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use of the way made by the public, of the actions, or inactions, of the landowner during the relevant period, and of historical documents.

Presumed dedication

Walkersa) Under section 31 of the Highways Act 1980
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.

b) At Common Law
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

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.

No intention to dedicate

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 authorityPages marked with this symbol are exclusively written for Naturenet 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.