Walk this way

Developing housing associations should exercise caution when buying land subject to public footpaths or roadways. Removing and diverting these rights can be costly and delay development works significantly.

The common law principle of ‘once a highway, always a highway’ is apt. Even if the road or path hasn’t been used for years or is not apparent on the ground, the highway rights continue to exist. The Highways Act 1980 adds teeth by making it a criminal offence to obstruct a highway with fines of up to £5,000.

Social landlords can apply to local authorities for a stopping-up order or diversion order. A stopping-up order permanently extinguishes highway rights. A diversion order diverts a footpath/highway along a different route.

Proposals to stop up or divert must be advertised in the local press. Residents may lodge objections. If there are no objections, the local authority can confirm the order. If objections are raised, this is where difficulties arise. The matter must be referred to the secretary of state and the procedure can be expensive and take many months. No work can be carried out on the footpath/highway until the matter has been concluded.

So, how can social landlords reduce these risks? Before buying land, establish whether it is affected by rights of way. If so, incorporate alternatives into your development plans (for example, so that your development can proceed if either rights are stopped up or diverted). Discretely gauge public opinion regarding the footpath. How often is it used, who uses it and why is it used? This way, you can find out the likelihood of any public resistance early.

Nnenna Morah, associate, Lewis Silkin
nnenna.morah@lewissilkin.com

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