Protecting yourself from rights of way and town or village green claims: Guidance for Landowners
If you are concerned about adverse rights of way claims being made against your land then you may have made a deposit under section 31(6) of the Highways Act 1980 with your local county council in the past.
The purpose of a landowner making such a deposit is to provide evidence of a lack of intention to dedicate any new rights of way over their land. This means that any persons claiming that they have used a right of way for more than 20 years as of right (without using force to gain entry, secrecy, and without the landowner’s permission), and without the landowner interrupting them, will be prevented from registering the right of way by ‘implied dedication’. Please note that rights of way may have been established under Common Law.
It can sometimes be difficult for landowners to provide evidence of how they have prevented people from using a right of way at a later date. While some landowners may keep a diary of dates on which they challenged people using the right of way or photographs of signs erected on the land, many do not. The section 31(6) deposit is an ideal tool to show evidence that the right of way in question has not been dedicated by the landowner.
Changes in the law governing the procedure for making a section 31(6) deposit came into force on 1 October 2013, and mean that:
- a specified application form must now be used,which no longer needs to be sworn by the landowner;
- county councils may charge a fee for processing the application;
- the renewal period has been increased from 10years to 20 years (however any deposits made prior to 1 October 2013 must be topped up within 10 years in the first instance); and
- notices erected by the county council must be displayed on the land informing the general public that a deposit has been made by the landowner.
The simplification of the process is a welcome change, as is the doubling of the renewal period from 10 years to 20 years. However, landowners must be aware that county councils are obliged to maintain a publicly available register of all deposits made. Most county councils are displaying this information on their website, and so there will be no anonymity for landowners making a deposit. Furthermore, the council will visit the property that is the subject of the deposit to erect a notice.
Town or village green claims
A similar procedure exists to help landowners to provide evidence against town or village green registrations. Section 15A of the Commons Act 2006 states that a landowner who deposits a statement with the county council can interrupt the 20 year period that members of the public must prove they have been using the land for in order to succeed. So if, for example, use had been going on for 19 years and a statement was made by a landowner the clock would be stopped and the members of the public would need to accrue a further full 20 years of use in order to make a successful application. If the landowner tops up the initial statement with another before the 20 year period has passed then he will stop the clock again, and be protected.
Landowners should be aware that if recreational use has been carried out on their land for 20 years or more as of right (without using force to gain entry, secrecy, and without the landowner’s permission), then the result of making a deposit starts the one year period in which local inhabitants may apply to the commons registration authority to register the land as a town or village green.
Applications for rights and way and common land statements may be made in one combined application, or separately.
The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
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