A Guide to Problems and Protocols

This is a guide to Cheshire East Council’s protocols regarding issues and queries, including enforcement, commonly associated with Public Rights of Way. It will help the understanding of some of the legislation which applies to Public Rights of Way and how Cheshire East Council is obliged to apply legislation to the various issues.

The effectiveness of the legislation in protecting the Public Rights of Way network and the rights of the public depends on the compliance of those regulated. Cheshire East Council has adopted the central and local government “Concordat on Good Enforcement”.

The Public Rights of Way team provide advice and information in relation to Public Rights of Way issues. We are open about how we go about our work. We are keen to discuss general issues or specific problems. We believe that prevention is better than cure and that our role involves actively working with both landowners and users.

We provide a courteous and efficient service and our staff will always identify themselves by name and provide contact details. In cases where disputes cannot be resolved without formal enforcement any right of appeal or complaints procedure will be explained, with details of the process and the likely timescale.

This information is intended as a guide only and is not an exhaustive text on Public Rights of Way legislation and case law. You are entitled to seek independent legal advice on any aspect covered by this information; it is not intended as a substitute for that advice.

Contents

Barbed wire

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 offence. It is an obstruction to the Public Right of Way and a nuisance and a danger to members of the public wishing to use the Public Right of Way.

The protocol the Council has adopted in these matters is firstly to 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 will require authorisation by the Council as it would constitute a new structure (see stiles and gates).

If the owner fails to agree to either of these courses of action, the Council will remove the barbed wire where it affects the path without further notice. If the owner continues to commit further offences of this nature, the Council will consider prosecution for obstruction.

Highways Act 1980 sections 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 in the opinion of the Council the barbed wire does represent a danger to the public, then the Council has a protocol of firstly asking the owner to make the fence safe for members of the public using the path. If the owner refuses or fails to do so the Council will serve legal notice requiring the owner to remove the source of danger within a specified time.

Highways Act 1980 section 164.

Bulls and dangerous animals

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

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. See also Animals Act 1971 section 2.

Crops on Public Rights of Way

Also see Ploughing and crops on Public Rights of Way.

Cross compliance

If a landowner/occupier breaches legislation in relation to Public Rights of Way they may also be in breach of the Department for Environment Food and Rural Affairs (DEFRA)’s Good Agricultural and Environmental Condition Standards (GAECs) and Statutory Management Requirements (SMRs). DEFRA requires that these standards are met by landowners/occupiers in order for them to qualify for the Single Payment Scheme (SPS). If a landowner/occupier fails to comply with an enforcement notice issued by the Council in relation to Public Rights of Way, details of the offence will be sent to the Rural Payments Agency (RPA) and their SPS may be affected. The Council will undertake to do this only as a last resort and every effort will be made to resolve the problem by co-operation first.

Dangerous land adjoining a Public Right of Way

From time to time the Council encounters unfenced dangers on adjoining land which present hazards to path users. The Council has a duty to protect path users from such dangers and will in the first instance enter into dialogue with the owner of the adjacent land to urge him to remove or adequately fence the danger. The Council 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 the Council may carry out the work and recover the costs from the owner.

Highways Act 1980 section 165.

Definitive Map

Definitive Maps are the legal record of the public’s right of way. The Council is responsible for the Definitive Map. If a way is shown on the Definitive Map then it is conclusive evidence of public rights along the way unless there has been a legally authorised change.

There may also be additional public rights over land which have not yet been recorded on the map or there may be rights which have been incorrectly recorded. The Definitive Map can be amended by legal order if evidence of missing rights of way is discovered or to correct errors in previously recorded information. See the Definitive Map Modification Orders page for more information.

Dogs on Public Rights of Way

Dogs are allowed on Public Rights of Way but they should 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 Public 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.

Electric fences

Electric fences across a Public Right of Way

An electric fence erected across a Public Right of Way without a safe means of crossing is an offence. It is an obstruction to the Public Right of Way and a nuisance and a danger to members of the public wishing to use the Public Right of Way. The protocol the Council has adopted in these matters is firstly to ask the owner of the electric 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 will require authorisation by the Council as it would constitute a new structure (see stiles and gates). If the owner fails to agree to either of these courses of action the Council will remove the electric fence where it affects the path without further notice. If the owner continues to commit further offences of this nature the Council will consider prosecution for obstruction.

Highways Act 1980 section 137, 137Z, and 149.

Electric fences alongside a Public Right of Way

Where an electric fence runs alongside a Public Right of Way it may be a danger and a nuisance to members of the public. If in the opinion of the Council this is the case then the Council has a protocol of firstly asking the owner to make the fence safe for members of the public using the path. If the owner refuses or fails to do so the Council will serve legal notice requiring the owner to remove the source of danger within a specified time. Failure to comply with the notice will result in the Council removing the fence and recovering costs from the owner.

