Public rights of way

It is an offence for the occupier of land crossed by a Public Right of Way to allow a bull over 10 months old on its own and/or any bull of a recognised dairy breed (even if accompanied by cows/heifers) to be at large therein.

Bulls which are less than 10 months old or of a recognised beef breed and at large with cows/ heifers are exceptions to this rule.

If any animal, which is known to be dangerous by the keeper of the animal, causes injury to a member of the public using a Public Right of Way an offence may be committed and the occupier could be sued by the injured party. Wildlife and Countryside Act 1981 section 59.

We sometimes encounter unfenced dangers on adjoining land which present hazards to path users. We have a duty to protect path users from such dangers and will in the first instance discuss with the owner of the adjacent land to urge them to remove or adequately fence the danger. We can require the owner of the dangerous land to carry out the necessary works by service of notice. If the owner does not comply with the notice, we may carry out the work and recover the costs from the owner. Highways Act 1980 Section 165.

Dogs are allowed on Public Rights of Way, but they should always be kept under close control at all times. There is no requirement in law for a dog to be on a lead. A path user who allows a dog to wander off the right of way becomes a trespasser and owners and occupiers have a right to ask them to leave the land. If a dog is likely to wander off the line of the path or to worry livestock, the owners are advised to keep the dog on a lead.

Barbed wire across a Public Right of Way

A barbed wire fence or exposed barbed wire erected across a public right of way without an adequate means of crossing is an obstruction offence. We firstly ask the owner of the fence to remove it immediately or, if it is necessary for agriculture, to provide an adequate means of crossing it on the line of the path. The latter requires our authorisation it would constitute a new structure (see stiles and gates).

If the owner fails to agree, we remove the barbed wire where it affects the path without further notice. If the owner continues to commit further offences of this nature we will consider prosecution for obstruction under the powers of the Highways Act 1980 section 137 and 149.

Barbed wire alongside a Public Right of Way

Where a barbed wire fence is situated alongside a Public Right of Way it may be a danger and a nuisance to members of the public. If we feel that the barbed wire does represent a danger to the public, we will ask the owner to make the fence safe. If the owner refuses or fails to do so, we will serve legal notice requiring the owner to remove the source of danger within a specified time under the powers of the Highways Act 1980 section 164

Electric fences across a Public Right of Way

An electric fence erected across a public right of way without an adequate means of crossing is an obstruction offence. We firstly ask the owner of the fence to remove it immediately or, if it is necessary for agriculture, to provide an adequate means of crossing it on the line of the path. The latter requires our authorisation it would constitute a new structure (see stiles and gates).

If the owner fails to agree, we remove the electric fence where it affects the path without further notice. If the owner continues to commit further offences of this nature we will consider prosecution for obstruction under the powers of the Highways Act 1980 section 137 and 137Z and 149.

Electric fences alongside a Public Right of Way

Where an electric fence is situated alongside a Public Right of Way it may be a danger and a nuisance to members of the public. If we feel that the electric fence e does represent a danger to the public, we will ask the owner to make the fence safe. If the owner refuses or fails to do so, we will serve legal notice requiring the owner to remove the source of danger within a specified time under the powers of the Highways Act 1980 section 165.

Failure to comply with the notice will result in us removing the fence and recovering costs from the owner.

Encroachment is an unlawful obstruction of the highway. When an encroachment has occurred or alleged to have occurred we have a duty to investigate and the following action will be taken.

Consideration will be given to whether the encroachment has actually occurred and is materially affecting the way or may do so in the future. This may require considerable research including historical research to establish the legitimate width of the highway, (see Width of Public Rights of Way). If it is demonstrated to us that encroachment has occurred but it is not materially affecting the path or the rights of users the Borough Council may regard it as de minimis "the law is not concerned with trifles". In these circumstances, we will inform the person responsible that their actions are unlawful, and any additional encroachment will result in enforcement action to remove all the encroachment.

If the encroachment has been found to our satisfaction to be materially affecting the right of way and the rights of users, the following approach will be taken to have it removed.

We will bring this matter to the attention of the person responsible, and they will be asked to remove the encroachment within a reasonable timescale. If this fails to secure the removal of the encroachment, we will commence enforcement action in respect of the obstruction.

In most circumstances our responsibilities do not extend to the maintenance of hedges and trees at the side of public rights of way. Where a hedge overhangs or obstructs a Public Right of Way, we have a right to remove so much of the overgrowth to prevent obstruction to pedestrians and equestrians. We have the power to require the owners of overhanging hedges to require them to lop or cut back the hedge within a period of 14 days using the powers of the Highways Act 1980 section 154.

If a byway open to all traffic or restricted byway is being damaged by the exclusion of light and air due to adjacent hedges or trees, we have the power to seek an order at a Magistrates Court to require the owner to cut back sufficient of it to prevent such damage. However, before employing this power, we will discuss the matter with adjacent landowners and request that the hedges or trees be cut back or agree to carry out the work in conjunction with the owner as part of a larger project. Highways Act section 136

If a branch of a tree has fallen across a Public Right of Way such that the way is obstructed, we will contact the owner of the tree and request that the branch is removed within a reasonable timescale. If the owner fails to comply with this request we will serve notice on the owner of its intention to remove the branch and recover from the person the costs incurred under the powers of the Highways Act 1980 section 150 (4) (c).

Landowners

Owners and occupiers of land crossed by Public Rights of Way can be liable for injuries caused to path users by the negligence of the owner or occupier. For example, if a stile were to collapse under a walker, or if a path user were to be injured by an electric fence placed across a path, then the injured party may pursue a claim against the occupier of the land. Occupiers Liability Act 1957.

The Council

As Highway Authority, we are responsible for the surface of Public Rights of Way. In certain circumstances, we will be liable for injury caused to persons using a Public Right of Way if the injury is due to a negligent act with regard to the surface of the path.

Misleading and unlawful signs can deter people from lawfully exercising their right to use paths and we have a duty to prevent such occurrences. Signs erected on a Public Right of Way can be removed by us. Signs erected affecting a Public Right of Way but on adjacent land can be dealt with on application to the Magistrates Court. The Magistrates may impose a fine or order the offender to remove the sign on pain of a continuing fine for each day it remains. Highways Act 1980 section 132. National Parks and Access to the Countryside Act 1949 section 57.

Obstructions and encroachments which can be readily removed

We have a duty at statute law to remove all obstructions and encroachments to Public Rights of Way. (The Highways Act 1980).

We have a common law right to remove anything that it believes constitutes an obstruction, danger or encroachment without consultation with any other party.

We would this address this matter firstly by consultation and dialogue, requesting the offender to remove the obstruction. Depending on circumstances, offenders are normally given 7 days to comply. This informal notice will be confirmed in writing. If after that period the offender has failed to comply, formal legal notice is served requiring the offender to remove the obstruction within a specified time. Upon expiry of that time, we will remove the obstruction and recover costs from the offender. We have a protocol of considering prosecution for obstruction for any subsequent offence as well as taking the direct action outlined above using the powers under the Highways Act 1980 S143.

Obstructions which are longstanding

Obstructions of Public Rights of Way are regularly encountered. The obstructions have often occurred through the ignorance of the landowner and/or the failure of the planning process. Indeed, many such obstructions are historical and have been inherited by the current owners. In these circumstances, we would:

• If the obstruction is minor, we would ask the owner to removed it. If the owner fails to remove the obstruction within the agreed timescale, we could take enforcement action using powers available in Highways Act 1980 s143.
• The costs of the enforcement action will usually be recouped from the offender. If the offence recurs prosecution of the offender will also be considered.
• We will only consider a request to divert the path following the removal of the obstruction. Where the obstruction is substantial and it would be costly and impractical to remove it, the owner will be requested to apply for the diversion of the path rather, than remove the obstruction.
• We will expect the owner to make an alternative route available whilst the diversion process is completed.
• If the owner fails to acknowledge the problem or does not co-operate with the us to remedy it either by diverting the path or removing the obstruction, then this failure should be given considerable weight.
• In these circumstances consideration should be given to prosecution and seeking a magistrate’s order to remove the obstruction.

If an application to divert the path fails, then we would expect the original route to be made available by the owner. If the owner fails to do this, then we would consider prosecution and seek a magistrate’s order to remove the obstruction.

Obstructions which are more recent

From time-to-time obstructions occur during or as a consequence of development. Very often the offender has received advice from us but has chosen to ignore it. In these circumstances greater weight should be given to the behaviour of the offender before considering any proposal to divert the path.

Obstructions which can be readily removed will be dealt with by taking direct and immediate enforcement action using powers available in Highways Act 1980 s143 and the obstruction removed. The costs of the enforcement action will usually be recouped from the offender and consideration should be given to prosecution.

Where the obstruction is more substantial, and it is costly and less practical to remove it, then consideration should be given to prosecution and seeking a magistrate’s order to remove the obstruction using the powers under the Highways Act 1980 section 137 and 137A.

Ploughing

In some circumstances occupiers of land are entitled to plough Public Rights of Way if it is not reasonably convenient to avoid them. This only applies to cross- field footpaths and bridleways. All field edge public rights of way and cross-field Roads used as Public Paths (RUPPs), Restricted Byways and 'Byways Open to all Traffic' (boats) should never be ploughed.

