Removing and improving path paraphernalia

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Removing and improving path paraphernalia.

The Open Spaces Society has always encouraged and supported easy access to paths and countryside. This guide has been written by Chris Beney, OSS local correspondent and trustee, and is aimed at assisting those who share our goal of reducing unnecessary and undesirable structures from our public paths.

Please note: References e.g. HA80 s147 are to sections of the Highways Act 1980, WCA81 to the Wildlife and Countryside Act 1981. Text and commentary on such legislation may be found in Rights of Way. A guide to law and practice. See ‘further reading’ at end of this guide.

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1. Introduction

1.1 The Open Spaces Society has always encouraged easy access to paths and countryside. Structures in hedges and walls can all too often make this access difficult, and sometimes impossible.

1.2 Many such obstacles are no longer needed, indeed many are not even authorised, but they remain. It is surprising how often these substandard or redundant or unauthorised stiles and gates are neither improved nor removed.

1.3 We recognise, of course, that features which are a part of our heritage, for example some historic stone-steps and squeeze stiles, should be left as they are, whilst considering provision of more accessible structure adjacent, with dedication of additional width if necessary.

1.4 We support government policy of the 'least restrictive option'.

1.5 We worked since 1999 with farming, landowning, government, and user bodies to produce three editions of the British Standard for structures on public paths (BS5709:2006). The latest version is BS5709:2018. Please see annex 1 for a guide to understanding Defra guidance on BS5709.

1.6 This guide is aimed at assisting those who share our goal of reducing unnecessary and undesirable structures from our public paths. It applies throughout England and Wales.

2. Why remove or improve?

2.1 There is a large class of people who, whether or not classed as disabled, have some kind of difficulty with many path structures. Structures with steps (stiles) are most troublesome, sometimes delaying groups of people out walking quite excessively, sometimes just discouraging individuals.

But many (stepless) kissing gates can be troublesome too, with difficult latches and too little space for rucksack users, and often impassable for mobility vehicles and children in buggies, whether the buggies are town or cross-country type.

2.2 There is nowadays a pretty general agreement by both government and people that the policy should be for the least restrictive structure needed to perform its function.

3. Identifying the structures

3.1 This guide is written around the needs of those who wish to remove or improve a modest number of particular structures, by providing background information and a few ideas.

Those who wish to tackle whole areas, parishes or boroughs, clearly will need to organise their work quite formally, for example by holding data in spreadsheets or databases.

Local Development Plans can help prune path paraphernalia but this is a plan-ahead area. If a local authority has a clear policy of enhancing sustainable public access in its development plan, then when any land development takes place there is an opportunity to improve any local paths affected by it and/or to provide funds to improve paths in the general area of the development.

Getting involved at plan consultation stage might get policies that can be used later.

3.2 Barring the occasional barbed-wire fence hidden in an overgrown hedge, path structures are usually visible, sometimes all too much. But while they can be recognised they are not always easy to describe to others.

The sort of stile without steps about half way between Green Road and New Farm may be unambiguous to you, but not to others, especially if there are several paths or several field boundaries along the path. Grid references are pretty essential and can be transmitted by speech, or by printed or electronic writing. It is definitely worth mastering these if you can.

For those not already familiar with grid references there are various guides available on line, but for your convenience we have attached a simple guide at annex 2.

Probably the best map to use for this is the Ordnance Survey Explorer Series whose 1:25000 scale shows field boundaries clearly. Or of course use a Global Positioning System (GPS) hand held device and just press the button...

3.3 You now can tell people where it is. How do you tell them why it needs changing?

Well you don’t have to, you can just charmingly request or forcefully demand (whichever you are best at) that the structure must go. Get some friends to shout too and nobble a few local councillors, especially county or unitary (highway authority) ones.

A wheelchair user desperate to use this path is a considerable asset, failing which someone with a bad hip or with an elderly relation who wants to see the countryside again before they die. Use your imagination. It sometimes works. But for a stronger case get informed by reading more of this guide.

An elderly lady, wheelchair bound, wanted to be able to wheel down to the local public-access horse meadow, so as to sit and admire the view, but a single stile blocked her way. It was county-owned land so they were fairly easily persuaded to agree and local users and the Countryside Management Service spent a day shooing off the horses while they put in a kissing gate.

Problem solved for that lady, and many other local people were pleased with the improved access.

