From GPG

Local authorities may, by s.118 of the Highways Act 1980, extinguish public footpaths, bridleways and restricted byways. This section does not deal with the diversion or extinguishment of rights of way that can also be carried out by way of an application to the magistrates' court under s.116 HA80, as this procedure is not recommended for general use. Nor does it deal with the diversion or extinguishment of footpaths, bridleways and restricted byways where this is necessary to enable development to be carried out, and for which separate powers exist under the Town and Country Planning Act 1990 s.257. (see Rights of Way and Development)

Extinguishment orders

The Highways Act allows a local authority to make an order to extinguish a footpath, bridleway or restricted byway only when the authority considers that the path is not needed for public use. These are the only grounds on which an extinguishment ordermay be made. This may be because other paths adequately serve the area, or because the path, although available for use by the public, has not been used for many years. Lack of use due to unavailability of the path does not constitute grounds for extinguishment; the obstruction of a path by, for example, development does not alter its legal status or the test for making an extinguishment order.

The legislation also requires that, before confirming an order, the council or (if the order is opposed) the inspector must apply a separate and somewhat different legal test. The council or inspector must be satisfied that it is expedient to confirm the order having regard to the extent to which the path is likely to be used and the effect that its closure would have on the land served by it, taking into account the provisions for compensation.

This means that an authority must look not just at any present use of the path but at the use that is likely to made of the path in the future. Any temporary circumstances that diminish the public use must also be disregarded; temporary circumstances have been held to include unauthorised and illegal obstructions, including buildings.

The authority must also take into account the provisions for compensation. Compensation for the extinguishment of a right of way will arise in practice only very rarely, for example, where the path provides an essential means of access to someone's premises. If a dispute arises as to compensation, then it is determined by the Lands Tribunal after the order has been confirmed.

The authority's power to make a public path extinguishment order is not dependent on an application having been made and the authority can, if it wishes, initiate an order without having been asked to do so (providing the legal tests set out about can be satisfied). However, the extinguishment order itself must be in the prescribed form, as must the wording of the notices which are put up on the line of the path and advertised in a local paper.

Extinguishment orders are subject to public objection and opposed orders must be referred to the Secretary of State for determination in the same way as other public path orders.

Authorities are encouraged to adopt the practice recommended by the Rights of Way Review Committee (guidance on consultation). This covers pre-order consultations and procedures. Authorities are also encouraged to regularly review the list of consultees to ensure that they are up to date and inclusive.

The process for making an extinguishment order is the same as for making diversion or creation orders.