Diversion or stopping up of a public right of way under Section 257 of the Town and Country Planning Act 1990
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. All applications must meet the required legal tests under Section 257 of the Town and Country Planning Act 1990. Those applications which do not meet the necessary criteria will not be accepted. It should be noted that Bury Council can only make an order under this legislation if it granted the Planning Permission for the development.
No authority for the stopping up or diversion of a footpath, bridleway or restricted byway is granted unless and until a Diversion/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 Order.
We recommend that anyone thinking of stopping up or diverting 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 an Order under s257 Town and Country Planning Act 1990 to divert or stop up a right of way if it is satisfied that it is necessary to do so in order to enable development to be carried out in accordance with the planning permission granted.
1.2. It should be noted that the Town and Country Planning Act 1990 is not appropriate for the diversion or stopping up of a public right of way where the existing path is affected by new development which is substantially complete at the time of application. For diversion or stopping up requests to accommodate new developments which are substantially complete please see the Guidance notes for Order made under s118 and s119 Highways Act 1980.
2. Applications
2.1. Please ensure that you answer all questions correctly and fully in accordance with the instructions provided on the application form.
2.2. It is for the applicant to make the case for the stopping up or diversion, having regard to the statutory requirements under s257 Town and Country Planning Act 1990. If the Council is not satisfied that the application meets these criteria then it will not process the application.
2.3. The Order may provide for the creation of an alternative path or the improvement of an existing one.
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) The Council does expect the applicant to have an interest in the land that would be affected by the Order. This is so that, if an Order is made and confirmed the applicant would have the necessary rights to carry out the works authorised or required by the Order.
(c) If any person other than the applicant has an interest in either the land over which the existing path runs, or the land over which the alternative path runs, a letter of authority from the person confirming their agreement to the proposal and authority to access the land to carry out the works authorised or required by the Order must accompany the application.
(d) If the land over which the stopping up or diversion is proposed is held in joint names then the application form will need to be signed by all legal owners.
(e) The applicant must provide either a copy of the registered title of the land affected by the stopping up or diversion from the Land Registry or (if the land is not registered) proof of ownership of the relevant land.
(f) 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.
(g) Applications completed by an agent must also be signed by the applicant.
3. Improving Access
3.1. The Council wishes to improve access to the countryside for people of all abilities when opportunities are available to do so. As a result applicants are required to provide an alternative route which is as accessible or more accessible for use by the public.
3.2. Applicants must construct diverted routes to a standard acceptable to the Council and in some instances may be required to carry out suitable surfacing works such as 3 tarmac or crushed stone, drainage or grading works to provide a route that is suitable for public use. The Council will only accept applications if the surface of the proposed alternative is at least same as the existing route.
3.3. Bury Council will not accept applications if the width of the proposed alternative route is less than that of the existing route. Required minimum widths are:
(a) Unenclosed - 2 metres for a footpath and 3 metres for a bridleway
(b) Fenced on both sides - 2 metres for a footpath and 5 metres for a bridleway
(c) Hedge on one side - The centre of a footpath should be a minimum of 2 metres from the centre of the hedgerow and the centre of a bridleway should be a minimum of 3 metres from the centre of the hedgerow
(d) Hedges on both sides - As above on both sides
3.4. The minimum use of barriers should be the aim. Gaps should be provided where possible, gates can only be installed on an alternative route in the interest of public safety or where necessary to control the movement of livestock on agricultural or forestry land.
3.5. Should the Council feel that access can be improved along a section of the path unaffected by the diversion, such as drainage works or replacing stiles with gates, then the right is reserved to insist that these works are carried out in conjunction with the diversion.
3.6. The diverted route will be waymarked to the satisfaction of the Council. Should the diversion require the installation or relocation of a signpost then the costs of these works will be re-charged to the applicant as part of the application fees.
4. Procedures for Making an Order
4.1. The making of Public Path Orders is governed by the statutory procedures of the Town and Country Planning Act 1990 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. If objections are received to the proposal, then the period of time taken before a decision is made to confirm the order will be considerably longer.
4.2. 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.
4.3. If the Council does not consider it expedient to make the Order following the informal consultation then the application will be rejected.
4.4. 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.
4.5. 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 4 be advertised in accordance with the statutory requirements. There is then a statutory 28 day consultation period from the date of the notice.
4.6. If no objections are received to the making of the Order then the Order applicant will be contacted and advised that any works required on the diverted route be carried out. Once the works required in the Order are carried out to the satisfaction of the Council then the Order will be confirmed. Confirmation will be publicised the same way as the making of the Order. Please note that we do not advise that any works are carried out until you are contacted, as until this stage the Order cannot be confirmed as an unopposed order and may not come into effect.
4.7. Should any objections be received to the making of the Order then the Council will attempt to resolve these by way of facilitating negotiation between the parties.
4.8. 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 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.
4.9. If the Inspector decides to confirm the Order, then any works required by the Order will need to be carried out before the Order can come into effect.
4.10. If the Inspector decides not to confirm the Order, then the Council cannot proceed any further.
5. Costs
5.1. If the Council decides to proceed with an application for a Public Path 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 fees, internal officer time and legal costs. 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.
5.2. 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.
5.3. The Council will require an initial payment on submission of an application. The amount is confirmed in the Scale of Charges.
5.4. Please note that applicants may still be liable for payment of costs already incurred if they subsequently withdraw an application.
5.5. The applicant will be liable for the cost of any works (including the removal or repositioning of any signposts or statutory undertakers' apparatus in, or under the highways to be diverted) necessary as a result of the Order coming into effect; including reinstatement of the original path if temporarily diverted.
5.6. 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.
6. 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