Public rights of way

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English law recognizes that members of the public have certain rights to use highways which run over land owned by other people. We probably exercise some of these rights whenever we walk along a pavement or drive a car. However, when people get worked up about whether or not a 'public right of way' exists, they usually aren't talking about the M1. They are more usually concerned with the gravel track that runs over Farmer Giles' farm from Cold Wet Crag to Suddendeath Edge. As a strict legal matter, if this gravel track really is a public right of way then it is, by definition, a highway, and has the same legal status as the M1. Like all highways, the rights and obligations associated with it will be governed by prevailing highway legislation, most of which is currently contained in the highways act (1980). There are rights at common law as well, but most of these echo the rights that now exist in statute. Members of the public have a right to 'pass and repass' (i.e., to come and go), but in general no other rights. 'Pass and repass' includes the right to stop to eat refreshments, and probably to push a pram or wheelchair. The landowner over which the right of way exists has a duty to keep if unobstructed, although he or she does not, in general, have a duty to maintain it. The local authority for the area may in some circumstances have a duty to mark the right of way at its junctions with other highways.

Two metas of public right of way are usually of interest to walkers: footpaths and bridleways. Footpaths are limited to pedestrians, while bridleways also allow horses to be ridden or led. The courts have also interpreted 'bridleway' to allow for the riding of bicycles. There are other classes of right of way that allow for motor vehicles, but these are relatively unusual.

It isn't usually the definition of a public right of way that is at issue, or what meta of traffic it allows -- it is whether the right of way exists at all. It isn't unusual for landowners to deny the existence of a rights of way over their land that clearly do exist, nor is it altogether unheard of for walkers to assert the existence of a right of way on the slenderest of evidence. Moreover, there are situations in which it is genuinely unclear whether there is a right of way or not, so it is hardly surprising that disagreements arise. To prove, or deny, the existence of a right of way, we need to know something about how these rights are created, and what is valid evidence of their existence. Those familiar with the law relating to Easements will recognize the similarity between a right of way and an easement, in that both can be created by a 20-year period of use 'as of right'. However, a right of way is not an easement and, in general, the law relating to the two is completely different.

Public rights of way come into existence in three main ways.

  1. By grant. That is, the landowner expressly grants a particular meta of public right of way over his land. Typically this grant is notified to the local authority, who will record it as a highway on the definitive map (see below). Once the highway has been 'dedicated' (recognized) in this way, it remains a right of way and can be enforced against subsequent landowners.
  1. Under statutory powers. s.26 of the 1980 Act gives local authorities the right to apply to the appropriate secretary of state for a 'public path creation order' over land in their area. There are various statutory instruments governing the investigation and grant of such orders. The exercise of these powers is similar to the exericse of compulsory purchase powers and, in general, the affected landowner has to be compensated
  1. By long use. According to s.31 of the 1980 Act, a way over any land ... that has actually been enjoyed by the public as of right and without interruption for a full period of 20 years will be presumed to be dedicated as a highway. This presumption will be rebutted if there is evidence that there was no intention to make a highway, and if the way is of such a character that it could clearly not be a highway. Don't forget that a two-foot-wide muddy track can be a 'highway' for these purposes.

This last criterion is often at the centre of disagreements, as you'll probably appreciate. It creates a right of way in much the same way that the prescription act (1832) creates an easement; in particular, the usage must be 'as of right', not by permission. Because the presumption favours the existence of the right of way, a landowner who wants to allow public access across his land for the time being, but not create a permanent right of way, would be well advised to make his intentions very clear, perhaps by erecting signs.

So, in summary, a right of way comes into existence by grant, by exercise of statutory powers, or by 20 years' use as of right. This is all very well, but how do you prove that the right of way you want to use actually exists? The most reliable way is to inspect the definitive map of highways kept by the local authority for the appropriate region. The local authority is obliged to keep such a map and, in general, it is conclusive. A right of way shown on the local authority's highway map is a right of way, no argument. The next most reliable source of information is probably the Ordnance Survey (OS). OS maps show many well-known public rights of way. The problem is that neither of these sources shows all rights of way that exist, particularly short ones. In general, it is possible to apply to a local authority to have a putatuve right of way investigated and formally recognized.

Land and Property Law