Permissive Paths

Creating a permissive route
Preventing public rights accruing on a permissive route
Cautions regarding permissive routes
Permissive routes as an alternative to existing rights of way
Further information

Permissive paths, sometimes referred to as concessionary paths, are not public rights of way and the public do not have a legal right to use them. They can play an important role in improving public access to the countryside. Providing a connection between existing public rights of way where gaps currently exist in the network. As permissive paths are not public rights of way, landowners may impose conditions on their use. This can include restrictions on when the public can use them and how the paths are used (e.g. walkers allowed, but not cyclists or horse-riders).

Creating a permissive route

There are two main ways of establishing a permissive path either:

through a formal written agreement between the Council and the owner of the land, or
by the owner of land granting consent in a less formal arrangement

Usually, a formal agreement between the landowner and local authority is in place. This ensures the authority will address problems encountered by users with the landowner. The agreement can include:

provisions to any payment to the land owner by the Council, in return for granting the way as a permissive path
provisions relating to future maintenance of the path

The Council will only enter into such a formal agreement where:

there is a clear and obvious gap in the current network
the way is not a public right of way and
there is a convincing business case for the Council to enter into a permissive agreement.

Without these three elements in place, it is unlikely the Council will enter into a formal agreement. Landowners may instead choose to create a permissive path and publicise its availability in a less formal manner. For example through:

signs on the ground
the internet
placing an advert in a local paper or newsletter

In such circumstances, the surface of the permissive path will be maintained by the landowner. They will be liable for injury to users as a consequence of any defect in the surface of the path. Landowners contemplating creating permissive paths should have the required third party and public liability insurance. The Council would not normally have any involvement in such an arrangement. Even so, an advantage to a landowner is they can close the path to the public at any time without notice. In some circumstances, landowners are willing to create permissive paths to enhance public access on their land. These landowners may be concerned that, public rights of way may accrue through long use of the path. To protect against this risk, it is recommended that landowners take at least one of the following preventative measures.

Preventing public rights accruing on a permissive route

There are three methods by which a landowner can prevent, or diminish, a claim of public rights over their land. It is recommended that landowners consider a combination of all three:

By erecting permanent signs. Identifying the route in question is used ‘by permission’ and not ‘as of right’. Suggested wording might be “the path is not a public right of way. The landowner does not intend to dedicate the path as a public right of way, but users are permitted to use it with express permission of the landowner”. This wording can be adapted to suit the situation. Other conditions might also be added. For example, use might be limited to daylight hours only. Signs can inform the public that the landowner reserves the right to withdraw permission to use the path at any time, either temporarily or permanently and at short notice.
By closing the path for a short period, for example one day per year. Thereby preventing uninterrupted use ‘as of right’ from accruing. Traditionally, path closure has been over a public holiday. This makes it memorable to the greatest potential number of users that the path was closed on that day. It must be obvious to users that the path is closed. Closure should be supported by signage informing users of the closure or other acts which make it evident that the owner is preventing use for that period. It is useful for the landowner to record actions (e.g., dated photographs) as evidence of closing the path. This can then be used to provide evidence of the act of closing the path at a future date.
By depositing a statement and map under Section 31(6) of the Highways Act 1980 and at any time during a 20 year period. Thereafter lodging a declaration with Cornwall Council to acknowledge existing public rights of way over their land. Indicating a lack of intention on their part to dedicate any other public rights of way over the land. Further information on this type of deposit, including instructions on producing the map and templates for the Statement and Declaration please visit: The Government webpage for Landowner Statements

Cautions regarding permissive routes

A permissive path made available by a landowner does not necessarily remain in perpetuity. Permission to use the path can be withdrawn at any time. Erecting signs informing users there is no ‘public right of way’ and that usage is by permission only, may bring rights into question on a way used ‘as of right’ for 20 years. It may prompt an application to add the way to the Definitive Map and Statement of public rights of way by a confirmed Definitive Map Modification Order made under section 53(2) of the Wildlife and Countryside Act 1981. The Council has a legal duty to determine such applications.

Landowners aware of and who have acquiesced in use of a way over their land should be aware that creating a permissive path could have unintended consequences. Similarly, landowners should be aware that offering a permissive path as an alternative to an unrecorded way currently being used as of right; may result in an application to add the way to the Definitive Map and Statement. A landowner proposing to permit access to their land might wish to take legal advice in relation to:

the Occupiers Liability Act 1957 and
the duty of care that landowners are required to extend to visitors on their property

Permissive routes as an alternative to existing rights of way

On occasion, a landowner may choose to offer a permissive path as an alternative to an existing public right of way. This is not supported by Cornwall Council. It is recognised that in offering an alternative permissive path, landowners are not breaking the law. But, landowners should make a clear distinction between the permissive path and the public right of way. They must ensure the public right of way is open and available, so that users can make an informed choice about which path to use.