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.  I cannot do justice to the complexity of the law in this short article, so I have to preface my piece with the comment that this does not represent a full statement of the law and that in any particular individual case there may be factors that mean that the comments below do not fully apply.   However, this is an attempt to set out the basics of the law in simple terms, but with rather more detail than the bald statement I’ve just criticised.

So why do people think that twenty years use by the public creates a public right of way?   The answer lies in Section 31 of the Highways Act 1980, which itself originated in the Rights of way Act 1932.   What that Act, and the present section, set out to do was to codify the common law basis of what is known as presumed dedication.   Now I can see your eyes glazing over already, but to those dealing with a claimed path based on use by the public this is all very important stuff so try to stick with me.

I think the first thing that we have to look at is why do we have  ‘presumed dedication’?   The answer to this lies in the basis of all highway law.   Highways can only come about by either being created under statute, or by statutory authority, or because the owner of the land crossed by the highway dedicates a highway to the public and the public accept it.   It is pretty easy to think of examples of highways created by statutory authority – Motorways, bypasses and highways created by inclosure commissioners.   There are also examples of dedication to the public by the owner, such as when a builder sets out roads on a housing estate and then asks for them to be adopted by the highway authority – the builder owns the land and the highway authority acts on behalf of the public by accepting the routes as being highways that in future the highway authority will maintain at public expense.  But the truth is that for very many of our highways no-one knows when they were created, or by whom.

To get round that problem the law came up with what I like to describe as a legal fiction; this was that the use of a route by the public was evidence that at some point in the past a landowner had dedicated the route to the public as a highway and it had been accepted by the public.   Put very simply this is how our common law has worked for centuries – where the status of an alleged route was in dispute, a court would look at the evidence of the existence of the route, and crucially quite often that evidence was the recollections of the oldest living inhabitants of the parish as to the use, or otherwise, of the route by the public.

Other evidence was sometimes taken into account – such as, in the case of a disputed road, had the parish maintained the route, and sometimes there might be some documentary evidence, such as an inclosure award to consider as well.  In any such case the burden of proof (i.e. who had to prove their case) was on those who said that the route in dispute was public.  What the Rights of Way Act 1932 sought to do was to make the process of proving that something was a public highway easier in cases where there was evidence, on the face of it, of  long use by the public.

What the present law (Section 31 Highways Act 1980) means is that if the public can show that they have used a route for twenty years then the burden of proof is now on those who say that the route is not public.   Under Section 31 the public also do not have to prove that the landowner (past or present) intended to dedicate the route to the public.   But the law does not say that twenty years’ use by the public means that the route is public, as there may be evidence that the landowner can produce that defeats the presumption.

Responses

  1. Protecting Land from Claimed Public Rights of Way – notices :: Sue Rumfitt Associates says:

    September 8th, 2010 at 4:37 pm (#)

    […]  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.’ […]