Public rights of way: diverting paths across contained spaces

20th June 2024

photo of people walking on a right of way

Public rights of way can be found across all types of properties, including residential, commercial, agricultural, and industrial premises.

In many instances, landowners or occupiers wish to divert or extinguish those rights of way because it is in their interest, whether that is in terms of safety, security, privacy or otherwise. The Highways Act 1980 provides a mechanism for applying for diversions and extinguishments once the respective relevant legal tests are met.

In August 2023, the government published guidance for local authorities and the Planning Inspectorate to take into account when considering such applications. It acknowledges that the public “may not be comfortable following a path through a contained space because doing so feels like infringing on the privacy of a house owner, or potentially disrupting, or being endangered by, activities within a farmyard or commercial premises”.

The guidance applies where a public right of way passes through:

  • A garden or curtilage of a residential dwelling
  • A working farmyard
  • Commercial or industrial premises.

In short, the relevant authority should now give due weight to a landowner’s concerns regarding the important considerations of privacy, security, and safety against the overall impact of the proposal on the public as a whole.

So, when making its decision whether the existing path should be diverted or extinguished, the relevant authority should consider the impact of the existing path on the landowner against the benefit that having the existing path across that property brings to the public.

Taking all of that into account, the guidance states that relevant authorities should therefore be “predisposed to make, and […] confirm, an order if it satisfies the respective relevant legislative tests”.

The application process for a diversion or an extinguishment can take several years from application to determination – there is a substantial backlog – and that is if the local authority even decide to take it forward in the first instance; there is no obligation and resources are already stretched. To address this a new right, called the “right to apply”, is set to come into force.

That right will entitle an applicant to a determination by the local authority within four months of making the application, subject to an appeal to the Secretary of State if they fail to do so. The flip side of that is the applicant will be required to carry out much of the preliminary work and the local authority will be able to recover its full costs from the applicant. Having the application determined by the local authority within that window is just the start however, as any opposed orders will still need to be referred to the Planning Inspectorate for a final decision.

Although the legal tests have not altered, the guidance is a step in the right direction for those seeking diversion or extinguishment of a public right of way. It is still early days in terms of implementation and effect, and reference to the guidance should now be made in every application.

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