…but were afraid to ask
Words and pictures by Jon Sparks
Note: This article was first published in Cranked magazine in early 2015. The current access consultation in Wales may lead to radical changes to Rights of Ways there, but the situation in England is essentially unchanged. A few other references have been updated (August 2017).
“You can’t cycle here.” (Purple-faced pedestrian).
“Why not?” (Me)
“It’s a footpath. You’re committing an offence.” (PFP)
“I’m sorry, but I’m afraid you’re wrong.” (Me, trying hard to be polite.) “This is actually a bridleway.”
“No, it isn’t, it’s too narrow.” (PFP).
This is an edited but essentially accurate version of an encounter I once had beside Rydal Water. Happily, one reason it sticks in the memory is that it was so unusual, at least in my experience. I’m much more used to friendly greetings, words of encouragement – often of the ‘sooner you than me’ variety – and the holding open of gates.
Still, this encounter is instructive because it illustrates several misconceptions about the right to ride a bike. And it’s not just the occasional PFP who may be ignorant of the law: many (most) bike riders are a bit hazy about it too.
The first misconception is that you can recognise a footpath or a bridleway by eye, or identify them by width. In fact, a footpath or a bridleway may exist even though there is no visible path or track – and conversely, a wide, smooth track may exist without any public right of way attached.
A right, not a thing
The definitive work on rights of way law, Rights of Way: A Guide to Law and Practice by John Riddall and John Trevelyan, sums it up beautifully: “A highway is not a thing; it is a right.” Footpaths, bridleways and byways are all highways and can all exist without any discernible trace being visible on the ground. And neither footpaths nor bridleways, contrary to my PFP’s opinion, are defined by width.
What may have given rise to this misconception is a rule which applies where a route crosses a field. If a farmer ploughs a field or plants a crop, the right of way must be restored as soon as possible, to a width of 1m (for footpaths) or 2m (bridleways). If a bridleway follows the edge of a field, it should not be disturbed (ploughed or planted) at all; in this case the protected strip is 3m.
Otherwise, there is no set width, except for gates: on bridleways these must be at least 1.5m wide. Elsewhere, the test is what is required for passage. A bridleway should allow horses to pass each other, whereas a footpath only needs to have room for walkers. But even this test applies to the right of passage, not to any physical trace on the ground. Thank goodness, or all that luscious singletrack would have to be reclassified as footpath…
Another misconception which PFP displayed was that – had I actually been riding on a footpath – I would have been ‘committing an offence’. In fact, riding a bike or horse on a footpath is a trespass (a civil wrong or tort) against the landowner. It is not a criminal offence unless there is a specific local bylaw, which is quite rare, or a Traffic Regulation Order (TRO) has been made.
On the other hand, riding a motorbike or driving any vehicle on a footpath or a bridleway is a criminal offence – and so is cycling on the pavement, or in legalese, ‘a ‘footway set aside for the use of pedestrians’. This may be another source of misconceptions about the illegality of cycling on ‘footpaths’. That this was specifically limited to footways alongside a road was set down in the Highway Act 1835 and has since been confirmed by the courts.
Bridleways, of course, have been around for a very long time, and certainly before bikes were even dreamed of. There’s a clue in the name… Both ‘bridle’ and ‘way’ come from Old English (Anglo-Saxon) words bridel and weg: weg is still the German for a way. And many of the routes we call bridleways today are far older than even that might imply; some, as we’ll see, are prehistoric in origin. And this long history is one reason we have such an extensive network of BWs and other rights of way.
The right to walk or ride a horse on a bridleway is enshrined in common law, which effectively means it’s very, very old. However, a clear legal definition of a bridleway, let alone proper identification and mapping of all those that exist, is much more recent; in fact it can be said that the task is still incomplete. The right to ride a bicycle on a bridleway is even more recent.
It’s a tortuous tale and these are just some of the Acts of Parliament which have a bearing on the subject:
Highway Act 1835
Rights of Way Act 1932
National Parks and Access to the Countryside Act 1949 (NPACA 1949)
Highways Act 1959
Countryside Act 1968
Highways Act 1980
Wildlife & Countryside Act 1981
Cycle Tracks Act 1984
Countryside and Rights of Way Act 2000 (CROW 2000)
Land Reform (Scotland) Act 2003.
