Public Rights of Way Report - Chiltern Evergreen3

2 LEGAL TESTS IN RESPECT OF EXTINGUISHMENT ANDDIVERSION OF RAIL CROSSINGSINTRODUCTION2.1 In order to construct the Scheme a number of rail crossings will need to beextinguished and public rights of way diverted. Powers to extinguish the railcrossings and divert the public rights of way will be taken through theTransport and Works Act Order. The tests set out in S119A of the HighwaysAct 1980 and Circular 1/09 are relevant in order to assess the impacts of thecrossing closures and public rights of way diversions.THE LEGISLATIVE FRAMEWORK AND LEGAL TESTSHighways Act, 19802.2 Section 119A of the Highways Act 1980 (inserted by the Transport and WorksAct 1992) gives the Secretary of State the power to extinguish a public right ofway over a crossing and over so much of the path, of which the crossing formspart, as appears requisite, and the power to create a new path required foreffecting a diversion. An Order can be made if it is ‘expedient to do so havingregard to all the circumstances’. Subsection 119A(4) (a and b) of the HighwaysAct 1980 sets out criteria which need to be met, namely:• “whether it is reasonably practicable to make the crossing safe for use by thepublic, and• what arrangements have been made for ensuring that, if the order is confirmed,any appropriate barriers and signs are erected and maintained.”Circular 1/09 Rights of Way [Version 2, October 2009]2.3 The Circular consolidates and amplifies advice and guidance on modifyingthe rights of way network in respect of new provisions in the Transport andWorks Act 1992. The Circular sets out Defra’s policy on public rights of wayand its view of the law. Whilst it does not take the place of legislation it seeksto give it an overview of it within a policy context.2.4 The Circular states that while other criteria are not specified in Section 119A ofthe Highways Act 1980, in addition to meeting the ‘safety case’, the new pathsneed to be:• “reasonably convenient to the public”; and• “authorities should have regard to the effect that the proposal will have on landserved by the existing path or way and on the land over which the new path orway is to be created”.ENVIRONMENTAL RESOURCES MANAGEMENT3CHILTERN RAILWAYS