APPENDIX 3
Provisions of the Highways Act section 119
Under
section 119 of the Highways Act 1980 the Council has the power to make a
diversion order diverting the line of an existing footpath or bridleway by
extinguishing the existing line and creating a new one as required to effect
the diversion.
The
Council must have due regard for the needs of agriculture and forestry when
exercising their functions relating to the making of Public Path Orders and
will need to have the consent of any Statutory Undertakers whose apparatus may
be affected.
The
Council, through this Panel, is required to consider all the relevant
information in the light of the tests laid down by section 119 described below.
The
Council may make a diversion order if it appears to them to be expedient in the
interests of either (a) the owner, occupier or lessee or (b) the public.
The
ends of the path may not be altered unless they are on a highway, and then only
to another point on the same highway, or a connecting highway, which is
substantially as convenient to the public.
The
new route created by the order may be unconditional or subject to such
limitations or conditions as are specified in the order, regardless of whether
the original route was subject to any limitation or condition.
Any
path created as a result of a diversion order becomes a path maintainable at
the public expense.
The
Council may make a diversion order in response to the representations of a
landowner, but does not have a duty to do so.
Where
a diversion order has been requested by an owner, occupier or lessee, the
Council may require him to agree to pay the whole or part of the cost of site
works and of any compensation payable under section 28.
If
the Council resolves to make a diversion order, the order must be advertised
and a period of at least 28 days allowed for representations and objections to
be made. If none are made, or any which are made are withdrawn, the Council may
itself confirm the order, but without any modification.
If
there are withdrawn objections or representations not withdrawn, or if any
modification is required, the order must be referred to the Secretary of State
for determination. The Secretary of State is obliged to hold either a public
inquiry or afford an objector an opportunity to be heard before deciding
whether to confirm the order.
To
confirm the order the Council (or the Secretary of State) must be satisfied
that:
1. The diversion is expedient in the interests of the owner, occupier or lessee or of the public as the case may be.
2. The path is not substantially less convenient to the public as a result of the diversion.
3. It is expedient to confirm the order having regard to:
a) the effect of the diversion on public enjoyment of the path as a whole,
b) the effect of the diversion on other land served by the existing public right of way,
c) the effect of the new way on the land over which it is created and any land held with that land,
taking into account with regard to b) and c)
provisions as to compensation.
The
Director of Environment Services has delegated powers to confirm Public Path
Orders made under the Highways Act where those orders have been advertised and
no representations or objections have been received. Where objections are
received, the Director will normally refer the order to the Secretary of State.
It is therefore appropriate for the Committee to be satisfied on the tests for
making and confirming the order when considering making the order.