Protecting and promoting our path network
LEGAL MATTERS
THE pandemic has shown the value of good-quality public paths close to home, where people can enjoy fresh air and exercise, confidently and without impediment. Consequently, it has never been more important for parish, community and town councils to play their part in protecting and promoting public rights of way.
Public paths take us across fields, through woods and over hilltops, on traffic-free ginnels or snickets between houses, often on ancient routes. They mark the routes trodden by our ancestors, perhaps to get to the market, workplace, school or church, friends or relatives. We can use them on foot, horseback, bike, or with horse and carriage, on footpaths, bridleways and byways—totalling more than 130,000 miles throughout England and Wales.
These routes are public highways in law, just like the roads we drive on, and the same legislation applies to them.
Parish, community, and town councils have a useful role in safeguarding the path network. No other authority knows the paths as well as the local council and its voice will command the attention of the highway authority (county or unitary council) more effectively than that of an individual member of the public.
At a time when the highway authorities are strapped for cash and are, regrettably, making cuts to path budgets, local councils can make a big difference to the highway authority’s ability to act—for the highway authorities have a legal duty to maintain public paths and keep them clear of obstruction. Indeed, the highway authority owns the surface of a publicly-maintainable highway—it is public land.
Here are some ways in which your council can help.
Form a public rights of way committee. Meet regularly and co-opt local path users, to benefit from their knowledge and experience.
Make rights of way a regular item on your council agenda. Highlight the importance of local paths and encourage people to raise issues about them.
Carry out regular surveys of all the paths in the parish or community. Your council has a copy of the definitive (official) map of rights of way. You could divide the parish between willing councillors or volunteers and invite them to walk all the paths in their patch at least twice a year and report to the highway authority any problems the local council cannot deal with itself.
Undertake maintenance work. Here you can make a real difference by clearing undergrowth or repairing path furniture (such as footbridges or steps). Under section 43 of the Highways Act 1980, the council does not need the permission of the highway authority to maintain publicly-maintainable footpaths and bridleways (most are, but you can check to be sure). All paths must be signposted where they leave metalled roads; you can help maintain signposts.
Agree an agency with the highway authority to maintain paths. The council can then undertake any maintenance works within the scope of the agency agreement, such as installing waymarks or improving surfaces.
Check that all stiles and gates are authorised and seek their removal if they are not or if they are no longer necessary.
Gates and stiles may need the highway authority’s consent under section 147 of the Highways Act 1980 (the grounds for consent being that they are needed for the agricultural use of the land), and should be easy for everyone to use—including those with limited mobility and vision. If these structures are unnecessary or difficult to negotiate, they may be an illegal obstruction. Too often there are stiles or gates where land is no longer grazed, and they should be removed. The rule is ‘gap, gate, stile’ and the least restrictive option should be applied.
Talk to offending landowners and occupiers. Often the local council will know the landowner and an informal word might sort a problem such as barbed wire or crops over the path, without the need to escalate it to the highway authority.
Use the law to get results. The council should always try to resolve path problems by persuasion and discussion, but when those methods fail, the council can serve a notice on the highway authority to act. If the path is ‘out of repair’, i.e. the surface is defective or disturbed, the notice is served under section 56 of the Highways Act 1980. Or if a landowner is wilfully obstructing the path, the council can prosecute him or her under section 137 of the Highways Act 1980.
Furthermore, the local council has a special power, under section 130(6) of the Highways Act 1980, to require the highway authority to perform its duty to keep paths free from obstruction. When the council complains to the highway authority about an obstructed highway, the authority is under a duty to take ‘proper proceedings’ to deal with it. In 1979 Send Parish Council took Surrey County Council to court over its failure to take ‘proper proceedings’ and was granted a mandatory order, requiring the county council to deal with the obstruction.
In these cases, where the authority or the landowner does not resolve the problem, the local council may have to resort to the magistrates’ court—so it is advisable to take professional advice before starting the process.
Comment on proposals to alter the routes of paths. Public paths can only be closed or moved through a legal process, and the local council is notified and should be consulted. The changes may be in connection with development (i.e. under the Town and Country Planning Act 1990) or because it is in the landowner’s or public interest (usually under the Highways Act 1980). Make sure that you gauge local opinion, discuss the proposals at a public meeting, and make a submission.
Agree new paths. A local council can agree with the landowner the dedication of new rights of way, under section 30 of the Highways Act 1980. Explore whether there are new opportunities for public paths in your council’s area.
Research unrecorded paths and apply for them to be added to the definitive map. The rule has always been ‘once a highway, always a highway’, meaning that even if a route is unrecorded it remains a highway unless it has been legally stopped up. This will change when the Deregulation Act 2015 is commenced in the next year or so (it applies only in England).
The commencement will spark the closure of the definitive map, on 1 January 2026, to claims based on historical evidence, meaning that historical rights can no longer be recorded. The detail is still unclear, and a stakeholder working group (on which local councils were represented) of all the interests is advising the government on the next steps. However, this deadline makes it urgent to submit claims for public highways, and local councils can usefully research old records (such as inclosure awards and tithe maps—at the National Archives at Kew, or the local record office) to see if there are routes which have been omitted from the definitive map.
Alternatively, if a route has been used for 20 years without challenge or interruption the council can submit such evidence to claim the path as a highway. Unrecorded routes are at risk of being built over or abused, so any for which there is evidence of highway status should be claimed.
Your council will be consulted on others’ applications to record or upgrade historical ways. Remember that these applications must be determined on the basis of the historical evidence and not the desirability of the outcome. Your council may have evidence, such as old parish minutes, which assist determination of the application.
Publicise your paths so that people will enjoy them. Publish a book or leaflets of local walks, and display a map showing all the paths in your parish, with their definitive numbers. You can organise walks for local people so that they appreciate the paths and may become involved in surveying and maintaining them.
Consider becoming a ‘Walkers are Welcome’ town. This is a growing network of about 100 towns in England, Scotland and Wales which display the Walkers Are Welcome badge. These towns demonstrate that good-quality paths are a bonus for businesses, as walkers visit and spend there. The local council could be the catalyst for this.
Join the Open Spaces Society for assistance and support in your endeavours, and look at our website for information on how you can protect your path network.
The society has campaigned for public paths since 1865 and had a hand in much of the subsequent legislation affecting paths. It is currently pressing both the Westminster and Welsh governments to ensure that payments of public money under the new agricultural funding regimes can be made to farmers and landowners to provide new and better access. We also want to see grants docked or withdrawn where the owner or occupier is abusing public paths. This will greatly assist the hard-pressed local authorities who have insufficient staff for enforcement against abuses of the network.
Public paths are a unique part of our history. If they are in good order, people will be encouraged to use and enjoy them, thereby helping to keep them open. It is well worth investing time and energy in paths, and it is good for the community as a whole.
Useful publications
Rights of Way: a guide to law and practice, John Riddall and John Trevelyan, published by the Open Spaces Society and Ramblers, 4th edition (2007)
Rights of Way: Restoring the Record, by Sarah Bucks and Phil Wadey (2019)
About the Open Spaces Society
The Open Spaces Society is Britain’s oldest national conservation body, founded in 1865. It has 2,000 members consisting of individuals, organisations and local authorities, including local councils. It campaigns to create and protect common land, town and village greens, other open spaces and public paths. As a charity it is dependent on subscriptions and donations for its funding. The membership subscription for local councils is £45 a year.
The Open Spaces Society, 25a Bell Street, Henley-on-Thames RG9 2BA.
www.oss.org.uk
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Written by Kate Ashbrook, general secretary, Open Spaces Society
As appeared in Clerks & Councils Direct, July 2021
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