Highway diversion, creation and stopping up orders - Guidance Notes January 2020 - Sections 247 and 257 of the Town & Country Planning Act 1990
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Highway diversion, creation
and stopping up orders
Sections 247 and 257 of the Town & Country Planning Act 1990
Guidance Notes
January 2020Contact John Richardson Inclusive Growth Directorate Birmingham City Council 1 Lancaster Circus P.O. Box 28 Birmingham B1 1TU Click: E:mail: john.richardson@birmingham.gov.uk Web: www.gov.uk/government/publications/stopping-up-and-diversion-of-highways Call: Telephone: (0121) 303 7954 Visit: Office: 1 Lancaster Circus Birmingham B4 7DJ Post: P.O. Box 28 Birmingham B1 1TU highway diversion, creation and stopping up orders - contact details
Contents
1. Purpose 1
2. Legislation 2
3. Procedure - Section 247 Orders 3
4. Procedure - Section 257 Orders 5
5. Contacts and further advice 6
6. Consultation 7
7. Revisions 9
highway diversion, creation and stopping up orders - contents1 1. Purpose
These guidance notes provide advice on the procedures for the stopping- A developer is advised to notify
up and diversion of highways pursuant to section 247 and 257 of the the Local Planning Authority of any
Town and Country Planning Act 1990. This is of relevance to developers, paths not shown on the Highway
their agents, transport and town planning consultants, legal advisors, Register and whether he considers
government departments and local authorities. These notes incorporate there may be highways under
the procedural changes brought about by the Growth and Infrastrucure Section 31, Highways Act 1980.
Act, 2013 1 that enable applications for stopping up Orders to be
submitted in advance of planning permission being granted. An important It is a developer’s responsibility
point to remember; it is a criminal offence to obstruct or otherwise to consider fully whether there is
interfere with the highway or any public rights of way (PROW) without the a need to pursue a stopping-up
authority to do so. Orders cannot be made reptrospectively. application for highways/footpaths
affected by development. Failure
to address this issue at the time
1.1 Identification of Highways Where routes are identified as of the submission of a planning
A developer should physically highway, whether publicly or application may cause considerable
inspect the site at an early stage, privately maintainable, and they delays at a later date.
preferably prior to submission of a are affected by development, then
planning application, and identify a statutory order, usually under the Where the developer has indicated
all possible highway routes crossing terms of the Town and Country the presence of possible highways,
the site on a plan. This exercise Planning Act 1990, will be required where Section 31of the Highways
should cover both vehicular and to stop up or divert the highways. Act 1980, might apply, the Local
pedestrian routes, whether formal Other routes, although not shown Planning Authority may include a
or informal (desire lines, etc) and on the Highway Register, may resolution to authorise the stopping
complete relevant section of the have become highway through up/diversion of highway under
planning application form. long usage under the provisions Section 247 or 257 of the Town and
contained in Section 31, Highways Country Planning Act 1990.
A developer should then forward a Act 1980.
copy of that plan to: The inclusion of this resolution is
A developer must weigh up and to prevent a further loss of time at
Transportation and Connectivity consider whether a deemed a later stage should the developer
Highways Information dedication is likely to have decide he needs to proceed with
Inclusive Growth Directorate occurred. Legal advice from his the stopping-up/diversion of the
Birmingham City Council solicitor may be required on this affected highway.
1 Lancaster Circus point.
Lancaster Circus Queensway Local Planning Authorities must
Birmingham 1.2 Planning Process publicise any planning application
B2 2JE In preparing a planning application which affects highway, right of way
Telephone: 0121 464 6846 for submission, a developer should to which Part iii of the Wildlife and
This requirement is to obtain a view assess the impact of his proposed Countryside Act 1981 applies (i.e a
on which of the routes are shown development on all the highways/ way which is, or ought to be, shown
on the Highway Register are/or routes across the site as discussed on a definitive map).2
maintained by the Council. in 1.1. The planning application
should preferably contain a
Note: statement of the impact on
The Highway Register will only highways, and where, for example,
identify routes already known to a diversion is appropriate it should
be highway. be included within the design of
the development.
