Public rights of way: protecting your land

Private landowners, particularly those managing large rural or agricultural estates, may find that members of the public have quietly acquired a right of way over their land simply through years of use — even if the landowner was entirely unaware this was happening. It does not matter whether there was ever any intention to allow it.

Under section 31 of the Highways Act 1980, a landowner is presumed to have dedicated a route as a highway if the public has used it as of right and for an uninterrupted period of at least 20 years.

Crucially, it is not necessary for the applicant to prove that the landowner ever intended to create a right of way — mere acquiescence in the face of public use can be sufficient.

How landowners can protect themselves: section 31(6) statements

One of the most straightforward protective steps available to a landowner is to lodge a Landowner Statement under section 31(6) of the Highways Act 1980 with the local highway authority. The benefit of doing so is that it provides sufficient evidence of the landowner's lack of intention to dedicate any public rights, unless there is clear evidence to the contrary. 

The first step requires the landowner to deposit a map identifying the land and a prescribed statement indicating whether any existing dedicated public rights of way are acknowledged.

The second step requires the landowner to lodge a prescribed declaration confirming that no new public rights of way have been dedicated since the initial deposit. In England, this declaration must be made within 20 years of the deposit date and must then be renewed on the same basis thereafter.

As to timing, the declaration is not retrospective — if any public right of way can be shown to have come into existence before the date of the declaration, the declaration will afford no protection. The earlier the declaration is made, the better.

Recent case law: Roxlena Ltd v Ramblers' Association

Landowners should be aware of a recent development concerning what constitutes an 'interruption' to public use for the purposes of section 31.

In 2021, Cumbria County Council made an order adding 18 new footpaths and a bridleway over Hayton Wood, owned by Roxlena Ltd. Roxlena resisted the order on the basis that public use had been broken by a four-month period in 2001 during which local residents were asked to stay out of the woods due to the foot-and-mouth outbreak.

The Court of Appeal drew a fundamental distinction between two concepts that had previously been conflated: an 'interruption' being an overt act or obstruction challenging the right and an 'intermission' being a temporary break in actual public use due to external circumstances. 

The Court found that a short and explicable gap in use would not lead a reasonable landowner to conclude that the public had abandoned its assertion of a right, drawing a parallel with temporary obstructions such as fallen trees or flooding. The correct question, the court held, was that the statutory test required an assessment of the whole twenty-year period rather than focusing exclusively on an isolated gap in use

Permission to appeal to the Supreme Court has been granted to Roxlena and the matter is currently pending determination. This is a case to watch closely, as the Supreme Court's ruling will provide definitive guidance on the scope of the statutory test.

Key practical recommendations

• Lodge a section 31(6) statement and, simultaneously, a section 15A statement as soon as possible. Do not wait until a potential claim arises.

• Renew the section 31(6) declaration within 20 years of the initial deposit (in England) and repeat this process on a rolling basis.

• Ensure that the plans in the section 31(6) declaration are to a scale of 1:10,000.

• The periodic closure of the access/ land which is documented.

• Supplement the statutory deposit with appropriate signage and, where use is permitted, formalise this by way of a documented licence or permissive agreement.

• Monitor any public use of your land and take prompt action to control unauthorised access.

If you would like to discuss any of the above, please do not hesitate to contact us.