One of the defining features of the British countryside is the existence of a national network of public rights of way (PROW).
For landowners, this network can be a dual blessing. On the one hand, anything that encourages people to appreciate the countryside and our rural heritage is to be applauded but on the other, PROWs can be both inconvenient - particularly where they traverse cultivated land - and high maintenance.
Creating a public right of way
The majority of PROWs, chiefly footpaths and bridleways, are historic and are recorded on the definitive map held by the relevant local authority. However, new PROWs can be created in a number of ways: by agreement with the local authority; by order of a public authority; or by a third party application based upon a presumed dedication. Presumed dedication arises when a path has been used for a sufficient period of time – normally at least 20 years - without secrecy or force and without the permission of the landowner. However, a path can be dedicated at any time, particularly if the landowner is willing to do so.
In addition to presumed dedication, new or previously unrecorded historic rights of way may also be added. The local authority may also amend the route of a PROW or re-grade it if there is evidence that it is wrongly classified (i.e. footpath to bridleway and vice versa).
However, although PROW’s are rarely extinguished, landowners wanting to divert or extinguish a PROW may find their local authority amenable to such an application if the existing route interferes with agricultural operations and / or constitutes a health and safety risk to the public.
Maintaining a public right of way
The local highways authority is usually responsible for maintaining PROWs unless the landowner (or their predecessors) agreed in writing to maintain them or where they have ‘adopted’ responsibility through repeated acts of maintenance. However, landowners are responsible for maintaining the land adjacent to the PROW so that it remains accessible.
It is possible for a landowner to commit a criminal offence inadvertently by rendering the PROW inaccessible. The most common reasons for inaccessibility are:
- The presence of a bull in a field crossed by right of way unless it is: under 10 months old; not a recognised dairy breed; accompanied by cows or heifers.
- Ploughing up a PROW (unless it was dedicated subject to a right to do so) is an actionable nuisance. The rules are relaxed if it is impractical to avoid ploughing it and that the ploughing is carried out for an agricultural purpose and within the rules of good husbandry. However, the surface must be returned to a passable condition within 14 days if the disturbance was for sowing or planting, or 24 hours where ploughing was for any other purpose.
- Interfering with the signage on a PROW or to erect misleading signage (e.g. ‘Private Road’).
- Blocking a PROW with a fence, hedge or other obstacle without the consent of the highways authority; even if gates or stiles have been installed to allow the obstacle to be negotiated.
Landowners should also note that replacing stiles or gates will need local authority consent unless it is replacement of like furniture for like.
Avoiding dedication of new paths
Landowners cannot avoid public rights of way established by order but there are steps they can take to reduce the risk of new rights being established by presumed dedication.
Fencing is expensive and often impractical to prevent trespass and signage can be rendered useless if regularly removed by proactive members of the public. The best protection available is that afforded by S31(6) of the Highways Act 1980, setting up a presumption that a landowner will not dedicate any part of their land as a PROW and also offers them protection from any claims for a PROW for 10 years..
A landowner must deposit a statement and plan with the local authority, acknowledging the existing public rights of way on their land. Within 10 years from the date of this deposit, a statutory declaration must be made stating that no additional PROWs have been dedicated during this period. By these means, the local authority should reject any application received in the interim to register a PROW by presumed dedication. Rolling protection is afforded by the landowner renewing the statutory declaration at least once every ten years.
This procedure will not defeat an application by presumed dedication where the 20 year period had expired before the initial deposit of the statement and plan; nor PROWs that come to light as a result of historical evidence.
