Imminent Changes To The Law On Rights Of Way And Village Greens

12th September 2013

In the past decade we have seen a shift in the dynamics of access over the Countryside. The advent of the Countryside and Rights of Way Act (CROW Act) ‘opened’ up vast areas of privately owned land in the uplands, amidst much angst of those involved. It also sought to clarify the issue of access over common land with the formula set out in S.68 to attribute the right of a legal access to property and its relative value in each instance. This has since been repealed as a result of the Bakewell V Brandwood case and it appeared that the well established principal of 20 years continued use could acquire a prescriptive right of way over a third party land; this may not always be possible, particularly where it concerns access over a village green.

Many land owners and farmers will be aware and conscious of the public clamour brought about by the proposed Coastal Access Bill, and the demand for new access to be created under the raft of Environmental Subsidy rules and regulations.

It is still possible for public new rights of way to be created as the result of informal uses of routes by members of the public, where this use is without permission, without force and without secrecy. A landowner needs to protect their position by demonstrating their lack of intent to dedicate a new right of way. Many owners will have prepared Deposits of Statement and Plan under S.31(6) of the Highways Act 1980, and lodged these with their local county council to ensure the known public rights of way are properly registered on the definitive map. Before the advent of the Growth & Infrastructure Act 2013, you were required to review the initial application every 10 years, although this has now been extended to 20 years.

The Discovering Lost Ways Project, abandoned by Natural England in 2008, gave concern to all those parties who had old railway lines, historic paths and to many previously unknown and unrecorded routes over their land. The results of this exercise, which cost £5million to the taxpayer, was to refocus efforts on reviewing existing legislation.

The introduction of the Localism Act in 2011 did much to bring back into the frame concerns about access over village greens and the rights of continued enjoyment over areas of unregistered land.

The implications of the registration of manorial rights by 13th October 2013 have spurred many into voluntary registration of their land with the Land Registry, although the ‘value’ of a registered common measured against the cost of achieving this, has to be borne in mind.

The Growth & Infrastructure Act 2013 received Royal Assent on 25 April 2013 and has brought about some reassurance to the rights to register town and village greens for landowners, including:

  • An increase from 10 years to 20 years for the period of protection afforded by the making of a declaration of public rights of way,

  • The right for a “reasonable” fee to be charged by the local authority for the making of deposits,

  • A form and procedure for the deposit of a statement with the local commons registration authority to protect land against registration as a town or village green. The deposit has the effect of bringing to an end any period during which recreational use of the land has been taking place. It cannot protect the land from registration if the use has already been taking place for 20 years, but it does protect the land against registration as a result of use for the next 20 years.

Landowners will welcome the opportunity to protect themselves from claims for town or village greens by the deposit of a statement which brings to an end the current period during which recreational use has been taking place. The decrease in time for applying for registration of land as a town or village green after use has ceased will bring certainty for landowners sooner. The extension of the period of protection afforded by public rights of way deposits to 20 years is also beneficial.

However, the new requirements for authorities to give publicity to deposits by email and site notices makes the process potentially much less discreet than it was. Landowners who do not currently have this protection, or have a declaration close to its renewal date, may therefore wish to consider the benefit of making a public rights of way statement and/or declaration before the changes come into effect on 1 October 2013.

Edward Hewetson of George F White commented ‘A right of access to your own property is a certainty for most owner occupiers; changes to rights of way can become highly emotive issues. I would recommend all landowners review what declared, prescriptive and concessionary private and public rights of way are exercised over their land in light of these changes. There could be significant implications on value in certain circumstances’.

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