Diversion of public right of way under Section 119 of the Highways Act 1980
Guidance notes for applicants
Important: Please read the guidance notes carefully before completing the application form as incorrect information can cause delays and unnecessary costs. All applications must meet the required legal tests under Section 119 of the Highways Act 1980 in order to be processed. 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 Diversion Orders, this is not a statutory duty.
No authority for the diversion of a footpath, bridleway or restricted byway is granted unless and until a Diversion Order has been confirmed and is brought into effect. Any obstruction of the definitive path is an offence and may make it impossible to proceed with the requested Diversion Order.
We recommend that anyone thinking of diverting a public right of way first finds out the 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 Diversion Order under s119 Highways Act 1980 where it appears to the Council that in the interests of the owner, lessee or occupier of the land crossed by the path, or in the interests of the public, it is expedient that the line of the path, or part of that line, should be diverted.
1.2. A Public Path Diversion Order shall not alter the point of termination of the path if that point is not on a highway, or a highway connected with it, and which is substantially as convenient to the public.
1.3. Please note that a Public Path Order shall not be confirmed as an unopposed Order unless it is expedient to do so and further that the path will not be substantially less convenient to the public in consequence of the diversion having regard to the effect which:
1.3.1. the diversion would have on public enjoyment of the path as a whole,
1.3.2. the coming into operation of the Order would have as respects other land served by the existing public right of way, and
1.3.3. any new public right of way created by the Order would have as respects the land over which the right is so created and any land held with it.
1.4. Account needs to be taken of the provisions with regard to the payment of any compensation.
1.5. Any temporary circumstances preventing or diminishing the use of a path by the public shall be disregarded.
1.6. It should be noted that the Highways Act 1980 is inappropriate for diverting public rights of way affected by new development unless this is substantially complete.
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. It is for the applicant to make the case for the diversion, having regard to the statutory requirements under s119 Highways Act 1980. If Bury Council is not satisfied that the application meets the statutory criteria then it will not process the application.
2.3. 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 or way, the proposed alternative, and any effect on those highways connected to it. Please note: Due to copyright restrictions the 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 the Council will not be processed and will be returned to the applicant.
(b) 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 the nature of their interest with evidence and their agreement to the proposal must accompany the application.
(c) If the land over which the diversion 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 diversion 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 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 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 the same quality and standard 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 Diversion 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 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 whether or not to confirm the order will be considerably longer.
4.2. Once a complete application has been 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 considers 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 be advertised on site and 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 applicant will be contacted and advised that any works required on the diverted route should be carried out. Once these works are carried out to the satisfaction of the Council then the Order will be confirmed and will come into effect 28 days after the date of confirmation. This will be publicised in the same way as the making of the Order. Please note we do not advise that any works are carried out until you are contacted by the Council's Public Rights of Way Officer at the end of the objection period. 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 may in appropriate circumstances attempt to resolve these by way of facilitating negotiation.
4.8. Where the objections are not withdrawn the Council will either decide not to continue with the application 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.
4.9. If the Inspector decides to confirm the Order, then any outstanding works required by the Order will need to be carried out on the alternative route before the existing path can be diverted.
4.10. If the Inspector decides not to confirm the Order, then the Council cannot proceed any further and the path will not be legally diverted and must be available for use by the public.
4.11. Where the Order is confirmed then 28 days after confirmation of the Order, the alternative route becomes the legal alignment and should be open and available for use.
4.12. The Council does not usually confirm an Order until it is satisfied that the required works have been carried out to the agreed standard. However, should the Order be confirmed by either the Secretary of State or the Council and the required works have not been carried out satisfactorily then the public will have rights over the existing and alternative paths and both routes will need to be available for public use.
5. Costs
5.1. If the Council decides to proceed with an application for a Diversion 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 5 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 in various publications and the notice of the confirmation of the Order and therefore two sets of advertising costs will be payable.
5.2. The current charges for diversion applications are detailed in the Council's Scale of Charges Associated with Public Path Orders.
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 installation, 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.
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.