Landowners frequently asked questions

Plymouth benefits from a varied and diverse mix of land. The majority of the area is heavily urbanised but there are many rural and coastal areas and a heavy emphasis on tourism. This combined with our review of the definitive map and the huge increase in the number of Public Rights of Way in Plymouth over the next few years as a result of that review, is likely to create a degree of friction between landowners and users of the public path network.

The need for landowners and managers to have access to information specific to their interests and information on their rights and responsibilities has been acknowledged by us and as such if you are the owner or manager of land over which a public right of way subsists (or is alleged to subsist) this information is primarily for you.

• What is a public right of way?
• Is there a map which shows all Public Rights of Way in Plymouth?
• How wide is a public right of way?
• Who owns a right of way?
• Can I divert/close a public right of way?
• Can I divert/close a public right of way temporarily?
• What constitutes trespass against a landowner?
• Can I dedicate a public right of way across my land?
• What are Definitive Map Modification Orders?
• How can I protect my land from modification orders?
• Who maintains Public Rights of Way?
• Can I erect a gate or stile on a public path on my land?
• What is my liability towards the public?
• Who is responsible for waymarking?
• What happens if I obstruct a public right of way?

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What is a Public Rights of Way?

A Public Rights of Way (PRoW) is a way over which all members of the public have a right of passage. PRoW’s are legally highways and are afforded the same provisions under the Highways Act 1980 as any highway maintainable at public expense.

There are 4 types of Public Rights of Way:

Footpath

A way over which the public have a right of way by foot only although this includes use via an invalid carriage, eg electric wheelchair. Footpaths are way marked by a yellow arrow.

Bridleway

Where the public has a right of way on foot, in an invalid carriage, on horseback, leading a horse and on a bicycle. Marked by a blue arrow.

Byways Open to All traffic (Boats)

Where the public has a right of way on foot, in an invalid carriage, on horseback, leading a horse, on a bicycle, and by motorised or non-motorised vehicle. Marked by a red arrow.

Roads Used as Public Paths (RUPPs)

Where the public has right of way on foot, in an invalid carriage, on horseback, leading a horse and on a bicycle. Additionally, vehicular rights may exist.

Following the implementation of section 47 of the Countryside and Rights of Way Act 2000 all RUPPs will be redesigned as restricted byways. A restricted byway is a way where the public has a right of passage on foot, in an invalid carriage, on horseback, leading a horse, on a bicycle and by horse drawn or non-mechanically propelled vehicle. However, there are no RUPPS within Plymouth.

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Is there a map which shows all PRoW in Plymouth?

As Highway Authority, we hold and maintain a map known as the Definitive Map of Public Rights of Way. This map shows all the recorded PRoW within the administrative area of Plymouth. The Definitive Map is the only legal record of Public Rights of Way and is the basis on which other mapping, such as the Ordnance Survey maps, base their PRoW information. The Definitive Map is legally conclusive evidence of the existence, status and route of the ways shown upon it. However, it should be noted that the information on the Definitive Map is a minimum and the fact that a way is not shown upon it does not mean public rights do not exist.

The Definitive Map is accompanied by a statement which describes the route of each PRoW and may record information such as the paths length, recorded limitations and minimum width. The information recorded in the Statement is also conclusive evidence.

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How wide is a Public Right of Way?

There are several ways in which the width of a path can be established.

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Who owns a Right of Way?

The public's right to use the way is vested in us as the Highway Authority. As such it may be considered that we own the surface of the path and as much of the subsoil below and the air above as necessary to protect and maintain it. However Public Rights of Way mostly run across private land and as such there is nearly always a private owner of the surrounding land. The right of way is exactly that, a right, rather than a physical thing that can be owned.

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Can I divert/close a Public Right of Way?

We have the power to make Public Path Orders to divert or extinguish Public Rights of Way. Orders can be made in the landowners or the public interest and we conveniently provide application forms for this purpose. There is however no obligation on us to accept any proposal to divert or extinguish a public path. Should we choose to proceed with an application the applicant will be required to cover the actual costs incurred by us in doing so. Applicants should also be aware that the Public Path Order process is subject to objection and as such a successful outcome cannot be guaranteed.

