Rights of Way, proposed developments and planning permission - s.257 Town & Country Planning Act 1990 Orders
An application of this type of Order (for a ‘Public Path Order’) can only be made if this Authority is satisfied that the diversion or stopping up of a footpath or bridleway (known collectively as Rights of Way) is necessary to enable development to be carried out in accordance with a planning permission.
Please note:
- When in the process of applying for planning permission which will also affect a Right of Way, please contact the Rights of Way Officer as soon as possible, to begin discussions about whether a Rights of Way legal Order is required.
- 100% of the costs involved will be payable by the applicant. These currently stand at around £5,000; it could be a lot less if an Order goes straight through, but it could be a lot more if it is objected to.
- The granting of planning permission does not entitle developers to then obstruct a Right of Way.
- The procedure to divert or stop up a Right of Way is separate to the planning process, but they can run parallel to one another.
- It must not be assumed that because planning permission has been applied for and granted, that an Order to divert or stop up an affected Right of Way will be successful.
- Any Order to divert or stop up a Right of Way cannot be confirmed until planning permission has been granted.
- Any development work that will affect a Right of Way must not be started until the necessary Order has taken effect and that particular legal process has finished, i.e., the affected Right of Way must remain open for public use at all times. Please note that a Temporary Closure Order will then be required to close the same Right of Way to users whilst the development work takes place.
The process for the TCPA legal Order & subsequent Temporary Closure Order
Stage 1 - Informal consultations
When an application is received, this Authority will carry out informal consultations on the proposals with the relevant Parish Council, North Yorkshire Council; user groups (such as the Ramblers Association, the British Horse Society, the Open Spaces Society, Cycling UK, etc.) and a range of utility companies (such as water, electric, gas, internet/telephone, etc.). It is often at this stage that the initial proposals can be amended if any objections are received. This can help save a lot of time and achieve a successful outcome.
The applicant should be prepared to allow representatives from these organisations to inspect the route of the Right(s) of Way and any proposed substitute(s).
Please note that Stage 1 is free of charge to the applicant.
Stage 2 - The Order is ‘Made’
If no objections are received during Stage 1, this Authority will then decide whether to ‘Make’ an Order. If it does, notices and maps will appear at either end of the affected Right(s) of Way and an advert will be placed in a local newspaper to invite public comments. A 6-week period is given.
If the Order is not made, the applicant will be given the reasons why – but please note there’s no right to appeal.
Costs begin to be incurred at this stage – staff & Solicitor’s time & a newspaper advert in the local press. An invoice will be issued & must be settled before Stage 3 can begin.
Stage 3 - The Order is ‘Confirmed’
If no objections are received during Stage 2, then this Authority may decide to ‘Confirm’ the Order but ONLY if/when planning permission is granted. Therefore, please be aware that on occasion, there could be a time difference between an Order being ready for confirmation and the issuing of planning consent. If planning consent is refused, then the Order will not be confirmed. If planning consent is granted, notices and maps are again posted on site and an advert placed in a local newspaper. The applicant will receive a copy of the sealed Order for their records. Costs will be incurred during this stage so again, an invoice will be issued & must be settled before Stage 4 can begin.
Stage 4 - The Order ‘takes effect’
The Order will state when the diversion or stopping-up will come into force, usually on the date at which the Order is confirmed. However, there can be instances when the Order specifies a different date. It usually happens when physical works need to be carried out to the ‘new’ footpath in order to make it suitable for use by the public e.g., resurfacing works, installation of gates, signs, steps etc. Discussions will take place with the Rights of Way Officer and relevant Area Ranger as to who will undertake the works, to what specification and when, etc.
If works are required, then the Order will state that it will only take effect once this Authority has certified that these works have been completed to a standard previously agreed. This certification process involves the Area Ranger visiting the site to inspect the works and if all are completed satisfactorily, sign them off. Another advert will then be placed in a local newspaper to state that the route is now available for use. Costs will be incurred during this stage so again, an invoice will be issued & must be settled before Stage 5 can begin.
Stage 5 - The file is ‘closed’
Upon the Order being confirmed, it taking effect and then the necessary invoices being paid, this Authority will take the necessary steps to close the file. This includes sending a copy of the sealed Confirmed Order to North Yorkshire Council in order that their Definitive Map can be updated, and they will notify Ordnance Survey to change their maps when the next re-print is due.
The applicant and any relevant landowner(s) will receive a copy too, for their records.
Please see the notes below on Temporary Closure Orders, which will be required once works commence on the ground.
Additional Notes
Objections to a Public Path Order
If objections are received at any stage of the Order process (within the specified time limit), then this Authority will collaborate with the applicant and objector to try and negotiate a solution. However, if the objection is not withdrawn then this Authority can refer the Order to the Secretary of State who will make the decision whether to confirm it.
If this Authority itself decides not the ‘Make’ or ‘Confirm’ an Order, then a third party who is aggrieved by the decision has a 6-week period to challenge this on a point of law. This period cannot be extended. The challenge can only be that this Authority has acted unlawfully in coming to their decision and not just because someone disagrees with the Authority’s decision. This challenge is called ‘a claim for Judicial Review’ and objectors are advised to seek independent legal advice beforehand as costs can be incurred.
Landownership details:
If the applicant does not own all the land over which the existing Right(s) of Way or proposed paths run, they must obtain written evidence of consent from every person(s) who has/have a legal interest in the land before matters can proceed further. Persons with an interest in the land include tenants, licensees, mortgagees, graziers, or those who have sporting rights or private rights of access over the land. Failure to disclose the existence of any such person could lead to serious delays in the processing of an application and could invalidate any Order made.
Temporary Closure Orders
When works begin on the ground, a Temporary Closure Order will be required to temporarily close any affected Rights of Way. This is to ensure that people cannot use them during the works period for safety reasons. 100% of the costs involved in processing this Order will be payable by the applicant. These currently stand at around £1,500 - £2,000, but it could be less. The Rights of Way Officer can advise further on this and there is a separate guidance note and application form available.
Any queries, please email the Rights of Way Officer: e.ashton@northyorkmoors.org.uk
Data Protection:
The North York Moors National Park Authority is registered under the Data Protection Act 1998. Any information supplied will be processed lawfully, treated as confidential and shall not be disclosed to any other person or party without prior consent.