The first meaning is probably the most useful one. The nature of the land subject to the right doesn’t matter a great deal, save that there has to be an identifiable route over land; not, in other words, not a right to wander at will over a wide area of land (though such rights can exist in other forms). Highways come in three forms:
- Carriageways: a right of way for all classes of traffic ( vehicles, equestrians and pedestrians)
- Bridleways: a right of way for horse-riders and pedestrians
- Footpaths: a right of way for pedestrians.
The public’s right on highways is a right to pass to and fro. It includes a right to stop incidentally, for example so that people can get into cars and goods can be loaded and unloaded. Highways can be used for leisure and recreation as well as business: the purpose of journeying to and fro is not relevant.
The public roads on which we all move from place to place are carriageways. They are owned by local and central government, and government is responsible for maintaining them. The same is true for many bridleways and footpaths. Local authorities are required to keep a list of such highways. However, there are also many roads, tracks and paths which are privately-owned, and not the responsibility of government, though they may nonetheless be highways.
Legislation, mostly in the Highways Act 1980, provides for highways to be created by local and central government using statutory powers. But public rights of way can also be created by the ancient process of “dedication and acceptance”, which means in effect by use over time. The idea is that if there has been public use for a sufficient period – usually 20 years – the owner of the land must have intended to “dedicate” a route across their land for public use; and the public must have “accepted” the dedication by actually using it. This is a complicated and artificial area of the law. It was first developed by judges over the centuries, but it now has an alternative version as well, set out in section 31 of the Highways Act 1980, designed to make it easier to prove the existence of a highway. (Anyone asserting that the highway has been created has the burden of proving it, what exactly is involved in that process will depend upon the circumstances.)
To add to the complexities of the law, cross-country tracks and paths which are highways are recorded on a “Definitive Map and Statement”, kept by the relevant local authority, and the Map and Statement are definitive in the sense that such tracks and paths are by law subject to the public rights indicated. That said, it is possible for entries to be removed from the Map if it can be shown that there is in fact no highway. And new entries can be added if it can be shown that public use has created a highway by dedication and acceptance.
Parliament has also intervened to protect “green lanes”; that is cross-country tracks which are carriageways, and cannot be used by off the road enthusiasts in four wheel drive vehicles and on motorcycles. Legislation has extinguished the public’s rights in so far as they relate to mechanically propelled vehicles. (Horse vehicles are still allowed to use green lanes.) The Act in question was the Natural Environment and Rural Communities Act 2006, often referred to as “NERC”.
However, it was found difficult to devise a definition of what constituted a green lane for these purposes. The law thus applies to many residential private roads in the suburbs. If such roads had become subject to public use in motor vehicles, that right has now mostly (there are exceptions) been extinguished.
Potential areas of difficulty, where specialised legal advice may be needed, include:
Whether public use has created a highway – a carriageway, bridleway, or footpath – through the process of dedication and acceptance.
Whether actions by a landowner, for example by putting up notices, have had the effect of preventing dedication and acceptance, even though there has been a public use of a road, path or track.
Whether a highway is maintainable at the public expense.
Whether a highway should be added to or removed from the Definitive Map and Statement.
What precisely is the land which has become subject to a public right of way.
Whether a road or path can be taken over by the local authority so that it becomes maintainable at the public expense.
Whether a local authority can exercise some of the powers it has over roads and paths which are not maintainable at the public expense. (There is a range of such powers, including powers to regulate the traffic.)
Whether a landowner may be liable for injury or damage caused by members of the public exercising public rights of way on the landowner’s land.
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