These guidance notes refer to your responsibilities as the occupier of the land to restore the surface of any disturbed path, to make sure that its line is apparent on the ground and to keep it clear of crops.
Remember: regardless of who carries out the work on your behalf it is your responsibility to see that it is done. Paths which are not marked out will cause frustration and may lead to unintentional trespass and crop damage.
If it is convenient to leave the surface of any footpath or bridleway which crosses a field undisturbed (for example where the path follows the direction of ploughing) then you must do so. If it is not convenient then you have the right under the Highways Act 1980 to disturb the surface of the path.
This right does not apply to public paths which:
- follow the headland or side of a field, (field edge path) - these must be left unploughed to at least the minimum widths required
- are recorded as roads used as a public path (RUPPs) or byways (BOATs) - these must be left unploughed at all times.
Your 'right to disturb' cross field footpaths and bridleways covers ploughing and any subsequent cultivation, but the legislation also places duties on you:
- you must make good the surface so that a path is convenient for the public to use
- you must ensure that the line of a path is clearly marked at all times so that it is apparent to anyone wishing to use it
- where any crop, other than grass, is grown you must ensure that a path is kept clear of the crop so that it is convenient to use.
You should always be aware of the time limits and widths allowed in the legislation:
- reinstatement after ploughing: within 14 days
- after subsequent cultivations: within 24 hours.
Some public paths have a specific width legally recorded in documents such as enclosure awards or the definitive statement. Where this is the case it is this width which must be reinstated and kept free of crops. For all other paths on cultivated land the following statutory widths apply:
- footpath cross field - min width 1.0m, max width 1.8m - disturb only if necessary
- footpath field edge - min width 1.5m, max width 1.8m - do not disturb
- bridleway cross field - min width 2.0m,max width 3.0m - disturb only if necessary
- bridleway field edge - min width, 3.0m, max width 3.0m- do not disturb
- RUPP, byway - all paths - min width 3.0m, max with 5.0m - do not disturb.
After ploughing and cultivation
What is meant by 'making good' the surface and 'marking the line' of a path?
The legislation places you, as the occupier, under a duty to restore the surface so that it is reasonably convenient to use and to physically mark the line of the path. In both cases the width provided must be at least the minimum required.
What should I do to meet these requirements?
You should provide a path which is:
- level and compact
- distinguished from the rest of the field.
The work which needs to be carried out to achieve this will depend on a number of factors including the type of operation which disturbed the path, the nature of the soil and time of year.
Normally, preparation of the seed bed is sufficient to meet the level land compact criteria. If the field is to be left rough ploughed for more than the 14 days allowed you must provide a level and compact surface in some other way, by rolling the line of the path for example.
To comply with the second requirement simply marking the line by running up and down with the tractor may be sufficient if this results in the tyres leaving an easily seen and obvious track. If this is not possible, then the line can be marked using canes or posts, set in pairs at least the minimum distance apart.
Is all this really necessary on every cross field path?
Yes, the law is quite clear. Many farmers find that some simple planning means that it soon becomes second nature. Organising your reinstatements beforehand will ensure that action, after harrowing or sowing for example, will not get overlooked. Time and money will always be saved if the work is carried out whilst the machine is in the field. This is particularly important if you are using contractors.
Remember: marking the line using tractor wheels in the autumn and then forgetting about the path until the spring may not be good enough. If the visible line of the path disappears when the crop first emerges you must re-mark the line, or use canes as suggested above. Alternatively, it may be convenient to leave a strip undrilled as you pass over or along the path.
How much time do I have?
You have 14 days from the time the field is first disturbed after harvest. When you carry out further operations after the 14 day period, harrowing or rolling for example, the surface must be restored and the line made visible on the ground again within 24 hours.
Remember: you must restore the surface and mark the line even if the field is left bare, put into set-aside or is sown with grass (although subsequent duties to keep the path clear of crops do not apply).
What should I do if I am uncertain about keeping within the time limits?
The period can be extended for up to 28 days at our discretion. This may be granted for a number of reasons, such as exceptional weather conditions or the unusual nature of the operation. As soon as you are aware that you will be unable to comply within the time period you must apply to your Field Officer, following up any verbal request in writing. This must be done before the relevant 14 day or 24 hour period has expired.
Can I disturb a path surface for other reasons?
