13 March 2018 #Commercial Real Estate
The very real risk of an owner of land allowing rights of access over their land and then these leading to a dedicated public right of way was recently highlighted in the case of R v Cumbria County Council and Peter Lamb  EWHC 2651.
It is therefore worth considering how the local authorities assess whether a public right of way has been established, to hopefully prevent landowners from suffering from this potential incumbrance on their land.
Local authorities are placed under a statutory duty (by Section 53 of the Wildlife and Countryside Act 1981) to maintain a Definitive Map and Statement recording all public rights of way in their areas, and to continuously review the same. The Local authorities must update the Definitive Map where evidence is produced showing a previously unrecorded right.
How can rights arise?
New public rights of way can be created by grant, by order of a public authority or by specific dedication by the landowner. Usually rights come about by presumed dedication. This arises where the public have been enjoying a route for a sufficient period of time, without challenge.
Section 31(1) of the Highways Act 1980 sets out the test to demonstrate a presumed dedication. It must be shown that:
How can a landowner seek to prevent a dedication?
It is always advisable to erect clearly visible notices citing the legislation and to generally prevent access to the public by locking entrances or installing other devices to block access. Landowners can also seek to close a private accessway for one or more days a year.
If it is accepted that some public rights of way exist but the landowner is keen to ensure no new rights are obtained then a landowner statement under section 31(6) of the Highways Act 1980 should be deposited with the Local Authority. In effect this is a formal declaration that the landowner does not intend to dedicate any additional public rights of way.
The section 31(6) deposit means that any public use of the land within 20 years will not count towards the establishment of new rights of way. The statement can then be renewed before the expiry of that 20 years and so on.
It is also worth remembering the importance of property due diligence when purchasing land to establish whether there are any existing potential public rights waiting to be dedicated. The seller of land should always provide replies to standard enquiries and these will specifically ask if the seller is aware of any such rights. It would also be advisable to inspect the land at all times of the day (before committing to a purchase) to see if there is any public use of it.