Landowners can dedicate new public rights of way across their land by entering into a creation agreement with their Council. This is a fairly simple process, and once a route has been added to the definitive map, the responsibility for the upkeep of its surface is usually taken over by the Council. Additionally, the Council's have a discretionary power to compulsorily create new publi rights of way where it can be demonstrated that there is a public need.
The Highways Act 1980 allows the Council’s to make legal orders to divert public footpaths, bridleways or restricted byways. The diversion must meet the legal tests set out in the legislation, namely that:
- The diversion can be shown to be expedient in the interests of the landowner, lessee, occupier and/or the public
- The diversion will not alter a point of termination of the path other than to another point which is on the same or a connecting highway and which is substantially as convenient to the public
- The path as a whole will not be substantially less convenient to the public as a consequence of the diversion
- Due regard must be given to the effect the diversion will have on public enjoyment of the path as a whole
- Due regard must be given to the effect of the diversion will have on other land served by the existing path and on land affected by any proposed new path, taking into account the provision for compensation
- Due regard must be given to the effect the diversion will have on farming and forestry, biodiversity and members of the public with disabilities
Additionally, the Council’s have a power under the Town and Country Planning Act 1990 to divert a public right of way when it is necessary to allow development to take place.
It should be noted that the power to make diversion orders are purely discretionary and the Councils are not under obligation to do so. Consequently, in addition to the legislative tests, all applications will also be assessed against the Councils' Public Path Order Policies. There is a fee for processing diversion orders and a public right of way must not be diverted until a legal order has been confirmed and taken effect. Doing so would constitute an unlawful obstruction and will damage the chances of a diversion order being successful.
Public rights of way can be permanently stopped up by extinguishment orders; however, the Councils do not generally support applications for extinguishment orders unless they are part of a wider package with compensating public benefit. The Council will accept stand-alone applications for extinguishments only in exceptional circumstances and the applicant must be able to demonstrate that the path is not needed for public use; it is not sufficient to just show that the path is not well used. It should be noted that a path will not cease to be a public right of way because it has not been used for a certain number of years.
The Natural England booklet, "A Guide to Definitive Maps and Changes to Public Rights of Way" (NE112) gives useful information and may be downloaded from the gov.uk website.