Highways Act 1980 section 165.

Encroachment

An encroachment is an unlawful obstruction of the highway. When an encroachment has occurred or alleged to have occurred the Council is duty bound 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 the Council’s satisfaction that encroachment has occurred but it is not materially affecting the path or the rights of users the Council may regard it as de minimis “the law is not concerned with trifles”. In these circumstances the Council 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 the Council’s satisfaction to be materially affecting the Public Right of Way and the rights of users the following approach will be taken to have it removed. Firstly the circumstances will be brought to the attention of the person responsible and they will be asked to remove the encroachment within a reasonable time-scale to be determined by the Council. If this fails to secure the removal of the encroachment, the Council will commence enforcement action in respect of the obstruction (see Obstructions).

Gates

See Stiles and gates.

Hedges and trees adjacent to Public Rights of Way

In most circumstances the responsibilities of the Council 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, the Council has a right to remove so much of the overgrowth to prevent the obstruction to pedestrians and equestrians. Additionally, the Council has a power to require the owners of overhanging hedges and trees to require them to lop or cut-back the hedge within a period of 14 days.

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, the Council has a 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, the Council will discuss the matter with adjacent landowners and request 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 1980 section 136.

Also see Tree branches and limbs across Public Rights of Way.

Liability to path users

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 places across a path then the injured party may pursue a claim against the occupier of the land.

Occupiers Liability Act 1957.

Cheshire East Council:

As Highway Authority, the Council is responsible for the surface of Public Rights of Way. In certain circumstances the Council 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 signs and notices erected on Public Rights of Way

Misleading and unlawful signs can deter people from lawfully exercising their right to use paths and the Council has a duty to prevent such occurrences. Signs erected on a Public Right of Way can be removed by the Council. 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

Obstructions and encroachments which can be readily removed:

The Council has a duty at statute law to remove all obstructions and encroachments to Public Rights of Way (The Highways Act 1980). The Council also has a common law right to remove anything that it believes constitutes an obstruction, danger or encroachment without consultation with any other party.

Cheshire East Council has a protocol of dealing with obstructions 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 the Council will remove the obstruction and recover costs from the landowner.

The Council has a protocol of considering prosecution for obstruction for any subsequent offence as well as taking the direct action outlined above.

Highways Act 1980 section 143.

Obstructions which are longstanding:

Enforcement actionLongstanding 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 the Council will deal with the problem in the following manner:

Where the obstruction is minor it must be removed by the owner. If the owner fails to remove the obstruction within a period of time deemed reasonable by council officers, enforcement action using powers available under section 143 of the Highways Act 1980 will be taken and the obstruction removed. 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. The Council 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. The Council 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 Council 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 magistrates order to remove the obstruction.

If an application to divert the path fails, then the Council would expect the original route to be made available by the owner. If the owner fails to do this then the Council would consider prosecution and seek a magistrates 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 the Council and planning officers 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 under section 143 of the Highways Act 1980 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 magistrates order to remove the obstruction.

Highways Act 1980 section 137 and 137A.

Ploughing and crops on Public Rights of Way

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 Public Footpaths and Public Bridleways. All field edge Public Rights of Way and cross-field Restricted Byways and Byways Open to All Traffic (BOATS) should never be ploughed.

Where a cross-field Public Footpath or Public 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 Public Footpaths the minimum width is 1m and 2m for Public 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.

Rights of Way Act 1990 section 134.

Crops:

Where a crop (other than grass) has been planted or sown on the 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 Public Footpaths and 2m for Public 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.

Rights of Way Act 1990 section 137A.

Enforcement of ploughing and cropping protocol:

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

For a first offence, the Council 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 him 7 days to re-instate the path. Upon expiry of that period if the path has not been reinstated to a satisfactory standard the Council 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 the Council 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, the Council 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 the Council 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.

Public Rights of Way

There are four categories of Public Rights of Way:

  1. Public Footpaths – where the public has a right of way on foot and with a wheelchair, pushchair or pram.
  2. Public Bridleways – where the public has a right of way on foot, on horseback, leading a horse, with a wheelchair, pushchair or pram, and on a bicycle.
  3. Restricted Byways – where the public has a right of way on foot, on horseback, leading a horse, with with a wheelchair, pushchair or pram, by bicycle and by horse drawn vehicle. Additionally full vehicular rights may exist.
  4. Byway Open to All Traffic (BOAT) – where the public has a right of way on foot, on horseback, leading a horse, with a wheelchair, pushchair or pram, on a bicycle, in a motorised vehicle or non-motorised vehicle and driving animals.

As public highways, Public Rights of Way enjoy the same protection, provided by the Highways Act as “proper roads”. They also enjoy additional protection provided by other legislation namely the National Parks and Access to the Countryside Act 1949, Countryside Act 1968, Wildlife and Countryside Act 1981 and Countryside and Rights of Way Act 2000.

Ropes across Public Rights of Way

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 the Council will consider prosecution of the offender. The Council will also remove the rope if encountered by officers on subsequent occasions.

Highways Act 1980 section 162.

Stiles and gates

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

The Council has a discretionary power to extend this grant and will, in normal circumstances, provide a 100% grant by arranging to carry out all the work at no cost to the landowner. This discretionary grant will be withdrawn if landowners fail to co-operate or are obstructing other Public Rights of Way.

Highways Act 1980 section 146.

If an occupier of land wishes to install additional gates on Public Footpaths or Public Bridleways they must apply in writing to the Council for authority to do so. Authority will not be given for any additional stiles. To erect stiles or gates without authority is an unlawful obstruction and is a criminal offence (see obstructions). The only circumstance for which the Council can provide authorisation for the erection of a new gate is that the structure is required to prevent the ingress or egress of animals onto agricultural land.

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 (see obstructions). Additional gates cannot be erected on Restricted Byways or BOAT .

Where a field gate crosses an enclosed Public Right of Way (e.g. a lane enclosed by hedges) it should remain unlocked even if there is a stile or gate alongside it. The locking of the field gate will generally be construed as an obstruction to the highway and dealt with as such.

There is an exception to this however: If the path in question leads directly to a vehicular highway and the locking of the field gate will prevent livestock escaping onto the road no action will be taken in relation to the locking of the gate provided that an alternative means of access, such as a kissing gate or pedestrian gate, is provided alongside.

Surfaces of Public Rights of Way

“Ownership” of the surface; The Cheshire East Council is the Highway Authority and as such, ordinarily*, the surface of any Public Right of Way is “vested” in the Council. Effectively, the Council owns the surface in most cases. (*See below Enclosure of a Public Right of Way).

“Disturbance” of the surface; The majority of Public Rights of Way do not have a bound or metalled surface and as such can be susceptible to damage by motor vehicles.

It is an offence to interfere with the surface of a Public Right of Way to the detriment of users. This means that a landowner/occupier may not dig up or even re-surface a Public Right of Way without the prior authorisation of the Council. Landowners/occupiers must ensure that their private use of the route; for example in motorised vehicles, does not damage the surface of the path. If damage is caused it must be re-instated by the landowner/occupier. (see also Ploughing)

How the Council will deal with this offence; For a first offence the Council will explain the law to the offender and advise about re-instatement of the surface. The offender will then be given an appropriate period* to re-instate the surface to the satisfaction of the Council. *The period given will be at the discretion of the Officer concerned and will be dependent on the level of damage and the works required. If there is a danger to the public immediate re-instatement will be required.

If the offender fails to re-instate the path or if the re-instatement is unsatisfactory a notice will be served giving a reasonable period for the surface to be properly reinstated. Failure to comply with the notice will result in the Council’s contractors carrying out the works with the costs being recouped from the offender.

If the offence recurs the Council will immediately serve a formal notice requiring re-instatement, it will also consider prosecuting the offender.

Enclosure of a Public Right of Way; Where a Public Right of Way crosses previously unenclosed land and the landowner/occupier encloses his land e.g. by erecting a fence or planting a hedge alongside the path, he then becomes responsible for the maintenance of the surface of the route. He will also be responsible if an accident occurs due to problems with the surface.

If a path is enclosed in this way, particularly if the path is made very narrow, there can be problems with the surface falling into disrepair very quickly. If the surface does fall into disrepair the landowner/occupier will be required to make it good for example, by providing a better surface, carrying out drainage works or by increasing the width available.

Tree branches and limbs across Public Rights of Way

If a branch of a tree has fallen across a Public Right of Way such that the way is obstructed the Council has adopted the following protocol. It will contact the owner of the tree and request that the branch is removed within a predetermined time. If the owner fails to comply with this request the Council will serve notice on the owner of its intention to remove the branch and recover from the person the costs incurred.

Highways Act 1980 section 150 (4) (c).

Widths of Public Rights of Way

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 the Council will require a reasonable width to be made available which would be sufficient for two users to pass.

In the case of a Public Footpath, this can be regarded as 2 metres; in the case of a Public Bridleway 3 metres; and in the case of a Restricted Byway or Byway Open to All Traffic, 3 metres.

An encroachment into the width of a Public Right of Way is an obstruction and a criminal offence and the Council will deal with encroachments according to protocols (see also Encroachment, Obstruction and Enforcement).

Statutory default minimum widths apply to all Public Rights of Way but only in relation to ploughing and reinstatement following ploughing. These are as follows (see also Ploughing and crops).

Widths of Public Rights of Way
 Field edgeCross field
Public Footpath 1.5m 1m
Public Bridleway 3m 2m
Restricted Byway 3m 3m
Byway Open to All Traffic 3m 3m

Rights of Way Act 1990 Schedule 12A

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