Landowning issues in lockdown
At the time of writing this blog, we find ourselves in the throes of another national lockdown. Lockdown 3.0 has a very different feel to the first, mostly on account of the January weather which has certainly surpassed itself with Storm Christoph being the latest to wreak havoc. Despite the absence of the dry sunny weather of Lockdown 1.0, people are still flocking to the countryside for exercise and fresh air which is continuing to cause some landowners concern particularly in relation to footpaths, livestock worrying and littering / flytipping.
In this blog, I am going to explore the knotty problem of footpaths and consider the practical and legal measures that can be taken by landowners to protect their land.
Managing established rights of way
We know that COVID-19 has led to an intensified use of green spaces. Whilst public rights of way were largely able to cope with the increased footfall in the first lockdown, the onset of winter weather has caused many to deteriorate.
Rather than persevering along the muddy routes, some users are choosing to stray from established paths leading to many footpaths becoming far wider than the legal line of the routes as drawn and with productive arable and pastoral land becoming damaged in the process.
Whilst this situation is concerning, it does not give landowners any excuse to block or obstruct public rights of way which run over their land. In fact, it is an offence to do so without lawful authority or excuse under the Highways Act 1980 and can result in a hefty fine. However, there are simple steps that can be followed to mitigate the problem:
- Signage – many member organisations such as the NFU and the CLA have downloadable signage which can be used to encourage users not to stray away from the paths. Effective signage does more than say “Keep Out” – it can politely educate visitors about why it is important to stick to the paths e.g. “This land is home to ground nesting birds. Please do not stray from the right of way and keep dogs on a lead or under very close control to avoid disturbing the birds”;
- Good management of the paths – clearing away fallen branches, keeping stiles in good working order and not locking gates will all help to minimise wandering;
- Offering permissive footpaths – this could take the pressure off existing routes and give the ground time to repair. Existing routes do have to stay open, however, and signage will be needed to direct walkers to the alternative.
The claiming and recording of new rights of way
Landowners should also be aware that the public can apply for rights of way to be recorded on the definitive map by applying for what is called a Definitive Map Modification Order (DMMO).
Any right of way can be claimed via user or documentary/historic evidence or a combination of both.
User evidence
Section 31 of the Highways Act 1980 provides that any person can apply to have a route recorded as a public right of way if it can be shown that there has been at least 20 years’ uninterrupted use by the public “as of right” (without force, secrecy or permission).
If such use is proven, this creates a rebuttable presumption that a route has been dedicated for use by the landowner. The burden then shifts to the landowner to prove that a route has not been dedicated. Evidence which is often put forward by landowners to prove this includes:
- The erection of carefully worded and strategically placed notices;
- The regular locking of any gates and the recording of the same;
- Polite challenges to users who stray from established rights of way, and again keeping a record of the same;
- The depositing of a statement and map followed by a subsequent declaration under section 31(6) acknowledging any existing public rights of way and declaring no intention to dedicate any further routes to the public
Documentary / historic evidence
A well-known saying in public rights of way law is “Once a highway, always a highway”. This saying comes from the ability of the public to lodge applications for the adding of public rights of way based on historic documents which show that a particular route was once a public right of way (highway), even if the public use of such a route has long since stopped.
Applications based on both types of evidence have become more prevalent in light of the requirement to register lost or historic paths by the statutory deadline of 2026 and organisations such as the Ramblers have launched projects to support volunteers with collecting the necessary evidence required to support applications.
If you would like advice on any public rights of way matter, please do not hesitate to contact us.
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