This section explains the responsibilities Farmers, Landowners and Land Managers have for the Public Rights of Way and informal access on their land and provides advice and answers to some commonly asked questions.
It is important that Landowners and the public are aware of where rights of way and permissive paths exist and show a mutual respect when using these paths. It is also important that Landowners and the public are aware of what type of paths and rights exist over landholdings such as footpaths, bridleways, restricted byways, byways or permissive paths.
The Highway Authority or Council has a duty to assert and protect the rights of the public to use and enjoy the Public Rights of Way Network and make sure the requirements of legislation are met by the landowner and the public.
Landowners / Occupiers Responsibilities
o Keep all Rights of Way free from obstruction and encroachment. This includes barbed wire, locked gates and machinery. Temporary electric fencing should not be placed across a path nor close enough at the side of a path so as to be dangerous to people or animals using the path. An electric fence across a path is an obstruction, however in some cases an insulated handle acting as a safe crossing point and adequate warning notices may be acceptable.
o Provide and maintain stiles and gates. In a safe condition and to a standard of repair required to prevent unreasonable interference with the path users.
o Seek authorisation from the Highway Authority to install a gate in a new boundary.
o Seek authorisation from the Highway Authority for a temporary closure if it is necessary for works to be carried out across a public right of way
o Cut back overhanging vegetation, including hedges and branches and fallen trees.
o Comply with the law relating to reinstating paths after ploughing, and not allow any crop (other than grass) to grow on a Right of Way.
o Do not keep any bull in a field crossed by a Right of Way, unless it is less than 10 months old, or is of a recognised beef breed and accompanied by heifers. Link to one of the sites showing piccies of types of Bull? (various web pages)
o Not place misleading signs on or near a Right of Way
o Provide new bridges over new or widened drainage ditches.
o Section 130A-D under the Highways Act 1980 is a mechanism by which the public or user groups can serve notice on the Local Authority to remove an obstruction after appropriate notice. It is then the Local Authorities duty to serve notice on the landowner and enforce the removal of the obstruction.
Cross Compliance came into force on January 1st 2005. If a public path is obstructed, ploughed and not reinstated, or any gate or stile is not maintained, part of the Single Farm Payment may be withheld by DEFRA. This could happen by referral, for example, where the Council has had to serve a notice in order to resolve an issue.
The latest guide for Landowners and cross compliance under GAEC 8 for Public Rights of Way can be found on the Cross Compliance website or on the DEFRA website .
Frequently reported problems
Obstructions and encroachment sections 137, 137ZA and s143 of the Highways Act 1980
o It is an offence to obstruct or encroach upon public rights of way. Examples are farm machinery, fencing, bales, buildings, waste materials and rubbish. Obstructions must be removed by the landowner/occupier.
o Where a long standing obstruction is impractical to remove, the Council may request the landowner to apply for a public path diversion order, for which there is a charge. An alternative must be provided until the legal process is completed. Link to legal Order section?
o Minor obstructions must be removed by the landowner / occupier.
o Where there is a major obstruction that is too costly or impractical to remove, the Council will request the landowner to apply for a public path diversion order. An alternative route must be provided until the legal process is completed.
o The local authorities are responsible for clearing any vegetation naturally growing on the surface if at a path. We have an annual maintenance schedule to clear the routes that are known to be susceptible to undergrowth and also responds to requests for clearance as required.
Temporary Closures section 14 of the Road Traffic Regulation Act 1984
o The Highway Authority has powers to temporarily close public rights of way if is necessary for works to be carried out that make it impossible for the public to use a path.
o A suitable alternative route must be provided for the public to use.
o The applicant for the closure will need to provide details of the works and route affected such as how long the route is likely to be closed and possible alternative routes. They will also be required to reinstate the path to the appropriate standard once the works have been completed.
o There is usually a charge for the processing and advertising of these closures.
Gates and Stiles Section 146 of the Highways Act 1980
o Landowners have a duty to ensure gates and stiles are kept in a good state of repair and easily accessible.
o Before erecting a new gate (unless replacing a former structure) across a Right of Way, consent must be obtained from the Council.
o The Highway Authority or Council may assist with the provision or installation of gates for example; where permission is given to upgrade from a stile to a gate or kissing gate.that are compliant with the British Standard 2706:2006 in line with the Equalities Act 2010, more guidance on this may be found in the Defra Booklet Guidance on Structures Link to Defra website.
o The Highway Authority, Parish Council or other External organisations may assist with the provision or installation of gates on a Promoted Route.
