Public Rights of Way Changes

As part of your studies on ILSPA’s Legal Secretaries Diploma course, you have considered the topic of land law. This month, we are reviewing proposals to change rights over land. These changes affect public rights of way and were part of the government’s Deregulation Bill 2013 – 2014.

You may recall from your studies that a right of way is an easement. The land that is subject to such an easement means that the landowner must permit someone to pass over their land. Public rights of way allow members of the general public to pass over land, and these rights of way were designed to allow people to access the countryside. These types of easements are protected by law. If you are the owner of land that is subject to a public right of way, it is your responsibility to keep the right of way clear of obstructions.

For some landowners the presence of a public right of way on their land is not a problem. However, where a right of way crosses a landowner’s front garden or is being abused by members of the public, the right can cause the landowner significant problems. In such cases, the existence of a right of way can even affect the value or saleability of a property.

One famous example of a right of way that caused significant problems was one located at Ashcombe House, the country house owned by Madonna. In this case, Madonna complained that members of the press were “setting up camp” on the right of way to take photographs. Clearly, camping on a public right of way is not permitted, but is a member of the public allowed to access a right of way and snap a few photos on route? The simple answer is yes. Perhaps this is why Madonna was unhappy, but she should have been aware of the right when she bought the property. You may recall from your study of conveyancing that such rights are usually very clearly recorded in the title information document for a property held by HM Land Registry.

When a landowner does raise significant objections to public rights of way, the process to have a right changed or diverted is time-consuming and subject to public consultation. It could also prove to be a costly process for a landowner, as they would be responsible for the administrative expenses, cost of advertising and cost of bringing a new route up to standard. This might easily run to several thousand pounds, and I can personally recall a case of a right of way through a golf course that was not allowed to be moved, so the club house had to be built over the path.

Depending on your point of view this might seem extreme, but the law is trying to find a fair balance between the rights of landowners to enjoy their land vs. the rights of the public to enjoy access to the British countryside. 

Consider another case for having and extending the network of public rights of way. In November 2014 Natural England published a report on behalf of the government explaining a scheme called “Paths for Communities”. The scheme was designed to encourage local communities and landowners to work together to develop public rights of way. Under the scheme over 183 kilometres of public rights of way were either created or improved. Generally, the project was judged as a successful pilot for future extensions of the public rights-of-way network in England. You might think that as a result of this scheme, any changes to the law would be to further protect and extend the public rights of way network, but this may not be the case.

The Deregulation Bill sounds like a fairly harmless change to the law. The objectives of this proposed law use phrases like “removing red tape” and “saving on unnecessary bureaucracy”. These are great sound bites for a politician, but what if the “red tape” that is being removed is the public’s right to object to changes or the streamlining of the process for removing a public right of way? The word “deregulation” could be changed to “removal of rights”; this is not the kind of language that wins a politician votes, but it may be the reality.

The Bill is due for a third reading in the House of Lords, so if it passes we can expect a new law before the end of the year. The provisions of the Bill affecting the use of land are contained in clauses 21 to 27 of the Bill. These clauses will need to be considered very carefully by Parliament, as any changes to how public rights of way are recorded and how existing routes can be changed could open a way for landowners to restrict the public’s access to the countryside