Diversions and Extinguishments
| Author | Angela Sydenham |
| Pages | 59-81 |
Extinguishments
6.1 Introduction
There is a legal adage, ‘Once a highway always a highway’.
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.
There is another possible exception where a public right of way is inaccessible. In Bailey v Jamieson,
[1903] 2 Ch 638.
[2010] EWCA Civ 200. See 2.4.
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.
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.
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.
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.
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
Ch 5 gives information and advice on public path orders including creation orders.
2009) para 5.60 and table.
Vestry (1880) 14 Ch D 785.
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.
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.
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.
Phillips (1866) LR 1 QB 648. R (Ramblers Association) v Secretary of State for Defence [2007] EWHC 1398 (Admin).
Regulations 2006 (SI 2006/1177).
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.
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.
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:
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:
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
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...
To continue reading
Request your trial