Public Rights of Way

AuthorWilliam Webster
Pages523-614

Chapter 27


Public Rights of Way

INTRODUCTION

27.1 This chapter is not intended to be an overview of the modern law of highways. Instead, the focus is on those aspects of the law which have a bearing on the development of land affected by ways over which the public enjoy a right to pass and repass along a defined route.

27.2 As far as development is concerned, there are two implications. First, at the planning stage, the effect of a proposed development on an existing right of way will be a material consideration in the grant of planning permission.1The local planning authority (LPA) will need to ensure that all rights of way affected by the proposed development are identified and the effect of development on such rights has been considered, as well as the need to protect and enhance such public rights.2Secondly, the grant of planning permission does not result in the automatic extinguishment or diversion of the public right of way, nor does it follow that such an order will automatically be made. Premature interference with a public right of way before such an order is made (whether or not planning permission has been granted) may result in the commission of a criminal offence.3

27.3 For those reasons, public rights of way are a key consideration in any proposed development and must be identified at an early stage. Identifying such rights has been made easier by way of the definitive map which is kept under continuous review by surveying authorities, but problems arise when public rights

1See Rights of Way Circular (1/09) (Defra, October 2009) at para 7.2; see also para 7.4.

2See National Planning Policy Framework (Department for Communities and Local Government,

27/3/2012) (NPPF), available at http://planningguidance.communities.gov.uk. See also Rights of Way Circular (1/09). It will also need to take into account any modifications to the definitive map which the highway authority may be proposing to make.

3Highways Act 1980 (HA 1980), s 137, which provides for an offence of ‘wilful obstruction’ of a public highway punishable by way of a financial penalty. Note that the grant of planning permission will not provide lawful authority for obstructing a highway.

524 Planning Law: A Practitioner’s Handbook

of way may have arisen over time by implied dedication or statutory presumption and have yet to be entered onto the definitive map by the surveying authority. The problem is compounded by the aphorism ‘once a highway, always a highway’;4

thus the mere fact that a right of way seems no longer to be in use by the public does not nullify such a right existing. The right cannot be abandoned nor can the right be diminished by disuse.5Nor can such a right be lost to the public by adverse possession.6The issues that are likely to arise therefore in relation to highways are not always as straightforward as they first appear.

27.4 The law is largely contained in the Highways Act 1980 (HA 1980), which consolidated previous legislation and the common law.

WHAT IS A PUBLIC RIGHT OF WAY?

27.5 The phrase ‘public right of way’ is used interchangeably with the word ‘highway’, of which there is no definition in the HA 1980.7That being the case, the common law provides the essential characteristics of what is, or is not, a public right of way.

27.6 It is said a highway is a ‘dedication to the public of the occupation of the surface of the land for the purpose of passing and re-passing’ (emphasis added).8

Such a dedication is made in perpetuity. The public’s right to pass and re-pass along land which is so dedicated is thus not a time-limited or transitory right,9and a public right of way over private land will be binding on successors in title, hence the saying ‘once a highway, always a highway’.10A dedication of land purporting to create a right of way which is time limited will not give rise to a highway at law. Where a highway has been created and it is a highway maintainable at public

4Dawes v Hawkins (1860) 8 CB (NS) 848 at 857 and 858 per Byles J, which is the earliest case in which the maxim is used. See also R (Smith) v Land Registry (Peterborough) [2010] EWCA Civ 200; Harvey v Truro RDC [1903] 2 Ch 638 per Joyce J.

5Suffolk County Council v Mason [1979] AC 705 at 710 per Lord Diplock; see the speech of Arden

LJ in R (Smith) v Land Registry (Peterborough) [2010] EWCA Civ 200.

6R (Smith) v Land Registry (Peterborough) [2010] EWCA Civ 200.

7Other than within HA 1980, s 328, which simply provides that the word ‘highway’ within the Act refers to the whole or a part of any highway other than a ferry or waterway. The statute also makes it clear that a highway may pass over a bridge or tunnel.

8Oxfordshire County Council v Oxford City Council [2004] EWHC 12 (Ch) at 293 per Lightman J.

9Dawes v Hawkins (1860) 8 CB (NS) 848 at 857.

10Dawes v Hawkins (1860) 8 CB (NS) 848 at 858 per Byles J; R (Smith) v Land Registry (Peterborough) [2010] EWCA Civ 200; Harvey v Truro RDC [1903] 2 Ch 638 per Joyce J.

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.

526 Planning Law: A Practitioner’s Handbook

Director of Public Prosecution v Jones18has made it clear, however, that in addition to the right of the public to ‘pass and re- pass’, the way may also be used for any other reasonable purpose, provided it does not cause a nuisance or an obstruction by unreasonably impeding ‘the primary right of the public to pass and re-pass’.19

27.9 It is no longer the law that a highway must end in another public highway and, for the avoidance of doubt, a cul-de-sac is quite capable of being a public right of way.20

CLASSES OF HIGHWAY

27.10 Rights of way may be classified by the degree of restriction imposed on them. Broadly, these can be listed as follows:

(a) Footpaths – a highway over which the public have a right of way on foot only, not being a footway.21

(b) Bridleways – which include ‘a right of way on foot and a right of way on horseback, or leading a horse, with or without a right to drive animals of any description along the highway’.22

(c) Restricted byways – ‘a highway over which the public have restricted byway rights, with or without a right to drive animals of any description along the highway’. This will include a right of way on foot or horseback (or leading a horse) and a right of way for vehicles other than mechanically propelled vehicles.23

18...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT