Ploughing and Cultivation
From GPG
CAUTION — This page is being revised!
Occupiers of land are permitted under section 134 of the Highways Act 1980 to plough footpaths and bridleways that run across arable land. Byways open to all traffic (BOATs) and restricted byways may not be ploughed, nor may footpaths and bridleways that run along the edges of a field or enclosure (headland paths). The right to plough or otherwise disturb the surface of a path that crosses arable land is subject to the path being reinstated for public use. If at all possible, occupiers should try to avoid ploughing or disturbing paths during cultivation.
See also Pesticides on Rights of Way
Reinstatement
Where the occupier of land has ploughed or otherwise disturbed the surface of a footpath or bridleway, the path must be reinstated or made good to not less than its minimum width, so as to make it reasonably convenient for the public to use. The legislation does not set out standards for reinstatement and it is for each highway authority to decide what is acceptable. For any particular path this will be determined in part by the nature of the soil and the topography of the land crossed by the path and the likely use made of it by the public. It is good practice for highway authorities to issue general guidance to occupiers on what will be considered acceptable, and to offer specific advice where this is needed.
Minimum and maximum widths
The Rights of Way Act 1990 introduced the concept of minimum and maximum widths. Where the width of a right of way is proven, usually by being recorded in the definitive statement, then the minimum and maximum widths for the path are the recorded width. Other types of evidence of the proven width of a path might be an inclosure award or a public path order where the path has been diverted. In cases where there is no recorded width the 1990 Act provides for the following:
- for cross-field paths:
- footpath: minimum width 1 metre and maximum width 1.8 metres;
- bridleway: minimum width 2 metres and maximum width 3 metres;
- for field-edge (headland) paths:
- footpath: minimum width 1.5 metres; maximum width 1.8 metres;
- bridleway: minimum width and maximum width 3 metres;
- other highways (including byways and restricted byways): minimum width 3 metres; maximum width 5 metres.
The minimum and maximum widths for field-edge paths and for other highways which may not be ploughed or otherwise disturbed assist the highway authority in determining whether or not the highway has been encroached upon.
Time allowed for reinstatement
Where the ploughing or other disturbance of the surface of the path is the first agricultural operation that has been carried out in connection with sowing a crop, the occupier is allowed 14 days (sometimes called the relevant period), beginning with the day of the first ploughing (or disturbance), to reinstate the path. The relevant period of time for second or subsequent disturbance is 24 hours, beginning from the time the path was disturbed. On the application of the occupier, either before or during the relevant period, the authority may grant an extension for an additional period of not more than 28 days. Extensions may not be granted retrospectively.
Encroachment and interference with the surface by growing crops
Where a path has been ploughed and subsequently sown, it will be sufficient to mark out its line through the field and reinstate the surface. As the crop grows, it will obscure and then obstruct the path. Where the crop is other than a grass crop, the occupier must ensure that the line of the path through the crop is indicated to at least the minimum width and prevent the crop from encroaching on this width. Encroachment is defined as being when any crop or part of a crop grows on or extends onto the path so as to reduce its apparent width to less than the minimum width. The legislation does not define at what point a crop might be held to be an obstruction to a path user, and it is up to each individual highway authority to decide what policy to adopt.
Procedure for dealing with ploughing and cultivation
Initial procedure
The initial stages for dealing with a reported complaint about ploughing and cropping are the same as for any other reported problem.
As soon as the occupier has been identified, speak or write to him/her to explain his/her responsibilities under the 1990 Act and setting out what must be done to comply with the legislation (e.g. restore the surface, indicate the line and/or clear encroaching crops).
If the council's policy is to take default action (and it is appropriate to do so in this case) follow stages 1-12 below.
If the council's policy is to prosecute, follow the procedures set out in Enforcement Procedure as appropriate, bearing in mind that it is the occupier's responsibility to make good the surface of any cross-field footpath or bridleway that has been disturbed, to ensure that the line of the path remains apparent, and/or to keep all rights of way clear of encroachment by crops. It is therefore the occupier rather than the landowner that must be identified, and on whom notice should be served.
Enforcement procedure
- Inform the occupier that it is council policy to serve the appropriate notice and that the council will, if necessary, enter on to the land (after giving notice of its intent) and carry out the work, charging the costs to the occupier.
- Within five working days, write to the occupier summarising the conversation and enclosing a notice of the prescribed form.
- Send a copy of the notice to the local councillor.
- Enter the expiry date in your diary and make every reasonable effort to re-inspect on that day.
- If the path has been reinstated, send a letter of acknowledgement to the occupier within five working days.
- If no action has been taken, write to the occupier and inform him/her of the council's intent to enter onto the and to carry out the reinstatement at his/her expense.
- Notify the occupier that entry onto the land will be aborted if he/she contacts you no later than 4 p.m. two working days before entry onto the land has been arranged.
- Arrange for a contractor or works team to carry out the reinstatement making the appropriate arrangements to ensure that the costs will be recharged.
- Reinstatement should be carried out to the maximum width required by law.
- If resistance is encountered, notify the police and request their assistance. Defer entry if a police officer cannot be available.
- On completion of the work, notify the income recovery section in writing and request an invoice.
- Compile a file note on return to the office for future reference in the event of court action to recoup the debt.
Standards of reinstatement
The decision as to what is reasonably convenient shall take into account:
- the geology of the land;
- the agricultural practices being undertaken;
- the potential amount of use the path is likely to receive.
Reinstatement after disturbance of the surface
A path must be clearly marked and reasonably convenient for use to at least the minimum width stated in the legislation.
The authority will accept the marking of a path using tractor wheels providing the surface between the wheel marks is reasonably convenient to use. (If this is not acceptable to your authority, omit.) The use of a roller is recommended.
Reinstatement after cultivation of the path
The path must be clearly marked and free from encroaching crops to at least the minimum width stated in the legislation.
A crop in excess of XX centimetres (in accordance with authority policy) in height will be considered an obstruction to the free passage along the public right of way.
Regard should be had to the weather and its effect on the occupier's ability to reinstate the path.
Spraying to keep paths clear of vegetation
Suggested advice for inclusion in leaflets and letters to farmers and landowners:
If spraying is used as a means of clearing and defining a public right of way the guidance issued by the Health and Safety Executive must be followed. See Pesticides on Rights of Way.
Sample letter giving owner/occupier notice to clear
Dear Mr Brown
HIGHWAYS ACT 1980 s.137A - INTERFERENCE WITH PUBLIC RIGHTS OF WAY BY CROPS
It has become clear to Northshire County Council that a crop of barley and a crop of beans growing at the locations shown on the enclosed plan are encroaching on to public footpath no. 7 Nethergrimpton across your land, so as to render the use of the said highway inconvenient for the exercise of the public right of way.
This is in contravention of s.137A of the Highways Act 1980. As an offence is alleged to have been committed, the council is required to comply with the Police and Criminal Evidence Act 1984 in the event that further action is taken. I therefore have to advise you that you do not have to respond to this letter, but it may harm your defence if you do not mention something which you may later rely on in court. Any response you do make may be given in evidence.
In the event that you fail to reinstate the public right of way within 14 days of this letter (i.e. 16 June 1999), the council will institute formal prosecution proceedings against you in the magistrates' court.
A further site visit will therefore be made on 16 June 1999, and the file will be passed to our solicitor if the public rights of way have not been reinstated to the minimum width of 1 metre.
Yours sincerely