4. Considering the need

4.1 Whether or not the structure concerned is lawful or unlawful, and whether or not it is in good condition, the question of what, if anything, is needed at that location has to be taken account of. Usually that is the need of the landholder, but occasionally a structure meets a public need.

A stile on Woodland Trust land no longer served any purpose. The local stakeholder's group for the land in question asked permission to remove it and permission was granted.

14.2 The decision tree at figure 1 may be some help in looking at need for existing structures.

4.3 Some cases are obvious, for example it would be rare for there to be any need for a structure between arable fields.

4.4 An aside for new structures. Where you have a chance to be involved on path orders, for instance, figure 1 may be of use. It is important that the relevant BS5709 is referred to in the order and a condition that the structure is removed when it is no longer needed for the original purpose. Automatic path paraphernalia removal!

4.5 Having got some ideas about the need for a structure, and in many cases the lack of need for it, there is a step that probably should be taken, which is to think about the formal (legal) position of a structure at the location concerned.

5. Establishing their status

5.1 It is as well to try to get a feel for the formal status of apparently redundant structures; their legal status.

Probably in the vast majority of cases the status will be subject to some uncertainty.

But if there is shown to be a likelihood that the structure is in fact not lawful, clearly that would help in getting it removed, because the landholders can be told that they are at risk of prosecution if it is not removed or regularised, and because conditions can be applied during regularising to ensure a structure is in fact and in future the least restrictive option.

5.2 A summary of the legal status of structures on paths is at figure 3. It is as well to be aware of the possibilities. The majority of structures are not for certain lawful or unlawful but one can hazard a good guess, and acting confidently on that, one gains that extra leverage, which is sometimes needed to overcome hesitancy in agreeing to a better structure.

5.3 One common situation is an old stile on an even older path, nineteenth century or earlier. If it was mostly pasture, especially in the early years, any stiles in old hedges are likely to be lawful. But if they are in hedges which were not there in the early years of the path, on the face of it they are unlawful.

Similarly, where there are stiles or gates in wire fences across open fields, and the fences do not appear on older maps, the presumption that the structures are unlawful could very well be Some authorities treat as lawful any structures built before a certain date, e.g. 1970. They have no lawful authority to do that.

5.4 Gardens built across public paths often have stiles on both boundaries. One or both are likely to be unauthorised since HA80 s147 permission is most unlikely to have been given, and if given may well be null and void (See figure 3, para 2: Lawful authority given).

6. Dealing with lawful structures

6.1 The Isle of Wight has used HA80 s62. They had said:

... there is a strong demand for better bridle gates. There is on the market a two-way opening bridle gate (so that a rider only ever has to push it) which comes as a kit complete with posts and makes a very rigid structure.

The gate is designed to swing shut and can be operated from horseback. Recent trials on the Island have met with universal approval from landowners and users.

To install these gates the Council can rely on the general improvement powers in Section 62 of the Highways Act which, as stated above, permits the authority to "Carry out in relation to a highway maintainable at the public expense by them, any work (including the provision of equipment) for the improvement of the highway".

It isn’t clear how applicable section 62 is, but clearly here where user and landholder both like the product there are few difficulties other than who pays.

6.2 There are also specific provisions under section 145 that enable the highway authority to require the widening of gates across bridleways and byways. These relate to any authorised structure, including those on bridleways that are the subject of a specific permission under section 147, and those on byways or on bridleways that are recorded as limitations in the definitive statement.

The highway authority may serve a notice on the owner requiring that a gate on a bridleway be widened to five feet and a gate on a carriageway to be widened to ten feet. Failure to comply with the notice within 21 days of service will result in the recipient of the notice being guilty of an offence and liable to a fine.

6.3 The photos in figure 4 give an example of another successful approach. Here it was clear that the stile wasn’t really needed. We shall assume here that it was lawful, though actually that was questionable.

Dumping continued until bollards were put in at a location nearer the road, effectively on the edge of the footway. At that time the stile could be removed without complaint: a solution based more on intelligent pragmatism than on legal principles.

6.4 Sometimes with lawful structures the landholder doesn’t care whether or not a structure is there but won’t do anything to remove it. The case in the box in section 5 is of that type. In that case the offer by a local stakeholder to do the work was readily agreed to.

Some highway authorities (e.g. Hertfordshire) encourage their officers proactively to arrange for removal in these circumstances.

