UK: How Can The Public Affect Your Land?

Last Updated: 19 June 2018
Article by Verity Gawthorp

Preventing the creation of new public rights of way and town and village greens.

Please note that the contents of this article apply in relation to England only.

If your land is, or has the capability of being, used as a means of access from one place to another, or by members of the public for recreational purposes, then it is worth considering taking steps to prevent the creation of new public rights of way across the land concerned, or to prevent the designation of the land as town or village green.  Failing to take steps to prevent the creation of such rights can, especially in relation to the designation of land as a town or village green, be costly.  It is highly unlikely that land which has been registered as town or village green could be developed in the future, as it would be a protected community space, thus dramatically reducing the value of the land going forward.  A public right of way can also affect development potential.

The introduction of the Growth and Infrastructure Act 2013 ("GIA 2013") brought in a number of changes to the mechanism for preventing the creation of new public rights of way and also introduced a mechanism for preventing the registration of land as town or village green.  Since October 2013 in England, it has been possible to submit a landowner statement (preventing the creation of new town or village greens) and a highways statement and declaration using the same form (Form CA16 – which is the prescribed form which must be used for either type of application).

With regard to public highways, there is a presumption that a way had been dedicated as a public right of way where it has been used by the public "as of right" and without interruption for 20 years or more.  Similarly, in relation to town and village greens, in order for the public to successfully have land registered as a town or village green, they must show that they have used the land for carrying out lawful sports and pastimes for an uninterrupted period of 20 years of more "as of right".

"As of right" means:

  1. Without force – if members of the public are using the land for recreation, or as a means of access and it is clear to a reasonable user of the land that the landowner holds such use to be contentious and allowed only under protest, then the use by the public will be by force and therefore cannot be use "as of right".

It is worth noting here that in the recent case of R (on the application of Cotham School) v Bristol City Council [2018] EWHC 1022 (Admin), the High Court have held that where a landowner has made it clear, through the erection of clearly visible signs, that it objects to the use of the land by members of the public, then the unauthorised use of the land by the public cannot be "as of right";

  1. Without secrecy – the land must be used openly by the public and not in such a way that the landowner would not have any means of discovering that the land was being used by the public, either as a means of access, or for recreational purposes; and
  2. Without permission from the landowner.

In order for a landowner to show that he or she did not intend to allow the public to accrue rights over the land and to successfully interrupt the rights being created, the landowner needs to show that a reasonable member of the public using the land would understand that the landowner does not intend to allow a public right of way or town or village green to be created.  One way for the landowner to do this is to erect signs on the land to inform the public.  As seen above, the High Court have recently held that the erection of clearly visible signs can be enough to show that the landowner objects to the use of the land by the public and that, therefore, the use by the public cannot be "as of right".  However, this option is open to challenge by the public, if, for example, it could be argued that the signs are not clearly visible etc.  Therefore, the most effective way for a landowner to challenge the creation of public rights of way or the designation of land as a town or village green is for the landowner to deposit statements and, in the case of public highways, declarations, with the relevant authority.

Public Rights of Way

For public highways, a mechanism for depositing statements and declarations with the local authority has been around for some time and the process is as follows:

  1. First of all, the landowner must produce a statement, accompanied by a plan (to an approved scale) which identifies all of the public rights of way (for example, public footpaths or bridleways etc) which already exist over the land in question.
  2. Once the statement and plan have been lodged with the local authority, the landowner must then lodge a declaration with the local authority within 20 years (if the land is in England) of the statement and plan being lodged with the local authority, in which the landowner declares that no additional land has been dedicated as a public right of way.
  3. The landowner must ensure that a new declaration is lodged no later than 20 years from the date of the statement and plan or, if a declaration has previously been deposited with the local authority, from the date on which the last declaration was lodged, if the landowner wishes to prevent any new public rights of way from being created.

The 20 year period in which to lodge the first and subsequent declarations was increased from 10 years (in relation to England only) by the GIA 2013.  It is important to note that the 20 year period only applies to applications submitted on or after 1 October 2013.  Declarations which were submitted before this date are still subject to the 10 year rule.

Please also note, the lodging of a statement and plan and subsequent declaration with the local authority does not prevent the creation of new public rights of way where the public can show that the right of way had been exercised by the public for 20 years or more prior to the statement, plan and declaration being lodged with the local authority.

