Members of the public often see land as a ‘free-for-all’ and take it upon themselves to wander across it, without permission. This will be a familiar story to many of our farming clients and it is a frequent cause of frustration. Not only does a landowner need to protect their crop / minimise risk to their animals and consider insurance, but the exercise of a way can inadvertently create a footpath.
By way of background, if a route is used by the public as of right (i.e. without consent) and uninterrupted for a period of 20 years or more, it is deemed to have been dedicated as ‘highway’. Landowners should consider carefully what they can do to prevent such rights from being created over their land.
Where the owner of land has erected a “private” sign and has maintained the same, the notice is sufficient evidence to negate the intention to dedicate the way as a highway. A landowner may erect such signage, notwithstanding the existence of a tenancy.
Where a private notice is subsequently torn down or defaced, a notice could also be given by the owner of the land to the council explaining that the way is not dedicated as a highway. This too is sufficient evidence to negative the intention of the owner of the land to dedicate the way as a highway. Such processes are governed by Section 31 of the Highways Act 1980.
Section 31(6) provides a two-stage process:-
The landowner must:
Deposit a Highways Statement with the local Council comprising of:
A map showing the land that is the subject of the statement; and
Completed form CA16.
The statement must be accompanied by the relevant fee plus an additional cost per any additional notices and each Council has their own set of charges for handling Section 31(6) deposits.
Complete a Highways Declaration.
The following points should be remembered when making a Section 31(6) Declaration:
It does not act retrospectively and if rights have already been created through long use (for a period of 20 years of more), the deposit has no effect on those rights.
If there are pre-existing public rights of way crossing the land that is the subject of the statement, the applicant must acknowledge them on a map of their land.
The landowner must make the deposit under s.31(6) and it can only cover land you own in fee simple (land you have freedom to dispose of).
If the land is owned land jointly or as part of a trust, all owners must be listed on the deposit.
After the deposit has been lodged with the council, the application is complete and the land will be protected for 20 years upon expiry of which, the declaration will be required to be renewed.
An alternative approach, of course, is to grant specific individuals a licence to use the land - this will prevent a claim being made by a member of the public as the land will have been used with consent and thus not meet the required criteria.
How can we help?
If you have any concerns about unlawful use of your land by the public or require advice in connection with any other land issues, Eccles Heddon has an excellent property department, and a member of our team will be happy to assist you.
Telephone Joanna Magrs – 01765 601 717
Visit Joanna’s Profile to learn more about Joanna.
