Restricted Byway Access?

Commuting, Day rides, Audax, Incidents, etc.
Bicycler
Posts: 3400
Joined: 4 Dec 2013, 3:33pm

Re: Restricted Byway Access?

Post by Bicycler »

MikeF wrote:Traffic Prevention/Regulation Orders can be applied to any right of way including permissive ones. A permissive right of way is one where the land owner has given permission for the use. In this case it appears the land owner has selected to prohibit cycles. Cycles and/or pedestrians could be restricted from any bridleway if there is an order in place preventing them from using it.

We're in danger of confusing civil and criminal law here. Somebody can choose to permit the public to do something on their land. They may, for example, choose to allow walkers and horses to use a path. They may choose to not permit cyclists to use the path and put up a sign saying that. If a cyclist uses that path without permission they are trespassing. Trespass is a civil wrong.

The highway authority may choose to prohibit public use of a path by cycles and make a Traffic Regulation Order and put up signs of the prescribed form (cycle in a red circle) to indicate that cycling is prohibited. A cyclist using that path is committing a criminal offence.

And I don't think you can prohibit pedestrians using a TRO
Last edited by Bicycler on 24 Apr 2014, 10:21pm, edited 1 time in total.
Adam S
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Joined: 15 Nov 2012, 8:53pm

Re: Restricted Byway Access?

Post by Adam S »

Yes. There is a big difference.

To be clear, there is no such thing as a permissive right. We either have the right to do something or we do something with permission. We may use terms like permissive bridleway as a convenient description but it doesn't necessarily mean that access is necessarily equivalent to a public bridleway. In most cases it will be very similar or the same but it doesn't have to be. It could for example be closed overnight, at certain times of the year or on a whim. In contrast, a right of way is pretty much absolute, the landowner has absolutely no say in your use of his land as a highway.
MikeF
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Location: On the borders of the four South East Counties

Re: Restricted Byway Access?

Post by MikeF »

A permissive bridleway/footpath has to be established with the agreement of the local highway authority. It's not something that a landowner can do ad hoc. If a landowner allows a path to be used without an agreement it is possible that, in time, it can be established as a PROW.
Depends how you define "right". A permissive ROW grants a right to the public according to the agreement in place. A permissive or any other bridleway can have a restriction such as "no cycles". A public footpath can be a permissive bridleway as well if so designated :wink:. There can also be private right of ways eg paths to premises for certain individuals and their visitors etc.
"It takes a genius to spot the obvious" - my old physics master.
I don't peddle bikes.
Adam S
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Joined: 15 Nov 2012, 8:53pm

Re: Restricted Byway Access?

Post by Adam S »

It certainly does depend on the how we define "permissive" and "right". These terms tend to be used to mean mutually exclusive things in a ROW context

There are many permissive access agreements and those are the kind of paths you see marked on OS maps. If you take the term permissive access to mean these official forms of access agreements then they are bound by contract. However, there are many examples of ways which are used by permission without any official agreement. Classic ways of indicating this are to mark it as a permissive route on signage, to close the path certain days or restrict access to certain times. The likes of the National Trust have bylaws in place stating that their land is used by permission not as of right.

A path used with permission cannot become a right of way through long use because the use has to be "as of right" (nec vi, nec clam, nec precario, 'without force, without secrecy, without permission'). This concept long predates modern permissive access agreements.
Mark1978
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Joined: 17 Jul 2012, 8:47am
Location: Chester-le-Street, County Durham

Re: Restricted Byway Access?

Post by Mark1978 »

Not Foxton this time but here http://binged.it/1oD5VYy

The bit of road between Oxen Law and Red Ho, I did it yesterday as I was in the Satler's Gate area but fancied cutting through to the Waskerley Way. I had thought from previously looking at the map and cycling around that area that this would be fine. However on getting to the end I found a closed gate and the owner appeared to tell me that it was a 'private driveway' oops!

I won't be going that way again of course, as it was an honest mistake, but I'm just trying to get things clear regaring looking at the map. The red dotted line seems to suggest "Other route with public access" - not sure what that means tbh,.
Adam S
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Joined: 15 Nov 2012, 8:53pm

Re: Restricted Byway Access?

Post by Adam S »

Get ready for this one Mark, it's a SABRE type of answer :)

In theory all public rights of way that aren't vehicular roads should appear on definitive maps of rights of way. In theory all publically maintainable highways including nearly all rights of way should appear on a statutory "list of streets maintainable at public expense". The definitive map records the level of public rights on a way but the list of streets generally does not because it is a record of maintenance responsibility not public rights. Even so the route would have to be a public route in order to be publically maintainable; the council does not have a duty to repair people's driveways.

