Anyone who is interested in claiming that a path track or lane is a public right of way can put together evidence to support this and lodge it with the County Council. If there is a reasonable allegation of a right of way then the County Council must make a formal order, called a Modification Order, which will, if it is confirmed, add that route to the definitive map as either a public footpath, a public bridleway, or a byway open to all traffic (BOAT). New changes in legislation have introduced a new category of restricted byway. Such a claim can be particularly important when rights of way over lanes are challenged and it is difficult to establish that a right of way exists.
If landowners’ object to the Modification Order a public inquiry or hearing is likely to take place at which everyone can be heard. It is however important to understand that the only evidence which can be taken into account is information as to the history of the way and its use.
Where it is not alleged that there is an existing right of way, but the County Council wants to create one, usually to improve the footpath network, the Council can make an order to create it, and is obliged to pay compensation. Such an order can be opposed on the basis, for example, that the way is not needed, or that the proposal would cause problems that compensation could not solve!
Many claims of public rights of way have serious implications for landowners. No compensation is paid to the landowner if he finds an order confirmed over his or her land, even if the right of way prevents its development or makes estate management very difficult. Successfully resisting claims to public rights of way in inquiry requires very careful examination of documents, picking out the relevant material, often at very short notice, a deep understanding of the principles of highway and property law involved, and skilful cross-examination of witnesses. It is one of the most complex areas of law. Knowing what evidence to search for, and where to find relevant historical records is important, and sometimes critical.
Commons are land over which individuals have right to graze their stock in common. These are registered under the Commons Registration Act 1965. Public rights of access over common land have been established by statute. Village Greens, on the other hand are established by use by the public from a particular area for recreational purposes. Some developers have been very surprised to find that the land on which they proposed to build has been claimed as a Village Green on the basis of 20 years use even though it has been used by the landowner. Clear understanding of the principles involved is essential.
The Countryside and Rights of Way Act 2000 (CROW) has introduced a whole new regime of access rights and procedures to determine what they are. The procedures are similar in some ways to the procedures for claiming rights of way, but the body responsible is the Countryside Agency, not the highway authority. Three successive maps are to be prepared: a draft map, a provisional map, and a conclusive map. Under the Act Regulations were made in 2002, and various two sets of amendments have been made in 2003.
Access rights will apply to "open country". This means land which is wholly or predominantly mountain, moor, heath or down. These terms raise all sorts of questions: they may in some cases include enclosed land. Again there are exceptions and qualifications, but it is important that all issues are raised at the appropriate stage, which will be during the three month period following the publication of the provisional map.
Such rights will also apply to registered common land, land which is dedicated for access by the owner, and other land which is already open to the public e.g. under the Environmentally Sensitive Areas Scheme. Excepted land includes parks, gardens, land within 20 metres of a dwelling or permanent livestock building, land used for golf courses, racecourse or aerodromes, land used for training racehorses and land under military byelaws.
The Government is considering whether to make legislation relating to public places applicable to land over which rights of access exist. This has the potential to place substantial burdens on landowners, but conversely, will make anti-social behaviour on the land subject to prosecution under such legislation.
It is often assumed that boundaries shown on the Land Registry filed plans are conclusive: this is not the case. They are usually based on old conveyancing documents, and by statute the boundaries shown are only a general guide to the position of boundaries. It is important to keep old conveyancing documents from before the title was registered to be able to answer queries on boundaries and to produce if necessary in evidence.
The "general boundaries rule" can cope with small errors in conveyancing plans, but in some cases errors are far greater. In time, a person who has occupied (and usually fenced) a pieces of land may acquire a title through adverse possession (otherwise misleadingly known as "squatters rights"), but the rules for claiming this are changed for registered land through the Land Registration Act 2002.
Many disputes with neighbouring owners arise out of rights of way or water supply or drainage. These are frequently badly defined in conveyancing documents, and the law has developed a number of technical rules to try to overcome this. These rules can establish the existence of rights by long user (prescription or lost modern grant) or by implied grant (under case law or statute), but there are limitations to the extent that these can be used if the use of the property benefiting changes. It is important to take legal advice before taking any action where there is suspected to be a problem or uncertainty.
For further information contact Mark Roome or Gillian Jones