Business Clinic: How do we set up permissive access?

Whether it’s a legal, tax, financial or management question, Farmers Weekly’s Business Clinic experts can help.

Here, Richie Rees, legal director in Thrings’ agricultural litigation team, outlines what’s involved in granting the public permissive access to farmland and how to protect your land, your rights and the public.

See also: Business Clinic: how do we convert buildings to residential?

Q: We are considering granting permissive paths and access to some copses on our mixed arable, beef and sheep farm.

What is the process and what do we need to consider?

A: For many farmers, providing permissive access is a great way to build goodwill with local residents, neighbours, walkers and so on, while keeping control of your land.

It can also help to reduce usage of routes elsewhere on your estate which could impact crops, habitats or private areas.

It is important, however, to ensure that you weigh the benefits against the risks – potential loss of control, fly-tipping and overuse, to name a few.

First, it is important to understand that a permissive path is access by consent, not by right, and it is important to outline this fact to whoever you intend to allow through your land.

It is within your gift to continue to set conditions, restrict use and withdraw access as you see fit.

Protect against creating right of way

While granting a permissive path controls its use, it is important to know that prolonged use by the public as “as of right” for 20 years or more could then run the risk of it legally becoming a Public Right of Way (Prow) – this is the biggest long-term risk you face, but it can be mitigated.

This includes depositing a Highways Act s31(6) landowner statement with the local Highways Authority as well as putting up clear signage stating that the route is permissive and not a Prow.

Closing the path at least once a year – even for just a single day – ensures that even after 20 years of use, it is not continuous.

With the land remaining under your control as a permissive path, you would be liable for injury caused by defects to the path so it would be wise to protect yourself with public liability insurance and regularly inspect and maintain the land to ensure it is safe.

A regular routine will also help to guard against and react quickly to the likes of fly-tipping or anti-social behaviour which can potentially arise in such areas.

Permissive paths also allow you to control the use of and behaviour on the land, restricting dog walkers (or at least requiring leads), bikes and horses, as well as seasonal access in case you want to avoid disruption during lambing, for example.

The practical steps to making your decision then are:

• Define your objectives Are you doing this as a goodwill gesture, to divert others from sensitive areas, or potentially to benefit from environmental schemes to secure a new income stream?
• Design your route carefully Avoid farmyards, machinery and livestock areas, instead considering field-edge routes and woodland circuits
• Formalise the agreement Secure a written agreement with the local council or, if the route is to be private, you can just put up signs. This requires less admin but could result in more risk
• Protect yourself Ensure you are securing legal and professional advice early in the process to avoid additional risk. Filing the s31(6) deposit, installing signs and getting public liability cover are advised from the outset
• Ongoing management Stick to a routine of reviewing the path, ensuring a clear and safe route, and monitor and report misuse should it arise
• Close periodically To avoid accidentally creating a Prow, close the path periodically, whether annually or seasonally, documenting every closure.

 It is important to recognise that, if you have any existing Prow on your land, that will need to remain open to the public at all times.

So even if you create a new permissive route for specific people, it cannot be used to justify closing an official footpath elsewhere.

To legally close or divert the route of an official Prow, you need to make an application to the local council unless where, in very narrow circumstances, the Prow is dangerous, needs repairing, or you need to do potentially dangerous agricultural work over it.

In those circumstances, it is possible to create a short-term, alternative permissive route around the official Prow – but only while it is being repaired or you are doing the agricultural work on it.

I would recommend engaging with the local council if you wanted to explore this option.

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