1
Growth and Infrastructure Act 2013, Chapter 27, Part 11, amending Section 253 of the Town
and Country Planning Act: ‘Procedure in anticipation of planning permission”.
2
Article 8 of the Town and Country planning (general development procedure) Order 1995.
highway diversion, creation and stopping up orders - purpose2. Legislation 2
2.1 Definitions 2.2 Section 247 Town and 2.3 Section 257 Town and
Highway: Country Planning Act 1990 Country Planning Act 1990
Highway is defined in common law This section states that the In the case of footpaths and
as a way over which all members Secretary of State may, by order, bridleways this section empowers
of the public have the right to pass authorise the stopping-up or a Local Planning Authority to make
and repass. Their use of the way diversion of any highway if he is a stopping-up or diversion order
must be as of right and not on satisfied that it is necessary to (at a cost to the developer) if it is
sufference or by licence. Highways do so to enable development 3 satisfied that it is necessary to do
may be classified as follows: to be carried out in accordance so for the purpose described in
• “all -purpose highway” means with planning permission granted Section 247.
one which may be used by all under Part III of the above Act, or
classes of traffic, including all to be carried out by a government When a planning application
motor vehicles, vehicles drawn department. involving a footpath closure/
by animals, pedal cycles and diversion is recommended for
animals being ridden, led or This section is used for the approval it will incorporate the
driven; stopping-up of all purpose following:-
highways, ie those used by vehicles.
• “carriageway” means a way However footpaths can also be “That the Director of Legal
forming all, or part of, a stopped up and diverted pursuant Services be authorised to make
highway (other than a cycle to the above Act. an Order in accordance with the
track) over which the public provisions of Section 257 of the
have a right of way for the When a planning application Town and Country Planning Act
passage of vehicles; involving a stopping up order is 1990”.
• “footpath” means a highway recommended for approval it will
over which the public have a incorporate the following:- The officers report should also
right of way on foot only, not address briefly the effect of the
being a footway; “That no objection be raised footpath closure/diversion and
to the stopping-up of (name give details of any objections to
• “footway”means a way over of highway, if any) and that the the closure/diversion raised during
which the public have a right Department for Transport (DFT) consultations.
of way on foot only (commonly be requested to make an Order
called the pavement). in accordance with the provisions The planning application should
• “bridleway” means a highway of Section 247 of the Town and also contain a plan identifying the
over which the public have Country Planning Act 1990”. footpath(s) to be stopped up or
rights of way on foot, bicycle diverted. In the case of a diversion
and on horseback, or when The planning application should the diverted route should also be
leading horses, with or without also contain a plan identifying the shown.
a right to drive any sort of area(s) of highway to be stopped
animal along the highway. up, diverted, provided or improved Note:
There is no other right of way and anotated in accordance with The views of the Highway Authority
on a bridleway. Form TCPA 247. must be sought, at an early stage
and before an application is made.
• “Cycletrack” means a way The officers report should also
constituting or comprised in a address briefly the effect of the
highway, over which the public road closure/diversion and give
have a right of way on pedal details of any objections to the
cycles, with or without a right of closure/diversion raised during
way on foot. There is no other consultations.
right of way on a cycle track.
3
“subject to the following provisions of this section, in this Act, except where the context
otherwise requires, “development”, means the carrying out of building, engineering, mining
or other operations in, on, over or under land, or making of any material change in use of any
buildings or other land”.
highway diversion, creation and stopping up orders - legislation3 3. Procedure - Section 247 Orders
Form TCPA 247 (stopping-up and diversion of highways) will normally interested parties can lodge
be completed and forwarded to the Department for Transport (DFT) objections regarding the loss of the
by the Planning Department for City Council applications. In the case highway/public right of way.
of private development the developers would usually be expected to
make the application. Where a highway is to be stopped up/diverted, Copies of the Order must also be
the application should specify the alternative routes available or to be made available at a local public
provided. office for inspection and can also
be obtained from the National
Transport Casework Team.
