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Public rights of way questions

What are my rights on a public right of way?

Your legal right is to "pass and repass along the way". You may stop to rest, admire the view, or consume refreshments, providing you stay on the path and do not cause an obstruction. You can also take with you a "natural accompaniment", which includes a pram or pushchair. You can also legally take a manual or powered wheelchair (mobility scooter) provided you follow the regulations for taking these vehicles on ordinary roads. However, there is no guarantee that the surface of the path will be suitable for pushchairs or wheelchairs. You can take a dog with you, but you must ensure it is under close control. Note that there is no requirement for stiles to be suitable for use by dogs.

How do I know whether a path is a public right of way or not?

The safest evidence is the official definitive map of public rights of way. You can view and make photocopies of the definitive map from Medway Archives and Local Studies Centre.  In addition, public rights of way information derived from the definitive map are shown by Ordnance Survey on its Explorer Maps (No. 163).

Are all footpaths rights of way?

No. There are many paths that the public are able to use that are not legally rights of way and therefore do not enjoy the same protection. Paths crossing public parks and open spaces, commons and other sites to which the public has formal or de facto access may not necessarily be rights of way, though some of them are. Other paths, known as permissive routes, are open to the public because the owner has given permission for them to be used (often there is a notice on the path making it clear that the owner has no intention of dedicating the path as a right of way) and reserving the right to withdraw the permission. These paths are sometimes closed for one day a year, with a view to preventing claims that they are rights of way. The Countryside and Rights of Way Act 2000 provides a right of access to mapped areas of mountain, moor land, down land, heath land and registered common land, be it on tracks and paths or off them.

How does a path become public?

In legal theory, most paths become rights of way because the owner "dedicates" them to public use. In fact, very few paths have been formally dedicated, but the law assumes that if the public uses a path without interference for some period of time (set by statute at 20 years) then the owner had intended to dedicate it as a right of way. A public path that has been unused for 20 years does not cease to be public. The legal maxim is "once a highway, always a highway". Paths can also be created by agreement between the council and owners or by compulsory order, subject, in the case of objection, to confirmation by the Secretary of State for the Environment, Food and Rural Affairs.

Who owns the paths?

The surface of the path is for most purposes considered to belong to the highway authority (Medway Council). What this means is that the authority owns the surface of the way and so much of the soil as is necessary for the control, protection and maintenance of the highway. The rest normally belongs to the owner of the surrounding land.

Who is responsible for paths?

The council has principle responsibility for rights of way in Medway. They are also the surveying authority and have the duty to prepare and maintain the definitive map. Parish and Community Councils also have the power to maintain. The council has a general duty to "assert and protect the rights of the public for the use and enjoyment of paths" within Medway. It is legally responsible for maintaining the surface of the path, including bridges and keeping it free from overgrowth. The council has the authority to require owners to cut back overhanging vegetation from the side of a path.

Who makes changes to the path network?

As a Unitary Authority, Medway Council is empowered to make legal changes to the path network, such as Stopping Up Orders made under the Town and Country Planning Act 1990, with diversions made under the Highways Act 1980.

How wide should a path be?

The path should be whatever width was dedicated for public use. This width may have arisen through usage, by formal agreement, or by order if the path has been diverted. The width may be recorded in the statement accompanying the definitive map but in many cases the proper width will be a matter of past practice on that particular path. Note the width of the right of way itself may be greater, or sometimes less than the width of any track or hard-surfaced strip along the route. New public rights of way minimum widths are:

  • Footpath - 1m to 1.5m (approximately 3'3" to 4'11")
  • Bridleway 2m to 2.5m (approximately 6'6" to 8'2")
  • Byway - 3m (approximately 9'10")

Are horses allowed on public paths?

Horse riders have a right to use bridleways, restricted byways and byways open to all traffic. They have no right to use footpaths and if they do they are committing a trespass against the owner of the land, unless the use is by permission. If use of a footpath by riders becomes a nuisance, the local authority can ban them with a traffic regulation order. This makes such use a criminal offence rather than an act of trespass.

Are pedal cyclists allowed on public paths?

Pedal cyclists have a right to use bridleways, restricted byways and byways open to all traffic, but on bridleways they must give way to walkers and riders. Like horse riders, they have no right to use footpaths and if they do so they are committing a trespass against the owner of the land, unless use is by permission. As with horse riding, use of any right of way by cyclists can be controlled by traffic regulation orders and byelaws imposed by local authorities. Infringement of byelaws or orders is a criminal offence. Under the Highways Act 1835, it is an offence to ride a bicycle on the pavement at the side of a road and under the Fixed Penalty Offences Order 1999, a person who rides on a pavement can be fined on the spot by a police officer.

Is it illegal to drive cars or motorcycles on public paths?

Anyone who drives a motor vehicle on a footpath, bridleway or restricted byway without permission is committing an offence. This does not apply if the driver stays within 15 yards of the road, only goes on the path to park and does not obstruct the right of passage. The owner of the land however, can still order vehicles off, even within 15 yards of the road. Races or speed trials on paths are forbidden. Permission for other types of trials on paths may be sought from the local authority, if the landowner consents.

