Balancing trespass and rights of way



The issues of trespass and public rights of way have always sat uncomfortably beside each other. For landowners lucky enough not to have rights of way across their land (these are far and few between), the issue is simply one of how to deal with trespass if and when it occurs. However, for landowners where rights of way are in place it can be challenging to get the balance right between managing public access and addressing the times when members of the public stray from paths.

It is incumbent on any landowner to make sure their boundaries and fencing are as secure as possible. However, landowners don’t want to over-fortify their land, so instead they should ensure they have adequate signage in place, to prevent rights being acquired, and/or to ask people to stick to the paths which do exist.

If signs are periodically damaged or removed you can serve notice to the county council under Section 31 of the Highways Act 1980 to state that signs have been put in place but have been defaced or removed. The statute makes the effect of the sign remain. However, not many landowners are aware of this useful and effective safeguard.

You can make a deposit under Section 31 which is a statement to the county council to state that you have no public rights of way and don’t want any more than you’ve got. This is a fool-proof tactic for protecting your property.

When people do trespass on land or wander from rights of way you are within your rights to challenge and try to stop them. You should be firm, but at the same time be wary of using ‘reasonable force’ as this may put you at risk. You should also always make a written record of the challenge – where and when it occurred, who was involved, and what was said. This is critically important because if a member of the public has used a path for long enough unchallenged they can effectively acquire a right of way. When this happens the landowner may only have himself to blame.

West Country solicitor Jonathan Cheal is a public rights of way specialist whose services are in demand across the country on a topic which can be a minefield for farmers and landowners alike. Jonathan works with Mogers Drewett which has offices in Bath, Sherborne and Wells. He also regularly attends market days at Frome Livestock Market.