Common law dedication

Most claims for public rights of way rely on satisfying the tests set out in section 31 of the Highways Act 1980 under which a path is deemed to be a public right of way after 20 years’ use by the public. But section 31 doesn’t normally apply to Crown land.

Crown land comprises land belonging to the Government or owned directly by the Crown, including land owned by the Duchies of Lancaster and Cornwall (land owned privately by a member of the royal family doesn’t count as Crown land).

Where there’s been less than 20 years’ use by the public, 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 isn’t written down in an Act of Parliament) which derives its authority from custom and decisions of the courts over time.

Burden of proof and intention to dedicate a right of way

Someone wanting 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 the landowner intended to dedicate the route as a public right of way.

A landowner may expressly dedicate a right of way over his or her land, alternatively it may be implied from a long period of public use 'as of right' (i.e. without secrecy, force or permission), and the landowner tolerating that use. But long use coupled with lack of objection may not be enough by themselves.

Length and quality of public use of a path

The length of time needed to demonstrate sufficient use of a path is not fixed and depends on facts in the case being considered. In one case as little as 18 months’ use was sufficient. Generally speaking though, the shorter the length of time the path has been used, the more intense the use must be.

A minimum number of people using the route hasn’t been set down by the courts. The essential element is that it should be ‘open’ use – i.e. not by stealth – so that if the landowner chose to look it would be obvious that a route was being used by the public.

It’s not sufficient that the route was open to a particular group, e.g. farm workers on an estate. It must be shown that the public at large were using the route openly. The more intensive and open the use, the more compelling the evidence of knowledge and lack of objection of that use by the landowner will be, and the shorter the period of use needed to support the claim.

Preventing a right of way coming into existence

A landowner (or tenant) may prevent a right of way coming into existence across his or her land by providing evidence of there having been no intention to dedicate the path 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 long 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 to dedicate a right of way

A key difference between a claim for a public right of way made under common law and a claim made under section 31 of the Highways Act is the existence of a person with the 'legal capacity' to dedicate a path as a right of way.

For a claim under section 31 the existence of such a person is irrelevant – all that’s required is for there to have been twenty years’ public use of the path without interruption and an absence of sufficient evidence that there was no intention to dedicate the path as a right of way.

For a claim under common law however, where the burden of proof is on the person claiming the path to show that the owner of the land intended to dedicate a right of way over the route in question, there does need to be a person with the legal capacity to dedicate that path.

Generally speaking the person with the capacity to dedicate a right of way will be the person who holds the freehold title of the land. However, a tenant could dedicate a way if he or she did so with the agreement of the freeholder.

Claims based on documentary evidence alone

The issue of capacity to dedicate a right of way doesn’t come into play for claims based on documentary evidence alone (which are made neither under section 31 nor common law).

Evidence in such cases shows that, irrespective of use, a right of way has been created by due legal process or has been recorded as having the reputation of being of public status, or that it existed physically at the time the document was compiled.