Section 4.3 - Creation Agreements and Dedications

The County Council has powers to accept dedications of new rights under s25 and s38 [Highways Act 1980]. This may include a totally new route or may just be the dedication of higher rights over an existing route. Any landowner who so wishes can dedicate any route as a right of way. Legally speaking this requires (for a dedication to occur) the landowner "offering" a route for use, and the public "accepting" it by using the route. A parish council may also enter into an agreement, under s30 [Highways Act 1980] to dedicate a right of way with a landowner, where in their opinion it would be beneficial to the inhabitants of the parish.

Acceptance of a Dedication (and the associated maintenance liability) by the County Council will be prioritised according with the policy below:

Prioritising Dedications and Agreements

The policy below sets 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.

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.

[Policy 4-Executive Committee-Agenda item 4-29January2001]

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.

Accepting maintenance liability

The County Council is not obliged to accept the maintenance liability resulting from dedications. The policy below sets out the criteria for adopting the maintenance liability of routes.

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.

[Policy 4a-Executive Committee-Agenda item 4-29January2001]

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.

Limitations on new routes

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.

[Policy 6-Executive Committee-Agenda item 4-29January2001]

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.

Advantages of dedications

Advantages for the landowner:

• When a route is dedicated, the landowner is no longer liable for any claims against them from people using that route.
• In a dedication, suitable limitations can be included to prevent abuse or illegal use of the route.

Advantages for the user:

• An improved network as ‘missing links’ in the network are provided.
• Safety from the dangers of modern motorised traffic.
• Clarity as to the rights that exist, as the Definitive Map will be amended.

Advantages for Hertfordshire County Council:

• An improved network for users.
• Improved public safety.
• Clarity of use when advising other departments, e.g. for planning purposes, Land Charges etc.

How to formally dedicate a route

Simple procedure is set out below, a supplementary flowchart can be found here.

Simple flowchart

1. Before a formal dedication or creation agreement is drawn up by the County Council it has to be established with the rights of way unit whether, according to the current policy:
   1. the County Council is willing to accept the dedication
   2. the County Council is willing to accept the maintenance liability.
2. The landowner(s) will need to show, either by Deed of copy of the current Land Registry records that they are the owner(s) of the land, and that they have the capacity to dedicate. If there are other parties involved, such as a long leaseholder, they will also need to agree to, and will also be a signatory on the agreement.
3. An agreement can then be drawn up between the parties involved. This agreement will be made under section 25 of the Highways Act 1980, although under certain circumstances it can be made under section 38.
4. A draft of the agreement will then be sent to all parties to be checked that they agree to what has been written.
5. Once agreement is reached, the County Council will produced a final copy, one for each party, to sign. Once all copies have been signed (or sealed if appropriate), they need to be returned to the County Council where they will be sealed. Each party will then receive a completed agreement
6. The Definitive Map and Statement will then be updated.