This document is NOT
a Pittecroft Trust document, but it addresses an issue that
is frequently misunderstood by landholders, user groups and
highway authorities, so the Trust felt it was worthy of
Comments are very welcome.
Paths, spits, & toilets
or Who Actually Owns our Public Paths? Why 'spits'? Why toilets?
Many people, including many path users, believe that public
paths belong to the landholders whose land they pass over.
Are they right? The National Farmers' Union, the Country
Landowners' Association, and the Countryside Commission, in
an early edition of their booklet “Managing Public Access”
terms, the surface of a highway, whether a public right of
way or a road, is owned by the Highway Authority rather than
the owner of the land over which it passes.”
Later editions, unsurprisingly, dropped
So who does own it? And what is this 'surface'? Is it
just a thin top layer? The law says: "... every highway
maintainable at the public expense together with the
materials and scrapings of it, vests in the.... highway
authority...." [Highways Act 1980 s263] Many
people know that footpaths are highways in law, but
what exactly does ‘vest in’ mean and what exactly is
included in ‘highway’?
The legally well respected book Halsbury's Statutes
says 'vests in' means the Highway Authority owns the paths
in fee simple whilst it remains a public highway. But this
ownership reverts to the ‘landholder’ if the route ceases to
be a public highway, for example if it is lawfully closed by
a diversion order.
This 'vesting' is more than leasehold, though that too is a
form of ownership. A lease is only for an agreed time span,
whereas a public way, once created, continues forever unless
legally stopped up: 'once a highway, always a highway'. [Dawes
v Hawkins (1860)].
The landholder of a public path does retain a kind of
ownership, but can only exercise it to the extent that it
doesn’t interfere with highway rights. For example the
landholder’s animals can graze it.
What does the public–you and me–own? Just the right to use
the path but nothing more tangible.
Well in Finchley Electric Lighting Co. v. Finchley
Urban Council  the judge, Collins M.R., defined it
in these terms:
'All the stratum of air above the surface and all the
stratum of soil below the surface which in any reasonable
sense can be required for the purposes of the street, as
street'. Lord Denning in an ‘obiter’ (statement not
forming part of the formal judgement) in Tithe Redemption
Commissioners V. Runcorn
U D C said that probably the
'top two spits' of the land were vested, spits apparently
meaning spade depths. Collins M.R.’s view is clearly more
rational, allowing the whole of the depth of a signpost to
be within the highway as well as the necessary airspace
above for both signposts and path users.
What isn't included in
In Tunbridge Wells Corporation v. Baird 
the Corporation tried to build public toilets under the
street, on the basis it seems of their ownership of the
highway. The court decided the ownership was only such
property as is necessary for the control, protection and
maintenance of the street as a highway for public use. This
prevented them from building these subterranean toilets. It
is important to note that neither the Highways Act nor the
three cases above support the view held by some that the
ownership is just the 'right' or is just the surface in the
sense of a thin notional layer. Historically only the stones
or setts or other materials of value were vested, the so
called 'materials and scrapings' (eg Highways Act 1835). But
from the Public Health Act of 1875 onwards at least, a
string of statutes vested not only those materials and
scrapings but the highway itself.
This ownership gives powers
that follow the freehold, for example highway authorities
can sue for trespass (Wiltshire CC V. Frazer ).
They also can take direct action under the common law which
can sometimes be the quickest and easiest approach to
Why does ownership matter?
local 'landowners' understood that they do not own the
paths, or at least that any ownership is subservient to the
highway authority’s ownership, then they might not feel such
a sense of personal possession of these little public
highways. And then they might treat them more like they
treat the public roads which cross their holdings, and be
less concerned at public use and less likely to try to move
or to disturb these little ways.
Authority officers fully understood that the paths are their
official property then that would help to direct their
actions when for example local 'landowners' plough up their
paths or obstruct them. It is the Authority’s property being
messed with, it does not require even-handedness between the
underlying landholder and the public.
certain cases the Path Officers can act at once under common
law as owners of the paths without waiting for the sometimes
tediously lengthy and time consuming statutory processes.
Senior management at at least one Home Counties Highway
Authority accept this in principle but have
seemed reluctant to act, even in clear-cut cases (eg A
footpath, part of the London Loop, complete pre Christmas blockage some years
Acknowledgement is made to
Highways and sub-soil ownership and Existence and
vesting of highways by
Professor Keith Davies (Rights of
way Law Review 2.1) And to Halsbury's Statutes. And of
course to the Blue Book.
Copyright, but may be freely reproduced if done in full.