6.5 In other cases a landholder hangs on to the right and has to be offered something tangible to release it. Keeping an eye on planning applications for associated land might allow removal or replacement of the structure as a condition of consent, or more likely as a part of a legal agreement (eg s106 planning agreement).

Another approach might be taken if the landowner is in breach of their HA80 s146 duty to maintain the structure in a safe condition and to the standard of repair required to prevent unreasonable interference with the public’s right to use the path. S146 empowers the highway authority to repair the structure and recover its costs from the landowner in doing so.

That doesn't directly get it removed of course, and it could make a stile that is easy to use (because it is virtually fallen down) into one much harder to use. It would help to insist it to be restored to British Standard 5709 standard (see annex 1, and point 8.3) or press the highway authority into persuading the landowner to let it be removed or to approve, say, a gate in place of a stile (ideally under HA80 s147ZA: see figure 8).

6.6 Before moving on to unlawful structures it is worth pausing to look at the longer term, and in particular the opportunity to use the official authorisation of new structures for agricultural need and the processing of diversion orders in a way that ensures that they will always remain the least restrictive option. That agricultural authorisation is made under HA80 s147 and some information, facts, and comment on that much misunderstood law is on figure 5. Diversions may be made using highways laws or planning laws and recent legislation may make the highways law ones more common (see figure 8).

It would be well worthwhile checking that your highway authority always requires the least restrictive option to be used. It can do that most simply by requiring structures to be to BS5709 (see later in this guide e.g. point 8.4 and point 10.4). Also check that it explicitly reserves the power to rescind the approval for any reason as well as ensuring that the approval lapses if the agricultural need ceases. Then if that structure becomes redundant, it can be removed without any difficulty. We return to these issues in point 10.3.

6.7 Some highway authorities are quite proactive in removing, and persuading to remove, redundant but lawful structures, for example between arable fields. Some are not. But in either case what is being said in this section is that for cases where the structure is actually lawful, patience and lateral thinking may be the best route to success.

Four stiles had been put up unofficially on a footpath, and cattle were using part of the path. By slightly rearranging the cattle crossing- points, all four stiles were able to be removed and replaced by just one kissing gate. See figure 6 for the before and after photos.

7. Dealing with unlawful structures

7.1 The solution in the box in section 6 (also shown in figure 6) was greatly facilitated by a court summons having been taken out by the borough council (correctly but unusually) for obstruction by these stiles. It focused the farmer’s mind on getting an agreement.

The local user group negotiated the deal and the local authority withdrew the summons. It is surprising that this method is not used more often. Obstruction is after all a criminal offence and it could well be argued that prosecution should have gone ahead anyway.

7.2 Highway authorities have considerable powers in another direction which they seem rarely to use, that is exercising common law powers whereby any person can remove (abate) so much of an illegal obstruction that obstructs a right of passage.

For instance, the cutting of a lock on a locked gate or, of more relevance here, the removal of an unlawful structure. These powers are in no way diminished by the existence of similar statutory powers as HA80 s333 makes very clear.

Indeed their common law and statutory (HA80 s130) duties would seem to require the quick action possible, rather than the protracted procedures under the statutory powers. Normally months, but often longer (over 20 years in some paths near Watford in Hertfordshire).

7.3 There were two new laws added to HA80 that assist the removal of unlawful structures. One of these (s137ZA) increases the power of magistrates so they can not only fine for obstruction, but can order the obstruction to be removed, with stiff penalties if not.

The other (s130A) gives the public the right to ask the highway authority to get the obstructions removed. The s137ZA law fills a long- standing gap in the powers of the courts. This gap was highlighted in the Hoogstraten case where on 14th January 2000 the magistrates imposed a fine on Rarebargain Ltd. but were unable to order the obstructions to be removed.

In March 2001 after the new law had come into effect, they ordered the obstructions’ removal. So this law can sometimes be used to remove unlawful and unnecessary structures. You do have to show that the structure is unlawful though.

7.4 S130A. The public right to demand removal of obstructions by using a formal notice to the highway authority, followed if necessary by seeking an order from a court (HA80 s130A) was, it seems, included in the Countryside and Rights of Way Act of 2000 to plug a gap caused by the courts' interpretation of an earlier act: HA59 s59 (now HA80 s56).

That act gave the public some power to require the highway authority to deal with out of repair paths. The courts, as early as 1975, and despite dissention from one of the judges, decided that deliberate obstructions do not make the path out of repair.