ORPAs (other routes with public access) are a way of showing on the map routes which are included on the list of streets but not the definitive map. In other words the highway authority believes them to be highways but is unlikely to be sure what type. All they will say if you ask is that they believe them to be at least a right of way on foot but may have higher rights. In practice many were thought to be unsurfaced public roads at the time of the rights of way surveys back in the 50s. The guidelines back then were very vague as to whether these roads should be included on the definitive map and often they weren't. This has left us with the worst of both worlds where we have ways that are marked on maps but not on the ground, are frequently obstructed, no-one knows their status and if one needs maintenance the council's rights of way department will shrug and refer you to highways department who will, frankly, ignore you (I speak from experience).

So yes, the red dots do show a route which should be open to the public at least on foot. Either the council is wrong or the landowner is either wrong or lying. It sounds silly but many landowners don't know the extent of public rights across their land. They assume that they would have been told when they bought the house or mistakenly think the public can't use a road because they own it or have to maintain it. Also, council's highway records often contain errors so they can't always be said to be correct. The only way to find out for certain would be to do lots of tiresome research and then seek to add the route to the definitive map if you found evidence it was public. That is a long and drawn out process. Frankly, the whole thing is a mess.

I have to say that you have been quite unlucky, I routinely use ORPAs and have only come across a few which have been blocked off. Unless you are in a hurry those routes can be interesting. If you are only riding for leisure I guess it's not too much of a nuisance to come across a blocked path and have to turn back every now and then.
Mark1978
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Joined: 17 Jul 2012, 8:47am
Location: Chester-le-Street, County Durham

Re: Restricted Byway Access?

Post by Mark1978 »

I do like a SABRE answer and that's quite interesting. I was expecting the situation to be 'no access' and that's that. From what you are saying consulting Durham Council doesn't seem like it will achieve much anyway? I've consulted the definitive map and it's not marked on there.

The owner remarked that the road heading North was the 'proper' route but as you might guess it's no more than a line across a field so not much use for a road bike.

It's not a massive issue really and I'm don't fancy confronting the owner again, even if he was perfectly civil. But this does provide a short connection between the roads above Lanchester and the Waskerley Way for just the sake of a gate.
Adam S
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Joined: 15 Nov 2012, 8:53pm

Re: Restricted Byway Access?

Post by Adam S »

If you fire off a question to the council they may have some information if they have looked into the status of the route recently or if it has been stopped up or diverted. They would be able to tell you if they viewed it as public and that would rule out a drafting error by Ordnance Survey. In my experience often all the council are able to tell you is that they have it recorded as unclassified road number Uxxxxx and it should be a highway of some description. The last time I enquired about one they asked me if I had any idea about status of the route!

Have you noticed there is a public footpath which ends on that road? That is a good example of what I was on about. There is no way that the intention was to record a cul-de-sac footpath which ends on a private road. If the footpath ran through to the main road at Oxen Law then it would have been recorded that way. It's almost certain that the footpath ends on the 'private' road because the road was thought to be public when the definitive map surveys took place in the 50s. If it was public then it still will be now.

There are thousands upon thousands of these inconsistencies and councils have neither the resources nor inclination to sort them out. It is a shame really because councils spend vast amounts of time and resources sorting out new access agreements whilst abandoning routes with existing rights like this one may have, which could make them really useful links
Mark1978
Posts: 4912
Joined: 17 Jul 2012, 8:47am
Location: Chester-le-Street, County Durham

Re: Restricted Byway Access?

Post by Mark1978 »

Very interesting again, thanks, and indeed more interesting than I'd expected, - I might start a parallel thread in the other place.

Is it possible that, the public road may extend as far as the farm buildings, but only go up to the gate which was closed off? As the Waskerley Way beyond is obviously not a highway open to all traffic it's conceivable that the road only exists up to the farm and no further, thus I could cycle to within metaphorical spitting distance of NCN7 but not legally be permitted to travel the final few metres?
Adam S
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Joined: 15 Nov 2012, 8:53pm

Re: Restricted Byway Access?

Post by Adam S »

Yes, that is entirely consistent with what the map shows. The tiny section from the farm to the cycle path is marked as footpath. I missed that bit whilst focusing on the status of the access road to the farm. Assuming the map is correct the owner is entitled to restrict passage from the farm onwards to just pedestrians. That is not quite the same as the access road being a "private driveway" like he told you but he would not be the first landowner to think of a public road which ends at his property as his own personal driveway.

It might be worthwhile for the council to seek an access agreement for those few metres from the cycle path to the road.
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