Posted by Peter Foskett, Partner
How to prevent private and public rights over potential development land
For landowners who own land with development potential, preventing the creation of public and private rights of way over land by long user is always an issue. Such rights can devalue the development potential, or even make development unrealistic when small sites are concerned.
I have written articles about the use of signs and other approaches to minimise this risk. However, often no signs are put up or other action taken, and landowners are not certain as to who has the responsibility for establishing or denying the circumstances that would facilitate a right by long user. July 2017 saw a very useful decision of the Upper Tribunal setting this out clearly.
Three key factors
Three key factors must be established to create a legal right of way by long user (as a general rule 20 continuous years of use):
1. It has been exercised without force.
2. It has been exercised openly.
3. It has been exercised without permission.
If these three factors are in place, then the right of way is said to have been exercised “as of right”. If there are fences or appropriate signs in place, then this renders the exercise to be by way of force and therefore a right cannot be acquired.
If a claimant can show that entry fulfilled the first two factors (without force and openly), then the Upper Tribunal has said that there is effectively a presumption that it was without permission. In other words, the onus is on the landowner to rebut that presumption by showing that permission had been granted. If the landowner is unable to show that this was the case, the legal right may be acquired.
What does this mean for landowners?
- If you have given permission, make sure it is in writing and stored safely. Any permission that is granted should make it clear that you reserve the right to withdraw it at any time in the future. Making a number of copies (both paper and electronic) can guard against the permission being lost.
- Confirm the permission on a regular basis – firstly so as to maintain evidence, and secondly to make sure those enjoying the benefit of the permission do not enlarge it in their mind into something else.
- If you are not consenting to the access which is being taken over your land, you need to take other steps to remove one or both of the other two factors. This may be by erecting signs, restoring fences or making a Landowner Statement and filing this with the County Council. Please see my other articles about these steps.
Inaction will prejudice potential development land. The key thing to do is take action.
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