You do not have an automatic right to disturb the surface of a path for other agricultural reason directly related to a particular crop. If any other action will make the path inconvenient or impossible to use must apply to us for an order. This may allow you to disturb a footpath or bridleway for up to three months. We will normally grant an order if the operation is reasonably necessary for agricultural purposes and a suitable alternative path is to be provided. A typical example would be when repairing or installing field drains. Please contact your Field Officer as soon as possible if you are thinking of carrying out such an operation.
When the crop is growing
Do I need to do anything when the crop has emerged?
You must keep the alignment of cross field paths visible on the ground. This can be done by rotovating and rolling the line of the path, spraying it out with a safe herbicide or marking it with canes as described above.
What is meant by having to keep a path 'convenient to use'?
As soon as the crop starts to cause an inconvenience to users of the path it must be cut or sprayed out to at least the minimum width (see above). The general rule is the crops will start causing inconvenience when they reach 15cm (6 inches).
Remember: taking action early to remove the crop is always best. But til you cut out the crop to mark the path, you may have to cut the path again later on in the season if the crop regrows.
What spray can I use?
If you choose to use a herbicide to remove the crop from a path make sure you take expert advice from the Health and Safety Executive on the practicalities of using chemicals in a public place. If you are at all in doubt it is safer to cut out the crop.
Surely I don't need to do anything if people have trodden the line of the path in?
Paths are seldom trodden in to the minimum width, so you will probably still need to meet this requirement. You must also make sure that crops do not fall or collapse onto the path causing an obstruction and making the path inconvenient to use over any part of the minimum width. This may involve trimming back the crop from time to time or clearing the path to more than the minimum width.
Remember. Where oil seed rape, beans or other tall crops have been sown, you should make sure the paths are cleared to the maximum widths. This will avoid you having to carry out further work to keep the minimum width clear as the crop lodges.
Are there different rules for some crops?
The only true exception is grass. Paths do not not need to be kept clear of a grass crop or kept visible once the grass has emerged.
Some crops may require special treatment, please contact your Field Officer if in any doubt. The most common problems are with potatoes and crops under polythene as the path must be kept level, compact and unobstructed across the field.
We seek to work with farmers, the National Farmers' Union (NFU) and the Country Land and Business Association (CLA) to ensure that the requirements set out in the legislation are met. Each year an ever increasing number of farmers have carried out their duties. However, we will take firm action when conciliation fails to resolve cases of non reinstatement after ploughing or obstruction by crops.
What powers do the county council have to take action?
We can take direct default action itself if you ignore requests to comply with your duties as explained in these advisory notes.
Action is taken by serving a statutory notice under the Highways Act 1980. If you then still fail to carry out the necessary work the notice gives the Authority power to enter on to your land, carry out the work (to the maximum width) and recover its costs from you.
What is a statutory notice and what should I do if I receive one?
A statutory notice is a written warning issued when default action is to be taken. It will be sent to the occupier, if known, or otherwise posted on the path to which it relates.
The notice and accompanying papers will indicate:
- the path to which it relates
- what action you have failed to take
- details of the means of access and the method the Authority will use
- an estimate of the cost of the work to be recharged to you
- the time and date the power to take default action comes into effect.
If you receive a notice and genuinely and immediately intend to take action, you should advise your field officer at once by telephone. Similarly, if there is a good reason why you cannot undertake the work you should contact your field officer without delay to discuss the problem. Should you fail to notify your field officer you may still be liable for any costs incurred, even if the work has been carried out.
Is it possible that I could be prosecuted?
It is expected that you will always carry out what the law requires. However, if you fail to comply with the requirements of the Highways Act 1980, as outlined in these advisory notes, you are committing a criminal offence. This will therefore result in us having to consider prosecution as an alternative to serving a statutory notice. The current maximum fine is £1000 for each offence and it would also be usual for the authority to be awarded costs against you.
Your Field Officer will be pleased to offer help and advice on any of the points raised in these advisory notes, or on any other agricultural operations in fields with public rights of way.
These advisory notes have been produced in co-operation with the National Farmers Union and Country Land and Business Association. Further advice can also be obtained from representatives of these organisations.
The information in these guidance notes reflects the law at the date of writing (1997). Every care has been taken in their preparation but no responsibility can be taken for the consequence of any errors or omissions.