Rights of Way: A Guide to Law and Practice

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AIR 2 contains a number of applications to the Railway and Canal Commission for authorisation to close rights of way. Rights of Way Circular: Guidance for Local Authorities (applies to England only) Department of Transport Highway authorities also have a duty to waymark paths with arrows along the route so far as they consider it appropriate. Waymarking is a means of indicating the line or direction of a path away from metalled roads at points where it may be difficult to follow. There is a standard system of colour-coded arrows – yellow for footpaths, blue for bridleways, purple for restricted byways, and red for byways open to all traffic. The difference on the ground between footpaths (for walkers only) and bridleways (for walkers and horse riders) is the width of the paths. Cross-field paths must have a minimum width of 1metre for a footpath and 2 metres for a bridleway. A field-edge path must be 1.5 metres for a footpath and 3 metres for a bridleway. The crop (other than grass) must be kept clear of the PRoW to ensure that it remains free of crop for at least the minimum width at all times. Local authority” means a non-metropolitan district council, a parish council or the parish meeting of a parish not having a separate parish council. (see Schedule 14(5) and 15(13))

Records include agreements, surveys, correspondence and maps. 8. Roads and rights of way on enclosure documents John Riddall and John Trevelyan, Rights Of Way: A Guide to Law and Practice, 4th edition (Henley-on-Thames and London, 2007). This and previous editions are often called the ‘Blue Book’. Where there is a clause in a lease (in the case of a prescribed clauses lease, the clause should be included or referred to preferably in panel LR4 but can be instead in LR11) to the effect that the property is let or demised without the benefit of any existing easements, any entries in respect of the benefit of existing easements in the landlord’s title will not be carried forward to the tenant’s title. Where the clause is to the effect that the property is let or demised with the benefit of only those existing easements which are expressly referred to in the lease, only the entries in the landlord’s title expressly referred to in the lease will be carried forward to the tenant’s title. Where it is unclear whether the effect of the clause is to prevent the benefit of an existing easement passing, the relevant entry will not be carried forward. 10.3 Preventing both the creation and passing of easements

Review:

The Advice Note also includes three appendices; Appendix 1 gives various statutory definitions of rights of way, Appendix 2 provides a definition of local authorities in the context of the relevant legislation and Appendix 3 sets out relevant primary and secondary legislation and guidance. in the case of a prescribed clauses lease you enter the title number of the benefiting titles in clause LR2.2 Test 1: whether the diversion is expedient in the interests of the owner, lessee or occupier of land crossed by the path or of the public (as set out in section 119(1) and subject to section 119(2) – see paragraphs 2.31 and 2.32 above). This was described in R (Hargrave) v Stroud District Council [2001] EWHC Admin 1128, [2002] JPL 1081 as being a low test. For an understanding of the Valuation Office survey carried out between 1910 and 1915 and more detailed advice on the records that were created as a result of it, see our Valuation Office survey guide. In practice some authorities misunderstood the advice and used the symbols on their definitive map and statement. The symbols had no statutory status. Consequently, where they have been used they do not confirm the existence of public vehicular rights of way. Appendix 2: Definitions - a local authority

On a transfer or lease, the transferee or tenant may, without an actual express grant, acquire easements affecting land retained by the transferor or landlord. This may be by virtue of section 62 of the Law of Property Act 1925 or the rule in Wheeldon v Burrows. And on a transfer or lease, the benefit of existing easements can automatically pass with the land. However, such creation and passing of easements can be prevented by a suitable provision in the transfer or lease. Although published Ordnance Survey maps are not sent to The National Archives as a matter of policy, there are some maps among the Ordnance Survey records held here. Those most relevant to rights of way are: c) of any new public right of way on the land over which it is to be created and any land held with it. The note can be cancelled without fee if an application is made using form AP1 enclosing the consent. 7.1.2 RestrictionsThis fourth edition, published in 2007 has been completely revised and updated by the authors. Useful bits of footpath law: Where a registered lease has terminated and an application is made in form AP1 to close the title, completion of the application will obviously mean removal of any entry in respect of the benefit of an appurtenant easement. 12.2.3 Abandonment

A number of public acts since the National Parks and Access to the Countryside Act 1949 (principally The Countryside Act 1968 and the Wildlife and Countryside Act 1981) have required that local authorities produce and, subsequently, review maps and statements showing and defining public rights of way in their area – these are known as definitive maps and statements. Footpaths, bridleways, byways open to all traffic and restricted byways are distinguished on the maps. Formerly, roads used as public paths were shown too. Usually, deeds will need to be accompanied by a plan showing the dominant and servient land. See practice guide 40, supplement 2: preparing plans for HM Land Registry applications. The existence of a public right of way could be claimed as part of the initial valuation of the land that took place under the terms of the Finance (1909-10) Act 1910, and many ways are thus recorded in the Valuation Office Field Books. However, it should be noted that it is the mere fact of the existence of a way and not normally its precise location or course which is recorded.Records of the National Parks Commission and the Countryside Commission are held at The National Archives under the department reference COU. However, wherever possible we will enter full details in the register of appurtenant easements that are either: An express easement is expressed to be so by deed (Section 1(2) Law of Property Act 1925) and in the case of registered land is referred to in the A Section of the Title Register for the dominant tenement and in the C Section of the Title Register for the servient tenement. This guide provides advice on where to look for records of public rights of way, roads and other highways in England and Wales. The National Archives is not the best place to start looking for these kinds of records and much of the advice in this guide directs you elsewhere.