The impact of public rights of way on development

Footpaths, bridleways and byways traditionally traverse golden fields and green lanes, providing short cuts and leisure walks for local residents and countryside visitors. Yet these recreational routes are public rights of way, a type of public highway recorded on mapping by highway authorities, and as well protected in law as the road network. A developer should be aware that planning permission does not make any change to a public right of way within the development site. Houses subsequently built over routes, even when in accordance with approved layout plans, become illegal obstructions of the highway. Such houses are likely to prove difficult – or even impossible – to sell. Recent changes to property search questions bring the existence of public rights of way to the attention of prospective purchasers.

In assessing the potential of a development site, public rights of way are therefore an important item for the checklist. First there should be a check of the legal record of public rights of way (known as the Definitive Map and Statement) and then a site survey to identify any evidence of public access, especially any at odds with the legal record. Problems can be two-fold:

  • Lack of visible evidence of a recorded public right of way does not diminish its existence in law. The maxim: ‘once a highway, always a highway’, warns that lack of use of a route, or even its previous obstruction by a building, lake or destruction by a quarry, has no impact on its legal status or location
  • Conversely, informal use of an unrecorded route can mean that a new public right of way exists. Such a route will have the same status and protection as one recorded on the Definitive Map. In such cases the matter sometimes only comes to a head when the site boundary fencing challenges the public’s right of way. What follows is an application to the highway authority by the users for the addition of the route to the Definitive Map, effectively blighting the affected part of the site until the matter is resolved.

On a positive note, there is much a developer can do to decrease the likelihood of a public rights of way problem delaying or even defeating a development:

  • Prior to purchase, check the legal record of routes and whether this matches what is happening on site. Seek help from the highway authority if signing is missing or incorrect, or the location or width of a route cannot be deduced
  • Ask if the land benefits from protection lodged in accordance with S31.6 of the Highways Act 1980, which prevents informal use contributing to the creation of new public rights of way. If not, and especially if the land is not to be developed immediately, put this protection in place
  • If a recorded route is identified, add it accurately to all layout plans. This data can be downloaded from some highway authority websites, while other authorities will assist with its addition to plans
  • Considering designing the layout to include a recorded route within an area of open space. The processes for diversion and stopping up, available under the Town and Country Planning Act 1990 the Highways Act 1980, are complex, with demanding criteria to meet and considerable power for an objector to delay or defeat a proposal. Designing-in will also usually find favour with planning officers
  • Consider if evidence for any unrecorded route makes it sensible to admit and accommodate it

Public rights of way legislation is complex and archaic. Dealing with recorded or claimed routes after a development has started – or even finished – is time consuming, expensive and carries no certainty of outcome. An astute developer therefore collects the information needed and manages the situation from the outset. While dealing with a route can be demanding, selling houses with a public footpath through the kitchens and sitting rooms can prove impossible.