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What local councils can do for public access to town and countryside
Local councils have a unique role in protecting and caring for the commons, greens, other open spaces, and paths in their areas. This information sheet sets out how they can go about this.
1.1 Local councils (town, parish, and community councils) are well placed to protect and care for the open spaces and paths in their areas. Some powers are specifically conferred on local councils, others are conferred on the public in general but are best exercised by local councils, since they have the authority, and more resources than most individuals and voluntary organisations, and they command respect.
1.2 The information sheet sets out what local councils can do to improve public access to the commons, town and village greens, other open spaces, and public rights of way in their areas, and protect them for all to enjoy.
2.1 Common land has an owner and others have registered rights there, of grazing, collecting wood and bracken, or digging peat, for example. The public has the right to walk on all commons and to ride on many. All commons had to be registered under the Commons Registration Act 1965 (the 1965 act), before the closing date of 1 August 1970. In some English counties and in Wales the registers have reopened for a time-limited period under the Commons Act 2006 (the 2006 act) so that lost commons may be registered.
2.2 The local council should be aware of any registered commons in its territory. They will be registered with the county or unitary authority, which is the commons registration authority. Each common has a number with the prefix CL. The registers record the land and the rights, and may include information about the owner, although ownership may not have been kept up to date. The location of commons in England can also be found on the Magic website. Local councils will have received copies of the register and map at the time of registration under the 1965 act.
Works on common land
2.3 Any work which prevents or impedes access on a common, or puts in place a sealed surface (such as tarmacadam) requires the consent of the environment secretary or the Welsh minister, under s38 of the 2006 act. The local council is notified, along with the Open Spaces Society and other interested parties, of all applications. Details of the process are here.
2.4 The society encourages local councils to contact it to discuss any applications in their areas, as we shall consider and respond to them all, and local input is helpful.
2.5 However, if such works are erected without consent, no one has a duty to take action, although any person including the local council has the power to do so.
2.6 Local councils are well-placed to take enforcement action under s41 of the 2006 act, after attempts to persuade the offender to seek consent under s38 have failed. Details of how to do this are set out here.
2.7 The local council has the power to protect unclaimed common land and town and village green, and to take such action as if it were the owner. This is set out in s45 of the 2006 act.
2.8 This is a strong power which enables the council to intervene to protect the land against trespass and encroachment (such as fences or unlawful vehicular access) and take action to stop it.
2.9 In addition, if common land was vested in the local council by the commons commissioner under s8(4) of the 1965 act (but only under that provision), the council can act as the owner of the land (although it could be ousted if someone has a well-evidenced claim of adverse possession).
2.10 Local councils should ensure that their title to any land which they own, including common land vested in it under s8(4) of the 1965 act, is registered in HM Land Registry, to ensure long-term protection against encroachment and adverse possession.
Schemes of management
2.11 District or unitary councils may delegate to the local council under an agency agreement the power to regulate and manage a common under a scheme made under part I of the Commons Act 1899. The powers of regulation and management will depend on the wording of the scheme, but may allow the council to provide such facilities as car parks or sports pitches for public benefit.
2.12 District or unitary councils may also make a scheme for the regulation and management of a common (but subject to veto by the owner or one-third of those entitled to rights of common). The district or unitary council then by agreement may delegate the powers to the local council.
2.13 The local council should ask the district or unitary council to make a scheme (which, when made, is to be delegated to the local council). This can be a very effective way to bring management to neglected commons—particularly those lacking any known owner.
Creation of common land
2.14 A local council may create a common on land which it owns, by first granting appropriate common rights to named properties in the vicinity. The rights must be suitable for the land. The council registers the land and right with the commons registration authority. The benefit of doing this is that the land is protected under s38 of the 2006 act, and the public will acquire the right to walk there. Here is an example of the creation of a common through the creation of rights. The society can advise on the procedure.
3.1 TVGs are land where local people have enjoyed informal recreation for at least 20 years, without challenge or permission (ie ‘as of right’). TVGs were required to be registered under the 1965 act (each has a number with the prefix VG). They are recorded on the registers held by the commons registration authority (county or unitary council).
3.2 Land can be registered as TVG today provided there is evidence of use as of right. Registration gives local people rights of recreation there, and protects the land from development and encroachment.
Protection from development and encroachment
3.3 It is an offence under s12 of the Inclosure Act 1857 and s29 of the Commons Act 1876 to encroach on a TVG. There is a power for local inhabitants to take legal action against such interference, and the local council is best placed to pursue this. This requires a prosecution in the magistrates’ court.
3.4 Any landowner can voluntarily register his or her land as a TVG, without the need to gather evidence of use (2006 act s15(8)). Local councils should consider registering land which they own, to give local people rights of recreation and to protect it from development.
3.5 The local council can also press developers voluntarily to register as TVG green space in a development as mitigation to that development. Registration of green space will confer protection in perpetuity.
3.6 The local council has the power to protect unclaimed TVGs and to take such action as if it were the owner. See paragraph 2.7 above.
