When the process of recording public rights of way on the Definitive Map was in full swing in the 1950s and 1960s, a significant number of routes which pass very close by, or give access to, farmyards and farm buildings were included in the surveying process. Whether these routes were actually used by the general public or were rather the means for the farm workers and farm visitors to come and go as part of the daily business of the farm must be debatable, but in any event many found their way on to the legal record.
Given the difficulty of proving that a route was not used by the public – and especially if its use since recording has been by the public – advice is that it is better to consider the impact of public access on a site within the conversion project than to seek removal of a route as wrongly recorded.
Whether it will be possible to obtain planning permission for a proposed conversion is of course the starting point for a project. Bearing in mind that the impact of development upon a public right of way is a material consideration for the planning authority, the following considerations should also be made:
- Can it be ‘designed in’? Perhaps a good option for a holiday let, where ready access to the public rights of way network for guests could be a selling point.
- Does it impact on privacy for a new home purchaser? Is there the option to divert to an alignment outside the proposed garden curtilege to address this?
- Is it likely to be a security concern for anyone running a business? Installing gates or barriers on a route which was previously ‘without limitation’ on the public’s right, is likely to constitute illegal obstruction, even if left unlocked.
- Bear in mind too when designing site access that whether a private right to drive exists along a public right of way can be a complex question and should not be presumed.
- If the best option for the project is to propose altering the public’s right of way, timing is important. It may well take considerably longer to divert a route than to obtain planning permission, but the ability to obtain change of use consent for agricultural land to create a garden curtilage may dictate where a route should be diverted to.
- Finally, factor in managing a route while building works are being carried out. If a route is to stay on its current alignment, but is affected by works in the short term, then a temporary closure order is a sensible way forward.
With the benefit of hindsight, and given that dealing with a public right of way on a conversion site is bound to increase costs, it is tempting to dwell on whether there should have been more scrutiny of why routes through farmyards and by farm buildings were included in the recording of public rights of way. Did use at the time really meet the definition of use by the public? Realistically though, given the time that has passed, accepting the status quo and addressing it has to be the best way forward.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2022.