Diversions and Extinguishments

AuthorAngela Sydenham
6 Diversions and

6.1 Introduction

There is a legal adage, ‘Once a highway always a highway’.1This means that even though a highway has not been used for many years and even though it may not be visible on the ground, it will continue to have legal existence.2It also means that it is not possible to establish title by adverse possession to a publicly maintainable highway or to restrict the public’s right of passage.3

In order for a highway to be extinguished or diverted, there must be an order made under statutory provision. There is an exception where the highway has ceased to exist physically. The obvious example is a footpath along a cliff which is eroded and falls into the sea.4It is sometimes difficult to ascertain whether a path running, say, by a river can be repaired or has ceased to exist entirely. In R v Secretary of State for the Environment, Transport and the Regions ex parte Gloucestershire County Council,5it was held that the erosion of the river bank destroyed the path and did not give a right to deviate inland. On the other hand, where a landslip destroyed a metalled road, it was held that the highway continued to exist along the line of the old road.6

There is another possible exception where a public right of way is inaccessible. In Bailey v Jamieson,7a public footpath became inaccessible due to the stopping up of the highway at either end. This was followed in

1See e.g. R v Inhabitants of St James, Taunton (1315) Selwyn’s NSR; Harvey v Truro RDC

[1903] 2 Ch 638.

2Attorney General v Stokesley RDC (1928) 26 LGR 440.

3Gerring v Barfield (1864) 16 CB (NS) 597; R (Smith) v The Land Registry Peterborough

[2010] EWCA Civ 200. See 2.4.

4R v The Inhabitants of the Parish of Paul in Cornwall (1840) 2 Mood and R 307 (wall carrying right of way washed into the sea); R v The Inhabitants of Hornsea in the East Riding of Yorkshire (1854) Dears CC 291 (part of road eroded). See, however, the provisions for ‘roll back’ of the long-distance trail under MCAA 2009, Pt 9. Section 302 of the Act introduces a new s 55B into the NPACA 1949.

5[2000] EGCS 150.

6R v The Inhabitants of Greenhow in the North Riding of Yorkshire (1876) 1 QBD 703.

7(1876) 1 CPD 329.

60 Public Rights of Way: The Essential Law

Kumar Shamrao Kotegaonkar v (1) Secretary of State for the Environment, Food & Rural Affairs (2) Bury Metropolitan Borough Council.8The court ruled that a footpath linking two privately owned sites, one containing a health centre and the other containing shops, could not be a public highway, either at common law or under section 31 of the HA 1980, because members of the public had no legal right of entry at either end of the path; they entered the health centre and the shops under licence from the respective landowners, not because they had an unrestricted right to do so.

Public rights of way may be stopped up or diverted under public, private or local Acts of Parliament. This chapter deals with the public Acts under which most orders are made.9

Copies of orders confirmed or certified (where the order is not to come into effect until the authority has so certified) should be sent to Ordnance Survey.10

6.2 Effect of orders

6.2.1 Stopping-up orders

The effect of a stopping-up order is that the right of the public to pass and repass is extinguished. Where the surface of the path is publicly maintainable, the determinable fee simple which was vested in the highway authority will cease.11The fee simple will therefore revest in the landowner free of the public rights. However, any private rights will continue.12

It is also possible for some, rather than all, of the rights to be extinguished. Vehicular rights could be extinguished, but bridleway and pedestrian rights retained.

6.2.2 Diversion orders

A diversion is an alteration of the route of the path. This usually means that the old route will be closed and a new route created. There is some

8[2012] EWHC 1976 (Admin).

9Defra, Rights of Way Circular 1/09, ‘Guidance for Local Authorities’ (Defra, 2009)

Ch 5 gives information and advice on public path orders including creation orders.

10See Defra, Rights of Way Circular 1/09, ‘Guidance for Local Authorities’ (Defra,

2009) para 5.60 and table.

11Tunbridge Wells Corporation v Baird [1896] AC 434; Rolls v St George the Martyr Southwark,

Vestry (1880) 14 Ch D 785.

12Walsh v Oates [1953] 1 QB 578.

conflicting case law on whether the diversion needs to be to an entirely or partially new route, or to an existing route which is improved in some way.13Much depends on the statutory provision under which the diversion is being made.14

6.2.3 Judicial and administrative orders

Historically, highway matters were dealt with at Quarter Sessions. The jurisdiction of the magistrates’ court has been retained in relation to a limited number of issues, including the diversion and extinguishment of highways.15However, there is also an administrative procedure for extinguishing and diverting restricted byways,16bridleways and footpaths,17but not vehicular routes for mechanically propelled vehicles.

