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There are various ways that landowners can prevent a right of way from being created on their land, such as displaying notices preventing access, or verbally challenging members of the public who exercise a particular route. However, these methods are not always reliable and they do not assist if the landowner is not even aware of the extent to which their land is being used by the public.
One effective way of rebutting the presumption is to carry out a procedure under section 31 of the Highways Act 1980. In short, the procedure requires a landowner to deposit with the appropriate council:
- A Statement identifying any routes that the landowner admits to being a highway/public right of way, together with a map of the land;
- A Declaration that no additional land has been dedicated as a highway/public right of way since the Statement was deposited.
This procedure constitutes a formal declaration by the landowner, confirming that he/she does not intend to dedicate any additional public rights of way over their land. The declaration lasts for 20 years and ensures that any public use of the land during this period will not count towards the establishment of new rights of way. The landowner should then lodge a fresh declaration before the end of each 20 year period to confirm that no new rights of way have been established.
The procedure is not appropriate in all circumstances because once a Statement/Declaration is lodged, it is brought to the public’s attention and they are given the opportunity to provide evidence that a route has been used without interruption for 20 years prior to the Statement and Declaration being lodged.
However, if used appropriately, the procedure provides much reassurance to landowners as it is a very effective way to protect land from being dedicated as a highway. The NFU has also identified the value of the procedure and is looking to be providing financial assistance to their Members for such applications shortly.
If you wish to discuss whether this procedure could be appropriate for you, please contact our dedicated Agricultural Team here at Crombie Wilkinson who will be happy to help.