Right of Way England

Navigating the legal landscape of property ownership requires a comprehensive understanding of how third parties may access your land. A Right of Way England represents a specific type of easement that grants a person, a group, or the general public the legal right to pass over a defined strip of land owned by another party. This legal framework is essential for maintaining connectivity while balancing the private interests of landowners with broader social and logistical needs.

For property developers and homeowners alike, these rights can significantly impact the feasibility of a project. Whether you are considering a new-build development or a simple residential extension, identifying these encumbrances early is vital. At Approved Planning, we integrate legal context with architectural precision to ensure your development goals remain achievable within these constraints.

Key Takeaways

• Legal Definition: A Right of Way is an easement that allows specific or general access across private land.
• Types: These are split between private easements (for specific neighbours) and public rights of way (for the general public).
• Documentation: Most rights are recorded on the Land Registry title deeds or the local authority’s Definitive Map.
• Development Impact: Existing rights can restrict building footprints, access points, and site layouts.
• Modification: While complex, some rights of way can be diverted or extinguished through formal legal and planning processes.
• Maintenance: Responsibilities for upkeep generally depend on the specific terms set out in the deeds or statutory law.

Defining Right of Way England

In the context of English property law, a Right of Way England is a legal entitlement to travel through a specific route on land owned by another. This entitlement does not grant ownership of the land itself, but rather a non-possessory interest that stays with the land, regardless of who the current owner is. It is a critical component of land law that ensures landlocked parcels remain accessible and public networks remain functional.

Common examples include:

• A shared driveway providing access to a house situated behind another property.
• A public footpath crossing a farmer’s field or a private estate.
• Service alleys located behind Victorian terraced housing.
• Access tracks used by utility companies to reach essential infrastructure.

Table 1: Primary Categories of Rights of Way

Category	Beneficiary	Typical Usage	Legal Source
Private Easement	Specific landowners	Shared drives, private paths	Title Deeds / Express Grant
Public Footpath	General Public	Walking, running, dogs	Definitive Map / Statute
Bridleway	Public (Walkers/Horses)	Riding, walking, cycling	Countryside and Rights of Way Act
Byway	Public (All traffic)	Vehicles, horses, pedestrians	Highways Act 1980

The Legal Foundation of Easements

Most private rights of way in England are classified as easements. For a right to qualify as a legal easement, it must satisfy four specific criteria established in the landmark case of Re Ellenborough Park. There must be a dominant tenement (the land that benefits) and a servient tenement (the land that is burdened by the right).

The right must also “accommodate” the dominant land, meaning it must provide a tangible benefit to the property rather than just a personal benefit to the owner. Furthermore, the owners of the two pieces of land must be different people, and the right must be capable of forming the subject matter of a grant. This technical foundation is what we examine when conducting initial feasibility assessments for our clients.

Creation of Private Rights

Private rights of way are typically created in one of three ways. The most common is an Express Grant, where the right is explicitly written into the title deeds or a transfer deed (Form TR1) during a sale. This provides the highest level of legal certainty for both the developer and the landowner.

Alternatively, a right may be created by Prescription. This occurs when a person has used a path openly, without force, and without permission for a continuous period of at least 20 years. Finally, rights can be created by Necessity, usually when a piece of land is sold in a way that leaves the remaining portion completely landlocked without a way out.

Public Rights of Way (PROW)

Public rights of way are distinct from private easements. These are highways that the public can use at any time. They are protected by local authorities, usually County Councils or Unitary Authorities, who maintain a Definitive Map and Statement. This document serves as the legal record of where public paths exist in England.

Types of Public Access

Public Footpaths: These are for pedestrians only. While you may take a pram or a wheelchair, there is no right to ride a bicycle or a horse on these paths. As developers, we must treat these as significant constraints, as blocking a public footpath without a legal diversion order is a criminal offence.

Public Bridleways: These allow for pedestrians, horse riders, and cyclists. Cyclists must give way to walkers and riders. The physical requirements for a bridleway are often wider than a footpath, which can impact the site layout and architectural design of a project.

Restricted Byways: These allow for all non-motorised traffic, including horse-drawn carriages. Byways Open to All Traffic (BOATs) permit all users, including motorised vehicles, though they are primarily used like footpaths or bridleways.

The Definitive Map and Statement

If a route is marked on the Definitive Map, it is conclusive evidence in law that the public has a right of way. However, the absence of a path from the map does not necessarily mean a right doesn’t exist. Under the “once a highway, always a highway” principle, historical rights can sometimes be added to the map if sufficient evidence is provided to the local authority.

We work closely with clients to cross-reference National Library of Scotland maps, tithe maps, and local archives. This ensures that a Right of Way England hidden by overgrowth or historical omission does not jeopardise a planning application at a late stage.

Development Constraints and Mitigation

The presence of a Right of Way England provides a unique set of challenges during the planning process. A common misconception is that owning the land gives you the right to move or close a path. In reality, the planning system treats these rights with significant weight, and any alteration requires a formal legal process separate from the planning permission itself.

Impact on Site Design

When we prepare architectural drawings for a client, we must identify the exact route of any easement. Building over a private right of way can lead to an injunction or a claim for damages from the beneficiary. For public rights, the local planning authority (LPA) will usually consult the Ramblers’ Association or Open Spaces Society.

To mitigate these risks, we often propose bespoke solutions such as:

• Incorporating the right of way into the green infrastructure or landscaping plan of the site.
• Designing building footprints that maintain the required legal width and vertical clearance.
• Applying for a Public Path Order (PPO) under the Town and Country Planning Act 1990 to divert the path if it is necessary to enable the development.

The Diversion Process

If a development cannot be achieved without moving a public right of way, a diversion order must be sought. This is not a guaranteed outcome. The authority must be satisfied that the new route is not substantially less convenient to the public. Objections from the public can lead to a local inquiry, which can add significant time and cost to a project.

Maintaining and Obstructing Rights of Way

Ownership of the land (the servient tenement) carries the responsibility of not obstructing the right of way. An obstruction can be anything from a locked gate to a new fence or even a parked vehicle. In England, the owner of a public right of way is usually responsible for maintaining any stiles or gates in a safe condition.

Interference with Private Easements

If you own land burdened by a private Right of Way England, you must not “substantially interfere” with its use. What constitutes “substantial” is a matter of degree. For example, narrowing a 5-metre wide access track to 3 metres might not be substantial if the user only needs 2 metres for a standard car, but it would be if they require access for heavy farm machinery.

If we are instructed to assist with a Certificate of Lawfulness or a feasibility study, we assess the historical usage of the easement. This evidence helps determine the extent of the right and informs how we can design around it without triggering legal disputes.

Commercial Considerations for Developers

For professional developers, a Right of Way England is often a valuation issue. A site burdened by multiple public paths may have a lower market value than a “clean” plot due to the reduced developable area and the costs associated with diversions. However, these sites also offer opportunities for creative placemaking.

We advocate for a proactive approach. Engaging with the Local Highway Authority (LHA) before submitting a full planning application allows us to streamline the process. By securing an “in principle” agreement for a diversion, we reduce the risk of a refusal based on the obstruction of the highway.

Ransom Strips and Access Rights

Sometimes, a minute strip of land between a public highway and a development site is owned by a third party. This is known as a ransom strip. Even if the developer has planning permission, they cannot cross this strip to reach their site without a right of way. In these cases, we assist in negotiations or identify alternative access points through detailed site appraisals.

Common Myths Regarding Rights of Way

There are several misconceptions that can lead property owners into legal difficulty. It is essential to base decisions on technically sound legal advice rather than anecdotal evidence.

1. “If it’s not on my deeds, it doesn’t exist.” As mentioned, rights can be created by long use (prescription) and might not be registered yet.
2. “I can put a gate across a public footpath if it’s not locked.” While stiles and gates are sometimes allowed for livestock control, you generally need permission from the local authority to install new ones.
3. “A right of way expires if it isn’t used.” In England, a right of way is rarely lost through simple non-use. It usually requires a formal “Extinguishment Order” or evidence of clear abandonment, which is very difficult to prove.
4. “The council is responsible for all path maintenance.” The local authority usually maintains the surface of public paths, but the landowner is responsible for boundary fences and ensuring vegetation doesn’t encroach from the sides.

The Section 257 Diversion Process

Under Section 257 of the Town and Country Planning Act 1990, a local authority may authorise the stopping up or diversion of a public footway if it is satisfied that it is necessary to allow development to be carried out. This is a critical tool for our team at Approved Planning.

Step-by-Step Diversion Guide

• Step 1: Planning Permission. You must generally have at least a “resolution to grant” planning permission before a Section 257 order can be made.
• Step 2: The Application. We submit a formal application to the local authority, including detailed plans of the existing and proposed routes.
• Step 3: Consultation. The authority consults with statutory bodies and the public. A notice is usually posted on-site for 28 days.
• Step 4: Confirmation. If there are no objections, the authority confirms the order. If there are objections, the case may go to the Secretary of State.
• Step 5: Certification. Once the new path is constructed to a satisfactory standard, the authority certifies the change, and the old route is legally closed.

Rights of Way and Permitted Development

When utilizing permitted development rights, homeowners must be especially careful. Unlike full planning applications, where the council might flag a right of way during the consultation, the prior approval process or a simple certificate of lawfulness might not always highlight a private easement.

Building an extension under permitted development that blocks a neighbour’s private right of way is still a breach of civil law. We highly recommend a full title search and a feasibility assessment before starting any works, even those that do not require an expressed planning application. This protects you from future litigation and the potential requirement to demolish the completed structure.

Advanced Insights: The 2026 Cut-off Date

For years, there was a significant legal deadline looming over Right of Way England. The Countryside and Rights of Way (CROW) Act 2000 originally set a cut-off date of 1 January 2026. After this date, many historical rights of way that were not recorded on the Definitive Map would have been extinguished.

However, the government recently announced a stay or potential repeal of this deadline in England. This means that the risk of “discovered” historical rights remains a factor for landowners. Ensuring your land is protected via a Section 31(6) Deposit—a document that declares you have no intention to dedicate new rights of way—is a proactive way to mitigate this risk.

Case Study: Conflict in Residential Infill

Small-scale developers often face challenges with “infill” sites—unused land between houses. In one instance, our team expertly navigated a situation where a proposed dwelling was located over a pathway used by locals for decades. While the path was not on the Definitive Map, the threat of a prescriptive right claim was high.

We modified the architectural drawings to include a high-quality, lit walkway at the edge of the site, maintaining the community link while securing the footprint for the new home. This bespoke solution satisfied both the local planning authority and the neighbourhood, preventing a costly legal challenge.

Professional Advocacy in Property Law

Dealing with a Right of Way England requires more than just legal knowledge; it requires a strategic approach to design and negotiation. As a holistic consultancy, we act as the bridge between the technical requirements of the Highways Act and the creative needs of property development.

We provide the advocacy needed to represent your interests before planning committees and local authorities. By addressing access issues at the design stage, we help you avoid the pitfalls that often lead to planning refusals or expensive post-completion legal battles.

Frequently Asked Questions

Can a Right of Way be removed?

Removing a right of way is legally challenging. For private easements, it usually requires a deed of release signed by both parties, often involving a financial settlement. For public rights, you must prove the path is no longer needed or secure a diversion order to facilitate development. We can assess your site to determine if an extinguishment is a viable bespoke solution.

How wide should a Right of Way be?

There is no single legal width for a Right of Way England. It depends on the terms of the grant or historical use. However, for new public diversions, authorities often look for a minimum of 2 metres for footpaths and 3 to 4 metres for bridleways. In our architectural drawings, we ensure these dimensions are clearly marked to avoid future disputes.

Who is responsible for the surface of a private Right of Way?

Unless the deeds specify otherwise, the owner of the dominant land (the one who uses the right) has the right to maintain the surface at their own expense. The landowner (servient tenement) is generally not obliged to repair the way but must not do anything to make it worse or unusable. We often review title documents to clarify these technical responsibilities for our clients.

Does a Right of Way affect my planning permission?

Yes. A planning authority can refuse a proposal if it would adversely affect a public right of way. While private rights are technically a civil matter, the existence of a private easement can lead to an “unbuildable” permission if the neighbor refuses to allow the development to obstruct their access. Our feasibility assessments are designed to catch these issues early.

Can I move a public footpath to the edge of my field?

You can apply for a diversion, but it must be approved by the local authority. They will consider whether the new route is significantly longer or less convenient for the public. We help clients present a professional case that balances their development rights with the public’s right to access the countryside.

What happens if I build over a Right of Way?

Building over a right of way without legal authority is extremely high-risk. A court can order the demolition of the building (a mandatory injunction) to restore the right of access. It is always more cost-effective to mitigate these risks through professional planning and legal channels before construction begins.

How do I check for a Right of Way on a property I want to buy?

You should request a local authority search (specifically the LL1 and CON29 forms) and a Land Registry search. However, these may not show prescriptive rights or unrecorded public paths. We provide bespoke site appraisals that go beyond standard searches to identify potential access risks based on physical evidence and historical map data.