• Public rights of way

    What is a public right of way?

    The term “public right of way” is used to denote a minor “highway” such as a footpath or bridleway.  The public can lawfully traverse the way at all times regardless of whether the land subject to the right is in private ownership.  How the right can be exercised differs depending on its type. For example a bridleway may be used by pedestrians, riders on horseback and pedal cyclists. Some public rights of way can even be used by motorised vehicles.

    Problems and duties

    The exercise of public rights of way can be burdensome for the landowner. For  instance, landowners must ensure that the right of way is maintained, that animals do not prevent the public from using it and that gates or stiles are kept in good condition.  Landowners must also not exhibit notices that discourage the public from using the way.

    The Definitive Map

    It is apparent that it is in the interests of a landowner (as well as the public) to be aware of the existence and whereabouts of current public rights of way and to also be aware of how new rights can arise.

    The Definitive Map and its accompanying Definitive Statement of Public Rights of Way together comprise a legal record maintained by your top tier local council (e.g. county councils) of public rights of way at the date of the Map and Statement. The council is  also under a duty to ensure that such rights of way are maintained for public use.  The Definitive Map and Statement are public documents that are usually available to view at the council’s offices or via the council’s online portal.

    Despite the use of the word “definitive”, Definitive Maps and Statements are not comprehensive. Historic routes of public rights of way often go unrecorded (but are still public rights of way) and new routes may become established that could be the subject of an application to note them on the Definitive Map and Statement.

    How are public rights of way created?

    Express dedication is one way, and, presumed dedication is the other.

    Express dedication, as the term suggests, is made by the landowner expressly dedicating the land for such public use.

    Presumed dedication can arise both  under common law and by virtue of the Highways Act 1980.  In very basic terms, if land has been enjoyed for use as a right of way by the public as of right, and without secrecy or interruption, for 20 years (in some cases a shorter period is sufficient) the possibility of a claim of a new public right of way arises.

    Preventing public rights of way from developing

    A landowner can attempt to defend new claims to presumed dedication of public rights of way by demonstrating that they lacked the intention to dedicate the land as a public highway. This could  be shown by actions such as:

    • Preventing people from using the route e.g. by locking of gates for some days;
    • Restricting use of the highway to a particular class of person (so, access is not available to the public at large);
    • Challenging users of the route; and
    • Displaying notices making clear that there is no right of way.

    These methods are not always sufficient to ward off a claim, however.

    Highways Statements and Declarations

    A good way to prevent a public right of way developing over the 20 year period is to lodge a Highways “statement” and plan (and thereafter a “declaration”) to the relevant council using form CA16.  The statement and plan identify any current public highways on the owner’s land, for entry on the Definitive Map.

    No later than 20 years after lodging the statement (but not at the same time), the landowner can lodge a “declaration” with the council that there is no intention on behalf of the landowner to dedicate (allow the creation by long user of) any more public rights of way. Provided that declaration is made before a new public right of way has been established by at least 20 years’ use as of right, it will stop the clock and prevent any such new public right of way coming into existence. Such declarations need to be renewed every 20 years (every 10 years in respect of pre-2013 statements) to prevent a claim for a public right of way by 20 years’ use.

    If someone applies to register a public right of way over your land, don’t wait until near the expiry of the 20 period since your “statement” was lodged, before lodging your “declaration”. Get your declaration in as soon as reasonably possible and before the claimed public right of way is registered on the Definitive Map.

    Please beware that the council will not issue reminders to landowners to renew their “declaration” every 20 years, so the onus is on the landowner to diarise when a new declaration should be lodged.

    Town and village greens

    Town and village green rights can develop over land where the public use it “as of right” for lawful sports and pastimes for at least 20 years.  Registration of land as a town and village green could, for example, prevent any development proposals for that land and perhaps, in practice, adjoining land also.

    Anyone can apply for registration of a town and village green under section 15(1) of the Commons Act 2006

    The good news for the owner of that land is that Form CA16 can also be used to deposit a “landowner statement”. If that is lodged before the land has been used for the full 20 years by the public for sports and pastimes, then it stops the clock. As with the public rights of way “declaration” discussed above, the landowner will need to lodge a new landowner statement every 20 years if it wants to prevent new applications for registration of a claimed town or village green.

    Even if the public have been using part of your land for sports and pastimes for 20 years or more when you lodge a landowner statement, it is still worth you lodging the landowner statement, if the council has not already registered the land as a town and village green. In those circumstances, relevant members of the public would then have a year from the date of lodgement of your landowner statement to apply to register a town and village green. If they failed to apply in that year, they would have to start another 20 years of use (which could be interrupted by you, as the landowner, lodging another landowner statement before that 20 years expires).

    Summary

    If you are worried that public rights of way or town and village greens could be created and registered against your land, take legal advice on whether Form CA16 and the procedures discussed above might be of help.

    This article was first published in the May 2024 edition of South East Farmer.

    This content is correct at time of publication

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