Why rights of way matter before you buy

A right of way is a strange thing. It is not a favour granted to walkers, and it is not something you can quietly withdraw when the footfall picks up. It is a public highway in law, as much a highway as the A-road at the end of your lane, and it survives changes of ownership, changes of use and long periods of total neglect. When you buy a converted barn, a smallholding or a block of grazing land, you may also be buying responsibility for a strip of path that crosses it.

This catches people out constantly. The estate agent's particulars rarely mention it, the title plan often shows nothing, and the path may run across a yard you intend to use for parking or through a paddock you plan to fence for horses. It pays to know exactly what crosses your land, where it goes and what you must do about it.

Reading the definitive map and statement

Every highway authority in England and Wales — usually the county council or unitary authority — must keep a definitive map and statement of public rights of way. The map shows the routes; the statement records their width, their status and any limitations such as gates or stiles. It is the legal record, not merely a guide, and it is the starting point for any purchase or dispute.

Ask the rights of way team for an extract covering your holding, and check it against what is actually on the ground. Look for:

• Routes that appear on the map but are invisible on the ground, perhaps lost under a hedge or a concrete yard.
• Routes used by walkers that do not appear on the map at all. Unrecorded paths can still be claimed, and after twenty years of open, unchallenged use as of right, dedication may be presumed under section 31 of the Highways Act 1980.
• Discrepancies in width. A path recorded as three metres wide cannot be squeezed into a one-metre gap beside a new fence.

Your solicitor should include the extract with the title documents, and you should walk the routes yourself with the map in hand before you exchange contracts.

The four types of right of way

Status determines who may use the route and what you can lawfully place across it. The differences are not academic.

• Footpath — walking only. Cyclists may not ride, though a pushbike is generally tolerated. Minimum width is usually 1.5 metres.
• Bridleway — walking, horse riding and cycling. Minimum width is usually 3 metres, and gates must be wide enough for a horse.
• Restricted byway — walking, riding, cycling and horse-drawn vehicles, but no motor vehicles.
• Byway open to all traffic — essentially a minor road, usable by vehicles, though often no more than a muddy track.

If a route is recorded as a bridleway, a stile is not acceptable. It must be a gate or a gap, and it must be wide enough for a horse to pass comfortably.

Your day-to-day duties as a landowner

You do not have to create paths, surface them or signpost them, but you must not obstruct or endanger them. The practical obligations are straightforward, and the highway authority can serve notice and recover its costs if you ignore them.

• Keep gates, stiles and bridges in good order and safe to use. A gate that will not open, or a stile with a broken step, is a failed duty.
• Never lock a gate across a right of way. You may install a gate, but it must be capable of being opened by any reasonable person.
• Where a path crosses arable land, you may plough it, but you must restore the surface within 14 days of ploughing, or within 24 hours if the authority asks you to.
• Do not allow crops to grow over a path so that it becomes impassable, and keep headlands clear where the route runs along a field edge.
• Leave waymarks and signs in place. Removing a waymark you disagree with is an offence, however strongly you feel about it.
• Do not let dogs run loose at walkers, and do not block a route with machinery, trailers, muck heaps or an electric fence.

Check your public liability insurance covers public access. It usually does, but a commercial or equestrian policy should be confirmed in writing.

When a path causes a real problem

Perhaps it runs through a new courtyard, past a holiday let, or across a yard where livestock are handled. You have options, but none of them involve simply shutting the gate.

You can apply to the highway authority for a diversion order under section 119 of the Highways Act 1980, or an extinguishment order under section 118. The authority must be satisfied that the change is in the interests of the landowner, the public or the path itself, and it will consult the parish council and user groups. Orders take months, sometimes years, and objections can send them to a public inquiry.

Minor adjustments are often easier. A new gate, a better line through a hedge, or an agreed crossing point can solve a problem without touching the legal record. Talk to the rights of way officer early — they deal with these situations weekly and are usually pragmatic.

Practical steps for barn owners and smallholders

Keep a file. Photograph the stiles, gates and waymarks on your land, note any problems and record the dates you fix them. If a claim of a new right of way arises, evidence of how you have managed access matters enormously.

Check the definitive map before you convert a building, lay a driveway or install a new fence. Planning permission does not extinguish a public right of way, and a route recorded across a barn's approach cannot be built over without an order. Barn conversions often increase traffic on quiet lanes and paths, so expect walkers, expect questions, and expect that a courteous gate and a clear waymark will save you far more trouble than a locked one ever will.