The Planning Inspectorate- Wales

Public path orders

The Highways Act 1980

Section 26 (creation orders)

5.2 Section 26 of the Highways Act gives an authority the power to create a footpath or bridleway. The authority can do this without getting permission from the person who owns the land that the proposed path will run over.

The questions that will affect the decision

5.3 The Secretary of State or inspector will only confirm the order if they are satisfied that the reason for making the order is one of those given in Section 26 of the Highways Act 1980. These reasons are as follows:

There is a need for the new path.

It is a good idea to create the new path, taking account of:

How it will be more convenient or enjoyable for most of the people living locally or other members of the public.

How it will affect the rights of those with an interest in the land (after considering the compensation they could receive).

Section 118 (extinguishment orders)

5.4 Section 118 gives an authority the power to extinguish a footpath or bridleway (remove its status as a public right of way). In making the order the authority must be satisfied that the path should be extinguished because it is not needed by the public.

The questions that will affect the decision

5.5 The questions which must be asked in deciding whether to confirm an extinguishment order are as follows:

Is it right to close the path after taking into account how often it is or could be used?

How will closing the.path affect the land next to the path (after considering the compensation those who own the land could receive)?

5.6 When considering an extinguishment order, the Secretary of State or inspector will normally ignore any obstructions to the path, even if they are already blocking the way. He or she will consider how much more the path would be used if the obstructions were taken away.

Section 119 (diversion orders)

5.7 Section 119 of the Highways Act 1980 gives an authority the power to divert a footpath or bridleway in the interests of the owner, tenant or person using the land crossed by the path or in the interests of the public.

5.8 In making the order, the authority must be sure that unless the existing path connects with another highway the diverted route will end at the same place. If the existing path does connect with another highway and the order will change the place it ends, it must still connect to another point on the same highway or a highway which is connected to it. Any change in the place a path ends must be as convenient to the public as the original end of the path. The authority must also make sure that not all of the route shown in the order as the alternative path is an existing public right of way. Otherwise the order would have the effect of removing a path, rather than diverting one.

The questions that will affect the decision

5.9 The Secretary of State or the inspector must be sure of the following:

The order is in the best interests of the person or people named in it (see section 5.7 ).

The diverted path will not be much less convenient to the public.

It is a good idea to divert the path, taking into account:

How it will affect the public's use of the path.

How it will affect the land next to the existing path.

How it will affect the land it is diverted through (after considering the compensation those affected could receive).

5.10 When considering a diversion order, the Secretary of State or inspector will normally ignore any obstructions on the path which is to be diverted, even if they are blocking the way. He or she will consider how much more the path would be used if the obstructions were taken away.

Concurrent Highways Act orders

5.11 Sometimes an authority will ask the Secretary of State to consider a creation or diversion order together with an extinguishment order. Under Section 118(5) of the Highways Act 1980 the Secretary of State or inspector can consider whether a certain route is still needed if a new one is being created or diverted.

5.12 The most important point to consider here is how convenient the new or diverted path will be. If the Secretary of State or inspector finds it will be much less convenient than the path which is to be closed, he or she may not confirm the extinguishment order (see section 5.5). However, applying for two orders at the same time does not mean that they are bound to have the same decision made on them. For example, an inspector may not be able to confirm one of the orders because it does not meet the criteria set out in the Act, but may find that the other order, when considered alone, should be confirmed.