Farmers, growers, and land managers across the country are experiencing a greater volume of visitors to the countryside than ever before.
Farmers who keep livestock in fields crossed by public rights of way can be liable to civil and/or criminal proceedings if members of the public are injured by their livestock. Fortunately, such incidents are rare, but when they do occur they are often serious.
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 to separate the livestock and walkers, if appropriate in the circumstances.
Fencing along public rights of way
As well as reducing the risk of contact between livestock and members of the public, fencing may help prevent members of the public and their dogs straying from the right of way, which can be beneficial, particularly if there are biosecurity concerns.
This may not be a viable option in all circumstances, for example if it would prevent livestock from accessing water, and consideration would have to be given to the agri-environment implications, particularly with permanent fencing, e.g. whether boundaries have been altered or ineligible features created.
For more information on livestock and public rights of way, check out our聽NFU Business Guide, which give an overview of the considerations when grazing livestock on public rights of way.
However, there are important considerations which should be taken into account prior to any fencing works to avoid problems at a later date.
Widths
It is important that the fencing does not obstruct the right of way and is not on the legal line of the right of way.
When a right of way is recorded on the , 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 the width 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 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聽help
Some local authorities have guidance specifically relating to the fencing of public rights of way, which can give a helpful indication of the local authority鈥檚 position on fencing. Your local footpath officers should also be able to give information and guidance about the local authority鈥檚 approach.
The NFU鈥檚 panel firms of solicitors will also be able to advise on the legal position if needed.
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.
Safety considerations
It is 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.
Some local authorities produce guidance regarding these types of fencing which can give an indication of how your local footpath officer is likely to view such fencing.
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. 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.
Gates should be appropriate for the circumstances, and appropriate consents should be in place for any gates on the right of a public right of way.
Agri-environment and ELMs
If land is in an agri-environment scheme/ELMs, it is important to be aware of the scheme requirements, and to ensure that fencing is appropriate.
Problems may arise, for example, if fencing reduces the area of a field which is entered into a specific option, particularly if the fencing is permanent and/or the option requires the area to be grazed.
Permanent fencing would be viewed as changing the recognised parcel boundary used for a range of support schemes.
You can read the RPA鈥檚 guidance and processes related to mapping at: .
It would be advisable to check your scheme documents, and consult with the RPA prior to erecting any fencing on land which is entered onto an agri-environment/ELMs agreement. Having a written record of any advice received could be useful in case any issues arise at a later date.
It is worth remembering that while cross compliance has ended as a mechanism to ensure compliance, existing legislation remains in place which covers rights of way and will continue to be monitored, as well as feedback actioned upon that is received by existing statutory bodies.
Professional advice
Every situation is different, so while this article outlines some of the key considerations, it cannot take account of any specific facts or circumstances.
If you would like more detailed advice and guidance about how to proceed in your specific circumstances, or to discuss particular issues or concerns, you should take independent advice regarding your specific circumstances.
The advisers at NFU CallFirst can help, call: 0370 845 8458. The advisers can offer free, initial legal and professional advice. Where more detailed advice is required, they can also arrange a referral to one of the NFU鈥檚 panel firms of solicitors or surveyors.