What is a Public Right of Way (‘PROW’)?
A PROW is a path or route over which the public has a legally protected right to use regardless of who owns the land that it crosses.
Types of Public Right of Way
There are several types of PROW, the most common are:
- Public footpaths – for use by pedestrians;
- Public bridleway – for use by pedestrians, horse riders and cyclists; and
- Restricted byway – for use by all of the above and non-motorised vehicles.
PROWS are recorded by local authorities on a Definitive Map which shows the location and status of each PROW. Whilst the Definitive Map is evidence that a PROW existed, just because a PROW isn’t on the map is not evidence that it doesn’t exist.
For landowners, the network of public rights of way can be both a blessing and a curse. On the one hand, anything that encourages people to appreciate the countryside and our rural heritage is to be applauded but on the other, PROWs can be both inconvenient particularly where they traverse cultivated land and high maintenance.
How are Public Rights of Way created?
The majority of PROWs, chiefly footpaths and bridleways, are historic and are recorded on a Definitive Map held by the relevant local authority. However, new PROWs can be created in a number of ways:
- by agreement with the local authority pursuant to Section 25 of the Highways Act 1980;
- by order of a public authority pursuant to Section 26 of the Highways Act 1980. This can be done without landowner consent if the order is in the public interest; or
- by a third-party application based upon a presumed dedication pursuant to Section 31 of the Highways Act 1980. Presumed dedication arises when a path has been used for an uninterrupted period of at least 20 years without secrecy or force and without the permission of the landowner.
What are a landowner’s responsibilities re a PROW?
If you own or occupy land with a PROW over it, you are required to keep it clear from obstructions. This includes, not blocking the route with any permanent or temporary fences, walls or hedgerows or other obstacles. You must also ensure vegetation does not encroach onto the path. It is a criminal offence to wilfully obstruct a PROW. If found guilty, it can lead to being imprisoned for a term not exceeding 51 weeks or a fine, or both.
How do I prevent new Public Rights of Way being created?
Landowners can take pre-emptive steps to reduce the risk of new rights being established by presumed dedication. Such steps may include:
- Erecting notices clearly indicating the land is private and there is no public access to deny the ‘as of right’ argument.
- Erect physical barriers such as a fence.
- Challenge any unauthorised use of the land.
Fencing is an expensive and often impractical way to prevent trespass, and signage can be rendered useless if regularly removed by proactive members of the public and you can only challenge use that is seen. The best protection available is that afforded by Section 31(6) of the Highways Act 1980, this sets a legal safeguard preventing public use turning into a PROW.
The landowner will deposit with the appropriate council a map of the land and a statement indicating what ways, if any, over the land they acknowledge have been dedicated as PROWs. It will further declare that no additional rights of way other than those identified have been dedicated. The declaration would need to be renewed every 20 years to protect the land.
Changes made by Section 13 of the Growth and Infrastructure Act 2013 require the declaration and map to be submitted in a prescribed form and allows for the appropriate council to determine the fee payable for the application. It is important to note that a declaration made does not act retrospectively. This means that if it is shown that the path has been used for a period of 20 year prior to the declaration being made then it can still constitute a PROW.
The Council has a duty to keep a register of maps, statements and declarations lodged under Section 31(6) and to publicise applications under these provisions.
Can a PROW be amended or removed?
In short yes, a PROW can either be stopped up meaning the route or part of it is extinguished so there is no longer a public right to use it or, it can be diverted meaning the route is amended so the old alignment is stopped up and moved to a different alignment. There may be many different reasons why a PROW needs to be stopped up or diverted for example:
- It interferes with proposed development – the PROW might block or interfere with planned development projects and adjusting its route or extinguishing it will enable the development to proceed.
- A path is no longer utilised – a path that is rarely or never used may be a candidate for extinguishment.
- The current route is obstructed – if the PROW is blocked or impassable due to natural or manmade obstructions an application could be made to divert or extinguish it.
- Restricting use of land – a PROW may hinder or restrict the use of land such as preventing agricultural operations. Therefore, a more suitable location may need to be considered.
It should be noted that stopping up of a PROW does not affect private rights and you should check these carefully. We look at the different scenarios below in more detail.
Stopping up or diversion of a PROW to enable development under Section 257 of the Town and Country Planning Act 1990
If the PROW is interfering with development that has been granted planning permission, Section 257 of the Town and Country Planning Act 1990 can be used to stop up or divert it to enable development to take place. This section can also be used if a planning application has been submitted. If however the development concerned has been substantially completed, the ability to apply under Section 257 is lost. That doesn’t mean the development cannot be started at all. There are alternative orders that may be sought under Section 118 or 119 of the Highway Act 1980 (we explore those in more detail below).
Just because a PROW interferes with development isn’t a guarantee that the stopping up or diversion order will be granted. The power is a discretionary one and the authority making the order must be satisfied that is necessary to enable the development to be carried out in line with a granted planning permission.
Public path diversion orders under Section 119 of the Highways Act 1980
Under Section 119 of the Highways Act 1980 (the ‘Act’) a landowner can apply to divert a public path, provided certain criteria are met. Generally, the authority will only grant the order if the diverted route is not substantially less convenient to the public and where the point of termination of the path or way is not altered other than to another point on the same highway.
There is a set procedure which must be followed to apply for a public path diversion order, this includes obtaining an application form from the relevant authority, submitting the completed application alongside a map setting out the current and proposed paths and written agreement of any persons who own or are tenants of the land concerned. The applicant should consider the potential costs before applying, these could include the costs involved in diverting the public path route, the authority’s costs for making the order and any potential compensation which may be due to any owner or tenant for the loss caused by the diversion.
Public path extinguishment orders under Section 118 of the Highways Act 1980
Where a public path is no longer in use and is not required the landowner can apply to have a public path extinguished under Section 118 of the Highways Act 1980. The landowner should complete the relevant application form which should be obtained from the order-making authority and submitted along with a map showing the existing public path.
The authority will only grant an order where they consider it expedient considering how much the path is utilised by the public and the effect the order may have on any land served by the path.
When do the above orders come into effect?
Once an order under the above powers is made, that is not the end of the process, the order must be published by way of an advert in the local paper, notices must be displayed at each end of the footpath in question and must be served on the relevant parties. There then follows a period within which persons can object to the making of the relevant order. If there are no objections the order can be confirmed by the authority. However, if objections are raised and are not overcome, the confirmation may shift to the Secretary of State. The Secretary of State will then appoint an inspector who will deal with the matter by holding an inquiry, hearing or deal with the matter via written representations.
An order will not be effective until it has been confirmed. Once confirmed the order is to then be published in similar terms to publicity requirements of the made order. Further, the Definitive Map must be amended to reflect the changes.
Whatever section is utilised to amend or remove a PROW, it can be a long process. If you consider you need to make changes for example to enable your development to proceed, you should look to obtain advice and make an application early. in our experience there are substantial delay in Councils processing these applications or applicants mistakenly leaving the application until the development is complete.
If you have any queries about Public Rights of Way over land or need any assistance in submitting any of the above applications, please do get in touch with our planning team.
