Circular from the Dept. of the Environment

1. This circular consolidates and amplifies, where necessary, previous advice and guidance on recording, maintaining, protecting and modifying the rights of way network. It also draws attention to and describes the new provisions in section 47 of; and Schedule 2 to, the Transport and Works Act 1992. These amend the Highways Act 1980 and enable local authorities to stop up or divert a footpath or bridleway in their area which crosses a railway, otherwise than by tunnel or bridge, where this is considered expedient in the interest of public safety. The commencement order which gave effect to these provisions came into operation on 22 December 1992.

2. Attention is also drawn to the Town and Country Planning (Public Path Orders) Regulations 1993 (SI 1993 No. 10), the Public Path Orders Regulations 1993 (SI 1993 No.11), the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 (SI 1993 No.12) (which replace and re-enact the 1983 Regulations) and to the Rail Crossing Extinguishment and Diversion Orders Regulations 1993(S11993 No.9). The circular also provides guidance on the making and confirmation of orders; the revision of definitive maps; the statutory procedures relating to public path and rail crossing orders (Annex C); and the relationship between development and public rights of way (Annex D). It also lists the addresses of those organisations to which copies of statutory notices of the making and confirmation of orders must be sent (Annex E).

3. The provisions described in this circular are not considered to necessitate, of themselves, any additional local authority manpower or increased expenditure. However some authorities may need to adjust their priorities to take account of the likely demand for rail crossing orders in their areas, following discussions with railway operators. All authorities should seek to ensure that sufficient resources are available to meet their statutory duties with regard to the protection and recording of public rights, and that the rights of way network is in a fit condition for those who wish to use it.

MANAGEMENT OF PUBLIC RIGHTS OF WAY

4. Our extensive network of public rights of way is a unique legacy, which provides a major recreational resource and the opportunity to experience the immense variety of our landscape and the settlements within it. It is a legacy to be used as well as cherished. In its White Paper "This Common Inheritance" (CM 1200), and in its response to the National Park Review Panel's report, the Government endorsed the Countryside Commission's and the Countryside Council for Wales' objectives that the entire rights of way network in England should be brought into good order by the year 2000, and in Wales and the National Parks by 1995. All parties-including local authorities, landowners, path users and voluntary bodies-are therefore urged to work together to ensure that rights of way are legally defined, properly maintained and signposted and kept open and available for public use.

5. Rights of way continue to serve their primary function of providing access for people within their local community, but this role has changed dramatically during the present century. Many rights of way are now used principally for recreational purposes and constitute a valuable resource which is being enjoyed by a large and increasing number of people. If the full recreational potential of public rights of way is to be realised it is desirable that they are considered and managed by local authorities as an integral part of the whole complex of recreational facilities within a given area. Authorities are therefore encouraged to draw up rights of way strategies which will enable them to address overall needs, the work to be done and the most effective way of using all the resources at their disposal, including the valuable help and assistance of the voluntary sector. They should also be aware of; and consider supporting, initiatives by the Countryside Commission, such as the Parish Paths Partnership, and by the Countryside Council for Wales; and capitalise on local interest, experience and knowledge by acknowledging the valuable part local people can play in improving their paths.

Liaison Groups

6. The Secretaries of State welcome the establishment of liaison groups which draw together the representatives of all interests in the rights of way network. These are particularly valuable in developing mutual understanding and co-operation, resolving problems that arise quickly and efficiently and helping authorities determine priorities for action. In those areas where changes are needed to the present network to ensure that it is better suited to the varying needs of the different user groups, or to help achieve the efficient use of land for agriculture or protect wildlife, liaison groups can also play a valuable role in helping to define proposals and in ensuring that they represent the best possible balance between, and confer the greatest mutual benefit to, all interests.

Guide to Procedures

7. Greater understanding of the statutory criteria which apply to the making of creation, extinguishment and diversion orders, should further reduce disagreement and conflict and secure beneficial changes at minimum cost. Path users are also likely to be more receptive to changes where existing rights of way are already open and available for use The Countryside Commission will be publishing a guide to the procedures for making public path orders which will help to highlight best practice. Practical advice will also be provided in the Countryside Council for Wales' proposed guide for devising local routes and trails.