Barbed wire and electric fences sections 137, 137ZA, 149 and 164 of the Highways Act 1980.
o Placing barbed wire or electric fences across or alongside a Right of Way, without a safe means of passing on the line of the path, is an unlawful obstruction.
o Placing barbed wire or an electric fence on or alongside a Right of Way that is a nuisance or a danger is also an offence.
o If an electric fence is necessary for agricultural purposes, it must be made safe by, for example, covering with a plastic pipe or using an insulated handle and hook. Adequate warning signs must also be clearly displayed.
o If barbed wire or an electric fence is placed alongside a public path, you must allow an additional width in addition to the legal minimum. See later for path widths.
o Barbed wire attached to the outside of a stile post must have the barbs flattened. It must not be attached around the post or across a rail.
Ploughing and cropping sections 134 and 137A of the Highways Act 1980, amended by the Rights of Way Act 1990, section 3 of the Health & Safety at Work Act 1974 and section 161 of the Highways Act 1980
o Cross field paths that are ploughed must be reinstated and clearly marked within 14 days of the surface being disturbed, and within 24hrs of any subsequent disturbance.
o Headland paths must not be ploughed in any circumstances and left undisturbed to at least their minimum width as defined or if not defined using the width guide below. The minimum width for a cross-field footpath is 1m, and 1.5m for the headland. The width of the path across a field should be left unsown or sprayed as the crop (other than grass) emerges.
o Marking the line clearly is required by law, and will prevent unintentional trespass and crop damage. Spray, cut or roll the crop along the line of the path before the crop becomes unmanageable.
o Tall crops can grow to 2 metres in height, and will fall across and block a path unless a strip in excess of the minimum is left.
o The Health and Safety Executive advises that rights of way should not be oversprayed and that warning notices may be required to advise the public of any potential hazard).
Required path widths in metres;
Footpath - cross field; min. 1.0m, max. 1.8m
Footpath - field edge/headland; min. 1.5m, max. 1.8m
Bridleway - cross field; min. 2.0m, max. 3.0m
Bridleway- field edge/headland; min. 3.0m, max. 3.0m
Other unsurfaced highway; min. 3.0m, max. 5.0m
Bulls and dangerous animals section 66 of the Wildlife and Countryside Act 1981 and section 2 Animals Act of the 1971.
o It is an offence to keep any bull in a field crossed by a Right of Way, unless it is less than 10 months old, or is of a recognised beef breed and accompanied by heifers.
o The Health and Safety Executive recommends that a sign should be displayed at access points to a field that contains a bull. This should say ‘Bull in Field’ and not use other text to suggest the bull is in any way dangerous or aggressive.
o It is an offence to keep any animal that is known to be aggressive or dangerous in a field crossed by a Right of Way. An individual injured by any animal whilst using a Public Right of Way can sue the owner for personal injury.
Misleading Signs section 132A of the Highways Act 1980
o Any sign that deliberately mis-informs a path user to the effect of discouraging use of a public path is an offence e.g. Leaving a ‘Bull in Field’ sign up if the bull has been removed.
o The Council may remove any sign it considers misleading, or take steps in accordance with the Enforcement Policy.
Overhanging Vegetation section 154 of the Highways Act 1980
o Trees and hedges that grow alongside a right of way are the responsibility of the landowner or occupier.
o Where a hedge, tree or shrub overhangs any public path so as to endanger or obstruct the passage of pedestrians or horse riders, the Council may request its removal within 14 days.
Activities on Rights of Way
Firearms: section 161 of the Highways Act 1980 andsection 19 of the Firearms Act 1968.
It is not a specific offence to shoot across a right of way, although to do so may amount to a common law nuisance or intimidation depending on the circumstances. It is an offence to discharge a firearm within 50 feet of the centre of a carriageway It is also an offence to have loaded airgun or any other firearm (loaded and unloaded) with ammunition in a public place unless the person has lawful authority or a reasonable excuse
Driving a motor vehicle on footpath, bridleway or restricted byway: section 34 of the Road Traffic Act 1988
It is an offence to drive a motor vehicle on a footpath, bridleway or restricted byway without 'lawful' authority. Lawful authority can be interpreted as having the consent of the owner of the land.
If a person is on private land when access rights or other public access arrangements do not apply or they fail to comply with any conditions attached to their access on that land, an owner has the right to claim that the person is a trespasser. In most cases this will be a civil matter. Trespass on certain land such as around railways, airports, ports and military land may be a criminal matters.
Litter & Fly Tipping section 86 & 89 of the Environmental Protection act 1990.
Responsibility for litter clearance on rights of way rests with the District Council for the area. If a path is completely blocked as a result of fly-tipping and it is causing an obstruction then we also have a duty to act.
Dogs on Rights of Way section 1(2) of the Dogs (Protection of Livestock) Act 1953
o Dogs must be kept under close control, especially in the presence of livestock. Trespass is committed if an owner allows a dog to run off the line of the public path, without the permission of the landowner.
o Dogs and Livestock: It is an offence to allow a dog to attack or chase livestock. It is a defendable action for a farmer to shoot a dog caught attacking or worrying (chasing) livestock
o The Council advises path users to be responsible for their own safety when walking a dog in the presence of livestock. Cows with calves can be aggressive towards dogs and the owner may be safer if the dog can run free. Steers, heifers and horses may also be aggressive towards dogs, but are more likely to approach people out of curiosity.
o Dogs and Sheep: It is an offence to allow a dog to be at large in the presence of sheep. ‘At large’ means not on a lead or otherwise under close control.
o The Council advises path users to always keep a dog on a lead in the presence of sheep.
o Encourage responsible dog walking: If you have a field with public access, where stock is not being kept, consider designating a dog exercise area to encourage responsible dog walking on your other public paths. Publicise through the Parish Council or notices on site.
Co-operation and enforcement
The Council wishes to resolve all reported problems by working co-operatively with landowners and occupiers, and will provide advice on legal requirements and practical solutions. Where this approach fails, enforcement will be undertaken in accordance with the Council’s Enforcement Policy, which came into effect in December 2004.
Another comprehensive publication for Landowners is Natural England's Managing Public Access – A guide for Land Managers.
Advice for Landowners who have rights of way across their land or allow the public access over their land.
It is a common myth that if a right of way is not used for some amount of time then it is no longer a right of way. This is not the case; once a right of way has been recorded on the definitive map it will always exist as a right of way unless it is extinguished or diverted under Section 118 or 119 of the Highways Act 1980.
However it is possible for the public to claim additional rights of way where there were previously none. A public right of way can be established through the section 31(1) of the Hihghways 1980, where the applicant can prove twenty years of continuous and uninterrupted use by the public at large and / or historical evidence such as maps and documents which show that a public right of way existed or is reasonably alleged to exist.
It recommended that Landowners should be proactive in protecting unauthorised access over their land, for example, by clearly displaying notices on a route to say that it is private, by locking gates for periods of time, and by maintaining fences and boundary walls. These actions must be clearly noticeable, so that it is obvious to a member of the public that a route is private.
Section 31 (6) of the Wildlife and Countryside Act 1981 provides Landowners with a way in which to protect their land from new claims for rights of way based solely on public use.
The landowner or land agent is required to deposit a map, statement and statutory declaration with the local Council acknowledging existing rights of way if any and the boundary of the land ownership. From the date of deposit it will not be possible for any additional public rights of way over this land to be claimed, however it is still possible for a right of way to be established through twenty years of continuous and uninterrupted use before the deposit was made or if historical evidence is found which shows that a public right of way exists or is reasonably alleged to exist.
Advantages of improving managed access
Improving access in a managed way can have its advantages. Apart from reducing problems of trespass elsewhere on the landholding it can also provide supplementary income through various agri-environmental schemes and in some cases create commercial opportunities for landowners and businesses as well as build goodwill between landowners and the local community. Some examples of some of these schemes are:
o Forestry and Woodland schemes – can provide various grants to encourage improvement of Access through new and ancient woodlands for educational, environmental and community benefit.
o Permissive Path Agreements – Landowners can also enter into short or long term agreements with the local authority to provide access with or without conditions attached. Such agreements are a good way of helping people enjoy the countryside without conferring long term rights and allow the landowner to remain in control of where people walk through their land.
o Permissive Paths and Concessionary Routes – are paths that are not a right of way but used by permission of the landowner. In this case the landowner is responsible for maintaining the path and may alter the route of the path should they wish. A permissive path may be linked to any of the above schemes or through a formal agreement with the local authority. Notices of conditions should be posted at either end of the route.
o Toll Rides – this is an alternative to an agreement with the local authority where instead the agreement is with a specific user group. The most common example is with horse riders who may be willing to negotiate an annual fee to use safe toll rides which link to other quiet areas where they can exercise or jump.
o Path Creation Agreement. Section 25 of the Highways Act 1980. This provides for the provision of a legally recognised path in an agreement with the landowner and local authority or Parish Council. The path will become maintainable at public expense
Landowners Liability on rights of way
It is often difficult to establish what duty of care one person owes to another and will often depend on the individual case. It is important for landowners to be aware of their duty of care and it is advised that landowners take out public liability insurance.
Where a highway is maintained at public expense the highway authority has liability for users who are injured because the route is in disrepair. However, a highway authority can take action against a landowner who had created any source of danger or failed in their responsibilities towards maintaining the highway. Landowners can also be liable where the path is privately maintainable for example permissive paths or toll rides.