Lost in rights of way law

The law relating to rights of way over private land is complex and often confusing. No wonder, therefore, that so many rights of way disputes end up in the courts.

A recent case in the Court of Appeal involved two adjoining London hotels and held that a hotel owner had acquired a right of way by prescription over the roadway of a neighbouring hotel. A prescriptive right of way can be acquired after 20 years’ continuous use provided that the use is not by force, stealth or permission (licence).

Granting specific licence to use a right of way will, therefore, usually prevent a prescriptive right from being acquired. In the hotel case, a licence had been given in 1973 but the court held that the licence had ended when one of the hotels changed ownership in 1980 and no further licence had been granted.

A licence will usually give the neighbour permission to use a right of way for a set period of time on certain conditions and will often require the payment of a notional sum of money annually. The licence typically states it can be brought to an end on the giving of a prescribed (often relatively short) notice period. A licence is regularly used when a landowner wants to help out a neighbour by allowing them to use an access that is more beneficial to them but requires flexibility to stop the use in the future, for example if the land is to be developed.

A separate issue arises with public rights of way over private land. Is it possible to prevent members of the public acquiring rights of way over private land by deviating from the recognised public routes?

Many landowners will be familiar with the procedure under S31 (6) of the Highways Act 1980 which requires them to lodge with the relevant County Council a map and statement confirming the existence of recognised public footpaths across their land. This is evidence that the landowner accepts that certain roads or paths are dedicated as highways for public use To achieve even better protection against the creation of new public rights, the landowner should also submit a statutory declaration (a sworn statement) confirming that no additional path has been dedicated as a highway. This type of statement will need to be resubmitted to the council at least once in every ten years.

Unwanted rights of way can significantly reduce the value of land, particularly where they are close to existing dwellings or could adversely affect the potential for development. Any landowner who is aware of unauthorised access or use by third parties should seek early advice to mitigate the risks of a permanent right being created.

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