Appendix A - Statement of Policies

These policies have been agreed by the County Council's Environment Select Committee on 23rd January 2001 and formally endorsed as County Council policy by the County Council Executive Committee on 29th January 2001.

Definition of the network
Responsibilities for PROW
Proposed new approach
New policies

A.1 Hertfordshire Statement of Policies (Rights of Way)

This document has been produced by the County Council as part of its review of the operation and management of the Public Rights of Way network in Hertfordshire. This review was commissioned by the Environment Committee in January 1999 following the conclusion of the work of a Member Reference Group. The recommendation of the Review was to establish a clear set of principles, supported by a Good Practice Guide (known previously as the Operations Manual) and driven by a number of clear unambiguous policies set out in a Statement of Policies.

The Hertfordshire Statement of Policies is a statement of the County Council's policies for the management of the Public Rights of Way network and for dealing with proposed additions or changes to the network. It contains a number of policy statements, and their context, which will assist officers in delivering an effective Rights of Way service.

The Hertfordshire Good Practice Guide (GPG) for Rights of Way in Hertfordshire (formerly the Operations Manual) is a guide for RoW officers. The guide is based on best practice and establishes recommended procedures for officers and our expectations for any work carried out on our behalf by contractors or volunteers. The County Council will normally seek to follow the operational practices outlined in the GPG. The Hertfordshire GPG will be updated periodically.

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A.2 Definition of the network

The Rights of Way network, and hence the extent to which these policies apply, is defined as including all Public Rights of Way (PRoW) in the Definitive Map and Statement (DM&S). In practice, it is recognised that this is not exhaustive and so the following definition is used by Hertfordshire County Council when deciding whether these policies apply.

Paths in the DM&S, excluding those that have been lawfully diverted or stopped up, see c) below.
Paths for which confirmed Evidential Modification Orders (EMOs) exist subsequent to the last consolidation of the DM&S, and where the implication of the order will be evident in the DM&S.
Paths for which the County Council has copies of Public Path Orders (PPO's) dedications and creation agreements (subject to later lawful changes, if any).

All other paths are not covered by this code of practice:

Paths not on the Definitive Map but which are on the List of Streets are the responsibility of the Transport Management Group (TMG) of the County Council.
Cycle Tracks are the responsibility of the Transport Management Group.
Paths that are on neither the Definitive Map or the List of Streets will be dealt with on a case by case basis.
Permissive paths are normally the responsibility of the landowner.

Currently the PRoW network extends approximately 3000km, subdivided as follows;

2153km of Footpaths;
638km of Bridleways;
120km of Byways Open to All Traffic; and
154km of Restricted Byways.

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A.3 Responsibility for PROW

As the Highway Authority for the administrative county of Hertfordshire, the County Council has the responsibility for carrying out a number of statutory duties and certain powers. These responsibilities are delegated to the Rights of Way Unit by a scheme of delegations and to individual officers by sub-delegations. Approximately three-quarters of the network is managed directly by HCC.

Complaints or concerns about the physical condition of PRoW are dealt with by the Countryside Access Officers (CAOs).
Queries concerning the Definitive Map and legal or proposed changes to PRoW are dealt with by Definitive Map Officers (DMOs).

Parts of the network are managed by District/Borough Councils and Highways Partnerships as Agents on behalf of HCC.

i. District Agents. These authorities, which have a complex role as they act as agents for the County Council on maintenance and enforcement work as well as having the powers to make Definitive Map and Public Path Orders under the Town and Country Planning Act 1990 and the Highways Act 1980. At the present time the County Council is undertaking a review of its Agency arrangements.

ii. Highway Partnerships. As with the District Council agents, the Highway Partnerships in East Herts and North Herts areas deal with maintenance and enforcement work within the main urban areas. All maintenance and enforcement work in relation to rights of way in the Highway Partnership areas of Hertsmere and Three Rivers are managed by the Rights of Way Unit based at County Hall, Hertford.

iii. Managing the Surface. It has become recognised that there is a need to identify more clearly the responsibility for maintaining differently surfaced paths. It is proposed that those paths that are sealed and located within identified "urban" areas should be maintained by the Transport Management Group or its Agents. For unsealed paths, located outside of "urban" areas, it is proposed that the Rights of Way Unit should take maintenance responsibility. A project is currently being developed in order to develop a maintenance database.

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A.4 Proposed new approach

The policies set out in the Hertfordshire Statement of Policies are designed to assist the RoW Service in pursuing its statutory function which can be defined by the main objective:

"That the County Council as Highway Authority seeks through its future investment to assert and protect the rights of the Public by providing a fully open, legally defined and easy to use public rights of way network."

