Access All Areas: A Rights of Way Officer’s view – Part 1

During our ‘Access All Areas’ discussion of the current Rights of Way network and how mountain bikers should organise themselves in order to improve the situation, we’ve heard a number of different viewpoints from many sides of the debate.

One voice that was missing was the viewpoint of a professional in the field – which brings us on to our nameless Rights of Way Officer, who offered us an insider’s view. It’s a very detailed and informative piece and we’re going to split it into two parts to make it easier to absorb.

This first part deals with the different types of access, riding on different kinds of land, why ‘normal’ use can be ‘damage’ and much more interesting stuff…

“I am a Public Rights of Way Officer for a Welsh local authority and after the recent article “Access All Areas: A Policeman’s View”, thought you may be interested in a ‘professional’ take on this – including biking on footpaths – and other related topics.

It can be an extensive subject, for me at least, and I have tried to be as brief as possible. England and Wales have different Highways and countryside access laws to Scotland and this article is written about the former. I have tried to be as specific as possible, but have used also generalisations as there are exceptions and technicalities in every subject.

I am writing anonymously as although I am a fellow biker, my first duty is to my employer but some of the things I will write about later unfortunately do not match with the corporate line. I am also eager to open up the sometimes secret world of Public Rights of Way.

Along with your average PRoW employee, I deal mostly with – and to name a few – maintenance issues, obstructions, and the correct ‘definitive’ line of paths; one specific role is to identify misuse of the right of way network and access land. Approximately 5% of my time is dealt with biking issues (which is roughly proportionate to the amount of biking done on the network compared to walking and other activities) and sometimes these are treated with a high priority.

In my ten or so years working in countryside access I can’t remember ever knowingly getting a complaint from a biker about a problem they encountered. I think this is because collectively we grumble but don’t really complain, preferring instead to carry bikes over broken gates or temporarily fixing things along the way. As such I seem to deal more with bikers causing problems rather than bikers finding problems!

There are five areas I tend to cover: -

Biking on footpaths

Put simply a cyclist (this is the legal term, I’ll use bikers from now on) who rides on a footpath commits trespass ‘against the holder of the land over which the path runs’. This is not a criminal offence so is ultimately up the landowner to resolve any problems, and why case law is very limited in this area.

You can however ride on a footpath if you have the landowners’ permission and if you comply with certain provisions mentioned below.

Due to a lack of time and resources I can only act on complaints about bikes on footpaths if I receive a lot of them on a particular path (e.g. near a school), or at a certain time (e.g. kids going home from school) or anything specific (e.g. kids going home from school, riding carelessly outside an old folks home).

As it is not a criminal offence I advise the complainant or landowner that I am unable to help further than – and in the example

For feet?

above – talking to the school and see what they could do to minimise it (e.g. not by telling the pupils not to ride, but to ride sensibly), for me to perhaps increase signage, ranging from a small “no bike” waymark disc to larger signposts or street furniture.

I sometimes get asked if access could be restricted somehow, but as there is an overriding duty to provide non-restrictive access on PRoW’s (Gaps preferably, if not use gates, if not use stiles) this cannot usually be done. We all know bikes can be lifted over gates or stiles anyway.

If I were to find you riding your bike on a public footpath there is essentially nothing I can do to stop you. I would though say hello, introduce myself, and recommend a few decent paths nearby you could use instead. I do not have the power to ask for your name and address.

If for example you damaged a gate and were seen doing it, and if the landowner was able to stop you (and find out your name and address), being pursued successfully for damages would still be difficult, and as they normally ring me to complain, I genuinely sympathise with landowners when this happens. If it were to get to court it would be a private matter between you and them, so this is where my experience ends.

Various councils/authorities have the power to make byelaws to stop biking on certain paths – including bridleways – and some can also create Traffic Regulation Orders to the same effect. Similar restrictions in Areas of Outstanding Natural Beauty can also take place. These restrictions can vary but infringements are a criminal offence depending on what the restriction is, but there should be notices at the start and end of the path informing users on what restrictions are in place. Some can also be voluntary with self-imposed restrictions, for example between 9 am and 5 pm or from October until March.

If you ride on a footway (generally a pavement at the side of a carriageway), depending on the circumstances, PC’s/PCSO’s could stop you and also give you an on-the-spot fine.

Unfortunately there is a large amount of confusion as many councils/authorities allow biking on paths that look like footpaths/ways, but not on paths that look like a cycleway, and many other variations. The simplest advice is just to look for street signs and if really unsure or if signs are missing or confusing, ring your council/authority.

If you are wondering why I use the term council/authority, it is because your local council isn’t necessarily the highway authority and the local council or highway authority doesn’t necessarily carry out other duties that other “Relevant Authorities” carry out. It all depends on where you live and what your area of interest is. Usually though the local council deals with both Highways and countryside access.

Doing damage.

Before you start thinking you are free to do what you like – and even with the landowners permission – Section 28 of the Road Traffic Act (1988) contains provisions making certain behaviour of cyclists on a Highway (road / footpath / bridleway / etc.) a criminal offence, namely if you cycle recklessly, without due care and attention or reasonable consideration, are drunk / on drugs, or even “promoting or taking part in a race … unless authorised”.

As races seem to be more common nowadays, the “unless authorised” part can be by way of – if applicable – a temporary ‘sporting event’ closure; they normally cost around a hundred pounds and can be tailored to your specific needs, e.g. closures for 2 or 3 days and on particular sections of various paths.

As well as the civil or criminal aspect of bikes on footpaths, if the “convenient use of the way” is prevented it becomes a public nuisance and is covered by criminal law, although this is far more likely to be used for mechanically propelled vehicles (as with noise pollution / surface damage, etc).

Cheeky trails?

