LEGAL MATTERS - PUBLIC RIGHTS OF WAY
The Open Spaces Society’s case officer, Helen Clayton, explains what local councils can do to protect and improve public rights of way in their areas.
Public rights of way are a valuable resource. They provide an opportunity for people to get fresh air and exercise, helping to encourage healthy lifestyles and well-being. They also have an important functional use as a means of sustainable travel.
Local councils (town, parish, and community councils) have a vital role to play in protecting and promoting the path network in their areas.
What are public rights of way?
Public rights of way are all highways in law, just like the roads we drive on. There are four categories of public right of way:
Footpaths are open only to walkers; bridleways to walkers, horse riders and cyclists; restricted byways to walkers, horse riders, cyclists and drivers of non-mechanically propelled vehicles (such as horse-drawn carriages); and byways open to all traffic (BOATs) are for all classes of traffic, including motor vehicles, though they are defined as being mainly used for the same purposes as footpaths and bridleways. People using wheelchairs or mobility scooters can use all the above paths where they are suitable.
The public has a legal right to ‘pass and repass’ along a highway (consistent with the class of the way). A user may stop to admire the view or to take photos, have a drink, etc, and may take a ‘reasonable accompaniment’ (such as a dog or a pram).
Local councils may also have sealed and unsealed minor roads in their areas, which make a valuable contribution to the exploration of the countryside. Where I refer to ‘paths’ below this includes all such highways.
Legal record
Public rights of way are recorded on the definitive map and statement held by the surveying authority (county or unitary council). The definitive map and statement do not record every public right of way but it is conclusive in law of the rights over those ways that are shown on the map and recorded in the statement. Paths can legally exist even if they are not shown on the definitive map and statement. Some may have been omitted when the map and statement was compiled, others may have come into existence since. They can be added where there is evidence of public rights, by definitive map modification orders made under the Wildlife and Countryside Act 1981.
How public rights of way come into being
Most paths become rights of way because the landowner has dedicated them to public use. Very few paths will be created by express dedication – where the landowner consciously and deliberately makes a way a public right of way. In most cases dedication is ‘presumed’ from evidence of long use, the actions or inactions of the landowner and/or references in historical documents. Paths can also be created by statutory order (such as a creation or diversion order).
Once public rights have been established, they can only be removed by the making of an extinguishment order (or a diversion order where an alternative route is provided).
Protection of public rights
Public rights of way are protected in law but are still threatened, for example through development or obstruction. Councils can be proactive in taking action to safeguard existing paths and seek enhancements.
Local councils (town, parish, and community councils) are well placed to protect and care for the path network in their areas. Some powers are specifically conferred on local councils, others are conferred on the public in general but are best exercised by local councils, since they have the authority and more resources than most individuals and voluntary organisations, and they command respect.
Put paths on the agenda
Make rights of way a regular item on your council’s agenda to highlight the importance of local paths and encourage people to raise any issues. Establish a paths sub-committee or working party with a councillor appointed to lead on paths. Carry out a survey of all paths in the parish or community at least once a year, reporting any problems that you cannot resolve to the highway authority. Study planning applications to ensure they do not have an adverse effect on paths, gauge local opinion on any proposals, discuss at a public meeting and make a submission.
Diversions and extinguishments
Paths can only be closed or moved through a legal process. The local council will be notified and should be consulted. Orders may be made in connection with development (under the Town and Country Planning Act 1990) or because it is in the landowner’s or public interest (under the Highways Act 1980 (the 1980 act)). The local council may object to orders that would divert or extinguish footpaths, bridleways, and restricted byways. In that case, the order must be referred to the Secretary of State for confirmation and they must hold a local inquiry into whether the order should be confirmed.
Power of veto in the magistrates’ court
If a highway authority proposes to divert or extinguish a highway with full vehicular rights, under section 116 of the 1980 act, it must do so in the magistrates’ court. The local council has a power of veto against such a change, which it must exercise reasonably. Local councils should scrutinise requests for consent to applications under section 116 and consider refusing consent if it would not be in the public or local interest.
Dealing with obstructions
It is a criminal offence under section 137 of the 1980 act to wilfully obstruct free passage along the highway. The highway authority (county or unitary council) has a legal duty under section 130 of the 1980 act to ‘assert and protect the rights of the public to the use and enjoyment’ of the highway and to prevent the stopping up or obstruction of the highway.
Often the local council will know their landowners and an informal word might sort a problem such as a broken stile, or barbed wire or crops over the path, without the need to escalate it to the highway authority. But where a local approach is not successful, you can use the law.
Any member of the public has the power to prosecute a landowner or occupier for the obstruction of a highway. The 1980 act also provides a procedure whereby a member of the public can require the highway authority to carry out its duties to remove certain obstructions of a public right of way. However, there is a longer standing and simpler procedure that local councils can use to deal with obstructions of the highway or highway waste. Section 130(6) of the 1980 act gives local councils the power to require the highway authority to take proceedings against the obstruction of the highway or roadside verge. This power may be used in respect of any highway, not just public rights of way. This is a valuable tool for local councils as the highway authority is obliged to act on such representations.
Maintenance
Most public rights of way are maintainable at the public expense, so the highway authority will be responsible (section 41 of the 1980 act). But local councils can make a difference here, especially at a time when authorities are facing cuts to their budgets.
Under section 43 of the 1980 act the local council may undertake maintenance of publicly-maintainable footpaths, bridleways, and restricted byways. This could include clearing undergrowth or repairing furniture, such as footbridges and steps. The highway authority may pay all or some of the costs.
The highway authority cannot prevent the local council exercising these powers (but may not contribute).
Alternatively, the local council may make an agency agreement with the highway authority about the work to be done by each body, and the sharing of the costs, so that the local council then acquires and exercises the functions of the highway authority. The local council may also help maintain signposts and waymarks with the agreement of the highway authority. Not all paths are publicly-maintainable (if they came into existence through long use since 1949, for example) so the highway authority will have no duty to repair. But under section 50 of the 1980 act the local council may maintain any privately-maintainable footpath or bridleway, whether or not any other person has a duty to maintain it.
Where a publicly-maintainable highway is out of repair, there is a remedy available to the public in general that the local council can use, under section 56 of the 1980 act, to require the highway authority, or other person with a duty to maintain, to put it into repair.
Unrecorded paths
The rule is ‘once a highway, always a highway’, unless legally stopped up. This was set to change with the introduction of a cut-off date (2026, later moved to 2031), after which the definitive map and statement would be closed to claims for paths based on historical evidence. Recently, the UK Government announced that it intends to repeal the cut-off date, and the Senedd is set to do so.
However, even with the repeal, it is still vitally important that all ways, for which there is evidence of highway status, should be claimed to ensure that they are protected.
Local councils can research old records to see if there are paths, which may have been omitted from the definitive map. Look for missing links – paths that stop at parish or community boundaries, or that stop short of recorded highways. If a path has been used by the public for 20 years without challenge or interruption, an application may be made to add it to the definitive map and statement. All unrecorded paths are at risk of being built over or abused, so any for which there is evidence of highway status should be claimed.
The Open Spaces Society is Britain’s oldest national conservation body, founded in 1865. It has 2,300 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 society has a wealth of information on its website at www.oss.org.uk
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Written by Helen Clayton, Case officer, The Open Spaces Society
As appeared in Clerks & Councils Direct, July 2025
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