Public Rights of Way, Landowners, COVID-19

Farmers are lambing, drilling, and worrying. Private estates are managing. Individual landowners are staying at home. Here are a few thoughts on the impact of COVID-19 on land access issues.

Whilst we are locked down and, where possible, working from home, the public are exercising. Isolated paths whether official or not are more attractive to those seeking to have their one hour a day exercise. More people are at home and are looking for the opportunity to get out safely and within the guidelines.

For existing public paths, particularly those closer to areas of habitation, this has resulted in increased use. It has highlighted the intrusive nature of some paths, where they pass close to houses or through working areas (farmyards in particular). The right of the public to use such routes raises issues of the ability of the landowner to ensure safe distancing from the public.

The public are touching fencing, gates, latches, stiles and signs. All of these are apparently capable of retaining the virus to a greater or lesser extent so this represents a risk to the landowner and other members of the public.

With certain “high profile” routes closed to the public, there is a risk that paths that are not recorded on the definitive map, becoming more attractive.  Even in the countryside, these paths that perhaps a few locals may risk using from time to time are potentially more likely to attract those seeking exercise.

Directly challenging anyone who is on such a path is potentially fraught at the best of times, let alone in the middle of a public health crisis where anyone may be carrying the virus.

Strict control is difficult and may be inappropriate where there is a national mood that we must help one another.  Our suggestions are given in this light and are as follows:

Official Paths (those recorded on the Definitive Map)

  1. If the path pass close to your house or through your working yard, can you provide an alternative which avoids intrusion?  If so, a notice asking people to utilise the alternative on a permissive basis during the public health crisis would be appropriate.  You cannot close the official line, but most people will respect your request in the circumstances.  Do bear in mind that whilst you have no liability to the public using official paths, they legally become visitors where they use your permissive paths, so tell your insurers what you have done.
  2. If you have gates which people have to open, can they be left open at the moment to avoid the transmission risks of handling gate latches.

Unofficial Paths

  1. If you have no signs in place prohibiting use, or have not deposited a map and statement with your council, consider your position.  It may be too late to prevent a claim to add the route to the definitive map, if the route has been in existence for more that 20 years and the public have used it to some extent.
  2. It may be difficult to physically stop people, and a direct challenge may encourage a claim.
  3. Consider the possibility of introducing the concept of the route being permissive to regain control – perhaps by a notice in terms that the public may use the route in difficult times as part of their exercise regime.

As always there is no “one size fits all” so do speak to your land agent if you have one or take professional advice.  We are here (our office is in the garden!) and are working if you wish to discuss your specific issue.

A Night at the Oscars

On Thursday 5 October 2017 we enjoyed the red carpet experience at Denbies’ Wine Estate in Surrey as a finalist in the Best Rural Professional Services category in the Rural Business Awards, Sponsored by the CLA and Amazon.  It was quite a night!

We were awarded “Highly Commended” in our category.  As a small niche business we were delighted with this acknowledgement of the service that we provide.

The night started with a champagne reception giving us the opportunity to speak to fellow finalists and guests.  An interesting discussion with the Amazon contingent included the usefulness of the Amazon delivery boxes as composting material!

Our table was next to the stage – ideal for viewing the pre-presentation final details and the host, Jules Hudson from Escape to the Country.

Of course to have won would have been fantastic but the calibre of our fellow finalists was significant.  Being beaten by a law firm with more than 200 employees and partners and a turnover of £14M is no disgrace!

A great night, explaining footpath diversions and modification orders to our table and learning about dog treats, farm shops and baking from them.

Congratulations to everyone who made it to the finals – we know just how much work it takes to shine in your chosen field,  Well done!

We are always pleased to talk about public rights of way – just get in touch using the form below.

Buying a property with a public path through its grounds. Is it all doom and gloom?

A public right of way can have a dramatic impact on the value of a property, sometimes making it unsaleable.  However if you have fallen in love with a house and are willing to ask questions and do some research, then it might not be as bad as you think.  We’ve set out some pointers below.

Is the path on the correct alignment?  You might be surprised to know that some property owners have made changes to public rights of way without going through the formal diversion process.  It will be the line on the map that will be enforced, not an alternative.

