allows highway authorities to enter into agreements with landowners to create new public footpaths and bridleways. These agreements are essentially a matter for the parties concerned. They do not require confirmation and do not come to the Secretary of State for determination. Although sometimes linked to diversion or ex...
4.1 Stopping up or diversion of FP or BW to enable development to be carried out
4.1.1. Following a grant of planning permission, the local planning authority (LPA) may make an order to stop up or divert a FP, BW or RB if they are satisfied that it is necessary to enable that development to be carried out (TCPA 90, section 257). Similar powers are available to the SoS (TCPA 90, section 247). 4.1.2. Before an order can be confirmed, or indeed made, it must be apparent that there is a conflict between the development and the right of way, such as an obstruction. An outline...
4.2 Land held for a planning purpose
4.2.1. Section 258 of the TCPA 90 gives power to local authorities to make an order extinguishing footpaths, bridleways or restricted byways over land which they hold for planning purposes. An order may not be made unless the authority is satisfied either that an alternative is not required or that an alternative has been or will be provided.
4.3 Surface mineral workings
4.3.1. Section 261 of the TCPA 90 allows for orders to be made under section 247 or section 257 to temporarily stop up or divert a highway (in the case of section 257 orders, for footpaths, bridleways and restricted byways) for the purpose of enabling surface minerals to be worked. This is provided so that the highway can be restored to a condition not substantially less convenient to the public, after the minerals have been worked.
5.1 Extinguishment of non-vehicular rights of way
5.1.1. Section 32 of the above Act enables acquiring authorities to make orders for the extinguishment of non-vehicular rights of way over land that is, or could be, or is proposed to be acquired compulsorily. Before making an order, the acquiring authority must be satisfied that a suitable alternative has been or will be provided (or that an alternative is not required) e.g. by way of a public path agreement or order. 5.1.2. Section 32 provides for restrictions on the order making power, suc...
6.1 Definitive Map Orders
6.1.1. Surveying authorities (SAs) (usually a county council) are under a duty to keep their definitive maps under continuous review through making orders to modify them (see section 53(2) of the WCA 81). The duty includes making what are known as legal event orders. These orders in effect record changes to the network of RoW that are the result of the coming into operation of any enactment, instrument or similar event, such as a stopping up, creation or diversion order. Such orders do not co...
6.2 Modification orders under Section 53
6.2.1. Orders to modify DMs made under section 53 of the WCA 81 fall into three distinct categories, which are set out in subsections 3(a), (b) and (c). These are: (a) orders to take account of “legal events”, such as a creation, extinguishment or diversion orders, which have already taken effect; (b) orders based on the creation of new or increased public path rights either on the basis of section 31 of the HA 1980 or by implied dedication at common law; (c) orders based on the discovery by...
6.3 The effect of the Natural Environment and Rural Communities Act 2006
6.3.1. Sections 66 - 71 came into effect in England on 2 May 2006. Section 67(1) extinguished all public rights for mechanically propelled vehicles that were not already recorded on the definitive map on that day, subject to certain exceptions which are listed in sub-sections 67(2) and 67(3). Provisions are made for private rights to be retained where MPV access to land is necessary. 6.3.2. In dealing with WCA 81 orders where vehicular rights are at issue, it will still be necessary to reach...
Under the Highways Act 1980, local highway authorities have the power to permanently close public rights of way if they consider that the path is not needed for public use. Section 116 can be used to extinguish a path by applying to the magistrates’ court for a closure order.
According to several laws relating to the 'right of way', the general public has protected rights to pass and repass certain types of public and private lands. This guide explains how to use public rights of way 'legally' and how your 'right to roam' has restricted access for certain areas.
Oct 29, 2021 · There are relatively simple steps which can be taken to try to reduce the risk, such as erecting signs stating there is no public access and keeping gates closed and locked to prevent access.
Under section 118 of the 1980 act, a landowner can apply for an order permanently to close a path. The process is the same as above, but the legal test that must be satisfied is that the path is not needed for public use. Paths may also be diverted or extinguished to enable development to take place (see below).
People also ask
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A property owner’s right of access to an abutting public road is one of the more legally arcane sticks in the so-called “bundle of sticks” that constitute property rights. Known as a “common-law right of access,” the legal framework has developed via case law over time.
