Gates and Stiles - statutory provisions
Statutory provision for gates and stiles
The statutory provisions for gates and stiles are contained in ss.145, 146 and 147 of the Highways Act 1980. Statute covers the liability for maintenance of gates and stiles, the circumstances where new structures can be authorised and the circumstances where the highway authority may require gates to be widened.
Maintenance of existing stiles and gates
It is the owner who must maintain stiles and gates on footpaths and bridleways across his/her land in a safe condition for use by the public. The relevant statutory provisions are found in s.146 of the Highways Act 1980. The owner of the land is defined as the person who, either in his/her own right or as agent or trustee, is entitled to receive what is known as the 'rack rent' of the land. 'Rack rent' is a legal term and is held to be not less than two thirds of the notional amount of money that land may be rented out for if it were to be let year by year. The term 'owner' can include a body, such as a limited company or partnership. Where land is tenanted, the tenant may be obliged to repair gates and stiles as part of the tenancy agreement. However, under s.146, the final responsibility for repair rests with the owner.
As stiles and gates on rights of way are often found on boundaries between different landholdings, it not always easy to find out who owns them. In such cases it is usually the landowner responsible for the repair of the boundary fence or hedge who has the responsibility for the gate or stile within it. In some circumstances the stile or gate is the responsibility of the highway authority or the district council (this is common in cases where the structure is on a promoted route), but there should be a written agreement between the authority and the landowner that documents this fact. Where a gate or stile is authorised under s.147 of HA80 (see below), conditions may be imposed about its maintenance that override the provisions of s.146 (see below).
If the owner of the land incurs expense in complying with the duty to repair a stile or gate, then he/she is entitled to recover at least 25% of the expenditure from the highway authority. Increasingly, highway authorities have adopted the practice of supplying gate and stile kits to landowners instead of making a monetary payment. This has come about because of the high cost to the authority of processing what are usually very small payments.
The practice has the added advantage that the authority is able to supply kits of an acceptable standard, thus avoiding disagreement over the quality of the structures provided by landowners. However, authorities generally check that the kits they have supplied have been correctly installed. It is also prudent to confirm in writing that the supply of the kit is discretionary and does not imply that the authority takes responsibility for repair of the structure.
The standard of repair required is set by the authority. The gate or stile must be maintained in a safe condition, and must not represent an unreasonable interference with the rights of the public using the path. Stiles and gates vary in their construction, and it can be difficult to lay down a single standard that suits all circumstances. A judgement on the safety of the structure and the ease with which it can be used will have to be made having regard to the use made of the path, its location and the state of repair of the structure. However, some general points can be made:
- gates on bridleways should be easy to open by both mounted riders and by pedestrians;
- it should be possible to operate all fastenings easily (singlehanded, in the case of a horserider);
- it should be possible to mount, climb over and dismount any stile without catching clothing or slipping;
- exposed electric fencing and barbed wire should not pass over gates or stiles or round gateposts.
There is no obligation on the landowner to improve a stile, or to replace one with a gate or other structure. However, if the highway authority considers that an owner has not kept a gate or stile in a safe condition and to an adequate standard of repair, it may give the owner and the occupier 14 days' notice of its intention to carry out the repair itself. A highway authority that serves notice in this way may recover its costs from the owner. Before serving notice it is important to identify the owner correctly; where the owner is not the occupier, then notice must also be served on the occupier.
Authorisation of new structures
Statutory authorisation of stiles and gates is under the provisions of HA80 s.147. The circumstances under which new gates and stiles can be authorised by the highway authority are limited and the section applies to land being used for agriculture or being brought into use for agriculture. In this instance the term 'agriculture' includes forestry. The s.147 provision does not apply to any other class of land, for example, residential land or parkland. Use of land for keeping horses which are not used for agricultural purposes was not considered to be 'agricultural' in HA80 but this changed with the Countryside and Rights of Way Act 200 section 69.