Ground marked waymarks

Look out for signs which show where the path runs

Are there stiles or gates on the route?  You will need to be satisfied that these are “lawful limitations” and are recorded by the highway authority otherwise they are likely to be obstructions and you can be forced to remove them.  You can only get permission for a gate that keeps livestock in or out of your property.  The security of your pets or children is not a basis upon which an authority can permit you to have a gate, and a stile will rarely be authorised as a new structure.


An authorised gate may require special latches

Is the path part of a promoted route?  You will need to ask or check on the Ordnance Survey’s published leisure maps where promoted routes are shown with diamonds.

Is the path well used?  Be sceptical when the seller says that they have never seen anyone use the path.  Even if that is the case, that does not mean that it will not be used in the future.


Is the path fenced off?  The path might have been fenced off to stop the public and dogs straying, but any fencing must not obstruct the legal line and width of the path and there are rules about the fence height.  If in doubt, check with the highway authority.


This footpath has been fenced on both sides across a paddock – but it is too narrow

Can you lessen the impact of the path on the property?  You may be able to divert the path away from the house or out of the garden or away from some change of use of the land if this improves matters for you.  Diversions are not straight forward but it is always worth investigating.  We recommend taking specialist advice.  And do bear in mind that diversions can take time to achieve.

definitive path

The footpath gave a great view into the garden of this house – it has now been diverted.


We are standing on a public path – you can see into the windows of this house for sale.


It might be a matter of better management of the path.  Proper signs can help and a fence or hedging may be a good way to provide the privacy you need.  Bear in mind that if you plant a hedge it will grow sideways as well as up!  You will need to cut back side growth if it goes across the path.



Some of our clients have been able to benefit from diverting paths to improve their privacy and security.  As one noted to us “it’s just good land management practice to look after and enhance your property if you have the opportunity to do so.”



Arrange to view the Definitive Map and Statement. 

The Definitive Map and Statement is the legal record of the alignment, status and other details about the path and it is this information which the highways authority will rely upon.  You will usually find how to see these documents through the “rights of way” pages on your county or unitary council’s website.


You can always contact us for advice – we can often give a preliminary view without charge and if nothing else, point you in the right direction.  It costs nothing to ask us!

Contact Michael Wood by email or give him a call on 07796 958572

Or complete the form below:


The minefield of public rights of way

Two recent cases have demonstrated the potential minefield for landowner clients resolving public rights of way issues.  We’ve been glad to get them through these problems and to have them both say that our input was invaluable.


In Hampshire, a relatively straight forward claim to upgrade an existing bridleway to a restricted byway ran into the huge complexity of the legislation when it emerged that the recorded route was on the wrong historic alignment.

On discovering during the investigation into the historic evidence that the route should actually run through ancient woodland, both our client and the council were agreed that this served no one’s purpose and that keeping the route on the existing alignment was the right thing to do.

To achieve anything, the first technical step would require a Modification Order to move the path back to the historic alignment through the woodland.  Such an Order might also seek to upgrade that route to a restricted byway, which our client would challenge.  We would then need a diversion order to move the route back onto the alignment currently recorded and used by the public.  There could be no certainty that either order would succeed in total (although it was likely that the route would be moved back into the woodland) so a solution had to be found.

And we have found one.  Working with the client and the council, there will be a restricted byway retaining the charm and characteristics of the currently used route.  It will take some further work to finalise the required agreements and orders but the public, the client and the council will have a clearly defined, sympathetic route and the significant expense to both the client and the council of public inquiries and potential challenges will be saved.

Meanwhile in Kent, we were called in to negotiate with the council over the availability of a public footpath which had a significant impact on our client’s estate but which had to be reopened.  Having made some initial demands of our client to open it to 2 metres in width, and to remove gates, we brought some direction to the discussions, pointing out that the route had no defined width.  The client was happy with 1.5 metres and this was agreed.


More importantly we were able to argue that the gate that the client required was actually an improvement to the stile that formerly existed on her boundary and should be permitted as a lawful structure.  Again this was agreed and is now being implemented.  The client has achieved what she wanted and we have maintained a good relationship between our client and the council which looked at times to be strained whilst the issue was in dispute.

We will always fight our client’s corner but there are many situations where an early and knowledgeable intervention can help bring matters to a positive conclusion, saving time, money and anguish.

As always we are here to help!  Contact Michael Wood – or call 07796 958572 or complete the form below:


A bridleway diversion is confirmed for a leading Equestrian Stud and a longstanding dispute about the path is finally resolved.