Arguably the most important of all is the National Parks and Access to the Countryside Act 1949, one of the sweeping reforms introduced by the great post-war Labour Government. Quite apart from the creation of the National Parks, the Act brought in a system for comprehensive recording of rights of way, mandating the creation of definitive maps (except for the Inner London boroughs and the City of London). It’s hardly surprising that this took some time; North Bedfordshire holds the sorry distinction of being the slowest, taking 33 years to produce its definitive map.
What the 1949 Act did not do was change the basic definition of a bridleway, and therefore there was no right to ride a bicycle on one. For this we had to wait for section 30 of the Countryside Act 1968: “Any member of the public shall have, as a right of way, the right to ride a bicycle, not being a mechanically propelled vehicle, on any bridleway, but in exercising that right cyclists shall give way to pedestrians and persons on horseback.” The Cyclists’ Touring Club (CTC) (Now renamed Cycling UK) apparently deserves credit for the inclusion of this measure.
Of course, people were riding on bridleways before then. The Rough Stuff Fellowship was founded in 1955; as their current chairman, Steve Griffith, says, “Mostly, people just rode where they’d always ridden. There were occasional conflicts and people either avoided those spots or picked the time carefully, but mostly there was very little trouble. It was all very discreet and low-impact as well, which helped.” (The RSF has never had more than about a thousand members.)
As the process of recording and mapping rights of way progressed – slowly and imperfectly – it became possible for the first time to quantify the size of the network. England has about 146,000km of footpath, 32,000km of bridleway, 6,000km of restricted byway and 3,700km of byways open to all traffic. Footpaths therefore form about 78% of the Right of Way network, with only the remaining 22% open to bikes (and horses).
The total Right of Way network in Wales is about 33,000km. Scotland’s law, as most of us are well aware, is different, and not just since the passage of The Land Reform (Scotland) Act 2003 and subsequent introduction of the Scottish Access Code. Even before this there was no distinction between footpath and bridleway and it was generally presumed that cyclists and horse-riders were entitled to follow any right of way – but rights of way as such were relatively thin on the ground (less than half the total mileage for Wales) as there was no obligation on local authorities to record them (no definitive map process).
Northern Ireland is the region of the UK with the worst position on rights of way; even for walkers, access is much more limited than the rest of the country, as far fewer Right of Ways are identified. Worse, as the Countryside Act 1968 did not apply in NI, bridleways here are strictly speaking only open to walkers and horse-riders.
Establishing a right of way
Let’s back up a little. The definitive map process is intended to record the rights of way which exist: but how are these established?
One way to establish a Right of Way is if a landowner dedicates it as such. In fact, Riddall and Trevelyan observe, “Relatively few highways can be shown to have been expressly dedicated.” (Quelle surprise). Instead, most Rights of Way are established by the ‘inference of dedication’. “Originally”, as Riddall and Trevelyan state, “for the inference of dedication to be drawn, use had to be shown since 1189.”
Fortunately this is no longer true. Today, the basic test for the establishment of a right of way is that it has been used by the public ‘as of right’ for a period of 20 years or longer. However, it’s more complicated than that and normally if a landowner has in any way indicated an unwillingness to allow the public to use a route, the test fails. For example, if there is a locked gate across a path, even if the public are regularly climbing over it to use the route, the 20-year test will not apply. (On the other hand, if a route is already established as a right of way, landowners cannot legally block access in this way).
This also means that a permissive/concessionary footpath or bridleway can’t automatically become a Right of Way even if it’s been used by the public for 20 years: all a landowner needs to do is to place a notice stating that ‘there is no intention to dedicate (the route) as a right of way’. Some landowners may close a permissive path for one day a year as a further precautionary measure.
However, if a route has been used for 20 years without any evidence that the landowner has taken any steps of this kind, then the ‘inference (or presumption) of dedication’ can arise. If such use includes use by bikes, it may well be possible to establish the route as a restricted byway, though there are a number of tests to be satisfied. For instance, there should be no evidence that use by cyclists “has caused or is likely to cause a public nuisance.” Given the predisposition of some people to regard all cyclists as a nuisance, this could lead to some interesting legal arguments.
