Know the law when farming near footpaths

In the first of our new series exploring farming legislation, Paul Spackman summarises the key points you need to know to stay within the law on footpath management.

Most farms have at least one footpath running across fields, with walkers going through crops, and there is a bewildering array of rules and responsibilities that farmers need to follow to stay on the right side of the law.

For example, can you spray crops when walkers are in the field and can you plough up rights of way? Also, can you temporarily close footpaths? Here you can find the answers to these and other frequently asked questions.

Who looks after public rights of way?

In England and Wales, responsibilities for maintaining footpaths, bridleways and byways are divided between the landowner and the highways authority. Parish and town councils also have certain discretionary powers.

The situation is different in Scotland as there is no definitive list of rights of way (although a list of “core paths” does exist) and access rights are different under the Land Reform Act. Nobody has a duty to maintain a right of way, although local authorities have powers to do so.

What do farmers/landowners have to do?

  • In England and Wales, those that own or maintain the land are required to keep public rights of way “open and useable”. This means:
  • Provide and maintain stiles and gates, keeping them safe and easy to use
  • Cut back overhanging vegetation that may obstruct the route – at least 3m of headroom is required on bridleways
  • Ensure field-edge paths are not cultivated for the legal minimum width of 1.5m for a public footpath and 3m for a public bridleway
  • Reinstate cross-field paths correctly (see below).

Landowners must meet all their legal obligations on the maintenance of public rights of way to claim Single Payment Scheme payments. GAEC 8 applies to public rights of way.

In Scotland, landowners aren’t required to maintain a right of way, but they must not obstruct it and also have a duty of care to people on their land.

The “right to responsible access” means people aren’t necessarily restricted to paths and are allowed to walk across uncropped fields where no path exists.

However, such access rights are suspended as soon as a crop is sown until after harvest and walkers must keep to the field edge.

Who keeps the path surface clear?

For cross-field paths it is down to the landowner to keep paths clear of crops other than hay and grass silage.

In England and Wales, the highways authority is responsible for maintaining the surface of public rights of way and controlling surface vegetation (other than crops).

It is also responsible for steps, handrails, some barriers, drains, most bridges and culverts, stepping stones, fords, signposts and waymarks. No one body or organisation is responsible for path surfaces in Scotland, although users have a common law right to keep routes clear of vegetation.

Farmers should use common sense to ensure core cross-field paths are walkable.

Can I plough up a cross-field path?

Yes, you can disturb a path surface when ploughing or cultivating the field, but if you do, you must make good the path surface within 14 days of the first disturbance if a crop is being sown, or within 24 hours in other cases. The surface must be returned to at least the minimum width, which is 1m for cross-field footpaths and 2m for bridleways. Signs should be used to show the route of any reinstated path.

In Scotland, core paths across farmland must be reinstated within 14 days, although there is no specified width, other than to return it to the same as before.

Can field-edge paths be cultivated?

No. A minimum width of 1.5m for field-edge footpaths and 3m for field-edge bridleways must be respected.

Farmers in Scotland are advised to use common sense when cultivating fields to ensure people can exercise their right to walk around field boundaries if they choose to.

What if I use a contractor?

Where a contractor is employed to do work, the occupier is liable, irrespective of any contract terms, for any failure to restore cross-field footpaths or bridleways, or failure to avoid any other cross-field or field-edge right of way.

Can I spray over a cross-field footpath?

Usually, yes. But it is subject to the product label conditions as some products require you to keep unprotected people and livestock out of the treated area for a specific period. Don’t use these if you cannot restrict access to the site until the area is safe.

Where a path or bridleway crosses or runs alongside a field, farmers must make sure the public is not put at risk and should consider using notices next to the right of way to warn people of spraying and advise that they keep to the path.

Such notices cannot stop people using a public right of way and if people are still using it despite the warning notices operators should consider stopping briefly if there is a risk to health such as from the machinery or spray used. Get permission from the local highway authority if you need to put a notice on the public right of way.

Do field-edge paths count towards watercourse protection zones?

Public rights of way may form part of the 1m or 2m protection zone margins alongside hedges and watercourses. If so, the rules of that GAEC standard (GAEC 14) will apply as far as practical.

Can I get a footpath moved or changed?

Potentially, yes. Apply to your local highways authority if you think a route should be changed. You can also apply to get one closed or temporarily diverted for a specific reason.

What if I block a path?

Obstructing a public right of way (such as by locking gates, blocking the route with electric fence or allowing overhanging vegetation) is a criminal offence under the Highways Act and local councils can tell you to remove an obstruction. If you don’t they can remove it and charge you for the work.

More on this topic

Unsure what the rules are for hedge management or farming near foothpaths? This series aims to help remind you so you don’t need to wade through lengthy rulebooks to stay on the right side of the law. Also in the series:

See more