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Diverting and closing existing rights of way

8 February 2018

Many school sites have public rights of way crossing the land or adjacent to it and these can cause safeguarding issues, threaten security, or present problems if the school is to be redeveloped.

Public rights of way are highways and the legal position is that once a highway, always a highway. This means a public right of way will remain so until it either ceases to exist (e.g. where a cliff falls into the sea) or it is closed by a statutory procedure.

Types of statutory procedures

Diversion orders

One of the statutory procedures that might be available for school sites is the diversion order. This order can be made where it is shown it is in the interests of the landowner, lessee or occupier of the land or the public - provided the diverted route is not substantially less convenient.

Special extinguishment diversion orders

Another procedure that might be available for school sites is the special extinguishment diversion order. This can be used where diverting the path is in the interests of school security or crime prevention and is required to protect pupils or staff from violence, threats, harassment, alarm and distress. This order can only be used in areas where there are high levels of crime and where the location of the path is facilitating the commission of criminal offences.

How apply for a diversion order

Schools that wish to apply for a diversion order (rather than a special extinguishment diversion order) will need to carefully consider where the new path will go. It should not be more costly to maintain and the surface, gradient and width must be similar to the existing path. The new path should not unreasonably lengthen the route or subject users to hazards and should take into account the needs of all users, possibly including features to improve access for the mobility impaired. The diversion should not result in a lower quality or diversity of views or move away from significant features.

If a suitable alternative path can be found, then an application to the relevant highways authority for a diversion order should be made. The application must include a plan of the existing and proposed routes and the written agreement of the owners and tenants of any land forming part of the path to be closed and the proposed new path. The applicant may need to pay the authority’s costs of the application and the costs of any compensation, due to a loss in value or enjoyment of land as a result of the diversion. The cost of construction of the new path will fall to the applicant and the authority may require the applicant to enter into a maintenance agreement.

If the local authority is satisfied that grounds for the diversion are made out, then the diversion order can be made. The order must be published and copies served on the relevant people and authorities. Provided there have been no objections to the diversion order, or any that have been made have been withdrawn or resolved, then the diversion order will be confirmed and the diversion will become operative.

How to apply for a special extinguishment diversion order

When applying for a special extinguishment diversion order the applicant does not need to propose a route for the new path. Instead, the authority is free to create an alternative path where it considers appropriate. However, before doing so, the authority must consider any other measures that could be taken by the school to improve security, and whether the diversion of the path will result in a substantial improvement in the security. Either the local authority or the Secretary of State can confirm the special extinguishment diversion order following which it will become operative.

Our team has extensive experience in relation to all types of property matters relating to schools, including disposals and acquisitions, leases, telecoms and substations, solar panels, boundary disputes, rights of way, access issues. Please feel free to contact us if you need any advice or assistance.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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