The British countryside is criss-crossed with many miles of paths that enable public access to the most remote and beautiful parts of the country. The majority of these constitute a public right of way – a legally protected right of the public to pass and re-pass through land that cannot be removed or altered by the landowner except in very specific circumstances.
However, there is another class of path over which landowners do have more control, including the control to grant, alter or even remove access when required.
These are called permissive paths, and they can be very useful as they enable public access to private land, but much more on the landowner’s terms.
What are permissive paths?
A permissive path is simply a route for users on foot or with a horse, depending on what has been agreed to, that a private landowner has voluntarily opened up to the public, to enable them to cross his or her land. It does not constitute a public right of way.
The landowner might decide to do this for a host of reasons such as because their land provides easy access to a local beauty spot, or in an act of community-spirited kindness such as opening up the perimeter of a field for dog walkers and horse riders.
As an organisation, the CLA is very much in favour of permissive access because it is a very effective way of building good relations between farmers and landowners and their surrounding communities. They also allow more control over public access to private land than public rights of way, not least because they can carry conditions such as not allowing bikes or dogs, and the landowner can remove access at their discretion.
As a result, we have been lobbying the government to include payments for the creation of permissive access under the Environmental Land Management (ELM) scheme, as further access to the countryside is very much a public good.
How do you establish a permissive path?
Establishing a permissive route is a relatively easy thing to do but there is a right way and a wrong way. The best way is to consult with your local authority and put in place a formal agreement surrounding the pathway. This ensures the authority should address any problems experienced by users with the landowner, minimising the possibility of ugly disputes.
In addition, the landowner should consider submitting a landowner deposit and statement to their local authority, otherwise known as a section 31(6) Highways Act deposit. Not only does this enable any disputes to be dealt with more effectively, it also offers some protection to landowners against claims the path has become a public right of way due to the length of time it has been in use.
A formal agreement will also set out any provisions for the payment of the landowner by the local authority in exchange for creating the permissive path and any provisions for the future maintenance of the path.
If you have a permissive path crossing your land and don’t have a section 31(6) Highways Act deposit in place, our legal experts can help with this. They can also offer advice on setting up a new permissive route in the most effective way.
The wrong way to establish permissive access is to enter into a less formal agreement with the local community as this has the potential to store up future problems, such as a dispute with a user or a claim the path has become a legal public right of way due to long-term use.
A landowner is also more likely to face protests from users in the event of removing permissive path status if a formal agreement is not in place, which often leads to people continuing to use the route as if permission were still in place.
Landowner liability and other considerations
Although setting up a permissive path is often a very positive move for landowners and the local community, there are a number of things to bear in mind, the main one being the liabilities that befall the landowner once the path has been established.
These are governed by the Occupiers Liability Act 1957 and the duty of care that a landowner must extend to visitors on their property.
Under the act, the landowner is liable for the maintenance of the path and any furniture.
For this reason it is essential that a landowner informs their insurance company about the plan to establish a permissive path on their land, and check that their public liability insurance covers any eventuality that could result. Without this in place, they could end up facing a very expensive claim.
Another important consideration is signage. Erecting signage is more likely to ensure users will stick to the route and not stray off into other areas of private land. Signs are also important to distinguish the path from a public right of way to ensure users are clear that the path is open to them at the discretion of the landowner only.
They also make it far more difficult to bring a future claim for a public right of way along the path based on long use as the applicant would have to show they did so without the permission of the landowner. However, if using signs for this purpose, it is a good idea to take occasional photos of the signs in situ as such pictures are then very useful should a claim be brought for a right of way based on long use.
Signs can also have other important functions. If, for example, there are hazardous areas on or near the route, such as pools or rivers, these can be highlighted to make users aware and to take the necessary precautions. The same is true if livestock are in a field crossed by the permissive path.
Finally, it is within the landowner’s rights to put conditions on who can use the permissive path and who may not. For example, they might be happy for walkers to use the path but not cyclists or horse riders. Equally, they may state dogs are not welcome on the path or must be kept on a lead due to conservation considerations such as the presence of ground nesting birds. Stipulations can also be made about when the path may and may not be used, such as if the landowner does not want the route to be used at night time.
All these should be clearly detailed on the signage so there is no confusion for the users regarding what the path is and who can use it when.
Closing the path
One thing landowners are concerned about when considering a permissive path is whether at some point in the future, a claim can be made that it constitutes a public right of way.
To avoid this, particularly if you don’t have a landowner deposit in place, we recommend closing the route at least once a year, for a minimum of one day.
This is because a permissive path can only become a public right of way if it is used ‘as of right’ for 20 years without being closed. By closing it once a year, this is prevented. Many landowners decide to do this on a Bank Holiday as it serves to remind the largest number of users that path is permissive and permission can be legitimately withdrawn.
Removing permissive path status
One of the biggest advantages of permissive routes is that landowners can either temporarily or permanently close them at any time, without needing to give the public notice.
However, if removing permission for the public to use the path permanently, especially a popular route used by the local community, it is good practice to give users notice by erecting new signs informing them the path is going to close and when.
Once that date has arrived, all signage can be removed and the path will then cease to be a permissive route. If the path is particularly popular, landowners might want to erect signs reminding users that access no longer exists for a short time after it has closed, however, this isn’t a requirement.
Permissive access is an area our experts often get asked about. If you are considering creating a permissive path or area, already have one in place, or you are considering closing one permanently, and need any advice, feel free to get in touch.