What farmers need to know about public rights of way

This article was first published in Farmers Guardian in June 2022 as part of a media partnership.

Few will forget the photographs of a lockdown-weary population finally getting out into an exceptionally wet countryside in early 2021. Instead of rambling along in single file, this new breed of visitor trampled crops underfoot as they strayed off footpaths to find some firmer footing. Walked routes became far wider than the legal line of the right of way, resulting in a muddy expanse and many metres of productive farmland lost.

Sophie Dwerryhouse, former national access adviser at the CLA, says the episode highlighted there is a whole generation which missed learning about the Countryside Code. Sophie was involved in work with Natural England as it modernised the wording and content of the code to mark its 70th birthday earlier this year, as well as working with Linking Environment and Farming to develop a free resource pack specifically for teachers and youth leaders.

Sophie says: “What we have put together has been very well received. Rather than telling the public they cannot do something, it works much better if you explain why.”

Sophie says she has been working on a new generation of signage, using QR codes which can be easily scanned on a walker’s mobile phone – that provide additional information. She says: “A good example is dog mess. Rather than just saying ‘pick it up’, it works much better if there are facts such as dog mess can cause still birth and abortion in cattle."

While the subject of access has often been limited to public rights of way, there is now a new spotlight being shone on opening additional land up to the public. Sophie says: “I’m busy at the moment looking at voluntary access under the Government’s Environmental Land Management scheme. It stands to reason if farmers and landowners are going to get financially rewarded for offering additional access they are going to be more positive about it.

“However, on the flip side, any increased access needs to really fit in with the existing farming business.”

Other areas which take up a large chunk of Sophie’s time are helping farmers wanting to divert a right of way and those who have received a notification from the local authority about either intending to establish a new right of way or claim an old, often long forgotten, access.

She says: “It is quite possible a farmer could have rights of way across every single one of their fields, so at busy times, such as calving, when cows can pose more of a threat to walkers for example, the option might not be there to move them to a field without a footpath.

“The CLA continues to lobby for a small amendment to the Highways Act 1980, which would allow farmers to temporarily divert footpaths and bridleways for a limited time period. Applications like these could save lives. They are not about reducing the network. Managing them in an upfront way is better for the farmer and their business and is safer for the public.”

When it comes to claims for rights of way, it is very much that nothing is cut and dried, says Sophie. “Just because something is shown on an old map, it is not definitely going to be turned into a new public right of way.

“Giving strong and sensible evidence against a claim early on can save an awful lot of headache and legal fees down the line. There is currently a huge backlog of right of way claims languishing in local authority offices. They could end up being a headache not just to our children but to our grandchildren if we don’t take a proactive line with them now,” says Sophie, who adds that another junction when rights of way may need discussion is farm diversification.

She says: “It might not be appropriate from a point of view such as security or safety to have a right of way going through a campsite or equine livery yard, for example, but the advice is very much don’t bury your head in the sand. The sooner you start the ball rolling with an application for a diversion the better.”

Ordinarily, the surface of a public right of way comes under the umbrella of the Highway Authority, but if you need to interfere with the surface, for example to carry out drainage work, you must seek permission. Obstructing a public right of way (such as with overhanging vegetation) without legal authority or excuse is an offence. If found guilty, a person could be liable to pay a fine.

After ploughing and cultivating, farmers must reinstate the route of a path within 14 days and for it to be clear on the ground and its surface reasonably convenient for the public to use. If you know you will require longer, you can apply to the local authority, which may grant an extension for up to 28 days.

Although it is good practice to display signs informing the public when animals, such as bulls or cows with calves, are in a field, and advice about what to do in case of emergency (‘let your dog go if chased’), signs are not a substitute for a proper risk assessment. Livestock owners should be aware of the dangers and risks cattle and other animals can pose to members of the public, however docile.

A full assessment of those risks must be recorded and action undertaken to minimise those risks. This may mean a variety of preventative measures, from locating cattle in different fields, not keeping horses in fields crossed by bridleways, installing permanent or temporary fencing, the provision of signs or the relocation of feeding areas away from public access. It is also important to ensure you have adequate insurance cover in place.

There is a risk of members of the public suffering an injury from livestock when using public rights of way or access land, which often attracts media interest to raise public awareness and the possibility of a claim. Two most common factors in incidents are cows with calves and walkers with dogs, although the principles also apply to other types of livestock, including horses.

The Animals Act 1971 covers civil liability and places strict liability on the keeper of animals which cause harm.

Duty of care

The Occupiers Liability Acts 1957 and 1984 state an occupier of land owes a duty of care to those who enter onto it. The 1957 Act deals with lawful visitors and the 1984 Act sets out the position with regard to trespassers.

Farmers and land managers should be aware of the risks to all types of rights of way users, such as cyclists, disabled users and horse riders, as well as walkers. It is important to note that members of the public, including children, may not understand about the risks presented by livestock, especially if a dog is present.

When considering where to keep livestock, you should take into account that the public is unlikely to be familiar with the behavioural characteristics of such animals, or be aware of how to respond appropriately. It is important that this lack of knowledge is taken into consideration in your risk assessment and decision-making.