Rights of Way: Understanding Public Access and Landowner Responsibilities

Rights of Way, their preservation and the conflicts that this can bring with landowners are a frequent and complex area of civil dispute. It also is a major consideration in the searches undertaken when buying a property or land to ensure you are aware of your responsibilities.

Will Stisted, Managing Partner at our Chichester Office explains what members of the public can and can not do on rights of way and how landowners must maintain them appropriately.

What is a Right of Way?

A right of way is a path that anyone has the legal right to use on foot, and sometimes using other modes of transport. They are split into a number of categories:

  • Public footpaths - open only to walkers
  • Public bridleways - open to walkers, horse-riders and pedal cyclists
  • Restricted byways - open to walkers, horse-riders, and drivers/riders of non-motorised vehicles (such as horse-drawn carriages and pedal cycles)
  • Byways Open to All Traffic (BOATs) - open to all classes of traffic including motor vehicles, though they may not be maintained to the same standard as ordinary roads

Legally, a public right of way is part of the Queen's highway and subject to the same protection in law as all other highways, including trunk roads. Public rights of Way are permissible routes usually marked on a map that cross private land.

What is the Law?

In England and Wales, the law relating to access to land is governed by the Countryside and Rights of Way Act 2000 (the “Act”)

In England and Wales, the public have the right to access what is called 'access land' – which is mainly registered common land, mountains, downland, heathland and moorland and other specifically shown (on the relevant maps) 'open country'. In theory, therefore, the land which is legally usable by the public in England and Wales is a rather small area of the total.

You can use access land for walking, running, watching wildlife and climbing. 

There are certain activities you cannot usually do on open access land, including:

  • horse-riding
  • cycling
  • camping
  • taking animals other than dogs on to the land
  • driving a vehicle (except mobility scooters and powered wheelchairs)
  • water sports

But you can use access land for horse-riding and cycling if: 

  • the landowner allows it
  • public bridleways or byways cross the land – horse riders and cyclists can ride along these
  • there are local traditions, or rights, of access

On access land some areas remain private. This is known as “excepted land’. You do not have the right to access these areas, even if they appear on a map of open access land.

Excepted land includes:

  • houses, buildings and the land they’re on (such as courtyards)
  • land used to grow crops
  • building sites and land that’s being developed
  • parks and gardens
  • golf courses and racecourses
  • railways and tramways
  • working quarries

In all these cases, public rights of way must be used to cross excepted land.

What are the landowner’s responsibilities?

As part of the searches before you buy a property, your solicitor should advise you of the presence of a public right of way and its relationship to your land or boundary.

As the owner or occupier of land with a public right of way across it, you must keep the route visible and not obstruct or endanger users.

As the owner or occupier of land with a public right of way across it, you must:

  • avoid putting obstructions on or across the route, such as permanent or temporary fences, walls, hedgerows, padlocked gates or barbed wire
  • make sure vegetation does not encroach onto the route from the sides or above, bearing in mind the different clearances needed for users of different types of route, for example by horse riders
  • not cultivate a cross-field footpath or bridleway.

Obstructing a public right of way is a criminal offence. The highway authority has the right to demand you remove any obstruction you cause. If you don’t, the highway authority can remove the obstruction and recover the cost from you.

If official waymarking (usually signs with arrows on them) leaves it unclear where a public right of way goes, you may add informal waymarks to remedy this so long as these are not misleading. The route of a reinstated cross-field footpath or bridleway must be indicated, together with signs to warn users of any dangers that are not obvious, such as slurry lagoons.

Where a stile or gate on a public right of way is your responsibility, you must maintain it so it is safe and reasonably easy to use. You can claim some of the cost of this from the Highway Authority. If a stile or gate needs replacing, always consider whether a gap as opposed to a gate is better, as 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.

When you can close Access Land

A landowner in England or Wales has the right to close his access land for up to 28 days per year, or for other suitable periods (including permanently) of safety, land management, to protect nature or ancient monuments, on grounds of national security or for up to three months in an emergency.

One aspect of the law which provides relief for landowners is s. 67 of the Act, which denies the right of access to mechanically propelled vehicles beyond 15 yards of a road and allows access only for parking – a piece of legislation decried by 'off-roaders', scramblers and quad bikers, but by few others.

More recent legislation provides for the establishment of ‘restricted byways’, which consist of every road shown on the definitive map as a road used as a public path. It will be an offence to drive a mechanically-propelled vehicle (other than an electrically-assisted pedal cycle) on such roads. This change prohibits driving over approximately 5,000 miles of roadway.

The exception to this rule (in England) is that vehicular access is allowed for a person with an interest in the land or who is a visitor to it if the road was formerly used by them to obtain access to the land. In addition, public rights of way for motor vehicles are no longer able to be created unless expressly provided for in legislation or by use of statutory powers.

Making Changes

Highway authorities have certain powers to make changes to the public right of way networks in their area.

You can agree to create a new public right of way or apply to your local authority to make an order extinguishing, diverting, upgrading or downgrading a footpath, bridleway or restricted byway in some circumstances.

You can also make changes to the legal status of public rights of way. This is a complex area and it is best to obtain advice from a specialist solicitor.

Get Expert Advice

Anderson Rowntree Solicitors have many years experience in handling complex property and estate transactions where Rights of Way are involved. We also have handled many cases, usually through dispute resolution or litigation around boundary disputes, access and potential trespass.

For more information, contact any of our West Sussex offices

Chichester:  Tel: 01243 787899, Email: chichester@ar-law.co.uk

Petworth: Tel: 01798 342391, Email: petworth@ar-law.co.uk

Storrington: Tel: 01903 745666, Email: storrington@ar-law.co.uk