Many farmers come across the issue of protecting public rights of way, and the need to balance this protection with their ability to run a profitable business.
Public rights of way across farmland are nothing new. It’s hardly uncommon in the British countryside to see hikers making their way through fields.
But where there are public rights of way, there are also responsibilities from landowners, who have a duty to maintain these paths under the law.
What responsibilities do landowners have?
In England and Wales, the responsibility for maintaining rights of way are usually split between the landowner and the highways authority.
Local authorities normally keep what is called a ‘definitive’ map of an area showing its rights of way as footpaths, bridleways, restricted byways, and byways open to all traffic (BOATs).
In order to keep these paths available to the public, landowners must avoid obstructing the route, such as with a hedge or gates; and make sure that the path is kept clear of vegetation.
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If a landowner does have a public right of way across their property, obstructing it is a criminal offence, with the highway authority entitled to demand the ‘obstacle’ be removed or remove it themselves – recovering the cost from the owner.
There are other rights and responsibilities too, such as: some livestock are banned including certain bulls over the age of ten months; stiles or gates on the public right of way must be kept maintained and safe to use, and landowners can signpost the route.
How does a path become a public right of way?
Public rights of way can be created, for instance by a legal order or by the landowner, or dedicated. Dedication can be carried out by the landowner themselves, known as express dedication (which is rare), or by presumed dedication.
This is the most common method rights of way are created – if a path has been used for long enough it effectively becomes a right of way.
Under the Highways Act 1980, the law states that if a route has been used by the public for 20 years or more without interruption, it can become a right of way.
Sometimes this happens when land changes hands and the new owner begins to question why there is a route over their land, raising the need for it to be dedicated.
What can a farmer to do protect their land?
While a public right of way cannot be blocked without permission, they can be moved or temporarily diverted if there is good enough reason.
Other actions can be taken if the land does not yet have a right of way.
Although 20 years’ uninterrupted use can establish a presumption of dedication to the public, this can be contradicted by evidence showing this was not the intention of the landowner at the time.
This should be evidence of an interruption of the public’s use, but such an interruption must be shown to have been both effective in preventing public use and clearly known to the public using the way.
Alternatively, notices clearly displayed on the way, indicating that it is private, or depositing plans with the local authority, will provide sufficient evidence of an intention not to dedicate.
Written declarations from people who can give evidence that a way was private and that no public right existed during the relevant period can also be of importance.
This can be supported with sensible precautions such as locking a gate across the area, putting up signs and making it clear to people crossing the land that they are not on a public right of way.