Can I move my footpath? Footpath Diversion Advice

In principle, yes, you can move a footpath as both the Highways Act 1980 and the Town and Country Planning Act 1990 have provisions for applications to be made to divert public footpaths. In practice, it is not straightforward, and success cannot be guaranteed – but this is an area of the law in which we specialise, acting for a range of clients wishing to achieve changes to the network of public footpaths, bridleways, restricted byways and byways open to all traffic in England and Wales. 

The likelihood of achieving a change is greatly increased by knowledge of various factors: 

1. the complex legal criteria in the Acts and how they are likely to be applied to a proposal, based on case law and previous decisions 

2. an understanding of the protracted procedure and how a Council deals with applications 

3. experience of consultation and negotiation on proposals for changes, to ensure as smooth a passage as possible.  

There is also government guidance to take into account. We have previously looked at the “Presumptions Guidance” which is very helpful to some applicants; private individuals, farmers and those with commercial premises may benefit.  

Our clients range from individual homeowners with routes unacceptably close, or even through, their dwellings to large estates, farmers and developers. We act for clients who wish to extinguish or ‘stop up’ routes (although most proposals proceed by diversion). We act for parish councils wanting to create new routes, perhaps using CIL funding. Applications are to be made to local highway and planning authorities, requesting that a public path order be made. Changes to byways open to all traffic are dealt with at the Magistrates’ Court, and applications for changes to routes for planning reasons may also be made to the Department of Transport. 

There is currently no right of application for a change or a timescale within which a council has to deal with an application. There is also no obligation on a council to make an order, but it should carry out appropriate consultation and come to a reasoned and reasonable decision on an application it has accepted.  

Once an order has been made by a council, it is subject to public advertisement. Should there be sustained objection or representation, the council currently has no power to overrule an objector. If the order is to proceed, it must be referred to the Planning Inspectorate for determination.  

Councils have powers to charge applicants for some of their work, but the limits on this, coupled with limited council resources for the job, make some councils loath to proceed with proposals to which there is the likelihood of objection. This may be overcome by the applicant taking financial responsibility for the progress of an order once it is made, with the council taking a neutral or ‘passive support’ stance. Once an opposed order reaches the Planning Inspectorate, it is determined either an exchange of written representations, a hearing or a public inquiry, and a site visit by an inspector. 

The complex procedure and councils’ limited resources can prevent changes from being achieved quickly, but an uncontentious application may be concluded satisfactorily within a year, especially when linked to a planning application. 

We are aware that there is pending legislation which will give applicants the right to apply for an order and also give councils a limited period within which to determine the application.  Councils will also be able to dismiss irrelevant objections. The need for expensive press advertisements will be removed too, with website advertisements instead. However, there is no indication from the current Government as to when this legislation may be implemented, and it will also most likely be accompanied by new full cost recovery powers for councils. 

We would be pleased to advise you on a change to the public rights of way network. We are very experienced in this work and have built a reputation over many years for achieving changes, including work aimed at avoiding the need for orders to be referred to the Planning Inspectorate.    

Carol Ramsden is a Consultant in Birketts’ Planning and Environment Team and has specialised in achieving changes to the public rights of way network for over 30 years. She is a Fellow of the Institute of Public Rights of Way and Access Management (IPROW) and a landowner representative on Defra’s Stakeholder Working Group, which considers rights of way legislation and potential changes. Carol works nationally and has contacts at many councils.