Does a public right of way cross your property? Is your privacy affected?
It may be possible to apply to the local highway authority to divert the line of the public path so as to be less intrusive on your privacy. The following information will help you assess whether an application for a public path diversion order is suitable for you.
What public rights of way can be diverted?
Section 119 of the Highways Act 1980 (“the Highways Act”) provides powers to the local highway authority to make order for the diversion of the following types of highways (“the public path diversion orders”):
- footpaths – a public right of way on foot only
- bridleways – a public right of way on foot and horseback (or leading a horse) only
- restricted byways – a public right of way by all lawful means other than by motor vehicle
When can a Public Path Diversion Order by made?
A public path can be diverted where it is shown that it is expedient in the interests of the landowner (or lessee/occupier) of the land or the public to do so but only where:
- the diverted route would not be substantially less convenient to the public; and
- the diversion would not alter any point of termination of the path, other than to another point on the same highway or a connected highway
The authority must also consider the diverted route against any material provisions of their rights of way improvement plan.
In assessing whether the diverted path will not be substantially less convenient to the public, the authority will consider a number of factors. These include:
- physical features – the physical features of the new route should be similar to, or better than, the original route (i.e. surface, gradient, and path width)
- directness – the new route should not unreasonably lengthen the path
- landscape character – the new route should not result in lower quality or diversity of views for the path user
- features of interest – the new route should not move the path away from significant features of interest
- financial – the new route should not result in any increased maintenance costs
- safety – the new route should not subject users to any potential dangers or hazards
- needs of all users – the new route should include features to improve access for the mobility impaired user (e.g. gates rather than stiles and ramps rather than steps)
Any existing obstructions of the route (and failure to comply with enforcement notices) are material considerations in the authority’s decision making for an order. Therefore you should ensure the existing route is unobstructed.
What happens after a Public Path Diversion Order is made?
Once a public path diversion order is made by the authority it does not come into immediate effect. First the authority is required to give various statutory notices of the made order. This includes: local newspaper advertisements; site notices; and notices to affected parties. The notice will provide 28 days for any objections to be sent to the authority.
If no objections are received then the authority will usually confirm the order and it will take legal effect upon the date specified in the order (e.g. the order may be conditional upon completion of certain improvement or accommodation works).
If objections are received (and not withdrawn) then the authority will refer the order to the Secretary of State to determine whether the order should be confirmed. The Secretary of State will either determine the issues by: local inquiry, hearing or written representations. You should ensure you are a party to such procedures.
If the public path diversion order is confirmed then the authority will make a subsequent order to amend the definitive map and statement which records the public path diverted.
Applying to the authority for a Public Path Diversion Order
Any person may apply to the local highway authority for a public path diversion order. However, usually it is the landowner or property affected by a public path that makes such application. Application forms for the diversion of a public path can be obtained from the relevant authority. The application form should be submitted to the authority with:
- a map (not less than 1:2500 in scale) detailing the existing and proposed public paths
- written agreement of the owners and tenants of any land forming part of; the public path to be closed; and the proposed public path
The applicant is required to:
- pay the authority’s reasonable costs up to the making of the order
- enter into a maintenance agreement with the authority
- pay all costs and carry out all works required to implement the diverted route on the ground and indemnify and pay any compensation arising by any landowner for loss in value or enjoyment of their land caused by the public path diversion order (Section 119(5) Agreement)
The authority must determine the application as soon as reasonable practicable. Many authorities have long waiting lists for applications for public path diversion orders.
Some authorities will expedite applications where the applicant (or their agent) has carried out an informal consultation (in co-operation with the requirements of the authority) on the proposed diversion. Such consultation will assist both the landowner and the authority in determining likely objections and provide an opportunity to resolve such objections before any order is made by the authority.
You should therefore consider discussing the authority’s requirements before making any formal application.
Rights to challenge a decision
If the decision was not to confirm the order, or not to make the order, you may apply to the High Court for a judicial review of such decision promptly and in any event not later than 3 months from the date of the decision.
If the order has been confirmed, any challenge of the decision may be by judicial review in the High Court. Such application must be made within 6 weeks of the date on which the Local Authority publishes notice of the decision. If a judicial review is successful the order will be quashed. Accordingly, you should be an interested party to such proceedings.
Any judicial review will need to be on one of the following grounds:
- illegality – the authority misdirected itself as to the law or exercised the wrong powers
- irrationality – the decision was so unreasonable that no reasonable authority would have made it (known as the Wednesbury’s reasonableness principle) including mistakes of facts and not considering relevant matters or considering irrelevant matters
- procedural unfairness – prejudicial failure to comply with statutory procedure (e.g. consultation) or observe principles of natural justice
- legitimate expectation – the authority has made clear and unambiguous representation that it will adopt a particular form of procedure above and beyond that which it would otherwise have been required to adopt
How we can help
If you need help and guidance on making an application for a public path diversion order or have concerns or questions over anything mentioned above then Buckles Solicitors will be able to assist and assess your requirements.