The following are the types of Public Path Order the Council may consider:

Section 118 Highways Act 1980

Where it appears to a council that it is expedient that the path should be stopped up on the grounds that it is not needed for public use.

Section 119 Highways Act 1980

Diversions for securing the efficient use of land or providing a more commodious path.

Section 118/9ZA Highways Act 1980

Extinguishment/diversion of paths made in the interest of owners, lessees or occupiers of land used for agriculture, forestry or the breeding or keeping of horses.

Section 118/9A Highways Act 1980

Extinguishment/diversion of paths crossing railway lines other than by a bridge or tunnel, made in the interests of public safety.

Section 118/9B Highways Act 1980

Extinguishment/diversion of certain highways for the purposes of crime prevention in designated areas.

Section 118/9C Highways Act 1980

A special extinguishment/diversion of certain highways crossing school premises for the purpose of protecting pupils and staff from:

• violence
• threat of violence
• harassment
• alarm or distress arising from unlawful activity
• any other risk to their health and safety arising from such activity

Should you wish us to consider a proposal to divert or extinguish a right of way, or if you need further information on the procedure, please contact the Rights of Way Officer.

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Can I divert/close a Public Right of Way temporarily?

We can authorise the temporary diversion/closure of a Public Right of Way by means of a Traffic Regulation Order. If you require a temporary diversion or closure - to lay pipes or cables or to ensure the health and safety of the public whilst carrying out work or to facilitate special events for example you should contact our Right of Way Officer. We require at least eight weeks notice and you will be expected to pay our administrative costs and the cost of advertising the order. Temporary closures can last for a maximum of six months. An alternative path must be made available where possible.

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What constitutes trespass against a landowner?

The public have a legal right to 'pass and repass' along the way. They may stop briefly to rest or admire the view providing they remain within the legal boundaries of the path and do not cause an obstruction. A person who strays from the legal line of the path or uses it for purposes other than to 'pass and repass' or if the public are on private land off a recorded Public Right of Way or where (or when) access arrangements do not apply, commits trespass against the landowner. In most cases the act of trespass against a landowner is a civil rather than a criminal offence. As such notices stating 'Trespassers will be prosecuted' are generally meaningless.

However, a landowner could claim this as trespass. As such a landowner may request the trespasser leave their land. In the first instance this should be in the form of a firm, but polite, verbal request and, as most people do not enter land with the intent of causing a nuisance, this often suffices. However, a landowner may use reasonable force, such as leading a person by the arm, as a last resort to get the trespasser to leave. Whilst the use of such ‘reasonable force’ is possible it is never advised, as the use of unreasonable or unnecessary force by a landowner may constitute battery. We are of the belief that if public access is properly managed trespass is unlikely to occur.

If however a way over which the public have a legal right to pass is obstructed users are lawfully entitled to deviate from the line of that path to continue along their way without having been considered as trespassing as long as they stay on the same landowners land.

Criminal prosecution could only arise if a trespasser damages property. Unless a landowner can prove that their land or property was damaged in some way they could only really recover nominal damages by suing a trespasser. However for repeat occurrences a landowner may seek an injunction against a person returning to the land in question.

Some land, such as land around railways, airports and military land is protected under criminal law and it may be an offence to walk there without permission. However such land is usually clearly marked and fenced off.

Can I dedicate a Public Right of Way across my land?

Under Section 25 of the Highways Act 1980 we have the power to enter into an agreement with any person having the capacity to dedicate a footpath or bridleway within its area. This means a landowner can effectively give the public the use of a way and that way becomes maintainable at public expense. We are under no obligation to enter into such an agreement but provides a standard application pack for landowners wishing to make an application for consideration.

What are Definitive Map Modification Orders?

Whilst the Definitive Map is considered conclusive evidence of the rights shown upon it the reverse is not necessarily true. That is to say that because a way is not recorded on the Definitive Map does not mean public rights do not exist or that additional rights exist over a way already recorded (for example a greater width or bridleway rights instead of a footpath). As such any member of the public who believes the information shown on the Definitive Map should be amended or rights exist that are currently not shown may apply to us under the provisions of the Wildlife and Countryside Act 1981 for an Order to be made to change the map. Such an Order is known as a Definitive Map Modification Order and its effect is to modify the Definitive Map and Statement to ensure it is a correct record of the public’s rights.