Publicity for Paths

8. Authorities should aim to provide the public with information on the full range of choices available for enjoying the rights of way network. All such information should be accessible, comprehensive and well promoted. Authorities should also take careful account of the views of local people including landowners, and should ensure, before undertaking publicity for particular routes, that there is a clear commitment to future maintenance, having regard to the possible increase in use. There may also be a need to obtain planning permission for any additional facilities to be provided along well used routes. The opportunity should be taken to promote understanding of the countryside and environmental concerns. publicity can also be used to draw attention to any restrictions due to the operation of local byelaws.

9. The promotion of paths which pass over heavily used major roads or railways may result in increased numbers of people using these crossings, thereby increasing the risk of accidents. Highway authorities should therefore have regard to the potential threat to public safety when promoting such routes and take such steps as they consider necessary to reduce the risk to the public in crossing such roads. In the case of railway crossings, authorities should consult the Health and Safety Executive's Railways Inspectorate and the British Railways Board who will advise on the implications for safety of increased use. Further guidance on level crossing safety and the planning system is provided in DOE Circular 27/92 Welsh Office Circular 62/9].

Wardens

10. The countryside serves many purposes, as workplace and home as well as a place for recreation. Local authorities have powers to appoint wardens, both within the countryside generally and, by virtue of section 62 of the Wildlife and Countryside Act 1981 (the 1981 Act), to act on public rights of way. Wardens can help advise and assist members of the public on the use of public rights of way. They can also guard against thoughtless and irresponsible behaviour which so often sours relationships between landowners and rights of way users.

Bulls on land crossed by public Rights of Way

11. Agricultural operations should not interfere with the use of public rights of way (but see paragraph 12 below on the ploughing of public paths). It is an offence under section 59 of the 1981 Act for an occupier to permit a bull to be at large in a field or enclosure crossed by a public right of way except where the bull (a) does not exceed 10 months, or (b) is not of a recognised dairy breed and is accompanied by cows or heifers. These provisions do not affect the obligations that employers and others have under the Health and Safety at Work Act 1974 not to put at risk the health and safety of third parties. In addition, under certain circumstances, the keeper of any animal may be liable, under section 2(2) of the Animals Act 1971, for any damage caused by that animal.

Ploughing of Public Rights of Way

12. Ploughing of paths and encroachment by crops significantly interferes with public enjoyment of the countryside. The Rights of Way Act 1990 replaced the provisions in sections 134 and 135 of the Highways Act 1980. The Act allows disturbance of a cross-field footpath or bridleway in the course of agricultural operations, but only if it is inconvenient to avoid such disturbance. There is, however, no right to disturb the surface of a field edge path. The occupier is under a duty to restore the surface of any disturbed path or way quickly and ensure that their line is apparent on the ground, and to keep all rights of way clear of crops other than grass. The highway authority has a duty to make sure that these objectives are complied with and, where they are not, the authority may enter onto the land, carry out any necessary works and recover its costs. The new section 135 provides a power for the highway authority to authorise by order other works for the purposes of agriculture which may disturb the surface of a footpath or bridleway and they may also authorise the temporary diversion of the path. Further guidance is provided in DOE Circular 17/90 [Welsh Office Circular 44/90).

Traffic Regulation Orders

13. Conflicts over the type of use may occur on some public rights of way and authorities should look to solve these where possible by management measures, based on cooperation and agreement. User groups will often agree to measures involving voluntary restraint, which they themselves will help monitor. Under the Road Traffic Regulation Act 1984 orders can also be made to prohibit, restrict or regulate traffic using particular highways, including footpaths, bridleways and byways open to all traffic (BOATs). The term "traffic" includes pedestrians and persons driving, riding or leading horses or other animals of draught or burden. The Act sets out the purposes for which such orders may be made. These include preventing danger to persons or other traffic using the road, preserving the character of the road for use by persons on horseback or foot and preserving the amenities of the area through which the road runs. The Secretaries of State commend the use of such orders to prevent inappropriate use and to protect the countryside where this is necessary and other management measures have failed or are considered inadequate.

14. Sections 14 and 15 of the Act, as substituted by Schedule 1 of the Road Traffic temporary Restrictions) Act 1991, also enable temporary traffic orders to be made for periods of up to six months in respect of footpaths, bridleways, cycle tracks and BOATs, or up to 18 months for other highways. In considering such orders highway authorities are required to have regard to the existence of alternative routes suitable for the traffic which would be affected by the order. See also Department of Transport Circular 4/92 [Welsh Office Circular 31/92] on temporary traffic restrictions.

