The public are currently being encouraged, subject to social distancing, to use the outdoors and the rights of way network for health and wellbeing. This means that increased use, perhaps by people who are not familiar with the network, is very likely.
People straying off rights of way can come to harm or do harm and over the long term, create new rights of access. A landowner has limited liability for any harm which comes to members of the public on a public right of way, but much greater liability where they stray off the route and onto private land. Guiding the public along the right path or way will therefore be beneficial to the public and to the landowner and occupiers and could help to avoid confrontation and disputes.
Good maintenance of a public right of way helps to prevent the public from roaming onto other land. If a public right of way is clearly sign posted, marked and set out on the ground, the public are more likely to remain on it than to find another way.
The majority of public rights of way are maintainable at the public expense by the highway authority, (County Council or Unitary Authority), but there are exceptions to this, so it is wise for landowners to know the status of the routes on their land. This is a matter that can be discussed in the first instance with the highway authority, but in the event of a disagreement, will need to be investigated by looking into the history of the route.
The law on the maintenance of bridges is complex and where the responsibility lies will depend on the history of the bridge and will need to be investigated. In some cases liability for the right of way lies with the highway authority, but liability for the structure itself falls on the landowner.
Even if a public right of way is maintainable at the public expense, landowners and occupiers do have responsibilities. A landowner or occupier must:
- keep all public rights of way free of obstructions including overhanging vegetation, hedges and branches
- keep stiles and gates in a good state of repair in consultation with the highway authority
- reinstate cross field paths within 14 days after ploughing, seeding or other disturbance
- not put a dangerous animal or bull on land which is crossed by a public right of way
- construct culverts and bridges over new or widened drains in consultation with the highway authority.
It is therefore important to know where the rights of way are and what their status is. The width which must be kept open will, for example, vary for different routes depending on their status and history.
It is also important to monitor routes which are used in practice, but are not rights of way and to ensure that rights are not acquired over time through use, unless you are happy that they should be. This does not necessarily mean that the public must be prevented from using the route, only that steps are taken to prevent the use from leading to the establishment of a right. Use that does not seem important today may be problematic in the future if the intentions for the land change. The issue often arises where there are plans for development.
Where there is private vehicular access over a public right of way, the highway authority is only responsible for ensuring that the surface is maintained to the standard required for use by the public e.g. use on foot. Maintaining it to a standard suitable for use by vehicles and repair of any damage caused by private vehicular use is the responsibility of the landowner or the beneficiary of the rights of way.
A landowner who wants to carry out works (other than normal cultivations) affecting the surface of a public right of way will need to get consent for those works from the highway authority, because they will interfere with the public’s right of access. An application may be made to the highway authority for the temporary closure of a public right of way to enable any required works to be carried out safely and an alternative route should be provided if possible.
If a gate is required across the route of a footpath or bridleway to control animals and livestock, consent must be obtained from the highway authority. Under current legislation it is not possible to erect a gate or barrier across a restricted byway or byway open to all traffic.
It is possible to fence along the length of a public right of way to prevent people from straying from the route and subject to planning restrictions on the height of a fence, there is no obligation to maintain views when doing so. The whole of the width which is subject to the rights of way will, however, need to be made available for free access. It is therefore often wise to discuss any proposal to fence a public right of way with the highway authority.
Advisory signs can be erected next to (but not on) a public right of way but they must not be worded so as to appear to detract from the public’s rights. This means that they must not suggest that the route cannot be used. This is true even under the DEFRA guidance in relation to the use of rights of way during the Coronavirus lockdown. Under this guidance signs can encourage, but not require, the use of a suitable alternative route if one can be provided.
Birketts has a specialist rights of way team and any member of the team will be happy to advise you. Please get in touch if you have any queries relating to rights of way.