The most common scenario in which a landowner or manager would come across a Modification Order is when a member of the public is alleging a Public Right of Way exists across their land. This might occur for example when a landowner prevents public access across a way which the public had historically been using in the belief it was public.

Modification Orders are all about evidence, not desirability, and we will invite the submission of evidence from all interested parties. This includes the evidence of the applicant in the form of documentary and user evidence and any evidence provided by the landowner(s) that might offset (or indeed support) the claim.

As part of the application process the applicant of a Modification Order is required to serve notice upon all affected owners/occupiers of the land in question although they may be permitted to serve notice by posting it on site. Following from this we will contact those identified landowners and seek their views on the application. We are obliged to seek the truth of the matter and acknowledge that whilst there may be considerable evidence to support the existence of public rights as provided by the applicant the landowner may have taken steps to prevent public rights accruing which may effectively offset that evidence (see 'How can I protect my land from Modification Orders?'). The Landowner is entitled to view any evidence for claimed public rights across their land.

Once all evidence is available for consideration the matter will go to Committee who will make a judgement as to the probability of the existence, or not, of public rights. If Committee decide that public rights exist the Order will be made and advertised. If objections to that Order are received and cannot be removed the matter will pass to the Secretary of State for determination who may hold an inquiry.

We will remain consistent in our approach to Modification Orders and will remain unbiased and transparent at all times. As such as much help and guidance will be offered to landowners or objectors to an Order as is offered to applicants.

Landowners should also be aware that we are unlikely to be responsible for the maintenance of public paths recorded by Modification Orders.

For advice and further information on the Modification Order Process please contact our Rights of Way Officer.

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How can I protect my land from Modification Orders?

Regular use by the public of a way not recorded on the Definitive Map may, over time, result in public rights accruing. To prevent this a landowner or manager must demonstrate that, during the period over which a claim for public rights is made, there was no intention for the way to be dedicated to the public. There are many ways in which this can be demonstrated, for example, erecting signs and displaying notices, placing fences and locked gates on the route and turning people back who you discover walking it.

However, you do not have to stop the public using the path to prevent public rights accruing. Giving permission to the public to use the path is another way. This effectively creates a permissive path (one used by permission only) and by periodically removing this permission you will stop rights building up. Many landowners allow and even promote permissive access and close the path, often on Christmas day each year, for this purpose.

A landowner can also place a plan and statement on deposit with us under Section 31(6) of the Highways Act 1980 and a standard application pack for this purpose can obtained from the Rights of way Officer.

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Who maintains Public Rights of Way?

Whilst the public rights associated with a Public Right of Way are vested in us there is generally an owner of the underlying private land. As such the responsibility for the maintenance of these paths is shared between us and the surrounding landowner.

The Landowner is responsible for ensuring rights of way are kept free from obstructions, that they are kept clear of side growth and overhanging vegetation and that any authorised limitations (gates, stiles etc) are kept in good repair.

The following is a summary of the key responsibilities.

We are responsible for:

• signposting rights of way where they leave a highway and waymarking routes where appropriate
• keeping the path free of surface vegetation
• ensuring the right of way is in a reasonable condition commensurate with its use and status
• helping landowners in repairing gates and stiles
• ensuring paths are free of obstructions

Landowners are responsible for:

• keeping paths free of side growth and overhanging vegetation
• maintaining gates and stiles
• keeping rights of way free of obstructions

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Can I erect a gate or stile on a public path on my land?

You must have the authorisation of us to erect a limitation (gate, stile or any other structure) on a Public Right of Way. Without this authorisation such a limitation will be considered an unlawful obstruction and we have powers to seek its removal.

There are three circumstances in which such consent might be granted:

• when a limitation is required in order to control the ingress or egress of animals
• where a limitation is required for the purpose of safeguarding the public
• when the Definitive Map and Statement has recorded the presence of a structure as a limitation on the right of way

The law will only allow the erection of a limitation, such as a gate or stile, on a footpath or bridleway. A limitation will not be authorised on a byway open to all traffic (BOAT).

