Public Rights of Way

In addition to access rights on common land granted by the various statutes listed above and by the CRoW Act, many commons are also crossed by public rights of way. These are linear routes. A public right of way will be either:

  • Public footpath – which grants a right of way on foot only (minimum width 1 metre across a field, 1.5 metres for a field edge path)

  • Public bridleway - a right of way on foot, horse or bicycle, although cyclists must give way to horse riders and pedestrians (minimum width 2 metres for a cross field path, 3 metres for any other)

  • Restricted byway – a right of way on foot, bicycle, horse back or mechanically propelled vehicle

  • Byway open to all traffic – a rights to all wheeled vehicles as well as pedestrians and people on horse back.

There is a legal principle that “once a highway, always a highway” and public rights of way must be kept open and available for public use at all times. It is possible, on very rare occasions, to divert, extinguish or temporarily close a public right of way but the procedure is complex and requires the support of the local Highways Authority to have any chance of success.

Public rights of way are maintained at the public expense.


Drives across commons

Prior to 2000, it was ruled impossible for owners of houses with access drives across common land to acquire a legal right of vehicular access to their property by way of prescription or long user rights. This was because vehicular access on commons is illegal unless granted by lawful authority, within 15 yards of a highway or incidental to the exercise of a commoner’s rights.

The 2000 CRoW act provided a procedure so that a vehicular easement could be acquired by compulsory purchase across land where driving was a criminal offence. This section of the act was repealed by the 2006 Commons Act, primarily because the House of Lords ruled in Bakewell Management Ltd v Brandwood and Others (2004) that an easement for vehicular access across a common could be acquired by prescription.

The judgement in this case was complex and there remain potential exceptions to the ruling. Consequently, it is advisable to seek professional advice on individual cases.

Rozzie Weir