The introduction of the Countryside Rights of Way Act 2000, known as the “CROW Act”, has seen the laws relating to public rights of way change, but will this make it easier for landowners to prevent the general public from acquiring rights of way across their land?
How will the CROW act change the recording of Pubic Rights of Way?
Currently if a public right of way has been registered on the “definitive map” which is held by the Local Authority then this is conclusive evidence that a public right of way exists. However even if the right of way is not on this map then a right may still exist.
The CROW act will change this position by providing that any public rights of way which are not on the definitive map by 1 January 2026 will no longer exist. Therefore many individuals and organisations are starting now to apply to add as many public rights of way to the map as possible.
Is there a public right of way over my land?
Pursuant to section 31 of the Highways Act 1980, if a member of the public can show that a way over land has been enjoyed by the public as of right without interruption for 20 years, the way is deemed to be dedicated as a highway unless there is sufficient evidence that there was no intention by the landowner during that time to dedicate it.
The 20 year period which is referred to can be at any point in time and is calculated retrospectively from the date when the right was brought into question. So if the proposed right of way has been built over or questioned at some point, you must then go back 20 years from that point to see if there has been uninterrupted use for that period.
If this can be shown then it is up to the landowner to prove that during that time there was no intention to dedicate it as a public right of way. This can be very difficult for the landowner as he must provide sufficient evidence.
The law on this point was recently clarified however in the House of Lords case of R (on the application of Godmanchester Town Council) v Secretary of State for the Environments, Food and Rural affairs; R (on the application of Drain) v same (2007) UKHL 28. In this case two appeals were brought together. In both cases a local authority was trying to add a footpath to the definitive map. In the first case the landowner tried to argue against this by saying he had put up a sign saying that there was no intention to create a footpath and also written a letter to the local authority in similar terms. In the second case signs had been put up by the landowner. The court concluded that a landowner must show that members of the public would reasonably understand the landowner’s intention from his actions and that this had been communicated to them.
Consequently, landowners who have not already done so are being advised to put up signs on their land stating that there is no intention to create a public right of way. However this seems impractical in most circumstances as signs can be taken down or damaged. Therefore a landowner may be better advised to make a statement to the local authority accompanied by plans of their land indicating which tracks (if any) have been dedicated to public use. This process must then be repeated in the form of a statutory declaration at any time in every following 10 year period stating that no additional paths have been added.
What if a public right of way already exists and I want to develop my land?
Obtaining planning permission to develop land which has a right of way does not automatically mean that the right of way has been extinguished. If work begins to build over a right of way and some one brings an action to stop this it could be expensive to rectify. However the local authority does have the power to make an order to close or divert the right of way under the Town and Country Planning Act 1990 and this should be discussed with the local authority at the outset.
What should Landowners do?
Whilst the CROW act will undoubtedly provide that a clear record of public rights of way is provided, in the interim landowners must be aware that their land may be subject to an application to have a public right of way recorded. This may mean landowners will have to take action to prove that a right of way should not be dedicated. Landowners should not fall into the trap that a public right of way has been simply extinguished through non use, so goes the maxim ‘once a highway always a highway’.