Section 8.2 - New Structures
The different procedures for authorising structures are detailed below.
For P3 groups and CMS follow the attached guidance notes.
Guidance for installing/replacing structures (Policy 11 Briefing Note)
8.2.1 Structures required for agriculture on land crossed by public paths
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 has been endorsed 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.
[Policy 10-Executive Committee-Agenda item 4-29January2001]
This policy seeks to ensure that a field remains stockproof while the structure authorised is the least restrictive option (see Section 8.3).
Relevant Legislation
Highways Act 1980
Section 147. Power to authorise erection of stiles, etc. on footpath or bridleway
Procedure
Landowners are only permitted to erect new structures such as gates and stiles if they fulfil the criteria of HA80 s147, and they have the approval of an HCC or agency officer. An officer can make a decision to grant or refuse permission. An authorisation form must be completed for each structure (Form).
Authorising structures on PROW (Policy 10)
HA80 s147 only applies to footpaths and bridleways, applications for any other PRoW will not be accepted. Consideration will need to be made of any outstanding modification application on the route before authorisation can proceed. Where a PRoW may be shown as a Public Byway it would be prudent to draw the applicant's attention to condition 6 on the authorisation form (also point (e) below) and consider the authorisation in the short term. Where a PRoW may be shown as a Public Bridleway this should be taken into account when considering the type of structure. Wherever a PRoW may be downgraded an application for authorisation can only be considered on the basis of the status as shown on the Definitive Map. Where a PRoW has had a modification order confirmed the status of the route will be taken as in the Order.
An application for authorisation can only be initiated by the owner, lessee or occupier of the land crossed by the path. The officer must be satisfied that the applicant is one of the above. Where there is uncertainty a query should be made with the Land Registry, or by serving a s16 notice [LG(Miscellaneous Provisions)Act 1976]. Where the applicant is not the owner, the applicant should fill in the owner's name on the form.
The officer must be satisfied that the application fulfils the requirements of s147(1). That the land crossed by the path is being used, or being brought into use for agriculture and it is expedient that for efficient use of that land a structure should be erected to prevent the ingress or egress of animals. Agricultural land is defined in subsection 5 and includes land being used, or land being brought into use, for forestry or for the breeding and keeping of horses. Agriculture is further defined in HA80 s329. In anticipation of s69(2) Countryside and Rights of Way Act 2000 agriculture will be considered to include land used for the 'breeding and keeping of horses'. HCC will normally interpret this to be land where grazing is the predominate use and will exclude land used for orchards and gardens.
The officer may decide to inform the local P3 representative and may consult with the local County Councillor and local user groups concerning the application if appropriate.
The decision to grant or refuse permission is at the discretion of the officer. If minded to grant permission then a decision will be required as to the type of structure erected. Any structure must not cause undue inconvenience to the public [HA80 s147(2)], and will be the least restrictive option whilst controlling the ingress and egress of animals.
Authorisation has the following conditions:
- That the applicant(s) accepts the responsibility for the maintenance of the structure to the standards specified and the liability therein, until such time as the structure is removed.
- The authorisation covers only the structure in the specification. Any additions such as fencing wire, sheep netting etc., that are not specifically authorised, may constitute an unlawful obstruction.
- Gates on bridleways must be capable of being opened with ease by someone on horseback and someone on the ground.
- Should the conditions that allow structures to be erected cease to exist [HA80 s147], the structure becomes unlawful, the authorisation will be withdrawn and the structure will have to be removed.
- Should a modification order successfully upgrade the route at a later date then this authorisation will lapse and must be reapplied for, if appropriate.
- Any failure of the applicant (or successors in title) to abide by these conditions may lead HCC to require the removal of the structure under HA80 s143 or otherwise and/or legal proceedings being commenced for the wilful and unlawful obstruction of the public highway [HA80 s137].
- Other conditions as agreed by the officer. These must relate to either maintaining or to removing undue inconvenience to the public on the path but they do not have to relate solely to the structure. They can require a hardening of the surface under or near the structure, they can relate to fencing along the path or fencing that stretches across the path where the legal width of the path is wider than the structure (e.g. no barbed wire).
Final authorisation is dependent on an inspection of the structure by an officer to ensure the standard is upheld. The completed form shall be kept on record at County Hall, and be available so that the public can know which structures are lawful. The data must also be entered into the database. If it is decided to refuse permission, the reasons for doing so must be recorded. There is no formal process of appeal.
Charging for new structures
The following policy has been endorsed by County Council Members with regard to charging for new structures.
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. [Policy 11-Executive Committee-Agenda item 4-29January2001]
This policy is designed to ensure that appropriately authorised structures are built to the County Council's standards, and are paid for by the occupier, who is responsible for the structure. Landowners will be charged for new structures at the current rate which is based on 100% of the cost of materials and labour for installing a stile. (The current cost is £152 and therefore landowners will be charged £152 which is 100%).
