From GPG

Contents 1 Main legislation 2 Initial procedure 3 Dealing with matters that are the responsibility of the authority 4 Dealing with matters that are the responsibility of the owner or occupier 5 Procedure where the landowner has been identified 6 Procedure where the work is found to be done 7 Procedure where the landowner cannot be positively identified 8 Procedure to be taken in cases of default 9 Preparing to undertake a prosecution 10 Procedure where the path is not recorded on the definitive map and statement 11 Cases where default action may not be taken 12 Cutting Costs

Main legislation

• National Parks and Access to the Countryside Act 1949
• Countryside Act 1968
• Highways Act 1980
• Wildlife and Countryside Act 1981
• Rights of Way Act 1990

The following is an example procedure. Elements may not be appropriate to your authority but it can be adapted.

Initial procedure

1. On receipt of a report, acknowledge it immediately and record it with the date of receipt on a database.
2. Check the line and status of the path that is the subject of the complaint in both the definitive map and statement. Make a copy of the relevant section of the map and note on it any factors that may be relevant to the report. If the path is not recorded as a right of way or the report is inconsistent with the status of the path (for example, the report refers to the use of the path as a bridleway, but the path is recorded as a footpath), go to stage 31.
3. Inspect the path as soon as possible (within a maximum of 10 working days from receipt of the report). Make a full note of your findings, including whether the circumstances are the same as those contained in the report, whether the faults found are permanent, transient or likely to be a recurring problem. Record any contributory factors such as time of year or weather conditions and how the problem affects legitimate users of the right of way (pedestrians in the case of a footpath, pedestrians, riders and cyclists in the case of a bridleway, all classes of user in the case of a byway).
4. At the same time inspect other paths in the vicinity and note any problems that might be dealt with simultaneously.
5. On completion of the site inspection, make an overall assessment of the extent to which the complaint was found to be justified and the relative seriousness and urgency of the matter. Determine where the responsibility for rectifying the problem lies.

Dealing with matters that are the responsibility of the authority

6. If the report is found to be justified and relates to a matter that is the council's responsibility, arrange for the problem to be rectified in the most efficient and effective way, having regard to the nature of the problem and its urgency. While some matters can be satisfactorily dealt with by being incorporated into routine maintenance or other ongoing programmes of work, others, such as where the right of way is wholly unavailable or the public is endangered, will need urgent action to be taken.
7. Write to the complainant informing him/her how the matter will be dealt with and when it is intended to carry out the work.
8. If the work is not to be carried out immediately, put a reminder in the diary to check that the work has been completed. Write again to inform the complainant that the matter has been dealt with.
9. Close the file and place the correspondence on the main file. Mark the card index or update the database to indicate when and how the matter was dealt with.

Dealing with matters that are the responsibility of the owner or occupier

10. Write, as appropriate, to the property occupiers in the area under investigation bringing the problems to their attention, and pointing out the requirements of the law. Invite them to contact the authority if they have any problems they wish to discuss, and ask them to rectify those matters for which they are responsible. Inform them that re-inspection will take place in 14 days to ensure compliance.
11. Depending on the responses to the letter, try to resolve any difficulties with landowners/occupiers either by phone and/or at a meeting. After any meeting or discussion send a letter to all the landowners/occupiers concerned to confirm the details.
12. If no response has been received by 14 days after the issue of the letter, re-inspect the path to check on the situation and to try to make contact with the occupiers/landowners.
13. If the problems are found to have been resolved at this stage, or have been overcome following the meetings or discussions, send letters of thanks to the landowners/occupiers concerned.
14. If the problems have not been resolved, send letters to the landowners/occupiers who have been identified as being responsible expressing concern that the works have not been done and advising them that, if problems remain at the time of the next inspection (in seven or 14 days' time), legal action will be considered or default action will be taken.
15. Where doubt still exists as to the identity of the landowner/occupier, send a further speculative letter to the possible offenders, reminding them of their legal obligations if the problems are on their property and advising them that the authority will be considering legal or default action if no improvements are visible at the next visit.

Procedure where the landowner has been identified

16. If problems remain at the third inspection, send a formal notice to the person responsible. The notice should be accompanied by a covering letter explaining that the notice is being sent due to the failure on the part of the landowners/occupiers to take action to resolve the difficulties. Emphasise that if the remedial work has to be carried out by the authority, any costs will be recharged to them. Notice procedures may be used for:
• s.143: obstructions caused by structures placed on the highway
• s.145: gates across bridleways/byways too narrow
• s.146: gate or stile out of repair
• s.149: nuisance caused by things deposited on the highway
• s.154: trees, hedges, etc., causing obstruction
• s.164: barbed wire causing a nuisance
• sch.12A: offences under the Rights of Way Act 1990 (ploughing and cropping)
17. After the statutory period of notice (see the relevant section of HA80), carry out an inspection to ascertain compliance, unless the landowner/ occupier has indicated that the work has been carried out. If the problem remains, make a further full note of the situation and take photographs; these should be dated and signed for use as evidence in any future prosecution. Arrange for default work to be carried out (go to stage 25) and/or take legal advice about further action. Write to inform the original complainant of the position.

