The perils of public rights of way

The Ramblers' Association’s “Don't Lose Your Way” campaign last year uncovered almost 50,000 miles of historic rights of way missing from the definitive maps in England and Wales.

New rights of way – such as a bridleway or footpath – can only be added by a Definitive Map Modification Order. However, anyone can apply for such an order for free, so farmers should take active steps to ensure a public right is not created which might interfere with the use of their land.

Jacqueline Barr, Head of Agriculture at Ware & Kay in York & Wetherby explains how public rights of way can be created, and she outlines what steps farmers can take to protect themselves.

Definitive Map Modification Orders are granted by the surveying authority for the area (the county council or unitary authority) on one of three specific grounds:

• the existence of a legal agreement or order effecting a right of way;
• establishment of the way through public use over time; or
• historical evidence of a right of way which was wrongly left out of the original definitive maps of the 1950s and 1960s.

Claims of public use through time are the cause of greatest concern to landowners. Presumed dedication, as it is also known, essentially means that if a pathway has long been used by the public without challenge, this can amount to evidence that the landowner meant to dedicate the used route as a public right of way.

Under section 31 of the Highways Act 1980, if a route is used by the public for 20 years or more, as of right and without interruption, the path is ‘to be deemed to have been dedicated as a highway’, unless there is sufficient evidence that there was no intention during that time to dedicate it.

The 20-year period is counted back from the date when the right of the public to use the path was challenged. This often occurs when a new landowner moves in and disputes the public use of a path not yet shown on the definitive map. 

If the land does not yet have a public right of way granted, there are steps that farmers can take.  Although 20 years’ uninterrupted use can establish a presumption of dedication to the public, this can be refuted with the production of evidence showing this was not the intention of the landowner at the time.

Such evidence should prove that there was an interruption of the public’s use, but such a disruption to use must be shown to have been both effective in stopping public use and clearly known to the public using the pathway.

Steps such as erecting a locked gate across the pathway, displaying clear signs declaring that it is private and not a public right of way, or depositing plans with the local authority, could all provide adequate evidence of an intention not to dedicate. Written evidence from people stating that a way was private and that no public right was in existence during the relevant period can also be helpful.

If a public right of way has been granted, it cannot then be blocked without permission: to do so would be a criminal offence and entitles the highway authority to demand the ‘obstacle’ be removed or they can remove it and recover the cost from the owner. It is possible, however, to apply to the highway authorities to have it moved or temporarily diverted if there is good enough reason.

The granting of a public right of way creates a number of responsibilities for landowners. This includes ensuring rights of way are kept open and useable (including installing and maintaining stiles and gates if necessary) and cutting vegetation that could block the route. Cross-field paths can be ploughed or cultivated but must be reinstated to their original state after field operations are completed, and paths that run on the field edge must not be cultivated at all. Some livestock, such as bulls over the age of 10 months, are banned from being kept in the field.

Such duties imposed by the creation of a right of way are evidently onerous, farmers should therefore take any possible steps to prevent them being granted in first place. 

For further information contact Jacqueline Barr, in the agricultural law team at Ware & Kay in York 01904 716000 and Wetherby 01937 583210 or Malton 01653 692247 or email jacqueline.barr@warekay.co.uk.