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West Berkshire Council

Highways Act 1980 & Town and Country Planning Act 1990

Statement of priorities for dealing with proposals to amend the public rights of way network

DRAFT - AUGUST 2008

Introduction

A surveying authority possesses a discretionary power to make Public Path Orders (PPOs) to divert, create or extinguish public rights of way (PROWs). The Council has no duty to make such orders. New measures however may soon oblige the Council to consider applications from owners, lessees or occupiers of any land used for agriculture, forestry or the breeding or keeping of horses.

Basic Legal criteria for making Orders (in part) under Highways Act 1980

To divert a PROW: in the interests of the landowner, lessee, occupier or the public.

To extinguish a PROW: if the right of way is not needed for public use.

To create a PROW: this may be done either be agreement with the landowner or by an Order served on a landowner by the local authority. In the latter case, compensation would be payable and the Council must have regard to the extent to which the new path would add to the convenience or enjoyment of a substantial section of the public, or to the convenience of persons resident in the area.

Work on Path Orders to Date

West Berkshire Council has, to date, considered all diversion or extinguishment applications and recommended that an order be made in those cases where the statutory criteria are met. The process is extremely time-consuming and involves site visits, negotiations, and, where appropriate, a report for members or a public inquiry. It has become clear that this work is taking a hugely disproportionate amount of staff time, often with questionable public benefit. Pressing statutory duties on the existing PROW network and the Rights of Way Improvement Plan have resulted in a need to re-evaluate priorities, and to consider when diversion/extinguishment proposals will be accepted or refused.

Prioritization Policy

Diversion and extinguishment applications will only be accepted and processed where they are in the interests of the public, and the statutory criteria have been met. Examples of situations where applications may be accepted are:

  1. There is imminent danger to the path users where other remedial health and safety action is not appropriate.

  2. The path is blocked by long-term obstruction due to permanent buildings or other substantial development.

  3. The application would materially and significantly increase path users' enjoyment (for example by providing significantly improved views/opportunities to observe wildlife/to avoid permanent water-logging).

  4. There is a serious long-term deterrent to path users which has not been possible to overcome through clear signing, way marking and other management measures.

  5. The application would result in an improvement which has been recognised as a priority within the emerging Rights of Way Improvement Plan and/or an improvement of the network will be provided by the provision of an important link not provided by the existing path.

Alternatives to diversion or extinguishment

Where a diversion or extinguishment is requested as a result of a problem then alternative solutions should first be considered and tried in order to resolve these problems. For example:

No diversion or extinguishment should be considered if the prospective applicant refuses, without good reason, to implement alternative measures that address the problems.

The effectiveness of a proposed diversion in relation to an issue that it claims to address should be carefully considered. For example, allocating resources into diverting a path, that lies 50 metres from a private residence, a further 5 metres away to improve the occupiers' privacy may not be justifiable, unless the new route provides walkers with a significantly improved path.

Applications will not be accepted from applicants as a means of resolving obstructions or nuisances that can readily be removed (for example fences or dangerous animals) unless the Council considers that there is a clear benefit to path users resulting from the application proposal.

Where a diversion or extinguishment is to be considered

If the Council believes that there is merit in a proposal it may ask any prospective applicant first to gain the agreement of local user groups and bodies. This will include the Parish Council and Ramblers' Association as a minimum; for example the applicant should also discuss with the British Horse Society and Byways and Bridleways Association if a bridleway is affected, or any nearby local residents' association. The responses will be considered by the Council before deciding whether the proposal can be seen as being in the public interest.

Before proceeding, the Council may also insist that:

  1. The line of the existing legal route should be open and safe to use.

  1. The status of the route should not be in dispute, e.g. a diversion may be refused if there are other outstanding claims on the route.

  1. If the applicant is known to be responsible for problems on other PROWs then the Council may ask for these to be resolved before proceeding further.

  1. The specifications (and future maintenance) of any new route to be provided by the applicant should be agreed with the Council in writing before an order is made.

  1. The applicant should agree to cover the costs incurred by the Council in making an Order and to cover the costs of advertising all necessary newspaper adverts.

Decision to accept Public Path Order applications

Accepted applications will be added to a register and dealt with according to date of receipt and considering the factors listed in (a) to (e) above.

When an application begins to be processed, informal consultations are first carried out and, depending on the results of these, the Council will make a further decision on whether to abandon the matter or to make an Order. If a decision is made to make an Order, each stage of the administrative process will then take place as soon as reasonably practicable.

Public path orders and development

Planning permission may be granted for development that would illegally obstruct a public right of way if it were to be carried out without the prior legal extinguishment or diversion of the affected way. Section 257 of the Town and Country Planning Act 1990 enables a surveying authority to make an order to extinguish or divert a public right of way to enable permitted development to be carried out, although this is a discretionary power. An Order must be made and confirmed before any development on the path can take place.

As a unitary authority West Berkshire Council is both the planning and surveying authority for the area. Granting planning permission that would block a public right of way is in effect equivalent to the Council agreeing to make a public path extinguishment or diversion order as it would be inconsistent for the Council to grant the planning permission and then refuse to process the necessary path order. Development should therefore accommodate the existing PROW network wherever possible unless it is clear that it is beneficial to the public as a whole for the public right of way network to be altered to allow the development to proceed.

Path Orders Promoted by the District Council

In addition to considering applications from landowners which significantly enhance or improve the network for the public path users, the District Council will, as resources permit, be proactive in promoting other path orders which meet this objective. This document is not intended to prevent the District Council promoting any other diversion or extinguishment where it considers it expedient to do so.

Costs

Before accepting an application to divert a public right of way it should be made clear that whilst the Council can charge an applicant for certain administrative and advertising costs, it cannot recover the costs incurred in taking the matter to the Planning Inspectorate, for example at a public inquiry. The cost of hiring a venue for a public inquiry, of all officer time and expenses in preparing and administrating a case at the inquiry and the cost of advertising the inquiry on site and in a local newspaper must be met by the Council. This presents a major resource commitment, and should be considered from the outset, especially if objections seem likely.

Local Authorities (Recovery of Costs for Public Path Orders) Regulations 1993