14 February 2017 by Eugene Suggett
20 years’ public uninterrupted use by the public ‘as of right’ makes a path a public right of way, except where there’s sufficient evidence of no intention to dedicate it as one. So says section 31(1) of the Highways Act 1980; and, under that section, Nottinghamshire Ramblers in 2006 claimed as a right of way a useful, long-used path at Stoke Bardolph and Burton Joyce. The public, especially residents of those places, had been using it for time out of mind: it gives or rather gave them a safe walk to the river Trent (which has paths along its banks, and has grown to handsome proportions by this point), avoiding a narrow and dangerous lane used by vehicles going too fast. No-one ever challenged the use, at any rate effectively; and but for what comes next the claim would have been a ‘dead cert’.
The trouble is, the path goes over a railway line. It does so by means of a level crossing, purpose-made, with gates, a made up surface of wooden boards to walk on, and signs saying ‘Beware of Trains” and “Stop Look Listen”. It looks just like any public level crossing, and there is nothing to tell you it’s private. But Network Rail are now saying it is private. The use was unauthorised, they say (except for the adjacent landowners), and that makes it criminal trespass, since section 53 of the British Transport Commission Act makes it an offence to trespass on the railways or “in dangerous proximity to lines of railway”; and, say NR, they couldn’t have authorised it, even if they wanted to, as they haven’t the power. So all those users have technically been in for a £1000 fine every time they used it. And — here’s the real trouble — NR contended that you can’t acquire a public right of way if the qualifying use was an offence (trespass is merely a civil matter, except under certain legislation including that which covers railways). The matter went to a public inquiry, because Network Rail objected to the way being public, local residents testified to use, and the Inspector at the inquiry rejected the claim, finding the use was an offence.
The Ramblers think this is a misinterpretation of the law: in our view, nothing in the legislation says the use is disqualified if it contravenes the law. But even if it is right that use which is an offence cannot give rise to a public right of way, the offence is not committed unless a warning it displayed at the nearest station, and all the warning at the nearest station here is a sign at the end of the platform saying ‘Passengers must not pass this point or cross the line’’, with a human figure crossed through. The Inspector found that this satisfied the requirement for rendering a trespasser anyone crossing the line anywhere along its length, despite the fact that within sight of it is a barrier-operated road-crossing to which it could hardly apply, and despite there being half-a-dozen or more places where public footpaths cross the line in spite of this notice. Why should users of this claimed path, assuming they knew anything of the existence of the notice in the first place, think it applied to a purpose-made public-looking crossing, especially when they are plainly some other local crossings to which it doesn’t apply?
The law in this regard is in a state of confusion. Hence the listing on 14 and 15 February in the High Court of Justice of the matter of Ramblers’ Association v Secretary of State for the Environment, Food and Rural Affairs (on whose behalf it was that the Inspector mentioned above booted out the order which would have recognised this path as public). It is to be hoped that the judge will clarify the law—ideally by ruling in our favour.