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In addition, once the application is underway, there are various stages and time-sensitive milestones involved, which must be strictly adhered to in order to ensure the legislation is followed correctly and to safeguard against any possible challenge later down the line that could delay or disrupt your plans.
The term ‘to stop-up’ refers to the formal process carried out when applying for closure of a public highway, and once a stopping-up order is made, the land will permanently cease to be a public highway.
The term 'public highway' can include roads, streets and footpaths, however, not all roads, streets or footpaths are public highways; many are privately owned or maintained and the law relating to such highways is different.
A highway can be permanently closed by a stopping-up order, usually for one of the following two reasons: 1) to allow development to take place, or 2) where the highway is no longer required for public use.
These requests are typically dealt with through the planning process and should be highlighted at the time of your planning application, and referenced within it. The relevant legislation is as follows:
a) A stopping-up order under section 247 of the Town and Country Planning Act 1990, which is made by the Secretary of State, if he/she is satisfied that it is necessary to enable a development to be carried out in accordance with a planning permission. The Council, being the Highway Authority, and various statutory undertakers, are consulted before a decision is made.
b) A stopping-up order under section 257 of the Town and Country Planning Act 1990 may be made by the Council as the Local Planning Authority only when it involves a footpath, bridleway or restricted byway.
A footpath is a highway over which the public have a right of way on foot only (not being a pavement).
Bridleway is a highway over which the public have a right of way on foot or on horseback.
Restricted byway is a carriageway over which the public right of way is for all types of traffic except for mechanically propelled vehicles
Whilst it is advisable to raise any potential stopping-up issues in the planning process, it should be noted that authority to stop-up or divert a highway is not conferred through the approval of a planning application. Approval to stop-up or divert a highway is only given once the stopping-up or diversion order has been confirmed and notice of its confirmation has been published.
If your proposed development will require a footpath, bridleway or restricted byway to be stopped-up or diverted to allow the development to take place, you should apply to the relevant Local Authority asking it to use its powers under section 257 of the Town and Country Planning Act 1990 to do so.
Before making any order under this section the Local Authority will commence the statutory public consultation, by publishing the relevant notices in local newspapers and on the highway(s) to be stopped-up. They will also serve the same notices on every owner, tenant or occupier of land which will be affected by the proposed order, on every Local Authority or parish council whose area includes any part of the affected land, all statutory undertakers, and every other persons specified by the law.
There is a minimum period of 28 days for submission of any objections to the proposed order. At the expiry of the objection period, if the proposals are unopposed, the Local Authority will proceed with the making of the order without modifications.
It is worth noting that each Local Authority will operate slightly differently, albeit the process remains stringently rooted in statute. The Local Authority will also likely require an up-front deposit to commence proceedings and further costs may be payable in due course. Notwithstanding this, the Local Authority will not seek to make a profit from such applications, as this should be a cost neutral exercise and therefore, the Local Authority will simply look to recharge its costs for processing, making and advertising such orders.
You should submit your application to the Department for Transport, where it will be dealt with by a dedicated Casework Team.
Once a draft order, notice and plan have been created, the Department for Transport Casework Team arranges for the publication of the draft notice in a local newspaper and the London Gazette. You will need to arrange for the draft notice to be displayed on site at both ends of the highway to be stopped-up on or before the date of publication.
The process of making an order takes about 13 weeks after receipt of all relevant documentation. However, it can take longer if your planning application has not been approved at the time of the order application. There are currently no fees involved in this process for highways outside of London Borough Authorities.
Applications can be made in advance of the grant of planning permission, however, they have no effect and cannot be confirmed until permission is granted.
What if there are objections?
If objections are received, then the process may take longer as an order cannot be made where there are outstanding objections. If you receive any objections, you will have to be resolve them, ideally as quickly as you can!
Should there be a ‘stalemate’ and it’s your view that following discussions with the objector that the issue(s) could not be ironed out, then authority would fall to the Secretary of State to issue a decision, and this would be following either a full public inquiry or via written representation, depending on the nature of the objection.
Underwriters are not always forthcoming to offer cover for risks associated with stopping-up highways. Many will have an array of requirements, such as the land being fenced-off, exact details of the land to be stopped-up and information around where planning is up to, not to mention charging a hefty premium.
Once the made notice is published, you have the authority to stop-up the highway to enable development to take place. However, this is at your own risk as it is also the start of a six-week High Court Challenge period.
A common query we receive is whether insurance may be obtained to cover against the risk of a High Court Challenge. It should be noted that this six week period is not an extension of the 28 days available for objections, but is instead a period in which any person desiring to question the validity of, or any provision within the order, on the grounds that it is not within the powers of the legislation, or that any requirement or regulation made has not been complied with.
Given the likelihood that you have followed the process flawlessly, the risk to you during this period is very low and so continuing with your development and not obtaining insurance during this period may be a more pragmatic approach.
There is no one-size fits all approach for stopping-up highways, and although the process remains standard, specific details will inevitably differ. Whether the land is indeed public highway is a surprisingly recurrent issue, and whether, for examlpe, it be how to deal with land that has acquired ‘highway rights’, or land that is clearly marked as a footpath on a Land Registry title plan, that appears non-existent in person, the journey for stopping-up highways is not without twists and turns.
If you have any further queries about stopping-up orders, or need advice on any aspect of your development programme, please get in touch with Joshua.
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