Public Rights of Way

Public Rights of Way 525

expense, the highway authority responsible for maintaining the way will obtain an interest in the land over which the way runs.11

27.7 To be a highway, the land involved must be open to the public at large and not simply to a section of it.12A right of way which is provided pursuant to a contract, licence or otherwise, cannot be a highway at law, without more.13It has in the past been suggested that a public right of way was tantamount to an easement for the benefit of the public.14That is not correct and in reality the rights involved are very different.15

27.8 The right to ‘pass and re-pass’ must be over a defined route. There can be no public right of way to simply meander or wander over another’s land,16but the right itself may be limited to a specific class of user (as set out below) and the way may be dedicated subject to other limitations, such as lawful obstructions.17

11HA 1980, s 263(1). The ownership of the subsoil will remain in the hands of the dedicating landowner, but the highway authority will obtain an interest in the ‘top two spits’. See Tunbridge Wells Corporation v Baird [1896] AC 434. Where the public right of way is extinguished by a formal process the land will re-vest in the original landowner.

12Poole v Huskinson (1843) 11 M & W 827; Bermondsey Vestry v Brown (1865) LR 1 Eq 204.

13Or at least it cannot be a highway only because of the existence of such a licence. Private rights of way may exist alongside public rights. See Austerberry v Oldham Corporation (1885) 29 Ch D 750, 49 JP 532. Austerberry was a case concerning a road which was declared to be ‘open to use of the public at large for all manner of purposes in all respects as a common turnpike road’, but was to be subject to the payment of tolls. The court found this was not a dedication of the road to the public and was not a highway maintainable at public expense (although note that toll roads are now capable being highways).

14Dovaston v Payne (1795) 2 H Bl 527 at 531 per Heath J.

15Rangeley v Midland Railway Company (1868) 3 Ch App 305:
‘in truth, a public road or highway is not an easement, it is a dedication to the public of the occupation of the surface of the land for the purpose of passing and repassing, the public generally taking upon themselves … the obligation of repairing it. It is quite clear that this is a very different thing from an ordinary easement, where the occupation remains in the owner of the servient tenement subject to the easement.’

16Oxfordshire County Council v Oxford City Council [2004] EWHC 12 (Ch) at 293 per Lightman J, ‘it is not possible to have a public right indefinitely to stray or meander over land or go where you like. If there is no made-up or definite enduring track, but merely a temporary or transitory track, that is evidence against a public right of way’. Note, however, the registration of land under Commons Act 2006 (CA 2006), s 15, as a town or village green which confers much greater rights on local inhabitants to use land for lawful sports and pastimes.

17An example being a footpath which is dedicated subject to the use of a stile or for that matter an object which projects onto the highway, such as a flap or flight of stairs: Robbins v Jones (1863)
15 CBNS 221. The way may also be dedicated subject to temporary obstructions such as the right to plough up the way, where the way crosses a field. See e.g. Mercer v Woodgate (1869) LR 5 QB 26.