Stiles and gates may however be considered repairable as part of the highway if their existence and use are attributable to use of the highway, for example structures installed by the highway authority under section 66 for the purpose of safeguarding users of the highway, but not where the structures are limitations reserved by the landowner in the terms of the dedication.

We now have s130A for deliberate obstructions. See Rights of Way: Requiring the highway authority to act on obstructed paths Section 130A of the Highways Act 1980 for details.

7.5 Some unneeded stiles are in fairly poor condition and walkers sometimes wear some quite substantial boots. Need we say more...?

Well actually we do need to say a little more. While a little heavy footedness would very likely have no repercussions, and while taking secateurs and trimming light under or cross growth to aid passage through structures or elsewhere is nearly always acceptable, there are tight limits to what a user may do to and near structures, especially for the sort of structures we are considering in this guide.

The public does not have the ownership powers that a highway authority does of the path itself. Highway authorities have considerable direct powers/duties as discussed in point 7.3 above, as well as all their statutory ones.

7.6 Finishing this section with a compromise example may be apt. The middle photo at figure 7 is of a stile to BS5709, quite a rare sight. Some of the BS features are listed.

Approval from the farmer came after users told him that his old structure was unlawful and he was liable to put it right and pay. The users offered to rectify it but only if it was to full BS5709 compliance (they wanted it to be improved and also wanted a demo BS stile). The farmer accepted the proposal.

That demo only lasted a few years because a new access officer helped bring the farmer round to the idea of a kissing gate which he agreed, subject to it being the metal type and not paid for by him. It is now easy to use by almost everyone.

8. The use of BS5709 in replacement and modified structures

8.1 Often the aim is to remove a structure altogether but, as has been indicated at various points above, that is easier said than done and an improved structure may have to be accepted, at least in the shorter term.

While many structures are wholly redundant or unlawful or both, a good number are still needed, but simply do not need to be so difficult or so unsightly or both.

8.2 The latest revision of BS5709, the British Standard for Gaps Gates & Stiles, was in 2018. It is called BS5709:2018 (ISBN 978 0 580 98210 1).

Those involved included Natural England, the National Farmers’ Union, the Country Landowners’ Association, the Open Spaces Society, the Ramblers’ Association, and others. So it has widespread support.

The standard states that where a structure is needed on a path a gap should be the first choice, a gate the second choice and a kissing gate a third choice, all of course compliant with the standard.

It provides functional guidance for structures that would comply, giving examples, but lays down no particular construction methods or materials.

It is an ongoing standard in that compliance is dependent on the structure continuing to comply both with the physical characteristics and with the actual needs for the particular type of structure.

8.3 The specifications for stiles in particular only apply to existing lawful stiles and for purposes of repair or rebuild. Only quite exceptionally may new stiles ever be used.

8.4 The aim of the standard is to allow diversity of design so it is couched in functional terms, e.g. the height of steps and crossbar, the verticalness of posts, the strength of steps, the size of object that must be able to pass through a kissing gate (a cylinder on end, one metre in diameter).

To help readers, drawn examples are given. They do not have to be followed and any design complying with the rules is OK. There are several gates and kissing gates, a wide and a narrow stile, a stone stile, a horse stile (or motorcycle trap) and a dog gate. Annex 1 is a self-contained paper on BS5709, highlighting the ten cardinal rules. It is strongly recommended that these ten rules are read. And see section 10: Making it Policy and Law below.

8.5 How does this help remove or improve redundant structures? The answer is that if BS5709 is specified in diversion orders and in (s147) permissions for structures, then ongoing compliance with the standard is automatically required. So any significant lapse, barbed wire wrapped round it or a stiff gate, would render it non standard and liable to be removed. Normally it would have to remain the least restrictive option and so if the needs change, the structure has to change too.

9. Heritage

9.1 Throughout this guide the emphasis has been on need. Need to give convenient use of paths and need to give landholders reasonable stock security. But sometimes the solution would be a structure which jarred with its surroundings, possibly involving the removal of a genuinely ancient structure.

In such a case one may sometimes treat the genuine historic need in the same way as the genuine needs of the landholders and go for the least restrictive option compatible with both. In the historic case that might mean leaving the structure in place and providing an unobtrusive means to bypass it.

