Chapter 3 Creation of New Rights of Way
Note the attached is a work in progress and the usual disclaimers apply. It may not be complete, accurate, or up-to-date. Legal advice should be sought where reliance on the law is required. Any comment, query, or feedback is welcome.
3.1 Introduction
Even though the highway authority is said to own the land forming part of the highway, there is no authority on whether there is a general common law right for it to upgrade a right of way from say, a footpath to a bridleway, in the absence of explicit statutory provision. Riddall and Trevelyan believe there is not).120 The existence of explicit statutory provisions providing for upgrading121 would also imply not.
The main means of creating new rights of way are by order, by agreement, by conversion process (for cycle tracks from footpaths), and by dedication. Dedication can be under common law or statute, and may be express (rare) or implied.
3.2 Statutory Orders for New Paths
Section 26 of the Highways Act 1980 gives powers to the local highway authority or the Secretary of State to create bridleways, footpaths, and other rights of way.122 The relevant body needs to be satisfied that it is expedient that the path should be created given the extent to which the path would add to the convenience or enjoyment of a substantial section of the public or the convenience of persons resident in the area and the effect the creation of such a path would have on the rights of the persons interested in the land. Provision for compensation is provided for in s.28.123 Considerations also include the relevant provisions of a rights of way improvement plan124 that highway authorities are obliged to maintain.125 When considering whether it is expedient to create a new path, the decision maker needs to consider both the principle of creating the path and also the detail such as its alignment, length, and width.126 The availability of compensation under s.28 is also a consideration,127 and the availability of compensation may mitigate, but does not entirely remove, the need to consider the adverse effect when weighing the balance.128 The needs of agriculture and forestry, and the desirability of conserving flora, fauna, and geological and ‘physiographical features’ need to be taken into account by virtue of s.29.129
The procedure for creating such a path is set out in Schedule 6 of the 1980 act130 and regulations setting out details of the procedure for making a public path creation order (including for compensation) are set out in the Public Path Orders Regulations 1993.131
3.3 Creation of New Paths by Agreement
Section 25 of the Highways Act 1980132 gives a power to a local authority enter into an agreement to create a bridleway, footpath, or restricted byway. This is known as a ‘public path creation agreement’. Agreements may include terms as to payment and may impose limitations or conditions on the public right of way.133 Again, authorities need to take into account the needs of agriculture and forestry and preserving flora, fauna, and geographic features.134 There is a corresponding power to enter into agreements to widen highways.135
There is also a power under s.30 for a parish or community council to agree to create a right of way.136 The power differs from the s.25 power in that conditions or limitations may not be imposed; compensation is not payable; the path does not need to be physically created on the ground; the needs of agriculture etc do not need to be considered; and the way does not automatically become publically maintainable. Equally, such agreements can be made to widen highways.137
3.4 Conversion of Footpaths to Cycle Tracks
Section 3 of the Cycle Tracks Act 1984138 provides a modest power to convert footpaths that are public highways139 into cycle tracks, but this power is rarely used for various reasons. If an order it made, it becomes lawful to use the path by both cycle and on foot.140 However, before making such an order, the highway authority must obtain the consent of every person having a legal interest in any agricultural land that the proposed path crosses,141 effectively giving farmers a veto over the making of such an order. Cycle tracks are also not one of the categories of path that must be shown on the definitiive map, so the making of an order requires the former footpath to be removed.142 This provides a further disincentive to making such an order, meaning that this procedure is rarely used. The procedure for creation of a cycle track is set out in the Cycle Tracks Regulations 1984.143
3.5 Dedication
Dedication is the common law principle by which rights of way come into being by virtue of the actions of the landowner and the public. Dedication can be express or implied. Express dedication is where the landowner expressly grants a right to the public to use their land as a highway. Implied dedication is where the landowner is taken, by common-law or statute, to have granted a right to the public to use their land as a highway, often where the route has been in existence for many years and the original intention of the landowner has become difficult to determine.
3.6 Express Common Law Dediction
Express dedication happens in accordance with common law, generally by way of a deed,144 and is relatively rare.
It is said that in that in order for the right of way to be expressly dedicated, the landowner’s act of express dedication must also be ‘accepted’ by the public through actual use.145 However, the additional requirement for acceptance seems debateable in the present day. The common law requirement for acceptance was historically used to demonstrate that the highway had sufficient utility to justify it becoming maintainable at public expense. However, the historical tests for utility were abolished by the Highways Act 1980 and replaced by set definitions of which highways are maintainable.146 Similarly, actual use is important evidence supporting implied dedication, but such evidence is redundant in the face of express dedication. Thus, it makes little sense to retain the common law requirement for acceptance if it no longer possesses an underlying rationale. As has also been pointed out, a requirement for acceptance in instances of express dedication puts initial users in a Catch-22 situation by making them trespassers.147 Rights created in accordance with statutory powers 3.2 or agreement 3.3 are not considered to require acceptance.148
3.7 Implied Dedication by Common Law
Historically, implied dedication of highways took place under common law and this mechanism is expressly preserved by statute.149 The common law procedure creates obstacles, but still may be advantageous in some circumstances. In particular, there is no minimum period of use that needs to be proved to justify an inference of dedication150 so relatively short periods of around 5-10 years; use have historically been accepted.151 The period that is necessary to prove the existence of a right of way will also be shorter where the usage is intensive and open and the evidence of knowledge and acquiescence is compelling.152
Against this, it is a requirement that the person in possession of the land would have had the capacity to dedicate the way as a highway during the relevant period. Therefore, periods when the land was occupied by a tenant are generally discounted.153
To establish dedication, use has to be ‘as of right’ namely without force, stealth, or permission from the owner.154
Under common law, in contrast to statute, the legal burden rests on users to prove dedication throughout, but the evidential burden shifts to the landowner once the presumption of dedication has been raised.155
The most straightforward means of confirming the establishment of a common-law right of way is to apply to the highway authority for a modification order adding a footpath or bridleway to the definitive map.156 For parties looking for other means to confirm (or deny) the existence of a common law highway (other than by indirect means such as by resisting proceedings for trespass on private land or obstruction of the highway), another procedure is to seek a declaration from the courts. This ancient common-law procedure still exists notwithstanding the recent alternative of the statutory procedure to confirm a highway.157
3.8 Implied Dedication by Statute
A statutory procedure by which rights of way may be confirmed has also been introduced, in part to overcome the difficulties of the common-law procedure of periods when a landowner is not in possession of the land over which the path passes. This is now contained in ss.31-33 of the Highways Act 1980.158 A right of way may be established under this procedure by demonstrating 20 years of uninterrupted use, unless evidence of contrary intention by the landowner can be proven. This period may be longer than the common law requirement, but the statutory procedure offers other advantages.
S.31 requires that the way has been ‘actually enjoyed’159 meaning that it has actually been used.160 The purpose of those using the way does not matter.161 This use has to have been by the general public, not a narrower class of people such as owners or tenants of a particular property, or customers or employees of a workplace or business [Riddall and Trevelyan162 para. 3.3.6; xxx] though such use may give rise to a private right of access.
Leckhampton Quarries Co Ltd v Ballinger and Cheltenham RDC (1904) 68 jp 464
Statutory incompatibility
Not if criminal / nuisance
BoP
Dedication + acceptance
References
R (MJI (Farming) Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2009] EWHC 677 (Admin).↩︎
Postans v The Secretary of State for the Environment, Transport and the Regions QBD, 28 March 2000.↩︎
Sheik (n 32) para 141; Riddall and Trevelyan (n 6), para 3.1; Sauvain, Stockley and Riley-Smith (n 4) paras 1–001.2.↩︎
SS Environment, Transport and the Regions v Baylis (Gloucester) Ltd [2000] 2 EGLR 13, per Lewison, J.↩︎
Rugby Charity Trustees v Merryweather (1790) 11 East 375, 103 ER 1049, 1049 fn (a); R v Petrie et al (1855) 4 El & Bl 737, 119 ER 272; Rowley v Tottenham UDC [1914] AC 95; Riddall and Trevelyan (n 6) para 3.4.6.↩︎
Sauvain, Stockley and Riley-Smith (n 4), para 1.001-2; Riddall and Trevelyan (n 6) para 3.2.↩︎
Gardner v Hodgson’s Kingston Brewery [1903] AC 229; R v Oxfordshire CC (Sunningwell PC) [2000] 1 AC 335; Riddall and Trevelyan (n 6) para 3.2 and 3.3.6.↩︎
Hill v Thomas [1929] 1 Ch 440; Dyfed CC v SS for Wales (1990) 59 P & CR 275.↩︎