Farmers, growers, and land managers across the country are experiencing a greater volume of visitors to the countryside than ever before.
The safety of members of the public and of farm animals is of utmost importance. One way in which you could help keep people and livestock safe is to use fencing along public rights of way.
Fencing along public rights of way
Whilst the increased number of visitors to the countryside provides opportunities to promote great British farming practices, it has also brought about many issues.
In order to mitigate against some of these issues (eg. trespass, livestock worrying or increased level of safety if cattle are present) it may suit your farming business to erect a fence a long a footpath or public right of way.
For example, a fence may be erected to separate members of the public from livestock.
For more information on livestock and public rights of way, check out our NFU Business Guide, which give an overview of the considerations when grazing livestock on public rights of way.
However, there are important limitations and restrictions to this that you must carefully consider beforehand to avoid any future complications.
When a right of way is recorded on the ‘definitive map’, this becomes a legal record of its existence. In some instances, the definitive map and accompanying statement may record additional information about a right of way, including its width, however, this is not always the case.
Where a right of way lies between two boundary features (e.g. a track between two hedges), it is usually presumed that the right of way covers the whole of the track between the two features. However, this presumption can be displaced by other evidence showing that a different width applies, such as a different width shown on the definitive map.
If this is not recorded on the Definitive map and there is no other evidence regarding the width of the route, the right of way needs to be sufficiently wide for two users to pass safely; on a footpath, this will be based on walkers, whereas on a bridleway this needs to take account of horses. Minimum widths are specified for certain circumstances, such as re-instatement after ploughing, and these can give a rough idea of what the minimum that is likely to be considered reasonable. These widths are:
- 1m for a cross-field footpath;
- 1.5m for a field edge path;
- 2m for a cross-field bridleway; and
- 3m for any other route
It is important to remember that the above widths are minimum widths which only apply in certain circumstances, and do not set a general rule regarding the width of a right of way. It would be sensible to allow a slightly greater width than this if fencing on both sides of the right of way to allow a buffer and to ensure that the route can be used safely and conveniently by members of the public without coming into contact with the fencing.
Any restriction placed on the legal width of a public right of way is an illegal obstruction and must be removed, so fencing cannot cross the right of way without the appropriate consents being in place, even if a gate is provided. It is also important to ensure that the full width of the right of way is available to users, as fencing on the right of way could be regarded as an obstruction.
It is always advisable to contact your Local Authority before carrying out any work that may affect the width, condition or character of any public right of way.
Local authorities can help
It is important to consult your local authority public right of way fencing guidance to ensure that you understand the local policies in this area.
It is also important to consider other relevant issues which may apply, for example, on common land there are specific restrictions on the erection of fencing.
It is also important to consider the safety of users on the public right of way, and ensure that any fencing is safe and suitable for the location. Particular care should be exercised when using barbed wire or electric fencing, for example, by allowing a greater width between the fences to ensure that users are able to pass safely and/or use the full width of the right of way without contacting the fence.
Warning signs should always be displayed on electric fencing at regular intervals. In some areas, local authorities have guidance regarding the distances they consider acceptable between rights of way and barbed wire/electric fencing; these are not legal requirements, but local rights of way officers are likely to use that guidance when exercising their functions and will give an indication of what is likely to be accepted locally.
It is always important to ensure that fences, gates and stiles are safe and suitable for their location. Current HSE guidance includes a recommendation that fencing for bulls is at least 1.3 metres high and suggests considering using electric fencing 0.5 metres inside the field boundary for additional security where required.
As well as reducing the risk of contact between livestock and members of the public, this approach may be useful to prevent members of the public and their dogs wandering off the right of way, particularly if there are biosecurity concerns.
It is important to ensure that any such structures on your land are authorised, as obstructing a public right of way can be a breach of the cross-compliance rules and can lead to BPS/agri-environment penalties being imposed, as well as being an offence. Defra will in the coming months confirm the regulatory position post cross compliance, which comes to an end at the end of 2023.
In the meantime for 2023, public rights of way may form part of the required 1 metre or 2 metres ‘protection zone’ margins along watercourses (and hedges it is a 2 metre strip measured from the centre of the hedge outwards) under GAEC 1 and 7a respectfully. When they do, the rules of GAEC 1 still apply but should not limit public access. In terms of GAEC 7a, a farmer must not cut or trim a hedge between 1 March and 31 August (inclusive) unless the hedge overhangs a highway, road or footpath over which there is a public or private right of way and the overhanging hedge obstructs the passage of, or is a danger to:
- horse riders
Or if the hedge is dead, diseased, damaged or insecurely rooted and, because of its condition, it or part of it, is likely to cause danger by falling on to a highway, road or footpath; or obstructs the view of drivers or the light from a public lamp.
GAEC 7b covers Public Rights of Way under cross compliance; these rules apply only to visible public rights of way. This means, it is visible as a route to a person with normal eyesight, walking or riding along it. This includes any rights of way that would be visible if the rules were being met. For more information on cross compliance please refer to the guidance found: GOV.UK | Cross Compliance 2023.
When fencing alongside public rights of way, there are a number of considerations that farmers will have to take into account. For example, fencing would obviously have to be sufficient to ensure that the animals could not come into contact with the public, and care should be taken if using electric fencing so that members of the public are not injured (e.g. displaying appropriate signs warning that the fencing is electrified). It is important to ensure that any fencing erected does not obstruct the right of way.
In addition, animal welfare considerations have to be taken into account. For example, fencing should not make it unduly difficult for livestock to access water, which may be particularly difficult with cross-field paths.
If the fencing would alter the field boundary, consideration will have to be given to the BPS and agri-environment agreements and applications in place . The change may need to be notified to the RPA, and may have implications for the payments received, particularly if the path is effectively removed from the agricultural area of the field. Permanent fencing would be viewed as changing the parcel boundary for BPS purposes, therefore an RLE 1 form would need to be submitted to get the maps updated. It is important to note that this could then impact the payment received.
If the parcel in question is in an agri-environment scheme, it would be advisable to discuss the situation with the RPA and Natural England and agree a way forward to avoid triggering penalties (which can be substantial, especially if they are backdated to the start of the agreement).
If in doubt, you should take independent professional advice regarding your specific circumstances.
NFU CallFirst can help, call: 0370 845 8458.