The presence of the public exercising rights on private land can be fatal to prospects for its development. Yet developers can acquire land where a landowner has failed to take advantage of the statutory protections which would prevent new public access rights being created, or to prevent the public coming informally on to the land.
The result can be the creation of new public rights of way or, if recreational access is over an area of land rather than a linear route, a new town or village green. Given that public rights, once proven to exist, can be nearly impossible to remove or alter, developers need to be alert to the situation. Even where changes can be achieved, they can take a disproportionate amount of time, prove expensive and, frustratingly, can provide another vehicle for the public to try to defeat a development scheme.
Since 2016 local authority searches have revealed more information about the existence of recorded public rights of way over land, proposals for changes to routes and claims for unrecorded routes. This information, and a site inspection, should enable a developer to consider whether a site is vulnerable to additional access rights being claimed as a result of informal public use.
An optional search question will then establish whether land already has the benefit of statutory protection against the creation of new public rights of way or a new town or village green.
Put simply, new public rights of way can come into existence by reason of long public use. A landowner can prevent such rights accruing by demonstrating a ‘lack of intention to dedicate’ those rights. The best way to achieve this is by taking advantage of the statutory process in S31(6) of the Highways Act 1980. The process involves depositing a prescribed statement and plan with the local highway authority. This statement then provides 20 years’ protection against any claims alleging public use from the day it is made. It has no retrospective effect in respect of public use before the deposit date - which is why developers are urged to put this protection in place promptly if unprotected land is purchased.
Town or village green claims can succeed if there is 20 years’ informal recreational use of land by local people. Making a similar prescribed statement, under S15A of the Commons Act 2006, brings to an end the accumulation of the period of 20 years’ of use and so can defeat a claim. As with public rights of way, there is no retrospective effect and a claim based on 20 years’ use, which took place before the date of deposit, could still succeed – but there is only a one year window allowed for such a claim to be made after the deposit date.
All statements, whether made by the previous landowner or upon purchase, need to be renewed to remain effective. Some current statements only have a life of 10 years, while any deposits made now provide 20 years’ protection.
This can vary from site to site and the ‘mischief’ which a landowner or developer is seeking to protect against, and we would be pleased to advise you further. Public rights of way deposits are published on the highway authority’s website and notified to anyone who has asked to be told of such deposits, but are otherwise discrete. Town or village green deposits also require at least one site notice – so may require some further consideration in respect of bringing the landowner’s challenge to the acquisition of rights to the attention of the public, thereby triggering a claim. In both cases considering the specific background against any planned development proposals for the land should also be borne in mind to deliver the best outcome.
It is ideal if a deposit relates to all land in one ownership, so achieving an economy of scale on the Council’s fees. However, deposits can be made to protect specific areas of vulnerable land if this is more practical or where specific development proposals are contemplated.
The content of this article is for general information purposes only. For further information please contact Carol Ramsden from Birketts’ Public Sector Team.
This article is from the January 2018 issue of Room with a View, our newsletter aimed at professionals within the property industry. To download the latest issue, please visit the newsletter section of our website. Law covered as at January 2018.
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