Public rights of way during Covid-19 pandemic
Our Agriculture and Rural Affairs team is advising farmers and landowners across the country; Esther Stirling, who heads the team, put this question Laura Greenman, one of our specialist planning lawyers, who advised:
“Unfortunately it is still a criminal offence to obstruct a public right of way, even at times like these. There are no defences to this offence and it will be for the local highway authority to decide whether to bring a prosecution. This means there is usually an opportunity for a sensible discussion to try to resolve any issues before criminal proceedings are brought.
While increasing amounts of legislation are coming forward to address the issues and concerns arising from the Covid-19 pandemic, the use of public rights of way has not yet become, and we suspect is unlikely to be seen as, a priority.
Councils urged to show leniency during pandemic
The government has already told councils in other capacities (for example, planning) that leniency should be exercised to ensure that we are best placed to tackle the pandemic, and that should ensure that sensible decisions are taken across the board. This is inevitably a balancing exercise and councils will need to weigh up whether blocking off public rights of way is genuinely in the interests of minimising or preventing the spread of the virus (possibly difficult to demonstrate) against the ability of people to get their daily exercise by walking, running or cycling.
We would therefore hope that the government’s message of common sense would extend to local highway authorities’ response to information about public rights of way being blocked off by farmers and adjoining landowners. However, it will be difficult for farmers to demonstrate that doing so is genuinely necessary in the interests of health and safety, and the potential consequences are severe.”
Esther added: “Where there are private rights of access, rather than public rights, disputes often arise if the lawful use of the right is obstructed, even partially. Courts can grant injunctions to require a private right of way to be reinstated. It is understandable that landowners may not want their land to be crossed a great deal at this time, but I would firmly advise against doing anything that might block or even partly obstruct a private right of way. Everyone should be exercising common sense, but also real consideration for their neighbours. A friendly discussion might help parties to come to an understanding about how rights can be exercised carefully so as not to cause concern.”