We are pleased to have resolved one of the longest dramas in rights of way history with the confirmation of a diversion of the bridleway at Quainton Stud at Lower Denham Farm, a highly successful equestrian enterprise, breeding and training horses for the Olympics, World and European Championships.

Initially called in to try to resolve the problem of implementing the details of a diversion order made by Buckinghamshire County Council, we discovered a problem with the Order.   It had failed to join the diverted route to the highway, leaving a gap in the network.  We explored the options but finally it was agreed that a new Order would be required which has now been confirmed without objection.

Just quite how well the bridleway has or will be used by equestrians is debatable, though, as this is the busy road that the route joins with no immediate onward bridleway for use.

Part of the solution involved removing this recent flower bed and the granite sett edging which the Council regarded as a trip hazard for horses…  The gate in the picture was also removed.

In the course of investigating the path, we discovered that it had a significant history.  There are a few key cases you need to know about in the arena of public rights of way.  One of these is definitely Regina v Secretary of State for the Environment ex parte Burrows and Simms.

The Simms family had owned Lower Denham Farm and were convinced that the Definitive Map showing the bridleway on the driveway was wrong.   As far as they were concerned, a mistake had been made and there was no right of way.  They thought that when Parliament introduced the Wildlife and Countryside Act in 1981 they would at last be able to seek to have the bridleway removed.

From their files at that time was this cutting from Farmers’ Weekly:

Unfortunately it was not quite that simple.  First they had to challenge and overturn the decision of the courts in a case called Rubenstein v Secretary of State for the Environment which had held that you could not challenge the Definitive Map, despite the new law.  They won their challenge but failed to achieve the Order to have the path removed.

An unofficial diversion had got around the practical problem for a number of years, but the threat of enforcement and the opening up of the driveway was real and had to be formally addressed.

The bridleway now has its own dedicated route, separate from the driveway, allowing the Stud to gate and control access to its property.

We have considerable experience dealing with public rights of way affecting equestrian properties so if you have a problem, get in touch and we will be pleased to help find a solution.

Contact Michael Wood – or Coralie Wood  if you have a problem or you can call us without obligation on 07796 958572 for an initial chat to see what we can do.

Or fill in the form and we will get back to you.

Inspector’s Decision concludes landowner’s changes to public access at Baydon House Farm, Wiltshire

A recent decision from the Planning Inspectorate confirming a bridleway diversion brought to an end a series of successful applications and interventions for the landowner at Baydon House Farm, Wiltshire.  These included resolving steps taken by the landowner to restrict vehicle access to prevent crime, the authorisation of a gate across a bridleway, the diversion of a bridleway out of a farm yard under planning law processes, and the diversion of a bridleway out of a garden.  Michael Wood of ET Landnet Ltd headed the team which successfully delivered the client’s required outcomes.

Yard Picture

(Above – the yard at Baydon House Farm that was part of the public bridleway until we successfully diverted it.)

In the process we presented at two committee hearings, acted as advocates at a public inquiry and dealt with the expert evidence, and settled the statements of case for a written representation procedure.

The end result is that the Farm now has no public rights of way on the Farm drive or through the yard, and the privacy of the house and the Farm cottages is immeasurably improved.  The operation of the equestrian enterprise can now be undertaken without the risks that come from unannounced public access so horses can be moved and trained in peace.

Here are some of the pictures…

A bridleway ran across the lawn of this cottage

A bridleway ran across the lawn of this cottage

This gate had to be legally authorised whilst the process of diverting the bridleway off the driveway was completed

This gate had to be legally authorised whilst the process of diverting the bridleway off the driveway was completed.

A section of bridleway ran between the wall and the outdoor school.

A section of bridleway ran between the wall and the outdoor school.

This is part of the new route that takes the public away from the driveway.

This is part of the new route that takes the public away from the driveway.

This is a section of the new bridleway that is enjoyed by local walkers.

This is a section of the new bridleway that is enjoyed by local walkers.

We naturally look back at the end of such a case with a high degree of satisfaction in the knowledge that the owner’s objectives for the Farm have been met.  We look forward to the next large project and solving our clients’ access issues.

You can call Michael Wood on 07796 958572 to discuss your access questions or email Michael at

Evidence proves alleged footpath was disputed many years ago.

