Now that’s a good question. For many highway authority managers the answer makes them distinctly uncomfortable. Most that I have dealt with have been in denial of the simple statement laid out in section 263 of the Highways Act 1980….”every highway maintainable at public expense together with the materials and scrapings of it,vests in the highway authority”.
Most public rights of way are publicly maintainable and therefore “vest” in the highway authority for so long as the path remains a public highway. Landowners do not own public paths across their property although they can use the land for certain purposes. Landowners usage and interest is secondary to the highway authority.
Culturally of course we all doff our caps and feel awkward in certain circumstances walking on “private land”. It’s only natural that this long established sense of inferiority to private landed interests extends to Council managers responsible for keeping public access open. Time and again here in Kirklees the law is seen as a bit of an embarrassment and “little arrangements” are made between those charged with enforcing the law and those breaking it.
Paths are built on, moved and blocked across the district on the strength of a nod and a wink from council managers and councillors acting as National Farmers Union representatives. These little arrangements are then protected by the substantial indifference of the Council as an organisation to do anything other than protect the seedy status quo.
This little piece sums up the situation very well and the final paragraph on why ownership matters is particularly relevant in terms of how both landowners and council managers currently behave.
Why does ownership matter?
If the local ‘landowners’ understood that they do not own the paths, or at least that any ownership is subservient to the highway authority’s ownership, then they might not feel such a sense of personal possession of these little public highways. And then they might treat them more like they treat the public roads which cross their holdings, and be less concerned at public use and less likely to try to move or to disturb these little ways.
If Highway Authority officers fully understood that the paths are their official property then that would help to direct their actions when for example local ‘landowners’ plough up their paths or obstruct them. It is the Authority’s property being messed with, it does not require even-handedness between the underlying landholder and the public.
And in certain cases the Path Officers can act at once under common law as owners of the paths without waiting for the sometimes tediously lengthy and time consuming statutory processes. Senior management at at least one Home Counties Highway Authority accept this in principle but have seemed reluctant to act, even in clear-cut cases (eg A footpath, part of the London Loop, complete pre Christmas blockage some years ago).