23rd November 2023
Q. We recently bought an additional piece of land adjacent to a river. It has a public footpath running along the river and about 4 metres from the river. Walkers and their dogs stray from the path in some areas to access the river and this is causing erosion on the river bank. Are we allowed to fence both sides of the path to prevent walkers straying from the path and to prevent further erosion, also to give us privacy to enjoy our land?
A. This situation raises a familiar practical issue for landowners who are willing to accommodate public rights of way but also want to protect their private rights of use and privacy. At the basic legal level, the public footpath must remain open at all times for use, but the private land either side of it may also be protected and the public have no basis to insist on being able to go beyond the limits of the official route and width of the footpath. Any walkers who stray off the official route are arguably trespassing. Whilst the landowners are not likely going to pursue that potential legal claim, they can generally seek to enforce their private rights through boundaries such as a hedge or fence, which might have the consequence of preventing any further straying.
On a practical level, the footpath will need to be a specific width across when measured from inside each fence line. That width will either be recorded on the Definitive Map and Statement, or will otherwise be a minimum set by regulation or required by the specific local authority where both sides are enclosed. The sensible approach would be to contact the relevant local authority and seek clarity on what minimum width would be required for this particular footpath to be enclosed on both sides.
The landowners should also be aware of the risks caused by the walkers and dogs leaving the footpath. If simply random straying from the footpath, there may be no issue, however if there is some consistency and repetition as to where the public leave the path, this might give risk to a potential claim for an expansion of the public right of way over time, or even a new additional route alongside the existing one. This risk appears minimal on the current description, but the landowner may wish to proactively remove that risk by lodging a section 31(6) Highways Act 1980 deposit to declare the limitations of the public rights of way over the land.
Lastly, the ongoing damage to the river bank and/or risk of potential harm being suffered by the public in relation to that erosion may both expose the landowners to legal challenges. To minimise this risk, the landowners should ensure clear communication to the public on the limits of the official footpath, whether or not a boundary is installed. These potential issues should also assist in any negotiation with the local authorities about the need for and location of the desired fence lines.