19 December 1997

Footpaths:

obstruct at your peril

RECENT Press reports of a Suffolk farmers conviction for obstructing a right of way has focused attention yet again on the conflict between public access to the countryside on the one hand and the understandable desire of farmers and landowners to ensure their privacy and security on the other.

Some landowners may feel that a public right of way across their land is no more than a conduit for legalised trespass. However unpalatable, the fact remains that a right of way is precisely that – a right for the public to pass and repass over a defined route without let or hindrance, be it a footpath, bridleway or Byway Open to All Traffic (BOAT).

Landowners obstruct at their peril – as the Suffolk farmer found. He was fined £500 with £3500 costs. The maximum fine is £1000 and a prosecution could be brought for every day that the obstruction remains. It is no good saying that you do not accept that a right of way exists or you dispute its line. If the way is shown on the definitive map prepared by the county council, then this is conclusive evidence of its existence – and the definitive map can only be changed by the modification order procedure under the Wildlife and Countryside Act 1981 if there are grounds for any change.

Very often farmers complain that a right of way passes straight through the middle of an open field, causing great inconvenience if it has to be kept free of crops or reinstated after ploughing (both of which the law requires and neither of which is done in many instances).

Skirted the field

What is often overlooked is that the right of way may have skirted that field before the hedge was removed to create the familiar modern East Anglian landscape. However, notwithstanding their historical provenance, it is true that the routes of many rights of way do not gel easily with 1990s agricultural practice.

What can the farmer do who is faced with this problem? Clearly obstruction of the right of way is not a sensible option – unless you wish to chance a substantial fine. Tempting though it might be, putting a dung heap over a right of way (as in the Suffolk case) just antagonises people and provokes a legal response.

Much better to try to negotiate a new route which avoids crops, livestock or other sensitive areas. Most people have no objection to having to walk a bit further to avoid crops – what they take exception to is to find that the way no longer exists at all or is completely blocked.

The public, councils and the courts take the view that farmers have to obey the law like anyone else – which means no obstruction and compliance with the width and reinstatement provisions of the Rights of Way Act 1990.

Procedures are laid down in the Highways Act 1980 (sections 116, 118, 119) for the stopping up or diversion of rights of way and, depending on the circumstances, the application will be dealt with by the magistrates court, the county council or the secretary of state. If there are objections, some type of hearing will be held, allowing everyone an opportunity to state their case.

These procedures are complex. For example, under Section 119, the test is whether the way should be diverted in the interests of the owner or occupier of the land, and such interests could arguably include reasons of good agricultural practice, farm security and suchlike.

Public enjoyment

However, the diversion also has to be substantially as convenient to the public as regards its start and finish as the old route. The effect of the diversion on the public enjoyment of the right of way as a whole has also to be taken into account.

There are therefore considerable evidential hurdles to overcome and such hurdles are common to all the statutory stopping up and diversion procedures.

In view of the opportunity for objectors to be heard at a hearing, it is a wise precaution to seek the prior agreement and support of interested parties (eg the Ramblers Association, the parish council) before embarking on the necessary formal statutory procedures.

This may help to avoid objections being made, which would otherwise just delay matters considerably. Agreement will also help demonstrate (by way of supplying supporting evidence) that the statutory tests have been met.

A point to bear in mind is that the public right over a way is that of passage and re-passage – not picnicking, painting or any other of the many countryside pursuits which the public might like to engage in. Anything but passage or re-passage may amount to a trespass against the landowner who owns the way. Activities which are considered reasonably ancillary to the right of passage are, however, permissible.

The message for farmers and all other landowners with rights of way over their land must be to observe the law and avoid confrontation. If a particular route is causing problems, then seek professional advice to find out what options are open to you. Above all, do not take the law into your own hands or you run the risk of a heavy fine.

Tempting though it might be, putting a muck heap over the right of way just antagonises people and provokes a legal reponse.

Often rights of way do not gel easily with modern farming practices. However many once ran alongside old field boundaries and it is important that they are reinstated after ploughing and kept free of crops through the season.

The public right over a way is that of passage and

re-passage not picnicking, painting or any other of the many

countryside pursuits which the public might like to engage in.