Diversion of Public Paths
Public path diversion order : diversion of an existing footpath, bridleway or restricted byway under powers in the Highways Act 1980.
This article does not deal with other orders that may be made under the Highways Act, as amended, nor does it deal with diversion of rights of way where this is needed to facilitate development and for which separate powers exist under the Town and Country Planning Act 1990.
Local authorities may, by s.119 of the Highways Act 1980, divert public footpaths, bridleways or restricted byways. The power extends to district councils as well as highway authorities and is discretionary (i.e. the authority may make an order, but does not have to do so).
Good advice to applicants and the public on public path diversion orders is recommended to facilitate both the quality of applications and understanding of the process. Here is an example guidance pack.
Before making a diversion order the authority must be satisfied that it is expedient to divert the path in the interests of the public, or of the owner, lessee or occupier of the land crossed by the path. The authority must also be satisfied that the diversion order does not alter any point of termination of the path, other than to another point on the same path, or another highway connected with it, and which is substantially as convenient to the public. It is not possible to alter the termination point of a dead end path.
What constitutes 'expedient' is not defined but was considered in the case of Ashbrook v East Sussex County Council  EWHC481 (admin).
In considering any diversion proposal the order-making authority must also consider its duties under the following statutes:
- Countryside Act 1968 s.11 Conservation of Natural Beauty
- Natural Environment and Rural Communities Act 2006 s.40 Conservation of Biodiversity
The authority must also have regard to any rights of way improvement plan (RoWIP) prepared for its area link to RoWIP and it is good practice to consider the needs of people with disabilties and the Disability Discrimination Acts.
Order making is a two-stage process and the tests for making and for confirming an order are different. It is good practice for an order-making authority to have regard not only to the tests for making an order, but also, in so far as is reasonable with the exercise of their discretionary power, the tests that have to be applied when an order is confirmed. If an order, once made, is formally opposed, the authority is not compelled to seek its confirmation or to refer it to the Secretary of State for consideration (this is an important difference between public path orders and definitive map modification orders)
Any new right of way created by a diversion order may be with or without limitations and conditions: irrespective of whether or not the old route was subject to them. Any limitations and conditions must be specified in the 'limitations and conditions' section of the order. The order making authority should have regard to the effect any limitations and conditions have on the question of whether or not the new route is substantially as convenient to the public as the old.
Any new right of way created as part of a diversion order must have a specified width. Guidance on how widths should be specified in orders is given in Planning Inspectorate Guidance Note 16 (and an associated letter). The order making authority should have regard to the effect of the width on the question of whether or not the new route is substantially as convenient to the public as the old.
Before confirming a diversion order the authority or (if the order is opposed) an inspector appointed on behalf of the Secretary of State must be satisfied that:
- the diversion is expedient in the interests of the person(s) stated in the order;
- the path will not be substantially less convenient to the public as a consequence of the diversion;
- it is expedient to confirm the order having regard to the effect it will have on public enjoyment of the path as a whole, on other land served by the existing path and on land affected by any proposed new path, taking into account the provisions for compensation.
In practice the inspector disregards any temporary circumstances (such as obstructions) preventing or diminishing the use of the path by the public when considering an opposed diversion order.
The inspector must also take into account any material matters in the RoWIP and must have regard to the provisions of section 74 of the Countryside and Rights of Way Act 2000 (i.e. have regard to the purpose of conserving biological diversity).
Prior to considering whether or not to make an order it is recommended that authorities carry out informal non-statutory consultations (see Rights of Way Review Committee guidance.
The order making process is quasi-judicial and authorities must be satisfied that the tests of the legislation at the order making stage are met. (It is also considered reasonable for an order-making authority to consider if the tests for confirmation are likely to be met.) For example, if a landowner requests that a diversion order be made "in the interests of the landowner" the authority must be satisfied that the "interests" relied upon can be defined and are supported by evidence. Whatever the decision-making process that the authority follows (decided by elected councillors or delegated to an officer) it is important that the process is robust. The authority must apply its "mind" to the decision to make an order and not simply make orders where at the pre-order consultation stage there is apparently little or no opposition to the proposal.
It is not recommended that authorities make orders that are both in the interests of the landowner and in the interests of the public unless they are satisfied that both tests can be met.
General guidance is given to inspectors about rights of way, including diversion orders under the Highways Act 1980 in Planning Inspectorate advice note 8.