Public and private access rights and land registration

Warmer days and longer daylight hours means increased pressure on the countryside, with public and private access demands inevitably increasing, too.

Cyclists and walkers want to follow public routes marked on Ordnance Survey Maps and friends and relatives want to carry on walking and cycling over private rights of way.

The warmer weather has also meant an increase in building activity and the latest Government initiatives are encouraging house extensions up to boundary lines.

As a result, it makes sense for everyone to consider carefully their own boundaries and access rights, whether public or private.

Last year’s case of Oliver v. Symonds confirmed the need for public and private rights of way to be clearly recorded, especially where there may be a future change of use.

In “Oliver” farmland and buildings were converted into detached dwellings, and a wall was built alongside a right of way which had been reserved to benefit farmland. The farmer argued that he needed the right of way for his farm machinery, so as not to drop mud on the new development accesses.

But the wording of the farm right of way did not include adequate provision for the increased size of machinery. And the Court of Appeal refused to “grow” the width of the right of way. It confirmed that there are rights for landowners to build hard up against the edge of a right of way, unless a right of “overhang” has been reserved, or implied through usage over the years. The Court also confirmed that adjoining property owners could not unilaterally reduce the width of a right of way.

One way to make the ownership of boundaries clear is to voluntarily register the land at the Land Registry.  This will show the boundaries on up to date maps.  Anyone who has not registered the land with the Land Registry should do so as soon as possible, as there are now rumours that the registration fees are about to increase.  There is a current 25% discount offered for voluntary registration.

Land Registration also protects land owners against “squatters”, which will be useful if there is land that you do not view every day.  A squatter of registered land will have to show that the squatters rights fall within very strict Land Registry criteria.  Also, where the land is registered, the Land Registry will know who to contact if someone claims squatter’s rights.

For public access rights, unless there has been an expressed dedication of a right of way by a landowner, the public rights of way will be as stated on a definitive map and statement, or acquired by the public through common usage. In the absence of express dedication by the landowner, public usage has to be 20 years or more, “as of right”, without consent of anyone, and taken openly and freely.

If, as a landowner (and that includes householders), you are worried about public walkers going onto your private property, and you do not want a public right of way to arise, there are several options available to you.  A clear and easy solution is to put a sign up saying “Private: No Public Right of Way”. “Private Road” is not sufficient.

Also, and either coupled with the sign or on its own, consider making a deposit of plans under the Highways Act 1980. By making an open statement to the County Council that, as a landowner, you have no intention to dedicate any new public rights of way, and also recognising the existing public rights of way, you stop time running for any new public rights of way being claimed.  But you will not turn the clock back. So, if someone has already acquired 25 years usage, as of right, by making the deposit you will not be able to remove an acquired public right of way if it is subsequently claimed.

A third option is to grant individuals letters of consent, allowing them to use tracks. This stops those individuals later claiming that they used tracks as “members of the public”. A simple letter will suffice, and we suggest landowners keep a copy signed by the person to whom the consent is given.

Every year we deal with a lot of public rights of way enquiries, Land Registry registrations and also private rights of access. For further details please contact Jeanette Dennis on 01284 727063  or email jeanette.dennis@ashtonslegal.co.uk, alternatively complete one of our enquiry forms.