As mentioned above, the introduction of the GIA 2013 made changes to the procedure for lodging statements, plans and declarations, one major change being increasing the maximum length of time between the lodging declarations from 10 to 20 years (in England).  Regulations were also introduced which required the local authority to publicise on the land in question the applications which they had received which related to public highways.  However, this obligation has now been overridden by subsequent regulations which came into force in 2016, meaning that the local authority is now no longer obliged to publicise such applications on the land concerned.

Town and Village Greens

In England, following the introduction of the GIA 2013 it is now also possible for landowners to interrupt a period of use of land by the public for lawful sports and pastimes "as of right" by depositing a landowner statement with the commons registration authority.  These statements are similar to the highways statements submitted by landowners to prevent the creation of new public rights of way.  If a landowner statement is deposited with the commons registration authority, along with an accompanying plan (to a designated scale), it will interrupt any period of use of the land by the public for recreational purposes "as of right".

Although use by the public "as of right" is interrupted by depositing a landowner statement with the commons registration authority, it is important to note that, following the deposit of such as statement, if the public continue to use the land for lawful sports and pastimes, time will start to accrue once again.  Therefore, as with highways declarations, a landowner should ensure that a fresh statement is deposited with the commons registration authority within 20 years from the date of the previous statement so that any rights being accrued by the public are once more interrupted before they acquire 20 years' or more uninterrupted use.

Landowners should also note that, where the public can show 20 years or more uninterrupted use of the land for lawful sports and pastimes "as of right" before a landowner statement is lodged with the commons registration authority in respect of that land, the deposit of a landowner statement has the effect of bringing that period of use by the public to an end.  A grace period of one year will then commence during which the public will have the opportunity to apply to have the land registered as town and village green.

The GIA 2013 also introduced provisions which prevent members of the public from registering land as town or village green where certain "trigger events" have occurred.  These "trigger events" were introduced in order to prevent land being registered as town or village green once it had been identified as suitable for development.  The "trigger events" are listed in the Commons Act 2006 and include (amongst others): the publication of an application for planning permission in relation to the land concerned; and the adoption of a local plan, or the publication of a draft local plan, by the local planning authority which specifies the land concerned as being suitable for potential development.

Once a "trigger event" has occurred, it will no longer be possible to apply to register the land concerned as a town or village green.  This restriction will remain in place until a "terminating event" occurs.  With regard to the "trigger events" listed above, the corresponding "terminating events" include (again amongst others): the withdrawal of the planning application, or the refusal of the application (where all means of challenging such a refusal have been exhausted); or the revocation of the local plan, or withdrawal of the draft local plan.

The introduction of "trigger events" preventing registration of town and village greens has been welcomed by developers, as this reduces the risk of costly delays caused by town and village green applications which may be made in reaction to the submission of a planning application or the listing of land as suitable for development under a local plan.

Publicising Applications

Whether an application has been submitted in relation to public rights of way or in relation to town or village greens (or both), as soon as reasonably practicable after receipt of an application, the authority must publicise notice of receipt of the application.  Notification of the application must be publicised by the authority in the following ways:

  1. On the authority's website;
  2. By emailing a copy of the notice to anyone who has provided an email address so that they can be notified of any deposits made in respect of particular areas of land; and
  3. In respect of landowner statements only, by posting a copy of the notice at or near at least one obvious entry point to the land in question (or, if there are no such places, on at least one conspicuous place on the boundary of the land) for at least 60 days.

As stated above, the requirement for notice of applications relating to public rights of way to be posted on the land concerned have now been removed.  However, this obligation is still in force with regard to landowner statements submitted in relation to town and village greens.  This means that the process for preventing the creation of new town and village greens is a more public process than that which applies to public rights of way.  Publicising the application on the land in question increases the risk of bringing the application to the attention of local residents, who may be able to show the requisite 20 years use of the land for recreational purposes prior to the landowner statement being deposited and could consequently encourage them to make an application to register the land as a town and village green.

The cost of submitting applications in relation to public rights of way and town and village greens should also be considered.  The GIA 2013 introduced provisions which allow each registration authority to set their own fees for processing applications, therefore the fees charged vary across the country.  However, depending upon how many separate parcels of land are involved and whether the landowner is submitting just a highways statements and declaration or just a landowner statement, or both, a landowner should be expecting to pay anything from a few hundred pounds in fees, possibly increasing into the thousands, if many separate parcels of land or applications are involved.

This risk of publicity and costs involved in preparing and submitting highways statements and declarations and/or landowner statements must be balanced against the risk that, by not depositing such statements, it could allow enough time to elapse for new public rights of way or designation of land as town or village green to be successfully claimed in the future.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions