Public Path Diversion Orders Section 119 - Highways Act 1980 - guidance notes

These guidance notes explain the criteria the Council considers when assessing applications, to help applicants formulate strong proposals with the best chance of success. Applications must meet the relevant legal tests to be accepted.

It should be noted that, whilst the Council has a power to process applications for diversions, this is not currently a statutory duty, and resources dedicated to this work are limited.

Part I: The Process for the Diversion of a Public Right of Way

The route of a public right of way may not be moved unless the change has first been authorised by a legal order, known as a ‘public path diversion order’. Diversion orders can be made by the County Council or by other local authorities. This guidance explains how to apply to Hampshire County Council for the authority to move a footpath, bridleway or restricted byway. Different rules apply to the diversion of a byway open to all traffic.

When can a path be diverted?

The County Council will only agree to make a diversion order if the proposal meets certain requirements, which are set out in Section 119 of the Highways Act 1980:

The proposed diversion must be in the interests of the owner, occupier, or lessee of the land crossed by the right of way, or in the interests of the public (or both)
The new route must not be substantially less convenient to the public. Relative distance, views, gradient and accessibility are relevant in deciding whether a diversion order should be made. The public’s enjoyment of the whole path and the effect of the diversion on other land are also relevant factors

We can also make diversion orders to improve school security, but we would advise applicants to discuss proposals with us before an application is made, as different considerations apply.

Who can apply?

Anyone, including organisations, can apply for a diversion, but we are unlikely to agree to a diversion without the consent of the owners and occupiers of the land crossed by the existing and proposed routes.

How long does the process take?

Before determining an application, we will consult with a range of statutory consultees, including user groups (such as The Ramblers and British Horse Society) and local parish councils. We aim to make our decision on an application within three months of taking it up from the waiting list. Even where we agree to make an order, it can take at least a further six months before the legal processes are complete. If the order is contested, it can take considerably longer.

What does it cost?

The diversion cannot be completed until the new path is put into good condition and formally accepted by the Council. We will specify any work that needs to be done before we make a diversion order but, if the diversion proceeds, the applicant must carry out the work, to our satisfaction, at their own expense. We have the power to do the necessary work and recover the cost from the applicant if they fail to do so.

We charge the applicant for the time we spend processing an application and for the actual cost of advertising the diversion in the local press. If an order is opposed we may decide to refer it to the Secretary of State for determination, but are not obliged to do so, and may opt to abandon the order if we do not consider that it is likely to be confirmed. If we do decide to refer an order to the Secretary of State for confirmation, we bear the costs from this point onwards.

An applicant may be required to pay compensation to anyone whose land is devalued as a result of the diversion (as per the provisions set out in Section 28 of the Highways Act 1980).

We can require an applicant to enter into an agreement with us to pay these costs.

Who decides whether a path should be diverted?

Initially, we do. The case officer will make a recommendation as to whether a diversion order should be made. The recommendation will either be approved or rejected by the Regulatory Committee or, more commonly, at officer level under delegated powers. However, the making of an order is a public process, and if we receive objections to the order we may decline to take the matter further, or we may refer it to the Secretary of State for a decision. This may result in a public inquiry, or hearing, or be dealt with by way of written representations.

We are not obliged to make a diversion order, even if it complies with the requirements of the legislation. We hope that, by providing advice in Part II of this guidance, applicants will be encouraged to propose diversions which improve the network or offer the public better access opportunities. We reserve the right not to agree to diversions that do not do so. We will, however, consider all applications and give reasons for our decision.

First steps

We recommend that anyone thinking of moving a public right of way first establishes the legal line of the path (and this may not exactly reflect the line of the path in use on the ground). The most up to date information about the rights of way network is available online. Each public right of way is uniquely referenced by the name of the parish in which it is located, and a number. We will need this information to process an application.

The proposed new line of the path should be planned using the guidance in Part II. We can provide informal advice at this stage in order that an application has the best possible chance of success. We can also advise at an early stage if the proposal is unlikely to succeed. Contact us at [email protected].

