Highways Act 1980 Section 26
Section 26 of the Highways Act 1980 provides for a Council to make an order to create a footpath, bridleway or restricted byway where it considers that there is a need for one. The authority must have regard to the extent to which the right of way would add to the convenience or enjoyment of a substantial section of the public, or to the convenience of residents of the area. Lincolnshire County Council may therefore choose to provide a route by means of a Creation Order if it considers it is needed by local people or the general public for utility or recreational purposes. A Creation Order may also be used to widen an existing footpath, bridleway or restricted byway, or to ‘upgrade’ it to a higher status.
The County Council must consider:
- The effect that a creation would have on the rights of persons interested in the land
- The effect of the creation of the path on the land, the landowner, and any person with a right over the land such as those conferred by licence and agreement, including sporting and mineral rights
- The interests of forestry and agriculture, and the effect, if any, the creation of the path would have on these activities
Section 28 of the Highways Act 1980, as applied by Section 121 (2) of the Act, provides that compensation may be payable in respect of depreciation of the value of an interest in land, or by damage by disturbance in the enjoyment of land as a result of the coming into operation of an order which the Council may decide to make under that Act. In some cases, authorities have been able to agree a compensation sum with the landowner before an order is confirmed however, this is not always possible. If a dispute arises as to the amount of compensation payable, it is determined by the Lands Tribunal after the order has been confirmed.
When making an application, applicants are asked to sign an undertaking that they will agree to defray any compensation which may become payable to a third party in the case of a Public Path Creation Order being confirmed and certified. In addition, the applicant will also be expected to waive rights to claim compensation under the Act for routes created on their own land.
For further information regarding creating a right of way, please contact the Definitive Map Office.