4.1 The local council may dispose of land which it owns but, under s127(2) of the Local Government Act 1972 (1972 act), it needs the consent of the secretary of state or Welsh minister for disposal at less than the best consideration (unless it is for a short tenancy). Under the General Disposal Consent England (2003), and the General Disposal Consent (Wales) 2003, if the disposal is for less than the best consideration, the council must demonstrate that the disposal will help it secure the promotion or improvement of the economic, social or environmental well-being of its area.
4.2 If the council wishes to dispose of open space, it must publish notice of its intention in a local newspaper for two successive weeks and consider the objections (s123, 1972 act). See R (on the application of Day) v Shropshire Council  UKSC8.
Dedication of access rights
4.3 A local council can dedicate public rights of access to its land under s16 of the Countryside and Rights of Way Act 2000. Once dedicated the rights cannot be revoked. These can be rights on foot, horseback, bike, carriage driving, canoe or boat, and can include the right to wild camping. Furthermore, a local council can temporarily or permanently rescind the restrictions on any access land it owns, for instance by giving horse-riders rights of access.
Local green space (LGS) (England)
4.4 LGS is identified in the national planning policy framework (NPPF) as land which must be reasonably close to the community it serves, demonstrably special to the local community, and local in character. Once designated the land has the same protection as green belt.
4.5 LGS is designated by the planning authority during the neighbourhood or local plan process. The local council can recommend sites for designation.
5.1 Public rights of way—footpaths, bridleways, restricted byways, and byways open to all traffic—are all highways in law. They are recorded on the definitive map and statement (DMS) held by the highway authority (county or unitary council) and the local council should have a copy of this.
The DMS does not record every public right of way, but it is conclusive in law of the highway rights over those routes which are shown on the map and recorded in the statement.
Local councils may also have sealed and unsealed minor roads in their areas which make a valuable contribution to the exploration of the countryside. Where we refer to ‘paths’ below this includes all such highways.
5.2 The local council has a good knowledge of the local paths and a voice to command the attention of the highway authority. It should use that voice.
Dealing with obstructions
5.3 It is a criminal offence under s137 of the Highways Act 1980 (the 1980 act) wilfully to obstruct free passage along the highway. The highway authority (county or unitary council) has a legal duty under s130 of the 1980 act to ‘assert and protect the rights of the public to the use and enjoyment’ of the highway, and to prevent the stopping up or obstruction of the highway.
5.4 While any member of the public has the power to prosecute a landowner or occupier for the obstruction of the highway, the local council uniquely has a power, under s130(6) of the 1980 act, to require the highway authority to take proceedings against the obstruction of the highway or highway waste. See our information sheet on Parishes dealing with highway obstructions for more details of how to use this power.
Power of veto in the magistrates’ court
5.5 If a highway authority proposes to divert or extinguish a path with full vehicular rights, under s116 of the 1980 act, it must do so in the magistrates’ court.
5.6 The local council has a power of veto against such a change, which it must exercise reasonably. Local councils should scrutinise requests for consent to applications under s116, and consider refusing consent which would not be in the public or local interest. Read about an example of this power being exercised.
Diversions and extinguishments
5.7 The local council may object to orders made by the highway or local planning authority which would divert or extinguish footpaths, bridleways, and restricted byways. In that case, the order must be referred to the Secretary of State for confirmation, and the Secretary of State must hold a local inquiry into whether the order should be confirmed.
5.8 Under s43 of the 1980 act the local council may undertake maintenance of publicly-maintainable footpaths, bridleways, and restricted byways. This includes clearing undergrowth or repairing path furniture, such as footbridges and steps. The highway authority may pay all or some of the costs. The highway authority cannot prevent the local council exercising these powers (but it may refuse to contribute).
5.9 Alternatively, the local council may make an agency agreement with the highway authority about the work to be done by each body, and the sharing of the costs, so that the local council then acquires and exercises the functions of the highway authority. It may, for example, agree to acquire the highway authority’s power to cut back vegetation growing in or over paths.
5.10 The local council may also help maintain signposts and waymarks with the agreement of the highway authority.
5.11 Under s50 of the 1980 act the local council may also maintain any privately-maintainable footpath or bridleway in its area, whether or not any other person has a duty to maintain it.
5.12 The powers under ss43 and 50 do not affect the duty of any highway authority or other person to maintain the way.
Creation of public rights of way
5.13 A local council has powers, under s30 of the Highways Act 1980, to enter into agreements with landowners for the dedication of new public footpaths, bridleways, and restricted byways in its area. A path created by such agreement is not automatically publicly-maintainable, but the local council may maintain it under its s50 powers.
5.14 There are many remedies available to the public in general, which the local council can use, including:
5.15 A local council can:
- organise a survey of all its paths at least once a year, reporting all problems to the highway authority;
- establish a paths subcommittee or working party to focus on path issues;
- appoint a councillor to lead on paths;
- study planning applications to ensure they do not have an adverse effect on paths;
- ensure that paths are a regular item on the council’s agenda.
- apply for a definitive map modification order for unrecorded paths to be placed on the definitive map and statement.
6.1 Under s101 of the 1972 act, a local council has the power to take on, by an agency agreement, the functions of any other local authorities. It is worth a council considering what it can do to further the protection, management and care of the commons, greens, open spaces, and paths in its area.
7.1 The society publishes books:
7.2 The society also offers training to local councils.
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, March 2023