Annex B: Legal definitions and procedures

Definitions

1. Public Rights of Way (ProW) comprise Footpaths, Bridleways, Restricted Byways and Byways Open to All Traffic (BOATS). All public rights of way are highways, and are shown on the Definitive Map held by local highway authorities. Because cycle tracks are not a category of right of way, they are not shown on any Definitive Maps, and the conversion of a footpath to a cycle track requires its removal from the Definitive Map. In addition to the rights of way described below, pedestrians and cyclists may also share space in pedestrianised or vehicle restricted areas as outlined in Section 8.2.
2. Cycle Track means a way constituting or comprised in a highway, being a way over which the public have the following, but no other, rights of way, that is to say, a right of way on pedal cycles (other than pedal cycles which are motor vehicles within the meaning of the Road Traffic Act 1972) with or without a right of way on foot [Section 329(1) Highways Act 1980]. The words in brackets were inserted by section 1 of the Cycle Tracks Act 1984. Cycle tracks may be created through conversion of a footway or footpath or newly constructed.
3. Footpath means a highway over which the public have a right of way on foot only, not being a footway [Section 329(1) Highways Act 1980].
4. Footway means a way comprised in a highway, which also comprises a carriageway, being a way over which the public has a right of way on foot only [Section 329(1) Highways Act 1980]. Footways are the pedestrian paths alongside a carriageway, and are often referred to as a pavement.
5. Bridleways provide a right of way on horseback, foot and bicycle. The Countryside Act 1968 gave cyclists the right to use bridleways but they must give way to other users. The right for cyclists to use a bridleway can be subject to an order or bye-law prohibiting cycling on particular parts of it.
6. Restricted Byways were created by the Countryside and Rights of Way Act 2000. They are generally open only to pedestrians, cyclists, horse-riders and horse-drawn vehicles and replace the former category of 'Roads Used as Public Paths' (RUPPs).
7. Byways Open to All Traffic (BOATs) have full public rights, including for vehicles, but rarely have a sealed surface and are generally used in a similar way to bridleways. The definition was created under the Wildlife and Countryside Act 1981.

Conversion of a footway to a cycle track

8. The footway at the side of a carriageway can only be used by pedestrians. Section 66 of the Highways Act 1980 places a duty on the highway authority to construct a footway alongside a carriageway if considered necessary or desirable. Driving a vehicle (including cycling) or riding a horse on a footway is an offence under the Highways Act 1835. Therefore footways should not be used as linking sections on routes for cyclists unless they are converted.
9. To convert all, or part, of a footway to a cycle track, all, or the appropriate part of the footway must be 'removed' under the powers in Section 66(4) of the Highways Act 1980, and a cycle track 'constructed' under Section 65(1). The process need not necessarily involve physical construction work, but there needs to be clear evidence that the local highway authority has exercised its powers. This can be provided by a resolution of the appropriate committee. By virtue of Section 34 of the Road Traffic Act 1988, it is an offence to use a motor vehicle on a cycle track, and the making of a Traffic Regulation Order is therefore no longer required to control such use. The adjacent cycle track or shared surface should be clearly signed.
10. A cycle track alongside the carriageway cannot be used by horses. Section 71 of the Highways Act 1980 places a duty on the highway authority to provide an adequate grass verge for the safety and accommodation of ridden horses and driven livestock where this is considered necessary or desirable. There is a duty not to obstruct verges with signs or other obstructions that would prevent the safe passage of users.

Conversion of a footpath to a cycle track

11. To convert all or part of a footpath to a cycle track, a footpath conversion order must be made applying to the appropriate width of the footpath. Footpath conversion orders are made under Section 3 of the Cycle Tracks Act 1984 and the Cycle Tracks Regulations 1984 (SI1984/1431).
12. Having obtained the necessary consents where the footpath crosses agricultural land, and having undertaken the required consultation process, a footpath conversion order is made by the local highway authority. If there are unwithdrawn objections, the order has to be confirmed by the Secretary of State, if necessary after a public local inquiry.
13. If there are no objections, or the objections are withdrawn, the order can be confirmed by the local highway authority. Section 2 of the Cycle Tracks Act 1984 applies and the adjacent or shared use track should be clearly signed.

Providing cycle facilities in parks

14. The status of footpaths in certain parks and the ability to convert them to cycle use may be determined by local or private Acts of Parliament. Local park by-laws may also be applicable. A number of London's parks are Royal Parks and specific statutory procedures apply. Each situation should be examined individually to establish its legal status.

Permissive rights for walkers and cyclists

15. Permissive rights routes exist where landowners have agreed with the local authority for access to be available to particular categories of user under certain conditions. There are examples of permissive routes for pedestrians and cyclists on land owned by British Waterways, the Forestry Commission, the National Trust, as well as private landowners. They are for agreed periods. Some local authorities have granted themselves permissive rights for paths on their own land instead of using the Cycle Tracks Act. This is not recommended. If there is no alternative to converting a route in this way, consultation is strongly recommended as set out in Chapter 5 even though it is not a legal requirement.
16. No right of way is established under permissive rights, and the landowner can still use the land for its primary purpose. The permission may be withdrawn at any time, either temporarily or permanently. This can have implications for local authorities wishing to invest money to improve or maintain permissive routes that crosses land that they do not own.

Creation of new off-carriageway routes

17. New footpaths or bridleways can be created under section 25 or 26 of the Highways Act 1980 by the local authority through agreement (public path creation agreement) or compulsory powers (public path creation order, which requires confirmation by the Secretary of State). Creation of a footpath or bridleway may require consultation with neighbouring authorities but there is no statutory requirement to consult with user groups, or parish or community councils.
18. The Highways Agency has powers to create new footpaths, bridleways or all purpose highways within an existing trunk road boundary or by extending the highway boundary into land alongside an existing trunk road owned by the Highways Agency.
19. Local authorities have powers to create new highways (including cycle tracks) as well as footpaths and bridleways under the Highways Act 1980.

Other Considerations

20. The Countryside and Rights of Way Act 2000 (England and Wales) requires all local highway authorities to prepare a Rights of Way Improvement Plan by January 2006. The plans need to illustrate the extent to which the rights of way meet the present and future needs of the public, offer opportunities for exercise and recreation, and are accessible to blind and partially sighted people and people with mobility problems.
21. The Disability Discrimination Act 1995 (DDA) brought in a range of requirements upon service providers to prevent discrimination against disabled people. Although local highway authorities and the Highways Agency are not recognised as service providers at present they should aim to comply with Part III of the DDA until such time as a legal precedent has been set to confirm their status. Part III of the DDA is based on the principle that disabled people should not be discriminated against (through non-provision of services or a different level of provision) by service providers when accessing everyday services that others take for granted.