Public footpaths - taking the law into your own hands

The relationship between private land owners and members of the public exercising rights to traipse over private land is not always a relationship characterised by blissful harmony. It is a relationship that has been tested further by COVID-19. Tensions have been running high in recent weeks, largely, it has to be said, due to land owners’ understandable concerns about the coronavirus risks to health and safety.

Farmers and land owners in rural locations are becoming increasingly frustrated with members of the public failing to follow social distancing guidelines and wandering across their land in large groups.  This frustration has resulted in owners taking matters into their own hands and either obstructing rights of way or diverting them. 

What is the legal position? Surely if there are genuine concerns about health and safety and where members of the public are failing to observe social distancing guidelines, it is reasonable to take protective measures?

The legal position is simple:  a public right of way can only be altered by following a formal legal process such as by seeking a Diversion Order or an Extinguishment Order under the Countryside and Rights of Way Act 2000. 

It is an offence for a person without lawful authority to obstruct a footpath or bridleway.  An offence can result in a fine of up to £1,000.  Failure to comply with a Court Order can lead to a further fine of up to £5,000. Continuing non‑compliance can result in further fines of up to £250 per day. 

All of this can turn into a very costly mess. Non‑compliance is simply not worth it. Even though the COVID‑19 pandemic is an unprecedented situation, a Court is unlikely to have much sympathy for a land owner who takes the law into his own hands and starts obstructing public rights of way, no matter what the justification may be. 

Staying on the right side of legal compliance whilst at the same time finding a way to minimise the coronavirus health risks requires some lateral thinking. Land owners might want to consider the following compromise measures:-

1. Keeping gates tied open - if it is safe to do so - so that people using the right of way do not need to touch the gate.

2. Displaying a ‘polite’ notice seeking to encourage people to respect local residents by adhering to the social distancing guidelines and to consider using alternative routes that do not pass through gardens, farmyards or schools. 

3. Offering an alternative route across the private land so that members of the public are kept at a distance from the land owner’s dwelling or from other parts of the land that may be used more regularly by the land owner. But remember that the original right of way must be maintained and the alternative route must be offered as a permissive route, and simply as an option.

If you have any questions in relation to rights of way, please contact Andrew Turner on 01242 586841 or at AET@hughes-paddison.co.uk