Working within the framework provided by statute and the budget provided by the County Council, work will be prioritised according to the key principles:

Prioritise routes where public safety could be substantially improved
Prioritise routes according to the level of use
Prioritise routes where the County Council's actions could result in a significant positive impact on the network

The application of these key principles will vary between the Maintenance and Enforcement of the network and the management of the Definitive Map and Statement. This is illustrated in the Hertfordshire Statement of Policies Section 4 (Appendix C).

i. Where public safety could be substantially improved:

Definitive Map cases may be given priority where, for example, the effect of an order if confirmed would significantly enhance public safety.

Maintenance and Enforcement cases may be given priority where, for example, an occurrence has a higher priority rating as defined in the Good Practice Guide.

ii. According to the level of use:

Definitive Map cases may be given priority where, for example,

A route is shown in the Definitive Map and Statement and the level of use is high;
A route is not shown in the Definitive Map and Statement, but has an anticipated high level of use if it were to be recorded in the Definitive Map and Statement; and
A route is shown in the Definitive Map and Statement with lower rights and the anticipated level of use would be greater if higher rights were to be recorded in the Definitive Map and Statement.

Maintenance and Enforcement cases may be given priority where evidence suggests a greater level of use of that route, for example:

The level can be determined from the route's physical characteristics;
From local knowledge (including the Parish Council, Parish Paths Partnership (P3) and Countryside Management Service (CMS)); and/or
From the level of communications (number of reports from a range of interests and individuals) being received.

iii. Where the County Council's actions could result in a significant positive impact on the network:

Definitive Map cases may be given priority where, for example:

A route forms all or part of a "missing link" in the network;
A route forms part of a longer route e.g. circular route, long distance route;
An anomaly in the Definitive Map and Statement would be resolved; and
A problem exists which cannot be solved through maintenance or enforcement.

Maintenance and Enforcement cases may be given priority where evidence suggests that route is a significant link in the network, for example:

It has a higher status i.e. a multi-user route;
It forms an important link between settlements or well visited / popular locations;
It is a promoted / publicised route formally endorsed and agreed by the County Council and/or its partners;
From local knowledge (inc. Parish Council, P3 & CMS); and/or
From the level of communications (number of reports from a range of interests and individuals) being received.

These principles are reflected in the following policies which apply to the management of the PRoW network through the maintenance of the Definitive Map and the maintenance and enforcement of the physical network.

Each of the policies identified has been developed in order to overcome particular difficulties experienced with the management of the network, and is followed by a commentary that sets the context, the intention and likely conflicts.

All previous policies will be withdrawn.

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1. Reclassification of RUPPs ("Roads Used as Public Paths")

The reclassification of RUPPs policy was removed by Committee Resolution in 2008/2009, as it was superseded by changes in legislation.

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2. Evidential Modification Orders

The County Council as Surveying Authority has a duty to keep the Definitive Map and Statement under continuous review (Wildlife and Countryside Act 1981 s53). This includes all evidential events giving rise to the modification of the Definitive Map and Statement (s53 (3) b and c). The County Council is often under pressure to investigate certain cases in advance of others. A policy is required to set out the priority that will normally be applied by the County Council to individual cases and hence the order in which applications will be dealt with.

Modification Order cases will normally be investigated in the order in which applications are received, except in any of the following circumstances where a case may be investigated sooner:

Where it will satisfy one or more of the key principles.
Where the physical existence of a claimed route is threatened by development.
Where investigation of a case would involve substantially the same evidence as a route currently under investigation or about to be investigated.

This policy will guide the County Council's approach to dealing with applications to modify the Definitive Map and Statement. The actual order in which applications will be investigated will be set out annually in a Statement of Priorities and if required be approved by the Development Control Committee. The above exceptions will enable the authority to prioritise certain applications where this is appropriate and likely to be in the public benefit.

Routes may be investigated in cases where we have not received an application.

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3. Public Path Orders

The County Council currently has powers to process applications for Public Path Orders, and is often under pressure to process certain applications in advance of others. A policy is required to set out the priority that will normally be applied by the County Council to individual cases and hence the order in which applications will be dealt with.

Public Path Orders will normally be processed in the order in which applications are received, except in any of the following circumstances where an Order may be processed sooner:

Where an Order would satisfy one or more of the key principles.
Where an application has been made to HCC in its capacity as Planning Authority.
Where the processing of an Order could save significant costs incurred in other Rights of Way functions.

