• Carriageways: a right of way for all classes of traffic (vehicles, horse-riders and pedestrians)
• Bridleways: a right of way for horse-riders and pedestrians
• Footpaths: a right of way for pedestrians.
A highway must follow a definite route across land: the law does in some circumstances recognise a public right to wander at will over land, but that is a different sort of right.
The public are entitled to use highways for passing to and fro, and for some incidental purposes as well – including a limited right to stage public protests. Local authorities (usually the County Council) are under a duty to maintain most highways.
Highway law: creating highways
Highway law gives local authorities legal powers which enable them to construct roads which will become highways.
But it is also possible for highways to be created merely by public use over a period of time, this process being known as “dedication and acceptance”. For this to happen, the public must have used the “way” in question for 20 years, and to have done so “as of right”, acting as though they had the right to do so. Use won’t be “as of right” if:
• Force is used or threatened, or the landowner has made clear, for example by putting up a notice, that she objects to the use which is taking place
• The use takes place secretly
• Permission has been given by the owner of the land
(Highway law here is the same as that applicable to the creation of private rights of way.) A highway created in this manner may be a carriageway, bridleway or footpath, depending upon the public use which has taken place. Ownership of the “way” will not pass to the local authority, nor will the local authority generally be under a duty to maintain it. However, local authorities have a general duty to protect and uphold the public’s right to use highways.
Highway law: the Definitive Map and Statement
Some cross-country paths and tracks subject to public rights of way are in danger of being lost, because they become overgrown and neglected or because landowners try to discourage their use by blocking them. Local authorities are required to maintain a Definitive map” showing the route of such ways, to make sure that they cannot be forgotten, and an associated “Statement” recording any other relevant details such as the width of the way.
The Definitive Map and Statement are “definitive” in the sense that while a public right of way is shown in these records, then legally such a right exists and the public may lawfully use the relevant path or track. However, the map and statement can be corrected if they are shown to be wrong. And if public use creates a new right of way, in the way explained above, then it can be added.
Banning motor vehicles in green lanes
Under early legislation, some of the cross country tracks which it was sought to be preserved by means of the Definitive map and Statement were technically carriageways; that is, public rights of way for vehicles. In origin, the vehicles would have been horses and carts. In modern times however, these tracks — often known as “green lanes” — have become popular with off-road cars and motorcycles, and use by those sorts of motor vehicle have caused damage and disrupted use by walkers and horse riders.
Legislation in the form of Part 6 of the Natural Environment and Rural Communities Act 2006 or “NERC” has both ended such use by motor vehicles (but not by horse-drawn vehicles) and prevented the creation of any new rights for motor vehicles in “green lanes”..
However, it was found difficult to define “green lane” precisely, and the ban on public motor vehicles is worded in such a way that it applies to many private roads in and around towns and villages, usually residential in character and very different from ancient cross-country tracks. If a public right of way for vehicular taffic — a carriageway — had been created in roads of this sort, it has not been removed entirely, since the right of way for the public in horse-drawn vehicles will remain. But that will be in many cases entirely academic.
Stopping up and diversion of highways
“Stopping up” is a legal term which signifies the ending of public rights of way over a given path or track or road. It is not a step which the landowner can take of his own accord. Highway law says that highways last indefinitely: “once a highway, always a highway”. The authority of an Act is needed in order to stop up a highway or indeed to divert one. Local authorities enjoy a range of powers enabling them to take these steps if need be.
Help from Property Law Advice
For the sorts of issues which arise in practice, and on which we can offer advice, please see our Highways page. If you’d like a quick response, to see whether we can help, please see our Initial enquiry page.