Chapter 2 : Public rights of way
Links and downloads referred to in the text of Chapter 2
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| 38 | Advice Note 16 : Widths on orders (Planning Inspectorate, 5th revision, 2009) | download |
| 38 | Out in the country: your rights and responsibilities (Natural England, CA9, revised 2007) | link |
| 38 | Practice Guidance Note 5: Investigating the status and existence of public rights of way (Rights of Way Review Committee, revised December 2007) | link |
Supplement to the text of Chapter 2
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| 11 | 2.1 For a discussion of the approach to be taken when a public right of way is alleged to exist over a way subject to private rights of way, see Paterson v Secretary of State for the Environment, Food and Rural Affairs (2010). | link to judgment |
| 11 | 2.2 In R (Smith) v Land Registry (Peterborough Office) (2009), the owner of a caravan claimed possession of land on which the caravan had stood for more than 12 years. The Registry rejected the application on the ground that the land on which the caravan stood was public highway, and public highway could not (Harvey v Truro District Council (1903)) be extinguished by adverse possession. The court upheld the Registry’s decision and an appeal to the Court of Appeal (R (Smith) v Land Registry (Peterborough Office) (2010) was dismissed (meaning and effect of dictum 'once a highway, always a highway' considered). | link to 2009 judgment link to 2010 judgment |
| 20 | 2.4.3, footnote 38, additional sites have been designated by the Serious Organised Crime and Police Act 2005 (Designated Sites under Section 128) Order 2007, as amended by the Serious Organised Crime and Police Act 2005 (Designated Sites under Section 128) (Amendment) Order 2007. | link to order link to amendment order |
| 25 | 2.5.3, final paragraph. From 14 December 2007 the requirement to produce a Home Information Pack applies to all types of properties by virtue of the Housing Act 2004 (Commencement No. 8) (England and Wales) Order 2007, the Housing Act 2004 (Commencement No. 9) (England and Wales) Order 2007 and the Housing Act 2004 (Commencement No. 10) (England and Wales) Order 2007. The regulations prescribing the contents of packs are now the Home Information Pack (No. 2) Regulations 2007 as amended by the Home Information Pack (Amendment) Regulations 2007. The requirement to prepare Home Information Packs was suspended from 21 May 2010 by the Home Information Pack (Suspension) Order 2010. | link to No. 2 regulations link to the suspension order |
| 26 | 2.6.2, third paragraph. Police community support officers now have powers to issue fixed penalty notices to people cycling on footways: the Police Reform Act 2002 (Standard Powers and Duties of Community Support Officers) Order 2007. | link to order |
| 27 | 2.6.4 Coates v Crown Prosecution Service (2011) was an appeal against conviction for riding a SEGWAY on a pavement contrary to section 72 of the Highways Act 1835. Munby LJ described a SEGWAY as “a technologically advanced form of personal transportation consisting of a small gyroscopically stabilised platform mounted on two wheels, on which the traveller stands, powered by a battery driven electric motor. A vertical joy-stick is used to steer. Speed is controlled by leaning forward (to go faster) or standing up straight (to slow down). Its maximum speed is 12½ miles per hour”. The court considered the provisions in section 72 in two parts. The first was the provision that it should be an offence ‘ … if any person shall ride upon any footpath or causeway by the side of a road or set apart for the accommodation of foot passengers’. The court held that : (a) ‘ride’ was not confined to riding a horse; (b) ‘ride’ connoted being on or in the thing being ridden; (c) “'To be carried along on a wheeled contraption or machine, whether powered or not, can be, within the meaning of section 72, to ride”; (d) “You do not have to be seated to be riding”. The court concluded that the accused was, within the meaning of section 72, riding the SEGWAY, and so was guilty of an offence under this first part. The second part was the provision that it should be an offence to ‘drive any … carriage of any description … upon any such footpath’. The court held that : (a) section 85(1) of the local Government Act 1888 enacted that ' … Bicycles, tricycles, velocipedes, and other similar machines are hereby declared to be carriages within the meaning of the Highways Acts'. Since a SEGWAY came within the term 'and other similar machines', and the 1835 Act 'is an "always speaking" statute' (its provisions apply notwithstanding that the meaning attached to terms might change over time), a SEGWAY was a carriage within the second limb of section 72; and, (b) the accused had 'driven' the SEGWAY, (“’drive’ for the purposes of section 72 has quite a wide meaning. The ‘driver’ may be in or on the thing being driven but need not be, as the example of the drover shows. One drives a motor cycle by sitting on it, just as one drives a car by sitting in it, but the coachman of a stage coach, like the Victorian cabbie on his Hansom, is driving the horses although seated on the coach rather than the horses.” Per Munby LJ) The court concluded that the accused was guilty of an offence under the second part of the section. The appeal against conviction was therefore dismissed. The court also held that in the charge before the District Judge, that the accused 'willfully rode a motor vehicle, namely a SEGWAY, upon a footpath … contrary to section 72 of the Highways Act 1835', the words 'motor vehicle' were surplusage, since neither limb of the section required that the vehicle ridden/driven should be a motor vehicle. In Chief Constable of North Yorkshire v Saddington (2000), it was held that since a Goped was a vehicle 'intended or adapted for use on roads' within RTA 1988 s 185(1), and so a 'motor vehicle' within that sub-section, a user was required (under s 87(1)) to hold a driving licence; and (under s 143(1)) a policy of insurance in respect of third party risks. |
link to judgment in Coates link to judgment in Saddington |
| 30 | 2.6.6, footnote 87, the decision of the High Court in Kay was overturned by the Court of Appeal in Commissioner of the Police for the Metropolis v Kay (2007). The case concerned a recurrent event (named Critical Mass) in which pedal cyclists met at the same place in London at 6pm on the last Friday of each month and, having no fixed, settled or predetermined route, end time or destination, followed the route taken by whichever cyclist happened from time to time to be in the lead. The police notified participants that the event was illegal in that no notification had been given as required by section 11(1). A participant sought a declaration that the rides were not public processions of which notice was required to be given to the police. In Kay v Commissioner of Police of the Metropolis (2008) the House of Lords held (per Lord Phillips) that the event was a ‘procession’ within the meaning of section 11 but that, being one ‘commonly or customarily held’, by virtue of section 11(2) the requirement to give notice did not apply; (per Lord Brown) there being no organizers, the requirement to give notice did not apply. Consequently, the exception under section 11 (2) did not arise. The event was therefore not illegal. | link to CA decision link to House of Lords decision |
| 31 | 2.7.2 The Office of Rail Regulation published in August 2011 Level crossings: A guide for managers,designers and operators, which includes guidance on footpath and bridleway crossings. | download publication |
| 37 | 2.8.2 Where a landowner who owns land adjoining a highway that for part of its width has a made up or metalled surface ‘fences against the highway’ (i.e., erects a fence or wall to, e.g., retain livestock from straying onto the highway, or to prevent people entering his land from the highway, or both), ‘there is a rebuttable presumption that the land between the fence and the made up or metalled surface of the highway has been dedicated to public use as a highway and accepted by the public as such.’ Per Laws, LJ, Sinclair v Kearsley and Salford City Council (2010). (I.e. the land is highway verge.) | link to judgment |
| 38 | The Department for Transport has published new and revised guidance on self-balancing scooters, motorised scooters and miniature motorcycles | link |
| 38 | The Department for Transport published in July 2009 details of the regulations applying to electrically-assisted pedal cycles | link |
| 38 | The Planning Inspectorate published a new version of Advice Note 16 (see above list) in September 2009. | |
| 38 | Further Reading A new edition of Out in the Country was published in 2007 by Natural England (see above for link). |