Common Issues

So here it is a whistle stop tour of common issues on public rights of way and how to resolve them. In many cases the way to report these issues is to report it to your Local Authority whether this is a County Council or Unitary Authority they generally have an online reporting to to do so.

Structures

There are many types of structure out on the public rights of way network from stiles to bridges, gates to boardwalks. Gates, gaps and stiles must meet the British standard of BS5709:2018, structures have to be authorised to exist on public rights of way. This means that permission can only be given if the provisions of S147 of the Highways Act 1980 (HA80) can be met: if it can be justified that the land crossed by the public footpath or bridleway is being used for agriculture and that in order for this agriculture to be carried on efficiently, a structure is needed to control the ingress and egress of animals. For example, land used to graze sheep or commercial forestry plantations needing to keep deer and rabbits out, would both meet the provisions of this section. If the land stops being used for agriculture and there is no longer any need to control livestock, then the structure should be removed. These structures are the responsibility of the landowner to maintain and repair, again the Local Authority has powers to have these removed under S146 HA80 if not authorised or no longer meet requirements and to ensure landowners maintain them.

Bridges and boardwalks are mostly owned by Local Authorities, in some cases they can have private landowners. This means that if you come across a collapsed or damaged bridge/boardwalk it needs reporting to the local authority for them to inspect and repair or to close until it can be made safe.

Obstructions

Obstructions come in all shapes and sizes from farm machinery to buildings. They can be intentionally placed by land managers or caused by nature such as debris from a storm. Whichever they have ended up across or blocking a public right of way they are the landowners responsibility to remove. All obstructions need reported to the Local Authority who have the power to serve notice on landowners to get these issues resolved under S137 HA80. In many cases where landowners have placed obstructions it is to protect their land from issues such as hare coursing which can cause real issues and damage to their land so often a compromise has to be made. Each route should have a definitive width within it’s definitive statement which provides a legal width for the Authority to require cleared, in many cases a width isn’t specified and general widths are adhered to. What this means is that if the landowner wants to prevent vehicles using a footpath to enter their land as long as the definitive width to allow pedestrians access is provided but not vehicles this would be acceptable as a solution. If these items have been deposited to cause a nuisance or damage for users than the Local Authority can resolve this under S149 HA80.

Buildings and structures such as air hangers or green houses are common obstructions for some authorities from many years ago before the planning system developed and before it was a statutory search for solicitors in the purchasing process for properties. It doesn’t matter how long a building has been in place this is still and obstruction. This can be addressed by the landowner by applying for a legal diversion order under the HA80 to move the route or the building must be removed from the legal alignment of the route again all enforceable by the Local Authority.

Ploughing and Cropping

Ploughing and cropping is one of the most common issues on public rights of way, check out my blog for what is expected for reinstatement. Land managers have to disturb the surface to be able to complete their agricultural work (although they may not disturb the surface of a byway) after the disturbance of the surface the route should be reinstated by the landowner. If the route hasn’t been reinstated then the Local Authority can prosecute the landowner under S131A HA80 and for crossfield routes under S134(5) HA80. If a notice is served for this it is reported to the Rural Payments Agency for the breach of cross compliance and if the offence reoccurs often then subsidies can be taken away so it is in the landowners best interests to keep routes reinstated.

Surface Growth

Surface growth includes any vegetation growing up from the surface of the route and is the odd one out as this is not the responsibility of the landowner but that of the Local Authority. Most authorities have a cyclic grass cutting schedule that either their contractors or parish councils undertake. Sadly with recent budget cuts many authorities are having to reduce the amount of routes they cut or the number of times a year they cut the surface growth. If you find a route is impassable with vegetation such as brambles then these will need addressed by the authority but if the route is covered in long grass or nettles I’m afraid this is just a matter of wearing appropriate clothing and getting stuck into the countryside.

Side Growth

Side growth is any vegetation growing alongside or above a public right of way which may have become overgrown, this is the responsibility of the landowner. This includes any fallen trees or limbs that end up across the route, the local authority can ensure the landowner clears vegetation under S154 HA80 so if you find any routes are thick with side growth get a report in to get this resolved.

