There are two forms of evidence that may be relied upon when making a claim to add a right of way to the Definitive Map. There are claims based on historical evidence, but what about applications that claim a right by virtue of long use?
Can you defend against such claims and is there anything you can do to protect yourself from claims of this nature arising in the first place?
Section 31 of the Highways Act 1980 provides a statutory mechanism where a highway can be deemed to be dedicated as a public right of way under certain circumstances. The circumstances that must arise are the public having made continuous use of the highway as a right for at least 20 years, and that during that period, the landowner had done nothing to demonstrate their lack of intention to dedicate the highway to public use.
So let’s look at these circumstances in greater detail.
What is a claimed right of way? The 20-year rule explained
The legislation is clear when it states that for a right of way to be claimed by prescription it must have been used for a period of at least 20 years. This must be for a full 20 years, which is not always straightforward to establish.
The oddity here is that a path that is used once a month but every month for 20 years may qualify, whereas a well-trodden path that is used often but only for 19 years would not qualify under the statutory test.
It is not necessary for any one member of the public to have used the path for the full 20 year period (though obviously in circumstances where this is the case, it makes it much easier to establish evidentially that the use has been continuous), overlapping periods of use by many will suffice, provided that they add up to 20 years continuous use.
Periods of disuse or interruption during the 20-year period may render user evidence insufficient for the purposes of claiming a right of way under section 31.
It is however worth remembering that the Planning Inspectorate has issued guidance that periods of closure during the outbreak of foot and mouth disease do not in their opinion adversely affect claims based on continuous long user.
As of right
The other aspect that we need to unpack relates to the concept of ‘as of right’. These three words on their own may not seem important but it is upon these words that the ability to defend a claim for a right of way by long use often hinges.
The term ‘as of right’ stems from the common law, with its origins in Roman law. It means that the public must use the route ‘nec vi, nec clam, nec precario’, which means without force, without secrecy and without permission. The public do not have to believe that the route is public; this was finally clarified by the House of Lords in a case known as Sunningwell which found that ‘as of right’ can be read as ‘as if by right’. If we break ‘as of right’ down further into the component parts we can see more clearly how a claim for a right of way might be defended.
The use of the claimed right of way cannot have been via the breaking of fences or locks to gain entry. Force may not necessarily be physical; climbing over fences to gain entry would also not be useful evidence to claim a right of way by long use ‘as of right’.
Users hoping to claim a right of way by long use cannot rely on evidence which was gained by stealth or by knowing the landowner to be absent.
Finally, the use of the claimed right of way must be without the permission of the landowner. Use with permission from the landowner granted to a particular individual, for example, will not support a claim of dedication. Nor will a route that is clearly marked as a permissive right of way by signage or permission granted to the public or a class of employee.
But what can you do to prevent such a claim arising in the first place?
No intention to dedicate
If a physical action taken by a landowner or someone acting with their authority is taken to interrupt the enjoyment of the public’s use of the path by physically stopping their use, then this will have some bearing on the case. The common example used is that of a locked gate or bar across the path on one day of the year. Careful consideration is needed as to when and what length of time physical barriers should be utilised to protect the interests of the landowner.
It is also worth remembering that a challenge to enjoyment, such as a verbal challenge to a user, are not automatically considered to have interrupted them unless it causes the user to physically turn back or if permission is subsequently granted for them to continue their route (Poole v Huskinson 1843). Verbal challenges may be relied upon as evidence of a lack of intention to dedicate the right of way.
S31 (6) deposits
Often, one of the best mechanisms to put in place against a potential claim for a prescriptive right of way is by lodging a statement under S31(6) of the Highways Act 1980 with the local highways authority. This document acknowledges any existing public rights of way across the farm or estate and declares that the landowner has no intention to dedicate any further rights of way. Since 2013 these deposits have been valid for a period of 20 years rather than 10 years.
The fee for lodging such statements varies between local authorities and on how complex the application is. An application for an estate constituting many parcels of land will be more costly than a statement covering a single field.
There are however potential risks to using this statutory process in certain circumstances. CLA members can contact our legal department for further information.
Common law claim based on long use
S31 of the Highways Act doesn’t override provisions under the common law for claims based on long use. S31 is usually considered the easier option for claiming rights of way and is therefore generally preferred over common law. It should be remembered that the tests under common law are different but they do not require a full 20 years’ worth of use presenting a clear danger to the interests of the landowner.
This is a complex area of rights of way law with much at stake. If you find that you are facing a claim for a right of way based on long use, or if you want to put yourself and your land in a stronger position in the event of such a claim in the future, then you should seek professional advice by contacting the CLA’s legal team for further guidance specific to your case.