Public Path Orders

Changing Rights of Way

Changes to public rights of way through their diverting, extinguishing or creating can be achieved through a Public Path Order either under the Highways Act 1980 or under Town and Country Planning Act 1990.

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The Council has the (discretionary) power to make Public Path Orders (but are under no duty to do so), under Sections 26, 118 or 119 of the Highways Act 1980, once it is satisfied that it is expedient to do so in the interests of the public, of the owner, lessee or occupier of the land crossed by the path and that the relevant legal tests can be met.

Public Path Orders, made under section 257 of the Town and Country Planning Act 1990 by the Council, are the means by which a change is made to public rights of way to enable the implementation of a planning permission.

In addition, if the public have used a route for twenty or more years as of public right and without interruption, they may apply for a Modification Order under the Wildlife and Countryside Act 1981.  The statuses of existing footpaths, bridleways and byways can also be modified using this process. For further information, please see Definitive Map Modification Orders.

Proposals to change public rights of way can arise from an individual, an organisation or the Council itself. The decision process as to whether and how any footpath, bridleway or restricted byway should be diverted or extinguished is a public one. The procedure followed is designed to ensure the public are made aware of the changes proposed and that anyone who wishes to state their views and have them taken into account before a final decision is made has the opportunity to do so.

The diversion of a footpath, bridleway or restricted byway, using a Public Path Diversion Order, is made under Section 119 of the Highways Act 1980, in the interests of landowners, occupiers or the public. The diversion of a byway must go before a Magistrate’s Court.

Before making an order, the Council must be satisfied that it is expedient to divert the path in the interests of the public or the owner, lessee or occupier of the land crossed by the path. 

The Council must also be satisfied that the diversion does not alter any point of termination of the path, other than to another point on the same path, or another highway connected with it, and which is substantially as convenient to the public. Nor can the termination be altered where this is not a highway, such as a cul-de-sac. 

Before confirming an order the Council, or the Secretary of State, must be satisfied that:

  • The diversion is expedient in the interests of the persons stated in the order;
  • The path will not be substantially less convenient to the public as a consequence of the diversion;
  • It is expedient to confirm the order having regard to the effect it will have on public enjoyment of the path as a whole, on other land served by the existing path and on land affected by any proposed new path.

The extinguishment of a public right of way, using a Public Path Extinguishment Order, is made under Section 118 of the Highways Act 1980 and before the making of an order it must be demonstrated that it is expedient for the Council to extinguish the path on the grounds that it is not needed for public use.

Before confirming the order the Council, or Secretary of State, must be satisfied that it is expedient with regard to the extent the path is likely to be used and the effect that closure would have on the land served by it, taking into account the provisions for compensation. However, such applications generally receive tremendous objection and are often not processed or confirmed as a result.

In making and confirming the order, the Council and the Secretary of State must disregard any temporary circumstances preventing or diminishing public use of the path.

Only the owner of the land crossed by the proposed new path has the legal capacity to enter into a creation agreement with the Council to dedicate it as a public footpath, bridleway or restricted byway. Any stiles or gates on the path will be included as limitations on the path and will, therefore, be included on the Definitive Statement. A way created under an agreement automatically becomes maintainable at public expense. 

Cornwall Council reserves the right to waive or reduce the fees depending on the individual merits of the proposal, i.e. benefit to the public network or in lieu of a Definitive Map Modification Order.

The creation of a public right of way, using a Public Path Creation Order, is made under Section 26 of the Highways Act 1980 whereby a new public footpath, bridleway or restricted byway can only be created if it appears to the Council that there is a need and that it would be expedient to do so with regard to: 

  • The extent to which it would add to the convenience or enjoyment of a substantial section of the public or to local residents and;
  • The effect that the creation would have on the rights of those with an interest in the land. 

A public right of way can be extinguished or diverted, using a Public Path Stopping Up or Diversion Order made under Section 257 of the Town and Country Planning Act 1990, if the applicant can demonstrate that it is necessary to stop up or divert the route of the existing public right of way to enable development to be carried out in accordance with planning permission granted.

Anyone looking to extend or develop a site is advised to check with the Countryside Access Team before making a planning application in order to determine whether or not a public right of way will be affected by the development or the building operations. The granting of outline or detailed planning permission does not allow the developer to close or divert a public right of way affected by a development. Public rights of way must remain open and unobstructed at all times until the necessary statutory procedures, which authorise closure or diversion of the path, are complete. The fact that planning permission has been granted, or is not required, does not entitle a developer to obstruct, interfere with or move a public right of way.

Wherever possible the development should accommodate the line of the existing path. However, if this is not possible, there is means within the planning permission to have the path stopped up or diverted (if proven that it is necessary). It is essential, therefore, that developers consider the question of public rights of way at the earliest stage, i.e. when formulating development proposals.

The developer must either apply for a temporary closure or to have any public right of way affected by the development diverted in order to ensure that the path is not obstructed. Failure to do so could result in the development being delayed. The Highway Authority can also legally remove any obstruction over or across a public right of way and recover costs from the landowner.

A landowner can apply for a temporary closure to a public right of way to allow for the development of the site for a maximum six month period. There are costs associated with this and three months written notice is required by writing to:

Streetworks
Cornwall Council
Western Group Centre
Radnor Road
Scorrier
Redruth
Cornwall

TR16 5EH

Or call: 0300 1234 222

Traffic Regulation Orders are made under the Road Traffic Regulation Act 1984 to prohibit use by certain categories of user where a route is not suitable for use by all traffic. Traffic Regulation Orders can be either permanent or temporary.

Temporary closures or diversions can be achieved through a Traffic Regulation Order.