Chapter 2 Existing Public Rights of Way
2.1 Disclaimer
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.
2.2 Introduction
The current public rights of way network is not fit for purpose. It was developed, mainly by the common law, in a very different time, when the primary methods of transport were foot, horse, or cart. The rules are very much as they were, despite the huge changes that industrialisation has brought. Public rights of way were a necessity in order to get to work or school, socialise, court, shop, or attend to the myriad of human needs. Short distances were travelled on foot, longer distances by horse or cart. Horse ownership was significant, particularly in rural areas, and horses were used primarily for transport. Nowadays, the situation is very different. Much domestic transport is by private vehicle. Footpaths and bridleways are disjointed, often poorly maintained, and generally used for leisure. Whereas historically pedestrians and equestrians could use carriageways, the volume, weight, and speed of private cars makes it generally unsafe to use present-day carriageways, effectively severing many rights of way and rendering them practically useless. Massive funding is poured into infrastructure for private vehicles, but public rights of way are funded on a shoestring. The invention of the bicycle postdated the development of much of the law on public rights of way but the law has yet to properly accommodate it. In many ways, the bicycle is a successor to the horse, but cheaper and more accessible. Notwithstanding this, the law requires bridleways to be maintained for horses, but not for bicycles. Fundamental changes are ultimately needed [DISCUSS PROPOSALS AT END OF CHAPTER?], but much could nonetheless be achieved with the law as it stands.
This chapter is about public rights of way usable by cyclists, in particular bridleways. In summary, under civil law, cyclists have the right to use bridleways, but not footpaths.1 If a cyclist rides on a footpath, they commit the civil tort of trespass and can be sued by the highways authority.2 Older authorities suggest the owner of the subsoil could also sue,3 but these predate the authorities that confirm that it is the highway authority that owns the freehold right to the surface and foundations of the highway (see further 2.4) and at least one eminent commentator has doubted the right of the owner of the subsoil to sue a highway user in trespass.4 It is also unclear whether pushing a bicycle on footpath would amount to trespass: pedestrians are entitled to bring ‘usual accompaniments’ with them,5 but it has not been decided whether or not this includes a bicycle (Riddall and Trevelyan believe not).6
By contrast, cycling on a footpath is not generally a criminal or road traffic offence without specific provision. When exercising their right to use a bridleway, cyclists must give way to pedestrians and horseback riders.7
In addition, there are procedures to require highways authorities to maintain highways including paths used by cyclists. See further section 2.7.1 below.
Bridleways are potentially very useful cycling connections, given that they often connect towns and villages which are otherwise only connected by motor vehicle carriageways where the speed limit is 60mph, making them unsuitable for cycling. Most highways authorities maintain a map of public rights of way. For example Oxfordshire’s is listed here.
However, where the highway authority has a duty to maintain bridleways for walking and horseriding, they are not obliged to do so for cycling.8 In addition to budget constraints, this means that the maintenance of bridleways in a way that would be suitable for cycling depends on the outlook of the particular highway authority.
Most bridleways are maintainable at public expense. Maintenance of bridleways needs to be distinguished from improvement. The highways authority has the right to maintain bridleways.
2.2.1 Planning Permission
Works required for the maintenance or improvement of a road carried out within the boundaries of the road do not amount to development and do not require planning consent.9
2.3 Definitions
Important definitions are included in the Highways Act 1980.10 In particular:
“bridleway” means a highway over which the public have the following, but no other, rights of way, that is to say, a right of way on foot and a right of way on horseback or leading a horse, with or without a right to drive animals of any description along the highway;
Note that notwithstanding the definition of bridleway in the Highways Act 1980,11 cyclists have the right to use bridleways under the Countryside Act 1968.12
A restritcted byway is defined by as a right of way on foot, horse, or non-mechanically propelled vehicles (such as cycles or horse-drawn carts).13 Restricted byways were introduced in 200014 to replace a previous category of highway called a ‘road used as a public path’ which were introduced in 1949 and sometimes permitted vehicles, which led to some uncertainty.15 Those paths which also allow motorised vehicles are known as ‘byways open to all traffic’ (‘BOATs’).16
2.4 Ownership of the Highway by the Highway Authority
As one notable publication has observed, one of the most difficult things to accept from a landowner’s point of view is that the surface and foundations of a publicly maintainable right of way belong to the highway authority.17 Every highway surface, including the materials and scrapings (debris and by-products of highway resurfacing) belongs to the highway authority18 as a determinable ‘fee simple absolute in possession’.19
2.4.1 Highway Depths
Above the surface, ownership has been said to include such a section of the air above the surface as is necessary for the discharge of the highway authority’s duties.20 Below the surface, ownership has been said to include as much depth as is necessary to support the surface of the road21 or the ‘top two spits’ (a spit is the depth of the blade of a spade).22 As such, a highway authority cannot lawfully excavate far below the highway for non-highway purposes such as the construction of public toilets.23
2.4.2 Highway Widths
Default minimum and maximum widths are provided for certain limited purposes by the HA 1980.24 These defaults apply only where the width of a highway has not otherwise been proven. These provisions allow a highway authority to make good the surface of a highway such as a footpath or bridleway where it has been disturbed so as to make it inconvenient to exercise a public right of way. Highway authorities are permitted to make good the highway not less than the minimum specified width, and not greater than the maximum specified width.25
These minimum and maximum widths of highways are set by the HA 1980.26 For a bridleway, the minimum width of a cross-field path is 2m and a field-edge path is 3m.27 The maximum width is 3m.28 The corresponding minimum widths for footpaths are half this: 1m for cross-field paths and 1.5m for field-edge paths.29 The maximum width of a footpath is 1.8m.30 Note that field-edge paths are required to be wider to take account of the fact that they will be enclosed on one side which narrows the effective width. Cross-field paths will be unenclosed, meaning that the full width will be usable.
