Protecting Land from Claimed Public Rights of Way – notices

September 6th, 2010  |  Published in Information

Public rights of way can arise over land following a period of use of a route by the public.  Prudent landowners will wish to take steps to prevent rights arising, particularly, where it is impossible or undesirable to prevent the use from happening.  This article looks at the ways in which the law treats the common notices (or signs) that landowners erect.

As discussed elsewhere on this site, public rights of way can be claimed following a period of public use of a route.  Landowners can take a number of actions to prevent or diminish the chances of such claims being successful.  One of these ways, given particular legal status by the Highways Act 1980 is the erection or retention of notices ‘ inconsistent with the dedication of the way as a highway.’

Section 31 of the Highways Act 1980 sets out the basis for presumed dedication of a highway (a term that includes public rights of way such as footpath and bridleways) under statute.  This section has its origins in the Rights of Way Act 1932 which also gave special legal status in relation to claims for public rights under Section 31 to certain notices erected by landowners.  This provision is retained in Section 31(3).  Section 31(3) provides that where the owner of the land has erected ‘in such a manner as to be visible by persons using the way a notice inconsistent with the dedication of the way as a highway’ and ‘has maintained the notice after the 1st January 1934, or any later date on which it was erected’ then ‘the notice, in the absence of proof of a contrary intention, is sufficient evidence to negative the intention to dedicate the way as a highway.

The Rights of Way Act 1932 had its origins in a private member’s bill.  Lord Hoffman in considering the Act in the Godmanchester case commented that he would not expect such an Act to be ‘particularly elegant’, a comment that suggests that the Act is rather difficult to translate into practice.  This is particularly true in relation to Section 31(3) and notices.

First what is meant by a ‘notice’?  In other parts of the Highways Act the term ‘notice’ frequently means a document that is served on a local authority or other party.  But that is not what is meant here.  In Section 31(3) the term notice equates to a sign that is directed at members of the public.  Commonly on user evidence forms supplied by local authorities for use by those claiming paths user witnesses are asked if they have seen ‘signs’.

Secondly it is clear that for any notice to have legal effect it must be ‘visible by persons using the way’.  This has been taken to mean that not only must it be legible and of a size and design to make it obvious, but also that it must be sited so that it clearly relates to the use of the land that it seeks to protect.  Where there are no obvious physical routes through an area of land it may be sufficient to erect signs at the entrance points to the land, but in cases where there are obvious physical routes (such as farm access tracks, or ‘set aside’ strips along fields) the Act has been interpreted as requiring notices to be directed at those using the way.  This can be tricky to achieve.  Take for example an area of woodland with an access path for anglers through it.  The landowner has erected a notice saying “Private” and placed it high on a tree, one or two trees back from the pathway.  There is no notice on the gate at the boundary of the land.  When a claim arises that the access path has been used by the public and is therefore a public right of way the landowner seeks to rely on his ‘Private’ notice.  He says that it clearly shows that he had no intention to dedicate the path as a public footpath.  The user witnesses, however, say that they considered that the notice, erected away from the path, on a tree related to the woodland and therefore, they consider that the notice was not directed at them – even though it was visible and legible.  In such circumstances an Inspector determining the matter has to consider what a reasonable person would reasonably interpret that the notice meant and would be quite likely to decide that the notice was not effective for the purposes of Section 31(3) because it was not sufficiently unambiguous.

Part of the problem in the example given above is the nature of the wording of the notice.  Whilst it may seem obvious to landowners that a notice saying ‘Private’ means just that, it is advisable to use wording that is much more specific and is clearly directed at the public.  In the example given above one of the other arguments advanced was that the ‘Private’ notice was in fact directed only at anglers and related to the fact that the fishing interest was let to one particular angling club and that members of the public who were not members of the club had no rights to enter the land to fish.

Thought must be given to the wording used.  It is difficult to give appropriate advice that would fit all circumstances, but in general the very best notices are worded to make it obvious that the notice is designed to provide evidence of a ‘lack of intention to dedicate’.  One way of doing this is to cite the legislation in the notice.  So a good starting point would be something along the lines of:

 Section 31 Highways Act, 1980
No public right of way

 Almost always when notices are relied upon by landowners to try to defeat claims of public rights, there are arguments about when the notices were erected and by whom.  Often landowners are forced to rely on notices erected by previous owners and in some case it can be very difficult to find evidence to clarify the matters in dispute.  Ideally therefore notices themselves should provide such evidence:

 Section 31 Highways Act, 1980
No public right of way
This notice was erected by the Hawley Estate on 1st April 1992

 Where it is necessary to replace notices because they have become illegible or have fallen down it might be appropriate to consider using the following wording:

 Section 31 Highways Act, 1980
No public right of way
This notice was erected by the Hawley Estate to replace one originally erected on 1st April 1992

In any case it is important to keep records of the wording of notices and the dates on which they were erected. It is also important to take photographs (if possible dated) that show the notice in context (not just photographs that show the wording of the sign).  Such records will be invaluable if a claim arises later.

Other forms of notice may be adequate, such as this one erected on the route of a promoted walk.

Notice for a permissive path

Sign on Church in Oakham, Rutland

This makes it clear that use of the path is with the permission of the church and therefore the use cannot be held to be ‘as of right’, which is a necessary component of a user based claim.

Saffron Close, Bedford

Saffron Close Section 31 Sign

Where a path has the character of a public highway, such as here where the path is in an urban area and named using a standard street name sign, it might be necessary for the wording to be even more specific.

If you are in doubt about whether or not to erect a notice (there are other ways of protecting your land which may be more appropriate for your circumstances), where to erect a notice or what wording should be used you should seek advice.

Notice, Huntingdon

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Local Land Charge Searches

November 20th, 2009  |  Published in Information

It is standard practice when buying a property in England and Wales to have your solicitor or conveyancer carry out what is commonly called a “Local Land Charges Search”, or simply a “search”.

This covers a multitude of questions and answers  that a potential purchaser of property might want to know before going ahead and contracting to buy.  With respect to public rights of way the question asked in the search is optional, so if you didn’t ask for it to be asked, and your solicitor or conveyancer didn’t ask  it then the question will not have been answered as part of the searches – so a right of way could exist over your property and since you and your advisers didn’t ask about it you will not have been told about it.  The other difficulty is that the search question asks if there are any rights of way crossing or abutting the property shown on the definitive map.   (See article on the definitive map for an explanation of what this is). Read the rest of this entry »

Definitive Map and Statement

October 19th, 2009  |  Published in Information

The Definitive Map and Statement was introduced by the National Parks and Access to the Countryside Act 1949 as a statutory record for ‘public footpaths’ (footpaths and bridleways) and ‘roads used as public paths’ (RUPPs). When a way is shown in the Definitive Map then its existence as a public right of way is conclusive. The Definitive Map can be amended so that ways shown therein can be changed to another status, or removed, or additional ways can be added. There is a statutory process for all these changes and any such change requires evidence to support it. Read the rest of this entry »
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User Based Claims

September 25th, 2009  |  Published in Information  |  1 Comment

Many people with a claimed public right of way across their land are dealing with a claim based on use of the route by the public.

It is often (wrongly) stated that use of a route by the public for twenty years creates a public right of way.   This statement arises from an attempt to simplify what is a very complex area of highway law, an area that cannot be readily simplified down to one statement.   Read the rest of this entry »