Development and rights of way
From GPG
Development often affects public rights of way. It is accepted that development has to take place, but how it takes place and how it is planned can materially affect the quality of life for people who will live and work in the buildings and those who will use the right of way.
There are many examples of rights of way that have been hemmed in by development, poorly surfaced or radically changed in character because of the limited weight given to them in the planning process. Failure to consider them at all can lead to them being built on with consequent enforcement problems.
Sometimes the existence of a right of way under a building only comes to light several years after the building has been erected; this can lead to virtually insurmountable problems for the owners of the property and the highway authority.
Managing rights of way and development
The basis of good management of rights of way affected by development is twofold: an acknowledgement of the importance of public rights of way in planning policy documents and good liaison between planning officers and rights of way officers. This section concentrates on practical advice on how to deal with rights of way that are affected by the planning process.
Some highway authorities have published guidance notes aimed at developers, designers, highway engineers and planners. Guidance notes are an important tool in assisting the proper management of development and rights of way, and authorities are encouraged to produce them.
Experience suggests that the early identification of those sites that are affected by public rights of way is a significant factor in the successful management of rights of way in the planning process. It is helpful therefore if planning authorities and planning officers can be encouraged to ensure that planning application forms ask specific questions relating to public rights of way and that applicants are given positive advice concerning the need to identify rights of way that might be affected by the development.
Planning authorities are required to post a notice on site advertising development affecting a public right of way. This requirement is generally interpreted to mean that a notice should be posted on every site crossed by, abutting on or accessed by a public right of way. It is good practice to site such a notice so that it can be seen from the right of way, and rights of way officers should encourage planning officers to ensure that this practice is adopted. Planning officers should be asked to send copies of the notice to the rights of way officer (within the planning authority or within the highway authority, or to both as appropriate).
Model questions
Do any public rights of way (footpaths, bridleways, restricted byways, byways open to all traffic) exist within the site? YES/NO
Is the proposed access to the site along a public right of way? YES/NO
If answering yes, please give the number as recorded on the definitive map.
Suggested accompanying guidance note to rights of way questions
The effect of development on public rights of way is a material planning consideration and any application falling into this category must be advertised. Therefore applicants are asked to check for and indicate any public rights of way that exist within the site or along the access to the site. Applicants should also indicate on the submitted site plan any right of way that may exist over the land whether or not it is presently recorded on the definitive map. Peakshire County Council keeps the definitive map. If you need assistance and advice you should contact the rights of way unit at 0000 000000. If the site of your application does have a public right of way within it you should contact the rights of way unit and the local planning officer as soon as possible to take advice.
Advice to planning officers
Planning officers should be asked to ensure that the applicant is made aware that the granting of planning consent does not mean that the path will be diverted or extinguished and that a separate process is required to divert or extinguish the path. The applicant should also be made aware that the granting of planning permission including a proposed vehicular access to a site along a public right of way does not in any way imply that such access is being granted and it is for applicants to assure themselves that any necessary consents have been obtained. Applicants should be given specific information on the process that must be followed to apply for any necessary order. It is recommended that rights of way officers agree with planning officers guidance notes that are to be issued to applicants.
Model guidance note for applicants granted consent that affects a non-vehicular right of way
The grant of planning permission does not entitle developers to obstruct a public right of way. Enforcement action may be taken against any person who obstructs or damages a right of way. Development, in so far as it affects a right of way, should not be started; and the right of way should be kept open for public use until the necessary order under s.247 or s.257 of the Town and Country Planning Act 1990 for the diversion or extinguishment of the right of way has come into effect. Nor should it be assumed that because planning permission has been granted an order will invariably be made or confirmed. If you need help or advice concerning the diversion or extinguishment order you should contact [name] on [number/email]. If you need advice about the right of way you should contact [name] on [number/email].
'Informatives'
Planning permission cannot be granted conditional upon a path being stopped up or diverted. However, it should be possible to agree with planning officers that 'informatives', information that may accompany a permission, can be given to applicants who are granted planning permission.
Suggested wording for 'informatives':
This development requires the diversion of public rights of way. A diversion order under s.257 of the Town and Country Planning Act 1990 (as amended) is required before commencement of this development.
An applicant requiring a temporary diversion or closure of a right of way across a development site whilst the development is being carried out should be advised to contact the rights of way officer as soon as possible to seek specific advice.
Giving advice to planning officers
It is important for rights of way officers to try to get involved in the planning process at an early stage. Where it is likely that a diversion will be needed, meaningful consultations with user groups and parish councils should be carried out early in the planning process while there is still an opportunity to accommodate consultees' views. It is appropriate to encourage planning officers to consult at an early stage those groups and individuals who would normally be consulted in advance of making a diversion order. However, it is generally not appropriate to commence formal moves to make a diversion order until the planning consent has been issued.
When you are consulted during the course of a planning application it is important to give constructive advice in a form that planning officers can copy direct to applicants.
The following paragraphs are examples of advice given by Suffolk Coastal District Council:
As the line of the public right of way is outside the application site the route should not be affected by the granting of planning permission. However, due to its close proximity to the development, the applicant should be made aware of the need to safeguard pedestrians, equestrians and cyclists using the route, and that it must not be damaged or obstructed either during, or as a result of, the development.
I note that access to the site is proposed along the route XX. The applicant should be advised that no public vehicular rights exist along this path and that it may not be driven along without lawful authority or unless a private right of way exists (or is established). It is the applicant's responsibility to ensure that the appropriate right exists. In any event the surface of the path must not be damaged as a result of vehicular use and safety of users is paramount. Any proposed change to the surface of the path will need the permission of the highway authority.
I note that plans show the route of the public right of way accommodated within the development site and at the appropriate minimum width. Ideally the path should be left open on both sides.
However, if there is any likelihood that the applicant will wish to apply for it to be fenced or hedged in future, then it will be necessary for an increased width of 2 metres to be made available now to prevent the path becoming an alley and to retain its amenity value.
Further information
IPROW members will find notes resulting from a discussion workshop on Securing access benefits from development planning on IPROWiki.