We are pleased to have successfully represented our client in its challenge to an alleged public footpath through woodland in East Sussex.  Fairlight Parish Council claimed that a route had been used by the public through Knowle Wood to such an extent that a presumption of dedication had arisen.

There was significant user evidence over recent years which the County Council had relied upon both to make an Order to modify the Definitive Map and to support its case that the Order should be confirmed.  At the public inquiry in September, some of those that had completed forms detailing their use, attended to give evidence which we were then able to cross examine.

One of the forms had mentioned a dispute in the 1980s which we thought was significant.  The Council sought to suggest that the dispute related to an adjoining path and was not relevant to the claim.

The public inquiry presented the first opportunity to explore this comment.  By then it was supported by a few items of correspondence but the arguments were still potentially tenuous.  However, when we pressed the Council’s witness on the issue it emerged that the Council had looked through a file which related to the earlier dispute. They considered it was not relevant.

This rightly raised the Inspector’s eyebrows and we asked to see the file so we could make our own decision.  At the end of the first day we were permitted to start reading the contents.  An early start before the inquiry reconvened at 10.00 am on the second day enabled the file inspection to be completed and, not surprisingly, there was plenty to confirm our belief that the early challenge was both significant and relevant.  The file contained notes and letters which referred to a section of the path, and confirmed that its status needed to be resolved.

One of the final witnesses called by the Council was the person who had made the comment in her evidence form.  She was clear in her recollection that the matter had been raised and never dealt with.  She had been at the heart of the Parish Council.  There had been promises made by the County Council which had not been fulfilled.

Once the evidence was heard, we were able to include this new material in our closing submissions to argue that this dispute had raised the pubic right to the claimed route and that the Parish Council had been aware at that time clearly indicating that the required elements to challenge the public had been satisfied.

The argument was one of several we made but ultimately it was the argument that the Inspector accepted.  In his decision letter he rejected the claim.  There was simply insufficient evidence of use for 20 years before the earlier dispute to enable him to confirm the Council’s Order.

This is a significant win and one that demonstrates the importance of following every line of evidence. It also shows how careful consideration of the material and the cross examination of witnesses can elicit supportive material which might otherwise be regarded as not relevant by some of the parties to a claim.

The decision arrived on the same day as we have been instructed on a new claim in Dorset so as one case concludes, another gets under way.

We are always happy to talk to landowners throughout England and Wales facing path claims or who have existing footpaths, bridleways or byways they would like to divert or who have public path management problems.  It is likely that we have already had to deal with a problem like yours!  Just fill in the form and we will get back to you.



Fencing Out Paths – our take on the Somerset Path

A Somerset landowner has caused consternation because he has used 2 metre high metal palisade fencing each side of a footpath on his land.  The type of fencing looks something like this:

Crossing a meadow in one of the prettiest rural counties, it is plainly shocking to the eye.

Yet it should come as no surprise to those who have had any dealings with paths in the countryside.

The sad fact is that landowners are increasingly alarmed by the abuse of paths by some members of the public.  These relatively small numbers are spoiling it for all.  The problem is getting worse, not better, despite attempts to educate.  Sadly a lack of respect for the landowner and an insistence on public rights causes friction and what we see in Somerset is the result.

Responsible walkers rarely cause a problem.  It is the few people who do not stick to the path, spread out over grass that is to be cut for hay, do not shut gates, allow their dogs to foul the land and do not keep their dogs under control so stock are worried that cause the issues for the landowner.  Walkers have been injured (and, sadly, killed) by grazing animals that become alarmed or defensive of their young, with farmers facing criminal and civil legal action.

It is hardly surprising that physical separation becomes necessary in the mind of those trying to manage the land.

Attempts to divert paths to remove or reduce the conflict are often opposed through arguments that views will be lost, despite the benefits to the farmer.  In those situations, fencing off a path may be the final option.  Would the public prefer to keep a path and have it fenced in this manner, or work with a farmer to find a compromise?

The Somerset example may be extreme but that is because of the immediate visual impact.  A post and rail fence with sheep netting might look more “natural” and achieve the same result without the media interest.

Is it a surprise that someone might choose a method to fence out a path that detracts from the path’s setting?  Even if that was the direct intention, there is nothing to prevent this.  Provided no planning laws have been broken, and no path is obstructed, landowners are free to erect what they like to secure a physical barrier on their land.

