Once a highway always a highway
27 April 2009
Background
County Councils must keep definitive maps showing all footpaths, byways, bridleways and roads used as public paths that, in the opinion of the County Council, are public rights of way. Where a highway is shown on the definitive map, that is conclusive evidence of its status as a public highway. Once established, it is very difficult for land to cease to be a highway. This only usually occurs if the highway physically disappears (a cliff path falling into the sea) or is closed by a statutory procedure. So what can a landowner do to prevent new highways being created?
What is a highway?
The common law definition of a highway is a common route which people can pass and repass along as frequently as they wish without hindrance and without charge. A highway can be created if both the following events occur:
• the owner of the land expressly or impliedly dedicates a right of passage over that land to the public at large
and
• the public accepts that right.
Whilst there are no formalities required for express dedication, presumed dedication can happen either at common law or in accordance with statute. However, since 2nd May 2006, a vehicular right of way cannot be created by presumed dedication.
Dedication: common law
The common law presumption is that land has been dedicated as a highway if it has been used by the public as of right. The land does not have to be used for a defined length of time. The presumption can be rebutted by the landowner by showing that he has stopped people using the highway or has restricted use of the highway to a particular section of the public.
Dedication: statute
Dedication under section 31(1) of the Highways Act 1980 is presumed if the highway has actually been enjoyed by the public as of right and without interruption for 20 years. This can be rebutted if there is sufficient evidence that there is no intention during the 20 year period to dedicate it. As with private rights of way, use “as of right” means that it must have been used without force, secrecy or permission.
No intention to dedicate
If the landowner does not have an intention to dedicate, then he must communicate that lack of intention. This could involve erecting and maintaining a suitable visible notice that is inconsistent with the dedication of a highway. However, the best way to do this is by lodging a statement and declaration under section 31(6) of the Highways Act 1980 with the local authority. This declaration must be lodged within the first and every subsequent period of 10 years from the date of the deposit of the map or the date that a previous declaration was lodged. The local authority will not remind the landowner that they need to re-lodge the declaration every 10 years. If the statement is not so lodged then potential rights of way can still be claimed. Unfortunately, the statement and declaration relate only to future claims and not to past ones.
Thus, every landowner should be vigilant to ensure that future public rights of way are not created, because the price of failure can be high: once a highway always a highway.
Sue Hart
Partner & Head of Property Services
01622 690691
www.brachers.co.uk
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