MAINTENANCE OF PUBLIC RIGHTS OF WAY

15. Most public rights of way are maintainable at public expense although some still remain privately maintainable. The duty rests with county, metropolitan district and London borough councils, as the highway authorities for their areas, by virtue of sections 1,36 and 41 of the Highways Act 1980. Under the terms of subsection 36(6) of the 1980 Act, highway authorities are also required to keep an up to date list of the streets in their area (which include public rights of way) that are maintainable at public expense. 16. Non-metropolitan district councils may, none the less, assume responsibility for the maintenance of footpaths and bridleways in their area in accordance with section 42 of the Act. They may also undertake the work on behalf of the highway authority on an agency basis under section 101 of the Local Government Act 1972. In addition section 43 of the 1980 Act empowers parish or community councils to maintain footpaths and bridleways within their area without the prior consent or agreement of the highway authority, but the maintenance of footpaths and bridleways by such councils does not absolve highway authorities from discharging their responsibilities. Responsibility for the maintenance of gates and stiles, however, rests with the landowner who may also be required to cut back any hedges or trees on his or her land which overhang or obstruct a highway-sections 146 and 154 of the 1980 Act refer.

17. Section 50 of the 1980 Act also empowers district, parish and community councils to maintain footpaths and bridleways not maintainable at public expense (without prejudice to the responsible owners' rights and duties). Where rights of way exist that are not publicly maintainable but are nevertheless an important part of the path network, authorities are asked to give sympathetic consideration to the maintenance needs that can arise and be prepared to take appropriate action albeit that they do not have a statutory duty to do so.

18. The Secretaries of State do not regard it as practicable to recommend specific standards for the maintenance or restoration of the different kinds of public rights of way. The main consideration in determining the degree of maintenance for individual paths or ways is that they should serve the purpose for which they are primarily used and not that they should conform to an arbitrary standard of construction or maintenance. Generally speaking they should be capable of meeting the use that is normally made of them throughout the year. In addition whatever work is done should harmonize with the general appearance and character of the surroundings. Authorities should also seek to use any assistance which may be available from landowners and voluntary groups, in carrying out their work.

Protected Species and Sites of Special Scientific Interest (SSSIs)

19. Part I of the Wildlife and Countryside Act 1981 sets out the protection afforded to wild fauna and flora and the Schedules to the Act list those birds (Schedule 1), animals (Schedule 5) and plants (Schedule 8) given special protection. The deliberate killing, injury or taking of protected species, or damage, destruction or obstruction of places used by such species for shelter or protection is an offence under the Act, as is the disturbance of such species. The Act does, however, provide a defence if it can be shown that the action which caused the harm was the incidental result of a lawful operation, which may include the duty to maintain a highway, and could not reasonably have been avoided. This provision does not apply to bat species, however, unless prior notification has been given to English Nature or the Countryside Council for Wales. Similar protection is also afforded to badgers and their setts under the Protection of Badgers Act 1992.

20. Section 28 of the Wildlife and Countryside Act 1981 (as amended) provides for the notification of SSSIs and requires the owner or occupier of the land in question to obtain permission from English Nature, or the Countryside Council for Wales, before certain potentially damaging operations can be carried out. These operations, which are notified to every owner or occupier within the SSSI, may include those activities normally associated with the creation or routine maintenance of highways. Highway authorities are therefore advised to consult informally with English Nature, or the Countryside Council for Wales, before carrying out any operation affecting an SSSI, including path maintenance. Further guidance on development and SSSIs will be provided in a Planning Policy Guidance Note on Nature Conservation which is to be published shortly.

