Public Rights of Way: How to keep the curtains open without seeing dog walkers!

When purchasing a property, it is important to ensure you are fully aware of any public rights of way crossing the property or near to it.

Those seeking peace and quiet in their new home will often want to ensure they are not besieged by local ramblers on the warpath.

Public rights can be divided into four categories

1. Footpaths (people on foot only)
2. Bridleways (people on foot, cyclists and horse riders)
3. Restricted byways (people on foot, cyclists, horse riders and any other transport without a motor)
4. Byways open to all traffic (people on foot, cyclists, horse riders, cars and any other transport with a motor)

There are exceptions for people in mobility scooters and powered wheelchairs.

A local authority and highways search obtained as part of the due diligence when purchasing a property should reveal any public rights of way crossing or abutting the Property. However, your solicitor should also enquire of the seller whether they are aware of any applications or pending submissions to add any public right of way to the definitive map or extend an existing public right of way which would abut and/or cross the Property.

The highways search will only reveal rights of way that are recorded as public rights of way at the date of the search result. Where a public right of way is shown on the local authority's definitive map, that is conclusive evidence that it exists. However, definitive maps can be incomplete or not up to date which means that they are not conclusive evidence that no public right of way exists.

There are different ways in which new public rights can be created including (1) by express grant, (2) by order of a public authority, (3) dedication by the landowner and (4) presumed dedication.

Presumed dedication arises where the public at large have used a defined route for a 20 year period without permission from the landowner. Creating rights of way under presumed dedication is something that any purchaser should be mindful of when purchasing a property. Whilst the burden of proof is high for presumed dedication your solicitor should raise enquiries of the seller to determine if there has been any activity which could amount to presumed dedication.

What can you do to ensure the privacy of your home?

It is possible to:

1. Deposit a landowner statement under section 31(6) of the Highways Act 1980 with a map marking any ways across the property that the owner accepts are public rights of way and includes a declaration that the landowner does not intend to dedicate any new public rights of way across their property. This will “stop the clock" on the 20 year period and (unless the public can provide evidence to the contrary) any use of the property by members of the public during this period should prevent against new rights of way being established.
2. Apply to divert footpaths, bridleways and restricted byways provided certain requirements are met including that the diverted route is not substantially less convenient to the public. However, this can be a costly and drawn-out process especially if objections are raised. You should always get the right advice and, to avoid objections, ensure that any diversion benefits not only you but also members of the public.

Forsters can assist you with both these options and provide advice on public rights of way that currently affect your property or may affect a future property you are interested in purchasing.

Following a purchase, we always advise our clients to take active steps to ensure that rights of way are acquired which may include ensure your boundaries are fenced, any gates specify that there is no public access, and you remain vigilant as to any members of the public gaining access to the Property.