Stopping up and Diversion Orders
| Author | William Webster/Robert Weatherley |
| Pages | 195-217 |
INTRODUCTION
20.1 As has been indicated, the grant of planning permission does not of it itself obviate the need to make an application to formally extinguish an existing public right of way. Nor does mere disuse of a highway end the public’s right to use the way as a means of passage, hence the aphorism ‘once a highway always a highway’.
20.2 The process of obtaining an order to stop up or divert a right of way can add considerably to the delay of concluding development works. Formerly, the target time frame in which to deal with stopping up applications from receipt to decision was around 13 weeks,
20.3 Some of the proposed changes have now been enacted by the provisions of the Growth and Infrastructure Act 2013.
Process for Local Highways (Department for Transport, July 2012) at para 4.2.
November 2011).
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possible conflict arising from the proposed development.
20.4 There are number of statutory provisions which enable the stopping up and diversion of existing rights of way. The relevant sections are disorganised and spread across a number of different statutes. It is beyond this book to consider fully all of the relevant sections, but the main provisions are considered. Alternative means by which such rights may be extinguished (e.g. by destruction) are considered at the end of this chapter.
20.5 The reader should note that the provisions of section 53 of the Countryside and Rights of Way Act 2000 (not currently in force) will, by operation of statute, extinguish some unrecorded rights of way from the cut-off date on 1 January 2026. Predominantly, this relates to rights of way not recorded on the definitive map which were created before 1 January 1949. The reader is directed to paras 16.50–16.54.
THE EFFECT OF STOPPING UP AND DIVERSION
20.6 The effect of an order stopping up a highway is to extinguish the public’s right to pass and re-pass over the defined route. In the case of publicly maintainable highways, the top two spits
20.7 Diversions normally involve the stopping up an existing right of way and the creation of a new way over another piece of land. In some cases, those seeking
Council [1954] Ch 383 at 407, per Lord Denning.
to divert may attempt to utilise an existing right of way. There is conflicting case law as to whether a diversion should necessitate the creation of a new way or whether an existing way can, in fact, be utilised. The answer seems to depend partly upon the provision under which the right is diverted.
STOPPING UP AND DIVERSIONS – DEVELOPMENT PROVISIONS
Town and Country Planning Act 1990, section 247
20.8 In the context of development, the provisions of the TCPA 1990 provide a key provision for the stopping up or diversion of an existing right of way. Section 247 provides the Secretary of State may authorise by order the stopping up or diversion of any highway (outside greater London) if he is satisfied that it is necessary to do so in order to enable development to be carried out in accordance with a planning permission under Part III or by a government department.
20.9 In the case of a London borough, the council of that borough may similarly make an order on the same grounds where the right of way exists either in that borough or in another borough and consent for the making of the order is provided by the council for that borough.
20.10 Notably, an order can be made in relation to ‘any highway’. It is therefore one of the few provisions which allow for an order to be made in respect of highways accessible by vehicles.
Guidance – timing the application
20.11 An application for an order under section 247 of the TCPA 1990 can now be made in advance of planning permission, and the Secretary of State or council may publish in advance notice of the draft of such an order.
20.12 Care should be taken to ensure applications are not left too late. The wording of the TCPA 1990 is that the secretary of state (or council) can make an order if ‘he is satisfied that it is necessary to do so in order to enable development
394; De Ponthieu v Pennyfeather (1814) 5 Taunt 634.
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to be carried out’ (emphasis added). Once work is completed, the availability of an order pursuant to this section is precluded.
20.13 Attempts to circumvent this rule by demolishing part of the works after they had been built, so as to give rise to an argument that, ‘the works are not substantially completed’ have failed.
Thus in the case of Hall v Secretary of State for the Environment, Transport and the Regions,
Guidance – when will the application be successful?
20.14 The Secretary of State cannot make an order unless he is satisfied that it is necessary in order to enable the development in question to be carried out. Even where he is so satisfied, a discretion is retained and the Secretary of State may decide not...
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