On social media, someone asked how much this fence must have cost.  It’s a valid question but any investment will be balanced against the cost of lost hay crops, injured stock, prosecution and actions for negligence all carrying a considerable and potentially ongoing expense, and not least the daily management concern for a path that impacts on the land.

We work for landowners across England and Wales and few would wish to erect such barriers on their land.  We would not like to see this become the default solution for difficult paths.  However we understand why someone would do this and maybe it is sign that working with landowners is more likely to avoid this occurring than confronting their plans to change paths where there are identifiable benefits to the landowner.

It will be interesting to see if others follow this example.

You can read more about the Somerset path and see photographs here: Daily Mail

To talk about your land access and footpath issues contact us on 0203 086 7657 or email

I always thought that was a Restricted Byway…

Mr and Mrs Reynolds are an ordinary family living in an ordinary house but their trials with their neighbours and the London Borough of Havering Council are anything but ordinary.

It started when they became concerned about anti-social behaviour on a track next to their house.  When the status of the track was raised, Mrs Reynolds said that she thought it was a Restricted Byway because any public rights with vehicles would have been extinguished by the Natural Environment and Rural Communities Act 2006 (the “NERC Act”).

The Council did not agree.  The route was unadopted and not recorded on either the List of Streets or the Definitive Map.

Finally taking matters in to their own hands and acting on the advice of their solicitor, they moved their garden fence in to the track.

The reaction from the Council was that this was a vehicular highway and criminal proceedings were commenced against Mr Reynolds.  At the 11th hour they agreed to withdraw when Mr Reynolds agreed to remove the fence.  That was not enough for the Council who insisted that he move his fence even further in to his garden.

Standing with the Council were the neighbours.  Unfortunately neither the neighbours nor the council appeared to understand the first thing about highway law so when we were instructed following the criminal case, we had to explain not only the law but also the procedure for them to record the route.

Mr and Mrs Reynolds did not deny it was a public way but it soon became clear that the council intended seeking to record not only the part used by the public, but also an area of ground that the Reynolds had cultivated for some years.  Eventually after several attempts the Council made a Modification Order to show the route as a Byway Open to All Traffic (BOAT), even though they failed to consider the NERC Act and that it was not then possible to record BOATs.  Our objection followed to an Order that was plainly flawed.

Everyone seemed to finally grasp the point and at the public inquiry the Inspector decided that it was a Restricted Byway and that the width did not extend to the full width claimed and only affected the area of land actually used by the public.  She reached her view having considered numerous forms from neighbours and others where witnesses had assessed that although vehicles did use the route, the main use was as a footpath or with bikes.

However, despite presenting evidence that the predominant public use had been on foot or bike at the public inquiry, the neighbours were not happy with this finding.  They objected to the decision and forced a further public inquiry, claiming now that the predominant use was with vehicles.  This would enable them to argue through their barrister that the NERC Act did not operate to extinguish any unrecorded public vehicular rights.

It fell to us to cross examine the neighbours as to their change of heart.  The Inspector put it like this in her decision:

“When asked by Mr Wood what had made her change her view, Mrs Tyler acknowledge that when she had completed the questionnaire in 2010 she had not appreciated the significance of the ratio of user, and that now she did. This suggests to me that her current view has been coloured by her increasing understanding of the issues, and that I should prefer her earlier view which was given freely and without pre-conception. Applying the same principle to the other witnesses leaves me with no option but to conclude that the views of most of them have been similarly affected, leaving Mr Lee as the only witness whose evidence in 2010 concurs with his view now.”

The Inspector went on to confirm her original finding that the route was a Restricted Byway and was limited to the extent of the public’s historic use, thereby excluding the area of the Reynolds’ garden and finally settling matters.  The neighbours will be totally unaffected by this as their access rights are preserved by the NERC Act.  Several £000’s of public money have been wasted and we await the Inspector’s decision as to various claims for costs made at the inquiries.

The Inspector’s decision is here  

Need help with your own public right of way or highway problem?  Contact us now:

A gate (great) result for two CLA members

Farmers need gates.  Farmers have always needed gates.  Gates in the countryside are passed unnoticed – they are things of utility and blend in to the background.

