FBC Manby Bowdler's David Raymont discusses the tricky issue of public right of way on private land.
There is a presumption at common law that land can be dedicated as a highway (footpath, bridleway etc.) if the way has been used by the public, as a right.
The presumption can be disproved by demonstrating that the landowner had no intention of dedicating the land to the public by putting up notices, erecting barriers, closing the way for one day a year etc. These may not be possible or practical.
Thankfully, there is also a statutory procedure which will also demonstrate a lack of intention.
Section 31(6) of the Highways Act 1980 allows landowners to deposit a map (with a scale of not less than 1:10,000) and a statement of what ways (if any) the landowner admits to be dedicated as highways with the local authority. The map will need to show what public rights of way already exist and therefore an examination of the local authority’s definitive map will be required.
This statement is not conclusive as to the existence or not of public rights of way over the land, it is simply a statement by the landowner of the public rights of way which the landowner does not dispute.
It may well be that all the public rights of way to which the statement refers are already marked on a definitive map of public rights of way, but not necessarily, in which case the definitive map may be modified to add the additional rights of way.
Within 20 years of the original statement (and subsequently at 20 year intervals) the landowner may make a statutory declaration that no additional land on the map has been dedicated as a highway.
A map and statement (and subsequent declarations) deposited under Section 31(6) are sufficient evidence (in the absence of proof of a contrary intention) to rebut the presumption that the landowner intended to dedicate as highway any land that is not accepted as being highway in the statement.
This procedure allows landowners to protect their land against the risk that it will be deemed to be a highway if it is used by members of the public as it stops time running in relation to any ways currently in public use where the dedication has not yet occurred. This might be of particular importance if the land in question has development potential.
The procedure is not retrospective so if any public rights of way can be shown to have already come into existence, the statement/declaration is of no consequence. Therefore the earlier the declaration is made, the better, especially since under common law dedication of a high can arise with less than 20 years of use by members of the public.
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