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DEVELOPMENT _ RIGHTS OF WAY Appendix F by nyut545e2

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									DEVELOPMENT & RIGHTS OF WAY Appendix F

Development may affect existing
public rights of way. It is accepted
that development has to take place,
but how it takes place and how it is
planned can materially affect the
quality of life for people who use
the rights of way. It is vital to
ensure that developers and local
authorities work in partnership to
protect any existing public paths
and to enhance the existing path
network.

This Guide is intended to provide
basic information about public
rights of way and the requirement
to ensure that they are not
extinguished,      diverted       or   The inclusion of a right of way is
obstructed during the course of        conclusive    evidence     of    the
development without the prior          existence of that right of way
consent of the highway authority.      whatever its physical state may be.
                                       However, the reverse is not true. A
The Definitive        Map      and     way not shown on the Definitive
Statement                              Map can still be a right of way
                                       although its status would need to
The      Definitive     Map     and    be proved.
accompanying Statement is a legal
document showing all public rights     There are three categories of public
of way. The Map and Statement          path shown on the Definitive Map.
are kept up to date by the Highway     These are:
Authority. (See attached extract
from Definitive Map below.) The           •   Public Footpath (denoted by
Map does not show claimed routes              - - -) over which the right of
which can cause developers                    way is on foot only.
considerable difficulties. (See note
below - Claimed Routes.)                  •   Public Bridleway (denoted
                                              by +++) over which the right
                                              of way is on foot, on horse
                                              or on bicycle. Cyclists must
                                              give way to walkers and
                                              riders.
   •   Public Byway Open to All          Although 20 years' uninterrupted
       Traffic (denoted by -v-v-)        use by the public establishes a
       over which the right of way       presumption that the way has been
       is on foot, horse or bicycle or   dedicated to the public, the
       by motor vehicles.                presumption can be contradicted
                                         by evidence showing that there
Definitive Maps and Statements           was no intention to dedicate on the
are available for public inspection      part of the landowner, at the time.
at Staffordshire County Council and      This could be evidence of an
District Council offices.                interruption of the public's use of
                                         the way, but such an interruption
Claimed Routes                           would have to be shown to have
                                         been both effective in preventing
Apart from cases where a new right       public use and clearly known to the
of way has been specifically             public using the way.
created, routes can become public
rights of way through dedication of      Where the public may allege that
the right to the public by the           they     have    had    20    years'
landowner.                               uninterrupted use of a way, they
                                         may submit an application under
In a few cases, the dedication is        Section 53 of the Wildlife and
express,    i.e.   the   landowner       Countryside Act 1981, to add the
consciously and deliberately makes       path to the Definitive Map.        A
a public right of way. But in most       register of such applications is
cases the dedication is presumed         available on the County Council's
from evidence of the way made by         website: www.staffordshire.gov.uk.
the public.                              It is also advisable for developers
                                         to ascertain whether any such
To establish that a way has              routes cross the site before
become a right of way by means of        submitting a planning application.
presumed       dedication    it   is
necessary to show firstly that there     The Effect of Planning
has been uninterrupted use as of         Permission on Rights of
right by the public (not necessarily     Way
the same people all the time) over
a period of 20 years.                    It is essential that developers
                                         ascertain what rights of way cross
                                         the site at the earliest opportunity.
                                         This can be confirmed through the
                                         land search process.
Solutions to problems that the         Orders made by the Local
existence of rights of way could       Authority under S257 of the
cause should be sought before a
                                       Town and Country Planning
planning application is submitted;
otherwise the development may be       Act 1990
delayed or worse, be thwarted
completely.            Furthermore,    Before making an Order under
obstruction of a public right of way   Section 257 to divert of close a
may lead to enforcement action,        path, the local planning authority, in
prosecution or blighted property.      making the Order, and the
Diverting or changing a public right   Secretary       of    State,    when
of way should only be a last resort,   confirming an Order, must be
and, wherever possible, the right of   satisfied that it is necessary to do
way should be incorporated into the    so to enable the development to be
development as a positive feature.     carried     out     and    that   the
                                       development is:
Diverting or Extinguishing
                                          1. In accordance with a
Rights of Way                                planning permission that has
                                             been granted; or
The granting of outline or detailed       2. Permitted      development
planning permission does not                 under a general or special
constitute permission to close,              development order; or
divert of obstruct a public right of      3. To be undertaken by a
way affected by development.                 government department.
Where it is necessary to divert or
extinguish a right of way to allow     The Orders are made by the
permitted development to take          planning authority which granted
place, the authority for such a        the permission. In most cases, this
closure or diversion is granted by     will be the District or Borough
an Order under Section 247 or 257      Council. No other authority has to
of the Town and Country Planning       be consulted.
Act 1990. Where an Order is
required it is likely to take          Public Path Orders are subject to
approximately 10-12 months to          extensive statutory requirements
determine, provided there are no       for consultation, publicity and
objections to the proposal.            provision for representations or
                                       objections.       Opposed Orders
                                       cannot be confirmed by the
                                       Secretary of State and have to be
                                       referred to the Secretary of State
                                       for confirmation, who may call a
                                       Public Inquiry to resolve the matter.
Orders    made    by    the            Powers under the Highways Act
Secretary of State under               1980 have to be used to deal with
                                       the situation.
S247 of the Town and
Country Planning Act 1990              Sections 118 and 119 of the
The Secretary of State also has        Highway Act 1980
powers to authorise by Order the
                                       Diversion Orders are made under
stopping up or diversion of any
                                       Section 119 of the Highways Act
highway        (vehicular    routes,
                                       1980 and certain criteria have to be
bridleways, footpaths), if he is
                                       met. The new routes must start
satisfied it is necessary to enable
                                       and finish on the same highway as
the development to be carried out.
                                       the existing route, or on a highway
                                       leading to it, and must not be
A developer who seeks to
                                       substantially less convenient to the
persuade the Secretary of State to
                                       public. The effect on adjoining
make the Order may be required to
                                       landowners and the public's
meet the expenses incurred by the
                                       enjoyment of the route must also
Secretary of State or the Highway
                                       be considered.
Authority in making alternative
routes or paying compensation to
                                       Extinguishment Orders are made
third parties.
                                       under Section 118 of the Highways
                                       Act 1980. The only grounds for
An Order cannot generally be
                                       making an Extinguishment Order is
made unless planning permission
                                       lack of need, except for rail
has first been obtained.
                                       crossings when safety can be
                                       considered.     The obstruction
What if the Path has already           caused by the development must
been built over?                       be disregarded in assessing
                                       whether the path is needed for
Whilst the granting of planning        public use.
permission does not authorise
interference with rights of way,       Temporary Closure Orders
such interference does occur from
time to time. Orders can be made       The Highway Authority has powers
under Sections 247 or 257 to           to make a temporary Road Traffic
realign routes, where necessary,       Regulation Order to restrict use of
provided that some of the              a right of way to avoid danger to
authorised development remains to      the public whilst works are being
be carried out, but if it has been     carried out.
completed then the powers under
the Town and Country Planning Act
1990 cannot be used.
Temporary closure Orders either
last for six months, or, in certain
cases, for three weeks if it is
necessary to close the path as a
matter of urgency.        Wherever
possible,    the   Highways     Act
requests that alternative routes be
provided.

Cost of Orders
Charges are imposed to cover the
costs     of   administration     and
advertising associated with any
Order. The local planning authority
will advise on the level of charges.

Useful Contact
For more information on rights of
way issues, contact:

Rights of Way Section,
Environment & Countryside Unit,
Development Services Directorate,
Staffordshire County Council,
Riverway,
Stafford.
ST16 3TJ

								
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