Public footpaths are a much -loved feature of the English and Welsh countryside – but they don’t always stay where they started.
When development takes place, existing rights of way can be in the way of new buildings, roads or infrastructure. Section 257 of the Town and Country Planning Act provides the mechanism for diverting or extinguishing those paths as part of the planning process.
For buyers, understanding whether a footpath diversion has taken place – or is planned – near a property can matter more than they might expect. So, without any diversions, lets take a deep dive into the topic in five minutes:
What is a Section 257 diversion?
When a developer is granted planning permission for a scheme that affects an existing public right of way, they can apply to the local planning authority to have that path diverted or stopped up under Section 257 of the Town and Country Planning Act. Unlike other footpath diversion orders – which go through the highway authority – Section 257 orders are made by the local planning authority as part of the planning process, often running alongside the main planning consent.
The effect is to legally redirect a footpath from its recorded route on the definitive map to a new alignment that works around the development. The old route is extinguished. The new route, once the order is confirmed and the path is open, becomes the legal right of way.
Why does this matter for buyers?
A footpath diversion that hasn’t been properly completed can create a legal grey area. If a development has been built over an existing right of way but the diversion order hasn’t been confirmed and the new path hasn’t been opened, the original right of way technically remains in place – even if there’s now a building sitting on top of it.
For buyers, this can matter in several ways:
- Access rights – members of the public retain the legal right to use the original path until a diversion is properly confirmed, which can create an awkward situation where the theoretical right of access conflicts with the physical reality of a built development
- Title complications – where a diversion hasn’t been completed, title to land that was previously subject to the right of way may be encumbered until the order is finalised
- New path maintenance – once a diverted path is open, the new route is subject to the same public access rights as the original, and landowners have obligations in relation to its maintenance and condition
- Developer obligations – where a diversion order is part of a planning consent, the developer may have obligations to complete the new path before or alongside the development. Whether those obligations have been fulfilled is worth checking
How are Section 257 diversions identified?
Information about footpath diversion orders made under Section 257 can be held by the local planning authority as part of the planning history of a development site, and by the highway authority which maintains the definitive map of public rights of way. A CON29O optional enquiry covering public rights of way amendments can surface changes to the definitive map in the vicinity of a property.
Where a property is near a recent development – a new housing estate, a commercial scheme, or a road improvement – it’s worth asking whether any rights of way in the area have been subject to diversion orders as part of that development.
What’s the difference between a Section 257 order and other path diversions?
There are several legislative routes for diverting a public right of way. Section 119 of the Highways Act allows a highway authority to divert a path in the interests of the landowner or the public. Section 257 is specific to situations where the diversion is needed to facilitate development with planning permission. The practical difference for buyers is mainly about which authority holds the relevant records – though both types of diversion should ultimately appear on the definitive map once confirmed.
Footpath diversions are a routine part of how development happens alongside existing rights of way – but routine doesn’t mean automatic. A diversion order that hasn’t been completed, a new path that hasn’t been opened, or a change to the definitive map that hasn’t yet been recorded can all create complications that a careful conveyancer will want to identify and resolve. It’s one of a number of reasons why enquiries about rights of way near a property are worth raising, particularly where any recent development has taken place in the vicinity.
