Preventing the creation of new public rights of way and town and village greens.

Please note that the contents of this article apply in relation to England only.

If your land is, or has the capability of being, used as a means of access from one place to another, or by members of the public for recreational purposes, then it is worth considering taking steps to prevent the creation of new public rights of way across the land concerned, or to prevent the designation of the land as town or village green. Failing to take steps to prevent the creation of such rights can, especially in relation to the designation of land as a town or village green, be costly. It is highly unlikely that land which has been registered as town or village green could be developed in the future, as it would be a protected community space, thus dramatically reducing the value of the land going forward. A public right of way can also affect development potential.

The introduction of the Growth and Infrastructure Act 2013 (“GIA 2013”) brought in a number of changes to the mechanism for preventing the creation of new public rights of way and also introduced a mechanism for preventing the registration of land as town or village green. Since October 2013 in England, it has been possible to submit a landowner statement (preventing the creation of new town or village greens) and a highways statement and declaration using the same form (Form CA16 – which is the prescribed form which must be used for either type of application).

With regard to public highways, there is a presumption that a way had been dedicated as a public right of way where it has been used by the public “as of right” and without interruption for 20 years or more. Similarly, in relation to town and village greens, in order for the public to successfully have land registered as a town or village green, they must show that they have used the land for carrying out lawful sports and pastimes for an uninterrupted period of 20 years of more “as of right”.

“As of right” means:

  1. Without force – if members of the public are using the land for recreation, or as a means of access and it is clear to a reasonable user of the land that the landowner holds such use to be contentious and allowed only under protest, then the use by the public will be by force and therefore cannot be use “as of right”.

It is worth noting here that in the recent case of R (on the application of Cotham School) v Bristol City Council [2018] EWHC 1022 (Admin), the High Court have held that where a landowner has made it clear, through the erection of clearly visible signs, that it objects to the use of the land by members of the public, then the unauthorised use of the land by the public cannot be “as of right”;

  1. Without secrecy – the land must be used openly by the public and not in such a way that the landowner would not have any means of discovering that the land was being used by the public, either as a means of access, or for recreational purposes; and
  2. Without permission from the landowner.

In order for a landowner to show that he or she did not intend to allow the public to accrue rights over the land and to successfully interrupt the rights being created, the landowner needs to show that a reasonable member of the public using the land would understand that the landowner does not intend to allow a public right of way or town or village green to be created. One way for the landowner to do this is to erect signs on the land to inform the public. As seen above, the High Court have recently held that the erection of clearly visible signs can be enough to show that the landowner objects to the use of the land by the public and that, therefore, the use by the public cannot be “as of right”. However, this option is open to challenge by the public, if, for example, it could be argued that the signs are not clearly visible etc. Therefore, the most effective way for a landowner to challenge the creation of public rights of way or the designation of land as a town or village green is for the landowner to deposit statements and, in the case of public highways, declarations, with the relevant authority.

Public Rights of Way

For public highways, a mechanism for depositing statements and declarations with the local authority has been around for some time and the process is as follows:

  1. First of all, the landowner must produce a statement, accompanied by a plan (to an approved scale) which identifies all of the public rights of way (for example, public footpaths or bridleways etc) which already exist over the land in question.
  2. Once the statement and plan have been lodged with the local authority, the landowner must then lodge a declaration with the local authority within 20 years (if the land is in England) of the statement and plan being lodged with the local authority, in which the landowner declares that no additional land has been dedicated as a public right of way.
  3. The landowner must ensure that a new declaration is lodged no later than 20 years from the date of the statement and plan or, if a declaration has previously been deposited with the local authority, from the date on which the last declaration was lodged, if the landowner wishes to prevent any new public rights of way from being created.

The 20 year period in which to lodge the first and subsequent declarations was increased from 10 years (in relation to England only) by the GIA 2013. It is important to note that the 20 year period only applies to applications submitted on or after 1 October 2013. Declarations which were submitted before this date are still subject to the 10 year rule.

Please also note, the lodging of a statement and plan and subsequent declaration with the local authority does not prevent the creation of new public rights of way where the public can show that the right of way had been exercised by the public for 20 years or more prior to the statement, plan and declaration being lodged with the local authority.

As mentioned above, the introduction of the GIA 2013 made changes to the procedure for lodging statements, plans and declarations, one major change being increasing the maximum length of time between the lodging declarations from 10 to 20 years (in England). Regulations were also introduced which required the local authority to publicise on the land in question the applications which they had received which related to public highways. However, this obligation has now been overridden by subsequent regulations which came into force in 2016, meaning that the local authority is now no longer obliged to publicise such applications on the land concerned.

Town and Village Greens

In England, following the introduction of the GIA 2013 it is now also possible for landowners to interrupt a period of use of land by the public for lawful sports and pastimes “as of right” by depositing a landowner statement with the commons registration authority. These statements are similar to the highways statements submitted by landowners to prevent the creation of new public rights of way. If a landowner statement is deposited with the commons registration authority, along with an accompanying plan (to a designated scale), it will interrupt any period of use of the land by the public for recreational purposes “as of right”.

Although use by the public “as of right” is interrupted by depositing a landowner statement with the commons registration authority, it is important to note that, following the deposit of such as statement, if the public continue to use the land for lawful sports and pastimes, time will start to accrue once again. Therefore, as with highways declarations, a landowner should ensure that a fresh statement is deposited with the commons registration authority within 20 years from the date of the previous statement so that any rights being accrued by the public are once more interrupted before they acquire 20 years' or more uninterrupted use.

Landowners should also note that, where the public can show 20 years or more uninterrupted use of the land for lawful sports and pastimes “as of right” before a landowner statement is lodged with the commons registration authority in respect of that land, the deposit of a landowner statement has the effect of bringing that period of use by the public to an end. A grace period of one year will then commence during which the public will have the opportunity to apply to have the land registered as town and village green.

The GIA 2013 also introduced provisions which prevent members of the public from registering land as town or village green where certain “trigger events” have occurred. These “trigger events” were introduced in order to prevent land being registered as town or village green once it had been identified as suitable for development. The “trigger events” are listed in the Commons Act 2006 and include (amongst others): the publication of an application for planning permission in relation to the land concerned; and the adoption of a local plan, or the publication of a draft local plan, by the local planning authority which specifies the land concerned as being suitable for potential development.

Once a “trigger event” has occurred, it will no longer be possible to apply to register the land concerned as a town or village green. This restriction will remain in place until a “terminating event” occurs. With regard to the “trigger events” listed above, the corresponding “terminating events” include (again amongst others): the withdrawal of the planning application, or the refusal of the application (where all means of challenging such a refusal have been exhausted); or the revocation of the local plan, or withdrawal of the draft local plan.

The introduction of “trigger events” preventing registration of town and village greens has been welcomed by developers, as this reduces the risk of costly delays caused by town and village green applications which may be made in reaction to the submission of a planning application or the listing of land as suitable for development under a local plan.

Publicising Applications

Whether an application has been submitted in relation to public rights of way or in relation to town or village greens (or both), as soon as reasonably practicable after receipt of an application, the authority must publicise notice of receipt of the application. Notification of the application must be publicised by the authority in the following ways:

  1. On the authority’s website;
  2. By emailing a copy of the notice to anyone who has provided an email address so that they can be notified of any deposits made in respect of particular areas of land; and
  3. In respect of landowner statements only, by posting a copy of the notice at or near at least one obvious entry point to the land in question (or, if there are no such places, on at least one conspicuous place on the boundary of the land) for at least 60 days.

As stated above, the requirement for notice of applications relating to public rights of way to be posted on the land concerned have now been removed. However, this obligation is still in force with regard to landowner statements submitted in relation to town and village greens. This means that the process for preventing the creation of new town and village greens is a more public process than that which applies to public rights of way. Publicising the application on the land in question increases the risk of bringing the application to the attention of local residents, who may be able to show the requisite 20 years use of the land for recreational purposes prior to the landowner statement being deposited and could consequently encourage them to make an application to register the land as a town and village green.

The cost of submitting applications in relation to public rights of way and town and village greens should also be considered. The GIA 2013 introduced provisions which allow each registration authority to set their own fees for processing applications, therefore the fees charged vary across the country. However, depending upon how many separate parcels of land are involved and whether the landowner is submitting just a highways statements and declaration or just a landowner statement, or both, a landowner should be expecting to pay anything from a few hundred pounds in fees, possibly increasing into the thousands, if many separate parcels of land or applications are involved.

This risk of publicity and costs involved in preparing and submitting highways statements and declarations and/or landowner statements must be balanced against the risk that, by not depositing such statements, it could allow enough time to elapse for new public rights of way or designation of land as town or village green to be successfully claimed in the future.