Walking across open countryside is something that many people enjoy and the availability of footpaths, bridlepaths and open byways allows the public access to areas that would otherwise be retained for the benefit of landowners alone. Landowners have a duty of care to members of the public on their land which they need to be fully aware of. Rights of way can influence how farming operations are managed and leave landowners liable for the safety of the public, and these liabilities need to be addressed.
But how do public rights of way come about?
There are a variety of different ways that a right of way can be dedicated, but generally they will either be by the landowner, presumed or implied to have been dedicated through use as a matter of law, or by way of an order made by the local authority. All of these rights of way are documented on the local authorities’ definitive map which can be assessed online on their website.
The 21st century has brought with it advanced technology and with that, mapping ‘apps’. When looking for a place to walk, these apps are very useful and show an overview of routes in the chosen area. However, we are aware of a mapping ‘app’ which allows members of the public to map their own routes which then become indistinguishable from public rights of way. These maps can then be shared with other users and before you know it, it looks as though there is a right of way across the land. This leaves Landowners with little control of who is on their land, not knowing where they might be and above all, liable for their safety. As you can image, during busy harvest periods and with the pending shooting season just around the corner, this really could have a detrimental effect on Landowners.
What can the Landowner do to stop new ones?
As a Landowner, it is important to know your obligations but also the processes in place to help protect your land from further rights of way being dedicated. In the first instance, if land is being used without permission the landowner would be advised to try and deter the public by erecting signage or locking gates where possible. We would also advise that landowners keep an eye on the mapping apps and make sure that unwanted footpaths are not being logged.
Under “Section 31 of the Highways Act 1980”, a right of way can be deemed to have been dedicated over land if it can be shown that there has been 20 years’ uninterrupted right of use by the public. There are several conditions which need to be adhered to in order for the dedication to take effect. In order to protect the land, a Landowner can submit a declaration under section 31 (6) of the Highways Act 1980 to effectively stop any further rights of way being dedicated on it; this protects the land for 20 years and must be renewed thereafter.
Given how quickly things can move these days, we would advise that Landowners ensure their land is protected against further public rights of way being dedicated across it and submit a declaration under section 31 (6) to the highways team at the local council.
A public right of way can be moved to another route for various reasons; in the interest of the public, the landowner, or for development to take place. However, the applicant must be able to show that the new route will not be substantially less convenient for the public. When considering the new route, the applicant should think about the difference in the length, any field boundaries that need to be negotiated and what kind of access would be required.
Landowners might be interested in applying for a public path diversion order (PPO) if they feel a right of way is having a negative impact on farming practices. An example of this might be to apply to have a path redirected around the edge of a field instead of through the middle. There is no guarantee that they will be successful in redirecting the path, therefore applications will need factorial evidence to support their reasoning for doing so.
A simple diversion can take up to 6 months to be processed. Once the PPO has been made to the council, it will be advertised on site, in a local newspaper and is subject to a 28-day period during which objections or representations may be received. Third party interests and objections from the public can delay the Diversion Order process and the council may decide to abandon a PPO. It is only after determination and confirmation that the map is changed.
Each council holds a register of these applications and requests a fee for the above application.
How else can a Landowner protect themselves?
For public rights of way, signage should be erected to highlight any dangers that may affect members of the public however these should not deter access on to the land. Landowners should also ensure that water bodies and other dangerous features are securely fenced off as it is not uncommon for people to wander from the track. Under the Occupiers Liability Act 1984, Landowners have a duty of care even if it is considered members of the public are trespassing.
If you have any queries or would like to discuss any of the above, please contact Hennie Hargreaves in our Rural team.