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Public rights of way and open access land
Public rights of way and open access land are longstanding legal principles that strike a balance between the right to roam and the rights of private landowners. When land is vital for your livelihood, disputes over public access are more than a mere inconvenience. You may be facing a challenge to establish a right of way on your property, or perhaps you are seeking to divert public access to make a project more feasible. Whatever your situation, you have a right to feel confident that your land remains protected from misuse or damage.
What is a public right of way?
A public right of way is a legal entitlement for the public to pass along specific routes across land. A local authority’s definitive map records these routes, including:
- Footpaths – for walking only.
- Bridleways – for walking, horse-riding, and cycling.
- Byways open to all traffic (BOATs) – open to all types of traffic, including vehicles.
- Restricted byways – for walking, horse-riding, cycling, and non-mechanically propelled vehicles.
Public rights of way can exist over privately owned land. The public is only allowed to use the designated path and must respect the boundaries and access rules.
What is open access land?
Under the Countryside and Rights of Way Act 2000, the public has a right to access mapped “open access land”, which includes mountains, moors, heaths, and registered common land. People can walk freely across this land for recreational purposes, although certain restrictions apply (e.g. no cycling, horse riding, or camping unless specifically permitted).
Landowners can apply for temporary restrictions or closures in specific circumstances, such as during lambing season or when safety concerns arise.
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Landowners’ rights and responsibilities
For landowners, public rights of way can present significant legal and practical challenges. A common issue is the unauthorised creation or use of paths, which could lead to claims for new rights of way if not addressed. If the public has used a route continuously for 20 years without permission or interruption, a legal right of way may be claimed under Section 31 of the Highways Act 1980. Once established, such a prescriptive right is almost impossible to defeat unless you have strong evidence of permission, interruption, or concealment. These are likely to be difficult to produce so after many years of consistent use.
Landowners are generally responsible for ensuring that public paths crossing their land remain unobstructed. However, they also have the right to protect their property from damage and misuse, including applying for diversions or extinguishments of paths where appropriate.
Protecting your land from new public rights
Landowners, especially those involved in agriculture, face increasing pressure from informal public access. Without taking action, repeated public use of private land can lead to new public rights of way or village green claims. Luckily, legal tools are available to safeguard land from these unintended designations.
Section 31(6) of the Highways Act 1980 enables landowners to prevent the creation of new public rights of way. By submitting a map and statement to the local authority, and renewing a declaration every 20 years, a landowner can clearly demonstrate their intention not to dedicate new public paths. This proactive step counters claims based on presumed dedication through use.
Similarly, Section 15A of the Commons Act 2006, introduced in 2013, permits landowners to submit a statement that prevents land from being registered as a town or village green due to informal recreational use. This is particularly important for fields near residential areas, where dog walking and play can result in unwanted legal challenges.
These statements – often called “landowner statements” – must be submitted to the relevant local authority and recorded on the public register. They offer a low-cost, effective method to safeguard private land from future claims. In an era of increasing public access awareness, these legal mechanisms provide clarity and protection. Agricultural landowners are encouraged to act early to prevent long-term encroachments and retain control over how their land is used.
Practical measures to prevent rights of way from being established
Besides the statutory mechanisms, landowners frequently take practical measures to deter or block access and prevent rights of way from being established.
Fences and locked gates
Fences and locked gates are common tools, but are open to damage or removal by more zealous elements.
Signs and notices
Section 31(3) of the Highways Act 1980 confirms that erecting notices can prevent or reduce the likelihood of a successful claim for the existence of a public right of way. To have legal effect, it must be “visible to persons using the way”. Therefore, the notice must be legible, of sufficient size to be noticeable to users, and positioned to identify the land it seeks to protect clearly.
To avoid ambiguity, notices must be worded carefully. For example, whilst a landowner may assume that “Private” means just that, there is nothing to indicate to whom or what it refers. So, always be more specific, ensuring the notice provides evidence of a lack of intention to dedicate. One possibility is to cite the relevant legislation and summarise its meaning, such as “Section 31 Highways Act 1980, No public right of way”.
Personal challenges
Landowners should exercise great caution when personally challenging ramblers. Unless they are walking on open access land or along a public footpath, bridleway, BOATs, or restricted byway, remain calm and politely inform them that they are on private land without a right of access and direct them to the nearest reasonable exit point.
If they assert their right to be there, use maps or point out signs (if available). Avoid using force or threats at all costs, as this will likely result in legal consequences. And with everyone these days able to instantly record videos, you might be giving them evidence against you, as well as material for social media. Instead, document the incident in writing and in detail as soon as possible, recording the date and time (including the date and time of your note) and, if safe to do so, take photographs.
If the trespassing persists, call us as soon as possible for advice on 01225 462871.
Permissive paths
Permissive paths (also known as concessionary paths) are routes that the public can use with the landowner’s permission, but they are not public rights of way and there is no legal entitlement to access them. Nonetheless, they can greatly improve public access to the countryside, especially by connecting existing public rights of way where gaps occur in the network.
Since these paths are provided at the landowner’s discretion, they typically impose certain conditions on their use. This could include restrictions on who may use them (perhaps permitting walkers but excluding cyclists or horse riders) and when.
A landowner can establish a permissive path either through a formal written agreement with the local authority or by giving informal consent. However, always exercise caution and seek legal advice if you are considering creating an informal permissive path, as there is significant scope for unintended consequences.
Developers and public access
For developers, public rights of way can act as a barrier to project viability. An existing path may need rerouting to address concerns about increased public access. In such situations, early engagement with local authorities and taking specialist legal advice is essential. Developers may apply to divert or extinguish a path under relevant planning legislation, but this is a formal process that involves public consultation.
Public rights of way and open access land: Legal advice
Whether you are managing rural land, facing a rights of way dispute, or developing a site with public access implications, it is crucial to seek legal advice. This area of law is complex and constantly evolving, and we can help safeguard your interests and avoid costly disputes.