Lees Solicitors - Once a highway, always a highway... Tania Coventry

Residential Conveyancing News

Once a highway, always a highway... Tania Coventry


Once a highway, always a highway... Tania Coventry

Landowners must be acutely aware of the potential risks of public rights of way being unwittingly created over their land and take swift action to prevent their creation where necessary. Once created a public right of way can only be extinguished in very limited circumstances.

Landowners may find that a basic understanding of the law in this area will assist them and this article is designed to explain some basic points.

What is a highway?

A highway at common law is defined as a common route which people can pass and re-pass along as often as they wish without hindrance or payment.

County Councils are required to keep a definitive map showing all footpaths, byways and roads used as public paths that, in the opinion of the County Council, are public rights of way.

If a highway is shown on the definitive map it serves as conclusive evidence of its status as public highway and it is a criminal offence for any person, without lawful authority, to obstruct it.

How can a highway be created?

It is created if the following events occur:

  • The owner of the land must dedicate a right of passage over an area of land to all the public (Dedication); and
  • The public must accept this right (Acceptance).

Dedication of a Public Highway

A highway can either be created by an express dedication or through presumed dedication. However, presumed dedication does not apply to a vehicular highway.

Presumed dedication can either arise from common law rules or under statute.

Express dedication

There are no strict formalities required for a landowner to expressly dedicate land as a highway and express dedication can occur by a written statement, accompanied by a plan. Alternatively express dedication can be made by statutes, instruments or the construction of a new road with the intention of it being a public highway.

Presumed dedication at common law

Dedication is presumed if it has been used by the public as of right. There is no defined length of time over which the use must occur and it simply must be long enough to justify an inference that there was an intention by the Landowner to dedicate.

The Landowner can rebut this presumption by showing:

  • He has stopped people using the highway, either by turning people away or by obstructing it;
  • Restricting the use to a particular section of the public; or
  • That he lacked the capacity to dedicate the land.

Presumed dedication by Statute

Under the Highways Act 1980 a way is presumed to be dedicated as a highway if it:

  • Has been actually enjoyed by the public as a right, and without interruption, for 20 years: and
  • Is not of such a character that public use cannot give rise to a common law presumption of dedication.

Protection of the Landowner

If the Landowner has no intention to dedicate land as a public highway then this must be communicated to the users of the access way. For instance by erecting and maintaining a suitable notice which would be contrary to an intention to dedicate the land as a public highway.

Many Landowners at risk from the creation of a new highway already have got public rights of way running over their land. There is statutory procedure, under the Highways Act, in place that they can follow to protect their position and involves the Landowner doing the following:

  • They must deposit at the Council a scaled map of the land and a statement identifying the ways which they admit to as being a highway; and
  • They must lodge a statutory declaration with the Council that states no additional land has been dedicated. This must be lodged within the first 10 years, and during every subsequent period of 10 years, from either the date the map and statement were first submitted or the date of the last declaration.

Landowners should be very careful to ensure that they do not forget to submit new statutory declarations as if they do not they would again be at risk from a public right of way emerging.

In Conclusion

It is absolutely critical that Landowners do not overlook this area of the law when managing their land. The emergence of a public right of way, if not intended, could have severe consequences for their business and their land. Once a highway is established it can only be extinguished in very limited circumstances and hence the legal adage "once a highway always a highway" should not be forgotten.

If you require any further advice on a property related matter or if you are buying or selling a home please speak to a member of our Business & Property Services Team on 0151 647 9381, 0151 342 6273 or 0151 625 9364.

Tania Coventry

 

This article provides a summary of a recent case/change in law/news item. It is intended for general information purposes only and is not to be relied upon. It does not constitute legal advice and should not be treated under any circumstances as a substitute for legal advice. Lees Solicitors LLP does not accept any responsibility for any loss that may arise from reliance upon the information contained within this article. The copyright in this article is owned by Lees Solicitors LLP and permission must be sought before reproduction or publishing.


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