Public Rights of Way

While we stood reviewing court paperwork in the middle of a field last week, my farmer client regarded two individuals walking their dogs past us.

The walkers were taking advantage of a public right of way which had long existed over my client’s land, but he had lost three sheep this year to dogs belonging to the general public using such paths. It seems that while livestock worrying is well-documented in the agricultural sector, the general public are perhaps still not alive to what is a very serious matter to our farmers and their livestock.

As well as livestock worrying, watching the walkers reminded me of a judgment I had seen recently regarding public rights of way. While the facts of the case relate to non-agricultural land and property, it is a pertinent topic for all land purchases: residential, commercial, agricultural or otherwise.

Chesterton

In 2007, family-run property development company Chesterton purchased a row of residential houses intending to redevelop them for resale. Of particular importance to Chesterton was the inclusion of parking spaces to the front of the properties.

During any property sale, the purchaser’s solicitors will carry out searches to eliminate any nasty surprises upon completion of the purchase. Chesterton’s solicitors conducted the necessary property searches and discovered the road on which the properties stood was maintainable at public expense but the parking area was not, suggesting that only the road was a public right of way.

It later became apparent there was uncertainty as to whether the car parking spaces formed part of the public right of way and this was under investigation by the council. The council however did not disclose this investigation when approached for the searches.

What is a public right of way?

A public right of way is a road, track or pathway which the public have a legal right to pass over and which is maintainable at the public expense. This right remains in place indefinitely unless the right is legally closed, diverted or extinguished. It is a criminal offence to obstruct a public right of way.

What was the result of the council’s investigation in the Chesterton case?

The council eventually concluded that the parking spaces were indeed a public right of way. The result of this was that Chesterton had a claim for the difference between the actual price paid for the properties and their true value given that the land fronting did form part of the highway.

What could Chesterton do?

Chesterton commenced proceedings against the council for failing to maintain an accurate record of the public rights of way and for not disclosing the investigation within their search answers.

What was the outcome of the proceedings?

The judge found that the council had been under an obligation to provide accurate information to Chesterton and they had in fact failed in meeting this obligation. The council failed to inform Chesterton that the status of the spaces was under investigation. In the judge’s opinion it was entirely foreseeable that this inaccurate information could cause a purchaser to go ahead with a purchase that it might not otherwise have made, even though the council were not aware of the importance Chesterton placed on the car parking.

As a result of the council’s negligence Chesterton were able to recover the difference between the actual price paid for the properties and the value of the properties without the parking spaces.

Why is this important?

This is an important decision for both purchasers and councils as it clarifies the council’s obligations when providing their responses to searches. Even though the council are unlikely to be aware of the specific factors a purchaser may place importance on, the council will still be liable if inaccurate information is provided.

Further, it highlights the importance of ensuring the correct searches are undertaken by a purchasers solicitors to make sure the property is fit for the purposes required.