We share our experience of defending public access to paths and open spaces
The society has been defending the right of the public to use and enjoy paths and open spaces since 1865. We give advice to our members including individuals, campaigning groups, local authorities and community/parish councils on how to protect public rights of way, common land, town and village greens and open spaces .
We want the experience from this casework to inform as wide an audience as possible so that when access to paths and open spaces is challenged this knowledge can be helpful to all concerned. We will add more case-studies to this page over the coming weeks so please do check back regularly.
If one of these case studies looks familiar to you, and you'd like us to look at your own circumstances, why not join the society and ask for our help?
Topics:
Town and village greens
Problem
How can vehicular access be controlled on land registered as a town or village green?
Solution
We advised a parish council, who owned the land, on the protective legislation that applies to village greens (TVGs). The position in respect of vehicular access over TVGs is not straightforward. To drive a vehicle on a TVG may well be in breach of both s12 Inclosure Act 1857 and s29 Commons Act 1876. It is an offence under s12 to do anything, 'to the interruption of the use or enjoyment thereof as a place for exercise and recreation'.
You can see current Government guidance on greens here; the old Defra guidance was more detailed, and can be seen here (scroll down to Management and protection of registered town and village greens) and here (scroll down to Non-Statutory Guidance Note on vehicular access across common land and town or village greens).
There is no clear rule of law which permits vehicular access over a town or village green. The safest course is to assume that, although probably unlawful under the legislation quoted above, the courts are unlikely to interfere with vehicular access unless the use could also be shown to lack any lawful origin.
Open and green spaces
Problem
What action can be taken to protect open space when there is a public consultation about developing the land?
Solution
We advised members to submit an application to protect open space by having it listed as an Asset of Community Value ( ACV) alongside putting in evidence for the Local Green Space designation they had submitted.
We explained that the ACV application must include reference to the National Planning Policy Framework criteria and the community support the group had obtained, together with evidence of the regular and varied use of the open space by local people.
The benefit of achieving ACV status is that this may become a material planning consideration, a matter that should be taken into account in deciding a planning application or an appeal against a planning decision.
The ACV listing gives additional protection to the open space. More information can be found here.
Problem
Can a parish council dispose of land?
Solution
Section 127(2) of the Local Government Act 1972 requires a parish or community council proposing to dispose of land at less than the best consideration to have the consent of the Secretary of State or Welsh Ministers (unless it is for a short tenancy). Under the General Disposal Consent England (2003), and the General Disposal Consent (Wales) 2003, the disposal may be for less than the best consideration if the council: ‘considers [the disposal] will help it to secure the promotion or improvement of the economic, social or environmental well-being of its area.’ Consent from the Secretary of State or Welsh Ministers can also be sought in individual cases.
'Land' is defined in section 270(1), unless the context requires otherwise, to 'include any interest in land and any easement or right in, to or over land'. Consent therefore appears to be required to grant an easement over the land (such as for access to premises, for parking, or for laying of services), as well as to dispose of the land itself.
In order to identify the value of any disposal, the council should appoint a professional, independent surveyor (independent of both the council and the person seeking the disposal) to prepare a report. The council ought to be able to recover the costs of the report, and any professional advice taken during negotiations on value, in the price of the disposal. It is the council's duty to obtain best consideration unless the disposal otherwise qualifies under the general consent (or a specific consent is sought). Even if the council’s intention is to offer a discount from the market value on account of securing ‘the promotion or improvement of the economic, social or environmental well-being of its area’, the council should be advised on what the disposal is worth, and the value of the discount, in arriving at a decision.
Section 127(3) applies section 123(2A) and (2B) to parish and community councils, so that an intention to dispose of land forming part of an open space must be advertised and objections considered. Again, it should be possible to recover the costs of advertising in the price of the disposal. The council should not enter into any commitment until it has advertised its intentions and considered any objections.
The council should be satisfied that the terms of any disposal are drafted in the interests of the council, parishioners and any persons entitled to rights of common. This is particularly important where an easement is granted. Professional advice should be sought. Again, these costs should be recoverable.
Any works on common land arising from the disposal (such as the construction of a new access road) may also require consent under s.38 of the Commons Act 2006.
Commons
Problem
Can I create a path across council-owned common land/woodland?
Solution
A member wanted to create a new informal path across a common owned by the county council, to link two neighbouring public footpaths. He was willing voluntarily to cut back vegetation. The path was shown on old maps, but had long since closed up.
We advised that as there is no recorded public right of way along the line, and there was unlikely to be any evidence of a right of way by use or reputation, the permission of the council would be needed to reinstate the path by cutting vegetation along the line.
No consent would be required under the Commons Act 2006 to cut vegetation on common land. Consent is required for restricted works, which restrict or prevent access. Cutting vegetation to create a path is neither ‘restricted’ nor ‘works’. Nor would any consent be needed to any informal surfacing of the path, such as a shovelful of gravel in places, provided no sealed surface is put down.
Nor would it be necessary to carry out an ecological impact assessment. The site was not designated in any way. But the council as a responsible public landowner ought to check the site to see whether the works would, for example, interfere with a badger sett, and constraints on resources might make it difficult to obtain co-operation.
As the common was subject to s193 of the Law of Property Act 1925 (being in a former urban borough or district), any path could be used by both walkers and horse riders. We suggested the member contact the local representative of the British Horse Society to see whether it could support the proposal, whether in terms of voluntary labour or showing demand to use the path if it were established.
Problem
How can car-parking which is impinging on a common be controlled?
Solution
We advised a parish council on a development adjoining a common (which had no known owner but was subject to management by the local authority under the Commons Act 1899) and which would involve vehicles driving over the common. Part of the parking spaces was on the common itself.
We advised that the previous use of the adjoining land might have given rise to private rights to drive over or park on that land.
However, the planting arrangements on the new development site extended to part of the common and (notwithstanding any private rights) were contrary to the terms of the scheme, and the local authority had a duty under the scheme to enforce against encroachments.
Problem
Horse-riding, though tolerated, is damaging a common - how can we achieve a compromise that preserves access and the integrity of the common?
Solution
A parish council asked us for advice about restricting access for horse-riders on local rural commons, following episodes of damage. We were able to explain the access rights on the commons, and the particular effect of the commons being held by a local authority under the Open Spaces Act 1906.
We also addressed what could be done to control access onto the common by horse-riders and others and how measures are regulated by Part 3 of the Commons Act 2006, as well as the power to make byelaws.
But we advocated engagement with the local horse-riding community as the best way of establishing consensual principles for riding on the commons, and suggested ideas that might be considered, as well as potential points of contact to establish a dialogue.
Public paths and right of way
Problem
What can we do if an adjacent landowner has fenced off part of the highway verge?
Solution
We were contacted by a member of the public who was concerned that the owner of property adjacent to a public road had fenced off part of the verge, taking it into their garden and preventing public access.
We advised that the highway authority had a general duty under s130 of the Highways Act 1980 to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority, including any roadside waste which forms part of it, and to prevent any unlawful encroachment on the roadside waste. We therefore advised that the member report the obstruction and encroachment to the highway authority.
If the highway authority took no action, we advised that their parish council could require the highway authority to act. Parish and community councils have powers under s130(6) of the Highways Act 1980 to make a representation to the highway authority that a highway (as to which the highway authority has the above duty) has been ‘unlawfully stopped up or obstructed’, or that there is ‘an unlawful encroachment’ on roadside waste, The highway authority is under a duty ‘unless satisfied that the representations are incorrect, to take proper proceedings accordingly’.