We have been inundated with queries regarding rights of way (RoW) and hope to cover off on as many queries as possible over the coming weeks, so please do get in touch by email.

Recurring themes running through many of these queries are:

1 Purpose of the user – for example, can the RoW be used by heavy machinery to draw felled timber where traditionally it was accessed by small tractors to herd cattle?

2 Maintenance – who is responsible for maintaining and repairing the RoW?

3 Liability, indemnity and insurance – who is responsible should an accident occur along the RoW?

The requirement to register by the Land Registry does not deal or help in any way with those issues which, in my view, is a serious flaw. In the absence of written agreement, it is often the history of use and repair of the RoW which will determine the extent of the use and repairing obligations.

If the person who owns the land over which the RoW exists does something that causes the RoW to fall into disrepair, he may be liable in nuisance for the interference with the use of the RoW.

For example, where the owner of the land places speed ramps on the roadway (over which the RoW exists) which gave rise to potholes, he would be liable for disturbance of the RoW if the ramps were retained without the way being repaired.

The right as opposed to the duty of the user of a RoW to repair the way is well established in case law. The history of the user during his/her period of use will determine what repairs the user of the RoW can effect. In one leading case, the defendant, who had use of a RoW had cleared away bushes and briars on the farmer’s land over which the RoW was exercised, thereby doubling the width of the overgrown lane, and proceeded to resurface it.

The court recognised the entitlement of the user of the RoW to keep the land over which the RoW existed in good repair and condition for whatever use he was entitled to make of it. However, in repairing the way the user of the RoW is restricted from doing something which adversely affects the owner of the lands use of that land or imposes an excessive burden on the landowner.

For example, in another leading case the user of the RoW had put down 700t of stone on a track, which had become impassable at certain times of the year, and in bad weather throughout the 60 years of the exercise of the RoW. In this case the court found that there was no reason why the pre-existing state of the way should not continue and the user of the RoW had trespassed by laying the stone road.

In another leading case it was held that where the user of a RoW inflicts serious damage to roads and then refuses to repair them, this amounted to an unlawful interference with the landowners right to use the land for his own purposes. In that case the judge refused to decide whether the defendant was entitled to use traction engines, motor lorries and caterpillars over the RoW for the purpose of removing timber over the landowners avenues and farm roads.

What he did decide was that if the user of the RoW was going to use this heavy machinery, he is not entitled to destroy the plaintiffs avenues and farm roads and to render them useless to the plaintiff for his own purposes or to reduce then to such a condition as to be dangerous for the plaintiff to use them for his own purposes.

The position was summed up in the judgement where it provided that it is the duty of the person using the RoW to do all that is necessary to make the road available for himself and to protect the owner of the road from unnecessary injury.

Whether the owner of the land over which the RoW exists or the user of the RoW owed a duty of care under the Occupiers Liability Act 1995 depends on who is regarded as the “occupier” of the premises. Although the user of a RoW generally has a lack of control over the exercise of the RoW by the owner of the land, there are circumstances where he may be deemed to be the occupier by reason of his control over the lands over which the RoW exists.

Where the user of the RoW has constructed the way, then he is likely to be held to be liable for any danger arising on the way caused by a breach of duty in construction, such as a pothole caused by inadequate compaction of the subsurface. In determining whether the occupier of the premises is the owner of the land or the user of the RoW, the court will have regard to who controls or admits access, the purpose of the particular feature of the premises which caused the injury, who installed it, who it benefits and by whom it is maintained.

Where there is more than one occupier, the extent of the duty of each occupier towards an entrant depends on the degree of control each of them has over the state of the premises and the particular danger thereon. Consequently, both the owner and the user of the RoW could owe a duty of care under the Occupiers Liability Act.

Disclaimer: The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information contained in this article, Aisling Meehan Agricultural Solicitors does not accept responsibility for errors or omissions howsoever arising.