Public Rights of Way Legislation Public Rights of Way Legislation - - PowerPoint PPT Presentation

Public Rights of Way Legislation

Public Rights of Way Legislation The Powers and Duties of Highway Authorities, Parish Councils and Individuals

Nigel Farthing Carol Ramsden

Some history…

Statute of Westminster 1285

• Gave local maintenance responsibilities to local inhabitants
• Set out the ‘Breadth of Highways leading from one Market-Town to another’

‘It Starts with The Map”

National Parks & Access to the Countryside Act 1949

The County Council was required:

• To carry out a survey of all

lands….over which a right of way…is alleged to exist

• To consult with district and parish

councils

• To prepare draft, provisional and

(finally) The Definitive Map and Statement

Today

The Definitive Map and Statement record:

• Footpaths: for walkers
• Bridleways: also for horseriders and pedal

cyclists

• Restricted Byways: also for non-motorised

vehicles (horses and carts)

• Byways Open to All Traffic (BOATs): also

for motor vehicles

The Definitive Map and Statement

The Duties of the Surveying Authority include:

• Keeping the Definitive Map and Statement under continuous review
• Having copies of the Definitive Map and Statement available for public

inspection

• Copies are supplied to parish Councils
• Digitalising the Definitive Map and Statement: a new project for

Norfolk?

The role of the Definitive Map and Statement in maintenance is to identify: Location of routes Status of routes Width of routes (sometimes) Is it a highway maintainable at public expense?

The Definitive Map and Statement

Powers and Duties

The Difference between a Power and a Duty: The Highway Authority….are under a duty to maintain the highway. (HA80 S41) The District Council may undertake the maintenance of any eligible highway in the district…and the highway authority shall reimburse…any expense incurred. (HA80 S42) The Parish Council….may undertake the maintenance of any footpath, bridleway or restricted byway within the parish which is a highway maintainable at public expense. (HA80 S43) The Highway Authority and a District Council may undertake to defray the whole or part of any expenditure incurred by the Parish Council. (HA80 S43.2)

Highway Authority Duty

“The highway authority who are for the time being the highway authority for a highway maintainable at public expense are under a duty…to maintain the highway. In particular a highway authority are under a duty to ensure, so far as it reasonably practicable, that safe passage along a highway is not endangered by snow or ice.” (HA 80 S41) Section 329 of HA80 provides that “maintenance” includes “repair”. Apart from this, there is no statutory definition of the word “maintenance”. Defence for the highway authority is provided in Section 58 of HA80.

Highway Authority Duties

More duties:

• To assert and protect the rights of the

public to the use and enjoyment of the highway S130 HA80

• To enforce restoration after ploughing

where it is lawfully carried out

• To take action after unlawful ploughing
• To ensure crops do not encroach on to

highways

• To signpost footpaths, bridleways and

restricted byways where they leave the road and where required to assist those unfamiliar with the locality

• To prosecute anyone erecting a

misleading notice

Highway Authority Powers

Powers of the Highway Authority include:

• To erect other signage
• To make Orders to create, divert and

extinguish public footpaths, bridleways and restricted byways

• To improve, widen or level routes
• To provide furniture (eg barriers, fences) to

safeguard the public

• To construct a bridge
• To undertake drainage works
• To remove structures
• To authorise stiles and gates
• To require overhanging vegetation to be cut

back

The Parish Council Power of Maintenance

By Agreement with the Highway Authority The Parish Paths Partnership Scheme Independently Funded from the Precept?

Parish Council Maintenance

Agreement with Local Landowners Using Employees/Contractors Using Volunteers Public Liability Insurance Risk Assessments

‘Powers’ of the Individual

• To pass and repass
• To deviate if a route is obstructed

(limited)

• Incidental to exercising the right to pass

and repass: – to cut or tread down natural surface growth? – to cut side growth?? An

• bstruction??

Obstructions (e.g. locked gate, fencing) – No power to remove – Serve notice on the highway authority Maintenance?

‘Powers’ of the Individual

An Individual Acting Alone

The implications of taking independent action (ie not incidental to passage) - or of a Parish Council exceeding its maintenance powers may be:

• Trespass: to go on to someone’s land without permission is a civil wrong. The risk: the

landowner may seek an injunction and, if appropriate, damages

• Criminal Damage: cutting back a hedge may be a criminal offence
• Liability: if an individual acts negligently or creates a nuisance. Have you done

something which a reasonable person would recognise as potentially creating a danger for someone else? – Cutting growth leaving sharp branch ends – Damaging the surface by removal of roots creating a trip hazard Always:

• Consult the County Council, the landowner and the Definitive Map and Statement

• 1. Serve notice on the highway authority asking if the route is a highway and

maintainable at public expense

• 2. The authority has one month to reply
• 3. Within 6 months apply to the Magistrates’ Court for an order to require the

highway authority to put the highway into proper repair

• 4. The Court can set a time period for repair by the highway authority
• 5. If the work is not completed the Court can authorise the complainant to carry
• ut necessary works to put the route in proper repair – and recover the

expenses.

Maintenance: S56 HA80 Procedure

Obstruction

S137 of HA80: “If a person, without lawful authority

• r excuse, in any way wilfully
• bstructs the free passage along a

highway he is guilty of an offence and liable to a fine not exceeding level 3 on the standard scale.” The Court has power to set a time for the removal of the obstruction and further fines thereafter. The highway authority can remove the obstruction and claim its expenses.

Obstructions: S130A-D HA80 Procedure

The obstruction is: – A structure (but not a building or structure for human habitation) – A deposit that constitutes a nuisance – Overhanging vegetation which prevents/endangers passage 1 Serve notice on the highway authority requiring it to remove the obstruction and, if known, give the name and address of the person responsible 2 The highway authority within one month:

• serves notice on anyone named and anyone else it thinks responsible
• advises them of the first notice and the action the authority proposes to take
• advises the complainant of above

3 If, after two months, the complainant is not satisfied with the outcome he serves notice of his intention to apply to the Magistrates’ Court 4 After 5 days but within 6 months the complainant may apply to the Magistrates’ Court 5 The Court has the power to make an order requiring the authority to remove the obstruction 6 Failure to comply is an offence: contempt of court.

This presentation provides a general summary and is not intended to be comprehensive. As always, specific legal advice should be taken on any individual matter.

Public Rights of Way Legislation