Public Right of Way

Navigating the complexities of land development in the UK requires a thorough understanding of the legal encumbrances that can affect a site’s potential. A Public Right of Way (PROW) is a historic and legally binding path where the public has a right to pass and repass. Whether you are a property developer assessing a new site or a homeowner planning an extension, the presence of a PROW necessitates careful strategic planning and professional advocacy.

A Public Right of Way is a route over which the public has a legal right to pass, even if the land is privately owned. These routes are recorded on a “Definitive Map and Statement,” which serves as the legal record maintained by the local highway authority. Failure to identify these paths early in the design phase can lead to significant delays, enforcement action, or the permanent refusal of planning permission.

• Footpaths: For pedestrians only, though pushes and wheelchairs are permitted.
• Bridleways: For pedestrians, horse riders, and cyclists.
• Restricted Byways: Open to all non-motorised traffic, including horse-drawn carriages.
• Byways Open to All Traffic (BOATs): Routes used primarily by the public for walking or riding but which also allow motorised vehicles.

Key Takeaways

• Legal Status: A Public Right of Way exists regardless of whether it is visible on the ground; the Definitive Map is the final legal word.
• Impact on Development: Building over a PROW is illegal without a formal Diversion Order or Extinguishment Order.
• Planning Process: Local Planning Authorities (LPAs) must consider the impact of a development on the PROW network during the feasibility assessment stage.
• Obstruction Risks: Intentionally blocking a PROW is a criminal offence under the Highways Act 1980.
• Professional Guidance: Expertly navigating the diversion process requires coordination between planning consultants and highway departments.
• Timeframes: Diversion orders can take 6–12 months to process, making early identification essential for project timelines.

Core Concepts: Understanding the Definitive Map

The “Definitive Map and Statement” is the crucial legal document for any landowner. It provides conclusive evidence of the existence of a Public Right of Way at the date of the map’s publication. If a path is shown on the map, it is legally a PROW, even if it has not been used for decades.

However, the absence of a path from the map is not always proof that no right of way exists. Under the “once a highway, always a highway” principle, historic routes can be added to the map through a Definitive Map Modification Order (DMMO) if evidence of historic use is produced. We recommend that developers conduct thorough due diligence via the local authority’s highway department before finalising site layouts.

When we conduct a feasibility assessment, we scrutinise these records to ensure your project isn’t compromised by unrecorded claims. Identifying these constraints early allows us to mitigate risks and design bespoke solutions that respect both public access and your development goals.

Types of Public Access and Their Restrictions

To help you understand the limitations imposed by different types of access, we have provided a summary of the four primary classifications found in the UK. Each carries different implications for privacy, surface maintenance, and development buffers.

Classification	Permitted Users	Development Implications
Public Footpath	Walkers, runners, wheelchairs	Higher privacy requirements for residential schemes.
Public Bridleway	Walkers, horses, cyclists	Requires wider clearance; potential for surface wear issues.
Restricted Byway	Non-motorised traffic (incl. carriages)	Often involves historic routes with significant width requirements.
Byway (BOAT)	All traffic, including motor vehicles	High noise/dust potential; complex interface with site entrances.

The Impact of a Public Right of Way on Planning Permission

The presence of a Public Right of Way does not automatically prevent development, but it does fundamentally change the planning trajectory. A common misconception is that securing planning permission automatically grants the right to divert or close a path. This is not the case.

Section 257 of the Town and Country Planning Act 1990 allows for the diversion or stopping up of a PROW if it is “necessary” to enable development to take place. The Local Planning Authority will assess whether the proposed diversion is substantially less convenient for the public than the existing route. We ensure that your application includes a technically sound justification for any such changes.

If your architectural drawings show a structure placed directly on a PROW, the LPA cannot legally grant permission that facilitates the obstruction of the highway without a concurrent diversion application. This is why we advocate for a holistic approach, where the site layout accounts for the path from the outset to avoid costly redesigns.

Managing “Stopping Up” and Diversion Orders

A “Stopping Up” order permanently closes a path, while a “Diversion Order” moves it to a new alignment within or adjacent to the site. Both processes are subject to public consultation. If members of the public or organisations like the Ramblers’ Association object, the matter may be referred to the Planning Inspectorate for a public inquiry.

To streamline this process, we recommend the following best practices:

• Early Engagement: Consult with the Highway Authority and user groups before submitting an application.
• Quality of Realignment: Ensure the diverted route is logical, safe, and maintains the amenity value of the original path.
• Visual Integration: Use landscaping to create a clear distinction between public space and private residential curtilage.
• Documentation: Provide clear, annotated maps showing the existing and proposed routes alongside the full planning application.

Legal Responsibilities for Landowners

Managing a Public Right of Way involves ongoing legal obligations that remain even after a development is completed. The soil of a PROW usually belongs to the landowner, but the “surface” belongs to the Highway Authority. This creates a split in responsibility that must be managed to avoid litigation or enforcement.

Landowners must not obstruct the path with fences, walls, or vegetation. Even temporary obstructions during construction—such as scaffolding or skips—require a Temporary Traffic Regulation Order (TTRO). We help our clients mitigate the risk of fines by coordinating these temporary orders in line with the construction phase plan.

Maintenance of the surface is generally the responsibility of the local council, but the landowner is responsible for maintaining stiles, gates, and ensuring overhanging hedges are trimmed. If a developer wishes to upgrade a footpath surface to a hardstanding material for aesthetic reasons, they must seek formal approval from the Highway Authority first.

Public Right of Way vs. Private Easements

It is vital to distinguish between a Public Right of Way and a private easement. While a PROW allows the general public to pass, a private easement grants specific individuals or properties the right to cross your land (e.g., for access to a neighbouring driveway or utility maintenance).

