dedication of rights of way -
landowners must take action
Landowners should be aware
that recent case law has clarified the position on the statutory
dedication of public rights of way, but this has not swung in their
favour.
The statutory provision which sets out
the criteria for a statutory dedication is contained in section 31
(1) of the Highways Act 1980:
"where a way over any land […] has
actually been enjoyed by the public as of right and without
interruption for a full period of 20 years, the way is 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 question upon which the courts
have previously deliberated is whether the evidence being adduced
by the landowner to demonstrate that he had no intention to
dedicate the way as public needs to be brought to the attention of
the public at large. Until 2000, the position was that the
landowner had a heavy burden of producing evidence to demonstrate
that his intention not to dedicate was brought to the public. In
2000, the judge in the case of R - v- Secretary of State for the
Environment Transport and the Regions ex parte Dorset County
Council found that the intention not to dedicate does not have to
be brought to the attention of the users of the way in
question.
This enabled landowners to defend such
rights of way claims by providing evidence of their intention not
to dedicate which was not in the public domain and accordingly
would not, and could not, have come to the attention of the users.
In one case, the evidence was simply a clause within an
agricultural tenancy in which the tenant covenanted not to allow
any public footpaths to be created.
However, the original position has
been reinstated and further clarified by the recent House of Lords
case of Godmanchester Town Council -v- Secretary of State for the
Environment Food and Rural Affairs and another ('The Godmanchester
Case'). The interpretation of intention means what the users of the
way understand the owner's intention to be on an objective basis,
ie whether a reasonable user of the way understood that the
landowner was bringing to their attention the fact that the way is
not a public way.
So, what can landowners practically do
to objectively demonstrate their intention not to dedicate a
way:
- lock gates
- erect and maintain clear and visible
signs
- if any signs are removed or defaced
send a notice to the relevant Highways Authority
- deposit with the relevant Highways
Authority a statement and plan indicating what ways (if any) are
public and every ten years to make a statutory declaration
confirming that no dedications have been made since the original
statement or the last statutory declaration as the case may be
Landowners will therefore have to
consider whether all or any of the above steps should be taken in
respect of their property, particularly where there is evidence of
use and the landowner may or has not conveyed his intention that
the way is not to be dedicated to the users of that way.
For further information or advice,
please contact Oliver Sowton in our Agricultural, Equine and Rural
Affairs group on 023 8085 7111 or email him at oliver.sowton@bllaw.co.uk
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