7. Stopping up and diversions
7.2: Diversion
M. Williams, Solicitor
Existing legislation provides safeguards to ensure that, where proposed development
will effect public rights of way, there is opportunity for consultation and for
appropriate proceedings to be taken. In practice these safeguards are only effective if
all those interested know, at the earliest opportunity, of the existence of the rights of
way and the effect the proposed development will have on them.
J. Sugden Ph D., C.Eng, MICE, MCIT
This article deals with an aspect of highway law of ever increasing importance and
controversy, namely the effect of new or improved roads (and, to a lesser extent,
railways) on existing highways. The problems are in many respects as much engineering ones
as they are legal, although the legal framework must always be clearly understood. This is
particularly necessary if the rights of non-motorised users are to be given effect to, as
well as the more obvious needs of the motor car.
Michael Orlik M.A., Solicitor
It was held in R. v. Secretary of State for the Environment ex parte Patterson that
the highway authority had a duty to make a diversion order under s.119 of the Highways Act
1980 on request when it was shown to be in the interest of the landowner or the public.
This would appear to be in contrast to the discretionary powers which exist under s.118 of
the Act and s.247 and s.257 of the Planning Act 1990.
J. J. Pearlman, LL.B, Solicitor
This article reconsiders the correct interpretation of s.119 Highways Act 1980, and
concludes that the Patterson decision creates no law.
David Braham Q.C.
Case notes
In R. (Hargrave) v. Stroud District Council the Court of Appeal rejected the view that
councils are obliged to put under way the whole machinery necessary to secure a footpath
diversion order where it is manifest that at the end of the day the order would not be
confirmed because the tests set out in s.119(6) of the Highways Act 1980 are not
satisfied.
In R. (Young) v. Secretary of State Turner J. examined the
distinction between
(a) the requirement that the path or way will not be
substantially less
convenient to the public in consequence of the diversion and
(b) the effect which the diversion would have on public
enjoyment of the
path or way as a whole.
Philip Petchey, Barrister
A case note
A public footpath having been deliberately obstructed, the landowner applied for a
diversion order. The order was made but objections were received. In these proceedings the
County Council’s decision to refer the order to the Secretary of State for
confirmation was challenged successfully.
The Council’s policy guidelines required that the removal of the obstruction must
have been considered not to be ‘reasonably achievable’ if the diversion order
was to be submitted to the Secretary of State for confirmation. The Court of Appeal –
(1) rejected the submission that, on the facts, this test precluded any decision to submit
the diversion order for confirmation; but
(2) quashed the decision to submit the order for confirmation on the ground that this test
obliged the Council to take into account factors which it had ignored, and gave a strong
indication that, when it applied its guidelines, the landowner’s conduct should be
seen to weigh heavily against a decision to proceed with the diversion order.
Although the decision turned on the interpretation of the Council’s policy
guidelines, it may have a wider bearing on the use of diversion orders where there has
been a deliberate obstruction of the existing route.
Correcting a public path order
C. Willmore LL.B. Barrister
Where an order has been made to stop up or divert rights of way wrongly designated
with lower status on the definitive map, the old route probably continues to exist. The
new route exists alongside the old from the time the order comes into force and only
ceases if the order is successfully challenged within six weeks of the order being
confirmed.
D. Goode, B.Sc., M.Sc., Countryside Mapping Manager, Worcestershire County Council
An analysis of the problems inherent in quantifying the cost of making changes to the
public path and byway network, and the extent to which such costs may be reduced or
recovered, or both.
Practice and precedent
S.116 Highways Act 1980
S.118 Highways Act 1980
S.119 Highways Act 1980
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