Rights of Way – Landowners Take Note
Landowners who wish to prevent their land becoming part of the public highway should take note of two recent decisions in the House of Lords.
The cases dealt with what constitutes a landowner’s ‘sufficient intention’ not to allow their land to be dedicated as a public highway.
Land can become a public highway by being added as such to the Definitive Map maintained by the county council, provided an application is made. The Definitive Map shows publicly accessible bridle ways, footpaths and byways and once entered onto the Map, the status of the highway is conclusively proved.
For property owners who do not wish their land to become open to the public, the correct strategy is therefore one of prevention. Until recently, all that was necessary to prevent an application for the Definitive Map to be altered was for the landowner to write to the council opposing it or to demonstrate some prior right over the land in question (i.e. that it is let to someone else). However, the Lords’ decisions mean that this is no longer sufficient.
It is now recommended that any landowners who wish to oppose an application, or to prevent one being made, consider taking further measures, such as erecting appropriate signs advising that the land in question is not a public right of way and obstructing paths. Trespassers should be advised that the land concerned is not open to the public.
It is recommended that evidence should be retained of all measures taken.
If land is used as a public right of way for 20 years without steps being taken by the landowner to preserve their right to exclusive use of the land, and without demonstrable intent to oppose dedication of the land as a public highway, the right to prevent the land concerned being dedicated as such will be lost.
Says Rupinder Kang“Landowners are also advised to review periodically the status of any measures they have put in place (e.g. signs and obstructions) and to repair or replace them as necessary. This will enable them to demonstrate their continuing intention to retain their exclusive rights over the land, should the question arise.”
Partner Note
R (on the application of Godmanchester Town Council (Appellants) v Secretary of State for the Environment, Food and Rural Affairs (Respondent) and one other action R (on the application of Drain) (Appellant) v Secretary of State for the Environment, Food and Rural Affairs (Respondent) and other action [2007] UKHL 28. See
http://www.parliament.the-stationery-office.co.uk/pa/ld200607/ldjudgmt/jd070620/godman-1.htm.