6.3 Judicial orders

6.3.1 Use of section 116 of the Highways Act 1980

Under this section, orders for stopping up and diversions may be made for all kinds of highways other than trunk roads and special roads. This is in contrast to orders (other than special extinguishment and diversion orders) under sections 118 and 119, which can be made only in relation to footpaths, bridleways and restricted byways. Section 116 can be used to extinguish rights for mechanically propelled vehicles subject to the reservation of a restricted byway, bridleway or footpath rights.18It is not possible to use section 118 in this manner so as to preserve lesser rights. However, provided the appropriate tests can be fulfilled, a bridleway could be extinguished and, concurrently, a new right created for walkers.19

13Welch v Nash (1807) 8 East 394; De Ponthieu v Pennyfeather (1814) 5 Taunt 634; R v

Phillips (1866) LR 1 QB 648. R (Ramblers Association) v Secretary of State for Defence [2007] EWHC 1398 (Admin).

14See S Sauvain, Highway Law (5th edn, Sweet & Maxwell, 2013), paras 9-12–9-15. Under TCPA 1990, s 257(2)(a), diversions may be made to existing highways.

15HA 1980, s 116.

16Restricted Byways (Application and Consequential Amendment of Provisions)

Regulations 2006 (SI 2006/1177).

17HA 1980, ss 118 and 119.

18HA 1980, s 116(4), as amended by CROWA 2000, Sch 5, Pt II, para 15. In considering whether any public right of way should be reserved, any access land is to be disregarded, see CROWA 2000, s 59.

19E.g. under HA 1980, s 26.

62 Public Rights of Way: The Essential Law

Where bridleways and footpaths are concerned, local authorities are encouraged by Defra to use sections 118 and 119 rather than section 116.20

6.3.2 Stopping up

A public right of way may be stopped up if it appears to the magistrate that the way is unnecessary. ‘Unnecessary’ means unnecessary for the public.21What is or is not unnecessary depends on the facts in a particular case. Use does not of itself indicate that the highway is necessary, although it will obviously be an important factor to take into account. The existence of an alternative route may be relevant,22but access land under the CROWA 2000 is not to be taken into account in considering whether the existing highway is unnecessary or whether any public right of way should be reserved.23

Section 116 may be used to reduce the width of a highway.

However, even if the magistrates consider the route unnecessary, they still have a discretion on whether to order that the highway be stopped up.

In Maile v Manchester City Council, Laws J said:24

Section 116(1) confers, of course, no more nor less than a discretion in the court to authorise the stopping-up of a highway. The discretion only arises if the Court concludes that the highway is unnecessary. That being the position the court is not, in my judgment, limited to the bare question whether the highway is necessary or not necessary when it comes to exercise the discretion.

According to Ouseley J in R (Spice) v Leeds City Council:25

In reaching a decision as to whether a strip of land is unnecessary for the performance of highway functions, of course the starting point is whether or not it is used for passing or re-passing. But it would be a misconstruction of the totality of Highway Act powers to treat that as the exclusive scope of the relevant inquiry. In considering whether the strip was unnecessary, it would be necessary to consider, in the case of land over

20Defra, Rights of Way Circular 1/09, ‘Guidance for Local Authorities’ (Defra, 2009) para 5.58.

21Ramblers’ Association v Kent County Council (1990) 60 P&CR 464, but see Westley v Hertfordshire County Council [1995] CL 846: parking not a relevant use of the highway.

22See unreported case Stevens v Dorset County Council (16 March 1999) – use by Trail Riders Fellowship not necessary where 140 miles of unpaved country road including 10 miles of byways in Dorset were available.

23CROWA 2000, s 59.

24[1997] EWHC 2948 (Admin), [38].

25[2006] EWHC 661 (Admin), [40].

which section 96 powers were exercised, whether it was performing an amenity or other function which required the trees or fences to be there, whether for amenity, verge protection or for some other purpose. It could be necessary for the highway to perform a function in relation to safety or access for third parties. Those, in my judgment, would all fall under the heading of ‘unnecessary’.

No compensation is payable for loss suffered by anyone as a result of the stopping up of the highway.

6.3.3 Diversion

In order for a diversion to be made, the new route...

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