When considering the application The following items should be
the Secretary of State must be able submitted with the application:- Both the draft Order and notice
to understand the effect of the • Copy of planning permission will be sent to those who may
development on the highway. The decision notice. be affected or have an interest
Secretary of State can also include or in the proposed “stopping-up”.
within an Order directions for the These include utility companies
• Copy of the planning and your local authority (statutory
provision or improvement of any
application and any highway consultees).
other highway. The developer will
authority correspondence.
normally be required to pay the
It is the responsibility of the
cost of such work. He must also • One set of the site layout applicant/developer or developing
know that the Highway Authority plan(s) as approved by the department to ensure that the
have been fully consulted on the above planning permission. notices are posted/maintained
proposed stopping-up or diversion. or during both objection periods.
When applying in advance of • ONE set of the site layout The notices should be displayed/
planning permission, it will be plan(s) proposal as submitted maintained in a prominent position
necessary to enclose a copy of the with the planning application. at each end of the area of highway/
planning application along with any footpath to be “stopped-up”.
associated highway and site layout • One plan indicating the site
boundary edged red and the NB. Failure to comply with these
plans (it is not necessary to provide
existing highway boundary requirements will result in a delay
elevation plans).
within the approved site edged to the Order being made.
To ensure that applications are blue.
dealt with expeditiously, it is in 3.2 Objections
the applicant’s interest to have • Two copies of an existing Objections to the proposed
had discussions with the planning highway layout plan showing Order will be copied to the
authority and the highway authority the highway to be stopped up applicant/developer or developing
prior to submitting a stopping up or diverted, including any new department. It is their responsibility
application. As once a draft Order highways to be maintained to negotiate with the objector(s)
has been published, any changes at the public expense or any with a view to resolving the issues
to the area(s) to be stopped up may improvements. raised. If objections cannot be
require restarting the process, thus • One unmarked copy of the resolved then under section
diminishing the benefit of making stopping up plan. 252(4) of the Town and Country
an early application. Planning Act 1990, the Secretary
• One copy of any Compulsory of State has the authority to
Additionally, any post planning Purchase Order (if applicable). cause a local inquiry. However,
permission amendments to under section 252(5) of the
development schemes that 1990 Act, if he is satisfied that
3.1 Consultation - Process
increase/alter the area(s) of highway there are special circumstances
Once the details of an application
land to be stopped up may require which make the holding of an
have been agreed with this office,
a new Stopping Up Order inquiry uneccessary (and that the
the draft Order and public notice
will be produced containing details outstanding objections are not
Applications without planning
of the proposal (see diagram Utility Companies), then he has the
permission will be processed up to
page 4). The publication of the discretion to dispense with that
the making of the Order. Applicants
draft Order notice in at least inquiry and can issue a decision
will need to provide this office with
one local newspaper and in the based on the information that he
a copy of the planning decision
London Gazette triggers the 28 has on file.
notice before the Order can be
made. day consultation period in which
highway diversion, creation and stopping up orders - procedure s2474
3.3 Making an Order • Whether a written 3.5 Costs
The Stopping Up Order will only be representations period or a There are currently no fees involved
made when the following criteria public inquiry is required to in this process for highways outside
have been met: consider any objections – this of London borough Authorities.
• The planning permission will considerably extend the
decision notice has been time before a decision can be
received and made.
• All objections have been
withdrawn formally, or Stopping Up of Highway - Stage 1
• If written representations have Application received by the Department for Transport
Application registered by the Casework Team and
initial check carried out to ensure all documentation is
been considered, or Casework Team via email or post attached
• An inquiry has been held, and
the inspector’s report and Once the draft Order, notice and plan are approved,
Application assisgned and assessed by casework officer
recommendations have been publication of the notice is arranged.
