Less well known is the accompanying definitive statement: the written description of the routes shown on the definitive map. Definitive statements are less often available online, but it is in the definitive statement that important information about the width of a route may be found. Nevertheless, as ever with public rights of way law, what seems a simple question speedily becomes more complex.
Is there a prescribed width?
The width defined on the definitive statement is the deemed width of a path when it was recorded, however, if evidence is provided disputing the width it could be investigated. Widths vary; in Norfolk for example, there is a path with a recorded width of 95cm and others as much as 16m and 30ft, or the statement may say the width ‘varies between’.
If there is a prescribed width of a public right of way it may not always be obvious on the ground, especially if it is not marked out or it does not have any boundary features. Even if there are boundary features, the width may extend beyond the visible, available and usable surface.
If the width of a path or way is not proven or is not defined in the definitive statement, the following minimum widths, as set out in the Highways Act, could be used:
- Cross field footpath, 1m
- Field edge footpath, 1.5m
- Not field edge bridleway, 2m
- Any other highway, 3m.
Therefore, if a cross field footpath or bridleway is disturbed for agricultural purposes, it should be reinstated to the minimum width of either 1m, or 2m if a bridleway. If, however, the right of way is a byway (a restricted byway or byway open to all traffic) the surface should not be disturbed.
To confuse matters there is also a ‘rough’ guideline that a path must be sufficient in width for users to pass in both directions side-by-side. This would not be an issue if the right of way is open (e.g. cross field). If, however, it is enclosed (e.g. fenced on either side or overgrown) an issue is created. This scenario can however be considered when an application is made to add a path to the definitive map and there is no evidence to the contrary.
Why are widths important?
If there is no recorded width and there is a requirement for it to be determined and proven, it is possible to do this if evidence is provided. If the width is proven or described in the definitive statement, the public right of way should be maintained to at least the defined width. It is important to ensure a route is visible on the ground to avoid users trespassing or wandering away from the prescribed alignment and width. The determination of a width will also ensure there is no illegal encroachment. It is also important to ensure that a path or byway is not used beyond its proven width as the public could establish a greater width through use.
Is the width in the statement the width a route must be maintained to?
The surface of a path should be maintained and kept clear. This is not necessarily the entire recorded width as some widths include unsurfaced areas such as a verge. Overhanging hedges and vegetation should be kept cut back to ensure the surface width is available for use.
What if the width is disputed?
If the width is disputed it is possible to seek clarification from the highway authority. They will be able to give advice concerning the width of a highway or public right of way. If the width continues to be disputed, it is possible to investigate the width of a public right of way or highway and make a determination.
This could be useful for establishing boundaries, for planning applications or for clearing routes; determination of the width may be required if there is a valid requirement to fence a right of way for agricultural or other purposes. If sufficient evidence is provided and the width of a public right of way is determined, an application could be made to add it to the definitive statement. The width of a highway could be set out as far back as an enclosure award. It is therefore advisable to seek advice and make enquiries before putting up fencing or other boundary features, or before preparing plans for development, to avoid illegal encroachment.
For further advice relating to public rights of way and access, please contact Marcia Grice or another member of our Planning and Environmental Team.
This article is from the summer 2021 issue of Agricultural Brief, our. To download the latest issue, please visit the newsletter section of our website. For further information please contact a member of Birketts' Agriculture and Estates Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at July 2021.