Councils Powers and Duties

Councils Powers and Duties under the Access to the Countryside (NI) Order 1983

Public Rights of Way

The Access to the Countryside (NI) Order 1983 came into force in Northern Ireland in March 1984. Under the 1983 Order the Council has a mandatory, statutory duty to assert, protect and keep open and free from obstruction public rights of way. The Northern Ireland Environment Agency (formerly Environment & Heritage) has a policy and advisory role in relation to the provision of access to the countryside in Northern Ireland. One of the major difficulties in building a public right of way network was caused by the long delay in providing statutory protection in Northern Ireland. Even by the 1940’s, use of public rights of way diminished as journeys by foot and on horse became less common, as bicycles became more widely available, a good rural bus service was provided, and car ownership increased. The old 6” to the mile Ordnance Survey maps show a dense network of footpaths criss-crossing the countryside. Footpaths have been evocatively described as ‘….engraved on the face of the land by the footsteps of our ancestors.’ Public rights of way are a legacy from the days before motorised transport. They are routes, used by the public at large without the need for permission of the landowner and usually join two public places, such as two roads. A public right of way is a ‘highway’ under the law. It is a public right of passage over private land. When the Council ‘asserts’ a public right of way it merely confirms its existence this does not change land ownership in anyway. The Council’s duty is to ensure the right of passage stays open and free from obstruction.

Some of these routes are being rediscovered as a unique way to enjoy the countryside away from traffic. Part of the charm of many of the paths is their naturalness. It is advisable to go prepared wearing stout footwear and outdoor clothes. We do our best to ensure that the asserted public rights of way are kept open and free from obstruction. If you do encounter problems when using an asserted public right of way; or if you think a public right of way is under threat or should be brought back into public use; contact the Access Officer. To date we have asserted 10 public rights of way. However, it’s not safe to assume that because a route isn’t asserted that it’s not a public right of way. It should be noted that a public right of way can’t be closed (extinguished) or diverted except through due process of law.

Public rights of way may be asserted as one of the following depending on their historic use (source: NIEA):

Public footpath: Right of passage on foot only.

Bridleway: Right of passage on foot and by horse.

Cartway/Carriageway: Paths open to all traffic.

Northern Ireland Environment Agency advise that: “Evidence of the use of a way by pedal cyclists, is relevant only in establishing carriageway rights. They state that cyclists have no rights at common law to ride on a footpath or bridleway, nor is it possible to acquire such rights by long usage. It follows that evidence of use of a way by bicycles cannot be used to support a claim that the way is a footpath or a bridleway.”


Initiation Application and User Evidence Forms (word 48 kb)

Other Powers and Duties under the ’83 Order

Public Path

The Council can provide new access opportunities by agreeing new routes with landowners along defined routes over private land either by entering into a ‘public path creation agreement’ or a ‘permissive path agreement’. Under Article (11) of the 1983 Order the Council may enter into a ‘public path creation agreement’. This can be on such terms as to payment or otherwise as may be agreed and may be subject to conditions or limitations affecting the public right of way. Northern Ireland Environment Agency advise that as a public path creation agreement in effect creates a new public right of way it cannot be for a set term of years but must be in perpetuity. The 1983 Order makes provision for the closure and diversion of public paths in certain circumstances. A ‘Public Path’ is defined in the 1983 Order as: “a way over which the public have by virtue of Article 11, 12, 15 or 16 (but subject to any conditions, limitations, orders or bye-laws) a right of way on foot, on horseback and (by virtue of Article 20) on pedal cycle, but not using a motor vehicle.” Art. 20 provides that cyclists using a public path should give way to pedestrians and persons on horseback. It also states there is no obligation ‘…to do anything to facilitate the use of the public path by cyclists.’ Public path creation agreements come under the 1983 Order whereas permissive path agreements do not.
 

Long Distance Routes (Articles 21-24)

Articles (21-24) give district councils powers to create long distance routes – routes of over 18 miles or more such as ‘The Ulster Way’. In 2003 EHS (now the Northern Ireland Environment Agency) adopted a coordinating role in respect of the Ulster Way and it is now being marketed as a series of shorter ‘Ulster Ways’ through the Countryside Access and Activities Network (CAAN). District councils create and manage the routes. No part of the Ulster Way occurs in the Derry City Council area, however the Access Forum have plans to develop a link onto it between Ballygroll and Loughermore.
 

Access to Open Country

This is a largely neglected provision of the Order. Currently there are no Access Agreements in Northern Ireland. The 1983 Order gives Councils powers to enter in an agreement to allow access ‘open country’ for quiet recreation, or to make an access order where agreement cannot be reached. The Order defines “open country” as land which appears to the District Council or the Department to consist wholly or predominantly of mountain, moor, heath, woodland, cliff, foreshore, marsh, bog or waterway - excluding cultivated land, nature reserves, etc.
 

Supplementary

The 1983 Order provides that in the exercise of its functions under the Order the Council shall have regard to:

(a) The needs of agriculture and forestry; and
(b) The need to conserve the natural beauty and amenity of the countryside (including its flora, fauna and geological and physiographical features).

The Council has the power to provide parking places for the purpose of facilitating the use of public paths and other public rights of way and access to open country by members of the public.
 

Permissive Paths

District councils can enter into permissive path agreements with landowners under general powers granted by the Recreation and Youth Services (NI) Order 1986 to secure facilities for recreational, social, physical and cultural activities in their districts. A permissive path is a path provided by the consent/permission of the landowner who retains ownership of the land. It is not a public right of way and the public are there by permission of the landowner only and not ‘by right’. The permission relates to the defined path only and there is no right to wander at will off the path.

Initiation Application and User Evidence Forms (word 48 kb)