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Right to apply and appeal for extinguishment and diversion orders

A statutory right to apply for orders to extinguish or divert public rights of way, together with the associated rights of appeal to the Secretary of State, was introduced by the Countryside and Rights of Way Act 2000. This Act inserted new sections into the Highways Act 1980. [Summary of the relevant provisions], although at the present time these provisions have still to be legally commenced.

These provisions were introduced because of the difficulties that some landowners have encountered in persuading local authorities to consider using their existing order-making powers.

Scope of the new rights

Commencing the right to apply would enable certain landowners and occupiers to apply to a local authority (or National Park authority) for an order to extinguish or divert certain public rights of way across their land, and provide for the timely determination of all such applications.

The rights to appeal would give applicants statutory rights of appeal to the Secretary of State at two stages: firstly, if a local authority refuses to make the order applied for, and secondly where (after having made an order) an authority refuses to confirm it or to submit it to the Secretary of State.

The primary legislation restricts the new rights to:-

  • owners, lessees and occupiers of land used for agriculture, forestry or for the breeding or keeping of horses, in respect of public path extinguishment orders and public path diversion orders made under sections 118 and 119 of the Highways Act 1980; and
  • proprietors of schools, in respect of special extinguishment orders and special diversion orders made under sections 118B and 119B of the Highways Act 1980.

Exercising the new rights would not guarantee that an applicant can obtain an extinguishment or diversion order, but they would ensure that the arguments, both for and against extinguishing or diverting a right of way, are duly considered in a timely fashion.

In May 2007 Defra issued a public consultation paper on a proposed approach to implementing the right to apply provisions and an analysis of the responses to the consultation is now available.

Whilst we remain committed to introducing a right to apply and appeal for extinguishment and diversion of public rights of way, we have concluded, taking into account the responses to the consultation, that further primary legislation would be required in order to make such a right work effectively. The reasons for this are set out in a letter to consultation respondents and other key stakeholders.

Page last modified: 4 August 2008
Page published: 1 March 2007

Department for Environment, Food and Rural Affairs