Description

BADFA

Bushey and District Footpaths Association

BADFA is a Registered Charity committed to caring for public rights of way
Centred in Bushey, Hertfordshire, but taking a wide view. Incorporating Watford Fieldpath Association (Founded 1898)
Description
Description

Maintaining Structures:
Gaps, Gates & Stiles

A paper 'kite' flown to attract comment and test the idea.
Comments requested E mail: chris@badfa.org.uk by Chris Beney

Updated Jan 2016

Context
It is probably non-contentious to say that most path structures (stiles etc) are unsatisfactory in some way. And mostly that is not because they are not stock-proof enough but because they are unsatisfactory for path users beit high steps, wobbly steps, narrow 'V' kissing gates, pools of mud or the dreaded barbed wire.

Who is responsible for putting them right?

Any stile, gate, or other similar structure across a footpath or bridleway shall be maintained by the owner of the land in a safe condition........ Highways Act 1980, s146.



That is clear enough, or is it?
It is clearly 'the owner of the land' who is responsible, but just what land is being referred to? It is not spelled out in the act. Is it the land under the path? Typically the farmer or the freeholder [the Landholder] who owns this. Is it the path itself, two spits deep according to Lord Denning, as much as is needed for the path according to another judge, if so the owner is typically both the Highway Authority and the Landholder. Is the land referred to the land either side of the path, because it says 'structure across a footpath' not 'on' or 'in' one? I doubt that. Take a case where there is a wide field gate put across a narrow path. What part of the gate has to be maintained in a safe condition? Surely only the part 'across the path', hence the words. Though in practice with such a gate the whole gate would probably need to be maintained to achieve that.

So?
Given the statute is talking about paths, isn't it most likely that it is the owner of the path that is responsible? That is, in many cases, but by no means all, the Highway Authority (under Highways Act 1980 S263 see Ownership page of this site) and the Landholder. This view is not accepted by many at present, as much because it has not been thought about than anything. People have assumed a 'landowner' is always eg the farmer rather than the Highway Authority and this is in line with the muddled thinking where many highway authorities still completely fail to treat their paths as their property, even seeking permission from the 'landowners' to put waymark posts etc. in the path when at most all they need to do is consult.

And furthermore..
Something that in my view reinforces the above thesis is the wording of the very next section of the Highways Act, namely section 147. Here the statute speaks of the owner of land crossed by a footpath or bridleway. That land (crossed by the path) clearly cannot include the land of the path itself and seems to me to refer unambiguously to the 'underlying landholder'. So thesetwo adjacent sections of the Act use substantially different wording, should parliament not be presumed to have done this deliberately? And if so what other interpretation is likely?



In practice
There is an interesting implication, from a path users' viewpoint, that flows from the concept that it is the owner of the path who is referred to in s146. It seems to allow, indeed to require since it is a duty, the authority to act straight away in many cases, without the 15 days notice. It also makes them directly responsible for maintenance in many cases and open to complaint if they were to exercise the discretion of s146(2) in their favour. It also allows them to do work on these structures without challenge that they are exceeding their powers.

And last but not least
I look forward to having this hypothesis tested, and would be grateful for any reasoned feedback, favourable or unfavourable.



Chris Beney Phone: 01923 211113 / 240107 E mail: chris@badfa.org.uk
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