When is a path not a right of way?
Ancient law in England and Wales means that public rights of way can arise over a period through use by the public. A landowner is considered to dedicate the right without formal provision if he does nothing to make users aware that he does not intend it to become a right of way. For a path to be claimed as a right of way by users and recorded as such by the council, its use is usually challenged by the landowner.
The meanings of ‘use’, ‘intention not to dedicate’ and ‘challenge’ are not easily defined. The issues were recently considered by the House of Lords which resulted in a change to case-law and much clearer guidance.
Use of the path must be enough for it to have reasonably come to the landowner’s attention, so this can vary depending on location; use past his home is more likely to be noticed than on a remote moor, so less use will be judged to be reasonable to have come to his notice in a location he visits a lot to one he does not.
To prevent a right of way being assumed, the landowner must make it clear to users of the path that it is not his intention to dedicate a right of way, even if use occurs. This is usually by erecting notices, reporting notices going missing to the council, making a statement of his lack of intention to the council or turning back users on the path. The House of Lords held that this action need not be continuous but must have been during the period, ie. evidence of actions before or after the period in which use has occurred are not enough.
The finding that actions expressing the landowner’s lack of intention must be obvious to the users of the path overturns previous case-law and is of great importance.
The actions that indicate the landowner’s intention not to dedicate a right of way may be the same as those which challenge use, such as notices, an occasional locked gate, a statement to the council. However, a challenge to whether use is by right can also be by someone other than the landowner.
Sue Rumfitt and Geri Coop, IPROW
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