My way or the highway

How to prevent the creation of new public rights of way over private land

In December 2013 DEFRA released revised guidance on the application of S.31(6) of the Highways Act 1980, following changes on 1 October 2013. This article explores the guidance and explains how to make an application to prevent new public rights of way being created over your land.

The use of highways statements and highways declarations under S.31(6) enables landowners to prevent a new route over their land from being recorded as highway on the definitive map. Highways are of course not carriageways but also other public rights of way such as footpaths, bridleways and restricted byways.

It should be noted that use of the procedure does not protect a landowner from claims where there has already been 20 years uninterrupted use, it does however stop time running where the 20 year period has not yet been completed.

The application to the appropriate council for both depositing a statement and lodging a declaration is made using form CA16, available here. It is a two stage process.

(1) Statement

To deposit a statement, landowners must complete sections A, B and F of the form and submit a plan showing any highways that currently exist over the land. The definitive map will show if the land is subject to any existing public highways and it may be possible to obtain an electronic copy of this from your local council.

An application has to be made for each landowner so, for example, on a large Estate where there are a number of owners, several applications will be required. Trustees will be treated as one owner and are required to sign one form. Where the owners are the same it is possible to include more than one parcel of land on each application form, it does not matter whether title to the land is registered or not. Applications must also be split between relevant councils so there is a need to check where the parish boundaries lie.

Following the deposit of the statement, the council will issue a deposit date, details of the deposit will be added to the council’s register and notices will be posted on the property.

(2) Declaration

The process for lodging a declaration is similar to above, except sections A, C and F of form CA16 need to be completed. It confirms the intention of the deposit and maintains the effectiveness of the deposit for 20 years.

In the declaration landowners declare that since the deposit of the statement no further highways have been dedicated or are intended to be dedicated.

Landowners have up to 20 years to lodge the declaration, although in reality this should be done as soon as possible. If the declaration is in order then the landowner should be advised of the date upon which it will be due for renewal and again details will be added to the council’s register.

To prevent any land being recorded on the definitive map as a highway in the future, further declarations must be lodged every 20 years and there is no duty on the council to remind the landowner when this is required. If there is any change of boundary or change of ownership during the 20 year period a further declaration will have to be deposited.

It is worth noting at this point that part D of form CA16 allows a landowner statement to be deposited under S.15A(1) of the Commons Act 2006. This can be deposited at the same time as your statement and prevents land being registered as a town or village green. Any application to register land as a town or village green must show that the land was used by a significant number of local inhabitants as of right for lawful sports and pastimes for at least 20 years. Depositing a landowner statement would mean that the 20 year clock is reset back to zero.

Pre-October 2013 there was no fee charged on depositing a statement and lodging a declaration. Post-October 2013 fees are now payable. It is currently unclear how fees will be charged and guidance is awaited from DEFRA. It is, however, understood that fees will be charged per parcel of land and are likely to vary geographically.

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