Creation of Public Paths
Local authorities may, by sections 25 and 26 of the Highways Act 1980, create public footpaths, bridleways and restricted byways (but not byways). The power extends to district councils as well as highway authorities. Section 25 of the Act provides for the creation of a public path by agreement, whereas section 26 provides for compulsory creation by order. Depending on circumstances, authorities may need to make use of both sections in order to create new paths.
In 2005, the Countryside Agency published a code of practice (commissioned from Reading Agricultural Consultants) for the creation of public paths, it includes:
- An introduction to the legal, historical, and administrative background to PROW creation;
- Principles for negotiating and creating PROW, including compensation;
- A recommended model for PROW creation;
- An approach for assessing the impact of creations;
- Examples of compensation levels paid for access creation; and
- Case study examples of PROW creations.
The document is arranged into four sections:
- an introduction to the legal, historical and administrative background of creations to date including the Countryside and Rights of Way Act 2000;
- an examination of the principles of rights of way creation, and payment of compensation (primarily for the creation of public paths);
- the development of a recommended model based upon those principles.
- appendices containing an Impact Matrix, Compensation Guide and Case Studies.
The tone for negotiations can be set by the way a creation process is initiated. Handled well, it can result in smooth progression to creation by Agreement, minimising both conflict and compensation. Handled badly, it can lead to a sense of mistrust, to antagonism, and to a protracted procedure requiring Creation by Order and significant extra costs to both sides. Following this Code will maximise the chances of smooth progression through to creation by Agreement. Although the Code primarily considers cases of creation of public footpaths, the principles for negotiating and creating public rights of way that it details will be of assistance to those seeking to create bridleways and restricted byways.
There is also a Practice Guidance Note produced by the Rights of Way Review Committee on securing agreement to public path orders which has helpful advice.
In considering any proposal to create a public right of way whether by agreement or order the local authority must also consider its duties under the following statutes:
- Countryside Act 1968 s.11 Conservation of natural beauty
- Natural Environment and Rural Communities Act 2006 s.40 Conservation of Biodiversity
Creation by Agreement
Creation by agreement is relatively straightforward. It is put into effect by a formal agreement between the local authority and the landowner. The agreement is then advertised in the local press. Agreements do not require statutory notices and the process does not provide for a period of public objection. Where there are both district and county councils, either council may enter into an agreement but must consult the other before so doing. There is no obligation to carry out any other consultations, though the authority must have regard to the needs of agriculture (including horses) and forestry before entering into any agreement.
Agreements may only be entered into between the authority and the owner of the land crossed by the proposed path. They are therefore not suitable in circumstances where the ownership of land is uncertain or unknown, or where the landowner objects to the creation of a path across his/her land. In legal terms the landowner must be the person or body 'seised of the fee simple'. This means that the landowner has the power to dispose of the land however he/she sees fit, with no legal encumbrances to that power. Almost all landowners will be in this position. However, if there are any doubts, specialist legal advice should be sought before an agreement is entered into. Any authority entering into an agreement with a landowner to create a public path may agree to pay compensation for the creation of the right of way. The agreement may contain limitations, provided that these are consistent with the dedication of a right of way. An example of such a limitation is the dedication of a bridleway subject to a bridlegate. However, it would not be possible to dedicate a bridleway subject to a stile, or a footpath that is closed to the public each night.
You are strongly recommended to check title to the land prior to entering into the agreement as it is not unknown for a landowner to be sure he/she owns the land, sign an agreement, and later it be found that title was in other hands, which is a messy situation to end up in!
An authority cannot enter into a creation agreement with itself it is therefore not possible for an authority to use a section 25 agreement itself to create a public right of way on its own land. In areas where there are both district and county councils it is possible for one authority to enter into an agreement with the other authority under section 25 of the Highways Act. For unitary authorities and for authorities not wishing to use section 25 powers for authority owned land the alternative is to make a deed of dedication. See sample deed of dedication for a path on council owned land (produced by Suffolk County Council).
