Reckoning with rights of way

Posted: 24/10/2023

Public rights of way often turn up during the due diligence on a new site, usually in the form of a small track that has been used by the local population for a number of years. However, it is worth remembering, for any potential development, that it is a criminal offence to obstruct the whole or part of a public path without a stopping up order or a diversion order, and therefore steps will need to be taken prior to and during the development process.

Is a path a public right of way?

For a path to become a public right of way it must first be dedicated by the landowner and then accepted by the public at large using the right of way. The right of way can be expressly dedicated by the landowner formally making a written statement confirming it has been dedicated, accompanied by a plan. Alternatively (as is more commonly an issue for development sites), the dedication can be presumed.

Presumed dedication is either by common law or by statute (this article will not distinguish between the two), but essentially it should have been used by the general public:

• for 20 years (potentially less, but subject to specific legal advice);
• without interruption; and
• without force, secrecy or permission.

How to identify a public right of way

The easiest way to identify a public right of way is to complete a site visit. If the dedication is only presumed, then the use of the right of way could be evident from either members of the public using the path or the physical effects of people using a right of way (such as a trampled or maintained path running from a boundary).

If not obvious from a physical inspection of the property, a formally dedicated right of way may be picked up during legal due diligence (via a highways search, local search or title to the property). If a public right of way is identified during the legal due diligence, then it is likely to be accompanied by a plan mapping the public right of way. If not identified with a plan, then a developer will need to carefully and accurately plot the right of way in order to successfully account for it, stop it up or divert it.

What is the issue?

Where a public right of way has been identified on a development site, it would be easy to just say: ‘So what? It’s just a small footpath which the public can go around – let’s build over it.’ Although this may seem like a reasonable thought process, it is actually a criminal offence to obstruct a public right of way, and the highway authority has the right to demand removal of the obstruction at the cost of the owner.

For a developer and/or landowner, it could be costly, incredibly inconvenient and disappointing to have a house or part of a development site knocked down, and also be charged for it and required to pay a fine on top.

There are three ways around this issue:

Account for the public right of way with no alterations
The simplest option is to account for the right of way as it currently is, ie plan the development around the right so that nothing traverses it and so that the public can continue to use it unaltered. This, of course, will not always be practical for every site – for example, where the right runs across the majority of the site and blocks the intended access to the public highway. This could potentially impede development.

Stop up the public right of way
The next option to consider is whether the public right of way can be stopped up, ie removed altogether. To do this, you need to prove that the right of way is now unnecessary (not just that it is thought to be unnecessary, but in factual terms that it is not being used by the public). The procedure to then obtain a stopping up order is roughly the same as for obtaining a diversion order (both are explained below).

Diversion of the public right of way
The third option is to seek a diversion of the public right of way, by offering a new or altered route which will be nearer or more commodious. This is not discretionary and will need to be either of these in factual terms. If the diverted right of way is not nearer or more commodious, then the magistrates’ court should not accept the diversion order when applied for.

How to apply for a diversion or stopping up order

The highways authority must apply to the magistrates’ court for either order; it cannot be done directly by an interested party. The process is broadly as follows:

• An interested party can submit a request to the highways authority to obtain a diversion or stopping up order. The authority then applies to the magistrates’ court.
• The highways authority must give two months’ notice to the district council and the parish council, each of which can refuse consent.
• If the application is for a diversion, then the highways authority must then obtain the consent of anyone with a legal interest in the land over which the right of way runs.
• A notice must then be displayed in a local newspaper and the London Gazette for at least 28 days prior to the magistrates’ court’s decision. This must be served on all landowners and statutory undertakers with apparatus on the land.
• Finally, the matter goes to the magistrates’ court, where a decision is made.
• If an order for diversion or stopping up is made, this can be subject to judicial review.

What happens next?

Here the two processes differ. If a stopping up order has been obtained then, on the order being made, the public right of way ceases to be such. However, a developer should wait for either (i) the judicial review period to expire, or (ii) a judicial review indemnity insurance policy to be in place before constructing on the former right of way.

If a diversion order has been obtained, the original public right of way will only cease to be such, and the order only become effective, once the diverted right of way has been constructed and a certificate signed by the magistrates to this effect is acquired (it is worth noting that the order is also subject to judicial review).

Where it is the intention to divert the public right of way and the transaction involves a contract which is conditional on confirmation of that diversion, it is important that the contract is made conditional on the order being effective and not just made. It must also take into account the potential judicial review period or include a requirement for a judicial review insurance policy to be obtained.

Rights of way and development sites: process checklist

When dealing with potential development sites which are subject to a public right of way, the following matters should be considered:

• Is a public right of way identifiable by visiting the site?
• Is a public right of way identified in the legal due diligence?
• Can the public right of way be accounted for in the proposed development plan without stopping up or diverting it?
• If it cannot be accounted for, can the location of the right of way be altered to make the development viable?  
• If yes then an application for a diversion order should be submitted.
• If no then a stopping up order will be required.
• Request that the highways authority applies for a diversion/stopping up order (consent will be needed from both the district council and the parish council).
• If a diversion, any landowner of land over which the right of way currently crosses will need to consent to the diversion.
• A notice must be published in the local newspaper and London Gazette for 28 days, and also sent to all landowners and relevant statutory undertakers.
• A decision is made by the magistrates’ court, subject to judicial review.
• If stopped up, then from the point of the court decision the public right of way is considered stopped up (though subject to judicial review).
• In the case of a diversion order, any development works should not commence until a certificate is obtained from the magistrates for the alternative right of way that the diversion order is effective.

This article was first featured in Estates Gazette in October 2023. 

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