The BBT

Widths for ‘new’ paths created by diversion orders

The Byways and Bridleways Trust is a prescribed body for the statutory service of notices of orders affecting public rights of way. Most orders are quite routine, properly made, and the changes proposed are reasonable in local context. The Trust does not object to such on doctrinaire grounds, or because of a dislike of the reason why the diversion is sought. Recently, the Trust has noticed a trend for diversion orders to be of questionable validity in relation to the width specified for the ‘new’ route of the diverted path. Three situations now arise regularly:

No width is stated for the new path.

The new path is expressed to have a ‘minimum width’, or be ‘at least’ X metres wide.

The new path is expressed to have an ‘approximate width’.

Where no width is specified, the order simply fails to meet the requirements of the form of order specified in the regulations.

The Trust takes the view that a ‘minimum width’ is meaningless and unacceptable. A minimum width of, for example, 2 metres envisages a width of, for example, 10 metres. Such a ‘specification’ in the definitive statement (which would result if such an order is confirmed as made) could lead to later disagreement and conflict, particularly with regard to matters of position, extent, repair and obstruction. The Trust knows of cases where absence of a proper specified width is causing problems on allegedly obstructed routes. How can a person, highway authority, or court, decide whether any path is obstructed if its extent is not specified in writing, or defined by clear physical features? It is unacceptable to bring about more potential situations of this sort, where a clear specification can be insurance for the future.

Some authorities tell the Trust that they use ‘minimum widths’ because such are specified in the ‘Ploughing Rules’ (schedule 12A of the Highways Act 1980). In the Trust’s view this specification is not safe to import to diversions because, i) the same provisions specify ‘maximum widths, and, ii) the same provisions only allow reliance on a minimum where actual widths are not known, and a diversion order is an opportunity to specify a width clearly.

With regard to both ‘minimum’ and ‘approximate’ width specifications, the Trust takes the view that neither forms are possible to achieve through a legal creation process, or, if they are possible, they are not necessary or desirable. On ‘possibility’, the Trust’s view is that the substitution of the new path is, in law, an act of ‘creation’ and that it is not possible to create a public right of indeterminate extent. In the alternative, if it is possible, it is not anyway acceptable or desirable to create an indeterminate right where a reasonably defined right can equally well be created by the same instrument:

Where the new path is over ‘open ground’, then there is absolutely no reason why a straightforward ‘exact’ width, e.g. 1.8 metres, or 3 metres, cannot be specified; some order-making authorities do this. The new path is, after all, being put on to a blank canvas.

Where the new path is being put on to an existing physical feature, e.g. a farm track, then the width of that track is measurable. Where the width of the track varies (as is commonplace) the order should adopt an engineer’s approach and specify the width between limits, e.g. ‘varying between 2.3 and 2.8 metres according to the width of the track’ Some order-making authorities do this. Alternatively, the order width could say ‘3 metres wide with the centre line of the new path on the centre line of the existing track.’ The public should not be actually or potentially disadvantaged for the want of proper specification.

Where certain features, such as gateways, or bridges, create a ‘pinch-point’, these should be properly described and recorded in the order schedule as limitations

Some authorities are making orders with stated widths that are simply too narrow for practical use by the public. The Trust may object to these on substantive, rather than technical, grounds.