Permissive Routes
From GPG
Despite the existing network of Rights of Way, the new Access Areas created by CRoW Act, access stemming from farm grant schemes, access granted by such bodies as National Trust, British Waterways, local authorities and others, there are still situations were an extra link can make a great difference to the path network. This is acknowledged in the RoWIP system.
It is undeniable fact, and perfectly understandable, that the vast majority of landowners are very protective about their land. In particular, matters relating to how it is used, who has access onto it, and the extent to which they retain control. Even the payment of annual sums does not overcome a loss of control in some minds.
A Permissive Path enables a landowner to have the 'feel good' factor of having granted a facility but with the ability to retain some control over occasional closure. In this writer's view, small amounts of flexibility can oil the wheels of such arrangements in ways that a dedication as a definitive path never could. Two classic examples are: the facility to close it for odd days for a shoot, and/or the facility to route a path down different sides of a field boundary one year as compared with another as his cropping arrangements change. It might be argued that s.16 of CRoW Act can achieve most of these, but the implications of a legally binding and permanent arrangement are not lost on most landowners.
Many people have concerns that a voluntary and impermanent arrangement is a poor substitute for a permanent right. That may be so, but countryside access management is like other forms of management in that it is 'The pursuit of the attainable'. If one can't get the ultimate agreement, get what one can, make sure it works satisfactorily for all parties, and then see if one can get something better later (when the access arrangements are seen to have worked well over time).
At least one authority which negotiated a large number of permissive path agreements twenty years ago has found that not a single one has been removed. The authority has now started negotiations to add the paths to the legal record.
There are examples of the paperwork used successfully by at least one authority in the 1990s (please note they may need slight revision in the light of recent legislation).
The closure for a day a year is a 'belt & braces' operation as many landowners do seem to have a vague awareness that closing a route regularly will reinforce their position making it clear that the path is not acquiring permanent status. The submission of a formal statement under s.31(6) achieves the same result, but experience over some years suggests it is not worth arguing that point with a landowner who is minded to be co-operative, so the 'day a year closure' clause stayed in.
Arrangements for New Permissive Paths
From experience we know that certain landowners are sometimes prepared to make an arrangement with the Council regarding permissive paths, where they would not wish such a path to become a right of way. We do accept that this can be a very real concern and might put off someone who is otherwise sympathetic to the idea of allowing certain access over his land on a regular, long-term basis.
From a user's point of view, this arrangement provides a new path where normally no such facility existed before. After discussion with the Authority's legal officers, it is quite possible for proper arrangements to be made which answer the needs of this situation.
(See sample permissive path agreement from Cambridgeshire County Council)
This would be done in three parts, namely:
- The Countryside Service would install and maintain signs at its own expense indicating that the path can be used "by permission" and not as a right (see standard wording at Appendix I below).
- The landowner submits to the Council, in its capacity as Highway Authority, a standard letter setting out the arrangements regarding the path. A duplicate would be signed by The Council and returned to the landowner as proof of its deposit with the Council (see standard letter for permissive footpath).
- The path will be closed for one day per year, for example in the third week of February.
The combination of these actions will ensure that it cannot be said in the future that the owner intended to dedicate the path as a right of way because of such an agreement.
Countryside Service will normally only seek to make such arrangements with a landowner when a path is desirable as part of a recreational scheme for the area. In those situations Countryside Service will do any necessary work on the paths to bring them up to a previously agreed standard at the Authority's expense. The paths would then also be monitored by the authority's staff, and we would maintain any stiles, kissing gates, signs etc involved.
If this permissive path agreement is working well, the Council would not seek to convert such a path into a definitive right-of-way. However, if such a situation did arise for any reason whatsoever, the compensation question would be treated as though no permissive path had ever existed.
Notices on the Path
"This path is not a public right-of-way, but walkers are normally allowed to use it by permission of the landowner, and at their own risk".
The above printed on a permanent plaque will be attached to signs, stiles or posts at each end of the path and also at any point where the path crosses a metalled road or meets a definitive right-of-way. This wording applies to permissive footpaths and amended notices would be installed on any permissive bridleway.