Draft documents sent to applicant, consultees and who prepares draft Order, notice and plan
considered. placed on deposit
Once the above criteria have
been met a decision will be made Applicant arranges for the draft notice to be displayed
on site at either ends of the highway to be stopped up Date of publication - start of 28 day consultation period
on whether the Order should on or before the date of publication
be finalised. The decision will
be notified to the applicant and
interested parties. Additionally Objections received are sent to applicant to resolve
No objections received - the order can be made following
the expiry date of the consultation period
a notice regarding the decision
will be published in the same
manner as the draft Order. Objections unresolved Objections cleared
Once the Order is published, it
is subject to a six week period
Inquiry
within which challenges to the
validity of that Order can be made
Full Public Inquiry Written Representation
in the High Court.The Order
would cease to have effect if the
planning permission expires or Decision letter issued
the development could not be
implemented.
Stopping Up of Highway - Stage 2
3.4 Timescales Not made order process Made Order process
The Department aims to process
Orders where there are no
Not made notice created by casework officer Made Order, notice and plan created by casework officer
objections within 13 weeks from
receipt of all necessary information.
However it should be noted that Once the not made notice is approved the publication Once the made Order notice and plan are approved, the
of the notice is arranged. Notice also sent to the publication of the notice is arranged. Made documents
certain factors will impact on this applicant and consultees sent to the applicant and consultees
timescale:
• Whether planning permission
Date of publication
has been granted at the time
the stopping up application is
submitted; Date of publication - start of 6 week High Court Applicant displays made notices at either ends of the
Challenge period highway being stopped up
• Whether objections are made
to the draft Order; End of High Court Challenge period - Highway can be stopped up to enable development to take place
• Whether changes are made
to the area(s) to be stopped
up following the draft Order
publication; Diagram: Section 247 procedure
highway diversion, creation and stopping up orders - procedure s2475 4. Procedure - Section 257 Orders
The procedure is the same as a Section 247 order (as described in steps • Whether planning permission
3.1 to 3.3, however, the Local Authority will carry out the process (costs of has been granted at the time
which will be charged to the applicant/developer) including consultation the stopping up application is
with the utility companies. submitted;
In the case of Diversion Orders, Birmingham City Council • Whether objections are made
the Order will not come into effect will normally expect you (the to the draft Order;
(ie the existing path may not be developer) to pay for the full cost
removed or obstructed) until:- of an Order, which on average • Whether changes are made
amounts to approximately £10,000. to the area(s) to be stopped
1. The design/specification of However if you are applying for
the proposed path has been up following the draft Order
more than one path the costs will publication;
checked and approved by be greater.
BCC Transportation Private
Developments Team. • Whether a written
The costs are split into two
representations period or a
payments, the first payment is
2. The diverted route is in public inquiry is required to
payable once the order is Made
place and notification has consider any objections - this
and advertised, the second is
been received by the Legal will considerably extend the
payable upon Confirmation of the
Services Department that the time before a decision can be
Order. Developers will be invoiced
route has been inspected made.
direct by Birmingham City Council’s
and meets the requirements Finance & Legal Department.
of the Transportation Private 4.3 Scope
Developments Team. These costs include the Orders pursuant to Section 257
administration of the order as well can only be made in advance of
Once the above have been as two newspaper adverts which development being carried out.
complied with, the Local Authority are required by the legislation. These Orders cannot be sought
will take steps to bring the retrospectively.
Diversion Order into effect. In the case of diversion orders
there will be additional costs as
4.1 Costs discussed in points 1 and 2. These
The Local Planning Authority may are currently set by Birmingham
recover costs from a developer City Council’s Transportation and
requesting the Authority to make Connectivity Private Developments
an Order, as outlined in “The Local Team. Developers will be invoiced
Authorities (Charges for Overseas direct by Transportation and
Assistance and Public Path Orders) Connectivity.
