Hannah Drew
Posted on 17 Apr 2020

Coronavirus (COVID-19) - options for landowners facing busy public rights of way

Landowners and farmers have voiced concerns at the higher than usual volume of walkers using public rights of way crossing their land during the Coronavirus pandemic. There have been reports in the press of landowners restricting the use of these rights of way in order to protect their families and workers... but can they do this?

It has been widely reported that since the introduction of the social distancing rules, the sheer volume of people parking and walking in places like the Brecon Beacons and Snowdonia has been unprecedented. In response, the Welsh Government took steps to close some visitor sites to help keep the public safe. Landowners, such as the National Trust, have also closed their parks, gardens and car parks to the public. This leaves people with fewer choices of location for their single daily outdoor exercise and could be contributing to an increase in the number of walkers using public footpaths.  

Government guidance

DEFRA and Natural England recently published guidance on access to green spaces, which provides that when using public spaces people should implement the social distancing rules effectively, stay local to where they live and stay 2m away from others. The guidance does not suggest that landowners can restrict people from using public rights of way.

At this time of year, farmers have the additional worry of having young lambs and livestock out and an increase in walkers with dogs is less than ideal. Some footpaths pass very close to houses, through gardens and through farm yards, so there is an understandable concern about the increased numbers of users, raising the risk of the virus spreading.

Can a landowner restrict use of footpaths?

In short, no. Landowners are not allowed to restrict or block access to public rights of way under the Countryside and Rights of Way Act 2000. Under section 137 of the Highways Act 1980 it is an offence to obstruct access along a public right of way and offenders will be liable to a fine. It is also an offence under section 14 of the Countryside and Rights of Way Act 2000 to display a notice that deters public use of a right of way, and this can lead to a fine and sometimes, additionally, an order to remove the notice.

What can landowners do?

The following measures have been suggested for landowners:

  • Tie gates open, to reduce the need for walkers to touch them.
  • Display notices requesting that users follow social distancing guidelines.
  • Consider offering, temporarily, an alternative route which avoids gardens, farmyards etc. if safe to do so, and the original route is maintained. The Environment Agency has suggested text which can be used for signs.

Ordinarily, diversions would need to be approved and, in this instance, the original route does need to be maintained, so the public is not restricted from using public rights of way. Landowners can only ask the public, politely, to use an alternative route. Landowners also need to make sure that any temporary measures that have been put in place are removed when social distancing measures are changed. They should also take care that any diversions are clearly signposted as being permissive rights, to ensure they can stop the public using this route, once the temporary measures end.

Are landowners liable for transmission of the virus?

Landowners owe a duty of care to both lawful and unlawful visitors on their land under the Occupier's Liability Acts 1957 & 1984.

The 1957 Act applies to those lawfully using a public right of way and under section 2 of the 1957 Act, the landowner is under an obligation to ensure that visitors will be reasonably safe when they are on their property for the purposes for which they are allowed.

The 1984 Act, in this situation, would apply to those who trespass off the public right of way and onto the landowner's property. In this case the landowner owes a duty to the trespasser, in relation to any dangerous risk, of which they are aware, or have reasonable grounds to believe exists and in respect of which they should reasonably have offered the trespasser some protection from danger.

Landowners therefore, who have public rights of way crossing their land may be concerned that they could be liable for the transmission of the virus, from one person to another, when on their property.

It is difficult to see how, in practice, this would be the case. Being able to prove, definitively, that someone caught the virus whilst walking along a particular public right of way would be very difficult indeed. A responsible landowner can request, by putting up notices, that walkers use the right of way in a manner that complies with the social distancing requirements. Landowners should also take care that any alternative temporary diversions are safe, so that they comply with their obligations under the 1957 Act and 1984 Act.

What is the situation with Definitive Map Modification Orders?

Any landowners, whose land is currently affected by a Definitive Map Modification order application, can expect even more delays.

The Planning Inspectorate has confirmed that in line with the Government guidance, there will be no site visits, hearings or inquiries taking place. It is also not currently possible to conduct research at local and national records offices, which is usually a crucial part of the evidence gathering process for these applications. They are currently assessing whether it is feasible to conduct hearings and inquiries via a "technological solution", whilst still enabling the public to attend these. It might be that parties are more amenable to agree that a decision can be made by the Inspector on the basis of written submissions. In any event, as with the court and tribunal systems in England and Wales, Coronavirus (COVID-19) will inevitably cause a delay to these proceedings.

If you would like to discuss any of the issues raised in this article, or have other concerns about the impact of Coronavirus, please contact Hannah Drew in Michelmores' Agricultural Litigation team.

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This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact our specialist lawyers to discuss any issues you are facing.