A right of way will be affected by development where it:
- crosses or is adjacent to an application site
- is to be used for site access (whether temporary or permanent)
- will be crossed by an access road (whether temporary or permanent).
The effect of a development on a right of way is a material planning consideration.
Planning permission does not grant the right to close, alter or build over a right of way in any way, even temporarily, this includes, for example, a change in the surface, width or location.
It is a criminal offence to obstruct a right of way unless the necessary legal order has been made, confirmed and brought into effect. Unauthorised obstructions may result in an injunction being served to stop development and/or criminal proceedings being brought against the offender. The court could impose a fine and rule that the obstruction be removed or a building demolished.
Express permission from Devon County Council is required for any change to the surface of a right of way. If a change to, or a closure of, a right of way is needed to enable development to be carried out, then there are two types of legal order which apply:
1. Temporary Traffic Regulation Order (processed by Devon County Council)
This temporarily prohibits or restricts public access for a maximum period of 6 months, unless the Secretary of State approves an extension. At the end of the Order, the path must be re-opened for public use on its legal line, free of obstructions.
An application form for a temporary closure can be found at Divert or temporarily close a right of way.
2. Diversion or stopping up order under the Town and Country Planning Act 1990 (processed by the relevant local planning authority)
This enables a right of way to be diverted or stopped up permanently if the local planning authority is satisfied that an order is necessary to enable development to take place, for which planning permission has been granted or applied for.
An order under this Act may provide for a creation of an alternative highway in replacement for the right of way that is to be either stopped up or diverted. In addition, an existing highway may be improved for public use in lieu of the path affected by the application. Orders may also provide for temporary diversion or stopping up for mineral extraction if the path is to be re-instated on its original line on completion.
The local planning authority will usually be the relevant district council or national park authority therefore applicants should contact the relevant planning department for advice on the application process.
Certain developments such as minerals or waste management matters, or the County Council’s own developments are dealt with by the County Council. Please contact the Public Rights of Way team for further information.
Proposals for rights of way affected by development should comply with:
- policies (PL1A/2 to PL3B) set out in Devon County Council’s Rights of Way Improvement Plan (ROWIP)
- Defra Circular 1/09: Public Rights of Way
- The National Planning Policy Framework and Planning Practice Guidance
Also see Devon County Council’s guidance for developers and planners: On-shore Wind Turbines and Solar Arrays and the Impact on Public Rights of Way.
If your development is likely to affect a right of way, it is strongly recommended that you contact the local planning authority or our Rights of Way team at an early stage.