Another test is whether the way “permits free passage”; if there are stiles or other barriers obstructive to bikes then there is no presumption of dedication.
There is still no real environmental test, so the likelihood of erosion isn’t a prima facie reason that a Right of Way cannot be established. (And anyway, there is very little evidence that mountain bikes, in general, cause significantly more erosion than similar numbers of walkers.)
It’s worth saying that the converse is not true: a path that isn’t used for 20 years does not cease to be public, at least in England and Wales. It does appear that it may be different in Scotland, though this might seem to be irrelevant in areas covered by the Scottish Access Code.
So, anyway, if you and your mates have been using a ‘cheeky trail’ for 20 years without being warned off, have never passed notices saying ‘no bikes’, and haven’t had to negotiate stiles or locked gates, then there’s at least a chance it could become a permanent right of way. However, it still takes considerable effort and persistence to work through the legal process. Landowners who have ignored the passage of feet, hooves or wheels for decades are quite prone to sit up and take notice when an application to establish is made, and applicants can find themselves facing tough and confrontational tactics from slick lawyers.
Clearly, it’s much better to have an organisation behind you. Compared to the excellent work that The Ramblers do for walkers, mountain bikers are less well provided for; with IMBA-UK currently dormant (to put it politely) and British Cycling showing little interest (so far) in recreational mountain biking, the most likely port of call at a national level is Cycling UK. There may also be regional groups with an interest and in some cases with established expertise, like the South Pennine Packhorse Trails Trust. (Since original publication, of course, Open MTB has been created to address the lack of a central advocacy group).
It may be true that a bridleway, or any highway, “is not a thing; it is a right.” But the ways that we actually ride are things too, and some of them are very ancient things.
This may be where we in England may actually be better off than some of those countries – at which we often cast envious eyes – where the right of access is universal. The gold standard is set by the Nordic countries, and perhaps also Estonia, with Scotland a recent addition to the elite. The right of access is so strongly embedded here that in Sweden, for example, restrictions have been placed on the building of new homes near shorelines specifically to protect the right of public access to it. Rights generally don’t extend to crossing fields or plantations – except in winter, when covered in snow.
However (as I’ve found myself in Finland), the right to ride anywhere does not guarantee enjoyable riding. It’s rare terrain which can be ridden without benefit of a trail of some kind. Of course the existence of a BW on the map only indicates the right, not the thing, but it’s a great start, especially compared to the bewildering blank on the map which faces us in many countries. And the combination of long history and dense population means that our bridleway network is, at least in England and Wales, both rich and well-established.
The existence of a bridleway implies historic usage on horseback, which means there’s a reasonable chance it will at least be passable by bike. It also means that these routes have history, and I can’t be the only one whose enjoyment of a route has been heightened by the traces, or just the mental picture, of those who have gone before – in some cases, not just for centuries but for millennia.
We’ve already seen how complicated the process of establishing a right of way can be, and how long the process of creating a definitive map could take. Sadly, the process has been not just slow but incomplete. Many routes in historic, and often in current, use have not been recorded, or have been recorded as a lower category than they really merit.
The Countryside and Rights of Way Act 2000 attempted to address this problem, by creating a mechanism to unearth these ‘lost ways’ and also by setting a deadline for this to be completed. Unfortunately, the mechanism has lapsed but the deadline hasn’t. The Act stipulates that footpaths and bridleways that were in existence on 1st January 1949 but not recorded on the definitive map by 1st January 2026 will be extinguished. Unrecorded higher rights that may apply to a definitive footpath, bridleway or restricted byway will also be extinguished.
The main implication is that after 2026 it will no longer be possible to establish a Right of Way, or higher rights over an existing Right of Way on the basis of pre-1949 evidence. This seems to be particularly problematic in relation to bridleways and byways – the very categories of interest to mountain bikers.
Under the process begun in 1949, many routes were classed as Roads Used as Public Paths (RUPPs). However, the Countryside Act 1968 (the same one which gave us the right to cycle on BWs) abolished this category and stated that all RUPPs were to be reclassified. In many cases they were reclassified as footpaths even though a Court of Appeal ruling in 1975 confirmed that all RUPPs should have, at a minimum, BW status. So if you have access to older OS maps which show RUPPS, it may be worth checking to see if any of them are now shown as footpaths. Some are also shown as ORPAs (other routes with public access) on OS maps, but this has no clear legal standing.
