Stopping rights of way accruing across your land
Introduction
Rights of way across land can be perfectly acceptable to a landowner, can annoy a landowner but no more but can in some circumstances have a significant valuation impact on current or future use. It is therefore sensible for landowners to at least be aware of how such rights can accrue and how in certain circumstances they can be prevented from accruing before they become fixed.
Rights of way can be public or private.
Public rights of way
A public right of way is as described a route used by the public across private land. Such a right is in law part of the highway but its use can be restricted. A public footpath is by foot only, a public bridleway is by foot, horse rider or pedalled cyclists, and a byway is open to all traffic. A right of way can be expressly granted (dedicated) to the public by the landowner; obtained by compulsory purchase; or obtained by long use.
Section 31 of the Highways Act 1980 provides ‘where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of twenty years, the way is to deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it’. The assumption therefore is an intention to dedicate unless there is contrary evidence. To prevent such an assumption of dedication taking place landowners need to consider:-
- Self help by putting in place physical restraints ( fences , other obstructions ) ; or even ( if practical ) verbal restraints / challenges over use
- Section 31(3) of the 1980 Act provides that where the landowner erects a visible notice ‘inconsistent with the dedication of the way as a highway’, that such a notice can be sufficient to ‘negate the intention to dedicate the way as a highway’. Creating a permissive path is an example of this.
- Section 31(5) provides the landowner with the right , that if any notice is torn down or defaced , to give a notice to the appropriate Local Authority that a way is not intended to be dedicated as a highway.
- Section 31(6) provides the landowner with a process to deposit a map and statement which details those ways dedicated as a highway across their land and indicating that no other additional ways over their land are dedicated as such.
Private rights of way
In contrast to public rights of way private rights are arguably more complicated in a legal context. A private right of way over land (an easement) can be obtained in a number of ways – expressly (often in a written deed of grant), by implication (often on sale off of part where rights over the retained land are acquired) or by prescription (long user). Whichever method is sought to be relied on an easement must also comply with four essential characteristics. They are: –
- There must be a dominant and servient tenement
- An easement must accommodate the dominant tenement
- The dominant and servient owners must be different
- The right must be capable of forming the subject matter of a grant
Creation of rights by way of prescription
Prescriptive rights can be obtained through common law, under the Prescription Act 1832 or as a result of the application of the doctrine of lost modern grant – all though seek to rely on twenty years user.
A claim in common law is quite rare as it is based on a rebuttable presumption that the rights have been exercised since 1189 (!) (the deemed year of legal memory being the commencement of the reign of Richard I) but if it can be shown that the land user was ever owned as one or the claimed right has not being exercised at all times (since 1189) then the right will fail. Accordingly most claims seek to rely on either the Prescription Act 1832 and/or the doctrine of lost modern grant. A key difference between the two is that the Prescription Act relies on the immediate twenty years use before a claim is issued (allowing though for an interruption in that twenty year period of one year) – whereas the doctrine of lost modern grant is based upon a judge made fiction that it is assumed that at some time in the past an actual grant did exist but has been lost but on the basis that a claimant can show twenty years user at some time that can be sufficient. Significantly therefore under the doctrine of lost modern grant once a right has accrued it can be relied on in the future.
However any prescribed right must have been exercised ‘nec vi, nec clam, nec precario’ (without force, without secrecy or without permission).
To therefore prevent an accrual of prescribed rights a landowner needs to either authorise the use or show that it the use has been with secrecy or with force. The Court of Appeal in Winterburn v Bennett (2016) gave some useful guidance that a suitably worded notice can be sufficient to prevent a claim in prescription from accruing. A sign stating ‘trespassers will be prosecuted’ is not such a sign (as it is somewhat meaningless in law as trespass is a civil remedy and not therefore relevant to any form of prosecution) but in the Winterburn case a sign stating ‘private car park, for the use of club patrons only’ was held to be sufficient to cause any use to be effectively ‘by force’.
Be it therefore public or private rights of way landowners need to keep a close eye on third party use of their land and, if appropriate, to take steps as they wish to avoid any such use becoming established and legally enforceable in the future.
© Richard Bedford
June 2020
Contact: Richard Bedford, Ebery Williams, richard.bedford@eberywilliams.com