Rights of Way

Rights of way are important - for those wishing to exercise the right and for those over whose land the rights are exercised.

Rights of way are important – for those wishing to exercise the right and for those over whose land the rights are exercised. The law in this area can be complex, but in outline, people can walk on all public rights of way. Some public rights of way are also open to horse riders, cyclists or motorists. In addition to routes that can be followed, some land is known as 'open access land' or 'access land,' which can be accessed without having to use paths. This land includes land in private ownership.

An argument between a landowner and a county council has recently hit the headlines. The case involved the interpretation of the law as to whether a right of way ran through the landowner's property. She had erected a barricade across the route of the disputed right of way. Further she put grease on the fence to stop people climbing it. The arguments over the footpath had rumbled on for many years and it culminated in a public inquiry which found that the landowner's interpretation of the law was not correct and as a result she lost the case.

An interesting postscript about this story is that the landowner is a solicitor. The Planning Inspectorate rejected her claim for costs against the council on the basis that her interpretation of the law was 'entirely misplaced' and that the council had not acted unreasonably in its handling of the case.

There are many factors which make this an unusual case, but anyone wishing to buy a property, especially in a rural area or near to what looks like a pathway or access, should take specialist advice before committing to the purchase. A public right of way can run through private land, even gardens.

It is possible to do a search at the council to establish whether there are any rights of way affecting the property. The status of the path in the above case was unclear, but landowners should be very wary of the statement made by the Planning Inspector during the case when he said:

'Having found that the restricted byway is deemed to subsist, the legal maxim of “once a highway, always a highway” applies.'

This means that once a highway has come into being by whatever means it continues indefinitely no matter whether it is used or not. Public rights of way can be divided into:

  • footpaths (FPs)
  • bridleways (BWs); and
  • restricted byways (RBs); and
  • byways open to all traffic (BOATs).

All of these have a different meaning – so taking specialist advice may save years of disruption and argument.

To discuss this or any other property matter, contact us.