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The Ploughing & Cropping of Public Rights of Way

This advice note will be particularly useful if:
1. Paths in your area are regularly ploughed and cropped
2. You would like to know what action can be taken on ploughed and cropped paths
3. You are a farmer who would like to know your duties regarding the ploughing and cropping of paths on your land

Index

Introduction
 

1. The ploughing and cropping of rights of way is the most common form of obstruction encountered by users of the path network. For many years it has been considered a significant problem by user groups and the general public alike.

2. This advice note explains how and when the ploughing and cropping of paths may occur, what the law is surrounding the practice, and what remedies are available when the law is broken.

The ploughing of rights of way


3. The interference with the surface of a path by ploughing is a public nuisance at common law and is unlawful. However, there are circumstances where it is lawful for a farmer to plough a footpath or bridleway:
a) where there is a common law right to plough in respect of a particular path;
b) where there is a statutory right to plough under the Highways Act 1980
section 134 as amended by the Rights of Way Act 1990.

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Common law right to plough


4. The common law right to plough is a limitation on the public use of the path which was imposed at the time the was dedicated for use by the public. This means that the regular ploughing of the path must have been occurring at the time when the path came into existence.

5. The common law right to plough cannot be claimed over a right of way that has been created by or under statute, eg by a diversion or creation order.

6. The limitation placed on the path by a common law right to plough must be recorded on the statement accompanying the definitive map. If it is not shown on the definitive statement a landowner may find it very difficult to prove by other means.

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Statutory right to plough


7. Most farmers however plough paths quite legally without a common law right because section 134 of the Highways Act 1980, as amended by the Rights of Way Act 1990, made it a statutory right.

8. The statutory right to plough, or otherwise disturb, a right of way applies to footpaths and bridleways which are not field-edge paths. A field-edge path is a footpath or bridleway which follows the sides or headlands of a field or enclosure. The way must also pass over agricultural land, or land being brought into use for agriculture.

9. The right applies only if the ploughing or disturbing is done in accordance with the rules of good husbandry. And the way may then be disturbed only if it is not reasonably convenient to avoid disturbing it.

10. The ‘otherwise disturbing’ of the path must be similar to, or connected with, the growing of crops. This therefore does not extend to any excavation or engineering operation.


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The duty to make good and mark the line


11. If ploughing disturbs the path, the occupier becomes liable to two duties:
a) the surface must be made good to no less than the ‘minimum width’ (see paragraph 14 below) so as to make it reasonably convenient for the use of the public right of way;
b) the line of the path or way must be indicated to not less than the minimum width, so that it is apparent to the public.
Failure to comply with these duties is an offence.

12. The time allowed for this work to take place varies upon the circumstances, being either 14 days or 24 hours.

14 days: If it is the first disturbance for the purposes of sowing a particular agricultural crop, and beginning on the day on which the surface of the path was first disturbed for those purposes.

24 hours: If it is the second or a subsequent disturbance.

13. The highway authority (county council or unitary authority) can give an extension of up to 28 days to allow for this work; however this can be granted only if the application is submitted before the initial time allowed expires. Therefore, if works have not been completed within the permitted time, a farmer may not then apply for an extension.

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The minimum and maximum widths of paths
14. When making good and marking paths after ploughing and cropping the occupier must restore the path to no less than the ‘minimum width’. This width is defined thus:
a) the width of the way included in the statement accompanying the definitive map; or
b) if the width is not so proved, the minimum width is:
i. 1m for a cross-field path;
ii. 1.5m for a field-edge path (see section 4 for definition);
iii. 2m for a cross-field bridleway;
iv. 3m for a field-edge bridleway or carriageway (whether cross-field or field-edge).

15. If the occupier fails to comply with his duty to make good and mark the line, and the highway authority carries out the work in default it must do so to a width not less than the minimum width, and may do so up to a maximum width.

The maximum width is defined thus:
a) the width of the way included in the statement accompanying the definitive map (that width is the maximum as well as minimum width); or
b) if it is not so proved, the maximum width is:
i. 1.8m for a cross-field or field-edge footpath;
ii. 3m for a cross-field or field-edge bridleway;
iii. 5m for a cross-field or field-edge carriageway.

