Competition among schools creates a constant pressure to improve facilities and the buildings to house them: sports halls, music centres and performing arts centres for example. But the space for building can be restricted by settlement boundaries, the existing footprint and a variety of other considerations so that the options for new construction are often quite limited. Many schools occupy historic sites with ancient rights of passage - and not only in the common room. So what happens when a school wants to build over a right of way?
It is no secret that Harrow School is currently doing battle with ramblers over the right to walk across the school's land. It has even been a headline in the national press that Winston Churchill's old school will not budge after allegedly blocking a historic right of way.
There is an ongoing dispute surrounding a right of way running along a path between two all-weather pitches on Harrow School's playing fields: an old path across the school's privately owned land had been used by walkers for centuries, but was built over about eight years ago as part of a re-development of the school's sports facilities. Harrow School granted the local council a written "permissive path agreement" allowing the public informal use of an alternative path across the school fields.
Despite the fact that the council agreed to this arrangement in writing at the time of re-development, local residents now want to resurrect the old path. The alternative permissive path is deemed unacceptable by local walkers because the path doubles the distance across the playing fields and does not allow the views across Harrow Hill.
It seems likely that no express public right of way is (or was ever) registered on the school's title; if so Harrow School perhaps did more than it was obliged to do by engaging in discussions with the local council and ramblers at the time of redevelopment, and agreeing the permissive path as an alternative right of way. If no express right of way exists, then the school could have taken a harder line and simply gone ahead with re-development without granting even a permissive path.
What is a "permissive path agreement? A permissive path agreement is an arrangement by a private landowner to allow informal use of a path across its land, subject to conditions. Unlike a public right of way, permissive paths do not create any permanent rights because the landowner has the ability to terminate the agreement at any time.
The fact that the local council accepted a permissive path agreement indicates that the way across Harrow School may not have been a clear-cut public right of way.
A highway is a common route along which people can pass as frequently as they wish without hindrance or charge. A highway, which can also be referred to as a public right of way, can be created by express dedication or presumed dedication (at common law or statute).
The common law presumption is that a pathway is highway if it has been used by the public as of right. The statutory presumption under the Highways Act 1980 is that a pathway is a dedicated highway if it has been enjoyed by the public as of right and without interruption for 20 years. Both of these presumptions can be rebutted by demonstrating that the land owner had no intention of dedicating the land to the public.
In order to rebut those presumptions in this case, the landowner would normally have had to deposit evidence in the form of a statement, map and statutory declaration with the local authority rebutting any presumption of deemed dedication of a public right. In a proper case this kind of evidence can raise a sufficient doubt over the existence of a public right of way. In those circumstances a local council may prefer to avoid the risk of litigation and accept a permissive path agreement, rather than no right of way at all.
A right of way registered on the local authority's definitive map is definitive of the existence of a right. However, the fact that a highway is not shown on the definitive map does not mean that it is not a highway. The definitive maps are reviewed periodically and rights of way may be added, removed or the routes altered if there is evidence to show a change is necessary. Whilst the common law principle is "once a highway always a highway", public rights of way may cease to exist if they are stopped up or diverted. It is unclear as to the existence or status of the rights of way in the Harrow School case as we have not seen the title documents, but whatever the case, it is an emotive subject that may hit home with many schools.
Whatever the facts in the Harrow case, this is an emotive subject that may hit home with many schools.
So how can independent schools avoid disputes with ramblers about public rights of way over school land? The answer is that they cannot avoid such disputes, but they can handle them correctly by dealing with the issues appropriately.
When faced with an argument over a public right of way there is really no alternative to taking legal advice. Title documents will need to be checked to see whether a public path is marked across the land and investigations with the local authority will need to be carried out and an assessment of all the current facts to determine whether there is a highway or a public right of way. And if a school needs to block a public right of way to allow new construction negotiating a permissive path agreement can offer the best route round the problem.
BDB has a highly experienced team of real estate advisers and one of the largest planning law teams in England.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