For the purposes of these policies the term "Public Path Order" shall be taken to include:

Orders made under section 257 Town and Country Planning Act 1990 (extinguishments and diversions);
Orders made under sections 26 (creations), 118 (extinguishments) or 119 (diversions) Highways Act 1980; and
Applications to the Magistrates Court under section 116 Highways Act 1990 (extinguishments or diversions)

Public Path Orders will be prioritised in accordance with the above policy. This will enable Orders to be made that make a significant positive impact on the network. The actual order in which applications will be investigated will be set out annually in a Statement of Priorities and if required approved annually by the Development Control Committee.

A schedule of the charges is included in the Good Practice Guide.

Orders may be processed in cases where we have not received an application.

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4. Processing Dedications and Creation Agreements

The County Council has powers to accept dedications of new rights. A policy is required to set out the priority that will normally be applied by the County Council to individual cases and hence the order in which applications will be dealt with. The County Council is not obliged to accept the maintenance liability resulting from dedications, a second policy is required to set out criteria for adoption.

Dedications and Creation Agreements will normally only be processed in the following circumstances:

where a dedication will satisfy one or more of the key principles.
where a dedication is offered in lieu of a Modification Order investigation and it satisfies the evidence.
where the requirement to make a dedication forms part of an obligation in a section 106 agreement.

The County Council wishes to ensure that resources are not diverted away from the processing of Modification Orders and Public Path Orders unless there is a clear benefit to the public.

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4a. Accepting maintenance liability

Maintenance liability will normally only be accepted in the following circumstances:

Where no initial additional expenditure is required by HCC to bring a path into a fit condition for use; AND
Where a path has been dedicated free from limitations which would be onerous on the public's use and enjoyment of the path; AND
Where the addition of a path is of public benefit.

The County Council wishes to ensure that no additional liability is taken on by the council that is not balanced by a corresponding increase in the public enjoyment.

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5. Widths of new routes

The County Council has a duty to assert the rights of the public (Highways Act 1980 s130) when making orders or responding to consultations regarding new routes. A policy is required to define the County Council's position relating to the widths of new routes and what the County Council will do where these widths are not complied with.

The County Council recommends that there shall be a minimum legal width of 2 metres for footpaths and 4 metres for Bridleways which are created by Public Path Orders or Dedications.

The County Council wishes to ensure that any new rights of way adequately provide for the public expected to use it.

Where the route is fenced on either side the full available width should normally be recorded as the legal width.

2 metres enables walkers to pass comfortably and enables those with pushchairs, wheelchairs etc. to be able to pass and turn around.

4 metres enables horses to be turned and provides a safe margin when passing other users on foot, cyclists, other horse riders etc. 4 metres is also a standard accepted by the British Horse Society.

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5.a Orders made by other authorities

The County Council will normally object to Public Path Orders made by other authorities within Hertfordshire where they create routes which are less than the minimum width described in the previous policy.

The County Council wishes to see the standard minimum widths applied consistently to new or altered public rights of way across the County. Where these Public Path Orders are made by other authorities within Hertfordshire and the minimum conditions are not met the County Council will consider objecting to the order.

Such an approach is to ensure that the promoted minimum standards are applied consistently across the County. It is intended to provide sufficient width to accommodate all lawful users safely and conveniently. It also satisfies requirements for Access for All.

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6. Limitations on new routes

The County Council should record any limitations on the public right in the Definitive Map and Statement. This may place unnecessary burdens on the public right. The County Council has a separate power to authorise structures outlined in Policy 10 below. A policy is required to support officers when excluding authorised structures from the Definitive Map and Statement and promoting authorisation under Highways Act 1980 s147.

The County Council does not normally support the inclusion of structures as limitations on routes created by Public Path Orders and dedications where those structures could otherwise be authorised.

If a structure is recorded as a limitation in an order or dedication, HCC has no control over it and it is effectively there for ever unless the path is rededicated without it.

There are certain circumstances in which HCC can authorise a structure on a PRoW and retain control over the type, quality and existence of the structure.

Therefore, in circumstances where a structure can be authorised the County Council shall not support its inclusion in any order or dedication as a limitation.

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7. Maintenance and Enforcement Priority for Action

The County Council as Highway Authority has a duty to assert and protect the rights of the public to the use and enjoyment of the public rights of way network (Highways Act 1980 s130). This is carried out by the Countryside Access Team within the Rights of Way Unit. A policy is required to set out the priority that will normally be applied by the County Council to individual cases and hence the order in which they will be dealt with.

The County Council will normally prioritise action on the Public Rights of Way network in accordance with the three key principles. The following exceptional circumstances also apply:

Where the County Council is bringing a path into a fit condition in connection with adding it to, or recording it on, the Definitive Map.
Where there is evidence that either the Definitive Map or the Definitive Statement is incorrect.

The development of this policy is to enable officers to effectively prioritise work on the network. Work programmes will be constructed from information about the condition of the network supported by reports from the public. The level of risk can be measured by the priority rating of any particular problem and subsequent risk assessment following a site visit. The degree to which the public are prevented from using the route should enable officers to prioritise between cases where a route is completely obstructed and those where only some of the width is unavailable. The overall impact on the network will be for officers to assess how the problem affects not only the path itself but also the surrounding network.

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8. Maintenance of bridges and path surfaces (Shared public/private rights)

The County Council as Highway Authority has a duty to maintain highways maintainable at public expense (Highways Act 1980 s41). Where dual liability exists a policy is required to state the County Council's intention in this area as it is often contentious.

Where there are public footpath or bridleway rights on a route, which also has private vehicular rights, the County Council may consider making a contribution towards the costs of maintenance of the surface to the extent required for the level of public rights. Where these private rights are carried over a bridge, the contribution will be made to the running surface only. The actual sum will reflect the cost to the County Council calculated as above, but may vary in accordance with the key principles. The contribution from the County Council would not normally exceed 10% of the cost of the appropriate maintenance works.

This policy will ensure that the County Council does not waste money furnishing private rights where these are greater than the public rights over any given path.

For example, where a landowner wishes to resurface an access track suitable for cars and heavy agricultural vehicles and the route is also recorded as a footpath. The County Council would not normally contribute more than 10% due to the minimal requirements of the public rights. However, if the circumstance, for example, relates to a significant safety issue where the County Council could be negligent, the contribution may be more in order to ensure public safety.

Where this relates to a bridge carrying higher private rights the County Council would normally only be liable for maintaining the running surface - the equivalent of the top 2 spits. The County Council is therefore not willing to fund work beyond its normal liability.

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9. New ditches, ponds and channels etc.

It is an offence for a landowner to wilfully obstruct a public right of way (Highways Act 1980 s137). The County Council has a duty to assert and protect the rights of the public to the use and enjoyment of the public rights of way network (Highways Act 1980 s130). A policy is required in order to set out the County Council's intention to resolve obstructions caused by landowners constructing new ditches, ponds or channels across existing public rights of way.

Where a landowner creates a new ditch, pond or channel etc that crosses an existing right of way a suitable bridge or structure must be provided which can accommodate all legitimate users safely and without restriction. Structures may be supplied and erected by the County Council or approved agents. Landowners will normally be charged up to 100% of the reasonable costs of the installation. Where a structure is built to a higher specification, the County Council will bear the additional cost. Absence of any structure can be construed as 'wilful obstruction' on behalf of the landowner. Exceptions may include instances where a path is recorded in the Definitive Map and Statement subsequent to the new feature being created.

This policy will ensure that landowners who intentionally obstruct rights of way, by creating ditches or water features, are required to provide a bridge or other suitable structure on the Definitive line of the right of way. Diverting the path retrospectively is not normally an acceptable solution and the feature will normally be considered an obstruction.

Higher specifications may include extra width beyond the minimum requirements, higher parapets and additional requirements where the route is considered appropriate for equal access. The County Council will still charge up to a minimum standard but will bear the cost of the higher specification. This approach is consistent with the County Councils aim to improve Access for All that is being promoted by the Disability Discrimination Act and anticipated obligations arising as a result of the Countryside and Rights of Way Bill.

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10. Authorising structures on PRoW

The County Council has powers to authorise the erection of stiles, gates etc. following a landowners application (Highways Act 1980 s147). The County Council also has a duty to assert and protect the rights of the public. A policy is required that sets out the relative priority of these conflicting demands when deciding what structures to authorise.

The County Council policy is to keep the number of authorised structures erected on a Public Rights of Way network to a minimum, consistent with good husbandry and public safety. Having determined, which structures would be stockproof, the least restrictive option will normally be chosen.

This policy seeks to ensure that a field remains stockproof while the structure authorised is the least restrictive option. Guidance can be found in the Good Practice Guide.

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11. Charging for new or replacement structures

The County Council has powers to authorise the erection of stiles, gates etc. following a landowners application [Highways Act 1980 s147]. A policy is required to ensure that structures are built quickly, in the correct position and to the County Council's standards.