Signposting

21. Section 27 of the Countryside Act 1968 (as amended) requires highway authorities to signpost footpaths, bridleways and BOATs, where they leave metalled roads, and where it is considered necessary to assist anyone unfamiliar with the locality to follow the line of the path or way. There is also a power to place signs along a path or way. The owner or occupier of the land crossed by the right of way must always be consulted before any sign is erected and their consent must be obtained if the sign is to be placed on their property. A signpost need not be erected at the junction of a path or way with a metalled road where the parish or community council, or the chairman of the parish meeting, agree with the highway authority that this is not necessary. The Secretaries of State note that progress has been uneven and again urge authorities to utilise any assistance offered by landowners and voluntary groups to ensure that this statutory requirement is met within the time frame set out at paragraph 4 above. 22. The term "signpost" also includes other signs such as a painted waymark. Further guidance relating to rights of way in England is provided in a leaflet entitled "Waymarking Public Rights of Way", copies of which are available from the Countryside Commission. Signposting and waymarking of public rights of way are of considerable benefit to path users, and also to landowners by helping to prevent trespass. Authorities should ensure that members of the public are provided with sufficient information, by means of appropriate signs or notices, particularly at path junctions, to enable them to use the local rights of way network. This is especially important where paths have been altered by means of statutory orders.

RECORDING OF PUBLIC RIGHTS OF WAY: DEFINITIVE MAPS AND STATEMENTS

23. Definitive maps are valuable in two respects: firstly, as documentary records of public rights of way, which have to be made publicly available (Section 57(5) of the 1981 Act), and secondly, as conclusive evidence of the existence of those rights as at the relevant date assigned to each definitive map. They indicate where the public may lawfully walk or ride, though they do not exclude the possibility that other rights may exist. Definitive maps and statements must be kept under continuous review and modified by way of orders as and when events of the relevant kind occur. Anyone with substantive evidence of an error or omission may apply to the surveying authority for an order to modify the definitive map and statement, and there is a subsequent right of appeal to the Secretary of State in the event of a refusal.

24. These procedures should enable continuous progress to be made in keeping definitive maps up to date. Where a backlog of proposals for amending the definitive map has built up, surveying authorities are urged to take appropriate action to make available the necessary resources, to ensure that their definitive maps are brought up to date by the target dates in paragraph 4. It is also recommended that authorities should periodically publish a statement setting out their priorities for bringing and keeping the definitive map up to date in accordance with these targets, and with section 53(2) of the Act-ie as soon as reasonably practicable. Potential applicants should have regard to that statement in deciding when to submit their applications for orders. The Secretaries of State will take into account the existence of any such statement in considering requests for a direction where no decision has been made within the stipulated 12 months period.

Deemed Dedication

25. Section 31 of the Highways Act 1980 provides that a way may be presumed to have been dedicated as a highway if it has actually been enjoyed by the public as of right and without interruption for a full period of 20 years calculated retrospectively from the date on which the right of the public to use the way is brought into question. Alternatively, a public right of way may be established over a shorter period if its status can be established at common law-ie there is clear evidence that the way was in fact dedicated at some time in the past. Evidence of such use will be considered in keeping definitive maps under review. Landowners can, however, take steps to negate the intention to dedicate a right to way by, for example, closing the way for one or more days a year, or erecting notices which clearly indicate that no public right of way exists. Further, under section 31(6) a landowner may deposit with the highway authority a map (of a scale of not less than 1:10560 [6 inches to the mile]) and statement showing those ways, if any, which he or she agrees are dedicated as highways. This statement must be followed by statutory declarations, at not more than 6 yearly intervals, that no additional rights of way have been dedicated. By virtue of section 228 of the Local Government Act 1972 these maps, statements and declarations must be kept available for public inspection. Authorities are recommended to compile a register of these records.

PROTECTION OF PUBLIC RIGHTS OF WAY

26. By virtue of section 130(1) of the Highways Act 1980 county, metropolitan district and London borough councils have a duty, as highway authorities, to assert and protect the rights of the public to use and enjoy those public rights of way for which they are responsible. They also have a similar duty under section 130(3) of the Act to prevent, as far as possible, the stopping-up or obstruction of those public rights of way for which they are responsible. Highway authorities are also empowered to safeguard public enjoyment of those highways for which they are not responsible, and to prevent the stopping up or obstruction of such highways where this is considered to be prejudicial to the interests of their area. It is also an offence under section 137 of the Act for a person to obstruct a highway without lawful authority.

27. District councils may also assert and protect these public rights but are under no statutory obligation to do so unless they are acting on behalf of the highway authority. In addition highway authorities are required under subsection (6) to take remedial action whenever they receive representations from a parish or community council or parish meeting that a path or way has been obstructed or stopped-up, or that unlawful encroachment on to roadside waste has taken place, unless satisfied that the representations are incorrect. The Act empowers highway and other authorities to institute legal proceedings or take whatever steps they deem expedient in discharging these duties.