It might simply, but perhaps expensively, mean using special matching materials, perhaps a wrought-iron gate rather than galvanised or painted. The aim should be to meet the full modern accessibility specification unless there is very good reason for greater restriction.

9.2 While wooden can appropriately be replaced with wooden, it should not be forgotten that a truly ancient wooden path structure is extremely rare even when made with oak. Wood (Somerset and Irish bog tracks excepted) has a very limited life in historic terms.

So a knurled and rustic gate may not actually resemble an original at all. And if you go back far enough there would very likely have been crosspoles or woven hurdles. These have their uses on open-air museum sites, but very rarely elsewhere. So exceptions should be made for heritage reasons only if truly necessary.

10. Making it policy and law

10.1 This guide is based on where we are now, it is aimed at helping people who are willing to get involved in removal or improvement of one or more It is not primarily aimed at changing the national position. But enthusiastic individuals and groups can actually help bring about changes in both attitudes and law.

10.2 We currently do have a national policy of least restrictive option. That is Westminster government policy expressed by Natural England. But we have no overall national law to back that up. We could ask the legislators to rectify this.

But it doesn’t have to be national legislation, desirable though that may be; individuals can have influence at local level, and local authorities, especially highway authorities, have policies and procedures that can be improved by that influence.

Figure 8 gives an example where a local user group worked with the highway authority, achieving together what would not have happened individually. We should all try to ensure that our own user groups and local access forums (see box below), as well as local authorities, adopt the least restrictive option policy.

It may be that they will say that is already their policy, but these authorities may still be authorising stiles or just specifying kissing gate without specifying details. And some user group representatives still accept stiles, even new stiles.

In these cases the British Standard (BS5709) can act as a magic wand if adopted since the concept of least restrictive option is inherent. It is very simple to specify, and no  one ever got sacked for specifying a British Standard.

Furthermore, as already mentioned, it is an ongoing standard, all rules applying while the permission remains in force. This gives the local authority, where this BS has been specified, great power to enforce if the structure gets altered or out of repair.

Local Access Forum (LAF)

LAFs consist of people representing a wide range of interests. The forums were set up by statute to advise highway authorities on access matters (both to paths and to open land). The Highway Authority cannot help but be influenced, to some extent at least, by their advice.

It is helpful therefore to persuade the LAF members that path structures are an important part of access. Their meetings are usually in public and the public can often speak, or at least ask questions. And individual members can be approached. You might consider applying to join the local forum yourself.

10.3 It would seem quite simple for all highway authorities to quote BS5709 as the specification in approval forms issued to landholders (see figure 5).

If they want to put the appropriate current level of restriction, for example self-closing gate or latched kissing gate for the avoidance of arguments that would be fine. That is all the specification normally needed. If need for stockproofing ceases, the structure will no longer be to BS.

So far the BS is not quoted in primary legislation but it does appear in some statutory guidance notes (see figure 8, which also outlines some important legislation). If we ask for the BS to be included as appropriate whenever any relevant consultation are taking place, that will clearly be useful.

10.4 Almost finally, Defra’s guidance to local authorities on compliance with the Equality Act 2010, which is online here, demonstrates government support for ‘least restrictive option’. Since it is a long and detailed document the Pittecroft Trust produced a note ‘Understanding the Defra guidance on Public Path Structures', which is available here.

10.5 Finally, we return to the vexed question of which of all the existing structures are currently lawful (leaving aside those explicitly authorised). It should be possible to introduce some kind of process to sort this out.

This might take the form of legislation that would require authorisation for all structures except where landholders could demonstrate to some defined criteria that they were lawful.

There seems to be growing support for a combined list of public roads and paths (the definitive map and the list of streets redefined and merged). It may be possible to include in that combined list those structures that act as lawful limitations to public use.

11. Further reading

11.1 Rights of Way, A guide to law and practice, 4th edition, by John Riddall and John Trevelyan, 2007, published by the Open Spaces Society and the Ramblers’ Association.

11.2 The definitive guide to rights of way law, available on the Ramblers website.

12. Annexes

Annex 1 

Understanding the Defra guidance on Public Path Structures, available online here.

Annex 2

Grid references

Here are some grid references:

SN12, TL1356, TL980456, ND32754380, or even LD1367543876.

You might have noticed there are always a pair of letters followed by an even number of digits. You were right to do so, there always are.

And they should generally be written without spaces.

