Business Clinic: Public footpath across proposed contracting yard – can we divert it?

Whether it’s a legal, tax, insurance, management or land issue, Farmers Weekly’s Business Clinic experts can help.

Here, Richie Rees, senior associate in in law firm Thrings’ dispute resolution team, advises on public footpath issues and the possibility of diverting a path.

Q: We have expanded into contracting in the last couple of years and the new business has grown to the extent that we need to create a new yard. However, the land that would be most suitable for this has a public footpath running through it which I am worried could be both a hinderance to the business and a safety hazard to pedestrians. Am I able to get it moved?

A: You have the right to use your private property as you wish. However, if that property is subject to a public right of way, any expansion or change to your private use needs to accommodate the public’s use in a safe and sensible manner.

There are legal and practical ways to pursue your business opportunities while also protecting the safe use of public rights of way.

Recent years have seen an increase in public use of footpaths and bridleways, especially during lockdown, but also because of the drive to record new routes on the Definitive Map. All of this poses a greater potential threat to the public using the existing public right of way.

Prioritise safety of current route

It’s understandable that you might want to move the route of the footpath to avoid those risks, but before you can, it’s important to take the appropriate steps to accommodate the route and ensure it’s safe to use, in part to protect your own position as the landowner.

See also: Business Clinic: can I be in two partnerships at the same time?

The route must be open and accessible at all times to all members of the public and there might be a specific width and length of your route.

If not, there will be a statutory minimum for a footpath or a bridleway. If in doubt, the local authority can clarify this for you.

Either way, you should take steps to ensure those measurements are adhered to on the ground, and then also ensure that the surface of the path is clear and stable.

Where a route might interrupt or interfere with livestock, it is perfectly possible to create a boundary between the two areas using fencing or a hedge but make sure an appropriate gap is left between the fence and footpath and that the material is safe and compliant with the council’s expectations.

Take care with gates and stiles

The same applies for gates and stiles: unless they are recognised features on the Definitive Map, you need permission to add them and will need to apply to the council.

Importantly, the landowner is also responsible for maintaining these features in the majority of cases and any accidents caused by a failure of maintenance could expose you to being liable to that member of the public for their loss or injury.

Once you have taken reasonable steps to ensure the public’s ongoing safety when using the official route, you can then consider whether it can be moved.

Official diversion

Ultimately, the official route to alter a public right of way is through an application for a “diversion” under section 119 of the Highways Act 1980.

You will need to offer a new route, which traditionally needs to be shorter and more convenient to the public to succeed.

Helpfully, the case law and guidance has developed in recent years so that the interests of the landowner have taken on more weight in the legal argument, allowing you to cite reasons of safety to you and the public, and security of your private property as legitimate reasons for diverting a path to another part of your land.

Lastly, there may also be value in creating a temporary “permissive path” to navigate short-term risks to the public.

If you know that there will be a specific time or period in which your farming operation will intensify near the public right of way (increasing the risk to the public during that time), it’s possible to temporarily close the route and offer an alternative around that area.

If you want certainty, it is possible to negotiate permissive path agreements with local authorities to ensure that there will be no problems during the period in which you move the route. This also avoids the risk of accidentally creating two footpaths on your land.

In the long term, a successful permissive path offered in place of an establishing  public right of way might also go on to provide you with supportive evidence of that route being safer and just as convenient to the public in any application to make the diversion permanent.

Do you have a question for the panel? Outline your legal, tax, finance, insurance or farm management question in no more than 350 words and Farmers Weekly will put it to a member of the panel. Please give as much information as possible. Email your question to FW-Businessclinic@markallengroup.com using the subject line “Business Clinic”.