Public paths and highways

West Country solicitor Jonathan Cheal is a public rights of way specialist whose services are in demand across the country on a topic which can be a minefield for farmers and landowners alike. He’s also well known for his brightly coloured bow-ties.

Each month he will be exploring different strands of a complicated subject. Today he answers the question “What happens if the path across my land isn’t used?”

People seem to think if it takes 20 years to substantiate a claim surely it takes 20 years of non-use to justify asking to get rid of it; the answer is definitely no. The fact a path hasn’t been used for 20 years does not in itself justify abandonment or extinguishment.

Once a public right of way becomes lawfully established, it requires a stopping up or extinguishment order to bring it to an end. A public path is a public highway albeit limited to whatever purpose it was created – footpath, or bridleway etc. The old rule ‘once a highway always a highway’ applies – a phrase first coined by the judge in the 1860 Dawes v Hawkins case.

However, it is possible to seek extinguishment of a public right of way under Section 116 of the Highways Act 1980 if it appears to magistrates that a highway is unnecessary or can be diverted. The legislation allows an owner to ask the county council to apply to the magistrates for a stopping up order, if it can be shown that the path is unnecessary.

The big question is how does one prove the lack of necessity? This will depend upon what other paths are available nearby and where there’s any particular reason why the path in question doesn’t serve any useful purpose.

In reality the chance of getting rid of a public path are very slight unless you can offer a package deal by which the public rights in the area are not diminished.

For example if a public right of way goes through a farmyard, the farmer may seek to negotiate a package deal with the County Council to swap it for one elsewhere on the farm in substitution.

The moral of the story is that with the right advice you can get your access management done properly and you may also be able to negotiate improvement to the public access on your land.

Jonathan Cheal works with Mogers Drewett which has offices in Bath, Sherborne and Wells. He also regularly attends Market days at Frome Livestock Market.


Mogers Drewett

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