Relevance

The public has gained increasing awareness of rights to roam and of access to land in recent years. In this article, Veronica Carey highlights the risks to private landowners of new public rights being acquired over their land through long use by the public. She also explores some of the ways in which landowners can protect themselves against these risks.

Pitfalls

Local authorities (in their capacity as ‘surveying authorities’ under the Wildlife and Countryside Act 1981) are required to maintain a ‘definitive map and statement’ recording and describing public rights of way in their area. The map is open to public inspection. The term ‘definitive’ is something of a misnomer. Buyers and developers should be aware that the map is not conclusive evidence of all public rights of way.

New public rights of way can be created on the basis of long use of a route by the public. A member of the public can make an application to the local authority for an order modifying the definitive map and statement to record new rights. Any new right recorded on the map will correspond with the nature of the use: usually a public path (a footpath or bridleway), but a way might be recorded as a ‘restricted byway’ if there has been use by non-mechanically propelled vehicles. Any application would have to be supported by sufficient evidence demonstrating use of the route by the public.

A landowner can object to an order made by the authority. Any objection made must be referred to the Secretary of State for the Environment, Food and Rural Affairs for a determination (whose authority to make a decision is usually delegated to an inspector from the planning inspectorate). The Secretary of State can either confirm, decline to confirm or modify the local authority’s order. The Secretary of State’s decision can only be challenged on very limited grounds.

An applicant will usually rely on section 31 Highways Act 1980 when making an application to modify the definitive map. Under section 31, a landowner is presumed to have dedicated a way as a highway if the route has been enjoyed by the public, without interruption, for a period of at least 20 years. For the statutory presumption to arise, it is not necessary for the applicant to demonstrate that there was an intention on the part of the landowner to dedicate the route as a highway. They simply need to show that the use has been of a particular character: that it has been open, without force and without the landowner’s permission. There is particular risk of the public acquiring rights where the public have used a route without the landowner’s permission in circumstances where the owner knows or ought to know of the use but does nothing to prevent it (i.e. the landowner acquiesces in relation to the use).

Under the common law, a period of less than 20 years use may be sufficient to establish a new right of way. However, it is not easy to establish a claim on this basis. The applicant must show that the owner intended to dedicate the route as a highway. Evidence based on use by the public must be sufficient to justify an inference that the landowner intended to divest himself forever of the right to exclude the public from using the way. It is also difficult to establish a claim against a landowner in respect of periods of use during which the land is let, mortgaged or held by trustees. Historically, the courts have found that landowners are not legally capable of dedicating a route for use by the public in these circumstances.

There is further risk that if significant numbers of local people use land for recreation for at least 20 years, an application could be made to the commons registration authority under the Commons Act 2006 to register the land as a ‘town or village green’. An application, if successful, would severely restrict the landowner’s use, impede any development, and have a devastating impact on value.

Text Boxes: Legislation

Highways

Sections 53(2), 53(3) and 55(3) Wildlife and Countryside Act 1981 (as amended by the Countryside Rights of Way Act 2000) obliges the surveying authority for an area to maintain a definitive map and statement recording public rights of way, keep it under review, and modify it to show new rights of way over a public path or restricted byway in the area.

Under Section 31(1) Highways Act 1980, a way is presumed to be dedicated as a highway if:

• it has been actually enjoyed by the public as of right, and without interruption, for 20 years; and
• it is not of such a character that public use cannot give rise to a common law presumption of dedication.

The presumption applies unless there is sufficient evidence that there was no intention during the 20 year period to dedicate it.

The 20 year period for establishing a right is calculated backwards from the date on which the existence of the highway is brought into question (section 31(2), Highways Act 1980).

Section 31(3) Highways Act 1980 protects a landowner who has erected a visible notice inconsistent with dedication of the route as a highway. The notice, in the absence of proof of a contrary intention, is sufficient evidence to negate the presumption of an intention to dedicate the way as a highway.

Section 31(6) Highways Act 1980 contains a procedure by which a landowner can rebut the presumption of deemed dedication. The landowner must deposit with the council:

• a statement in the prescribed form identifying any ways that the landowner admits to being a highway and a map of the land to a specified scale; and subsequently
• a declaration in the prescribed form that no additional land has been dedicated as a highway since the deposit of the statement. For statements and maps deposited in England since 1 October 2013, the declaration must be deposited within a period of 20 years, calculated from the date of the deposit of the statement and map, or for subsequent declarations, the date the last declaration was lodged.

Where the procedure is used, the period for establishing a statutory presumption of dedication under section 31 (1) of the 1980 Act runs back from the date of the deposit of the statement and map.

Town or Village Greens

Section 15(2) Commons Act 2006 contains a right for a person to apply to the commons registration authority to register land as a town or village green where:

• a significant number of inhabitants of any locality or neighbourhood within a locality have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; and
• they continue to do so at the time of the application.

Section 15(A) Commons Act 2006 enables an owner to deposit with the commons registration authority a statement and map to bring an end to the qualifying period of use.

Landowners can protect themselves against these risks in a number of ways. These include:

• depositing a statement and map under section 31(6) Highways Act 1980 with the appropriate council and section 15A Commons Act 2006 with the commons registration authority to stop time running against the landowner and bring qualifying use by the public to an end. However, this will not assist a landowner where 20 years’ qualifying use has already accrued. The authorities are obliged to publish the deposits, and so where 20 years’ qualifying use has accrued, a deposit may precipitate an application;
• actively managing the land to prevent physical public use of it. Access which involves removing physical obstacles to entry or passage does not count as qualifying use;
• prohibiting access by erecting appropriate signs. Contentious use will not qualify for the purpose of an application;
• permitting access to particular groups. Any use by groups accessing land pursuant to a permission is not qualifying use;
• using the land in such a way to interrupt use by the public or in a way which is inconsistent with their use (for example, actively farming the land); and
• making an application for planning permission, which is one of a number of events specified in Schedule 1A Commons Act 2006, which suspends the right to apply to register land as a green.

If an application is made to register public rights, it is important to investigate the history of ownership and of use of the land, and assess the merits of an application at an early stage.