It makes sense to consult with local residents, users of the path and statutory consultees before submitting a formal application to the County Council, so that their views can be established at an early stage, thereby enabling applicants to modify proposals as required, and thus reducing the chances of objections after costs have been incurred. We suggest:

erecting a notice beside the section to be diverted, explaining the proposed diversion and seeking comments and suggestions from those who use the route. Include a large scale plan showing the current rights of way network in the area (we may be able to assist in this respect)
contacting local representatives of interested groups and asking for their input. We will be able to supply contact details for representatives of the Ramblers, the Open Spaces Society and the Parish Council, and also the British Horse Society and Cyclists Touring Club (in the case of bridleways) and the British Driving Society (in the case of restricted byways)

The application form

The application form should be completed and sent to us once the proposal has been finalised, together with a map showing the proposed diversion.

Part II: Choosing a new route

This part of the guidance is intended to help applicants identify the best possible alternative route and an application which is therefore more likely to be approved. It is also intended to discourage the making of applications that provide little benefit to the rights of way network or stand little or no prospect of success.

The needs of users of a path need to be taken into account when a path is diverted, as well as those of the landowner. We will consider both and also have regard to our Countryside Access Plan, which drives and informs the way in which we manage the rights of way network. This is the result of research and consultation with local residents, access user groups, land owners, farmers and land managers.

We recognise that different users have different needs and not everyone using the rights of way network will agree on the qualities which make it special. The guidance is not intended to be prescriptive, because the overall quality of an application will be a combination of many different factors. These include:

the quality of the existing route and the proposed new route in terms of surface, gradient, views and quality of the user’s overall experience
the importance of the path in the network
the nature of the terrain
local needs and opportunities
amount and ease of future maintenance

Our recommendations on widths, for example, are for guidance only, because the provision of a path at our suggested width does not guarantee that the application will be looked on favourably any more than non-compliance means that application will necessarily be unsuccessful. We suggesting that new footpaths should be at least 2 metres wide, because this width provides for ease of use and makes the path more accessible for machinery used for cutting. However, if there are good practical, or land management, reasons why the width should be less the diversion may nonetheless be acceptable. We want to encourage easier access to the countryside for all, so we will look more favourably on a new route that has no gates or stiles than on one which affords less accessibility. However, we also recognise that there are reasons why structures may be necessary to manage land properly, so a new path which includes such gates or structures may still be approved. Our guidance should be read with this in mind.

1. Accessibility for users and for maintenance purposes

Structures

We prefer routes without gates, stiles, or other structures
We would prefer for routes not to have structures unless these are necessary to prohibit unauthorised use or to control livestock. If a structure is needed to prevent unauthorised use, where possible a gap should be left at the side for pedestrian or equestrian access. Structures needed for the control of livestock may be authorised under s.147 Highways Act 1980
We would like you to discuss with us the specification of any structures before submitting your application. Bridleway gates need to be a minimum 5 ft wide and have a longtail latch. We would like to see Radar gates and medium mobility gates where improvements to accessibility are needed or desirable
We prefer structures on bridleways at junctions with roads to be sited sufficiently far back from the road junction to provide an area for riders to wait safely before crossing

Width

We prefer new paths to be at least as wide as the paths they replace
We prefer paths to be wide enough for people to use easily and for machine access should surface cutting be necessary - ideally a minimum of 2 metres for a footpath and 3 metres for a bridleway but generally, the wider the path the better
If the width of a diverted path is to be subsequently narrowed by fencing or hedges, an additional 0.5 metres of width should be offered

2. Quality of surface

We prefer new paths to have a surface which is as durable as the existing path, and which is no more expensive to maintain. Drainage of the new path is an important matter to consider, as is the ability of the path to dry out after wet weather. The surface of a brand new path across open land may not be as durable as the surface of a path that has been compacted as a result of having been trodden for centuries, so the new path may need to be drained or engineered before it is of a similar standard
We prefer new paths to have improved durability, consistent with their character and situation. We will advise on the required standard of construction of a new path. This will vary according to its location and future use. For example, if the diversion means that the path is likely to be used more after the diversion than before, we may require the new path to be constructed to a higher standard than the old
We prefer new paths to avoid using existing private access points where livestock congregate or where surface damage can be caused by farm machinery