The letters tell you to start at the bottom left (sorry south-west) corner of the 100 km square that happens to bear those letters. The first half of the numbers signifies how far the point is into that 100km square moving along to the east (eastings). The first digit gives the number of tenths of the 100km, the second one hundredths and so on.

Taking TL1356 we get to the bottom corner of a map showing the 100 Km square TQ, we then move one tenth and a further three hundredths of the way across the square: one ten-kilometre distance plus three one-kilometre distances. We then turn north (northings) and go 5 lots of 10 km plus six lots of 1km (....56).

It can be helpful in remembering which comes first, eastings or northings, to think of entering a house, going along the hall/corridor and then up the stairs, so long as you follow the common human (mis)conception and think of north as ‘up’.

TL1356 describes a square on the ground with sides one kilometre square. To narrow the location to a ten-metre square, a suitable figure for defining where a structure is, you need two more pairs of digits, perhaps TL13795640.

Notice how the 13 and 46 have got separated in the process, 1379 being the eastings and 5640 being the northings. The grid reference TL1379656407 would describe a one-metre square, around the accuracy of much modern mapping and a bit better than most GPS devices.

It used to be mandatory that there were no spaces in written or printed references, sometimes they are split thus: TL 1379 5640, but that is deprecated, it could easily get read as TL1379 if the 5640 slips onto another line. Always use ‘non-breaking spaces’ [CTRL+SHIFT+SPACE] on a computer if you really want to include spaces.

That would have been it until recent years. But computers and things, which are actually perfectly capable of dealing with mixed numbers and letters signifying distance, were deemed too dumb to do so and a system using all numbers was introduced, with two numbers replacing the letters and a zero point off the Scilly Isles. So TL1356 would become 513256 being some 500 km east of that zero and 200 km north of it.

It is actually a rather more logical system, keeping all the eastings and northings together. Many local authorities use this notation on their computer based rights of way maps.

Of course if you have a GPS device you merely have to press the button...

Figure 1

Improving path structures: consider the need

Decision tree (excludes brand new applications for structures)

Note: if the structure is currently unlawful, the highway authority can insist on change. If the structure is currently lawful, or would be lawful if repaired, the highway authority can persuade, or use HA80 S147ZA.

Figure 2

Structure at arable field. This is untypical only in that there is no difficulty bypassing it. That is very often not the case.

 

 

Not a nice path. Rhodesian Ridgebacks, and they bit the fencing contractor. The issue was resolved by dogs (and tenant) leaving the area. The highway authority eventually organised a kissing gate. The path leads to a viewing platform. The new gate has official plaque ‘please keep dogs under close control’. Ironic.

 

Some structures are clearly not needed; here time and use seem to be doing their stuff. Entropy at work.

Figure 3

Structures: Lawful or unlawful?

As always with legal things there are no certainties. This note serves only to give a general outline of the status of path structures.

See Rights of Way: Impassable Paths for more detailed information.

 It is unlawful to erect any structure on a public path without authority. The public has a right in general to use the whole width of a path and a structure is seen as a denial of that right. It is a crime, being a common law nuisance, as well as a statute law offence under Highways Act 1980 s137.

And for the great majority of paths (all those maintainable by the highway authority) an unauthorised structure is also a trespass against that authority.

All these allow legal (or sometimes direct) action to get these structures removed or improved.

There are two main classes of exceptions where the structure is lawful:

  1. Where the original dedication (whether ‘implied’ or written) of the path as a public path was subject to the right to have certain structures in it, and the structures have remained there.
  2. Where lawful authority has subsequently been given for a structure.

1a. Original implied dedication

One of the most common ways of paths being dedicated is where they just got used by the public for so long that everyone took them to be public. The law supports that and says a public right is thereby created: ‘implied dedication’ or the ‘20-year rule’[1] . Such a path will be subject to any structures that can be proved were there during that establishing period. No more onerous (to the public) structure can have been put in the path subsequently without explicit authority, e.g. a gate replaced with a stile.

1b. Original written dedication

A path dedicated in writing will be subject to any structures mentioned in that dedication and no other and no more onerous than that. While it is just possible that the courts, if asked, might in rare circumstances imply structures, it is normally safe to assume that what is written is all that can be there.

2. Lawful authority

Structures recorded as limitations in the definitive statement[2] will be lawful.

Structures will be lawful if specified as limitations on confirmed diversion and other path orders or agreements.