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 is intended to 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 1995 and provisions introduced by the Countryside and Rights of Way Act 2000 (see below).
A letter should be sent to the applicant requesting payment prior to any work being undertaken. A structure will not normally be erected until payment has been received. It is therefore up to the applicant to respond promptly in order that the structure can be erected as soon as possible.
8.2.2 Other structures on land crossed by footpaths and bridleways
The structures under this section are usually authorised to enforce Traffic Regulation Orders (TROs), or for use on cycle routes or bridleways, but may otherwise be installed where they would not be an obstruction to legitimate users. An officer should consult with the appropriate landholders when considering structures that might compromise higher private rights, i.e. access by farm vehicles and machinery, on a PRoW.
Relevant legislation
Highways Act 1980
Section 62. Powers of improvements on highways
Section 66. Footways and guard-rails etc. for publicly maintainable highways
Road Traffic Regulation Act 1984 (see Section 8)
Cycle Tracks Act
Section 4. Provision of barriers in cycle tracks, etc.
Procedure
Barriers, rails and fences can currently only be authorised on footpaths [s66; Footways and guard-rails] although the Countryside and Rights of Way Act 2000 s70 will extend this to bridleways and include bollards and posts when it comes into force. Currently, s62 [General power of improvement], may be used to provide such structures on bridleways. Similar structures cannot be authorised on RUPPs or BOATs, unless as part of a TRO. Officers should use the authorisation form and checklist. (See below)
Consideration will need to be given to any outstanding modification application on the route before authorisation can proceed. Wherever a PRoW may be upgraded or downgraded an application for authorisation should not normally be considered until an application for a modification order is resolved. In any event the status of the route will be that shown on the Definitive Map, except where the path has had a Modification Order confirmed, where the status of the route will be taken as in the order.
A structure under s66 can only be authorised for the purpose of safeguarding persons using the highway and no other reason. In practice this requires evidence of possible danger. A site inspection will be required in order that an officer can accurately assess the situation. Officers are encouraged to use the following checklist to ensure all relevant points are considered.
The landowner will need to be informed that a problem exists. The Parish Council/Meeting and local County Councillor should be informed and made aware of the danger. The agreement of the Parish Council/Meeting will normally be required before a structure can be authorised. However, where there is clear evidence of danger this may not always be necessary.
The Police will need to be informed if misuse is by motor vehicles [RTRA84 s34]. Where misuse is not resolved by either the landowner or police, some form of structure may need to be considered to resolve the problem.
Authorisation is left to the officers' discretion. The number of structures erected under these sections should be kept to a minimum. A separate authorisation form should be completed for each structure.
Maintenance of other authorised structures
This primarily relates to structures authorised under the Highways Act s66. The Highway Authority is responsible for the maintenance of barriers, rails, fences or posts installed under this section. Whenever reports relating to maintenance arise their authorisation shall be reviewed and they shall be removed when they are no longer needed.
Footpath barriers
The type of barriers, rails or fences selected will reflect the evidence of misuse and the need to remove possible danger to lawful users. It will soon be possible to authorise bollards or posts on footpaths using HA80 s66 due to an amendment brought in by the Countryside & Rights of Way Act 2000 s70, where there is a need to safeguard the public.
This type of barrier, for example, can be used to slow down pedestrians, particularly children, where a footpath joins a vehicular road to prevent users from slipping down a steep embankment. They are also used to safeguard path users by preventing or deterring access by unlawful users. Care needs to be taken to maintain access for pushchairs and wheelchairs. A distinction should be drawn between fences alongside and barriers across a PRoW, fences alongside are not normally the responsibility of the Highway Authority except where installed by them.
Bridleway barriers
The Countryside & Rights of Way Act 2000 extends the powers of HA80 s66 to include bridleways. Once this is in force s62 will no longer be used for issues relating to public safety. Location of bridleway barriers is paramount due to the additional space required to manoeuvre a horse. Barriers should be provided a safe distance (4m) away from any road for horse riders and bridleways that may receive large groups of walkers. Structures should not be in the middle of a long route where speed of cyclists and horse-riders could be higher. Injury to users must be considered and avoided. The type of structure will reflect the evidence of misuse and the need to prevent access by motor vehicles (including motorcycles). The structure will be designed to allow easy access for horse riders, cyclists and pedestrians (including pushchairs and wheelchairs) and must leave a minimum width of 1.525m. Improvement can also refer to alterations to existing structures such as providing horse latches on gates or the installation of a kissing gate for better access for all. Landowners who have private vehicular rights must also be considered.
General power of improvement [HA80 s62]
S62 may still apply in certain circumstances, although it should only be considered where it is not possible to justify authorisation under s66 on grounds of public safety.