However, there is otherwise no statutory default for rights of way.31 As such, the test for the width of a highway in the absence of specific evidence is simply what would be ‘reasonable’.32 This may be what is ‘sufficient for two walkers [in the case of a footpath] or two riders [in the case of a bridleway] to pass’.33 What is reasonable may be wider than the statutory defaults, particularly in the light of the Human Rights Act 199834 and the Equality Act 201035 which now require provision for all users. For instance, to accommodate the passing of two wheelchair users an unenclosed footpath with a minimum width of 2m would be necessary. Likewise, on bridleways and cycletracks a minimum unenclosed width of 2.5m would be necessary to accommodate users of adapted cycles given the 1.2m width of the ‘cycle design vehicle’ of 1.2m.36 Enclosed paths reduce the effective width meaning that an additional 0.5m is required for each side of a path that is enclosed.37
2.5 Publically Maintainable
The burden is on a highway authority to prove that a highway is not maintainable by them.38 There is some evidence that highways authorities take the view that it is less expensive to assume that highways are publicly maintainable than to question the point.39
2.6 Duty to Maintain
The highway authority has the duty to maintain highways.40 The duty to maintain includes the surface41 and the drains beneath or beyond the traffic surface.42 The concept of ‘maintenance’ includes ‘repair’.43
In the case of Hereford & Worcester CC v Newman,44 it was held that to be out of repair, the surface of the highway needed to be defective or disturbed in some way. Thus, vegetation growing on the surface of a footpath making it difficult to navigate rendered it out of repair, but a multi-stranded barbed wire fence above the surface of the footpath did not. Likewise in Valentine v Transport for London,45 loose gravel on the surface of a carriageway did not amount to a breach of s.41. Note that this case does not necessarily introduce a gap in the law regarding obstructions because there are separate provisions authorising the highways authority to deal with obstructions on the highway. See further section 2.10.
Correspondingly, the highway authority will not be liable for breaching the duty in s.41 for defective items on the highway such as street furniture, though they may nonetheless be liable in negligence.46
The only exception for objects on the surface of the highway is for snow and ice, for which there is a relatively recent duty inserted by s.41(1A) of the Highways Act 1980.47
2.8 Powers to Maintain
While a highways authority does not have the duty to maintain land not forming part of the highway, they do have certain powers to maintain third party land causing issues on the highway. For example, they may construct drains to prevent surface water flowing onto the highway on land adjoining or lying near to the highway68 or fill in unnecessary ditches adjoining or lying near the highway.69
Though the primary obligation to maintain highways falls on the highway authority, district councils have the power to maintain certain highways70 which include bridleways and restricted byways.71 Where this happens, the highways authority is obliged to compensate the district council for any expenses incurred.72
The highways authority has the power to make good the surface of a highway where it has been disturbed.73 In order to make good a disturbed highway surface, the highway authority may, with notice, enter on the land over which the path passes, or any land reasonably believed to be in the same occupation, to carry out the work, and take such vehicles, machinery, and equipment that might be needed.74 Any expenses reasonably incurred may be recovered from the occupier of the land or the person who disturbed the surface of the highway.75 Some exemptions permit occupiers of agricultural land to disturb a footpath or bridleway by ploughing, but they must make good the right of way within set periods.76
Historically, when the fashion was for bikes with narrow tyres and smaller wheels, cyclists probably required a better surface than pedestrians and horseriders. However, research has revealed that wider tyres and larger wheels are both faster and more comfortable, thereby driving a move towards tyres and wheels that are more forgiving of uneven terrain for ‘gravel’, ‘hybrid’, and even standard ‘town’ bikes. Thus, whereas older bike users might have required a metalled surface to make a bridleway suitable for cycling, most present-day bike users readily tolerate a gravel or other unbound granular surface. Thus, the difference between the standards required for pedestrians, horseriders, and cyclists is nowadays fairly minimal.