Signage

Signage is sparse in many counties these days again due to budget cuts as this is responsibility of the Local Authority, they have a statutory duty to sign routes from the metalled road so any of the fingerposts you see by the road side must be replaced if they are reported. Waymarks, the smaller posts with discs on away from the road side, are not a statutory duty and will only be replaced where they are considered essential. Most authorities don’t want to litter the countryside with signage so expect that the public should be carrying a 1:2500 Ordnance Survey map to navigate their way around, therefore waymarks should only be required where farm tracks meet public rights of way etc where the way may not be clear when using the map.

Some authorities are addressing the finance issues around waymarks by encouraging parish councils and walking groups such as the Ramblers to install the posts and discs, fingerposts must be installed by contractors due to the underground services in road verges. This means that they do not have to pay the labour costs of their contractors so still make sure to report waymarks and fingerposts that need replaced.

I’ve come across so many different misleading signs in my time as a Rights of Way Officer including dangerous building sites, bulls in fields, private no public access and now during Covid19 we are seeing many more misleading signs trying to prevent public access. These signs are not acceptable and should not deter you from using a route as long as you are following the definitive line of the right of way you have a right to do so. Make sure to take a photo if you can and send this to your Local Authority so they can get the landowner to remove them under S132 HA80.

Livestock

The only legal restriction about having livestock on fields or land with public rights of way across is Section 59 of the Wildlife and Countryside Act 1981 which bans bulls of recognised dairy breeds, subject to a number of exceptions, from being kept in fields crossed by public rights of way. There are no other specific controls. Instead, more general legal principles apply including negligence and liability. If you come across aggressive stock or are attacked by any livestock make sure to report this to your Local Authority.

Surface Damage

Surface damage covers an array of issues from damage from vehicles to the digging of ditches. All works on public rights of way must have permission from the Local Authority before they go ahead and often require a legal closure (I could write a whole other blog about that). If the surface has been damaged and not reinstated this is the responsibility of the landowner (whether they were the ones to cause the damage or not), the Local Authority can use S130 / S131A HA80 to resolve this.

Fly Tipping

Fly tipping is a nation wide issue and can be very upsetting and distressing for the landowners and for those who have to walk by or over it everyday. This is an issue for your District Council, like the Local Authorities they often have a online reporting system or form to let them know where the issue is and they should get out and clear it asap.

Working with the District Council to clear fly tipping whilst working for the County Council

Illegal Users

Illegal use of a footpath can include cyclists, equestrians and motor vehicles, although the offence being committed by all those not propelled by motor is that of trespass against the landowner so it is a civil offence. This means that your Local Authority have no powers to stop them. In the case of motorised vehicles on footpaths, bridleways and restricted byways and any route with a Traffic Regulation Order preventing use by motorised vehicles this is a criminal offence so must be reported to the police and they can take action under S34 of the Road Traffic Act 1988. Many areas suffer with the issue of motorcross bikes and 4x4s using routes that do not have motor vehicle rights, these must be reported to the police for them to take action.

Permissive or Public

The difference between public rights of way and permissive routes isn’t always perfectly clear on the ground. To check if a route is a public right of way first have a look on your Ordnance Survey map, this shows public and permissive routes, if it is still not clear from this then have a look at the definitive map for the parish. Many Local Authorities have a copy of their definitive maps available online or an online version showing routes. Public routes should be available 365 days a year and be free of obstruction at all times, permissive routes are provided by the landowner or land manager for public use, this may be granted for an individual group or the wider public, these can be shut at anytime without advanced warning and it’s up to the landowner to maintain these in all respects.

Barbed wire and electric fencing

Barbed wire is often required by landowners for the control of stock and is essential for their day to day life in fields. Barbed wire should not be around structures, leaving a 1m space and if running alongside a route should be on the stock side of posts with a smooth wire running along the side of the public. If the wire is adjacent to the route and within the definitive width of the route then the Local Authority can require its removal under S164 HA80. Electric fencing is an interesting one as it should be treated as an obstruction, if across a public right of way, under S137 HA80 or removed under S162 HA80 but many authorities take the stance that if it is possible for insulated handles to be installed and sufficient signage that it is electrified then this suffices. If you believe the route is obstructed by the fencing then report this to your local authority and they should address this with the landowner.

public rights of way

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