Highways are without doubt the most complicated issue land referencers face. This is because their ownership (public and private) and boundaries can be obscure and the legal principles that establish the rights over them are ancient and complex. As with the previous questions posed in this series, there is no short answer to last week’s question, which was about the types of highways that exist in the UK and what rights are enjoyed over each. Here I give a very brief overview of the essentials for land referencers.
In the UK there is no automatic right for the pubic to access land held by others. Instead people must keep the routes set out. (Even where there is a ‘right to roam’ these rights come with conditions.) Some of these routes have been formalized to permit certain types of traffic – such as the public roads we use every day which are usually formally set out with tarmac-ed surfaces, footways, verges, etc. (Note, I describe a pavement as a ‘footway’ not a ‘footpath’, which is something quite different…) These highways are managed and maintained by the relevant highway authorities and, whilst occasionally complex in themselves, are generally well-understood. It is the other rights that are more interesting. In England and Wales other routes may be limited to foot traffic only (footpaths), for the additional use of those on or leading a horse (bridleways), which also permit passage on bicycles. There are also byways (roads used as a public path or green lanes), which are usually unsurfaced roads open to all traffic (although some may not be physically capable of accommodating vehicles or types of vehicle – possibly they are too narrow for cars, for instance); and restricted byways, which are closed to motorized vehicles but open to non-motorized traffic such as carriages. In England and Wales, a public right of way is defined as one set out on a ‘definitive map’ which every local authority must have (except the 12 inner London boroughs and for some reason the Isles of Scilly). These are an essential resource for land referencers – although confusingly these maps are only ‘definitive’ proof of the existence of a right of way but are not proof that one does NOT exist.
Scotland has different laws and no definitive maps but enjoys a network of rights not dissimilar, as well as other resources that set out where they are. In N Ireland the law is different again and as a result has very few public rights of way. Some obliging landowners may permit access over their land via a permissive path, which grants no rights but offer access to the public. (In N Ireland this type of way accounts for the majority of these sorts of paths.) Interestingly, some landowners point out that no rights exist over their land by erecting signs warning that ‘trespassers will be prosecuted’. Whilst trespass is a civil wrong and must be avoided, the legal logic of such notices is flawed as trespass is not usually a prosecutable offence – although, as with all of these matters, there are exceptions such as breaches of court orders, criminal damage and s.128 of the Serious Organized Crime and Police Act 2005. It is important that land referencers take a precautionary approach to complex issue of public rights of way and ensure those affected by our projects are always properly researched and recorded.
For next time I’d like you to consider the variety of unique references we use in our work to clearly identify people and places.
This article is written by Ashley Parry Jones, Director – Planning, WSP. The opinions expressed are those of the author and do not purport to reflect the opinions or views of WSP or SoLR or its members. The information provided does not and is not intended to constitute legal advice and instead is offered for general purposes only. It does not constitute the most up to date legal information. Any links and references provided are for the readers’ convenience only and do not constitute a recommendation of those sources.
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