Introduction
1. This advice note will be particularly useful if you are trying to claim a public right of way where the route runs over Crown Land and/or there has been less than 20 years use by the public. (Crown Land comprises land belonging to the government or owned directly by the Crown, including land owned by the Duchies of Lancaster and Cornwall, although not land owned by a member of the royal family in a private capacity.)
2. Where there has been less than 20 years use, or where the path in question crosses Crown Land, it may possible to claim a right of way using common law. Common law is an unwritten body of law (i.e. it is not written down in an Act of Parliament), instead it derives its authority from usage and customs as well as previous judgments in case law.
3. The person wishing to claim a right of way by common law must be able to show that it can be inferred from the landowner’s conduct that he had intended to dedicate the route as a public right of way. Dedication of a route by a landowner may be by an express act; alternatively it may be implied from a long period of public use 'as of right' (i.e. without secrecy, force or permission), and the toleration of the landowner in that use. The two necessary preconditions to the creation of a highway are dedication by the landowner and acceptance by the public.
4. The length of time needed to demonstrate sufficient use is not fixed and depends on facts in the case under consideration. In one case 18 months use was held to be sufficient. Generally speaking the shorter the length of time the more intense the user must be.
5. Evidence of degree and quality of public user will be required; however the amount of user (the number of people using the route) has not been defined. The essential element is that it should be obvious to the landowner that a route was being used by the public. It is not sufficient that the route was open to a particular class of person, e.g. farm workers; it must be shown that the public at large were using the route openly. The more intensive and open the user then the evidence of knowledge and the acquiescence in that use by the landowner will be more compelling; the shorter the period necessary to make the claim.
Rebutting dedication
6. A landowner or tenant may prevent a right of way coming in to existence across his land by providing evidence of no intention to dedicate during the time the public use took place. Examples are putting up a physical barrier, erecting notices indicating the route is private, or turning people back. Shutting a path for at least one day a year has been accepted as a standard method of indicating no intention to dedicate, but the closure must be brought to the attention of the public.
Capacity
7. A person may have an intention to dedicate but this will be ineffective if that person does not have the legal capacity to dedicate. Generally speaking the person with the capacity to dedicate will the person who holds the freehold title of the land. He must also be in possession of the land, which means if he has leased it to a tenant the landowner will not be able to dedicate the right. The person dedicating must have the legal capacity during the entire period of user relied on.
Further reading
Rights of Way: A Guide to Law and Practice,John Riddall & John Trevelyan, Open Spaces Society and Ramblers’ Association, 2007.