3. Quality of experience

We prefer paths which offer the user a similar, or enhanced, experience to the existing path, in terms of character, views, gradient and convenience of use
A significant increase in length should be avoided if possible, unless this is justified where it offers an improved experience or a link to a network not as conveniently accessible on the existing network
If possible, proposed diversions should not take the user away from points of interest such as views, historic features or water (unless an equivalent feature is on the new route)
We prefer diversions which reduce potential hazards for the user, such as taking users off a busy road, or away from land used by plant and machinery
We prefer paths which are safer for users (eg improved sight lines at road crossings)
We prefer paths which take a route that is easy for the users to follow without excessive signing and waymarking

4. Strategic value

We prefer diversion proposals which provide improvements in connectivity to other parts of the rights of way network or to areas of public access
We prefer diversions which offer network improvements identified by the Countryside Access Plan
We prefer diversions which offer additional rights for non-motorised users. If a new footpath is suitable and appropriate for use by horse riders and cyclists, we will welcome the dedication of additional rights for those users
We reserve the right not to process an application for a diversion if rights of way on land owned by the landowner are not fit for use as a result of any default on the part of the owner or occupier of the land
We will not make or confirm an order if we do not consider it expedient to do so. In deciding whether it is expedient, we will take into account the cost of promoting an order once made, and the prospective benefit afforded to the public by the new route

Part III: A landowner’s responsibility for the network

The County Council will usually become responsible for the maintenance of the surface of any public right of way that has been diverted, but landowners have certain responsibilities for public paths which cross their land. We think it worth reminding prospective applicants of these, so that future liabilities can be considered when a new route is proposed.

Vegetation

A landowner must ensure that vegetation from land on either side of a right of way does not overhang or encroach onto the public path. If a path is to be enclosed by hedges, or is to run next to a hedge or woodland, the regular cutting back of vegetation will be an ongoing responsibility on the part of the landowner or occupier of the land on which they are planted. Care should also be taken to ensure that there is adequate headroom for users of the path. In the case of a bridleway, clear headroom of at least 3 metres must be maintained. Any tree falling across a right of way should be cleared by the owner of the tree.

Ploughing and cropping

There is a right to plough across a footpath or bridleway if it runs across a field, provided that it is not reasonably convenient to avoid disturbing the surface of the path. A footpath should be reinstated within 14 days to a minimum width of 1 metre and a bridleway should be reinstated to a minimum width of 2 metres within 14 days of the first disturbance for sowing of a crop, and within 24 hours in any other case. The potential disturbance to users caused by the ploughing of a right of way is a factor that we will take into account before approving a diversion, but where it has been approved, landowners should be aware that the right to plough comes with the responsibility to reinstate. It is an offence to disturb the surface of headland paths.

Any path running through a field of crops must be kept clear by cutting or spraying to the same widths.

Structures

Landowners and occupiers are normally responsible for the maintenance of gates and other structures on rights of way. They should be repaired or replaced when necessary so that they are safe and easy to use. We can provide advice and assistance when structures need to be replaced. No structures should be erected unless previously authorised by us.

Livestock

Livestock and the public are not always a good mix. All land managers are under a duty not to put the health and safety of persons at risk, including those not in their employment. Specific rules relate to bulls: it is an offence to keep any bull in a field crossed by a right of way unless the animal is under 10 months old, or it is not of a recognised dairy breed and is at large with cows or heifers.

Obstructions

It goes without saying that rights of way should not be obstructed, even temporarily, and that it is an offence to erect signs or act in a way intended to mislead or deter members of the public from using a public right of way.

We would remind landowners that the maintenance of free passage along public rights of way is a key farm activity that falls within the cross-compliance rules of the Single Payment. The County Council, as a relevant enforcement body, is encouraged to report GAEC breaches to the Rural Payments Agency (‘RPA’), particularly those which breach GAEC 8 – Public Rights of Way. The RPA will then consider a reduction in the SPS Payment.