Stiles, gates or other works may only be authorised under Highway Act 1980 s147 if they are supplied and erected by the County Council or approved agents. Applicants will normally be charged for this work. Where the County Council require a higher specification, in order to satisfy one or more of the key principles, the higher cost will be met by the County Council.

This policy is designed to ensure that appropriately authorised structures are built to the County Councils standards, and that the County Council complies with its duty. The proposed charging regime is to have a flat fee for all new structures erected under this section of the Act. Landowners will be charged at the current rate which is based on the cost of materials and labour for installing a stile. This will be 100% for new structures and 75% for replacements.

The actual amount is based on the minimum cost to the County Council of materials and will be subject to inflation and reviewed annually. The fee, however, will be fixed regardless of the type of structure, thus a kissing gate will cost the applicant the same as a stile. This will encourage the use of more convenient structures and enable the County Council to improve access, as it is required to do through Disability Discrimination Act and anticipated changes contained in the Countryside and Rights of Way Bill.

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12. Agricultural obstruction

Landowners have duties imposed by Highways Act 1980 s134 and 137(a) regarding the removal of crops and reinstatement after ploughing. The County Council has a duty to assert and protect the rights of the public to the use and enjoyment of the public rights of way network [Highways Act 1980 s130]. A policy is required that states clearly the action that will be taken by the County Council in order to fulfil its legal duty and resolve agricultural obstructions.

The County Council will normally take direct action to remove crops or to reinstate paths where landowners have failed in the duties imposed on them by the Highways Act 1980 s134 and s137A . Action will only be instigated after the County Council has served on them the necessary notices. Consideration will be given to prosecuting repeat offenders. All reasonable costs will be reclaimed.

The County Council recognises that obstruction of the Public Rights of Way network as a result of agricultural practices is a significant problem despite the duties imposed on landowners by the Highways Act 1980 .

Landowners will be reminded of their obligations to re-instate within 14days as soon as a problem is identified.

If they fail in their duty to re-instate they will normally be served with a notice of the County Council's intention to take direct action.

Once contractors have been arranged the County Council will notify the landowner of the timing of remedial action.

The County Council will reclaim all reasonable costs.

The County Council may also take direct enforcement action under s143 and s149 of the Highway Act 1980 to remedy non crop obstructions.

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13. Permanent Traffic Regulation Orders

The County Council as Highway Authority has powers to make Permanent Traffic Regulation Orders (Road Traffic Regulation Act 1984) and is often under pressure to make Orders specifically for the regulation of motorised vehicles. A policy is required to indicate what measures will normally be taken before considering a Traffic Regulation Order and to include advice from the former Department of the Environment (Circular 2/93).

The County Council will follow the guidelines in the government circular (Department of Environment Circular 2/93) by seeking normally to reduce damage and/or danger to an acceptable level before considering an Order. Cases for order making will only be considered by the County Council's Development Control Committee where:

Management measures have failed or can be shown to be inappropriate; and
There is sufficient evidence of damage or conflict to support an order under Road Traffic Regulation Act 1984 s1(1a - f ).

When considering the making of a Permanent Traffic Regulation Orders the County Council will give preference to those activities, which cause the least disturbance to other users and will consider proposals to ban or regulate certain classes of traffic when in the wider public interest.

This policy puts into practice guidance offered by the Department of Environment, Transport and the Regions (DETR) avoiding permanent TROs where voluntary agreements and other management measures can be successfully implemented. Management measures may include surfacing or drainage works.

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14. Temporary Traffic Regulation Orders

The County Council is often required to make temporary Traffic Regulation Orders for development or other works under the Road Traffic Regulation Act 1984, but often finds it difficult to ensure adequate provision is given to public safety, [Duty to assert and protect Highways Act 1980 s130]. A policy is required to ensure that safe alternative routes are promoted.

When considering the making of an order under Road Traffic Regulation Act 1984 s14 public safety will be given a high priority and alternative routes will only be provided:

Either on existing public highways that are convenient and safe for the traffic being diverted.
Or on to alternative routes within construction sites where provisions regarding width, surfacing and fencing are included in a written agreement and preferably a s106 Town and Country Planning Act 1990 agreement specifically addressing the issue of public safety.

This policy is designed to remove the risk to the public that is presented by inadequate alternative routes including those across development sites and those onto existing highways with limited provision for vulnerable users such as walkers and cyclists.

The policy will ensure that routes across construction sites are only promoted where they are unavoidable and given as much protection as possible in order to safeguard the public using the route.

For the purposes of mineral extraction, a temporary diversion order may be made under the Town and Country Planning Act 1990 s261. This gives the alternative route full highway protection without the need for a section 106 or other agreement.

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