Duties and Powers

From GPG

The main responsibility for rights of way falls on the highway authority. The highway authority is the county or unitary authority for the area. It has a wide range of statutory duties - that is, action it must take - to protect and maintain rights of way; and it has discretionary powers - that is, action it may take if it wants to.

1 Duties and powers of the highway authority in relation to Rights of Way
2 What Ways are publicly maintainable
3 The Section 56 process (Highways Act 1980)
4 The Definitive Map and Statement

Duties and powers of the highway authority in relation to Rights of Way

Some of their most important statutory duties include:

protecting the public's right to use and enjoy rights of way;
maintaining the surface of most rights of way;
preventing the closure or obstruction of any highway (see sample letters for the removal of obstructions)
ensuring that farmers comply with the law that paths over cultivated land are properly restored after they have been disturbed and remain apparent on the ground thereafter;
ensuring that farmers do not allow crops to make any right of way inconvenient to use;
ensuring that the legal record of all rights of way - the 'definitive map and statement' - is kept up to date;
signposting rights of way from metalled highways and providing additional signs and waymarks where these are necessary along any path.

A more comprehensive list of duties includes :

To erect and maintain signposts where any Footpath (FP), Bridleway (BR), Byway Open to All Traffic (BOAT) leaves a metalled road unless agreed with the Parish Council that it is not necessary (Countryside Act 1968(CA68) s27).
To erect such signposts if in the opinion of the Highway Authority this is required to assist persons unfamiliar with the locality to follow a FP/BR/BOAT (CA68 s27)
To survey new paths agreed by a planning authority(Highways Act 1980 (HA80) s27)
To keep a list of highways maintainable at public expense(HA80 s36)
To maintain highways maintainable at public expense (HA80 s41)
To provide footways by carriageways where necessary or desirable for the safety or accommodation of pedestrians (HA80 s66)
To provide adequate grass or other margins by a carriageway where necessary or desirable for the safety or accommodation of ridden horses (HA80 s71)
To assert and protect the rights of public to the use and enjoyment of any highway including a duty to prevent, as far as possible, the stopping up or obstruction of highways (HA80 s130; amended CROW2000 s63*)
To prosecute re: disturbance of surface where desirable in the public interest (HA80 s131A; Inserted by Rights of Way Act 1990 (RWA90) s1)
To enforce provision re: ploughing of footpaths or bridleways (HA80 s134; amended RWA90 s1)
To make orders authorising agricultural works not exceeding 3 months (HA80 s135; amended RWA90 s1)
To remove snow or soil (HA80 s150)
To have regard to the needs of disabled and blind persons in executing street works (HA80 s175A)
To keep the Definitive Map and Statement (DM&S) under continuous review (Wildlife and Countryside Act 1981(WCA81) s53; Modified by Countryside and Rights of Way Act 2000 (CROW2000) s53*)
To re-classify Roads Used as Public Paths (WCA81 s54; repealed CROW2000 s47*)
To prepare and publish a Rights of Way Improvement Plan (CROW2000 s60*)
To have regard to the needs of people with mobility problems when authorising stiles etc (CROW2000 s69*)
To establish a Local Access Forum (CROW2000 s94)

The highway authority's discretionary powers allow it to:

create new paths by agreement with the landowner;
make orders to create, divert and extinguish rights of way;
improve rights of way, including the provision of seats and street lighting;
provide footpath wardens

A more detailed list of powers includes :

To erect/maintain signposts along any FP/BR/BOAT (CA68 s27)
To prosecute if expedient for the promotion and protection of the interests of the inhabitants of the area (Local Government Act 1972 s222)
To create footpaths and bridleways by agreement with compensation or compulsory purchase (HA80 s25/26)
To adopt i.e. become responsible for maintenance of highways by agreement (HA80 s38)
Proceedings for an order to repair highway (HA80 s56)
To improve highways (HA80 s62)
To provide on a footpath safety barriers for safeguarding persons using the highway (HA80 s66; amended CROW2000 s70*)
To widen highways (HA80 s72)
To construct a bridge to carry a public path (HA80 s91)
To reconstruct a bridge forming part of a public path (HA80 s92)
To drain highways (HA80 s100)
To make an order stopping up footpath(s) or bridleway(s) (HA80 s118)
To make an order stopping up footpath(s) or bridleway(s) which crosses a railway (HA80 s118A)
To make an order diverting footpath(s) or bridleway(s) (HA80 s119)
To make an order diverting footpath(s) or bridleway(s) which crosses a railway (HA80 s119A)
To remove unauthorised marks (HA80 s132)
To remove structures (HA80 s143)
To require removal or widening of gates (HA80 s145 + s149)
To repair stiles, etc. (HA80 s146)
To authorise the erection of stiles, etc. (HA80 s147; amended CROW2000 s69*)
To require cutting or felling of trees or hedges that are overhanging or a danger (HA80 s154; amended CROW2000 s65)
To require removal of barbed wire (HA80 s164)
To require information as to ownership of land (HA80 s297)
To consolidate the Definitive Map (DM) (WCA81 s57)
To appoint wardens (WCA81 s62)
To designate a footpath as a cycle track (Cycle Tracks Act 1984(CTA84) s3)
To provide safety barriers on a cycle track (CTA84 s4)
To make Traffic Regulation Orders (Road Traffic Regulation Act 1984(RTRA84) s1)
To make a temporary Traffic Regulation Order during works (RTRA84 s14)
To require removal of signs (RTRA84 s69)
To enter land in connection with traffic signs (RTRA84 s71)
To stop up or divert footpaths or bridleways if satisfied it is necessary to enable development to be carried out (Town and Country Planning Act 1990 (TCPA90) s257)
To stop up or divert footpaths or bridleways temporarily if satisfied it is necessary to enable minerals to be worked and can be restored(TCPA90 s261)

What Ways are publicly maintainable

Not all routes are publicly maintainable, and the situation is complex. For more information see What ways are publicly maintainable. This recently updated document is intended to give a quick reference to which highways are publicly maintainable and why. The situation is rather more complex than might be imagined, and highway authorities potentially can expend funds on statutory maintenance when, in truth, there is no duty to do this. In most cases the highway authority would have a power to improve these highways, and so could elect to do necessary work, but different prior procedures may well be necessary, and the funds might come from a separate budget. (We have been advised of a possible error in this document. The Document advises that public paths are automatically maintainable at public expense if they came into being prior to 1st January 1960. This contradicts advice given in other publications).

The Section 56 process (Highways Act 1980)

Section 56 of the Highways Act 1980 provides a statutory process by which a member of the public can go to the court and obtain an order requiring a highway authority to repair a highway maintainable at the public expense. The highway authority's room for manoeuvre in this process is limited. If the road in question is publicly maintainable - even if it is not properly recorded as such- and is out of repair, then the court will make the order the complainant seeks. The highway authority can plead lack of funds or alternative priorities, but these will buy little extra time: once the complainant has satisfied the necessary tests, the order will follow.

The Definitive Map and Statement

The concept of the definitive map and statement was introduced by the National Parks and Access to the Countryside Act 1949. The legislation governing the compilation of these records and their review and amendment has altered since the coming into effect of that Act, principally by the Countryside Act 1968 and the Wildlife and Countryside Act 1981. The Countryside and Rights of Way Act 2000 brought in the "cut off" date of 2025 by which time all rights of way over footpaths and bridleways outside Inner London which have not been not recorded on definitive maps will be extinguished (see Discovering Lost Ways.)

Information on the definitive map and making changes to the map can be found in Definitive Maps and Managing the Record.

Duties and Powers

From GPG

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