Naturenet: What makes a Public Right of Way?
What makes a Public Right of Way?
A
part from the cases where a new right of way has been specifically created,
for example, by means of a public path creation order under the Highways Act
1980 or through an Inclosure Award, ways become public rights of way through
dedication of the right to the public by the landowner. In a few cases, the
dedication is express— the landowner consciously and deliberately makes
a way a public right of way. But in the great majority of cases the dedication
is presumed from evidence of the use of the way made by the public, of the
actions, or inactions, of the landowner during the relevant period, and of
historical documents.
To establish that a way has become a right of way by means of presumed dedication
it is necessary to show firstly that there has been uninterrupted use by the
public (not necessarily the same people all the time) over a period of 20 years
in the belief that that use was as of right. Deciding who 'the public' are
can sometimes be difficult and may depend on the facts of the case. But in
general it should be people other than those working for the landowner concerned,
and the belief that use was as of right excludes use which was known to be
with the permission or licence of the landowner. The period of 20 years is
counted back from the date on which the public's right was first brought into
question, for example through the erection of a fence or locking of a gate
across the way, however long ago that date was. Evidence of use, or of interruptions
of use, since that date is not relevant to the existence of the right of way
at the date it was interrupted.
Dedication may also be presumed to have taken place at Common Law; again use
must be made as of right, by the public, but the period of use is not fixed
and, depending on the facts, can range from a few years to several decades.
The burden of proof is on the person claiming the right to show that the owner
of the land intended to dedicate a public right of way.
Documentary evidence from, or before, the relevant period is also important
in helping to decide the question whether public rights exist. Such evidence
can, for example, be old maps, estate documents or records such as tithe
maps or Inclosure Awards. The local record office may be able to tell you
which documents it has that may be relevant to a particular way. Some documentary
evidence may be sufficient on its own to establish the existence of public
rights and, however old the document, the rights will still exist unless
there is evidence of a subsequent legally authorised change.
Although 20 years' uninterrupted use by the public establishes a presumption
that the way has been dedicated to the public, the presumption can be contradicted
by evidence showing that there was no intention to dedicate on the part of
the landowner at the time. This could be evidence of an interruption of the
public's use of the way, but such an interruption would have to be shown
to have been both effective in preventing public use and clearly known to
the public using the way. Alternatively, notices clearly displayed on the
way, indicating that it was private, or plans deposited with the surveying
authority
or its predecessors can provide sufficient evidence of an intention
not to dedicate. Reports from people who can give evidence that a way was
private and that no public right of way existed during the relevant period
can also be of importance.
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Naturenet
a) Under section 31 of the Highways Act 1980