Protecting Land from new Public Rights of Way

The Specialist Advice Team at NFU CallFirst offer free initial legal and professional advice to NFU members about issues relating to public rights of way and access to land and can arrange a referral to one of the NFU’s Legal Panel Firms (Crombie Wilkinson Solicitors are one of two legal panel firms for the NFU North East region) if further independent advice or action is necessary.

NFU members who would like to make a Section 31(6) deposit, if they consider making such a deposit would be beneficial to them, can use the services of the Legal Panel Firms under the recently launched Legal Health Check Service.

Preventing New Public Rights of Way: Section 31(6) Highways Act

Access is, and has always been, a complex and contentious issue for land managers, farmers and landowners across the country. That is why the NFU is offering this member benefit to help landowners safeguard their position in relation to claims that “new” public rights of way (PRoW) have been acquired over their land.

Covid-19 restrictions resulted in a significant increase in the number of visitors to the countryside. While the majority of visitors behaved responsibly and remained on land with public access rights, the NFU has seen an increase in enquiries about trespass. One of the most common concerns is the potential for claims that additional access rights have been acquired as a result of a period of use.

There are several ways landowners can protect their land from applications to register new PRoW, including some relatively simple steps, such as displaying signs or placing (safe) obstructions, although landowners still need to be able to prove that these steps have been taken.

Often, applications to add new rights of way to the Definitive Map come as a complete surprise to the landowner, and once the use has been established it can be difficult for landowners to defend such claims. Unfortunately, it often takes a considerable period of time to deal with these applications, and many local authorities have a backlog of applications to deal with. Natural England has reported that there is currently a backlog of applications waiting to be processed by local authorities, that could take 13-years to complete, totalling around 4,000 paths. The costs of opposing such applications can be significant, particularly where there is a public inquiry to determine the application.

In addition, landowners can prevent new PRoW being claimed on their land by depositing a map declaration that they do not plan to create any new PRoW over their land with the local highway authority (a Section 31(6) application). Landowners can make a Section 31(6) application by depositing a map and statement with the local authority, showing all the rights of way they accept exist over land in that local authority’s area. These deposits need to be kept up to date and renewed periodically to ensure the protection offered is retained. Once this has been done, the onus would be on a user to prove that, notwithstanding the fact that this declaration had been made, the landowner did intend to dedicate a new right of way. This is likely to be challenging, especially if the landowner has taken steps to keep the declaration up to date.

These declarations only prevent claims that new rights have been acquired after the date on which they have been deposited; they cannot prevent claims relating to historic rights of way and they cannot prevent claims that new rights were acquired before the deposit was made. The procedures differ slightly in England and Wales, and in England the map and declaration prevent village green rights as well as rights of way.

What does the service include?

  • Call NFU CallFirst on 0370 845 8458 for free initial legal and professional advice provided by NFU specialist advisers about issues relating to public rights of way and access to land
  • Farmer Information Pack to include relevant business guides covering the procedure for preventing new rights of way being acquired over land, and a Countryside Code gate post sign. The pack contents can be downloaded from the NFU website (requires member login) or a hard copy pack can be ordered through NFU CallFirst.
  • If required, the specialist adviser can refer you to your local NFU Legal Panel Firm for an entirely free initial Legal Health Check – this will help to identify and highlight any concerns or other legal matters members need to consider in the interest of protecting their farming and/or growing businesses.
  • If, following the initial free Legal Health Check, it is identified that you need to make a s.31(6) application to prevent new rights of way being created on your land, Crombie Wilkinson Solicitors will advise you accordingly and provide a quote for the work to be carried out. The cost for the work will be at our firm’s standard hourly rates (with a 12.5% NFU discount applied).

LAS special offer

Members who subscribe to the NFU Legal Assistance Scheme (LAS)* can apply for a financial contribution of up to £250 towards the costs incurred from seeking professional advice and in making section 31(6) applications – this offer is available until 31 December 2021.

*Normal Legal Assistance Scheme rules apply.