Where a cross-field footpath or bridleway is ploughed it must be reinstated within the "statutory time limit" otherwise a criminal offence is committed. Reinstatement means indicating it on the ground and making the surface reasonably convenient for public use to not less than the statutory minimum width. In respect of footpaths the minimum width is 1m and 2m for bridleways. The "statutory time limit" is 14 days for the first disturbance of the cropping cycle and 24 hours for any further disturbance such as harrowing and drilling using the powers under the Rights of Way Act 1990 section 134.

Crops

Where a crop (other than grass) has been planted or sown on land crossed by a Public Right of Way the occupier has a duty to ensure that the line on the ground of the Public Right of Way is indicated to not less than the minimum width (1m for footpaths and 2m for bridleways). Additionally, the occupier has a duty to prevent the crop from encroaching within that width throughout the growing season. Failure to fulfil this duty is a criminal offence using the powers under the Rights of Way Act 1990 section 137A.

Enforcement of ploughing and cropping protocol

Interference of Public Rights of Way by ploughing and cropping is a major problem and we adopted the following protocol to deal with it.

For a first offence, we will explain the law to the offender and an informal interview will be carried out which will be recorded in writing. At the end of the interview the offender will be issued with a Copy of the interview form giving them 7 days to re-instate the Path.

Upon expiry of that period if the path has not been reinstated to a satisfactory standard, we will serve formal legal notice upon the offender requiring them to reinstate the path within a further 7 days. If the path is still not reinstated satisfactorily, we will carry out the necessary work with contractors and recover costs from the offender.

On occasions where an occupier has responded to the first informal interview request but repeats the offence in subsequent years, we will immediately serve formal legal notice requiring the reinstatement of the path within 7 days as set out above.

On occasions where an occupier re-offends after service of formal legal notice, we will again serve legal notice and additionally will consider prosecuting the offender. All recipients of enforcement notices in any one-year are sent letters setting out the law and reminding them of their obligations before the next cropping season commences

Where a rope has been placed across a Public Right of Way, the rope will be removed by officers and the owner contacted. If removal of the rope will cause livestock to stray, rather than remove the rope immediately, the landowner will be contacted and asked to remove the rope. Failure to comply with the request to remove the rope or if the offence reoccurs following the removal of the rope and contact by officers, we will consider prosecution of the offender. We will also remove the rope if encountered by officers on subsequent occasions using the powers under the Highways Act 1980 section 162.

It is the duty of the landowner to ensure that any stiles and gates are kept in a good state of repair. Our duty only extends to ensuring that the landowner complies with this obligation and to provide a grant of a minimum of 25% towards repairing or replacing such structures.

This discretionary grant will be withdrawn if landowners fail to co-operate or are obstructing other rights of way using the powers under the Highways Act 1980 section 146.

If an occupier of land wishes to install additional stiles or gates on footpaths or bridleways, they must apply in writing to us for approval to do so. To erect stiles or gates without this authority is an unlawful obstruction and is a criminal offence (see obstructions). The only circumstance for which we can provide authorisation for the erection of new stiles/ gates is that the structures are required to prevent the ingress or egress of animals onto agricultural land using the powers under the Highways Act 1980 section 147.

Stiles and gates cannot be erected for security or other purposes and may be regarded as obstructions to the highway. Stiles and new additional gates cannot be erected on restricted byways and byways open to all traffic.

We, as the highway authority, own the surface of all Public Rights of Way, the landowners’ interest only extends to the sub soil, It is an offence to interfere with the surface of a public right of way to the detriment of users. We will take enforcement action to ensure the surface of Public Rights of Way unlawfully disturbed are reinstated.

Occupiers of land can disturb the surface of a right of way by special licence if they first apply to us to do so and by statutory licence in respects of ploughing.

There is no general rule applying to the width of Public Rights of Way and the width is a matter of fact to be determined on each occasion based upon the following:

The width may be set out in an historical document, or it may be the width of the way between boundaries such as hedges or fences. Alternatively, the width may be that which the public have customarily enjoyed. In the absence of the foregoing, we will require a reasonable width to be made available which would be sufficient for two users to pass. In the case of a footpath, this can be regarded as 2 metres, in the case of a bridleway 3 metres and in the case of a byway 5 metres.

An encroachment into the width of a Public Right of Way is an obstruction and a criminal offence and the we will deal with encroachments according to protocol. Statutory default minimum widths apply to all Public Rights of Way but only in relation to ploughing and reinstatement following ploughing. These are: