Public right of way – or is it?

Posted on: November 28th, 2018

Although most common in relation to rural property, issues regarding public rights over private property are equally as relevant to commercial properties and there are some practical things private landowners should try to keep a look out for. Derek Walsh, Agriculture and Rural Business specialist, outlines what actions can be taken to give you the best opportunity to try and prevent the public from acquiring rights over your property – particularly if this is something which has been happening over a long period of time.

There are a number of ways that public rights of way can be established but here we are looking at those that can arise by use over a period in excess of 20 years. It is a complicated area but one of the key aspects is whether that use has been exercised “as of right” during the relevant period – that is to say without secrecy, without permission and without force. If these elements are satisfied then a landowner may be said to have acquiesced in that use by the public.

What to look out for

In many cases the use will be obvious, walkers/cyclists/horse riders may be seen actually using the routes. In other cases, for example where the property is not easily observed (a good example being rural locations), then there may be tell-tale signs including well worn paths or gaps in fences or hedges. Indeed, paths through fields will generally be easier to spot than, say, a shortcut being used across a tarmacked car park.

In other cases there may be no clear indication and the issue may only come to light following the purchase of a property by which time it may already be too late to prevent rights being acquired. It is therefore important that the right questions are asked of the seller prior to purchase.

As soon as there is any indication of such use, steps should be taken to challenge it before the 20 year period elapses.

Steps you can take

Assuming the 20 year period has not already passed and depending on the nature of the use and/or the circumstances on the ground some of the following may be appropriate:

  1. Lodge landowner deposits with the local authority – this will not prevent any historic rights that may have already been acquired by long use but it will prevent rights being acquired that have not yet been in use for over 20 years. The landowner deposit can also be used to prevent village green rights being acquired over land.
  2. Erect signage to notify users that the use is prohibited. The wording can be critical and a sign simply stating “Private Land” is unlikely to be sufficient in itself. Signs should be erected at all known or likely entry points. Take photographs as evidence of when and where they were erected as there may be instances of signs being torn down or removed.
  3. If appropriate, grant permission and document it – a right cannot be acquired if it is done with the landowner’s permission. The permission can be revoked at a later date.
  4. Repair gaps in fences and place signs (as above) at these points. There have been a number of recent incidents where homeowners have installed gates in their garden fences to allow easy access to fields for the purposes of dog walking or for recreation. The owners of these properties should be contacted and required to remove those gates.
  5. Challenge any users (avoiding confrontation) and keep a diary note of when and where they were seen and the nature of the exchange that took place – this will be good evidence if there is a question as to whether the landowner objected to the use in question and communicated that objection.

If you would like further information please contact Derek Walsh or our Agriculture and Rural Business Team