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Rights of Way & Common Land

What is a right of way, and why might this pose a problem to airfield operations? 

By Rosalinde Emrys-Roberts

GAAC Advisor for Rights of Way and Common Land

Rights of Way are highways that are protected by legislation.  Where a right exists, it gives people the right to cross over private land, including airfields.  These rights can be exercised all year round and at any time 24/7.  The rights can be on foot (footpath), on horseback or bicycle (bridleway), or with vehicles (byways).  This means that members of the public can legitimately use the path at any time, even if it is now a runway (for example at Elstree Aerodrome or Blackbushe Airport). 

If the highway becomes obstructed, such as by a fence or a building, the person causing the obstruction can be taken to court, fined, and ordered to remove the obstruction.  It is a criminal offence to obstruct a highway, so if the court finds that there is a problem, it can result in the person responsible being given a criminal record.

What is Common Land?

Common Land is privately owned land over which other specific people, who do not own the land, have right to graze animals, collect firewood, fish etc. depending on the rights that they have.  Common Land is protected by legislation.

Since 2000, there has been a right of access for members of the public, on foot, over Common Land.  This means that people have the right to access all the land on foot (and with dogs).  Whilst such a person would not be classed as a ‘visitor’ under the Occupiers Liability Act 1957, there may still be a liability for the landowner where the landowner has intentionally created a danger or is reckless as to whether such a risk is created. 

Whilst public access to the land can be limited (for a maximum of 28 days each year), this limitation cannot include Christmas Day; Bank Holidays; all Saturdays in June to 11 August; all Sundays in June to September, and no more than 4 Saturdays or Sundays.  These are all prime flying days.

If entry to the access land (be that a right of way or Common Land) is obstructed, the person responsible can be taken to court.  If the court finds that there is a problem, the person responsible can be fined and ordered to remove the obstruction.

How might Rights of Way or Common pose a threat to airfields?

When new airfields were built during WWII, the rights of way that previously crossed the land were sometimes only temporarily stopped up. Consequently, some of these rights have been, or could be, re-instated across these airfields.  Alternatively, the land on which the airfield was built may be a registered Common, such a Blackbushe Airport – for which a case went to the High Court in 2020. 

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