As a highway authority we have a duty to assert and protect the rights of the public to enjoy any public right of way. We believe that, if we have to take action against land managers to resolve rights of way problems, we should state clearly and publicly how we will do this. The below guidance has been discussed and agreed by the National Farmers Union, Country Landowners and Business Association, Suffolk Agricultural Association, and the Suffolk Local Access Forum.
The Highways Act 1980 covers most public rights of way infringements. Legislation imposes certain responsibilities on land managers regarding the safety and availability of public rights of way. The below guidance applies to any land manager with public rights of way on their land. Land managers include farmers, landowners, tenants and occupiers, householders, businesses and developers.
It is the responsibility of land managers to ensure their agents and contractors understand and comply with public rights of way law when working on their land.
Where land managers experience nuisance or anti-social activities such as fly tipping or abandoned vehicles on public rights of way, they should contact the appropriate district or borough council.
On agricultural land from 1 January 2005 existing Common Agricultural Policy subsidy payments were replaced with one single payment scheme. To qualify for this payment, land managers must meet a range of 'good agricultural and environmental condition' standards, known as cross compliance, and which include protecting public rights of way.
Type of infringements
There are 3 main types of infringement committed on public rights of way:
- disturbance of the surface of a public right of way without lawful authority or excuse
- obstructing a public right of way
- failure to maintain a structure such as a stile or gate across a public right of way which is the land manager's responsibility
Events outside the control of a land manager which result in a problem for which the land manager is responsible (for example a tree blowing down across a public right of way) will not be seen as enforcement matters, provided that the problem is rectified as soon as is practicably possible.
Disturbance of the surface of a public right of way without lawful authority or excuse
It is an offence to disturb the surface of a public right of way without lawful authority or excuse.
On agricultural land the Highways Act 1980 allows the ploughing or other disturbance of the surface of a cross-field footpath or bridleway for agricultural purposes, where this cannot be reasonably avoided. The surface must then be restored to a condition "reasonably convenient" for the designated use within 14 days of the initial disturbance or 24 hours of any subsequent disturbance. This must be done over at least its minimum width (see below). The line of the public right of way must be indicated on the ground to not less than its minimum width so that it is apparent to the public. It must remain convenient to use at all times, and the emerging crop must not be allowed to obstruct the path.
Field-edge (headland) public rights of way
There is no right to disturb the surface of a field-edge (headland) public right of way.
Other public rights of way
There is no right to disturb the surface of any part of a restricted byway or byway open to all traffic (BOAT), regardless of where it runs.
Unless a path already has a legally recorded width (which the Definitive Map Team can advise on) the minimum and maximum widths for footpaths, bridleways, byways and restricted byways on agricultural land apply:
|Cross-field||1 metre to 1.8 metres||2 metres to 3 metres||3 metres to 5 metres|
|Field-edge||1.5 metres to 1.8 metres||3 metres||3 metres to 5 metres|
We, as the highway authority, can enforce between the minimum and maximum widths.
Obstructing a public right of way
There is no right to obstruct or otherwise deter the use of a public right of way.
Some examples of deterrence or obstruction where we can take action include:
- crops obstructing a public right of way
- construction of ditches and other excavations which disturb or obstruct a public right of way
- soil and other materials deposited on the public right of way
- allowing overhanging vegetation or the planting of trees and hedges to restrict use of a public right of way. Please see the Department for Environment, Food and Rural Affairs Guide to Cross Compliance for further information about hedge cutting rules
- deterring the use of a public right of way verbally or by misleading signs
- electric and other fences obstructing a public right of way
- structures constructed across or affecting a public right of way
- barbed wire alongside a public right of way
- any animals considered to be a threat to the public
Where a crop other than grass has been sown or planted on any agricultural land, the land manager must take steps as and when necessary to make sure that:
- the line of the public right of way is apparent to anyone wishing to use it
- the public right of way remains convenient to use at all times
- crops that fall in, such as oil seed rape, should be cleared beyond the minimum width for the status of public right of way to ensure that the minimum width is clear at all times
Land managers who need to clear ditches or carry out an engineering operation on agricultural land which affects a public right of way must contact the appropriate Area Rights of Way Team.
Failure to maintain a structure such as a stile or gate across a public right of way which is the land manager's responsibility
We aim to have a public rights of way network that is as barrier free and easy to use as possible.