Given that cyclists have the right to use bridleways, it would seem that the highways authority has the corresponding right to maintain bridleways to be suitable for cycling, particularly as a highway authority has the power to metal any highway.77
2.9 Powers to Improve
The Highways Act 198078 confers general powers to a highway authority to carry out any work to improve a highway.79 The statute does not give any definition of what an improvement amounts to. An example of an improvement to the highway is given by Rodgers v Ministry of Transport80 where the construction of a lay-by and and footway was recognised as an improvement within the powers of the highway authority.
These general powers to improve a highway cannot be used where the Highways Act 1980 gives specific powers to a highway authority.81 Examples of specific powers include the alteration of the level of a highway;82 works to drain a highway or prevent surface water from flowing on to it;83 and to fill in and culvert ditches.84 Where such work is undertaken on land not part of the highway, compensation must be paid to the landowners.85
Section 62 of the Highways Act 1980 also specifies that the power to construct new cycle tracks must be carried out under the corresponding specific provision, in this case s.6586 which confers a fairly limited power to construct cycle tracks by the side of or within a made up (ie, metalled) carriageway.
A highway authority also has the specific power to metal any highway,87 a power which covers bridleways and footpaths.
In contrast to the rights of entry for repair 2.8 set out in Schedule 12A (,88 Sch.12A), the rights of entry regarding powers of improvement are less extensive. Section 29489 provides a power to enter premises to execute works, but the right applies only to those powers listed in that section and in Schedule 22.90 These rights tend to apply regarding powers that must of necessity require entry onto adjoining land. Examples include filling in roadside ditches91 and fencing paths.92 However, one important right that allows entry into third party land is the right in s.77 to raise the level of highways,93 a right that is often essential in order to make highways accessible during all seasons of the year.
2.10 Obstructions
If a right of way is blocked by a landowner or a third party, there is a right to deviate from the way via the landowner or tortfeasor’s land,94 even if the obstruction is semi-permanent.95
Section150 of the Highways Act 198096 puts an obligation on the highway authority to remove obstructions on the highway. If the authority fails to do so, a complaint may be made to the magistrates’ court and the court may make an order for the obstruction to be removed. The court must take into account the character of the highway, the nature of the obstruction, and the resources available to the authority.97
In contrast to defects in the fabric of the highway under s.41,98 there is no liability for breach of statutory duty for obstructions on the highway on the part of the highway authority99 ,100 though there can be liability in negligence of acts of the highway authority that cause loss and damage to users.101
Obstructing a highway is a crime both under statute and common law. Where an obstruction amounts to a crime under both forms of liability, it should generally be prosecuted under statute.102 Section 137 of the Highways Act 1980 makes it an offence, punishable by a fine or imprisonment, to wilfully obstruct the highway without lawful authority or excuse.103 Any obstruction that substantially impedes access across a part of the highway is sufficient, the obstruction does not need to be total.104
An action for trespass or possession may be brought by the highway authority even if the highway is merely obstructed and not completely blocked.105
2.11 Remedies for Damage caused by Third Parties
A highways authority has a statutory right to seek damages against third parties where expenses have been incurred maintaining the highway by reason of damage caused by excessive weight passing along the highway or due to other ‘extraordinary traffic’.106 Extraordinary traffic has been described as quality or quantity of articles carried or mode or time of use that substantially alters and increases the burden imposed by ordinary traffic on the road, causing additional damage and expenses.107 In the context of bridleways, such damage might be caused by tractors, quad bikes, or other motorised vehicles.
