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New Public Rights of Way - Protecting your land

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Some landowners are more than happy to allow the public rights of access over their land, more often than not by means of well-trodden paths or bridleways taken for granted by the local community. For landowners though, this situation has the potential to become hugely problematic unless steps are taken to prevent the creation of officially dedicated rights of way.

What are the risks of doing nothing?

The risks are huge for landowners failing to protect their land, as it is entirely possible for dedicated rights of way to be granted by a Local where it can be proven that there has been at least 20 years of uninterrupted use by the public. This was highlighted in the case of R (on the application of Roxlena Limited) v Cumbria County Council and Peter Lamb [2017] EWHC 2651, in which the court upheld the District Council's decision against the landowner to make an order recognising over 40 new public rights of way across privately owned woodland.

What is the law?

Section 53 of the Wildlife and Countryside Act 1951 requires that local authorities maintain a Definitive Map and Statement recording all public rights of way in the local area. The local authority is obliged to keep these documents under continual review, and when evidence is submitted showing that a public right of way exists, or is reasonably believed to exist, the local authority is required to update the Definitive Map and Statement to substantiate its existence. This is called presumed dedication and is the most common means by which a public right of way is officially recognised.

Presumed dedication can be subject to challenge by means of an inquiry held by the Secretary of State. When this happens, all of the circumstances of the case are considered and it is decided upon the balance of probabilities whether or not the right of way exists. This has the potential to lead to expensive and difficult litigation, which is easily avoided by means of prior planning and appropriate preventative measures.

Should I physically protect my land?

There are various steps that landowners can take to physically protect their land from presumed dedication. For example, a landowner can display carefully worded notices expressly prohibiting access to the land, they can challenge members of the public using the land, or even create physical obstructions to the land using fences and locked gates. A landowner can also choose to grant express permission to members of the public to use specifically designated rights of way. However none of these methods are failsafe, particularly given the exacting requirements of such prohibitive measures.

So what is the best possible solution?

Without question, and in accordance with the Highways Act 1980, the most effective way for a landowner to protect against new public rights of way is to acknowledge all existing rights of way, and declare that there is no intention to dedicate any further routes for public use. The process is relatively straightforward and extremely effective. The landowner must deposit a statement and accompanying map to the local authority, followed by a further declaration. This stops time running for the acquisition of new public rights of way through use, and also provides an effective challenge to all future claims.

By taking these steps a landowner is able to protect their land for an initial period of 20 years, after which time perpetual protection can be obtained by simply renewing the original statement every 20 years to confirm that no new rights of way have transpired since the date of the last deposited statement. Despite not affecting the existence of public rights of way already shown on the Definitive Map, and being unable to defeat public rights of way subject to presumed dedication prior to the date of the deposit, this process is clearly the most invaluable solution for landowners looking to protect their land from new public rights of way.

At Gepp Solicitors we can advise on all aspects of property law. For more information and guidance, please contact Richard Jackson on 01245 228134 or email jacksonr@gepp.co.uk

This is not legal advice; it is intended to provide information of general interest about current legal issues