This is not just about obscure routes that no-one would really miss. Take, for example the Salter Fell Track across the main ridge of the Forest of Bowland; a popular route which is shown on OS maps as an ORPA and does not appear on Lancashire’s definitive map at all.
In times of austerity, it’s understandable that councils do not set a high priority on recording routes on the definitive map, but with the 2026 cut-off date starting to look not that far away, this is becoming increasingly a matter of urgency. The Ramblers are active on behalf of walkers and in 2012 the Equestrian Access Forum produced an outstanding document Making Ways for Horses: Off-road Equestrian Access in England. By comparison (as of 2015) the cycling community seems to be lagging behind . CTC has published a briefing document on Bridleways, restricted byways and cycle tracks but this does not mention the lost ways problem or the 2026 deadline.
For instance, the South Pennine Packhorse Trails Trust reports that several stretches of the Mary Towneley Loop, currently open to walkers, horse-riders and mountain-bikers, are still shown on the definitive map as footpaths. “Calderdale Council has failed to make orders to record the higher rights on the definitive map and – unless the council gets its act together – these will be extinguished in 2026.” These stretches total more than 5km and provide crucial links in the loop.
Shortly after the passage of CROW in 2000, funding was promised both to voluntary groups and to local authorities under a project called Discovering Lost Ways (DLW). In 2002 the Countryside Agency estimated that there were some 20,000 unrecorded rights of way – totalling 16,000km – in England, broken down as follows: Byways 2,700km; Bridleways 4,000km; Footpaths 9,300km. The Equestrian Access Forum noted: “This gives a total of 6,700km of equestrian rights of way that have failed to be recorded on the definitive map. If these were all defined and available, there would be a 12% increase in bridleways and a 28% increase in byways (restricted byways and BOATs).” Their strategic importance could be even greater as they “are often the critical links between paths already on the map.”
As for DLW, nothing really happened, other than an exploratory study followed by a plan to outsource the work to a commercial company. This achieved little other than to stall any work that voluntary groups or local authorities could have done. In 2008 DLW was officially abandoned. By some estimates, over £8 million had been spent without any Right of Ways being added to the definitive maps, other than in a few areas covered pilot schemes, but meanwhile the 2026 deadline had moved ominously closer.
One result which did arise from the pilot studies was some clearer data about the nature of lost ways. At least half were lanes or tracks which were in regular use, but not shown on the definitive map. Another 10–15% were routes where there was “clear evidence to show that the public’s rights along it are under-recorded – for example, a bridleway is shown on the map as a footpath.”
Natural England’s own report in 2008 observed that, “The likely loss in 2026 of the used, unrecorded routes will lead to a significant decrease in availability of access to the countryside and will also have an adverse impact on local history and heritage.”
Both Making Ways for Horses and the CTC briefing paper call for reform of Right of Way law. CTC’s main proposal is to bring access law in England and Wales into line with that in Scotland. Making Ways for Horses makes a whole raft of specific (and perhaps more attainable) proposals. All this does prompt the thought that if there’s any group with which mountain bikers could make common cause, it’s probably the equestrians. There’s little doubt that most mountain bikers would endorse many of the points in this manifesto – but until I started researching for this article I had no idea it even existed.
Proposal 2: Repeal the cut-off date of 1 January 2026 and the extinguishment of unrecorded rights (Countryside and Rights of Way Act 2000, ss. 53-56).
Proposal 5: Adopt a single status for footpaths, bridleways and restricted byways.
Proposal 8: Adopt an automatic upgrade procedure for existing public footpaths and unrecorded paths to bridleway status on agreed documentary evidence.
Proposal 5 is particularly interesting. Here’s what they say about it: “The quickest and easiest solution would be to amend the Wildlife and Countryside Act to make all paths recorded on the definitive map the one status, apart from byways open to all traffic and unclassified roads. The terms ‘footpath’, ‘bridleway’ and ‘restricted byway’ would be replaced by the term ‘public path’. The public would have the right to pass over all public paths on foot, on horseback or leading or driving a horse, and on a bicycle. It would be up to the individual user to decide whether a particular path was passable or not, and there would be many paths whose accessibility would be limited by natural constraints.
