Legal update: Preventing the public acquiring rights of way

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Two recent appeal cases have revisited when land can become subject to private rights of way or be deemed to be dedicated as a public highway. At first blush these cases appear to be contradictory. We look at how they can be reconciled.

Two recent appeal cases have revisited when land can become subject to private rights of way or be deemed to be dedicated as a public highway. At first blush these cases appear contradictory. We look at how they can be reconciled.

Despite the fact these cases involve commercial properties, the principles that arise are equally applicable to rural and agricultural land. Therefore such landowners need to be aware of when rights of way can be acquired and how to prevent such rights arising.

Bennett v Winterburn

In Bennett v Winterburn a fish and chip shop owner claimed a private right of way over an adjoining cark park belonging to the local conservative club. The shop customers parked on the conservative club property in order to gain access to the shop.

The shop owner claimed a right of way based on 20 years continuous use. For the claim to be successful, he needed to show use “as of right” for 20 years. This means without force, secrecy or permission.

The first instance judge decided the shop had acquired rights over the car park. He held that the use of the land was not “contentious” because the club owner had not physically obstructed access or initiated legal proceedings. Use which is “contentious” is not use as of right and therefore no right can be acquired. On appeal however the Judge decided there is no minimum threshold of objection for use to become contentious. The conservative club had erected clear signs that objected to parking and this was a sufficient objection to make that use contentious. Therefore no right to park had been acquired. By contrast, the signs erected by the conservative club omitted reference to pedestrian rights. The Court therefore held that the shop customers had in fact acquired rights on foot because the use was not contentious.

As it stands, a property owner does not have to do everything possible to object to use of his land. However an owner should demonstrate overt signs of objection to any continuous use and review this on at least an annual basis. To do otherwise might suggest the owner has acquiesced in the use of his land. This could result in a private right of way being established. An alternative, where appropriate, would be to give an express licence to use land and retain the ability to revoke such permission. Permission prevents a private right arising because the user is not accessing the land as of right, but with the authority of the owner. Such is use “by right” not “as of right”.

Ali v Secretary of State

The second case, Ali v Secretary of State, concerned when private land can be dedicated as a public highway. Under the Highways Act 1980 if land has been used for 20 years without interruption, it will be deemed a highway unless the owner’s intention indicates otherwise. The case is a reminder that Landowners need to show “overt” signs of objection to use. On the facts, a distinction was made between closing and locking a gate, the latter being stronger evidence of intent to exclude. There was some evidence, albeit limited, that Mr Ali had either closed the alleyway gate on Christmas and public holidays. Even if Mr Ali had locked the gate this did not amount to an overt act because the users of the alleyway did not visit the area on public holidays. As a result he failed to establish the necessary intention to overcome the deemed intention to dedicate the land as highway.

The Highways Act 1980 also provide some relief for landowners. Under the act an owner can post a statutory notice on their land. Posting and maintaining a notice will be strong evidence that there is no intention to dedicate the way as a highway. In addition an owner may deposit with the council a map and statutory declaration indicating what ways (if any) he admits to have been dedicated as highways. These options should be considered in addition to outward signs of intent, for example locked and maintained gates.

Conclusion

In Bennett the court found that no private right had been acquired for parking. By contrast, in Ali the land was deemed a highway for public use. The judgments therefore had markedly different outcomes for the landowners but together highlight the need for objectively overt and express objection to use of privately owned land.

The cases serve as a reminder to landowners to be pre-emptive and alert to the acquisition of private rights of way and public highway rights. If you are concerned that your neighbours or members of the public might be in the process of acquiring rights of way and would like further advice, please contact Julian Steed or another member of the real estate disputes team.
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