Structures can be explicitly authorised on agricultural land if, for efficient use of that land, it is expedient to prevent passage of animals. Highways Act 1980 s147. The highway authority should hold a list of such authorisations. See figure 5 Approval of structures for agriculture.

And two less significant authorities:

Highway authorities can put up structures for public safety under HA80 s66. This has been used to erect gates. It is a little doubtful if the earlier wording barrier, rail, or fence (for public safety) strictly covers gates and the CROW Act 2000 could be seen as supporting that view by adding posts and not adding gates. In any case the authority who put it up can take it down, [HA80 s66(4)].

A council may place objects or structures on a highway for the purposes of giving effect to a pedestrian planning order, enhancing the amenity of the highway and its immediate surroundings or providing a service for the benefit of the public [HA80 s115B]. Again, they can remove them.

[1] Twenty years use by the public under the Highways Act 1980, but may be a much shorter time under the common law.
[2] The definitive map and statement is the official (though not exclusive) record of public paths held by the highway authority.

Figure 4

Example of use of bollards to eliminate a stile and stop dumping

Stile near road, fence broken for some time, subject to dumping as vehicles can get off the road. Dumping sometimes much worse than shown here making foot passage hazardous.

 

Later situation. Stile was at ‘X’. Stile and fence removed, bollards put nearer to road than the fence was. Vehicles can’t get fully off the road at busy corner so now don’t dump here. Removing the stile improved the path and stopped costly dumping.

Figure 5

Approval of structures for agriculture – good practice 

Section 147 of the Highways Act 1980

Power to authorise erection of stiles, etc. on footpath or bridleway

The act says that where the owner, lessee or occupier of agricultural land makes a submission to a competent authority, as respects a footpath or bridleway that crosses the land, that in order to ensure that the use of the land shall be efficiently carried on for agriculture (including forestry or the keeping or breeding of horses) it is expedient that stiles, gates or other works for preventing the ingress or egress of animals should be erected on the path or way.... the authority to whom the submission is made may authorise the erection of the stiles, gates or other works, with the authorisation subject to such conditions as it may impose for maintenance and for enabling the right of way to be exercised without undue inconvenience to the public.

It then says that where an authorisation is made, the public right of way is to be deemed to be subject to a condition that the stiles, gates or works may be erected and maintained in accordance with the authorisation so long as the conditions attached to it are complied with.

So:

  • The landholder must apply, in writing.
  • The authority (normally the highway authority) must check the landholder’s status as owner, lessee or occupier.
  • The authority must check that the land is in use or to be used for agriculture.
  • The authority must check that the structures are expedient to that agricultural use.
  • After that the authority may give approval, though it is not obliged to do so. And it can make approval subject to any conditions as to ongoing maintenance and also subject to any other conditions enabling the right of way to be not unduly inconvenient.
  • Authorisation must be given in writing.

What conditions are reasonable?

Conditions help the highway authority square the permitting of structures hindering public use with their duty at all times to assert and protect the public’s free use of the paths. So failure to apply conditions could be seen as a dereliction of duty. The breach of any condition makes the structure unlawful, it becomes an obstruction of the way, an offence which can be dealt with by removal, even prosecution.

Clearly the structure has to be to some sort of standard. Highway authorities may have their own favourite design specifications and they could well be specified, but they are unlikely to be as tightly specified and field-measurably toleranced or as embracingly specified as BS5709, the British Standard for Gaps, Gates, and Stiles.

So it would usually be both simpler and more efficient simply to make BS5709 compliance a condition. A summary of this BS’s requirements is included at appendix 1.

It would be reasonable to expect that in all cases the structure is conditional on the continuation of the agricultural need for a structure, and so the permission should have such a condition applied.

Some have said that such a condition cannot be made, some have said that such a condition is actually already implicit in the approval process. So explicitly specifying removal if the circumstances change is perhaps a good middle course that puts it (very nearly) beyond doubt.

As to conditions ensuring the way is not unduly inconvenient to the public, note that s147 says ‘the right of way’ not ‘the structure’. So not only such matters as maintaining the surface near the structure free of water and mud (covered by BS5709 anyway) but compensating improvements further along the path, say a stile to kissing gate conversion, can arguably be part of the condition so that overall the inconvenience is not undue.

If the landholder argues, the authority can always simply refuse the main request. There is no appeal, landholders would have to demonstrate a very high degree of unreasonableness by the authority in a judicial review court case in order to get their way.