If a landowner wishes to install a limitation on a right of way they must seek the consent of off us and a standard application pack is conveniently available for this purpose. We have a duty to ensure the public’s use of a path is not impeded unnecessarily. Therefore, the onus will be on the applicant to prove the need for the structure.

Preference will be given to requests for gates over stiles. Stiles will only be considered as replacement structures where there is no local need for easier access and an alternative structure cannot be made suitably stock proof eg a self closing latched gate or a kissing gate.

Any authorisation granted to erect a structure on a Public Right of Way would be subject to the terms and conditions detailed on the application form. Further information on the procedure and the necessary application form can be found on the Useful Forms and Guidance Page.

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What is my liability towards the public?

Owners and occupiers of land crossed by Public Rights of Way can be liable for injuries caused to path users by their negligence. For example, if a stile were to collapse under a walker, or if a path user were to be injured by a barbed wire fence placed across a path, then the injured party may pursue a claim against the occupier of the land.

Under the Occupiers Liability Act and other legislation you owe a legal duty of care to visitors to your land (and in law this includes path users). These duties have implications for your public liability insurance and we always advise landowners to seek professional advise to ensure they have appropriate cover.

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Who is responsible for waymarking?

As a Highway Authority we have a duty to signpost rights of way where they meet a public highway. The signs will show whether a path is a footpath, bridleway or byway and may also show other information such as destination and distance.

We also have a duty to waymark paths along the route so far as they consider it appropriate. 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.

The Countryside Act 1968 Section 27 sets out the powers and duties of the highway authority to signpost and waymark footpaths, bridleways and byways.

It is important that paths are signposted and accurately waymarked as this gives users and landowners/occupier increased confidence in the network and its use.

When a report is received concerning inadequate waymarking, the whole length of the path and others connecting with it will be inspected. Consideration may then be given to whether or not to place additional waymarks on the route.

Signposts or waymarks are placed to minimise obstruction to the free passage of people who will be using the route. They will normally be placed at the edge of a path but remain within its boundary or within the boundary of another public highway. Signposts and waymarks will not be positioned where there is a likelihood they will be hit by farm vehicles. They may be positioned opposite the path entrance where this is more appropriate.

Signposts and waymarks are placed to ensure they are visible when approached along the line of the path from any direction.

The exact position of each shall be decided by the Public Right Of Way Officer or someone authorised on his behalf.

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What happens if I obstruct a Public Right of Way?

We have a duty to assert and protect the rights of the public to the use and enjoyment of the Public Rights of Way network under the provisions of the Highways Act 1980. The Highways Act 1980 Section 137 is of particular importance. It is an offence if a person without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway.

The following is a list of some of the more common obstructions:

• agricultural obstruction
• barbed wire
• bulls
• crops
• cultivation and ploughing
• dangerous animals
• deposits on the Highway
• ditches, ponds and channels
• intimidation
• misleading signs and notices
• obstruction by vehicles
• overhanging vegetation/fallen trees
• unlawful structures/restrictions

This list however is not exhaustive and it should be considered that anything that impedes access along a right of way is an obstruction, unless mentioned in the definitive statement or subsequently authorised.

It is acknowledged that the obstruction of a right of way is not always intentional and we will always seek an amicable resolution to the matter through dialogue. However, should this approach not prove successful we may exercise our powers of enforcement which will legally require a landowner to remove an obstruction or face us removing it for them and recovering our costs against the landowner through the Courts. We are also able to prosecute landowners for repeat offences.

New legislation introduced by the Countryside and Rights of Way Act 2000 has placed additional powers with the Courts.

Firstly, it added new Section 137ZA to the Highways Act 1980, which gives the Courts power to order anyone convicted of an offence under Section 137 to remove the obstruction. Failure to comply is a second offence punishable by a fine of up to £5000; and failure to comply with that is a third offence punishable by a fine of up to £250 per day.

Secondly, it added new sections 130A-130C, into the 1980 Act, which gives any person power to serve notice on us (the Highway Authority) requiring us to secure the removal of an obstruction. After two months, if the obstruction has not been dealt with, the complainant, having notified us of his intention to do so, may apply to the Magistrates’ Court for an order requiring us to take action. If satisfied that certain statutory criteria are met, the court may order the removal of the obstruction.

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