“Local authorities would have a duty to make all public paths usable by removing obstructions in line with the Equality Act 2010, and this should be done within a specified ten-year period.
“Use of public paths would be in accordance with a Public Path Code (see further Appendix 4). To be all encompassing the term public path should include cycle routes.”
There’s little doubt that this would have strong support from both the equestrian and the cycling communities, but what about walkers? Would The Ramblers, for example, fall in behind it? With footpaths representing 78% of the Right of Way network and currently exclusive to walkers, what would be their incentive?
Of this I’m fairly sure; the PFP I referred to at the beginning would not be in favour. He may have been an exception, and there’s a case to be made that such a relaxation of the law, by giving bikers a wider choice, would enable them to choose more rationally too: to choose routes where both erosion and conflict with walkers are less likely.
None of this, it must be said, is high on the political agenda in England right now, while in Scotland the great change has already happened. The one area where it is a live issue is Wales. In December 2013 the Welsh Government published a consultation paper on Developing integrated legislation for outdoor recreation. Two of its key principles are: presumption in favour of increasing access for responsible recreation and meet the needs of the widest possible range of activities.
(This process is ongoing as of August 2017 and OpenMTB and Cycling UK are both very actively involved).
In response to this the British Mountaineering Council (BMC) launched its ‘Open Wales’ campaign. The BMC is mainly representative of rock-climbers and mountaineers but is taking an increasingly active role for hillwalkers too; but it is backing wider access for those who “canoe, cycle, horse-ride, swim or fish in the Welsh countryside.” You might ask how much has been heard from cycling organisations on the issue.
And it does seem to me that mountain bikers can help steer the process in our direction by engaging positively with other user groups (‘stakeholders’), specifically walkers and horse riders, both by being friendly and considerate on the trails and by joining forces in advocacy and activism.
Our Right of Way network, and specifically the BWs, may be full of anomalies and at times frustrating. There is certainly room for improvement, but is still the envy of many biking nations around the word.
A: The Pennine Bridleway
The Pennine Bridleway is one of the newest of the National Trails, its latest section having been opened by actor and horseman Martin Clunes in 2012. It starts near Wirksworth in Derbyshire, which means that it takes in the full length of the Peak District. It currently finishes near Kirkby Stephen in Cumbria but may extend further north at some future date. It’s the first National Trail specifically designed to be fully accessible by horse and bike as well as on foot.
The PBW was the brainchild of Lady Mary Towneley (1935–2001) a devoted and skilled horsewoman who spent many years exploring existing bridleways before proposing the concept to what was then the Countryside Commission in 1986. It’s a measure of the difficulty of establishing new routes, especially with the primacy given to the rights of landowners, that almost 30 years later the PBW is still only around two thirds complete.
It was reportedly the suggestion of Princess Anne (who also knows a thing or two about riding horses) that the 76km loop around Calderdale should be named in honour of LMT, who was also a former vice-chairman of the South Pennine Packhorse Trails Trust.
Many of the trails used by the Mary Towneley Loop in particular, but also in the Peak District and other parts of the Pennines, are ancient packhorse routes. The network is particularly dense in the South Pennines, where tight valleys colonised by early industry are separated by high moors. The moorland crossings and the steep valley sides were ill-suited to carts and carriages and goods were transported instead by long trains of 30–40 sturdy, sure-footed ponies, each carrying a load of around 100kg in a pair of panniers. It’s worth thinking about that when you’re grinding up a climb or blasting down a stony descent…
One of the key commodities, traded at least as far back as the Anglo-Saxon period, was salt, mined in Cheshire. By the Middle Ages the packhorse trails were also being used to transport other commodities such as wool. Many of the trails were surfaced with stone slabs or setts, especially on steeper slopes or where they crossed softer ground. A good number of these hard-wearing tracks remain and can provide real technical interest for the modern mountain biker. Another distinctive feature of these trails is their packhorse bridges, usually built just wide enough for a single horse and with low parapets to avoid obstructing the panniers.
