UK: Protecting Your Land From Village Green And Rights Of Way Claims

Last Updated: 8 August 2013
Article by Anne Bennett

The Growth and Infrastructure Act 2013 (Commencement No. 3 and Savings) Order 2013 (SI 2013/1766) and the Commons (Registration of Town or Village Greens) and Dedicated Highways (Landowner Statements and Declarations) (England) Regulations 2013 (SI 2013/1774) were made on 14 July 2013. The changes take effect from 1 October 2013.

Presumed dedication of highway

Under section 31(1) Highways Act 1980, a way is presumed to be dedicated as a highway if both of the following apply:

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

This presumption applies unless there is sufficient evidence that there was no intention on the part of the landowner during the 20 year period to dedicate it

Village Green applications

Under section 15 Commons Act 2006 anyone can apply to register land as a town or village green where:

"a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years"

The Deposit of Map and Statement under existing provisions of Section 31(6) of the Highways Act 1980

This is a longstanding procedure by which a landowner can rebut the presumption of deemed dedication of a public right of way.

The landowner must deposit with the appropriate authority a map of the land (to a specified scale) and a statement identifying any ways that the landowner admits to being a highway. Currently, the landowner must then lodge a statutory declaration with the authority stating that no additional land has been dedicated within the first, and every subsequent, period of ten years from the date of deposit of the map and statement, or the date that a previous declaration was lodged.

The duties of the appropriate authority to maintain a register of statements, maps and declarations are contained in section 31A of the HA 1980 and the Dedicated Highways (Registers under Section 31A of the Highways Act 1980) (England) Regulations 2007.

If it can be shown that the route was used as a right of way, without interruption, for twenty years prior to the statement and statutory declaration being lodged, a public right of way can still arise since the deposit of a statement and statutory declaration will not have retrospective effect.

In our experience there is a lack of awareness among landowners of this procedure and few landowners have taken advantage of this simple procedure to protect their land from presumed dedication (which we hope to help address by circulating this note!).

The Growth and Infrastructure Act 2013 (Commencement No. 3 and Savings) Order 2013 (SI 2013/1766)

The Order brings into force with effect from 1 October 2013 (in so far as not already in force) the following provisions of the Growth and Infrastructure Act 2013:

  • Section 13 which amends section 31 of the Highways Act 1980 and allows the Secretary of State to make regulations about statements and maps deposited and declarations lodged under section 31(6).
  • Section 15, which inserts new sections 15A and B into the Commons Act 2006 that allow a landowner in England to deposit a statement and map for the purpose of bringing to an end any period during which persons have indulged as of right in lawful sports and pastimes on the land to which the statement relates, on the landowner's land. The provisions also enable the Secretary of State to make regulations for a statement and map under this section to be combined with a statement or declaration and map previously deposited under section 31;

The Commons (Registration of Town or Village Greens) and Dedicated Highways (Landowner Statements and Declarations) (England) Regulations 2013 (SI 2013/1774)

These regulations prescribe the form of the application and the steps the authority must take to publicise an application. They will come into force on 1 October 2013 in England only and will apply to any deposit of statement or declarations after that date.

The commons registration authority will be required to maintain a register of statements and maps deposited in paper and electronic form. The electronic form must be available for public inspection on the appropriate authority's website.

The Dedicated Highways (Registers under Section 31A of the Highways Act 1980) (England) Regulations 2007 (SI 2007/2334) are amended so that (from 1 October 2013) statements need only be lodged every 20 years instead of 10 years and are no longer required to be sworn declarations.

Conclusion

The extension of this simple but effective procedure, under s31 of the Highways Act, into the realm of village greens should enable landowners to better protect themselves against unfounded claims for village green status.

Other measures in the Growth and Infrastructure Act exclude the right to apply to register land as a Village Green where any specified event related to the past, present or future development of land occurs. These "Trigger events" include publicity for a planning application, adoption of a development plan and the making of a neighbourhood development plan.

The government is currently consulting on additional trigger or terminating events related to the development of the land, all of which will help landowners to protect themselves against claims to public rights over their land and who have frequently had to endure delay and uncertainty due to applications for Village Green status.

It is also a timely reminder to landowners to take advantage of the Section 31(6) procedure to avoid claims to highway rights over private ways.

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.

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