Regulations 1996”. Written confirmation from the
developer (including Council
These Regulations state that: Departments) that such costs will
be met, is required prior to an
“Authorities may charge for the Order being made.
administrative costs incurred
in the making of an Order. The
4.2 Timescales
amount which may be charged
The Department aims to process
must not exceed the costs actually
Orders where there are no
incurred and, in the case of
objections within 13 weeks from
opposed Orders, a charge may be
receipt of all necessary information.
made only for the administrative
costs incurred up to the point However it should be noted that
where the Order is submitted certain factors will impact on this
to the Secretary of State for timescale:
determination and, where
such Orders are subsequently
confirmed, in advertising that
confirmation.”
highway diversion, creation and stopping up orders - procedure s2575. Contacts and further advice 6
Birmingham City Council Tarndip Singh Sidhu
Mahroof Malik Senior Solicitor
Lead Rights of Way Officer Legal and Finance Department
Transportation and Connectivity Finance and Governance
Highways Information Birmingham City Council
Inclusive Growth Directorate 10 Woodcock Street
Birmingham City Council Birmingham
1 Lancaster Circus B7 4BL
Lancaster Circus Queensway Telephone:
Birmingham 0121 303 3188
B2 2JE Email:
Telephone: tarndip.sidhu@birmingham.gov.uk
0121 464 6846
Email:
mahroof.malik@birmingham.gov.uk Department for Transport
Neil Crass
National Transport Casework Team
Sharon Nembhard Department for Transport
Private Developments Officer Tyneside House,
Infrastructure Delivery, Skinnerburn Road,
Transportation and Connectivity Newcastle Business Park,
Inclusive Growth Directorate Newcastle upon Tyne,
Birmingham City Council NE4 7AR
1 Lancaster Circus Telephone:
Lancaster Circus Queensway 020 7944 4162
Birmingham 020 7944 4115 (general number)
B4 7DQ Email:
Telephone: nationalcasework@dft.gsi.gov.uk
0121 675 8734
Email:
sharon.nembhard@birmingham.gov.uk
John Richardson
Senior Planning Officer
Inclusive Growth Directorate
Birmingham City Council
1 Lancaster Circus
Lancaster Circus Queensway
Birmingham
B1 1TU
Telephone:
0121 303 7954
Email:
john.richardson@birmingham.gov.uk
highway diversion, creation and stopping up orders - contacts and further advice7 6. Consultation
The following statutory undertakers Communications - Virgin Media Birmingham City Council
(utility companies) and services National Plant Enquiries Roads and Footpaths
are consulted in all cases by either Scimitar park Mahroof Malik
Birmingham City Council or the Courtauld Road Lead Rights of Way Officer
Department for Transport. Basildon Essex Transportation and Connectivity
SS13 1ND Highways Information
Gas - National Grid UK email: Inclusive Growth Directorate
email requests only plant.enquiries.team@virginmedia. Birmingham City Council
plantprotection@uk.ngrid.com co.uk 1 Lancaster Circus
Lancaster Circus Queensway
Electric - National Grid UK Communications - Easynet Birmingham
email requests only Telecom (BSkyB) B2 2JE
plantprotection@uk.ngrid.com NRSWA Department Telephone:
Network Infrastructure & Planning 0121 464 6846
Electric - Western Power BSKYB Telecommunications Email:
Distribution, Wayleaves Services Ltd mahroof.malik@birmingham.gov.uk
Pegasus Business Park, Herald Way, 70 Buckingham Avenue
East Midlands Airport, Slough Street Lights, Highway Drainage
Castle Donnington SL1 4PN and Street Funiture
Tel: 02476 195721 Tel: +44 (0) 207 032 3234/250 Kamyar Tavassoli
email: email: Infrastructure Manager
wpdwayleavesmidlands@ nrswa@bskyb.com Street Services Division
westernpower.co.uk Highways
