Public rights of way can be diverted, extinguished or created through Public Path Orders under the Highways Act 1980 or Town and Country Planning Act 1990.
The Council has (discretionary) power to make Public Path Orders (but are under no duty to do so). The orders will be made once the Council is satisfied that it is in the interests of the public, owner, lessee or occupier of the land and that relevant legal tests can be met. The Public Path Orders will be made under Sections 26, 118 or 119 of the Highways Act 1980.
Public Path Orders made by the Council under section 257 of the Town and Country Planning Act 1990 contribute to changes to public rights of way. Enabling implementation of a planning permission.
If the public have used a route, as of public right, for 20 years or more and without interruption they may apply for a Modification Order.
This process may also be used to change the status of existing paths including
For further information, please see Definitive Map Modification Orders.
A Modification Order is made under the Wildlife and Countryside Act 1981
Proposals to change public rights of way can arise from an individual, an organisation or the Council. The decision on whether and how any footpath, bridleway or restricted byway should be diverted or extinguished is a public one.
This ensures the public are aware of proposed changes and anyone can state their views before a decision is made.
In the interests of landowners: Using a Public Path Diversion Order occupiers or the public can divert:
- a footpath
- bridleway or
- restricted byway
A Public Path Diversion order is made under Section 119 of the Highways Act 1980. But, diversion of a byway must go before a Magistrate’s Court
Before making an order, the Council must be satisfied that diverting the path is in the interests of the public or the owner, lessee or occupier of the land crossed by the path.
The Council will ensure a convenient diversion. Ensuring there is no alteration to any path termination point, (other than to another point on the path or connected highway). Nor can the termination be altered where this is not a highway, such as a cul-de-sac. Before confirming the order the Council or Secretary of State, must be satisfied that the diversion is in the interests of the persons stated in the order. That the path will not be less convenient to the public and that there is no effect on the publics enjoyment of the path. Or there is any effect on other land served by the existing path and land affected by any proposed new path.
A public right of way can be extinguished using a Public Path Extinguishment Order. Under Section 118 of the Highways Act 1980.
Before making an order it must show that it is expedient for the Council to extinguish the path based on it it not being needed for public use. Before confirming the order the Council, or Secretary of State, must be satisfied with the extent the path is used. Taking into account compensation provisions and the effect closure would have on the land.
However, such applications generally receive objection and are often not processed or confirmed as a result.
In making and confirming the order, the Council and Secretary of State must disregard temporary circumstances that prevent or diminish public use of the path.
Only the owner of the land crossed by the proposed new path has legal capacity to enter 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 limitations on the path and will, thus, be on the Definitive Statement. A way created under an agreement becomes maintainable at public expense. Cornwall Council reserves the right to waive or reduce fees depending on the proposals individual merit. For example: benefit to the public network instead of a Definitive Map Modification Order.
The creation of a public right of way, uses a Public Path Creation Order under Section 26 of the Highways Act 1980. A new public footpath, bridleway or restricted byway can only be created if the Council deem the creation would add convenience or enjoyment to a large section of the public or local residents.
A public right of way can be extinguished or diverted using a Public Path Stopping Up or Diversion Order. Under Section 257 of the Town and Country Planning Act 1990. If the applicant can prove it necessary to stop up or divert a public right of way under a granted development planning permission.
Before making a planning application check if a public right of way will be affected by contacting the Countryside Access Team. The granting of outline or detailed planning permission does not allow the developer to close or divert a public right of way. Public rights of way must remain open and unobstructed until necessary statutory closure/diversion procedures are complete. If planning permission is granted, or not required, it 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. But, 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, that developers consider public rights of way at the earliest, i.e. when formulating development proposals. The developer must either apply for temporary closure or diversion to ensure the path is not obstructed. Failure to do so could result in development delay.
The Highway Authority can 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. This requires three months written notice and a cost in associated. Please write to:
Western Group Centre
Or call: 0300 1234 222
Traffic Regulation Orders made under the Road Traffic Regulation Act 1984 prohibit the routes use to certain traffic user categories. Traffic Regulation Orders can be either permanent or temporary.
Temporary closures or diversions can be achieved through a Traffic Regulation Order.