Posted On / 13.01.2020

Public Right of Ways

If you are a landowner /occupier of land with a public right of way crossing it, you must be fully aware of your duty of care to the general public.  It may be difficult to establish what duty of care one person owes to another and will often depend on the individual case.   With that in mind, it is advisable to make sure that you have public liability insurance in place in order to provide protection should an incident occur on your landholding. 

It is important that both you, as landowner / occupier, and the general public are aware of where rights of way and permissive paths exist and to show a mutual respect to one another when using these paths. Make sure that you are aware of what type of path(s) and rights exist over your landholding such as footpaths, bridleways, restricted byways, byways or permissive paths.

Each individual type of path has its own requirements.  For example, a footpath crossing a field must be a minimum of 1m in width whereas a bridleway which is routed around a field edge / headland must be a minimum of 1.5m wide.

The Highway Authority or your local Council has a duty to assert and protect the rights of the public to use and enjoy the Public Rights of Way Network and make sure the requirements of legislation are met by you and the general public.

Public rights

Members of the general public do not have automatic and unfettered rights to walk over agricultural and other private landholdings. They do, however, have rights of access to certain areas of land under the Countryside and Rights of Way Act 2000. This right is commonly known as the ‘right to roam’ or ‘freedom to roam’.  There is a right to roam over certain areas of land.  If your landholding is shown on the access maps maintained by  Natural England as ‘open country’, for example moors, heath and downs, registered common land, or dedicated land then the public have unfettered rights to walk over that land. 

Landowner / occupiers responsibilities

It is an offence under the Highways Act 1980 to obstruct or encroach upon public rights of way.  Rights of way must be kept free from obstruction and encroachment. This includes barbed wire, locked gates and machinery. Temporary electric fencing should not be placed across a path nor close enough at the side of a path so as to be dangerous to people or animals using the path. An electric fence across a path is an obstruction, however in some cases an insulated handle acting as a safe crossing point and adequate warning notices may be acceptable.

Stiles and gates must be maintained in a safe condition and to a standard of repair required to prevent unreasonable interference with the path users. If you need to replace a stile / gate it is worth checking with the Highway Authority as you may be able to make a claim for the cost of any replacement work. Some authorities provide materials, or others may carry out the work themselves.

Where a stile needs replacing, always consider with the Highway Authority whether to do this with a gate or preferably a gap, so that it will be less of an impediment to people with mobility problems.  You must seek the local Highway Authority’s permission before installing any new structure on a public right of way. Unauthorised structures are obstructions and may be removed by the Highway Authority at the landowner’s expense.

If you add new ditches or widen existing ones (having secured any necessary permissions, including from the Highway Authority) you must provide adequate bridges for public rights of way users.

Cultivation and Spraying

It is important for landowners /occupiers to comply with the law relating to reinstating paths after ploughing, and not allow any crop (other than grass) to grow on a Right of Way.  A landowner / occupier must not cultivate public rights of ways or bridleways that follow a field edge. If for whatever reason a landowner / occupiers cultivates a public right of way or bridleway which crosses a field, it must remain apparent on the ground and is not obstructed by crops.  It must be restored to at least the minimum width within 14 days of first being cultivated for that crop; or 24 hours of any subsequent cultivation, unless a longer period has been agreed in advance in writing by the Highway Authority.

If you have to spray land which is crossed by a public right of way, use pesticides approved for such use and follow the product instructions. Where a public right of way crosses or runs alongside a field, you can provide an informal alternative route that the public can use for this period if you wish, but this does not close the public right of way. If the public are still using the public right of way, despite warning notices, you must stop spraying temporarily.

Livestock on land crossed by a public right of way

Bulls may not be kept in a field crossed by a right of way, unless the bull is less than 10 months of age, or is of a recognised beef breed and accompanied by cows or heifers.  It is important that warning notices relating to a bull are displayed only when it is actually present in a field. 

Horses may be kept loose in fields crossed by public rights of way, as long as they are not known to be dangerous.

It is an offence under that Wildlife and Countryside Act 1981 and the Animals Act 1971, to keep any animal that is known to be aggressive or dangerous in a field crossed by a Right of Way. An individual injured by any animal whilst using a Public Right of Way can sue the owner for personal injury.

Misleading Signs 

Rights of Way must be clearly identifiable.  If is an offence under section 132A of the Highways Act 1980 to deliberately mis-informs a path user to the effect of discouraging use of a public right of way is an offence e.g. Leaving a ‘Bull in Field’ sign up if the bull has been removed.

Overhanging Vegetation 

It may be worth noting that trees and hedges that grow alongside a right of way are the responsibility of the landowner / occupier under section 154 of the Highways Act 1980.  Where a hedge, tree or shrub overhangs any public path so as to endanger or obstruct the passage of pedestrians or horse riders, your local Council may request its removal within 14 days.

Cross Compliance requirements

Finally, don’t forget to see GAEC (Good Agricultural and Environmental Conditions) 7b: Public Rights of Way in the guide to cross compliance in England 2020 for the requirements which must be meet.  Failure to do so may result in your scheme payments being reduced.  

For more information please contact Tracy Neal  of the Agriculture and Rural Property Team on 01935 846076 or tracy.neal@battens.co.uk 

More Agriculture and Rural Property articles here.