Stopping up and Diversion Orders

AuthorWilliam Webster/Robert Weatherley
Chapter 20

Stopping up and Diversion Orders


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’.1There must, therefore, be recourse to some formal procedure to either stop up or divert (as is covered in this chapter) the right of way. Before such an order is made, the highway must inevitably be left unobstructed.2

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,3although in cases where the making of an order is contested and the matter listed for inquiry, that period is likely to be considerably longer. In the wake of the Penfold Review,4which was set up to consider whether non-planning consents are delaying or otherwise deterring investment and to make appropriate recommendations, the government agreed to consult upon options to ‘improve the operation of stopping up orders and the interaction between highways consents and the planning system’.

20.3 Some of the proposed changes have now been enacted by the provisions of the Growth and Infrastructure Act 2013.5That Act has made new provision to allow applications for stopping up under section 247 and section 257 of the TCPA 1990 to be received in advance of planning permission.6In all cases, those dealing with a planned development are well advised to identify the rights of way likely to be affected at an early stage and to liaise with the planning and highway authorities, local groups and other affected individuals so as to identify any

1There is no concept of abandonment of a highway in English law, thus although the highway might appear to be disused, such rights will continue to endure until they have been stopped up. See Dawes v Hawkins 8 CBNS 848 at 858, per Byles J, which is the earliest case in which the maxim is used.

2See Chapter 19 in respect of interference with highways.

3See the Consultation Paper, Stopping up and Diversion Orders: Reform of the Application

Process for Local Highways (Department for Transport, July 2012) at para 4.2.

4Implementation of the Penfold Review (Department for Business, Innovation and Skills.

November 2011).

5See Growth and Infrastructure Act 2013, ss 11 and 12.

6TCPA 1990, s 253.

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possible conflict arising from the proposed development.7In cases where there is likely to be significant and lengthy negotiation between the developer and the planning authority, and where there is a reasonable expectation that planning permission will eventually be granted, any proposals for stopping up or diverting a public highway could be considered alongside the discussions on the proposed development.8Notices and a draft of the order should be included, as far as that is possible.9

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.


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 spits10vest in the Highway Authority.11Thus when an order stopping up the highway takes effect, the Highway Authority’s interest will determine and re-vest in the original landowner.12In cases where the land is not maintained at public expense, the land over which the highway formerly ran will simply be freed from the burden of the right of way. Notably, the stopping up of public rights of way will not affect private rights also existing over the land formerly subject to the highway.13In some cases, the way may be stopped up entirely, or with a reservation of a lesser right, for example a bridleway might be stopped up, but a footpath reserved.14

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

7See Rights of Way Circular (1/09).

8Rights of Way Circular (1/09) at para 7.9 et seq.

9Rights of Way Circular (1/09) at para 7.10.

10I.e. the top two spade depths, see Tithe Redemption Commission v Runcorn Urban District

Council [1954] Ch 383 at 407, per Lord Denning.

11HA 1980, s 263(1).

12Rolls v Vestry of St George the Martyr (1880) 14 Ch D 785.

13See e.g. Walsh v Oates [1953] 2 WLR 835 at 839.

14See in particular HA 1980, s 116(4), which expressly provides that a lesser right may be preserved.

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.15


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.16

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.17In either case, the entity making the order is empowered to make such provision as it considers expedient for the provision or improvement of the highway (notably, including diversion and stopping up of any rights of way), and it may direct that any highway provided or improved shall be maintainable at the public expense.18

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.19

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

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

15See Highway Law and Practice at 9-13–9-16; consider in particular Welch v Nash (1807) 8 East

394; De Ponthieu v Pennyfeather (1814) 5 Taunt 634.

16HA 1980, s 247(1).

17HA 1980, s 247(2A).

18HA 1980, s 247(3)(a).

19For other provisions relating to stopping up and diversions in relation to highways accessible by vehicle, see in particular paras 20.41 et seq relating to HA 1980, s 116.

20TCPA 1990, s 253(1).

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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.21The courts have made it clear this is a process ‘with a beginning and an end; once it is begun, it continues to be carried out until it is completed or substantially completed’.22This section cannot therefore be used by a developer who unknowingly builds upon a right of way and has either completed or substantially completed the development.

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.23The reasoning seems to be that, ‘when a discrete and substantial part of a planning permission is completed in accordance with that permission, then that part of the permission has been completed and achieved, and is spent in so far as that aspect of the permission is concerned.24

Thus in the case of Hall v Secretary of State for the Environment, Transport and the Regions,25it was found that the destruction of one corner of a garage (up to 2 metres) which had previously been constructed and so encroached upon a public footpath, but was then demolished to enable an application for an order, had been substantially completed when it was first constructed.26

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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