Except, that is, where they are across a public right of way. Then they become items for scrutiny and potential action.  They limit the public’s right of way and they may be obstructions.

One would think that the highway authority, charged with the duty to assert and protect the public right of way and to remove obstructions would be clued up on what gates are lawful and what gates are obstructions.  They should find the information in the “Definitive” Statement which records all lawful limitations.

Gates may be historic in that they were in existence at the time the public right of way came in to being and the dedication of the right of way is therefore deemed to be subject to a “lawful limitation” or they may be authorised for stock control purposes which also makes them “lawful”.  The difference is that a historic gate is not subject to a request for removal once its purpose has been served.  In contrast a gate erected for stock control must be removed once that purpose has ended, such as when pasture is turned over to arable cultivation.


It potentially gets more difficult!  Lawful limitations may be upgraded with the agreement of the highway authority and are then subject to the authorisation process dictating their character, design and operation.  All these authorisations need to be recorded and should be added to the Definitive Statement.  It was not that long ago that a friendly rights of way officer would supply and erect a stile or a gate for a landowner to get over a problem, no questions asked and no paperwork done.  Now authorisations are formal.  Nothing much changed in “gate legislation”.  The change had to happen once the public had the power to force councils to remove obstructions.

When the Definitive Statement was first prepared a detailed survey of all paths was carried out and the gates and stiles found to exist were to be recorded.  This might be by showing the structure on the survey maps (“F.G.” = Field Gate) or by a note in the written description (“proceeds to a stile…”). This enabled those at county level to ensure the records were properly compiled so all would be clear in the future.

Great idea – poor execution.  The local surveyors of the rights of way were mainly diligent in their work.  Looking back now some 60 years it is inexplicable why the detail required and recorded for the survey such as the location of gates and stiles was frequently ignored when the Definitive Map and Statement were finally produced from the survey data.  The same is also true of widths, but that is for another time.

In two recent cases for CLA members (thank you to the CLA for the recommendation, by the way) two different authorities were threatening serious action for the removal of gates.  One in the North York Moors was across a route that had been surveyed as a public path but which had been omitted from the Definitive Map because it was a maintainable highway (this could be the subject of a separate post in itself) and the other in Hertfordshire was a gate across a bridleway.

Common to both cases was the owners’ knowledge that the offending gates were historic.  But how could this be proved?

Both clients were able to provide statements, either of personal knowledge or from occupiers, to confirm the existence of their gates, but these words did not seem to be enough.

The clinching evidence came from the parish surveys from the 1950s.  The surveyors had diligently recorded the features on these routes.  In the North York Moors case the “F.G.” was plainly marked on the survey map.  In Hertfordshire the Parish Survey described the gate and its location.

Detailed letters to each authority setting out why the authority was wrong to require the removal of the gates and requesting the withdrawal of the threats against the landowner followed.  The evidence from the 1950s surveys was proof in both cases that these were historic gates, so that the respective highway authorities withdrew their threats of action.   Applications to modify the definitive map and statement to correct the records followed and are being processed and the gates are still in place.

In both cases the authorities acted against the landowners in response to a complaint from a third party, placing the burden on the landowners to prove they were entitled to maintain their gates.  In the Hertfordshire case the compelling evidence only emerged once we made a specific request for the documentation.


Landowners are not specialists in rights of way and are unlikely to appreciate that these records exist and what they may show.  When an officer from the highway authority turns up and tells a landowner they are in the wrong, not every landowner will have the personal knowledge to challenge this.  When it comes to gates and stiles, some investigation and having someone who “knows what they are talking about” on the landowner’s side is no bad thing. Not all gates and stiles are lawful limitations but landowners should treasure those that are and the public and the highway authority do not necessarily have access to accurate records about these structures.

In time two inaccurate records will be corrected through the formal, long-winded procedure of modification.  One cannot guess at how many further errors remain to be corrected, or how many landowners have removed gates or stiles they were entitled to keep.

The system is frustrating for the public and for landowners alike and placing the burden on the landowner due to an omission in the 1950s to do the job right seems particularly harsh.

Yet these two cases do illustrate that however difficult, there can be light at the end of the tunnel (or path!) when an officer calls or a letter drops on to the mat to say the gate must go.

As always, we are here to help if you have a public right of way issue – call us on 0203 086 7657 or complete the form below.