See also Figure 9 on authorising structures for the benefit of those with mobility problems.

Figure 6

Before:

After:

The same entrance after removal of stile and iron fence, but leaving the tree. This was the path referred to in section 7 and the stile here was the fifth removed from that path.

Figure 7

If you can’t remove it, improve it: an example of a stage-by-stage improvement

On the left is a stile between road verge and field. It was probably legal to have a stile here as it was an old path and had been grazed for a very long time.

But it was impassable to many: high, badly designed, and in very bad condition, and it could have been required to be repaired under HA80 s146(2) or s56.

 

 

At the time the landholder was vehemently against a gate, but he recognised that something needed doing. The local path-user group wanted a kissing gate but could not insist on it. So they suggested a British Standard stile, feeling this would make a good demonstration of such a stile to help in areas where such stiles were still lawful.

The user group did this work under P3, the Parish Paths Partnership scheme.

Features helping compliance with British Standard for narrow stiles:

  • step-ups under 300mm from ground, between steps and from step to top of cross rail. So the top-rail less than 900mm from ground
  • two handposts
  • longer than usual steps (required by BS5709 for this type of stile)
  • set back four metres from a road crossing

Had there been sheep then hog-wire mesh would have been added to it or two extra rails.

 

The landholder blew hot and cold about a gate here but a new access officer finally got agreement, so long as it was a metal one.

So two local volunteers removed the now five or six year old stile. They used a car trolley-jack and a cross-bar to remove the deep-seated stile posts and put in a big metal kissing gate, locating it to meet the BS requirement of being four metres from the roadway, removing the latch (which would have violated the least restrictive option rule).

The barbed wire near it, which may just be seen in the photo, has of course since been removed or de-barbed to meet the BS5709 standards.

 

Here the least restrictive option has been achieved and, it is believed, a HA80 s147 approval has been given with tough conditions, so if it became arable land, the gate could be removed.

Figure 8

Example of a RADAR enabled kissing gate replacing a stile. Local user group and highway authority together implemented the least restrictive option. It needed both to make it happen.

 

Only for the fit: the stile before:

 

After (viewed from opposite direction):

Here the RADAR (Royal Association for Disability and Rehabilitation) lock system is being demonstrated to show how a RADAR equipped gate can be opened past the closure point to allow larger electric wheelchairs to pass.

Figure 9

A further opportunity since 2007 – Highways Act 1980 S147ZA 

Some comments on modifying and authorising structures on public paths for the benefit of members of the public with mobility problems.

 The Countryside and Rights of Way Act 2000 (Section 69) includes powers to negotiate less restrictive path structures and the duty to consider disability when authorising structures under HA80 s147 (see figure 5 of this guide).

It isn’t entirely clear that this statutory power was needed. It was always open to a landowner to rededicate subject to a lesser restriction on the public, and to highway authorities to spend some money improving paths.

And surely their statutory duty to assert and protect public rights, let alone the Equality Act 2010, already required the needs of those with disability to be taken account of when authorising structures. Whether so or not we now, in both England and Wales, have some explicit powers and duties and therefore the cause of ‘least restrictive option’ is likely to be advanced.

Disability in this new law does not refer to registered disabled, but is interpreted more loosely, which is very welcome to those with lesser or lesser recognised infirmities. It is open to all of us to encourage the use of this statute to reduce the restrictiveness of path structures, and to try to get it applied widely, if necessary oiling the wheels by getting external grants.

We were pleased that the Welsh government found a way round what seems to have been an oversight in the statute, the fact that a structure could not be removed altogether under it. The Welsh pointed out that a Gap to British Standard 5709 may be a structure, thus allowing something very close indeed to complete removal, if all parties are willing. Defra, in its Equality Act 2010 guidance, available here, also refers to Gaps as structures.

The most recent edition of the Blue Book (see 'Further Reading') was published too early to cover this Welsh implementation, but the book has some useful material on the Disability Discrimination Acts at 12.5 and at page 849.

The Open Spaces Society is grateful to Chris Beney for researching and writing this guide.

While the Open Spaces Society has made every effort to ensure the information obtained in this factsheet is an accurate summary of the subject as at the date of publication, it is unable to accept liability for any misinterpretation of the law or any other error or omission in the advice in this paper.

© Open Spaces Society, May 2024

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