How to protect yourself against new Public Rights of Way

Section 31 of the Highways Act 1980 sets out the process by which new public rights of way (PROWs) can be deemed to have been dedicated (created) as a result of long term use. If a way

(be it a footpath, bridleway or highway) is used by the public for 20 years as of right, a PROW is deemed to have been dedicated – that is, unless the landowner can show that he or she had no intention to dedicate the way as a PROW.

Demonstrating that lack of intention is sometimes not as easy as one would think. Use of notices or physical barriers is not fool-proof, and countless landowners have had an unpleasant surprise when public rights of way were established despite their best efforts at warding off members of the public.

One sure way of establishing a lack of intention is the procedure set out in section 31(6) of the Highways Act 1980. This involves the landowner depositing with the Local Authority:

• A map of the property, showing any existing PROWs;
• A statement to the effect that the landowner does not intend to dedicate any further PROWs other than those shown on the map;
• A declaration, by which the landowner declares that no new PROWs have been dedicated since the statement was deposited.

The landowner must lodge his or her declaration within 20 years of the statement in order to complete the protection afforded by section 31(6). The landowner can maintain that protection by lodging a declaration at least once in every 20 years.

As well as maintaining a map of PROWs within its administrative area, the Local Authority also keeps a register of landowner deposits, which can be viewed online or on paper. A statement and declaration contained within that register is evidence against the dedication of a new PROW.

Town and Village Greens - section 15A(1) of the Commons Act 2006

Where privately owned land is used by a significant number of local people for sports or recreation, any person may apply to register that land as a town or village green.

In order to protect against this, a landowner may deposit with the Local Authority a so-called “Landowner’s Statement” in a prescribed form. The landowner states that he or she wishes to bring to an end any period in which any person has used the land for lawful sports or recreation. This restarts the clock on any period of use, but does not prevent a new period from beginning. Provided the Landowner’s Statement is made every 20 years, any potential applicant will never be able to show the necessary 20 years of use required for registration as a town or village green.

Battens advises its clients to make a Landowner’s Statement at the same time as a statement under section 31(6) Highways Act 1980, even if the landowner is not aware of any public use of the land. In some Local Authorities, there is no additional fee for making a Landowner’s Statement if made together with the s31 Highways Act 1980 statement referenced above.

For more information, contact Battens’ Agriculture & Rural Property Team 01935 315573