Landowners can take steps to prevent members of the public accessing their private land, to help prevent new rights of way being imposed on farms.The process of submitting an application is simple and provides security that the farm is protected for 20 years. Without this protection, farmers are vulnerable to members of the public claiming rights over their land for walking, riding horses or riding bicycles.
It is a legal requirement for the landowner to maintain these designated paths, such as keeping a minimum width clear, and cross-compliance requirements also have to be taken into account, as any breach will result in a payments reduction. It is fair to say that such obligations can cause financial problems and grief.
A new right of way can be claimed if a route has been used for at least 20 years without interruption, as long as it was used without secrecy, force, or the landowner’s permission.
If this use is restricted to one person, this can be claimed as a personal right and can become a private right of way. This must be registered on the details of the two parties through the land registry, and maintenance obligations will depend on the use and what was agreed. If multiple people are using the route, a new public right of way can be claimed. Evidence, such as photos or anecdotes, must be presented to prove how it has been used.
The onus is on the landowner to prove they have actively tried to prevent third parties from accessing their property.
This can be done by:
Submitting a landowner statement
A landowner statement under Section 31 (6) of the Highways Act 1980 (for public rights of way) should be completed and submitted to the local authority that has responsibility for highways.
Part of this submission will be a map of the farm with the existing rights of way marked, and the landowner should state that they do not wish any more footpaths to be designated over it.
The council will then present this publicly for any objections. If there are no objections, the farmer can submit a document requesting that the land be protected from new rights of way for 20 years.
However, this does not offer protection for any existing claims. Before the 20-year period concludes, the landowner should submit a new document stating that nothing has changed and requesting that the cover be rolled out for another two decades.
If the land has changed hands within this time, the new owner can still request the renewal based on when their predecessor made the submission. However, if the cover expires, the full process will have to be carried out again.
Putting up signs
Erecting a sign or notice that explicitly states that public access is prohibited can be effective but it must be maintained and sited near the land it is looking to protect.
Locking gates or blocking the access to the route makes it clear the land is not for public use. There are no consequences for blocking private land but if the area is subject to an existing claim, this could cause a dispute and trigger the legal process.
Granting permissive rights
If the landowner is happy for the public to use a route, they can grant permission temporarily which then prevents claims seeking a permanent right of way.
It is important to document permissive paths and also to erect signs on the land confirming that use of the route is by permission.
Mount & Minster's Top Tips:
- Be vigilant. Once a week or so take a look around the farm to see what’s going on. It should be relatively easy to see if people are using a route regularly.
- Make sure all your boundaries are secure.
- A quarter of the reasonable cost of maintaining gates and stiles forming part of a right of way can be recovered from the highway authority.
- Signs are key, but they cannot say “liable to prosecution” as trespass is a civil offence.
- Take the opportunity to prevent rights of way being designated because once they are it’s very difficult to vary or remove them.
- It is possible to undertake the Section 31 process yourself but seeking professional support is advised as the consequences of getting it wrong and being unprotected can be serious.
- Obstructing designated rights of way is against the law.