Are all paths supposed to be signposted?

The council has a duty to put up signposts at all junctions of footpaths, bridleways and byways with metalled roads. The signs must show whether the path is a footpath, bridleway or byway and sometimes shows other information such as destination and distance. When signs are replaced through maintenance, it aims to include the footpath number on the signs, such as RS101, GB40 or RR14 as this empowers the public to accurately report any improvements needed on a right of way. It also has a duty to waymark paths along the route, as considered appropriate.

What is waymarking?

Waymarking is a means of indicating the line or direction of a path away from metalled roads at points where it may be difficult to follow. In Medway, this is done with arrow markings on gates, stiles and posts.

Are paths numbered?

Yes on the definitive maps and where possible on the public rights of way signs. Different letters represent the area a path(s) is in, ie RR for Strood and Rochester, RS for Peninsula, GB for Gillingham/Rainham and RC for Chatham.

Can a landowner put up new gates and stiles where none presently exist?

No, not without seeking and getting permission from the highway authority in circumstances where a stile or gate is necessary to prevent the movement of animals and then complying with any conditions to that permission.

Who looks after stiles and gates on a path?

Maintaining these is primarily the owner's responsibility, however in exceptional cases the council will offer to repair stiles or replace them through our volunteer team. If stiles and gates are not kept in proper repair, the council can take further action against the landowner.

Is it illegal to plough up or disturb the surface of a path so as to make it inconvenient to use?

Yes, unless the path is a footpath or bridleway running across a field as opposed to running alongside the field boundary. In this case the landowner can plough or otherwise disturb the path surface, provided it is reasonable in doing so. The path must be restored within 24 hours of the disturbance, or within two weeks if this is the first such disturbance for a particular crop. The restored path must be reasonably convenient to use, have a minimum width of 1m for a footpath of 2m (approximately 6'6") for a bridleway, or the legal width if known and its line must be clearly apparent on the ground. If the landowner fails to do this within a reasonable time frame, further action can be taken through reporting offences to the Rural Payments Agency.

What if crops growing on or over a path are causing an obstruction?

The landowner has a duty to prevent crops (other than grass) from making the path difficult to find or follow. You have every right to walk through crops growing on or over a path, but stick as close as you can to its correct line.

What is deemed an obstruction on a path?

Anything which interfered with your right to use the path, such as a barbed wire fence across the path or a heap of manure dumped on it. Dense undergrowth is not normally treated as an obstruction but is dealt with under path maintenance. Highway authorities have a duty to prevent as far as possible, the stopping up or obstruction of paths.

Can I remove an obstruction to get by?

Yes, provided that you are a bona fide traveller on the path and have not gone out for the specific purpose of moving the obstruction and that you remove only as much as is necessary to get through.  If you can easily get around the obstruction without causing any damage, then you should do so and report the obstruction.

Can a farmer keep a bull in a field crossed by a public path?

A bull of up to 10 months of age can be kept, but bulls older than 10 months, of a recognised dairy breed (Ayrshire, British Fresian, British Holstein, Dairy Shorthorn, Guernsey, Jersey and Kerry) are banned from fields crossed by public paths under all circumstances. All other bulls older than 10 months are banned, unless accompanied by cows or heifers. If any bulls act in a way which endangers the public, an offence may be committed under health and safety legislation.

Can a landowner close or divert a path?

No. A closure or diversion that is a change to a path's route can only be carried out by local authorities or central government. The council can make an order to close a path if it considers the path is no longer needed for public use.

A notice must be published in a local paper and also placed at both ends of the path. At least 28 days must be allowed for objections. These must be heard at a Public Inquiry, taken by an Inspector from the Planning Inspectorate, or by a hearing, which is less formal than a Public Inquiry, or they may be considered in writing if the objectors agree.

The council has the power to close a footpath in case of an emergency without any notice. The Police and Fire Service also have the power to close a public right of way without notice, provided it is for emergency purposes. Path diversions may not take place if the new route will be substantially less convenient to the public than the existing one and account must be taken as to the effect the diversion will have on the public's enjoyment of the path as a whole.

Paths may also be closed or diverted in order to enable development to be carried out in accordance with planning permission. There are also provisions for highway authorities to apply to the Magistrates' Court for closure or diversion of paths and for orders to be made in other circumstances, such as the construction of new roads, railways or reservoirs, both on a permanent and temporary basis. Notice of temporary orders must be given on site, however there is no specified procedure for objections.

What is trespass?

A person who strays from a right of way, or uses it other than for passing and repassing commits trespass against the landowner. In most cases, trespass is a civil rather than a criminal matter. A landowner may use reasonable force to compel a trespasser to leave, but not more than is reasonably necessary. Unless injury to the property can be proven, a landowner could probably only recover nominal damages by suing for trespass, but you may have to meet the landowner's legal costs.

Criminal prosecution could only arise if you trespass and damage property. However under public order law, trespassing with an intention to reside may be a criminal offence under some circumstances. It is also a criminal offence to trespass on railway land and sometimes on military training land.