Herefordshire Council made a diversion order for Lyonshall footpath LZ3 (part) which was contested and went to the Planning Inspectorate (PINS). After written representations the order was confirmed.
The Open Spaces Society subsequently wrote to PINS to point out that the inspector had confirmed a defective order. We considered the order to be defective in that article 1 stopped up the existing right of way in accordance with article 3, article 2 required that the new right of way be created to the satisfaction of the council in accordance with article 3, and article 3 stated that the diversion is to ‘have effect’ when the requirements of article 2 had been complied with. We said that section 119 of the Highways Act 1980 requires that an order must create the new path ‘as from such date as may be specified in the order’. No such date was given.
PINS said it could do nothing about this, so we wrote to the Secretary of State for Environment, Food and Rural Affairs.
Defra replied that it has provided new guidance to inspectors. This states that it has reviewed the advice given to PINS in 2003, which formed the basis of RoW note 15/2003, and decided that it incorrectly implied that the date of the new path being created can be tied to the certification of works required. Defra has now confirmed that, irrespective of works to be carried out, orders should specify an actual date when the new route will come into effect. The certification of works relates only to the date on which the old route would be extinguished. If certification is never given, the old route will continue to exist, alongside the new route. In short, the purpose of certification is to enable the old route to be stopped up, not to enable the new route to ‘go live’. Where the new route has not been put into usable condition by the date on which it is created, then users will continue to be able to use the old route (and will only cease to be able to use the old route when the new route is certified and the old route is stopped up).
Defra has further confirmed that it is within the inspectors’ power of modification to insert a date for the coming into effect of a new route and that such a modification would not need to be advertised.
Members may like to bear this in mind when checking diversion orders made under section 119, to ensure that a date is given when the creation of the new route will come into effect, notwithstanding any provision for certification of works.
Defra has so far failed to tell order-making authorities of this change, so they have not changed their ways and are likely to continue making this error. Members are advised to object to such orders, regardless of whether they are also objecting on merits. We have written to Defra to ask that it informs the order-making authorities of the new guidance.
We do not agree with Defra’s advice that the order must ‘specify an actual date when the new route will come into effect’. We are satisfied that the order may specify a ‘relative date’ in relation to confirmation of the order (e.g. 180 days after the date of confirmation of the order). But we agree with Defra that the order may not specify, for this purpose, the date on which the new route is certified as fit, or a date relative to that date.
In our view, order-making authorities do not have a discretion whether to employ the certification process—they must do so ‘where it appears … that work requires to be done to bring the new site of the [path] into a fit condition for use by the public’ (s119(3)). If the new path is not physically in existence at the date on which the order is made, and work still requires to be done to make it fit for use, the authority must, in the order, provide for certification of the new path.