A public right of way can be established through use by the public passing and repassing, from one highway or public place to another on foot, bicycle or horse. That is by trespassing. The trespass or use must be ‘as of right’ that is without permission, force or secrecy. There is no minimum number of people required but the use does need to be sufficient for a landowner to notice and be aware of that use.
Section 31(6) of the Highways Act provides that a way is dedicated ‘...unless there is sufficient evidence that there was no intention during that period to dedicate it.’ Usually after 20 years but in some circumstances it could be less.
Landowners should consider taking steps to let the public know that there is no intention of dedicating any public rights of way. This might be through appropriate signs or fences, although many will admit to such signs being ripped down or there not being enough signs to cover expansive areas of land.
The best way, therefore, to protect land from public rights of way claims is to deposit a statement and map with the appropriate council. The council will then process and hold the statement and map in a register, the register and a copy of the statement and map are then posted on the council’s website.
The statement and map, once deposited, provide protection for 20 years from the date of the deposit, it is not retrospective and does not cover claims for historic unrecorded highways. For the protection to be effective it needs to be renewed prior to the expiry of the 20 years (i.e. within 19 years and 365 days). A deposit will also ensure that if there is permissive access to enhance diversification projects, land is protected from ways becoming permanent and being claimed as public rights of way. There is a cost to do this but this will outweigh costs incurred and the effect on land values if a claim is submitted.
For public rights of way and village green protection, permissive access, advice on refuting public rights of way claims or making a claim, changing the network (for planning and other reasons), highway and highway boundary enquiries, town and village green, common land and other access enquiries including private access please do not hesitate to get in touch with Marcia Grice or one of our Public Rights of Way and Access to Land Team.
This article is from the spring 2019 edition of Agricultural Brief, our newsletter for farmers, landowners and others involved in agriculture. To download the latest issue, please visit the newsletter section of our website. Law covered as at May 2019.
To keep up-to-date with the latest news, legal updates and seminar information, please register and select the areas that are of interest to you.