Under limited circumstances we may authorise structures (for example gates) to be erected on footpaths or bridleways. They cannot be erected on restricted byways or byways open to all traffic. Circumstances where permission may be given include:
- to control the movement of animals on agricultural land and for the breeding of horses
- the definitive map and statement has recorded the presence of a structure on a public right of way
If we approve an application to install a structure, we will normally authorise the least restrictive option, and simple self-closing gates are preferred. New stiles will only be authorised in exceptional circumstances. Gates on bridleways should be easy to open and close on foot and horseback. All new structures must comply with current British Standards.
Land managers should contact the appropriate Area Rights of Way Team to discuss any such requirements.
Land managers are normally responsible for maintaining structures (for example stiles, gates, kissing gates etc) across public rights of way. They must ensure that they are maintained in a safe condition and are easy to use. We will make a contribution towards the maintenance of structures we have previously approved. If a land manager wants to upgrade a gate or a stile the appropriate Area Rights of Way Team will be able to advise. We may sometimes wish to negotiate the removal or improvement of a gate or stile.
Footbridges and bridle bridges are normally our responsibility, while vehicular accommodation bridges are normally the responsibility of the land manager.
What is Suffolk County Council's enforcement procedure for dealing with public rights of way infringements?
If following a first offence a land manager commits no further infringements in the next 3 years, any subsequent infringement will be regarded as a first offence. For example, if we started to pursue a first offence in July 2005 in year 1, an offence committed in August 2008 in year 3 would be treated as a first offence if there had been no interim infringement by that land manager. In the same situation, an offence committed in May 2008 would be treated as a second offence.
We work well with most land managers in Suffolk and we are unlikely to initiate more serious enforcement action over what we consider to be a minor slip up.
If we have to complete works following the service of a notice, we will normally seek to recover all costs.
Where we have not contacted a land manager regarding a rights of way infringement in the previous three years, a rights of way officer will, where reasonably possible, contact the land manager and give a full explanation of their rights of way responsibilities. This will be followed up by a letter which specifies the work required by a land manager to rectify a problem within specified time limits.
Failure to comply/second or further infringement
We may use one or more of the following options:
- legal notices
- conditional caution
- written warning
Formal cautions, prosecutions and written warnings will be authorised by our Director of Growth, Highways and Infrastructure in consultation with the council’s Head of Legal Services.
Where considering either a conditional caution, prosecution or written warning we will take into account:
- repeat offending
- the seriousness of the offence
- lack of co-operation
These will be served under the appropriate statutory provision and will either
- specify the work required by a land manager to rectify a problem within specified time limits. Failure to do so will lead to the county council carrying out the works and recovering the associated costs from the land manager. For example 1 month may be given to remove an unauthorised structure from a public right of way before we are allowed to complete the works and recharge the land manager, or
- where a public right of way has been disturbed without lawful authority or a crop is obstructing the path, give notice of entry onto land in order to undertake works and recharge costs. For example where a cross-field path has been disturbed without lawful authority we must give not less than 24 hours notice that we will enter onto the land and undertake works. In this situation we will, however, give two working days notice of entry. If the work has been completed by the land manager in that time and the appropriate rights of way office has been informed (details will be given on the legal notice), we will not recharge costs already incurred.
A land manager may be prosecuted by us where there is a record of repeat offending or the problem is such that it justifies an immediate prosecution.
A land manager may be served with a conditional caution as our response to a persistent failure by that land manager to rectify a problem which is a criminal offence. The conditional caution may specify the remedial work required to be completed within a time limit. We will maintain a record of the conditional caution issued.
A conditional caution will be considered when appropriate prosecution criteria are met but the circumstances surrounding the infringement are such that a more lenient approach is appropriate. If the offer of a conditional caution is rejected by the land manager we will commence a prosecution against them.
Interviews for prosecutions and conditional cautions will be carried out under the Police and Criminal Evidence Act 1984.
If a legal notice is not complied with, or as an alternative to it, we may serve a land manager with a written warning. The letter will specify that the land manager’s failure to rectify the problem amounts to an offence. Enforcement action will follow if the problem is not rectified within a specified time limit.
How will Suffolk County Council deal with cross compliance?
Where it is found that a cross compliance standard has not been met, and the breach is not of a technical or very minor nature, the Rural Payments Agency has a duty to apply a penalty to the single payment the land manager is receiving.
Where we serve a legal notice, issue a conditional caution and / or commence a prosecution on a matter that is covered by cross compliance, the information will be copied to the Rural Payments Agency and further action may be taken by them. Enforcement information copied to the Rural Payments Agency will include details of any action taken by the land manager to rectify the offence.
It should be noted that not all land is subject to cross compliance.
Contact the appropriate Area Rights of Way team for more information about land manager responsibilities and how we enforce them.