This is the introduction, contents and summary of an in-depth article on the use of S.147 by highway authorities. Each section of the full article is linked in the contents.

Introduction

It is a criminal offence to obstruct a highway. The erection of a stile or gate in a highway, even a footpath, where there was none (ever) before, is likely to be an obstruction and a criminal offence. It will not be an obstruction if the highway was dedicated subject to the right to keep in place a gate or stile or other works, and either the limitation on the dedication can be proved, or it is recorded as such in the definitive statement.

Land managers may wish to erect fences on land crossed by a highway in order to graze livestock on that land, or to exclude animals from it — for example, to exclude deer or rabbits. In that case, they will wish to put in gates, stiles or other works to continue the fence across the highway.

IPROW has produced an information note to provide assistance to members of the Institute of Public Rights of Way and Access Management (IPROW) in the use of s.147, and also of s.147ZA, of the Highways Act 1980. These provisions enable certain local authorities to authorise stiles, gates and other works across public footpaths and bridleways to enable efficient use of the land for agriculture, and to enter into agreements with land managers to improve existing stiles, gates and other works for the benefit of persons with mobility problems. Such authorised works, properly installed and maintained, will not give rise to a criminal offence.

The note is available only to members. It is written from the perspective of members practising in local authorities, and particularly highway authorities, but may also be of interest to members practising in other roles. Published here are a list of contents of the note, and a summary. For the full note, log in if you are a member, or find out more about membership.

Contents

  • General remarks
    • Introduction
    • Background
    • Guidance
    • Summary
  • S.147: what can be authorised: subsection (1)
    • Subsection (1)
    • Footpaths and bridleways
    • Representations by owner, lessee or occupier
    • Agricultural land
    • Competent authority
    • Representations
    • A public path that crosses the land
    • ‘Securing that the use, or any particular use, of the land for agriculture shall be efficiently carried on’
    • Stiles, gates or other works
    • Cattle-grids
    • Authorising works to an alternative specification
    • Preventing the ingress or egress of animals
    • Needs of persons with mobility problems and guidance on such needs
    • Other considerations
    • Other requirements
  • S.147: conditions on authorisations
    • Imposing conditions
    • Subsection (2)
    • Redundancy conditions
    • Conditions for maintenance
    • Conditions as regards undue inconvenience
    • Other conditions
    • Retrospectively-imposed conditions
  • S.147: giving an authorisation
    • Policy
    • Discretion
    • Fees
    • Representers and successors in title
    • Authorisation in writing
    • Delegation
    • Location
    • Carrying out the authorised works
    • Limitation on the public path
    • Recording authorisations
    • In the definitive statement
    • In a record of authorisations
    • In the register of local land charges
    • Retrospective authorisation
    • Revocation
    • Challenge
    • Disclosure
  • S.147: enforcement
    • Breach of condition
      • Enforcement under s.143
      • Enforcement under s.146
      • Deemed condition to maintain?
    • Recognition of higher status
  • S.147ZA: agreements relating to improvements for benefit of persons with mobility problems
    • Introduction
    • Guidance
    • Relevant structure
    • Qualifying works
    • Terms of agreement
    • Conditions
    • Agreement in writing
    • Retrospective agreement
    • Effect on existing limitation
    • Recording agreements in the definitive statement
    • Breach of condition
  • Glossary

Summary

1. S.147 is a relatively short provision aimed at addressing a particular issue where the public interest in unrestricted access to the highway comes into conflict with the public and private interest in securing the efficient use of agricultural land by erecting fencing across public paths. Its application will generally be straightforward but a number of legal and practical issues arise which are addressed in this note.

2. A land manager must make representations in writing seeking to erect the works on a public path, detailing the nature and exact location of the works.

3. The authority (usually but not necessarily the highway authority) may in writing authorise the works, provided that the representations are made by the owner, lessee or occupier of agricultural land, that the works are for securing that the use of the land for agriculture shall be efficiently carried on, and it is expedient that stiles, gates or other works for preventing the ingress or egress of animals should be erected on the public path.

4. The works may comprise a stile or gate, or other similar works (such as a turnstile). It seems that the works cannot include a cattle grid (see Cattle-grids at para.95 below).

5. The authority should impose in the authorisation appropriate conditions for maintenance and for enabling the right of way to be exercised without undue inconvenience to the public. The authority must, in deciding what conditions to impose, have regard to the needs of persons with mobility problems.

6. The requirement for representations should be distinguished from an ‘application’: there is no provision for an application under s.147, nor is the authority empowered to grant an ‘application’. An authorisation relates to the land and not to the representer: the authorisation merely is communicated to the representer. Once authorised, the public path becomes subject to a lawful limitation provided that the works are maintained in compliance with the authorisation and conditions contained in it.

7. In default of compliance, the works cease to be lawful and may be treated as if they were (entirely) an illegal obstruction: the authority may then take enforcement action against the appropriate land manager (who may not be the representer).

8. S.147ZA enables the authority to enter into agreements with land managers to make works of improvement to stiles, gates or other structures on public paths. Such an agreement must relate to an existing lawful limitation (including a limitation authorised under s.147). The works must be for replacing or improving the structure which will result in a structure that is safer or more convenient for persons with mobility problems. The agreement may provide for the costs to be funded by the authority, the land manager, or both. The agreement must have the consent of any other owner, lessee or occupier of the land (apart from the land manager who enters into the agreement).

9. The agreement should be subject to conditions for the maintenance of the structure, and for enabling the public right of way to be exercised without undue inconvenience. The public path becomes subject to a lawful limitation provided that the works are maintained in compliance with the agreement and conditions contained in it.

10. In default of compliance, the works cease to be lawful and may be treated as if they were (entirely) an illegal obstruction: the authority may then take enforcement action against the appropriate land manager (who may not be the party to the agreement).