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Stopping Up and Diversion of Highways

On occasion it may be possible to stop up or divert a public highway.  This can happen when either the road is no longer required as a public highway or where an alternative route is proposed. 

This removes the highway rights that exist on the land, and control of the land goes back to the owner.

A highway is defined as any area over which the public have the right to pass or repass. 

The term highway includes roads, carriageways, footpaths, footways, bridleways and cycle tracks and may include any verges or landscaped areas associated with them.

A highway may be adopted and maintained at the public expense or may be unadopted and privately maintained. 

Publicly maintained highways are listed in the list of maintained highways held by the council. Highway enquiry requests can be made to the Local Land Charges department.

We do not currently hold a list of privately maintained highways. 

In many cases the highway authority does not own the land beneath the highway. 

The land may form part of the adjacent lands title, it may be separately owned by a third party or there may be no owner. 

If you are applying to stop up a highway, you are responsible for ensuring that you have carried out the necessary searches etc to ascertain who the owner of the land is. 

You are also advised to take independent legal advice where an owner does not exist in order to ascertain any rights over the land.

Stopping up/diversion of the highway requires an order to be made either:

  • Under the Highways Act 1980, or;
  • Where the stopping up/diversion is required in order to implement a planning permission, the Town and Country Planning Act 1990

Highways Act 1980

Section 116 provides for the highway authority to make an application to the magistrates court to stop up or divert a highway where the highway:

  • is unnecessary, or;
  • can be diverted so as to make it nearer or more commodious to the public

The application may be for the complete removal of highway rights or for the downgrading of a route to footpath or bridleway.  Only the relevant highway authority can make an application to the court.

Section 117 allows anyone who wishes to make an application for a stopping up/diversion to ask the highway authority to make the application on their behalf.  Section 117 also allows the highway authority, where they grant such a request, to recover from the applicant any reasonable costs incurred in making the application.

Section 118 and 119 allow for the stopping up and diversion of footpaths and bridleways by a highway authority rather than a magistrates court.  They do not apply to roads.

Town and Country Planning Act 1990

Where a stopping up/diversion is required in order to implement a planning permission the stopping up/diversion is carried out under the Town and Country Planning Act. 

The decision on whether an order will be granted is made by the Secretary of State. 

It should be noted that the area to be stopped up must not be stopped up until the order is made as this is both an offence under the act and additionally the secretary of state does not have the power to stop up highways retrospectively.  

In these cases an application would then need to be made under the Highways Act 1980.  The stopping up/diversion would then need to meet the tests under the Highways Act and if the application is unsuccessful the applicant would be required to return the area back to highway.

Section 247 allows for the stopping up and/or diversion of any highway that is required in order to facilitate a development with a valid and relevant planning permission.  It may also provide for the provision of new/improved highway which also form part of the planning permission. 

Section 248 allows for the stopping up and /or diversion of highways which are affected when planning permission has been granted for the construction or improvement of a main highway and it crosses or enters the existing highway. 

Differences between the Town and Country Planning Act and the Highways Act

Applications for stopping up or diverting the highway must be made through the most appropriate route.  Whilst the process is similar there are distinct differences between the legislation that may affect the outcome of the application

 Questions

Town & Country Planning Act 1990

Highways Act 1980

Who can apply for the order?

Anyone

Highway Authority

How much will the application cost?

DfT Website

Currently no charge (Aug 2014)

CC cost schedule

2 stage Payment required

When can an order be considered?

Where the stopping up/diversion is required in order to implement a valid and relevant grant of planning permission

Where the highway authority agree that the highway is unnecessary or the diversion is nearer or more commodious for the public. 

What role does the highway authority play?

The highway authority is a consultee to the Secretary of State.

The Highway authority is the applicant to the court.

Who is consulted?

Those affected by the order and/or who may have an interest in the proposed stopping up/diversion

Those affected by the order and/or who may have an interest in the proposed stopping up/diversion.  The town or parish council

Who is responsible for making the order?

Secretary of State

Magistrates Court

What happens if objections are received and not resolved?

Public inquiry held.  The decision on whether to make the order is made by the planning inspector

If the application is for an unclassified road the town/parish council will need to give consent for the application to be made to the courts.  For all other cases where objections are received the highway authority will decide whether to proceed with the application or reject it.

Where an application is made to the court, the court will decide whether to make the order

 

Where the highway is to be stopped up under the Town and Country Planning Act an application will need to be made to the Department for Transport.  Further information on the process can be found on the DfT Website

Where the highway is to be stopped up under the Highways Act an application will need to be made to Cornwall Council who is the relevant Highway Authority for all roads in Cornwall.

The stopping up/diversion of public footpaths, bridleways are dealt with by the Countryside Access team

For stopping up/diversion of all other highways please contact highways-estates@cornwall.gov.uk

The applicant will be required to submit an application form prior to the council considering the request.  The council will then determine whether the area to be stopped up meets the criteria set out in section 116.  If the council agrees to the application being made the applicant will be required to pay the councils costs in connection with making the application.  In addition to these costs the applicant will also be required to meet all of the costs of the highway alterations including the construction of any new roads, the diversion of any highway apparatus and/or statutory undertakers plant and/or the costs of entering into any wayleaves/easements that may be required as a consequence of the order.

The council will prepare the necessary plans and undertake an informal consultation with all parties.  Consultees in the process include

  • Town/Parish council
  • Statutory undertakers i.e. gas, water
  • Adjoining owners and occupiers of all land which will be directly affected by the proposed order
  • Local county councillor
  • Interest groups
  • Other council departments

Where an application is made for an unclassified road the town/parish council must give consent for the application to be made to the court.  Where this consent is withheld the application will be rejected.  It is therefore advisable to contact the town/parish council prior to making an application to the council to ascertain whether they would support your proposal.  If objections are made by other consultees then the council may negotiate with any objector to try and resolve any issues arising or reject the application. 

Once the informal consultation has been completed the council will advise the applicant as to whether the application to the court can proceed.  The council’s legal team will then serve notice of the intention to make an application to the court. 

A notice will be erected at either end of the highway to be stopped up and placed within the local and national newspapers.  It should be noted that at this point further objections may be received. The council will then make an application to the court.  A hearing will then be held at which any objectors can attend and the court will make a decision on whether to grant the order. If the order is granted, the order is made on the day of the court hearing. 

When an order is made it may either allow for the stopping up/diversion to come into effect from the date stated in the order or, where works are required to facilitate the stopping up/diversion, it may require improvement works to be undertaken prior to the stopping up/diversion coming into effect. 

Where improvement works are required they must be undertaken at the applicants cost.  The applicant will need to submit plans for approval by the council and enter into the necessary agreements/licences to work on the highway.  Until any requirements of the order have been complied with and certified by the council the land will remain highway and the applicant must not interfere with it or close it off.