People in England have the right to roam on open access land, including mountains, moors,
heaths, downs, common land, and some land around the King Charles III England Coast Path.
Additionally, privately owned land may be subject to public access due to the existence of a
public right of way created under specific circumstances: first, if the land was used as a public
right of way in the past; second, if the land was accessed by the public for at least 20 years
without objection, and third, if the landowner has given permission.
To establish where the public is allowed to roam, definitive maps have been drawn and are
kept and maintained by the local authorities. Although inclusion of a right of way on a definitive
map is conclusive evidence of its existence, the contents of the map are non-exhaustive. New
rights of way over private land may be claimed. This can lead to disputes with landowners,
who may be oblivious to the claim until they receive a notification containing details of the
claimant, the location of the claimed route through his land, and the evidence supporting the
claim.
Not all evidence is strong, and the process of the local authority investigating the claim is
lengthy, therefore a claim could fail. However, there are also meritorious claims, and it is
important for the landowner to consider whether it is worth objecting, contesting the claim and
weathering a hefty legal bill. Furthermore, the contentious approach can create fraught
relationships with the local community. Instead, a better approach is to prevent right of ways
claims.
This can be done by way of a landowner depositing a map and a statement under section
31(6) of the Highway Act 1980. This section states that a landowner can make the deposit with
the appropriate Council at any time, indicating which rights of ways, if any, he recognises to
be dedicated as rights of way over his land, and declaring that he has no intention of creating
any additional rights of way. The Council must take steps in respect of the map and the
statement, which can be kept in force by the landowner submitting Declarations and
Statements of Truth at a maximum of 20 years’ intervals.
Providing that the statement and the map are in place and renewed where necessary, the
landowner will be protected from a claim of long use, but not from a historical claim with
evidence to back it. Additionally, it is highly advisable to have clear signage if you have public
rights of way on your land, to deter trespassing into other areas and prevent new rights of way
from being formed. If you intercept trespassers, you should make a record of the encounter in
case you have to defend a future claim.
In conclusion, although protection from well evidenced historical rights of way claims is not
possible, protection against long use claims should be undertaken by landowners. This will
save conflicts with members of the local community due to contentious and costly legal
proceedings.
12th December 2024.