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Highways and Byways

The laws governing public rights of way are a historically fascinating legal minefield. Over the years we have built expertise to enable us to advise clients on a range of issues, which can present themselves in a variety of circumstances, often linked to planning decisions.

The basic rules are that land can only become a highway if its owner dedicates it for use by the public (rather than simply by another landowner), and if it is accepted by the public for that purpose. The legal maxim ‘once a highway, always a highway’, holds true save for some situations. In a perfect world the dedication would be documented properly, but in most instances it is inferred. Cases commonly fall into two categories: the first are those where the use is shown to have existed in historical times, perhaps through a route being shown on an old map; the second is where witnesses attest to their own use of the route in modern times. 

Either way if the route is reckoned to have been in use by the public for long enough then dedication would be likely to be inferred, so that the interpretation of different kinds of evidence is of crucial importance. Niall Blackie has had to advise on the evidential quality of many different kinds of map in this context. He is well used to interpreting Inclosure Awards, Tithe Maps, Finance Act 1910 Maps and valuation books. He has also had to unpick evidence as to use which may be patchy so as to expose shortcomings in what may appear a difficult case to resist by a landowner.

Definitive maps of many kinds of route are kept under the Wildlife and Countryside Act 1981, and our work has involved the presentation of cases at many public inquiries into Modification Orders under that Act

The same basic rules will apply to vehicular highways but important considerations may apply to whether the route is maintainable at public expense, depending on when the dedication is presumed to have taken place. This can often have important ramifications for development potential, where proving that a track is already a highway might mean that difficult objections can be overcome. 

Our work is often important too where a footpath or road needs to be stopped up or diverted in order to make way for development, since the procedures for such orders can be difficult to steer through, and since local opposition may be difficult to overcome.

The key to dealing with cases involving highways is always a sharp focus on historical detail and a thorough understanding of the legal principles

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