Communications - Cable & Inclusive growth Directorate
Water - Severn Trent Water Wireless (Vodafone Ltd) Birmingham City Council
(Sewerage) Asset Protection email requests only 1 Lancaster Circus
Regis Road osm.enquiries@atkinsglobal.com Lancaster Circus Queensway
Tettanhall B4 7DQ
Wolverhampton WV6 8RU Police - West Midlands Police Tel: 0121 303 7346
Tel: 01902 793871 Lloyd House
email: Colmore Circus Private Developments
new.connections@severntrent.co.uk Queensway Sharon Nembhard
Birmingham Private Developments Officer
Water - Severn Trent Water B4 6NQ Infrastructure Delivery,
(Clear Water) Asset Protection Transportation and Connectivity
Miscellaneous Income, Fire - West Midlands Fire Service Inclusive Growth Directorate
PO Box 5311, Chief Fire Officer Birmingham City Council
Coventry, Fire Service HQ 1 Lancaster Circus
CV3 9FL 99 Vauxhall Road Lancaster Circus Queensway
email: Birmingham Birmingham
new.connections@severntrent.co.uk B7 4HW B4 7DQ
Telephone:
Communications - British Ambulance - West Midlands 0121 675 8734
Telecommunications Plc Ambulance Service Email:
Openreach Regional Ambulance Headquarters sharon.nembhard@birmingham.gov.uk
Repayments Alterations Millennium Point
PP2.35E Midland ATE Waterfront Business Park,
60 Station Street Waterfront Way
Birmingham Brieley Hill
B5 4AL West Midlands
Tel: 0121 230 4243 DY5 1LX
email:
networkalts.birmingham@
openreach.co.uk
highway diversion, creation and stopping up orders - consultation8
The Ramblers
Mr M Bird
Footpaths Secretary
Warwickshire Area
Ramblers’ Association
16 Melford Hall Road
Solihull
West Midlands
B91 2ES
email:
michael.b43@o2.co.uk
Depending upon the location of
the development, the following
may not always be consulted:
Water Supplies (Sutton
Coldfield Area)
South Staffordshire Water Works
Company
Green Lane
Walsall
West Midlands
WS2 7PD
River and Water Courses
Environment Agency
550 Streetsbrook Road
Birmingham
B91 1QT
highway diversion, creation and stopping up orders - consultation9 7. Revisions
August 1995 March 2011
(4) Procedure. Wording of Department for Transport revised
recommendations as advised by contact and address.
BCC Legal Services. November 2011
Revised wording of notes.
July 1996 Updated contact/utilities/services
(8) Contacts and Consultation List. names and addresses.
November 1996: Revised
Regulations for recovery of costs. January 2012
Revised wording in accordance
May 1998 with BCC Street Services Division
(4) Procedure - Section 257. comments.
November 1998 March 2013
Contacts and Consultation List. DFT change of address and
statutory undertakers address
November 2000 changes.
Costs and general revisions (4).
June 2013
June 2003 Procedural changes brought about
Revised contacts. by the Growth and Infrastructure
Act 2013.
October 2004
Consultaion List. February 2017
Revised contacts and URLs.
January 2005 Costs in relation to S257 Orders.
GOWM change of address &
contact numbers. May 2017
Revised contacts and wording in
July 2006 accordance with Infrastructure
GOWM changed name to Delivery, Transportation and
Department for Communities and Connectivity comments.
Local Government (DCLG).
August 2019
April 2008 Costs updated.
Department for Communities
and Local Government (DCLG) January 2020
- reviewed casework, three new Contacts/addresses updated
centralised Teams - Revised
contacts.
Dec 2008
Statutory Undertakers List.
June 2009
Statutory Undertakers List.
September 2009
Statutory Undertakers List.
May 2010
Contacts.
highway diversion, creation and stopping up orders - revisions10 highway diversion, creation and stopping up orders - revisions
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