1. The ploughing and cropping of rights of way is the most common form of obstruction encountered by users of the path network.
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.
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;
b) where there is a statutory right to plough under s134 of the Highways Act 1980.
4. Where the regular ploughing of an area of land was taking place during the time public use established a right of way over it, common law deems the right of way to have come into existence with the limitation of the farmer's right to plough.
5. The common law right to plough cannot be claimed over a right of way that has been created by statute (e.g. 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 there a landowner may find it very difficult to prove by other means.
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 provides a statutory right to plough (where certain circumstances apply).
8. The statutory right to plough, or otherwise disturb, a right of way applies to footpaths and bridleways which are not field-edge paths, and which pass over agricultural land, or land being brought into use for agriculture. A field-edge path is a footpath or bridleway which follows the sides or headlands of a field or enclosure. The ‘otherwise disturbing’ of a right of way must be similar to, or connected with, the growing of crops. This therefore does not extend to any excavation or engineering operation.
9. The statutory right to plough 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. If ploughing disturbs a right of way, the occupier of the land becomes liable to two duties:
a) the surface must be made good (i.e. flattened out) to no less than the ‘minimum width’ (see paragraph 14 below) so as to make it reasonably convenient for public use;
b) the line of the 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.
11. The time allowed for the completion of the duties described above depends on whether the disturbance is the first or a subsequent disturbance for the purposes of sowing a particular crop. The occupier has 14 days to comply with the duties after the first disturbance of the path surface, and just 24 hours to comply with the duties after subsequent disturbances.
12. The highway authority (i.e the county council or unitary authority) can give an extension of up to 28 days to allow for the completion of the duties; however, this can be granted only if the application is submitted before the initial time allowed expires. If works have not been completed within the permitted time, a farmer may not then apply for an extension.
The minimum and maximum widths of paths
13. 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 paragraph 8 for a definition);
iii. 2m for a cross-field bridleway;
iv. 3m for a field-edge bridleway;
v. 3m for a carriageway (whether cross-field or field-edge).
14. If the occupier fails to comply with his duty to make good and mark the line, and the highway authority carries out the work, it must do so to a width not less than the minimum width, and may do so up to a maximum width which is established as follows:
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.
Enforcement powers
15. Highway authorities are given a specific duty to enforce the provisions of section 134, either by prosecution or by doing the work itself and charging the landowner. Schedule 12A of the Highways Act 1980 gives highway authorities and non-unitary district councils various powers to carry out works which may be exercised if the law on ploughing and cropping has not been followed.
16. 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.
17. The authority may recover its reasonable expenses from the occupier, or person responsible for the disturbance, unless 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.
Prosecutions
18. Anyone can prosecute a person who is responsible for and fails to comply with the duties to make good and mark the surface. Prosecution will be via the magistrates’ court, with the maximum penalty being a fine of £1000.
19. Local councils (parish, town and community councils) have the power to undertake prosecutions also.
20. 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 ensure a right of way 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; and 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 right of way when any part of the crop grows on, or extends on to or over the path in such a way as to reduce its apparent width to less than its minimum width.
21. Failure to comply with the duty is an offence and renders the occupier liable to prosecution.
What is considered a crop?
22. 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.
23. Even if the crop is a non-cereal type of grass, if it grows in such a way as to cause an obstruction to the free passage, the occupier will commit an offence. The highway authority has a duty to enforce the removal of any obstructions to rights of way.
Rights of Way: A Guide to Law and Practice, John Riddall and John Trevelyan, Open Spaces Society and the Ramblers’ Association, 2007.
Paths for People, The Ramblers’ Association, 2004.
