The House of Lords’ decision in R (on the application of Godmanchester Town Council) v Secretary of State for Environment, Food and Rural Affairs; R (on the application of Drain) v Secretary of State for Environment, Food and Rural Affairs [2007] UKHL 28; [2007] PLSCS 127 clarifies the law on how landowners can prevent the public at large from acquiring rights of way across their properties.
The case turned on the meaning of section 31 of the Highways Act 1980. This provides that, where the public has used paths as of right and without interruption for a period of 20 years, those paths are deemed to have been dedicated to public use unless there is “sufficient evidence” that there was no intention to dedicate them.
The High Court and the Court of Appeal both agreed that the landowners had provided such evidence, and demonstrated their lack of intention to dedicate private tracks by, in one case, writing to the local authority to complain that members of the public were using the paths illegally and, in the other, by including a covenant in a tenancy agreement requiring the leaseholder to exclude trespassers and to prevent the creation of any public footpaths.
The Lords’ ruling, which accords with public expectations for improved access to the countryside, reverses these decisions (which suggested that landowners were not under any obligation to broadcast their intentions to users) and confirms that the statutory requirement for “sufficient evidence” means that landowners must be able to produce evidence of overt acts demonstrating their lack of intention to dedicate footpaths to public use.
The landowners argued that intention was a state of mind, and that they were best qualified to give evidence about their intentions. However, the Lords disagreed. On the Court of Appeal’s construction, a well-advised landowner, facing the possibility of a claim to a right of way based upon many years’ use, would simply have to make a private declaration that it had no intention to dedicate, and lodge it somewhere safe. The Lords ruled that the legislation set an objective test, and that the courts must ascertain a landowner’s intentions by reference to which members of the public would reasonably have understood.
Consequently, landowners that have not already done so should take steps to disabuse users of any belief that they are entitled to use pathways that have not already been dedicated to public use. The 1980 Act offers two statutory alternatives. First, landowners can erect notices, which must be visible to members of the public using the pathway. If the notices are defaced, or torn down, landowners should notify the council in writing that these pathways are not dedicated to public use.
Alternatively, landowners can deposit maps of their land with the council, together with a statement indicating which tracks, if any, have been dedicated to public use. They must then, at any time within the following 10 years, make a statutory declaration that they have not dedicated any additional pathways. This process must be repeated by further statutory declarations, made at intervals of not more than 10 years.
Allyson Colby is a property law consultant
