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  • Writer's pictureRob Connor

Understand the law regarding footpath changes

The public rights of way network is constantly changing. Every year hundreds of paths are diverted or closed. Sometimes, more rarely, new paths are created. But it's important to note that changes can be brought about only as the result of a procedure in which a legal order to bring about the change is made. Such orders are made by local authorities or government ministers – a landowner can’t make an independent decision to move or close a path.

We’ve laid out the most common procedure for bringing about a change to the path network. This procedure provides the opportunity for members of the public to comment on, or object to, what’s being proposed. We’ve produced some guidance to explain how to oppose an order that's not in the public interest.

Orders under the Highways Act 1980

The Highways Act 1980 allows highway authorities (i.e. county councils or unitary authorities), and non-metropolitan district councils, to make orders to change the rights of way network for a variety of reasons, including:

  • Creating a new right of way where it can be shown that there is a need for it (section 26).

  • Extinguishing (closing) a right of way where it’s not needed for public use (section 118).

  • Diverting a right of way where it can be shown that it’s expedient (necessary) in the interest of the relevant landowner and/or the public to do so (section 119), but only where: (i) the diverted route would not be substantially less convenient to the public; and (ii) the diversion would not alter the termination (end point) of the path, except where it would link to another point on the same highway, or a highway connected to it. The effect the diversion would have on public enjoyment of the path as a whole must also be taken into account before the order is confirmed.

  • A right of way which crosses a railway can be closed (section 118A) or diverted (section 119A) where it can be shown that it’s expedient to do so in the interests of public safety, but only if it’s not possible to make the crossing safe.

  • A right of way can be extinguished (section 118B) or diverted (section 119B) for reasons of school security or, if it falls within a designated high crime area, for reasons of crime prevention.

  • A right of way can be diverted in order to protect a Site of Special Scientific Interest (SSSI)(section 119D).

Case study

John Saynor, Co-Chair of the Shoreham Society, told us about how we supported them to defeat an unacceptable diversion made under the Highways Act 1980, Section 119:

"What happened was that a landowner went to the council wanting a path diversion, although the path is quite a way from their house. The original route provided one of the few views across the valley to the village and to the iconic memorial cross that sits on the opposite hill, so it was very important to people in the village.

A diversion request went to County Council. Following lengthy consultation procedures, a public inquiry was arranged. I thought I would take the advice of the Ramblers to see how they would approach this particular case. I sent in lots of paperwork to help me write our document opposing the diversion, and the Ramblers' advice was extremely helpful. The law is very specific in this area - the law says you can only object to the footpath diversion on four grounds. So what the Ramblers were able to do was advise me which were the things that were most likely to be effective in the argument.

To our delight, the inspector decided in our favour. If the Ramblers support hadn't been there, we could easily have gone down the wrong track. Their advice made us focus on how the legal test applied to our concerns."

Changes to the network to enable development to take place

Sections 247 and 257 of the Town and Country Planning Act 1990 empower the Secretary of State (or, in Wales, the Welsh Government) and planning authorities (i.e. district councils and unitary authorities) to make diversion, or stopping-up (closure), orders if they are satisfied that the changes are necessary to enable development to take place.

Determination by the Secretary of State

Except in the case of gating orders (which don’t close paths permanently), an authority can’t confirm and bring into operation any order to which there are outstanding objections or representations.Any order to which there are outstanding objections must be submitted to the Secretary of State for determination.

In practice this means referral to the Planning Inspectorate, often referred to as PINS. PINs will appoint an inspector to deal with the case and he or she will hold either a public inquiry or hearing, or consider the facts of the matter following an exchange of written representations.

You can read more about this part of the process the Planning Inspectorate’s Guidance on procedures for considering objections to definitive map and public path orders in England.

Other types of order

Sometimes permanent or temporary changes to the rights of way network are made where large scale projects, such as the construction of new roads and airports, are being undertaken. In these cases, public path orders can be proposed by ministers on behalf of the Government, and the standard procedure isn’t followed, although there will usually be an opportunity for the public to object.

The exception to this rule is when military land is involved. There's no right to object to a public path order made by the Secretary of State for Defence under the Defence Act 1842 or the Defence Act 1860.

Very occasionally, changes to the rights of way network are brought about by Acts of Parliament to allow a major development to go ahead, for example High Speed Rail (HS2). If that happens, then there’s a formal process of objecting to the Bill by way of a petition.

A petitioner needs a right of audience to object in these circumstances but the Standing Orders of the Houses of Parliament do grant a right of audience to bodies such as the Ramblers if they’re able to show that the provisions of the Bill will adversely affect their interests.

There is also a provision called a Traffic Regulation Order. Temporary Traffic Regulation Orders can be used to prevent the public from using a highway for the following reasons:

  • Because works (e.g. road repairs) are being or are proposed to be undertaken on or near the road

  • Because of the likelihood of danger to the public, or of serious damage to the road, which is not attributable to such works

  • To enable an authority to undertake its litter clearing and cleaning duties

  • For a purpose relating to danger or damage connected with terrorism

Although it’s possible to make representations about such orders there’s no formal right to object.

Read further information about Traffic Regulation Orders, including their use to permanently restrict or otherwise regulate the use of highways.

A right of way can be gated and public access prohibited to tackle anti-social behaviour where it can be shown that activities are taking place which have had, or are likely to have, a detrimental effect on the quality of life of local people, and that the effect, or likely effect, of the activities is persistent, unreasonable and justifies the restriction. These ‘Public Space Protection Orders’ are made under the Anti-social Behaviour, Crime and Policing Act 2014.

The magistrates’ court

Under section 116 of the Highways Act 1980 a highway authority can apply to a magistrates’ court for an order to extinguish or divert any highway where it can be shown that the highway isn’t necessary for public use. An application to divert a way can be made if the alternative will be nearer or more convenient or attractive to the public.

Anyone wishing to object to a diversion or extinguishment application of this kind has to make their case in court, which can be intimidating and could be expensive. For these reasons we’ve long argued that the involvement of magistrates' courts in diverting or extinguishing rights of way should be discontinued.

Further reading

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