Posted 21/11/2017 By: Joanne Briscoe
A bone of contention for almost every landowner are public rights of way, particularly for those landowners who own land close to the urban fringe, or with development potential.
Many landowners who challenge those who are trespassing will be met with “but I have a right to roam!” a term which has been commonly used by ramblers since the Countryside and Rights of Way Act implemented in 2000, and applies to “Access Land” over common land, mountains, moors, heaths and downs, being predominantly rural and privately owned.
The claim “I have a right to roam” does not apply to private farm land, providing this is not registered as Access Land (this can be verified on https://www.gov.uk/right-of-way-open-access-land/use-your-right-to-roam), and there is no public right of way.
So how do you make certain that public rights of way are not created? And how do you prevent ramblers asserting “I think you will find that this is a public right of way.” Public rights of way over your land can be nuisance, interrupt farming activity, expose your property to the general public and can ultimately devalue your land and assets for future generations.
In one case, Jack Sharpe of Carter Jonas worked to protect land in the northwest of England from public rights of way being created. The land itself which was being promoted through the Local Plan at the time, was of approximately five acres in size, it had been trespassed for a number of years and was exposed with it being located in the urban fringe.The urban fringe can be a challenge for management but on the flip side the location can offer development opportunities subject to planning.In this case a process was followed which, when the client concerned was negotiating with a housing developer, the completion of the process was enough to save the deal and ultimately millions of pounds for the landowner concerned which is certainly food for thought!
The difficulty is that once a public right of way is in situ, it can be an extremely costly financially, although it can be possible to divert it
Landowners therefore should consider their options. Do you rent the land out and put a clause into the documents to say that any tenant is use its best endeavours to prevent a public right of way being created? Is this enough?
In another case land was subject to an Agricultural Holdings Act tenancy, which again was located close to the urban fringe and there were claims for over 2km of footpaths made by the general public on the basis of 20 years uninterrupted use as of right. In this case whilst the tenancy did contain a clause putting onus on the tenant to prevent trespass and creation of rights of way, at the Public Inquiry the Planning Inspector deemed that this was not enough.
Another consideration is whether you erect signage to say ‘private land keep off’Others before have made diary notes of who was told off and when. The signage and diary notes are great, however they will not necessarily provide protection. What is available however is a deposit application to the Local Authority which can protect your land for 20 years against new footpaths and areas of common land being dedicated, and renewed thereafter. The deposit system also extends to protection against common land, and when you protect your land against public rights of way as well as common registrations at the same time, most local authorities offer a discounted fee.
There is incentive for landowners to get this process underway now, as the Deregulation Act which received royal assent in 2015 is likely to come into force soon. One of the effects will be that on 1 January 2026 the government intends to close the definitive maps to the claim of historic paths which existed before 1949. Whilst the longer term effect will probably be seen by landowners as beneficial, those who wish to claim rights of way over others’ land may create an influx of applications to local authorities now. To guard against this, it is worth landowners taking the initiative themselves and protecting their interests sooner rather than later.
In the professional experience of writers Joanne Sandwell of Ashtons Legal and Jack Sharpe of Carter Jonas, the most efficient way to protect land holdings against the creation of public rights of way and the issue of challenging trespassers, is to refer to it in black and white.We have helped many landowners protect their land in this way and have found different local authorities operate slightly different systems so we therefore have the knowledge and contacts to help you navigate the process.
For further information please contact; Joanne Sandwell, Associate at Ashtons Legal on 01223 431084 or email her at firstname.lastname@example.org. Jack Sharpe, Surveyor at Carter Jonas can be contacted on 01223 326814 or emailed at email@example.com
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