2.12 Obligations of Neighbouring Landowners
Some footpaths and bridleways cross agricultural fields rather than going around the edges. A cross-field path may only be ploughed or disturbed if it is not reasonably convenient to avoid the path.108 Where a path is ploughed or disturbed, the landowner must make good the surface of the path or way and indicate its line on the ground.109 This must be done within 14 days where it is the first sowing of a particular crop and 24 hours in any other case.110 This time can be extended by the highway authority for up to 28 days.111 Failure by the landowner to comply is a criminal offence giving rise to a fine.112
Landowners are also required to ensure that the line on the ground of a highway is indicated so that it is apparent to members of the public wishing to use it and that their crops do not encroach on the highway.113 Failure to do so is also a criminal offence.114
A highway authority can also require owners and occupiers of neighbouring land whose trees, shrubs, or hedges overhang a highway so as to endanger or obstruct pedestrians or horseriders to cut it so as to remove the issue.115 Thus vegetation on bridleways that endangers cyclists can be required to be removed.
The HA 1980 sets out a number of offences that might be commmitted by a landlowner, such as removing soil or turf from a highway,116 willfully obstructing free passage along the highway,117 depositing things on the highway to the interruption of a user,118 to resulting in a highway user being injured or endangered.119
References
Harrison v Duke of Rutland [1893] 1 QBD 142; Hickman v Maisey [1900] 1 QB 752.↩︎
Stephen Sauvain, Ruth Stockley and Piers Riley-Smith, Encyclopedia of Highway Law and Practice (Sweet & Maxwell 2024), paras. 1-005.2 and 1-010.↩︎
John; Riddall and John Trevelyan, Rights of Way: A Guide to Law and Practice (4th edn, The Ramblers’ Association; Open Spaces Society 2007) para 2.3.1 and 2.6.2.↩︎
Ibid.30(3); see also Countryside and Rights of Way Act 2000 s.49(4).↩︎
Town and Country Planning Act 1990 s. 55(2)(b); R (Dillner) v Sheffield City Council [2016] Env LR 31.↩︎
Angela Sydenham and Nigel Farthing, Public Rights of Way and Access to Land (5th edn, Jordan Publishing 2021), Preface to the First Edition.↩︎
Law of Property Act 1925 s.7(1); Tithe Redemption Commissioners v Runcorn UDC [1954] 1 Ch 383.↩︎
Foley’s Charity Trustees v Dudley Corp [1910] 1 KB 317, per Cozens-Hardy MR at p. 322.↩︎
Tithe Redemption Commissioners v Runcorn UDC (n 19), per Lord Denning at p. 407.↩︎
Highways Act Schedule 12A.↩︎
Secretary of State for Defence v Percy [1999] 1 All ER 732 738H, 738H, quoting Halsbury’s Laws (4th ed) para 117 with approval; see also Saira Kabir Sheik (ed), Halsbury’s Laws of England, Volume 55 (Highways) (5th edn, LexisNexis Butterworths 2024) para 234.↩︎
WSP, Phil Jones Associates and Department for Transport, Cycle Infrastructure Design (The Stationery Office 2020) Table 5-2.↩︎
Attorney General v Watford Rural District Council [1912] 1 Ch 417.↩︎
Sydenham and Farthing (n 17), para 8.21.↩︎
Mitchell v Department for Transport [2006] EWCA Civ 1089, [2006] 1 WLR 3356.↩︎
Sydenham and Farthing (n 17), para 8.30.↩︎
R v High Halden Inhabitants (1859) 1 F & F 678, 175 ER 903; Burnside v Emerson [1968] 1 WLR 1490; Goodes v East Sussex CC [2000] 1 WLR 1356.↩︎
Countryside Act s.30(3); see also Countryside and Rights of Way Act s.49(4).↩︎
Eg Griffiths v Liverpool Corporation [1967] 1 QB 374; Meggs v Liverpool Corporation [1968] 1 WLR 689; Mills v Barnsley Metropolitan Borough Council [1992] PIQR 291; James v Preseli Pembrokeshire District Council [1992] PIQR 114.↩︎
Griffiths v Gwynedd CC [2015] EWCA Civ 1440 [18]; Kind v Newcastle upon Tyne City Council [2001] EWHC Admin 616 [18].↩︎
Thoburn v Northumberland County Council (1999) 1 LGLR 819.↩︎
Highways Act, Schedule 12A, para.3.↩︎
Ibid.62(3)(d), s.76, and s.77.↩︎
Ibid.62(3)(g) and s.100.↩︎
Ibid s100(3) and s.101(2).↩︎
Highways Act, Sch. 22.↩︎
Seekings v Clarke (1961) 59 LGR 268; Wolverton UDC v Willis [1962] 1 WLR 205.↩︎
Wiltshire CC v Frazer (n 2); Hackney LBC v Powlesland [2000] EWHC 2102 (Ch), a case featuring my colleague Paul Powesland as a defendant.↩︎