28. The most common problem that authorities are likely to encounter in discharging these duties is the obstruction of public rights of way. Since it is important that public rights of way should remain unobstructed and open for public use the Secretaries of State look to authorities to ensure that any obstructions they discover or have reported to them are removed without undue delay. In this connection section 143 enables highway authorities, or district councils acting on their behalf when maintaining the highway, to secure the removal of structures on the highway by serving notice on the person responsible and by removing the obstruction themselves at the person's expense should that person fail to comply with the notice. Section 149 also enables an authority to have any "thing" so deposited on a highway as to constitute a nuisance or danger to users removed forthwith.

29. The public are entitled to expect that all rights of way will be kept open and available for use. It is therefore important that authorities act quickly to investigate any complaint made to them, and to resolve the problem if the complaint is found to be justified. It will often be possible to do so amicably with the co-operation of the person concerned and, providing they do so quickly, this will normally be sufficient. Where further action by the authority is necessary, however, preference should be given to using whatever default powers the authority has available to carry out the works itself and recover its costs. Legal proceedings are invariably time consuming and should therefore be used only where other means are not available or where the problem persistently recurs.

30. Evidence may be available to suggest that a public right of way shown on the definitive map does not exist. However, the map is conclusive as to the rights of way shown to exist on it (without prejudice to the existence of other rights-see section 56(1) of the 1981 Act) and the path or way must remain open and available for use until the definitive map has been amended, or closure procedures have been complied with.

31. In some cases the alleged obstruction is recorded in the definitive map and statement. Since a statement is conclusive evidence of any recorded limitations or conditions affecting the public right of way, the use of the path or way is, as a result, subject to the obstruction even though it may be inconsistent with the status of the right of way. The statement may of course be amended by means of a modification order, if there is evidence that it is incorrect.

CHANGING PUBLIC RIGHTS OF WAY

Rail Crossing Orders

32. The changes to the Highways Act 1980 made by section 47 and Schedule 2 to the Transport and Works Act 1992 introduce two new types of public path order, to be known as rail crossing extinguishment orders and rail crossing diversion orders. The procedures for making these orders are much the same as those for public path orders, and are described in more detail in Annex C. However, the confirming authority must be satisfied that it is expedient to make an order having regard to all the circumstances, in particular to whether it is reasonably practicable to make the crossing safe for use by the public: and to the arrangements to be made for ensuring that, if the order is confirmed, any appropriate barriers and signs are erected and maintained. In the case of a rail crossing diversion order, the authority may also require the operator of the railway to maintain all or part of the public path created by the order.

33. The Rail Crossing Extinguishment and Diversion Orders Regulations 1993 also prescribe the type of information the rail operator must supply when making a request for a rail crossing order. Where the council has neither confirmed the order, nor submitted it to the Secretary of State for confirmation, within six months of receiving the application, the Act empowers the Secretary of State to make the order himself without consulting the council, although the Secretaries of State would normally only use this reserve power in response to a written request from the operator.

Public Path Orders

34. Procedures for making public path orders remain unchanged, but the 1983 regulations have been revoked and re-enacted to take account of the consolidation of the Town and Country Planning legislation in the 1990 Act. The wording of the prescribed orders and notices has also been simplified and the list of organisations (Annex E) who must be notified of the making and confirmation of orders extended to include the British Driving Society (definitive map orders only) and Cyclists Touring Club.

Magistrates' Court Applications

35. Section 116 of the Highways Act 1980 enables a highway authority-a London borough, metropolitan district or county council-to apply to a magistrates' court for an order to stop up or divert a highway of any description, other than a trunk or special road. The provisions apply therefore to footpaths and bridleways, even though powers are available in Highways and other legislation for securing the extinguishment or diversion of footpaths and bridleways. While it is recognised that there may be circumstances where it is appropriate to use the magistrates' court procedure, for example the extinguishment or diversion of a footpath or bridleway (or to retain such rights) simultaneously with the extinguishment of a vehicular right of way, the Secretaries of State consider that authorities should make use of the other powers available unless there are good reasons for not doing so.