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Advice to Brian Sumpton

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Enquiry

From
Brian Sumpton
Date advice given
6 June 2017
Enquiry type
Email

Could you please help clarify the legal position regarding proposed diversions to public rights of way.

The Highways Act 1980 section 119 suggests that the SoS can not confirm a diversion order if the proposed diversion is substantially less convenient to the public.

The PINS Advice note no.9 confirms the above and gives some definition of the word 'convenient'. eg the length of the diversion, accessibility and scenic value.

However when looking at the Planning Act 2008 section 136 says the decision maker may grant a development consent order if he is satisfied that an alternative right of way has been or will be provided. In this case no conditions regarding 'convenience' are attached.

My question is in the case of a DCO application under the NSIP process do the requirements of the Highways Act still apply?

Advice given

The Planning Act 2008 (PA2008) establishes a distinct regime for decision-making in respect of Nationally Significant Infrastructure Projects (NSIPs). Provisions of the Highways Act 1980 do not generally apply to an NSIP development unless expressly caused to do so in the relevant Development Consent Order.

The suite of National Policy Statements have primacy in the decision-making process under the PA2008 and these establish the Secretary of State’s considerations in respect of mitigation where public rights of way would be affected by a proposed development (see for example para 5.184 and 5.185 of the National Policy Statement for National Networks, available here: https://www.gov.uk/government/publications/national-policy-statement-for-national-networks).