In addition to applying solely to agricultural land, or land being brought into use for agriculture, stiles and gates may only be authorised to control the ingress and egress of animals where it is considered expedient to do so for the efficient use of the agricultural land. The decision of the highway authority is discretionary and there is no right of appeal other than by way of judicial review of the decision in the High Court. There is no power to authorise the erection of a gate on a byway, even if it crosses agricultural land.
In authorising a stile or gate the highway authority may impose conditions as to the future maintenance of the structure and these may override the statutory provisions of s.146. An authority may impose the condition that newly authorised structures will be maintained solely by the landowner, removing the obligation of the authority to contribute to the expense. The authority may also impose conditions as to the type and design of the structure. This enables the authority to ensure that new structures meet modern design standards. If the conditions attached to the permission are not complied with, then an authority may treat the structure as an obstruction and deal with it accordingly. There is no right of appeal against the imposition of conditions other than by way of judicial review of the decision in the High Court. It is not possible retrospectively to impose conditions on an authorised structure.
It is recommended that authorities consider imposing a condition that where the authority in future requires access, that the authorised structure must be removed to allow that access and that the authority will not be responsible for any associated costs of removal or replacement.
It is important to keep a record of all authorisations and any conditions. Ideally, authorisations should also be recorded in the definitive statement.
There are specific provisions under HA80 s.145 that enable the highway authority to require the widening of gates across carriageways an bridleways. These relate to any authorised structure, including those on bridleways that are the subject of a specific permission under s.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 5 feet and a gate on a carriageway to be widened to 10 feet. The width is to be measured between the gate posts.
Sample letter authorising a gate (or could be adapted to authorise a stile):
Dear Mr Farmer
Public Footpath No. 22 Xxxx, Section 147 Highways Act 1980
Further to our meeting of .... I write to confirm that this council, as highway authority, being satisfied that you are the owner, lessee or occupier of agricultural land, and that it is expedient in order to prevent the ingress or egress of animals onto such land, hereby authorises, in pursuance of s.147 of the Highways Act 1980, the erection of one gate where the above footpath is crossed by a fence at grid reference AA xxxx xxxx and a second gate where the above path is crossed by a fence at grid reference AA xxxx xxxx, subject to the following conditions:
- Both gates should conform to the enclosed standard and be of a minimum width of 1.2m (four feet) between the posts.
- No barbed wire should be attached to any part of the gate or posts.
- The gates shall be kept in a state of repair consistent with the requirements of s.146 of the Highways Act 1980 by yourself.
- Should at any time the use of OS plot no. 1234 (or any part thereof) change such that the gates are no longer necessary in order to prevent the egress of animals from the field, the gates must be removed.
- Should at any time the portion of OS plot no. 1234 crossed by public footpath No. 22 no longer constitute agricultural land, the gates must be removed so as to restore uninterrupted passage along the path.
- This authorisation shall not become effective until such time as a signed copy of this letter has been returned to this office.
- The authority retains the right to affix waymarks to the gates.
- Should either of the gates fall into disrepair, the authority retains the right to revoke the authorisation and remove it (* N.B. this is questioned - see below.)
In accordance with s.147(4), failure to comply with any of the above conditions will invalidate this authorisation. The gates may then be required to be removed under s.143 of the Act.
Should you wish to discuss this matter further please contact me.
Confirmation [to be typed on the same page as the letter]
I, Mr A. Farmer, as owner/lessee/occupier* of OS plot no. 1234 hereby agree to the above conditions.
(*delete as appropriate)
* You could argue that s147(2) enables you to write this in but it may be unsafe in that Parliament may not have had enforcement in mind (usually it makes enforcement clear due to its importance). S146(5)(a) also raises questions. This section tries to pick up conditions applying in s147 removing maintenance of the structure from the owner but it is not clear. It may be that s146 cannot apply and the HA has to rely on s143.