Stopping up of a public right of way under Section 118 of the Highways Act 1980
Guidance notes for applicants
IMPORTANT: Please read the guidance notes carefully before completing the application form as incorrect or incomplete information can cause delays and incur unnecessary costs. Public Path Extinguishment Orders are made very infrequently and applications must meet the required legal tests under Section 118 of the Highways Act 1980 in order to be processed and then if an order is made, it must be confirmed. Those applications which do not meet the necessary criteria will not be accepted. It should be noted that, whilst the Council has a power to process public path orders, this is not a statutory duty.
No authority for the stopping up of a footpath, bridleway or restricted byway is granted unless and until an Extinguishment Order has been confirmed and brought into effect. Any obstruction of the definitive path is an offence and may make it impossible to proceed with the requested Extinguishment Order.
We recommend that anyone thinking of stopping up a public right of way first finds out the correct legal line of the path (this may not be exactly how the path is used in practice) by contacting the Council's Public Rights of Way Officer. We also recommend that a site meeting is conducted with the Council's Public Rights of Way Officer present before an application is submitted as this will save time determining whether the proposal meets the requirements of the legislation and those of the Council. Each public right of way is uniquely referenced by the name of the district in which it is located, and a number. We will need this information to process an application.
1. Legal Tests
1.1. Bury Council may make a Public Path Extinguishment Order under s118 Highways Act 1980 if it is satisfied that it is expedient that the path should be stopped up on the grounds that it is not needed for public use.
1.2. Please note that a Public Path Extinguishment Order shall not be confirmed as an unopposed order, unless it is expedient to do so having regard to the extent (if any) to which it appears that the path would, apart from the Order, be likely to be used by the public. It is also necessary to have regard to the effect which the stopping up of the path would have as respects the land it serves. Account needs to be taken of the provisions with regard to the payment of any compensation as referred to in the Highways Act 1980.
1.3. Any temporary circumstances preventing or diminishing the use of a path by the public shall be disregarded.
2. Applications
2.1. Applications that are in the interests of public safety, user enjoyment of the route or which relate to new development will usually be given the highest priority.
2.2. Please ensure that you answer all questions correctly and fully in accordance with the instructions provided on the application form.
2.3. It is for the applicant to make the case for the stopping up, having regard to the statutory requirements under s118 Highways Act 1980. If the Council is not satisfied that the application meets the statutory criteria then it will not process the application.
2.4. The following documentation must accompany your completed application form:
(a) A clear map at a scale of not less than 1:2500 or, if no such map is available, on the largest scale readily available. The scale and north point should be clearly shown as well as grid references. The map should also contain sufficient detail to show the existing line of the path and any effect on those highways connected to it. Please note: Due to copyright restrictions Bury Council cannot accept plans that it has previously provided for information purposes. The applicant must obtain their own plan for submission with their application. Any applications received with a plan produced by Bury Council will not be processed and will be returned to the applicant.
(b) If any person other than the applicant has an interest in the land over which the existing path runs, a letter of authority from that person confirming the nature of their interest (with evidence) and their agreement to the proposal must accompany the application.
(c) If the land over which the stopping up is proposed is held in joint names then the application form will need to be signed by all legal owners.
(d) The applicant must provide either a copy of the registered title to the land affected by the stopping up or if the land is not registered proof of ownership of the relevant land.
(e) Applications on behalf of companies should be signed by a director with capacity to act on their behalf and the position of the signatory should be indicated. Should an agent be acting on behalf of the company then a letter from a director providing authority should accompany the application.
(f) Applications completed by an agent must also be signed by the applicant.
3. Procedures for Making an Order
3.1. The making of Public Path Extinguishment Orders is governed by the statutory procedures of the Highways Act 1980 and the waiting list and priority system adopted by the Council. The minimum time likely to be taken to secure confirmation of an unopposed Order is in the region of 6-9 months from the date of receipt of a valid application and with all the information specified in this Guidance Note included. If objections are received to the proposal, then the period of time taken before a decision is made to confirm whether or not the order will be considerably longer.
3.2. Once a complete application has been received and accepted, the Council will carry out an informal consultation. This involves contacting the local user groups, statutory consultees and any affected landowners. At the end of the consultation period any comments received will be considered and a decision will be taken as to whether the Council consider it expedient to make the Order.
3.3. If the Council does not consider it expedient to make the Order following the informal consultation then the application will be rejected.
3.4. If the Council does consider it expedient to make the Order then the proposal will be put forward for authorisation in line with the Council's decision making policies.
3.5. Once an Order has been made there is a statutory requirement to formally consult all statutory consultees and affected landowners. The notice of the making of the Order will be advertised in accordance with the statutory requirements. There is then a statutory 28 day consultation period from the date of the notice.
3.6. If no objections are received to the making of the Order then the Order will be confirmed, advertised in accordance with the statutory requirements and the path will be legally extinguished.
3.7. Should any objections be received to the making of the Order then the Council may in appropriate circumstances attempt to resolve these by way of facilitating negotiation between the parties.
3.8. Where the objections are not withdrawn the Council will either decide not to continue with the application as it is not capable of confirming the Order or submit the Order to the Secretary of State for determination. An inspector will usually be appointed to determine the Order by written representations, a local hearing or Public Inquiry. But it is at the Secretary of State's discretion.
3.9. If the Inspector decides to confirm the Order, then the Order will be confirmed, advertised and the path will be legally extinguished.
3.10. If the Inspector decides not to confirm the Order, then the Council cannot proceed any further and the path will not be legally extinguished and must be available for use by the public. The Inspector's decision can only be challenged in court by means of a Judicial Review.
4. Costs
4.1. If the Council decides to proceed with an application for a Public Path Extinguishment Order it will normally do so subject to the applicant agreeing to cover all reasonable costs incurred in processing the application including Land Registry Fees, advertising costs, internal officer time, legal costs and any compensation which may be payable. Please note that there are statutory requirements to advertise the notice of the making of the Order and the notice of the confirmation of the Order in various publications and therefore two sets of advertising costs will be payable.
4.2. The current charges for applications are detailed in the Council's Scale of Charges Associated with Public Path Orders which is published on the Council's website.
4.3. The Council will require an initial payment on submission of an application. The amount is confirmed in the Scale of Charges.
4.4. Please note that applicants may still be liable for payment of costs already incurred if they subsequently withdraw an application.
4.5. The applicant will be liable for the cost of any works (including the removal of any signposts or statutory undertakers' apparatus in, or under the highways to be extinguished) necessary as a result of the Order coming into effect.
4.6. Please be aware that if there are objections to the proposed order and they are not resolved, the Council may decide not to proceed further and the applicant will be charged for the stage reached in the process as outlined in the Scale of Charges. Please also note that if an Order is opposed, all parties (including the Council) must meet their own costs in preparing and presenting their case for written representations, a hearing or public inquiry.
5. Return of Application Form and Enquiries
A copy of the application form with all necessary enclosures and any enquiries should be addressed to The Public Rights of Way Officer, Resources and Regulation, 3 Knowsley Place, Duke Street, Bury BL9 0EJ. Telephone 0161 253 7226 or e-mail d.chadwick@bury.gov.uk