5 December 2017

Be sure of your ground: protecting against new public rights of way

Landowners who allow the public to exercise rights of access over their land are at risk of that access route becoming dedicated as a public right of way, unless steps are taken to prevent a right from being created.  

This risk was highlighted in the recent case of R (on the application of Roxlena Limited) v Cumbria County Council and Peter Lamb [2017] EWHC 2651, in which the Planning Court upheld the County Council’s decision to make an Order adding a network of over 40 footpaths and a bridleway, crisscrossing woodland owned by the claimant company and the interested party, to the Definitive Map.   We will be writing about Roxlena in further detail in due course, but for the purpose of this blog, let’s remind ourselves about the law relating to public rights of way.

The Definitive Map

Section 53 of the Wildlife and Countryside Act 1981 places a statutory duty on local authorities to maintain a Definitive Map and Statement recording all public rights of way in their areas, and to keep these under continuous review.  Where evidence is submitted showing that a public right of way not already shown on the Definitive Map and Statement subsists or is “reasonably alleged” to subsist, local authorities are required to update the Map and Statement. This is done by way of a Definitive Map Modification Order.  This Order will be made by the local authority and then confirmed, either by the local authority or – where objections are made by any party and not withdrawn – by the Secretary of State following an inquiry.  Before the Order is confirmed, the decision maker has to be satisfied that, on the balance of probabilities, the public right of way exists.      

What evidence is needed to demonstrate a public right of way?

New public rights of way can be created in a number of ways: by express grant, by order of a public authority or by “dedication” by the landowner.  The most common route is by way of presumed dedication, which arises where the public have been enjoying a route for a sufficient period of time without challenge.  Presumed dedication can take place under either common law or by statute. 

The relevant statutory test for presumed dedication is set out in Section 31(1) Highways Act 1980.  In order to demonstrate that a right of way has been dedicated, the public will need to satisfy the local authority that:

  1. The use has been carried on for a full period of 20 years “without interruption”.  A single act of interruption by the landowner will be given more weight than many acts of enjoyment by the public;
  2. The use has been “as of right” (which broadly means without the landowner’s permission, secrecy or force);
  3. The use has been by the public at large and not just a few people.  Use by a licensee or invitees of an adjacent owner will not be use by the public at large.  Similarly, use by certain tenants or employees is not sufficient.
  4. The right has been exercised over a defined route.

Where the above tests are met, the presumption is that a public right of way exists unless there is sufficient evidence that the landowner did not intend during the relevant 20 year period to dedicate it.  The onus is therefore on the landowner to actively prevent rights of way from being acquired.

What can a landowner do to protect against new public rights of way?

There are a number of steps that a landowner can take to show that there was no intention to dedicate a right of way.  Some of these are physical – for example: displaying notices, preventing access to the land in the form of locked gates, fences or other obstructions, closing the way for one or more days a year and verbally challenging users of the way.   If a landowner is content for the public, or certain members of the public, to use the way, then allowing access by express permission would also prevent a claim. 

However, none of these methods are failsafe.  Notices, fences and gates can be difficult to maintain in situ, and a landowner cannot be expected to be present to challenge the use each time a member of the public is exercising a way.  In order for a notice to have legal effect, it must contain language which demonstrates – unambiguously – that there is no intention to dedicate the way (for example, by citing the relevant legislation).  Furthermore, the notice must be of a size and design to make it obvious, and must also be sited so that it clearly relates to the use of the land that it seeks to protect. This may be difficult where there are no obvious physical routes through an area of land. 

Of course, the above also assumes that a landowner is aware of the extent to which their land is being used by the public, and of the particular routes being used.  This is not always the case.  It is not necessary for a landowner to be aware that public use is taking place in order for a right of way to be dedicated, provided that he would have been aware of it had he chosen to look (i.e. no secrecy is involved).

Given the above, by far the most effective way to demonstrate a lack of intention would be to deposit a landowner statement under section 31(6) of the Highways Act 1980.   The statement can cover the entirety of the landowner’s holding, and is accompanied by a map indicating the ways across that land (if any) that the landowner acknowledges to be public rights of way.  It constitutes a formal declaration to the effect that the landowner does not intend to dedicate any additional public rights of way over the land delineated on the map.  The section 31(6) deposit effectively stops the clock for 20 years.  Any public use of the land during this period will not count towards the establishment of new rights of way.  The landowner should renew the statement within 20 years, confirming that no new rights of way have been dedicated since the date of the previous deposit.  

Whilst the procedure is worth its weight in gold, it will not affect the existence of public rights of way already shown on the Definitive Map, nor will it defeat an application where it is possible to establish a 20 year period of uninterrupted use which expired before the initial deposit of the statement and plan.

It therefore remains essential to ensure that proper due diligence is carried out before acquisition or development in order to establish what rights the public may be entitled to.

Laura is a associate in our Planning team.

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