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Enforcement powers


16. The highway authority is given a specific duty to enforce the provisions of section 134. It may do so either by exercising powers given to them or by prosecution. Both methods are set out below.

17. Powers to enforce under Schedule 12A: This gives highway authorities and non-unitary district councils various powers to carry out works which may be exercised if the provisions of sections 134, 135 and 137A have not been followed.

18. Under section 134, the power arises in two ways: if the surface has not been made good so as to make it reasonably convenient to use the right of way; and if the occupier fails to carry out his duty to indicate the line of the path so as to make it apparent to members of the public. Schedule 12A gives the highway authority to carry out any necessary default works. The works must be carried out to at least the minimum and not exceeding the maximum widths. This power may not be exercised until the time allowed for the occupier to reinstate the path has expired.
19. Any authorised person may enter the land concerned, or other land reasonably believed to be in the same occupation, for any purpose connected with these works, and may take vehicles, machinery or equipment with him. However, unless the entry is solely to obtain information, a 24 hours’ notice period must be given to the occupier. If the occupier cannot be identified, the notice can be affixed to objects on the land. But in either circumstance, the notice must not be given before the power has become exercisable.

20. The authority may recover its reasonable expenses from the occupier, or person responsible for the disturbance. There is a defence, however, if it can be shown that there was reasonable authority or excuse for the disturbance, or if the occupier can show that the surface was not disturbed by him or with his consent.

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Prosecutions
21. The right to prosecute for failure to comply with the duties to make good and mark the surface is open to everyone (unless the offence was committed before 1 April 2001, when only the highway authorities, non-unitary district councils and local councils can prosecute). Prosecution will be via the magistrates’ court, with the maximum penalty being a fine of £1000.

22. While highway authorities have the duty to enforce these provisions, local councils (parish, town and community councils) have the power to undertake prosecutions where an offence is alleged to have been committed under sections 131A or 134.

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Ploughing without authority
23. This means where there is ploughing or other disturbance of the path outside the authority conferred by the statutory right to plough. For example, when a field-edge path or a byway is ploughed, the authority can take action provided the disturbance is such as to render the exercise of the right of way inconvenient.


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Crops grown on paths
24. Section 137A of the Highways Act 1980, imposes a duty on the occupier of any agricultural land on which a crop other than grass has been sown or planted to take such steps as may be necessary:

a) to ensure the line of any ‘relevant highway’ (defined as including footpaths, bridleways and carriageways which are not made-up carriageways) on the land is indicated to not less than its minimum width so as to be apparent to members of the public wishing to use it;
b) to prevent the crop from encroaching on the way, or any way on adjoining land, so as to render the public right of way inconvenient to use. A crop is considered to be encroaching on a path when any part of the crop grows on, or extends on to or over, the way in such a way as to reduce its apparent width to less than its minimum width.

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What is considered a crop?
25. For the occupier to be subject to the duty in section 137A of the Highways Act 1980 the crop must be other than ‘grass’. A crop is treated as grass if, and only if, it is a variety commonly used for pasture, silage or haymaking, whether or not that particular crop is intended for that use, and if it is not a cereal crop.

26. If the crop is non-cereal grass, it is possible that if it grows in such a way as to cause an obstruction to the free passage, the occupier will commit an offence under section 137 of the Highways Act. It is also possible that the authority will be able to exercise its powers to remove the obstruction, or, if the way is maintainable at public expense, to remove anything planted or growing in the surface, which is vested in the authority.

27. Failure to comply with the duty is an offence and renders the occupier liable to prosecution.

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Further Reading
(1) Rights of Way: A Guide to Law and Practice John Riddall and John Trevelyan, published 2001 by the Open Spaces Society and the Ramblers’ Association. £20.00 plus £5.50 p&p from RA central office.

(2) Paths for People (leaflet) published by the Ramblers’ Association, 2004. Available from RA central office.

(3) Managing Public Access: A Guide for Land Managers. Available free from the Countryside Agency (tel. 0870 120 6466 or e-mail countryside@twoten.press.net reference CA 210) http://www.countryside.gov.uk/Publications/articles/Publication_tcm2-26105.asp

 

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