Damage to paths can be done in two ways; deliberate large-scale damage (which isn’t really possible by bikes) and disturbance of the surface. As even lawful use of an path could ‘disturb’ it – like walking along a muddy path making it a bit muddier – it would have to become “render(ed) inconvenient” to use; this does happen occasionally but is mostly low-level in nature; half an hour with a shovel and some material to normally fix it, so its not worth the time and money to figure out who / why / when, to follow up any criminal proceedings.

If you are wondering who really owns a path and how landowners can give permission for acts on a public highway, paths usually go over privately-owned land, but the width of the path down to the depth of a spade (an old saying is “so much of the soil below and the air above as is necessary”) is the part owned and maintained by the council / authority. Outside PRoW departments the terms are interchangeable, but the ‘path’ is the physical entity and the ‘highway’ is the legal entity.

Upgrading footpaths to bridleways is possible on a path-by-path basis, but only if there were no objections – which there are almost always are – the route itself would also have to be of a nature suitable to become a bridleway (wide, flat, different ‘lawful barriers’, etc), and to top it off most PRoW departments have a significant backlog of orders so it could take several years just for one.

The only way I can see bikes being allowed on footpaths by any meaningful extent in the short to medium term would be by getting landowners on board en masse. This would mean beforehand increasing bikers profile positively both locally (via the Local Access Forum – more on this below) and nationally (some sort of large-scale PR campaign – maybe latch on to the recent forest sell-off controversy).

Only then could landowners be willing to engage with the biking community and local paths/routes could then be targeted; offering incentives (by carrying out any repairs or general maintenance) would make it more likely that the landowners and local council/authority could work together.

However, and I’m sorry to appear negative, for now it’d be far better to target our limited time and resources in making the best use of what we have now rather than trying to add to the available network.

Biking on bridleways

Cyclists who rode on a bridleway before 1968 were committing trespass (like on a footpath now, so will this take another 50 years to change?); now bikers can use them lawfully but have to give way to walkers and horses.

There is only a statutory responsibility for bridleways to be of a standard suitable for horses, although the appropriateness of the path for bikes is of course considered. It is a balancing act but ultimately it’s all about the horses; this is why some bridleways are resurfaced so that they effectively become sanitised for bikers.

There is also the issue of ‘use it or lose it’ funding, which means sometimes late in the year you get told “Here is £100, 000. Spend it by March or you’ll get nothing extra next year”. This happens when larger capital projects elsewhere underspend, and as PRoW departments are invariably understaffed and underfunded, get this money as an afterthought. We are though extremely grateful to get what we can, often for amounts exceeding the total annual budget!

This unfortunately means one or two large projects are hurriedly carried out at the eleventh hour. The money would be much better delivered over a longer period as it could be targeted much more smartly; better to improve twenty bridleways than completely resurface two of them – the other bridleways still need work doing on them after all. Most of the time though grants (and we need to ask for grants as budgets barely cover what we can legally get away with) are delivered with a 12 month timetable.

By the way, it’s not yet been decided if ‘bicycle’ means any form of pedal cycle (unicycle, trike, etc), but it does include ‘Mountain’ and ‘All-terrain’ bikes.

Other types of linear access

Permissive bridleways are marked with an orange footpath-like dashed line on 1:25 000 OS maps, and although there is no statutory right of way, the landowner has allowed it to be used as a bridleway for the time being.

You can also legally use Restricted Byways (they’re not restricted for bikes) and Byways Open To All Traffic, unless restrictions mentioned above are in place. Normally so-called ‘green lanes’ are often marked with small green circles on 1:25 000 OS maps, so why not buy one (they’re about ten pounds) and see what’s in your area?

Biking on ‘open access’ land

Unless granted permission by the landowner (although you still must comply with certain provisions) you can’t bike on access land unless you are on a route which you are allowed to bike on anyway. If not you become a trespasser, and if caught by the landowner you are required to leave and only come back on foot after 72 hours. The certain provisions mostly involve not deliberately killing / destroying / taking anything.

Even with permission, you cannot “engage in any activity … for any commercial purpose”. This happens a lot, so other officers / rangers must have accidentally not read that bit too!

Open access - but not for bikes.

If damage from bikes is caused by virtue of landowners’ permission, the access authority is able to create a byelaw to specifically stop it. As with damage to footpaths, the landowner could be pursued by the authority for costs to rectify any damaged caused, but as they obviously wouldn’t admit to giving the permission it wouldn’t be worth pursuing anyway.

Access land is divided into two types of land; registered common land (village commons, etc) and open country (mountain, moor, heath or down). Open country is potentially highly sensitive to damage caused by walkers, bikes and horses – and in my opinion in that order, but it depends on many factors – but predominantly by illegal off-roading. This topic though has been covered by other articles both here and elsewhere, but I must stress the illegal part as there are as many responsible off-roaders as there are responsible bikers.

I deal with complaints about bikes on access land as I would on footpaths; if there appears to be a problem in a particular area I would investigate and see if there is anything particular causing it (like a forum thread on a ‘great moorland track near so-and-so’!). Again, in reality there is very little I could do to physically stop someone, but maybe make those who could be persuaded not to do it to think again.

Biking in other places

Forestry Commission / MOD land. Councils aren’t normally involved with FC/MOD land. As for coastal access I don’t cover it myself so have no particular knowledge I’m afraid.

Private property.

Personally I’d avoid anything to do with this as I’ve found it always ends in tears. However if you think there is a really good local spot please talk to the landowner first, say precisely what you have got in mind and then get permission. Again, this is covered in depth elsewhere by people with more experience than I.”

…the RoW Officer continues in part two (coming shortly), explaining how the situation for bikers could be improved, how a Local Access Forum works and some last thoughts and further reading….

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Access Online Feature