Resolving private easements is a matter of civil law between neighbours. Conversely, matters involving a PROW are governed by public law and statutory regulations. At Approved Planning, we distinguish between these constraints during our initial site analysis to provide the most effective advocacy for your project.

Step-by-Step Guide: Developing on Land with a PROW

Navigating a project involving a Public Right of Way follows a specific sequence. Adhering to this lifecycle reduces the probability of a refusal and ensures that the technical requirements of the Highways Act are satisfied alongside the planning requirements.

1. Identification & Search: Consult the Definitive Map and Statement. Do not rely on physical evidence alone; a “dead” path may still be legally active.
2. Topographical Survey: commission a professional survey to plot the exact legal line of the PROW against your proposed site boundaries.
3. Pre-application Consultation: engage with the Highways Officer to discuss potential diversions and their preferred surfacing and width requirements.
4. Design Mitigation: adjust the architectural design to either incorporate the path as a feature or prepare a robust diversion route that meets the “convenience” test.
5. Submission of Orders: Submit the Section 257 Diversion Order application alongside the main planning application.
6. Public Consultation: Manage the statutory 28-day objection period. We provide the bespoke solutions needed to negotiate with objectors if concerns are raised.
7. Confirmation & Implementation: Once the order is confirmed, the new route must be constructed to the required standard before the old route is legally closed.

Common Challenges and Risks

The most significant risk involving a Public Right of Way is the “lost way” claim. Under the Wildlife and Countryside Act 1981, individuals can apply to have an unrecorded path added to the Definitive Map based on evidence of 20 years of uninterrupted use. If such a claim is made during your planning application, it can freeze development for years.

Another challenge is the “Convenience Test.” An LPA will not approve a diversion if the new route is significantly longer, steeper, or less safe than the original. For example, diverting a scenic rural path onto a narrow pavement alongside a busy road is often rejected by planning inspectors. We work to ensure that proposed diversions maintain the “character and amenity” of the original route.

Finally, there is the risk of criminal proceedings. Obstructing a PROW without a legal order is a summary offence. Even if you have planning permission for a house that sits on a path, you cannot begin construction until the Diversion Order is formally confirmed. Starting work prematurely can lead to a court-ordered demolition of the offending structure.

Risk Mitigation Strategies

Risk Factor	Mitigation Action
Public Objections	Engage user groups early to resolve concerns before formal submission.
Unrecorded Rights	Review historic OS maps and tithe records during the feasibility stage.
Safety Issues	Ensure new routes have clear sightlines and appropriate lighting if in urban areas.
Delay in Orders	Apply for the Section 257 order concurrently with the certificate of lawfulness or planning application.

Frequently Asked Questions

Can a Public Right of Way be moved to accommodate an extension?

Yes, but it requires a formal Diversion Order. You cannot simply build the extension and move the path around it yourself. The process involves a period of public consultation, and the local authority must be satisfied that the new route is not substantially less convenient for the public. We can help you navigate this by providing technically sound plans that demonstrate the viability of the new path.

What happens if a path is on the map but doesn’t exist on the ground?

If a Public Right of Way is recorded on the Definitive Map, it exists in the eyes of the law. The fact that it is overgrown or has been blocked for years does not extinguish the public’s right to use it. You must either clear the path or apply for a legal diversion or extinguishment before you can develop the land.

Can I gate a Public Right of Way for security?

Generally, you cannot place new gates or stiles across a PROW without the consent of the Highway Authority. Consent is usually only granted if the gate is necessary for controlling livestock. Gating a path for residential security is rarely permitted, as it is seen as an obstruction. We recommend using alternative security measures that do not impede the legal right of passage.

How long does it take to divert a Public Right of Way?

A straightforward, unopposed diversion typically takes between 6 and 9 months. However, if there are sustained objections that lead to a public inquiry, the process can take 18 months or longer. This is why we emphasise the importance of early feasibility assessments to factor these timelines into your project management.

Who is responsible for the maintenance of a PROW on my land?

The local Highway Authority is typically responsible for the maintenance of the path’s surface. As the landowner, you are responsible for maintaining any “furniture” like stiles or gates in a safe condition. You are also legally required to ensure that your activities—such as ploughing or planting—do not interfere with the public’s ability to use the Public Right of Way.

Can I lose my land to a Public Right of Way?

You do not lose ownership of the land, but the public’s right to pass over it takes precedence over your right to exclusive use. If a path is established through long-term use (20 years or more), it can be formally added to the map. To prevent this on routes you do not want to become public, you can deposit a map and statement under Section 31(6) of the Highways Act 1980 to protect your land from future claims.

Advanced Insights: The 2026 Cut-off and Recent Legislation

For many years, the “2026 cut-off date” was a significant concern for landowners and campaigners alike. Under the Countryside and Rights of Way Act 2000, any historic footpaths or bridleways created before 1949 that were not recorded on the Definitive Map by 2026 were to be legally extinguished.

However, recent government policy shifts have seen the repeal of this deadline in England to provide more time for recording historic routes. This means developers must remain vigilant, as the threat of an unrecorded Public Right of Way being discovered remains a permanent factor in land valuation and development. We monitor these policy changes closely to ensure our clients receive the most up-to-date advice.

Furthermore, the introduction of the Environment Act 2021 and mandatory Biodiversity Net Gain (BNG) often intersects with PROW management. A diverted path provides an opportunity to enhance local green infrastructure. By integrating Public Right of Way improvements with BNG requirements, we can create more compelling cases for development that LPAs are more likely to support.

Navigating these regulatory layers requires a partner who understands the intersection of highway law, property rights, and planning policy. At Approved Planning, we provide the expertly navigated strategies you need to protect your investment while fulfilling your legal obligations to the public network.