Creation of Rights of Way
| Author | Angela Sydenham |
| Pages | 13-39 |
3.1 Introduction
Highways may be created by statute or by dedication and acceptance, either at common law or by statutory presumption. Statutes provide for highways to be created on construction, by declaration, by agreement and by order. The principal statute under which highways are constructed today is the HA 1980. The normal procedure is for the highway authority to acquire the land by agreement or under compulsory powers.
Private carriageways, whether in existence or to be constructed, may also be adopted so that they become highways. An agreement is made by the persons who have the capacity to dedicate the highway and the highway authority.
Section 34 of the HA 1980 enables a county council, a metropolitan district council, a London borough council or the Common Council of the City of London to make a declaration that a street which is not a highway and land treated as a street shall become a highway. Footpaths, bridleways and restricted byways are usually created by agreements or orders or by dedication and acceptance.
Amendment of Provisions) Regulations 2006 (SI 2006/1177).
14 Public Rights of Way: The Essential Law
3.2 Public path creation agreements
3.2.1 Local authority agreements
Footpaths, bridleways and restricted byways may be created by the landowner and local authority.
The agreement may provide for payments to be made to the landowner and for the dedication of the public path to be subject to limitations or conditions affecting the public right of way over it.
Before entering into the agreement, the local authority must consult any other local authorities in whose area the land is situated. It does not have to consult parish councils or the public. It is also the duty of the local authority to have due regard to the needs of agriculture and forestry and the desirability of conserving flora, fauna and geographical and physiographical features. ‘Agriculture’ includes the breeding and keeping of horses.
Once the agreement has been made, the local authority is obliged to take all necessary steps to ensure that the restricted byway, bridleway or footpath is dedicated in accordance with the agreement.
Where a path is created by a public path creation agreement, or an order is made by a local authority which is not the highway authority for the path, or by the Secretary of State, the highway authority must survey the path and certify what work is necessary to make it in a fit condition for use by the public. The certificate must be served on the local authority or Secretary of State. The highway authority must carry out the works, but can recover the expenses of so doing from the authority on whom the notice was served. Alternatively, with the consent of the highway authority, the local authority can perform the duties imposed on the
Sch 3, para 47(1); Environment Act 1995, ss 70 and 125(2) and Sch 9, para 11(a); Restricted Byways (Application and Consequential Amendment of Provisions) Regulations 2006 (SI 2006/1177).
highway authority and carry out the works.
The path automatically becomes maintainable at public expense.
3.2.2 Parish and community council agreements
Parish and community councils have power to enter into agreements for the creation of highways with those who have the capacity to dedicate public rights of way, over land in the parish or community or an adjoining parish or community.
The dedication must, in the opinion of the council, be beneficial to the inhabitants of the parish or community. The council is under no obligation to take into account the needs of agriculture, forestry or conservation issues when agreeing a path.
There is no power for the parish or community to make a payment for the paths to be dedicated. However, there is power for the councils to carry out works including works of maintenance or improvement, or to contribute to the expense of carrying out such works, but the path is not automatically maintainable at public expense.
There is no obligation to see that the path is set out physically or to publish its existence.
3.3 Public path creation orders
3.3.1 Orders for public right of way purposes
Unitary authorities, district and county councils, National Park authorities, London borough councils and the Common Council of the City of London have power to make orders for the creation of footpaths, bridleways and restricted byways.
16 Public Rights of Way: The Essential Law
It must appear to the council that there is a need for the new path, and it must be satisfied that it is expedient to create a new path having regard to:
(1) the extent to which it would add to the convenience or enjoyment of a substantial section of the public or of local residents; and
(2) the effect which the creation order would have on the rights of those with an interest in the land, taking into account the provisions for compensation.
The council must consult with other local authorities in whose area the land is situated.
The Secretary of State may also make creation orders, provided they comply with the tests set out above. He must consult with the relevant local authorities. The Secretary of State, when deciding whether to make or confirm an order, and the local authority, when deciding whether to confirm an unopposed order, must have regard to the rights of way improvement plan for the area.
The public path order may create a public path unconditionally or subject to conditions or limitations. The procedure which must be followed is set out in the HA 1980.
The order made by the authority must subsequently be confirmed by the authority or, where objections are made, by the Secretary of State.
Circular 1/09, ‘Guidance for Local Authorities’ (Defra, 2009).
whether to confirm an unopposed order, must take into account any improvement plan for the area.
Before an order is confirmed, the local authority, or the Secretary of State where he has made the order, must give notice in the prescribed form, stating the general effect of the order, naming the place where a copy of the order and the map may be inspected and specifying the time within which any objections may be made. In England, the notice must be publicised on a website maintained by the authority or through the use of such other digital communications media as the authority may consider appropriate. In Wales, the notice must be published in at least one local newspaper circulating in the area.
New paths may be created as part of the...
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