Understanding Rights of Way
There are two distinct types of rights of way (ROW): public, and private. A public ROW entitles the public at large to pass and re-pass over land; a private ROW is a right enjoyed by a specific property to pass and re-pass over other land (either contained in the title deeds or arising by long use).
This note largely deals with public ROW. Existing ROWs are shown on the definitive map & statement (DMS) held by the county council, which should make plain the route, and the type of public use (footpath, bridleway, restricted byway, byway), and may also set out the width.
We can help explain this to you. We can also advise you on how best to apply to divert an existing public ROW (but this is a contentious procedure: it is essential to satisfy potential objectors before submitting the application).
New public ROWs can arise, by an application made to the county council, if the public can show that they have used a path (which is not currently on the DMS) for long enough, uninterrupted, and as of right (i.e. without being stopped or challenged, or without being told by signage that it is not a public route). Landowners can prevent this attempted use if they act in the correct way, and promptly. We can explain this too.
New public rights can also arise on documentary evidence, i.e. if the applicant can demonstrate that an old way sufficiently shown on old awards and maps to have been an old public route, and has never been stopped up.
The fact that it has not been used for many years does not do away with the public right, as long as the public right did come into existence. If such a claim is made against your land, it is essential to take advice sooner rather than later and to address the county council as to why they should not make the Order, before they begin to look at the papers.
The fact that a route is not wanted or not suitable is irrelevant. It is only based on evidence, and you have to fight evidence with evidence.
A deposit of statement, declaration, and plan can and should be lodged with the county council. This will have no effect on old documentary claims, but will prevent public use maturing into a claim, as long as it is lodged before the twenty-year period has expired. We can explain this to you, and can prepare the documents. It is vital to get them technically correct.
Note that the ‘village green’ option is also available in that deposit documentation, but it is different from the Highways Act procedure (it will have to be advertised on site, which will inform the public that they have a one-year period to submit a village green claim if they can prove twenty-years use already. Thus engaging the village green option may provoke a claim. We can help you with this too.
Mogers Drewett Solicitors’ Agriculture team can help you with all of these things. In the first instance, we suggest you contact one of our solicitors Jonathan Cheal who is a known specialist in this complex subject (07901 332 642) or Tracy Neal, Partner and Head of Agriculture (07394 872404)