Procedure where the work is found to be done

18. If the work has been satisfactorily carried out, send a letter of acknowledgement to the landowner/occupier.
19. Send a letter to the original complainant if appropriate informing him/ her of the successful resolution of the matter.
20. Close the file and place the correspondence on the main file. Mark the card index or up-date the rights of way database to indicate the date the matter was closed.

Procedure where the landowner cannot be positively identified

21. If problems remain at the third inspection, send a requisition for information (under the Local Government (Miscellaneous Provisions) Act 1976) regarding the ownership of the land crossed by the public right of way to those people who have either failed to reply to previous letters or refused to clarify their ownership or interest in the land. Send a covering letter explaining that the information must be supplied and that it is an offence to fail to do so. Advise the recipients that legal enforcement action is being considered. Allow a period of 14 days for a reply and enclose a pre-paid envelope.
22. On receipt of a reply, contact the landowner/occupier and advise him/ her of the outstanding work required to be done. Serve a formal notice as appropriate and follow the procedure from stage 16 above.
23. If you receive no reply or the replies fail to identify the owner or occupier, contact the authority solicitor for legal advice on the most suitable course of action to take.
24. Write to the original complainant to advise him or her of the position.

Procedure to be taken in cases of default

25. If, after the appropriate period of notice has expired, the works have not been carried out to the satisfaction of the authority, issue an order to contract services to undertake the works, with instructions that the costs be recharged to the landowner. Arrange for the contractors to be accompanied by the officer dealing with the case or by a senior officer if necessary. The officer's time and expenses should also be recharged.
26. If a breach of the peace is likely, arrange with the police to have an officer in attendance.
27. When the work has been carried out, advise the finance section of the costs and ask them to raise an invoice addressed to the appropriate person.
28. The officer in attendance should compile a report of the action taken and this should be retained on file for future reference in case of court action to recover the debt.

Preparing to undertake a prosecution

29. If it is felt to be unwise or too difficult to carry out the enforcement action, or if a prosecution is being considered, prepare a detailed report and photographs for the authority solicitor.
30. If it is decided to proceed with a prosecution, contact the authority solicitor for advice on how to prepare the case. Offer the person considered liable for the offence an interview at the authority's offices under the Police and Criminal Evidence Act conditions (i.e. under caution). Any interview should be recorded, the procedure having been agreed beforehand with the solicitor. A copy of the interview record should be given to the solicitor. If the person concerned refuses to attend the interview, this fact should be recorded.

Procedure where the path is not recorded on the definitive map and statement

31. If the path that is the subject of the report is not recorded on the definitive map and statement, or the complainant appears to believe that additional rights exist beyond those currently recorded, check whether there is an outstanding application for a definitive map modification order or whether there is any record that the path might be incorrectly recorded on the definitive map. If the path is the subject of a formal application, or if it is considered that the path may be wrongly recorded, then it will be necessary to liaise closely with colleagues dealing with the definitive map and take advice from the authority's solicitor on how to proceed. It should be borne in mind that the duty to protect and assert the highway extends to highway rights that are not recorded on the definitive map and statement, although it may be necessary to ascertain the extent of rights before taking enforcement action.
32. If there are no such matters outstanding, write to the complainant informing him/her that the path is not a public right of way or that it is not the status that the complainant believes it to be, and that the authority is therefore unable to take the action requested. If appropriate, draw the attention of the complainant to the application procedures for a definitive map modification order.

Cases where default action may not be taken

33. Cases will arise where either default action is not appropriate or the highway authority has no power to take action other than by prosecution. No default powers exist for dealing with misleading signs under s.57 of the National Parks and Access to the Countryside Act 1949, for dealing with bulls and other animals and certain other nuisances. The procedures set out above for ascertaining the nature of the problem, and identifying and contacting the owner or occupier will apply in the first instance. If approaching the owner or occupier and requesting that the problem be dealt with does not resolve the problem, then the advice of the authority solicitor should be sought. In the case of a complaint concerning a bull in a field crossed by a right of way it may be necessary to take advice from a veterinary surgeon or an agricultural expert. It may also be necessary to contact the Health and Safety Executive. In the case of other animals it may be necessary to refer the matter to the police or to the environmental health department.

Cutting Costs

The above is a costly process requiring repeated letters and inspections. There are alternatives that reduce the staff time involved. One is to serve notice immediately, without 'friendly' contact first, the second, and better practice, is to make personal contact to explain the situation, hear any extenuating circumstances you may wish to take into account, but serve notice at the time anyway. See Enforcement, Enforcement Strategy and Enforcement Procedure.