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Rights of the Public

Document Cited authorities 27 Cited in Related
Vincent
AuthorAngela Sydenham
Pages5-11
2 Rights of the Public

2.1 Meaning of ‘public’

For a highway to exist, there must be a right of passage for the public at large, not a section of the public.1

A highway may be contrasted with a private right of way, or easement, for the benefit of some nearby land. Sometimes there are accommodation roads for several adjoining landowners. There are also church ways or local roads, available for parishioners of a particular parish or manor, which do not amount to highways.

2.2 Defined route

The right of passage must exist over a defined route. A route may be sufficiently defined if it varies from time to time.2There cannot be a public right to wander (ius spatiendi) at common law.3Although such a right may be created by statute or agreement, it will not create highway rights.

The defined route does not have to lead anywhere. It can be a cul-de-sac.4

However, when considering evidence as to whether a highway exists, it will be relevant to consider the purpose of such a highway. If it does not connect to another highway, or a place of popular resort, such as a river,5

the sea6or a beauty spot,7this may strengthen an argument against the existence of a highway,8or that the highway continued further. The existence, or creation, of a cul-de-sac route will also be a relevant

1Poole v Huskinson (1843) 11 M&W 827.

2Fernlee Estates v City and Council of Swansea and National Assembly for Wales [2001] P&CR

19; see also Wimbledon & Putney Commons Conservators v Dixon (1875) 1 Ch D 362 (way across open land divided into parallel routes).

3A-G v Antrobus [1905] 2 Ch 188.

4Rugby Charity Trustees v Merryweather (1790) 11 East 375n.

5R v St Issey Inhabitants (1849) 14 LT(OS) 176.

6Williams-Ellis v Cobb [1935] 1 KB 310.

7Eyre v New Forest Highway Board (1892) 56 JP 517; Moser v Ambleside UDC (1925) 89

JP 118.

8Roberts v Webster (1967) 66 LGR 298.

6 Public Rights of Way: The Essential Law

consideration when a local authority is deciding whether to make a public path order.9

In order to establish a public right of way, either at common law or under section 31 of the HA 1980, at least one terminus must join a public right of way.10

2.3 Nature of the right

The public have no legal interest in the land itself. But they do have a right to pass and repass along the route. Any other activity, unless it is incidental to the right of passage, will be a trespass or may amount to an obstruction.

Permitted incidental activities include parking a car on a vehicular highway, resting, stopping for refreshments, taking photographs and making a sketch. On the other hand, interfering with a game drive11or

observing the performance of race horses on adjoining land12has been held to be a trespass. Metal detecting would also be a trespass.13

A procession will not normally amount to an obstruction unless it unreasonably restricts the rights of other highway users or amounts to a nuisance. A static meeting is more likely to amount to an obstruction. Where a proposed public procession is to demonstrate support for, or opposition to, the views or actions of any body or persons, to publicise a cause or campaign or mark or commemorate a campaign an event, prior written notice must be given to the police.14

The rights of the public have been enhanced and complicated by reliance on the European Convention for the Protection of Human Rights and...

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