Public rights of access to land – a guide for farmers

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The arrival of the warmer months in the year always encourages people to get out and enjoy the countryside around them. But what does this mean for farmers looking to protect their land whilst also adhering to the laws regarding public rights of access?

How rights of way are created and discovered

Agricultural land may be, or become, subject to rights of access in a number of different ways – e.g. by express or implied grant, by prescription (long usage) or under statute – and such rights can be either ‘private’ (i.e. for use only by specific people) or ‘public’ (i.e. for use by everyone).

The scope and extent of express rights of way (e.g. their width, route, whether vehicular or accessible only on foot, etc) will depend upon the precise terms of the grant or the creating statute. In the case of a prescriptive right of way, its scope and extent will depend upon the historical evidence of the type of use that led to its creation.

Sometimes, the existence of such rights will have been discovered when the land was first acquired.  Solicitors acting for clients on the purchase will carry out various searches to ascertain what rights exist over the land, so most public and private rights way will have been detected and reported on at that stage.

But not all legally enforceable rights will show up on such searches. For example, a ‘prescriptive’ right of way can be acquired after 20 years’ usage, provided that it was being used openly and was neither objected to nor used with express consent. Such rights are legally enforceable but are often not registered anywhere and so will not show up on the usual searches. In fact, as they are acquired over a long period, they may not even exist at the time of purchase, but may accrue some time afterwards. Inspections for evidence of unauthorised use are therefore to be recommended but, with large areas of land, even this may not prevent their occurrence.

Erecting a sign or notice that explicitly states that public access is prohibited can be effective in preventing the acquisition of a prescriptive right of way, but it must be maintained and sited near the land to be protected.

Similarly, locking gates or blocking the access to the route makes it clear the land is not for public use. However, whilst it is lawful to block access to private land, if the area is already subject to a claim, this could cause a dispute and trigger litigation.

Conversely, if the landowner is happy for the public to use a route but wishes to avoid a legal right to do so arising, erecting a sign granting permission will prevent a successful claim for a permanent right of way.

Avoiding actionable interference with rights of way

Questions such as whether a gate can be erected across a right of way, or how it can be re-routed or diverted without incurring liability for unlawful interference, have been the subject of much reported case law and  the answers tend to be very fact-specific. Therefore be prudent to take legal advice before embarking upon such action.

A relatively common misconception is that granting a right over a new access way will automatically extinguish the rights over the old route.  In fact, this type of mistake can result in creating two rights of way. The correct procedure is by way of a deed of release (of the old route) and re-grant (of a new route)

Public rights of way may be:

  • ‘footpaths’ – for walking, running, mobility scooters or powered wheelchairs;
  • ‘bridleways’ – for walking, horse riding, bicycles, mobility scooters or powered wheelchairs;
  • ‘restricted byways’ – for any transport without a motor and mobility scooters or powered wheelchairs; or
  • ‘byways open to all traffic’ – for any kind of transport, including cars

If a public right of way crosses your land, the Highways Agency is responsible for maintaining the surface, but there is a duty on the landowner to ensure that it is not obstructed. This may entail:

  • Managing any overhanging or encroaching vegetation that might obstruct the right of way;
  • Not cultivating or disturbing a field edge footpath or bridleway;
  • Providing and maintaining stiles and gates on paths across the land to keep them safe and convenient for public use (Note: landowners may be eligible for a grant of 25 per cent of the reasonable costs incurred in maintaining such stiles and gates);
  • Ensuring that if paths run across fields they are kept free from crops. If a path is disturbed for cultivation, a good surface must be reinstated within 14 days of such disturbance if a crop is being sown, or within 24 hours in other circumstances;
  • Ensuring that the width of bridleways are at least 3m and footpaths at least 1.5m, unless they cross fields, in which case the widths reduce to 2m for a bridleway and 1m for footpaths;
  • Observing guidance on keeping cattle in fields that have public access, as prescribed by the Health and Safety Executive (See https://www.hse.gov.uk/pubns/ais17ew.pdf). Note for example that bulls of recognised dairy breeds over the age of 10 months are banned from fields with public access, whilst bulls over the age of 10 months of any other breed must be accompanied by cows or heifers. Landowners can be prosecuted for keeping any potentially dangerous animal on land crossed by a right of way.

If you wish to carry out works that will affect a footpath or a bridleway, you may need to seek permission from the local authority. You must ensure that rights of way are reinstated and marked on the ground after the works have been carried out.

It may be possible to divert a public right of way using section 119 of the Highways Act 1980, but only if it would not be substantially less convenient to the public. If you are considering this, we can assist.

In addition, Section 31(6) of the Highways Act 1980 allows landowners to acknowledge the presence of an existing right of way across their land and, in the process, prevent new rights being established. This might be useful if an area of land is already being used by members of the public.

This notice must be designed in a ‘legible manner’, be of ‘sufficient size’, and be positioned so as to clearly identify to users the land it seeks to protect. The landowner must then deposit with the highway authority an application form, a map, a statement and a statutory declaration showing which public rights of way are being acknowledged and declaring that there is no intention to dedicate additional ways.