The legislation does not provide a set form for an agreement; the agreement can therefore be altered to suit the specific circumstances. This example is of an agreement between a unitary authority and a landowning company to create a footpath.
Publicising the agreement
The legislation does not provide a set form for the advertisement and it may be altered to suit the specific circumstances. Here is a sample advertisement. There are no further requirements to publicise the making of an agreement but it is good practice to send a copy of the advertisement and agreement plan to the parish council, local user groups and other interested bodies including Ordnance Survey. A copy of the agreement and any certificate should be supplied to the Ordnance Survey.
Creation by Order
Creating a path by order instead of by agreement is appropriate where the landowner is opposed to the creation, where the ownership or the land is unknown or uncertain, where the owner agrees to the creation in principle but is unable to agree the level of compensation, or in the rare situation where the manner of the ownership precludes the landowner from entering into an agreement.
Section 26 of the Highways Act allows a local authority to make an order to create a footpath or bridleway where the authority considers that there is a need for one. The authority must have regard to the extent to which the footpath or bridleway would add to the convenience or enjoyment of a substantial section of the public or to the convenience of residents of the area. This means that an authority may choose to provide a route by means of a creation order if it is convinced of the need of either local people or the general public, and that such a route may be provided for reasons of convenience, utility or as a recreational facility. On the same basis, a creation order may also be used to widen an existing footpath or bridleway, or to 'upgrade' a footpath to bridleway.
Authorities must also consider the effect the creation will have on the rights of persons interested in the land, account being taken of the statutory provisions as to compensation. This means that the authority must consider the effect of the creation of the path on the land, on the landowner, and on any person with a right over the land. Rights over land include those given by licence and agreement, including sporting and mineral rights.
Consideration must also be given to the interests of forestry and agriculture, and the effect, if any, the creation of the path will have on these activities. However, authorities may decide that any effects may be compensated for.
The Highways Act provides for the payment by the order making authority of compensation. In some cases authorities have been able to agree with the landowner a sum for compensation before an order is confirmed. However, this is not always possible. If a dispute arises as to compensation, it is determined by the Lands Tribunal after the order has been confirmed. Public path creation orders must be made in the prescribed form and advertised by notices on the proposed route and in the local paper. They are subject to public objection in the same way as other public path orders.
Orders that are objected to may not be confirmed by the order making authority; they can only be confirmed by the Secretary of State, in the same way as other public path orders. Authorities may recover the costs of making creation orders under the Local Authorities (Recovery of Costs for Public Path Orders) Regulations 1993 (SI 1993/407).
Authorities are encouraged to adopt the practice set out by the Rights of Way Review Committee. This covers consultation prior to an order being made and subsequent procedures. Authorities are also encouraged regularly to review the list of consultees to ensure that it is up to date and inclusive.
Making up new footpaths, bridleways and restricted byways
See also Surfaces
The requirements for the making-up of a new footpath, bridleway or restricted byway are the same whether the path has been created by agreement or by order. In those cases where the order or agreement making authority is not the highway authority, the highway authority has a duty under s.27 of the Highways Act 1980 to survey the path and specify the works (if any) necessary to bring the path into a fit condition.
The highway authority must also ensure that the path is provided and certify that it is in a fit condition for use by the public. It may either specify the works that are required and delegate the carrying-out of such works to the district council, or alternatively, may carry out the works itself and recover its expenses from the district council.
An authority may sometimes make two or more orders that it wishes to be considered concurrently. For example, a creation order may be made in association with an extinguishment order. It is still necessary, however, to ensure that each order meets the appropriate tests and criteria laid down in the legislation. So in the example above, the creation order has to be considered on its own merits. If it is decided to confirm the creation order the extent to which the newly-created path would provide an alternative path to that proposed for closure can then be taken into account in considering the extinguishment order (assuming the extinguishment is conditional on the creation).
For an account of some of the difficulties encountered with concurrent orders IPROW members can view the article 'The Creation Dilemma - Tyttenhanger' on IPROWiki.