West Country solicitor Jonathan Cheal from Mogers Drewett 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.
In this column he answers the question “I’m plagued by motor bikes using public rights of way on my land. Can I put a gate across it?”
Yes but only if you meet certain criteria.
Gating a public right of way is never easy. It will normally be regarded as an unlawful obstruction, unless you can establish that the way was dedicated subject to the gate.
If you want to install a new gate you must satisfy one of the statutory criteria, and get the consent of the highway authority.
Under section 147 of the Highways Act you can ask for a gate to be put in, for farming purposes, to help prevent animals getting in or out. This provision only relates to footpaths and bridleways; in cases of restricted byways and byways a new power has been made under the De-Regulation Act 2015 but it is not yet in force.
Meanwhile under section 115B of the same Act there is a less usual provision relating to enhancing the amenity of the path and the area surrounding it, or for the public benefit. You can argue that the way should be gated to prevent abuse, fly-tipping etc and in this way enhance it.
Gating Orders were specific things brought in recently to allow gates/barriers to be installed to prevent crime, as long as there is evidence of crime and of the risk of it happening in the future. They are now called Public Spaces Protection Orders.
If you are negotiating a re-alignment of paths on your land as part of a package deal with the Council and user groups, and if as part of that deal you are dedicating a new path, it is worth specifying that the new path will be gated for prevention of abuse. If it is a footpath that you are dedicating, normally the width will be the whole of the path but you can specify that it should be narrowed at the point of the gate, down to the width of the pedestrian gate beside the main field gate.
As with all questions relating to public rights of way, the answer is never a straight forward yes or no but with the right advice on access management you will be able to avoid costly legal battles and may be able to negotiate improvements to the public access to your land.
Jonathan works at Mogers Drewett which has offices in Bath, Sherborne and Wells. He also regularly attends Market days at Frome Livestock Market. Jonathan can be contacted on 07901 33 26 42.