Protecting your land against new or upgraded rights of way

Public rights of way exist all over the countryside and are set out on a Local Authority’s Definitive Map. However, just because a route is not currently recorded on the map, it does not necessarily mean that a right of way does not exist. Surveying authorities are under a duty to keep the Definitive Map and Statement under continuous review and to make modification orders as necessary.

Therefore, if landowners allow the public to exercise rights of access over their land, they are at risk of that route becoming dedicated as a new public right of way. Similarly, the status of an existing right of way can be changed if the use changes. For example, if a footpath is also used by horse riders, it is possible for an application to be made to upgrade the status of the right of way to a bridlepath.

It is not always suitable for rights of way to be established over private land, such as for security purposes or protecting livestock and it is important for landowners to consider whether there is anything they can do to prevent it from occurring because the burden is on the landowner to actively prevent rights of way from being created or upgraded.

In order to prevent new rights from arising, a landowner needs to provide evidence that they have never intended to dedicate the way i.e. they have taken enough action to make it clear to the public that they have no right to cross the land. Examples of such evidence are:

• an interruption of the public’s use of the way, or other action by the landowner that make it clear to users at the time that the owner had no intention to dedicate e.g. physical restraint in the form of locked gates, fences or other obstructions (although care should be taken not to obstruct an existing right of way)
• verbally challenging users when you see them
• notices clearly displayed on the way, indicating that it is private

Another option is to lodge an application to the Local Authority under section 31(6) of the Highways Act 1980. This procedure constitutes a formal declaration by the landowner, confirming that he/she does not intend to dedicate any additional public rights of way over their land.  The declaration lasts for 20 years and ensures that any public use of the land during this period will not count towards the establishment of new rights of way. The landowner should then lodge a fresh declaration before the end of each 20 year period to confirm that no new rights of way have been established.

There are, therefore, various ways to try to prevent public rights of way from being created or upgraded but the best approach to take will always depend on the particular circumstances.

If you have any concerns about public rights of way over your land and would like to discuss whether you can prevent new or upgraded rights of way from being established, please contact a legal advisor in our Agricultural Law Team who will be happy to help.