Another interesting section is the Rooley Moor Road, from Rochdale to the Rossendale valley, also known as the Cotton Famine Road. This is known to have been in existence since at least the 15th century and was part of a route linking to the great abbey at Whalley in the Ribble Valley. However its present appearance, with a broad surface of well-dressed setts, dates from the mid-19th. This improvement was undertaken to provide work for mill-hands laid off during the ‘cotton famine’ when supplies were interrupted by the American Civil War.
B: The Ridgeway
There’s no better example of a truly ancient way than The Ridgeway, often described as Britain’s oldest road. Monuments along the route have been dated to at least 5000 years ago, but it’s quite likely that the ‘road’ predates them. In fact people were probably moving, at least sporadically, along these ridges, even before Britain became an island (now reckoned to have happened around 6100BC). Today’s Ridgeway National Trail is just part of a route that ran all the way from Dorset to Norfolk.
Today we tend to expect roads and other major transport routes to follow lowlands and valleys, but in ancient times, the valleys were often swampy and/or densely wooded. Progress was generally much easier on the drier and more open uplands: nowhere more so than on the free-draining chalk ridges of southern England.
Most of it is not what we would call a road today, being a mix of bridleways and byways. For much of its history it would have looked even less like a modern road, being unfenced and merely a straggling collection of wear-lines and ruts across the chalk downs and ridges, with travellers, traders and, increasingly, cattle-drovers, taking whatever line seemed easiest between staging-points and river–crossings. It only began to take on something like its present form in the later 18th century, following the progress of Parliamentary Enclosure.
Something like 4000 Acts of Parliament were passed between 1760 and 1870, changing the status of some 7 million acres (about a sixth of the area of England) from common land to enclosed (and privately-held) land. Clearly this process is politically highly-charged, seen by many (not exclusively left-wing) historians as an early example of privatisation. And it’s by no means irrelevant that the MPs who voted for these Acts were, in most cases, landowners themselves.
It must be understood that common land was still, nearly always, privately-owned, but the general populace had clear rights of access, and ‘usufructory’ rights such as the right to collect wood (or in some places cut peat) or to plants crops or graze livestock. The process of Parliamentary Enclosure swept away these common-law rights. It’s interesting to reflect that many of these rights remain in the Nordic countries – not just the right of access to land, but the right to fish or to collect nuts, berries and mushrooms.
In any case, the effect of Enclosure on the Ridgeway was to make the route on the uplands much more defined, delimited for the first time by hedges or fences. Though it’s a great romantic notion that the chalky track we can walk or cycle along today is the same Ridgeway that prehistoric man and woman used, it’s really a product of the 18th century.
Nevertheless, there are many traces of prehistory in this landscape, probably the greatest collection of prehistoric sites in the UK outside Orkney. Today’s Ridgeway National Trail starts just a couple of kilometres from Avebury, arguably the greatest stone circle in the country, and within sight of the enigmatic Silbury Hill. A couple of hours pedalling brings you to the White Horse of Uffington, now known to date from the Bronze Age. At 110m long its a monumental creation, as well as being the oldest known chalk-cut white horse in Britain.
Nearby is Uffington Castle, a large Iron Age hill-fort originating in the 7th century BC, though there is some evidence of earlier earthworks on the same site. And just a couple of kilometres back towards Avebury is something far more ancient. One of the finest long barrows in Britain, Wayland’s Smithy may take its name from a Saxon deity, but its origin is Neolithic. The oldest human remains found there have been dated to just after 4000BC – a thousand years before the building of Stonehenge, 1500 years before the Pyramids of Giza. I get shivers down my spine just writing about it now…
Of the 70km section of the Ridgeway National Trail from Overton Hill to Streatley (where it meets the Thames) about a quarter is Byway, though almost all of it is now subject to seasonal Traffic Regulation Orders banning motor vehicles during the winter months. The remainder is nearly all Restricted Byway or Bridleway.
Fittingly, as we are looking at bridleways, this chalk upland is very horse-y country; Lambourn is one of the country’s major centres for racehorse training and the OS Explorer Map is peppered with the word ‘Gallop’. Some of them are very close to the Ridgeway itself, though you’ll probably have to get an early start to actually see horses being exercised. The easier alternative is just to read a few Dick Francis novels.